The Extent of the Employer's Business Premises.
In a Claim Petition the Employee bears the burden of establishing all of the necessary elements to support an award of compensation benefits. An injury is compensable only if it is sustained in the course of employment and is causally related thereto. Section 301(c)(1), 77 P.S. 411(1).
A compensable injury may occur when the employee is injured performing duties, in the furtherance of the Employer's business. A compensable injury may occur, as a result of the condition of the work premises.
Generally, injuries which occur while commuting to or from a place of work are not considered to "occur" in the course of one's employment. [ The general rule differs for traveling employees].
A Question may arise, as to When has an Employee "arrived" at the Work Premises?
What is the extent of the Employer's business premises?
Exide Technologies v. WCAB (Acosta), No.469 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on September 18, 2013, addressed the issues regarding the extent of an employer's work premises.
Factual and Procedural Background
Employee was struck by a vehicle while crossing Montrose Avenue, a public street, on his walk from a parking lot to his work place. Employee claimed disability as a result of skull fractures. The Employer argued the employee was not on the Employer's premises, at the time of the accident.
Employee Witness Testimony
2 Co-workers testified about the parking at Employer's business.
The Employer owns 2 parking lots; Lot A and Lot B.
Montrose Avenue runs between the 2 lots.
Lot B is contiguous to the plant.
Parking is also available on the street.
Employee parked at Lot A, as it is closer to the time clock area where he punches in.
Lot B is closer to the area where he picks up his uniform.
Employee must stop at both places before he starts his shift.
WCJ Decision
The Montrose Avenue, a public street, is not integral to the Employer's business premises, as Employee was not required to park at Lot A.
Employee could park in Lot B or on the side of Montrose Avenue, contiguous with the Exide building.
If employee selected one of these two options, he would not need to cross Montrose Avenue to get to work.
[Only the Lot A option necessitated crossing the public street].
WCJ denied the Claim Petition. Employee appealed.
WCAB reversed and awarded benefits. Employer appealed.
Commonwealth Court Decision
Reinstated the WCJ decision, to deny this claim.
Reasoning?
Employee is entitled to compensation benefits if he is injured on the employer's premises, at a reasonable time before or after the work shift.
Employee must prove he was:
(a) on the premises occupied or under the control of the employer;
(b) is required to be present there, by the nature of his employment;
(c) sustains an injury, caused by the condition of the premises or caused by operation of the employer's business thereon. See: Newhouse v. WCAB (Harris Cleaning Service), 530 A.2d 545, (Pa. Cmwlth. 1987) and WCAB (Slaugenhaupt) v. United States Steel Corp., 376 A.2d 271 (Pa. Cmwlth. 1977).
HERE, the Employee was crossing a public street, not a land parcel owned and/or controlled by the employer.
End of Analysis?No.
Prior Appellate Decisions have held that an Employer's business premises, is not necessarily limited to buildings or properties controlled, occupied or owned by the employer.
"Premises" may encompass property that could be considered "an integral part of the employer's business". See: Ortt v. WCAB (PPL Services Corp.), 874 A.2d 1264 (Pa. Cmwlth. 2005).
"The critical factor is not the employer's title or control over the area, but rather the fact that...[the employer] had caused the area to be used by ... employees in the performance of their assigned tasks.
See: slip opinion page 4, citing: Waronsky v. WCAB (Mellon Bank) 958 A.2d 1118, 1125 (Pa. Cmwlth. 2008), citing Epler v. North American Rockwell Corporation, 393 A.2d 1163, 1167 (Pa. 1978).
In Waronsky benefits were denied
In Epler benefits were awarded.
What is the difference between work comp liability and no liability?
Legal Distinction
In Waronsky the employee was struck by a vehicle while crossing a public street between her employer's office and her employer's parking garage. Her employer did not require employees to park in that garage. [Employer did provide tax incentives for parking there].
In Epler, the employer required employees to park in assigned lots and prohibited on-the-street parking. This control was sufficient to find that the street separating the building and parking lot was integral to the employer's business, as it was the only means of ingree and egress.
HERE, employee was not required to park in Lot A. Traversing the public street was not part of the employers business premises. When employee was on that public street, he was like any other member of the general public.
PRACTICE POINTERS:
1. The outcome in a "Premises" case, is dependant upon the individual facts presented.
Although there are "general rules", there are several exceptions.
Investigate the facts! Take witness statements, as to exactly where the accident occurred.
Review with the employer, their past practices, rules and requirements.
2.Research the case law, as win/loss is often dependant upon a few distinguishing facts, just like the results in Epler and Waronsky.
3. Be Proactive. Advise your employers that they may unknowingly expand their work comp liability, when they impose "rules" regarding mundane issues like employee parking.
Thursday, September 26, 2013
Tuesday, September 24, 2013
2 Knee Injuries + 2 Insurers = Who Pays?
Work Comp Benefit Liability and "Reasonable" Contest in the Multiple Injury Claim.
The Worker Compensation Insurer is responsible for payment of indemnity wage loss benefits and medical expense reimbursements, for reasonable and necessary care, related to the work injury.
Where there is a legitimate dispute regarding the injured Employee's entitlement to work compensation benefit payment, Employee has the burden of proof to establish each element of a compensable injury claim.
Where the Employer unreasonably contests the injury claim, the Workers' Compensation Judge may award the payment of attorney fees by the Employer, as an additional cost of litigation.
This is fairly straight forward... until there is more than one injury to the same body region...
Central Air Freight Services, Inc. v. WCAB (Byer), No. 534 C.D. 2013, an unreported Memorandum Opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on September 6, 2013, reviewed this type of fact situation.
Factual and Procedural Background
October 2003 Employee suffered a work-related left knee injury, in the nature of a torn meniscus.
Employer issued a NTCP and started benefit payments.
Employee returned to work and an LIBC Notification of Suspension was filed, followed by a Supplemental Agreement for suspension.
May 2009 Employee suffered a 2nd left knee injury at work.
Employee Petitions
He filed a Claim petition against SWIF the 2009 insurer.
He filed a Reinstatement Petition against Norguard, the 2003 insurer.
WCJ 410 Order
4 months after the 1st hearing, at Employee's request, WCJ issued an interlocutory order under Section 410 of the Act directing the two insurers to each pay 50% of Employee's wage loss and medical expenses, as there was no dispute employee was disabled, the only disputed issue was which insurer was responsible.
WCJ final decision
WCJ found Employee and Employee Medical Expert were credible.
SWIF Medical Expert was credible regarding Employee's ongoing problems.
2003 Norguard injury was to back part of knee, a torn posterior left medial meniscus.
Surgery was a near-total posterior medial meniscus removal, which caused post-traumatic arthritis.
The post-traumatic arthritis is the cause of employee disability as of October 2009.
2009 SWIF injury was to front part of knee, an anterior meniscal tear.
Employee recovered from this injury as of October 7, 2009.
Benefits Awarded
2009 SWIF claim petition injury disabled Employee from May 2009 to October 2009.
2003 Norguard reinstatement petition injury disabled employee from October 8, 2009 ... and into the
indefinite future.
Unreasonable Contest
WCJ found both SWIF and Norguard engaged in an unreasonable contest of each petition and assessed attorney fees totalling $6,645.
WCAB decision
AFFIRMED WCJ on assessment of liability.
REDUCED attorney fee award to the date that benefits started pursuant to the Section 410 WCJ order.
Commonwealth Court decision
Norguard Appeal Issues:
1. Error to affirm reinstatement order, there was no sufficient, competent evidence to establish 2003 injury affected earning power in 2009;
2. Error to conclude Employee and SWIF medical evidence is competent,
3. Error to conclude thee was an unreasonable contest.
1. Norguard argued substantial medical evidence supports a finding that the 2009 injury materially contributed to the need for medical care and wage loss. This would be a "new" injury, not a recurrence of 2003. Benefits should have continued for this "aggravation" injury.
Each day employee worked increased the degenerative changes in his knee, Each day was an "aggravation".
Commonwealth Court explained, it is not relevant that the evidence would support findings, other than those made by the WCJ. The scope of appellate review is to determine whether the findings authored by the WCJ are supported by substantial, competent and credible evidence.
Reinstatement of 2003 Norguard liability "after" the conclusion of the closed period of disability for the 2009 SWIF injury, was appropriate.
"Whether a disability results from an aggravation of a pre-existing condition or is a recurrence of a prior injury, is a question of fact for the WCJ to determine". (my emphasis). Citing: Reliable Food, Inc. v. WCAB (Horrocks) 660 A.2d 162 (Pa. Cmwlth. 1995).
Commonwealth Court reviewed the WCJ findings (reproduced in this opinion).
Competent and credible medical evidence supported the WCJ findings that the 2003 injury and surgery, which removed a substanial portion of the meniscus, resulted in: post-traumatic arthritis; synovitis; muscle atrophy, which was the cause of employee's disability, even after he recovered from the 2009 injury.
Employee met his burden of proof for reinstatement after a suspension, to establish his earning power (disability) is once again affected by his work injury and such disability is a continuation of disability from the original claim. See: PA Supreme Court decision at: Bufford v. WCAB (North Am. Telecom), 2 A.3d 548 (Pa. 2010).
2. Norguard argued the medical evidence relied upon by the WCJ was not competent as it relied upon an inaccurate understanding of employee's history of symptoms after 2003.
Employee testified he returned to full duty on 2004, without pain, without continuing medication and with little treatment. This was his status until the 2009 injury.
The medical evidence relied upon by the WCJ believed employee had continuing pain upon return to work in 2004. Yet, these witnesses could not explain how employee could work full duty from 2004 to 2009 (with pain?), but suddenly not work after 2009, due to the 2003 incident!
Newcomer v. WCAB (Ward Trucking Corp.), 692 A.2d 1062 (Pa. 1997) held that a medical expert opinion is incompetent if it is based solely on inaccurate or false information.
Here the medical evidence relied upon by the WCJ was competent to support the reinstatement award.
The Employee medical witness relied upon his first-hand 2009 surgical observations to support his opinion that the near total removal of the meniscus in 2004 was responsible for the development of degenerative changes within the knee. His lack of review of 2004 surgical records did not render his opinion incompetent.
Lastly, Commonwealth Court noted the WCJ referenced the medical records of Dr. Perlmutter from 2008 to support the finding of post 2004 symptoms. [Perlmutter was the 2004 surgeon].
3. Norguard argued the WCJ erred in finding an unreasonable contest of the reinstatement petition as employee returned to work within weeks of the 2004 surgery and worked without complaint until the 2009 injury. There were legitimate disputed issues regarding medical treatment and disability.
Morgan v. WCAB (Strock) 590 A.2d 1375 (Pa. Cmwlth. 1991) cited by the WCJ, held that a dispute between 2 insurers on the issue of liability cannot establish a reasonable contest, as to the claimant.
However, where the claimant raises the issue of which insurer is liable by filing separate petitions on separate theories of liability, the WCJ entry of a 410 order ends the insurers' contest with the claimant.
Slip opinion page 22 citing: Bittinger v. WCAB (Lobar Assocs. Inc.) 932 A.2d 355 (Pa. Cmwlth. 2007).
So the WCAB correctly modified the WCJ order regarding attorney fees.
Practice Pointers:
1. Sorting out the medical causation issues requires obtaining and reviewing all of the medical records of treatment with your examining medical expert.
2. Remember you can "stop" the unreasonable contest attorney fee duration by entering into a Section 410 order. However, is there is a question regarding the extent or duration of disability, you may re-consider this option.
The Worker Compensation Insurer is responsible for payment of indemnity wage loss benefits and medical expense reimbursements, for reasonable and necessary care, related to the work injury.
Where there is a legitimate dispute regarding the injured Employee's entitlement to work compensation benefit payment, Employee has the burden of proof to establish each element of a compensable injury claim.
Where the Employer unreasonably contests the injury claim, the Workers' Compensation Judge may award the payment of attorney fees by the Employer, as an additional cost of litigation.
This is fairly straight forward... until there is more than one injury to the same body region...
Central Air Freight Services, Inc. v. WCAB (Byer), No. 534 C.D. 2013, an unreported Memorandum Opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on September 6, 2013, reviewed this type of fact situation.
Factual and Procedural Background
October 2003 Employee suffered a work-related left knee injury, in the nature of a torn meniscus.
Employer issued a NTCP and started benefit payments.
Employee returned to work and an LIBC Notification of Suspension was filed, followed by a Supplemental Agreement for suspension.
May 2009 Employee suffered a 2nd left knee injury at work.
Employee Petitions
He filed a Claim petition against SWIF the 2009 insurer.
He filed a Reinstatement Petition against Norguard, the 2003 insurer.
WCJ 410 Order
4 months after the 1st hearing, at Employee's request, WCJ issued an interlocutory order under Section 410 of the Act directing the two insurers to each pay 50% of Employee's wage loss and medical expenses, as there was no dispute employee was disabled, the only disputed issue was which insurer was responsible.
WCJ final decision
WCJ found Employee and Employee Medical Expert were credible.
SWIF Medical Expert was credible regarding Employee's ongoing problems.
2003 Norguard injury was to back part of knee, a torn posterior left medial meniscus.
Surgery was a near-total posterior medial meniscus removal, which caused post-traumatic arthritis.
The post-traumatic arthritis is the cause of employee disability as of October 2009.
2009 SWIF injury was to front part of knee, an anterior meniscal tear.
Employee recovered from this injury as of October 7, 2009.
Benefits Awarded
2009 SWIF claim petition injury disabled Employee from May 2009 to October 2009.
2003 Norguard reinstatement petition injury disabled employee from October 8, 2009 ... and into the
indefinite future.
Unreasonable Contest
WCJ found both SWIF and Norguard engaged in an unreasonable contest of each petition and assessed attorney fees totalling $6,645.
WCAB decision
AFFIRMED WCJ on assessment of liability.
REDUCED attorney fee award to the date that benefits started pursuant to the Section 410 WCJ order.
Commonwealth Court decision
Norguard Appeal Issues:
1. Error to affirm reinstatement order, there was no sufficient, competent evidence to establish 2003 injury affected earning power in 2009;
2. Error to conclude Employee and SWIF medical evidence is competent,
3. Error to conclude thee was an unreasonable contest.
1. Norguard argued substantial medical evidence supports a finding that the 2009 injury materially contributed to the need for medical care and wage loss. This would be a "new" injury, not a recurrence of 2003. Benefits should have continued for this "aggravation" injury.
Each day employee worked increased the degenerative changes in his knee, Each day was an "aggravation".
Commonwealth Court explained, it is not relevant that the evidence would support findings, other than those made by the WCJ. The scope of appellate review is to determine whether the findings authored by the WCJ are supported by substantial, competent and credible evidence.
Reinstatement of 2003 Norguard liability "after" the conclusion of the closed period of disability for the 2009 SWIF injury, was appropriate.
"Whether a disability results from an aggravation of a pre-existing condition or is a recurrence of a prior injury, is a question of fact for the WCJ to determine". (my emphasis). Citing: Reliable Food, Inc. v. WCAB (Horrocks) 660 A.2d 162 (Pa. Cmwlth. 1995).
Commonwealth Court reviewed the WCJ findings (reproduced in this opinion).
Competent and credible medical evidence supported the WCJ findings that the 2003 injury and surgery, which removed a substanial portion of the meniscus, resulted in: post-traumatic arthritis; synovitis; muscle atrophy, which was the cause of employee's disability, even after he recovered from the 2009 injury.
Employee met his burden of proof for reinstatement after a suspension, to establish his earning power (disability) is once again affected by his work injury and such disability is a continuation of disability from the original claim. See: PA Supreme Court decision at: Bufford v. WCAB (North Am. Telecom), 2 A.3d 548 (Pa. 2010).
2. Norguard argued the medical evidence relied upon by the WCJ was not competent as it relied upon an inaccurate understanding of employee's history of symptoms after 2003.
Employee testified he returned to full duty on 2004, without pain, without continuing medication and with little treatment. This was his status until the 2009 injury.
The medical evidence relied upon by the WCJ believed employee had continuing pain upon return to work in 2004. Yet, these witnesses could not explain how employee could work full duty from 2004 to 2009 (with pain?), but suddenly not work after 2009, due to the 2003 incident!
Newcomer v. WCAB (Ward Trucking Corp.), 692 A.2d 1062 (Pa. 1997) held that a medical expert opinion is incompetent if it is based solely on inaccurate or false information.
Here the medical evidence relied upon by the WCJ was competent to support the reinstatement award.
The Employee medical witness relied upon his first-hand 2009 surgical observations to support his opinion that the near total removal of the meniscus in 2004 was responsible for the development of degenerative changes within the knee. His lack of review of 2004 surgical records did not render his opinion incompetent.
Lastly, Commonwealth Court noted the WCJ referenced the medical records of Dr. Perlmutter from 2008 to support the finding of post 2004 symptoms. [Perlmutter was the 2004 surgeon].
3. Norguard argued the WCJ erred in finding an unreasonable contest of the reinstatement petition as employee returned to work within weeks of the 2004 surgery and worked without complaint until the 2009 injury. There were legitimate disputed issues regarding medical treatment and disability.
Morgan v. WCAB (Strock) 590 A.2d 1375 (Pa. Cmwlth. 1991) cited by the WCJ, held that a dispute between 2 insurers on the issue of liability cannot establish a reasonable contest, as to the claimant.
However, where the claimant raises the issue of which insurer is liable by filing separate petitions on separate theories of liability, the WCJ entry of a 410 order ends the insurers' contest with the claimant.
Slip opinion page 22 citing: Bittinger v. WCAB (Lobar Assocs. Inc.) 932 A.2d 355 (Pa. Cmwlth. 2007).
So the WCAB correctly modified the WCJ order regarding attorney fees.
Practice Pointers:
1. Sorting out the medical causation issues requires obtaining and reviewing all of the medical records of treatment with your examining medical expert.
2. Remember you can "stop" the unreasonable contest attorney fee duration by entering into a Section 410 order. However, is there is a question regarding the extent or duration of disability, you may re-consider this option.
Thursday, September 19, 2013
Medical Fee Issues ... after Compromise & Release Settlement
Medical Fee Review after the Compromise & Release Settlement.
The Pennsylvania Workers' Compensation Act was amended in 1996 to allow parties to settle cases involving wage loss benefits, as well as medical expense liability.
The 1993 Amendments to the Act established medical fee caps, a utilization review procedure and a medical fee review procedure.
Often, when work comp cases are settled, the parties intend to enter into a binding, final settlement regarding both wage loss and medical expenses payments. At times, only the wage loss is settled.
An issue may arise regarding medical expense responsibility, after the settlement. A recent case before a panel of the Commonwealth Court discussed the review of a medical fee dispute at: Dr. Scott Jaeger v. Bureau of Workers' Compensation Fee Review Hearing Office (American Casualty Ins, Co.),
No. 1570 C.D. 2012, an unreported memorandum opinion authored by Judge Leavitt on August 26, 2013.
Factual and Procedural Background
Employee was injured at work on May 17, 2006.
The parties enter into a Compromise and Release settlement of medical and wage loss liability. December 7, 2007, the WCJ approved the settlement.
July 14, 2010, Dr. Jaeger's billing manager submitted an invoice to Coventry Health Care (the insurer's medical fee processing company) for medical services rendered to Employee, for the time period of September 5, 2007 to October 18, 2007.
[submitted more than 22 months after the September treatments!].
July 30, 2010, Coventry mailed an Explanation of Review letter to Dr. Jaeger, denying payment. (the appellate decision does not mention the reason for this denial).
Dr. Jaeger's office claimed they did not receive this document. It was not returned as undeliverable.
October 21, 2010, Dr. Jaeger's office contacts Conventry about the July 14 invoice and Conventry faxes a copy of their July 30 letter.
October 22, 2010, Dr. Jaeger's office files an Application for Fee Review, LIBC-507.
This Fee Review was filed 99 days after the original invoice dated July 14.
This Fee Review was filed 83 days after the July 30 letter "disputing payment'.
[In footnote 3 of the decision, the court notes that Dr. Jaeger re-submitted the bill in controversy and payments were issued on February 14 and March 2 of 2011 in the total of $4,119.73. As the original bill was $54,697.00, this is a reduction of 92.5%].
When the Bureau of Workers' Compensation receives a Fee Application, there is an "administrative review" to determine if the application is timely. If the Application is not timely, it is not processed.
A de novo hearing may be requested to address the sole issue of the timeliness of the Application.
In this case a hearing was conducted over several days, with testimony from the representatives of Dr. Jaeger, Coventry and the work comp insurer.
The Hearing Officer concluded that Dr. Jaeger's Application for Fee Review was not timely filed, as it was filed more than 90 days beyond the original billing date.
See: Section 306(f.1)(5), 77 P.S. 531(5).
Appeal from a Fee Review is directly to the Commonwealth Court.
Commonwealth Court Decision
Dr. Jaeger argued that his application for Fee Review was filed within 30 days of notification of the insurer's dispute, as his Application was filed one day after he received the Conventry fax on October 21, 2010.
This argument was rejected.
Section 306(f.1)(5) and Regulation 127.252(a) set forth the time periods for Application filing:
An application for fee review must be filed " no more than 30 days following notification of a disputed treatment or 90 days following the original billing date, whichever is later".
The Medical Provider has the burden of proof to establish that its application was timely filed.
Thomas Jefferson University Hospital v. Bureau of Workers' Compensation Medical Fee Review Hearing Office, 794 A.2d 999 (Pa. Cmwlth. 2002).
When a Medical Provider receives "no notification" from the work comp insurer, He must file his Application for Fee Review before the later date, the 90 days after original billing date.
Allowing the Medical Provider to file for fee review 30 days after a subsequent notification date would extend the deadline for filing, indefinitely. slip opinion page 6.
Practice Pointers:
1. At the time of C&R settlement, confirm the existence of all outstanding medical expenses. Itemize the medical expenses that will be paid as part of the settlement. Indicate which medical expenses will not be paid.
2. Where there are medical expenses in existence (before the date of settlement) affirmatively state if medical expenses will be paid. If medical expenses were denied in the past, indicate if they will be paid, or that the denial is not disputed.
3. When dealing with Medical Providers regarding billing issues, create a contemporaneous note of your discussions.
The Pennsylvania Workers' Compensation Act was amended in 1996 to allow parties to settle cases involving wage loss benefits, as well as medical expense liability.
The 1993 Amendments to the Act established medical fee caps, a utilization review procedure and a medical fee review procedure.
Often, when work comp cases are settled, the parties intend to enter into a binding, final settlement regarding both wage loss and medical expenses payments. At times, only the wage loss is settled.
An issue may arise regarding medical expense responsibility, after the settlement. A recent case before a panel of the Commonwealth Court discussed the review of a medical fee dispute at: Dr. Scott Jaeger v. Bureau of Workers' Compensation Fee Review Hearing Office (American Casualty Ins, Co.),
No. 1570 C.D. 2012, an unreported memorandum opinion authored by Judge Leavitt on August 26, 2013.
Factual and Procedural Background
Employee was injured at work on May 17, 2006.
The parties enter into a Compromise and Release settlement of medical and wage loss liability. December 7, 2007, the WCJ approved the settlement.
July 14, 2010, Dr. Jaeger's billing manager submitted an invoice to Coventry Health Care (the insurer's medical fee processing company) for medical services rendered to Employee, for the time period of September 5, 2007 to October 18, 2007.
[submitted more than 22 months after the September treatments!].
July 30, 2010, Coventry mailed an Explanation of Review letter to Dr. Jaeger, denying payment. (the appellate decision does not mention the reason for this denial).
Dr. Jaeger's office claimed they did not receive this document. It was not returned as undeliverable.
October 21, 2010, Dr. Jaeger's office contacts Conventry about the July 14 invoice and Conventry faxes a copy of their July 30 letter.
October 22, 2010, Dr. Jaeger's office files an Application for Fee Review, LIBC-507.
This Fee Review was filed 99 days after the original invoice dated July 14.
This Fee Review was filed 83 days after the July 30 letter "disputing payment'.
[In footnote 3 of the decision, the court notes that Dr. Jaeger re-submitted the bill in controversy and payments were issued on February 14 and March 2 of 2011 in the total of $4,119.73. As the original bill was $54,697.00, this is a reduction of 92.5%].
When the Bureau of Workers' Compensation receives a Fee Application, there is an "administrative review" to determine if the application is timely. If the Application is not timely, it is not processed.
A de novo hearing may be requested to address the sole issue of the timeliness of the Application.
In this case a hearing was conducted over several days, with testimony from the representatives of Dr. Jaeger, Coventry and the work comp insurer.
The Hearing Officer concluded that Dr. Jaeger's Application for Fee Review was not timely filed, as it was filed more than 90 days beyond the original billing date.
See: Section 306(f.1)(5), 77 P.S. 531(5).
Appeal from a Fee Review is directly to the Commonwealth Court.
Commonwealth Court Decision
Dr. Jaeger argued that his application for Fee Review was filed within 30 days of notification of the insurer's dispute, as his Application was filed one day after he received the Conventry fax on October 21, 2010.
This argument was rejected.
Section 306(f.1)(5) and Regulation 127.252(a) set forth the time periods for Application filing:
An application for fee review must be filed " no more than 30 days following notification of a disputed treatment or 90 days following the original billing date, whichever is later".
The Medical Provider has the burden of proof to establish that its application was timely filed.
Thomas Jefferson University Hospital v. Bureau of Workers' Compensation Medical Fee Review Hearing Office, 794 A.2d 999 (Pa. Cmwlth. 2002).
When a Medical Provider receives "no notification" from the work comp insurer, He must file his Application for Fee Review before the later date, the 90 days after original billing date.
Allowing the Medical Provider to file for fee review 30 days after a subsequent notification date would extend the deadline for filing, indefinitely. slip opinion page 6.
Practice Pointers:
1. At the time of C&R settlement, confirm the existence of all outstanding medical expenses. Itemize the medical expenses that will be paid as part of the settlement. Indicate which medical expenses will not be paid.
2. Where there are medical expenses in existence (before the date of settlement) affirmatively state if medical expenses will be paid. If medical expenses were denied in the past, indicate if they will be paid, or that the denial is not disputed.
3. When dealing with Medical Providers regarding billing issues, create a contemporaneous note of your discussions.
Tuesday, September 17, 2013
Impaiment Rating Evaluation limits the duration of Benefits ... but Employee can Challenge 490 weeks later!
Challenge to the Impairment Rating Evaluation.
When an injured employee has received 104 weeks of total disability benefits (TTD), the Employer may file a request for the scheduling of an Impairment Rating Evaluation (IRE) in an effort to limit the duration of benefit status, to a period of 500 weeks. Section 306(a.2), 77 P.S. 511.2.
If the IRE determines that employee is less than 50% impaired under the AMA Guidelines to Impairment, the employee status is changed from total disability, of an unlimited duration, to a partial disability status, of a limited duration of 500 weeks.
An employee may appeal the change to partial disability status, at any time during the 500 week period of partial disability. Employee must establish an impairment rating of 50% or greater. Section 306(a.2)(4).
Besozzi v. WCAB (Consol PA Coal Company), No. 610 C.D. 2013, an unreported Memorandum Opinion of a panel of the Commonwealth Court of Pennsylvania, authored by President Judge Pellegrini on August 20, 2013, addressed these issues surrounding the IRE and Employee benefit status.
Factual and Procedural Background
In June of 1997 Employee injured his right arm and upper extremity. Work Comp benefits commenced.
After payment of 104 weeks of TTD benefits, Employer filed a Request for Designation of a Physician to Perform an IRE. (LIBC-766).
Employer IRE
IRE by Dr. V.G. Raghavan on May 2, 2000 determined Employee had a 22% impairment rating, in accord with the AMA Guidelines.
A Notice of Change of Workers' Compensation Disability Status (LIBC-764) was filed June 2, 2000.
Employee's status changed from total to partial effective May 2, 2000.
The 500 week period of partial disability status was set to expire on November 30, 2009.
Employee Medical Attempt #1
Employee filed a Petition to Review his status on September 11, 2009.
[ At this time employee did not have any medical evidence].
On November 30, 2009, Employee was examined by Dr. N. Varrati and he assessed a 53% Impairment Rating. HOWEVER, Dr. Varrati was not licensed to practice medicine in Pennsylvania, as required by Section 306(a.2).
Employer objected to the IRE report of Dr. Varrati and made a motion for dismissal of Employee's review petition. WCJ denied employer's motion to dismiss as "untimely" (what?).
Employee Medical Attempt #2
In support of the Review Petition, Employee offered the January 18, 2000 ***report of Dr. A.C. Nalluri, a Board Certified Psychiatrist licensed to practice in Pennsylvania.
***[the opinion identified this date of exam as 2000, but in the chronology of events, it would seem that this exam was in 2010].
Dr. Nalluri testified via deposition. He diagnosed employee's work-related condition as:
(i) right shoulder capsulitis;
(ii) right elbow arthritis;
(iii) right carpal tunnel syndrome;
(iv) avulsive triceps tendon on the right
(v) ectopic bore or heterotopic ossification in the right elbow;
(vi) right elbow ulnar neuropathy.
[ now that's a lot of orthopedic diagnoses for a Psychiatrist!].
[ Where's the Employee Petition to Review the description of injury?]
Dr. Nalluri testified that Employee had a 54% Impairment ... and this rating applied to November 30, 2009.
Dr. Nalluri stated he used multiple tables, multiple references and his clinical judgment, in assigning this impairment rating. He used a diagnosis-based impairment method, not a range of motion method.
Dr. Nalluri justified using a diagnosis-based impairment method because of the complexity of the case ... and because employee's diagnoses were not conditions set forth in the AMA Guidelines!
As noted by the WCJ (in rejecting Dr. Nalluri's opinions) Dr. Nalluri never explained why he selected the diagnostic-based method when none of the diagnosed conditions were in the AMA Guidelines Tables.
Dr. Nalluri never stated the Impairment Rating according to the range of motion method, even though he took detailed range-of-motion and strength testing of each of the affected areas of the right upper extremity.
In rejecting Dr. Nalluri, the WCJ noted employees' diagnosed conditions were not in the AMA Tables, so Dr. Nalluri chose conditions in the Tables that most approximated employee's condition.
"wrist fusion" was substituted for carpal tunnel syndrome!
"elbow fusion" was substituted for elbow arthritis!
"total shoulder arthroplasty" was substituted for adhesive capsulitis!
WCJ decision relied on Employer Medical Evidence
Anthony Ricci M.D., a Board -Certified expert in Physical Medicine and Rehabilitation performed an IRE on employee. He determined employee demonstrated a 38% Impairment Rating.
He explained he used the Range-of-motion method of evaluation, as the majority, if not all, of employee's impairment at the shoulder, elbow and wrist resulted from limited range of motion.
[In 2000 Dr. Raghavan used the range-of-motion impairment method.]
[Employee was also evaluated by William H. Mitchell M.D. in September 2000 and he used a range-of-motion method to assess an Impairment Rating of 28%.]
WCJ found employee Review petition was timely filed (?).
WCJ found employee failed to sustain his burden in the Review.
Employee appealed to WCAB.
1. It was error for the WCJ to consider Dr. Ricci's critique of Dr. Nalluri's method.
2. This critique was beyond the scope of the report of Dr. Ricci.
3. The WCAB erred in concluding that employee did not comply with the statute.
4. The WCJ erred to consider Dr. Ricci more credible as Dr. Nalluri explained why he chose his method.
Commonwealth Court Decision
1 & 2. It was not an error of law for the WCJ to admit Dr. Ricci's testimony, which critiqued Dr. Nalluri's methodology in calculating the IRE impairment figure, even though that opinion was beyond the scope of his written report. Employee relied upon Rule 4003.5 of the PA Rules of Civil Procedure. However, those rules do not govern workers compensation proceedings.
In the rules that do govern, there is no rule, in the "Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges", which states that a medical expert must confine his opinions exactly to the content of his report. Citing: Stech v. WCAB (MJS Equipment Co.) 678 A.2d 1243 (Pa. Cmwlth. 1996).
3. The subject of Employer's cross-appeal was the employee failure to comply with Section 306(a.2)(4) and have medical evidence of an Impairment Rating in excess of 50% at the time of filing the Review petition or at the time of the initial WCJ hearing.
WCAB "dismissed" Employer appeal ... although in a footnote, they stated dismissal of the Review petition would have been appropriate based upon Employer argument.
Employee appealed this point.
As Employer had prevailed before the WCJ, the WCAB stated Employer did not have "standing" to appeal.
The Court notes, this language regarding dismissal was dicta, as this was not essential to the WCAB decision. Any error would be "harmless error".
4. Employee argued that the WCAB erred in affirming the WCJ conclusion that Dr. Ricci's use of the "range-of-motion estimates" methodology was proper and the use of the "diagnosis methodology" by Dr. Nalluri was improper. However, Employee did not raise this claim of error in his petition for review to the Commonwealth Court, accordingly that argument is waived. Citing: PA Rule of Appellate Procedure 1513(d). and Newcomer Products v. WCAB (Irvin) 826 A.2d 69 (Pa. Cmwlth. 2003).
The Court notes that Employee's 4th argument was essentially a challenge to the weight that the WCJ assigned to the medical opinions. The Court cited the well established rules of law:
i. The WCJ must weigh the evidence and resolve conflicting testimony;
ii. The WCJ may accept the testimony of any witness, in whole or in part, including medical witnesses.
iii. If supported by substantial evidence, the WCJ findings are conclusive on appeal, despite the existence of contrary evidence.
Practice Pointers:
1. IMO Employer was correct.
The Employee Petition to Review the IRE Impairment Rating should properly be dismissed. Employee did not have medical evidence within the time frame specified by the statute. This language is clear and unambiguous. The WCJ and WCAB should not allow the litigation of this petition.
2. The Employee medical opinion that the January 18, 2000(sic) (was it 2010?) Impairment Rating Exam of Dr. Nalluri "applies" to the deadline of November 30, 2009, is nonsense and a superficial attempt to defeat the clear meaning of the statutory language. Medical evidence is required, within the 500 week period.
3. This decision demonstrates that the IRE determination of partial disability status is not final ... until the 500 weeks of partial disability status expires. Employee has the right to challenge the IRE determination for a period of 9.2 years!
4. ...and, even if the 500 weeks of Partial Disability status expires... employee is still eligible to submit reasonable and necessary medical expenses ,which are causally related to the work injury for review, repricing and reimbursement.
5. Finality? ...How can you close this case?
The only methods to obtain "finality" in a work comp case, is to obtain an order of termination or reach an agreement and/or settlement of this liability with employee.
When an injured employee has received 104 weeks of total disability benefits (TTD), the Employer may file a request for the scheduling of an Impairment Rating Evaluation (IRE) in an effort to limit the duration of benefit status, to a period of 500 weeks. Section 306(a.2), 77 P.S. 511.2.
If the IRE determines that employee is less than 50% impaired under the AMA Guidelines to Impairment, the employee status is changed from total disability, of an unlimited duration, to a partial disability status, of a limited duration of 500 weeks.
An employee may appeal the change to partial disability status, at any time during the 500 week period of partial disability. Employee must establish an impairment rating of 50% or greater. Section 306(a.2)(4).
Besozzi v. WCAB (Consol PA Coal Company), No. 610 C.D. 2013, an unreported Memorandum Opinion of a panel of the Commonwealth Court of Pennsylvania, authored by President Judge Pellegrini on August 20, 2013, addressed these issues surrounding the IRE and Employee benefit status.
Factual and Procedural Background
In June of 1997 Employee injured his right arm and upper extremity. Work Comp benefits commenced.
After payment of 104 weeks of TTD benefits, Employer filed a Request for Designation of a Physician to Perform an IRE. (LIBC-766).
Employer IRE
IRE by Dr. V.G. Raghavan on May 2, 2000 determined Employee had a 22% impairment rating, in accord with the AMA Guidelines.
A Notice of Change of Workers' Compensation Disability Status (LIBC-764) was filed June 2, 2000.
Employee's status changed from total to partial effective May 2, 2000.
The 500 week period of partial disability status was set to expire on November 30, 2009.
Employee Medical Attempt #1
Employee filed a Petition to Review his status on September 11, 2009.
[ At this time employee did not have any medical evidence].
On November 30, 2009, Employee was examined by Dr. N. Varrati and he assessed a 53% Impairment Rating. HOWEVER, Dr. Varrati was not licensed to practice medicine in Pennsylvania, as required by Section 306(a.2).
Employer objected to the IRE report of Dr. Varrati and made a motion for dismissal of Employee's review petition. WCJ denied employer's motion to dismiss as "untimely" (what?).
Employee Medical Attempt #2
In support of the Review Petition, Employee offered the January 18, 2000 ***report of Dr. A.C. Nalluri, a Board Certified Psychiatrist licensed to practice in Pennsylvania.
***[the opinion identified this date of exam as 2000, but in the chronology of events, it would seem that this exam was in 2010].
Dr. Nalluri testified via deposition. He diagnosed employee's work-related condition as:
(i) right shoulder capsulitis;
(ii) right elbow arthritis;
(iii) right carpal tunnel syndrome;
(iv) avulsive triceps tendon on the right
(v) ectopic bore or heterotopic ossification in the right elbow;
(vi) right elbow ulnar neuropathy.
[ now that's a lot of orthopedic diagnoses for a Psychiatrist!].
[ Where's the Employee Petition to Review the description of injury?]
Dr. Nalluri testified that Employee had a 54% Impairment ... and this rating applied to November 30, 2009.
Dr. Nalluri stated he used multiple tables, multiple references and his clinical judgment, in assigning this impairment rating. He used a diagnosis-based impairment method, not a range of motion method.
Dr. Nalluri justified using a diagnosis-based impairment method because of the complexity of the case ... and because employee's diagnoses were not conditions set forth in the AMA Guidelines!
As noted by the WCJ (in rejecting Dr. Nalluri's opinions) Dr. Nalluri never explained why he selected the diagnostic-based method when none of the diagnosed conditions were in the AMA Guidelines Tables.
Dr. Nalluri never stated the Impairment Rating according to the range of motion method, even though he took detailed range-of-motion and strength testing of each of the affected areas of the right upper extremity.
In rejecting Dr. Nalluri, the WCJ noted employees' diagnosed conditions were not in the AMA Tables, so Dr. Nalluri chose conditions in the Tables that most approximated employee's condition.
"wrist fusion" was substituted for carpal tunnel syndrome!
"elbow fusion" was substituted for elbow arthritis!
"total shoulder arthroplasty" was substituted for adhesive capsulitis!
WCJ decision relied on Employer Medical Evidence
Anthony Ricci M.D., a Board -Certified expert in Physical Medicine and Rehabilitation performed an IRE on employee. He determined employee demonstrated a 38% Impairment Rating.
He explained he used the Range-of-motion method of evaluation, as the majority, if not all, of employee's impairment at the shoulder, elbow and wrist resulted from limited range of motion.
[In 2000 Dr. Raghavan used the range-of-motion impairment method.]
[Employee was also evaluated by William H. Mitchell M.D. in September 2000 and he used a range-of-motion method to assess an Impairment Rating of 28%.]
WCJ found employee Review petition was timely filed (?).
WCJ found employee failed to sustain his burden in the Review.
Employee appealed to WCAB.
1. It was error for the WCJ to consider Dr. Ricci's critique of Dr. Nalluri's method.
2. This critique was beyond the scope of the report of Dr. Ricci.
3. The WCAB erred in concluding that employee did not comply with the statute.
4. The WCJ erred to consider Dr. Ricci more credible as Dr. Nalluri explained why he chose his method.
Commonwealth Court Decision
1 & 2. It was not an error of law for the WCJ to admit Dr. Ricci's testimony, which critiqued Dr. Nalluri's methodology in calculating the IRE impairment figure, even though that opinion was beyond the scope of his written report. Employee relied upon Rule 4003.5 of the PA Rules of Civil Procedure. However, those rules do not govern workers compensation proceedings.
In the rules that do govern, there is no rule, in the "Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges", which states that a medical expert must confine his opinions exactly to the content of his report. Citing: Stech v. WCAB (MJS Equipment Co.) 678 A.2d 1243 (Pa. Cmwlth. 1996).
3. The subject of Employer's cross-appeal was the employee failure to comply with Section 306(a.2)(4) and have medical evidence of an Impairment Rating in excess of 50% at the time of filing the Review petition or at the time of the initial WCJ hearing.
WCAB "dismissed" Employer appeal ... although in a footnote, they stated dismissal of the Review petition would have been appropriate based upon Employer argument.
Employee appealed this point.
As Employer had prevailed before the WCJ, the WCAB stated Employer did not have "standing" to appeal.
The Court notes, this language regarding dismissal was dicta, as this was not essential to the WCAB decision. Any error would be "harmless error".
4. Employee argued that the WCAB erred in affirming the WCJ conclusion that Dr. Ricci's use of the "range-of-motion estimates" methodology was proper and the use of the "diagnosis methodology" by Dr. Nalluri was improper. However, Employee did not raise this claim of error in his petition for review to the Commonwealth Court, accordingly that argument is waived. Citing: PA Rule of Appellate Procedure 1513(d). and Newcomer Products v. WCAB (Irvin) 826 A.2d 69 (Pa. Cmwlth. 2003).
The Court notes that Employee's 4th argument was essentially a challenge to the weight that the WCJ assigned to the medical opinions. The Court cited the well established rules of law:
i. The WCJ must weigh the evidence and resolve conflicting testimony;
ii. The WCJ may accept the testimony of any witness, in whole or in part, including medical witnesses.
iii. If supported by substantial evidence, the WCJ findings are conclusive on appeal, despite the existence of contrary evidence.
Practice Pointers:
1. IMO Employer was correct.
The Employee Petition to Review the IRE Impairment Rating should properly be dismissed. Employee did not have medical evidence within the time frame specified by the statute. This language is clear and unambiguous. The WCJ and WCAB should not allow the litigation of this petition.
2. The Employee medical opinion that the January 18, 2000(sic) (was it 2010?) Impairment Rating Exam of Dr. Nalluri "applies" to the deadline of November 30, 2009, is nonsense and a superficial attempt to defeat the clear meaning of the statutory language. Medical evidence is required, within the 500 week period.
3. This decision demonstrates that the IRE determination of partial disability status is not final ... until the 500 weeks of partial disability status expires. Employee has the right to challenge the IRE determination for a period of 9.2 years!
4. ...and, even if the 500 weeks of Partial Disability status expires... employee is still eligible to submit reasonable and necessary medical expenses ,which are causally related to the work injury for review, repricing and reimbursement.
5. Finality? ...How can you close this case?
The only methods to obtain "finality" in a work comp case, is to obtain an order of termination or reach an agreement and/or settlement of this liability with employee.
Friday, September 13, 2013
Is there any time limit upon the Employee's review/challenge to the AWW and TTD calculations?
[ ***After writing this note, I thought I should apologize for use of all of the legal terms (which I try to avoid), but emphasize that this opinion of the Commonwealth Court provides a clear explanation for several legal terms that we often hear ... and often hear, incorrectly used.]
What is the Time Limit for an Employee review of his AWW and TTD calculations?
An employee is entitled to indemnity wage loss benefits based upon a calculation of his "average weekly wage" as defined at Section 309, 77 P.S. 582 of the Pennsylvania Workers' Compensation Act.
Generally an employee is paid a total disability rate of 66 2/3% of his average weekly wage, up to a maximum compensation rate.
"Average Weekly Wage" is a simple, yet complicated notion. Overtime, bonuses and vacation pay are included. Health insurance, life insurance and "fringe" benefits are excluded. There are rules for seasonal and concurrent employment. The nuances of AWW calculations are beyond the scope of this brief review.
One question that arises, with some frequency, is WHEN may one review a mistake in the AWW calculation. Is there a Statute of Limitations? At what point are the parties "locked" into these figures?
City of Pittsburgh v. WCAB (Britton), No. 1544 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on August 6, 2013, addressed this Review/Correction issue in the context of Employee and Employer petitions.
Factual and Procedural Background
Employee sustained a left knee injury in the course of his work duties on July 13, 1985.
Although the evidentary record did not contain a Notice of Compensation Payable (LIBC-495) the parties did not dispute the injury description or receipt of full wages in lieu of compensation from the day of injury, to his return to work after May 12, 1989. [presumably he received his full salary payments pursuant to the Employer's "Heart and Lung" benefit program].
Employee returned to work for about 2 months. He stopped working as of July 12, 1989.
A January 11, 1990, Supplemental Agreement (LIBC-337) reinstated total disability benefits. The compensation rate of $312.99 was referenced, however, employee would receive his full salary in lieu of the workers' compensation benefit rate.
On October 23, 1991, Employer filed a Petition for Suspension as employee failed to respond in good faith to a modified duty job offer.
On May 27, 1994, WCJ Cohen issued a decision denying Employer's petition. This decision recited the AWW of $469.49 with the corresponding TTD rate of $312.99.
Employer appealed but the WCAB affirmed the WCJ order on July 30, 1996.
During the WCAB appeal, the parties executed a 2nd Supplemental Agreement reflecting Employee had "retired" from active duty, but he remained eligible for workers compensation benefits as he did not retire from the workforce, in general.
This November 13, 1995 Supplemental Agreement stated that Employee was entitled to compensation payable at the rate of $336.00 per week. [the maximum rate for a 1985 work injury].
May 28, 2008, Employer filed a Suspension petition based upon an April 2008 medical exam and the legal argument that Employee has voluntarily removed himself from the workforce.
January 30, 2009, Employee filed a Petition for Review and Modification of his compensation benefits, alleging he was entitled to partial disability benefits when he returned to work (in 1989?).
Employee filed a Penalty Petition for Employer failure to file an NCP (in 1985??).
A 2nd Review Petition was subsequently filed by Employee, alleging that his Employer had under-calculated his AWW rate (in 1985??).
[if this petition was filed "later" than the January 30, 2009 petition, it was filed more than 1228 6/7 weeks or 8,602 days after the date of injury!]
WCJ Decision
Denied Employer Suspension petition, there was no voluntary withdraw from the workforce.
Denied Employee Review/Modification petition for 1989 partial disability.
Denied Employee Penalty petition for failure to file NCP as there was no prejudice to employee.
GRANTED 2nd Review and amended AWW to $568.86.
However Employee would continue to receive his TTD benefits at the maximum rate for a 1985 work injury which was $336.00. [ no change in benefits rate!!!]
City of Pittsburgh Appeal
Employer appealed the 2nd Review petition award.
Employer argued the petition was barred by:
1. technical res judicata;
2. collateral estoppel;
3. the doctrine of laches.
Employer also argued:
4. the AWW findings were not supported by substantial evidence, as the evidence was not properly authenticated;
5. the collective bargaining agreement excluded call-back pay, holiday pay,and longevity pay from the calculation of wages in determining the AWW.
WCAB Appeal affirmed WCJ decision.
Commonwealth Court Decision and Reasoning:
1. Technical Res Judicata would apply where there is an "indentity" of (i) the thing sued for, (ii) the parties to the action, (iii) the capacity of the parties sued.
Technical res judicata may apply to bar claims actually litigated, as well as those matters which should have been litigated.
When a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded. See: Henion v. WCAB (Firpo & Sons Inc.) 776 A2d 362, (Pa. Cmwlth. 2001).
[ end of case... right... the employee should have litigated the AWW in the prior WC litigation?!?].
No...
2. Collateral Estoppel, is a rule designed to prevent relitigation of an issue in a later action, despite the fact that the later action is based on a cause of action, which is different from the one previously litigated. See: Pucci v. WCAB (Woodville State Hospital), 707 A2d 646 (Pa. Cmwlth. 1998).
Collateral estoppel applies where:
(i) the issue decided in the prior case is identical to the one presented in the later case;
(ii) thee was a final judgment on the merits;
(iii) the party the rule applies against was a party (or in privity with a party) in the prior case and had a full and fair opportunity to litigate the issue;
(iv) the determination in the prior proceeding was essential to the judgment.
[ ... end of case ... right?]
Technical Res Judicata and Collateral Estoppel did not bar Employee's 2nd Review Petition (the one where the WCJ changed the AWW rate).
Employer argued the prior Supplemental Agreement in 1989 and/or the prior WCJ decision in 1994 in Employer's Suspension petition provided Employee with the opportunity to litigate the AWW issue.
WCAB and Commonwealth Court disagreed.
The Supplemental Agreements only reflected the TTD rate, they did not contain any AWW numbers.
The WCJ decision merely mentioned the AWW number.
The issues litigated in the Suspension petition were Employee's good faith response to the modified job offer. The AWW rate was not a claim or issue that was actually litigated or decided in the matter. The WCJ simply noted the information contained in the Statement of Wage form, prepared by the Employer. slip opinion page 10.
The Supplemental Agreement form was described as a voluntary contract between the parties, which is meant to avoid litigation. On this basis, the Agreement cannot constitute a final judgment for purposes of application of technical res judicata or collateral estoppel.
3. Laches is an equitable doctrine which is available in administrative proceedings, where there is no time limit applicable, when a party fails to exercise due diligence in commencing an action or where there is prejudice to another party by the time delay.
In the present case. Section 413(a) of the Act provides a time limit, the WCJ "may at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement... if it be proved that such notice of compensation payable or agreement was in any material respect incorrect".
Prior appellate case decisions have determined that a party seeking to review/correct an agreement,
must do so within 3 years after the date of the most recent payment of compensation.
As Section 413(a) provides a strict time limitation for filing petition, the doctrine of laches does not apply.
Here, Employee's compensation was ongoing! His petition was timely.
4. Substantial Evidence supported the findings of the WCJ. The WCJ correctly placed the burden upon Employee to demonstrate, in support of his review petition, that the agreement had a material mistake.
The evidentary records reflects the original NCP form was unavailable. The original Statement of Wage form was available, but was blank. The evidence presented by Employee was the "Records of Dues Received" document from the City of Pittsburgh Pension office. The pension office witness testified the forms reflect employee's complete W-2 wages, including overtime. Employer witness testified the payroll records are destroyed after 7 years. She stated she had no reason to question the accuracy of the pension document information.
This testimony and these documents were substantial evidence in support of the WCJ and WCAB, AWW re-calculation.
5. Collective Bargaining provisions, such as those mentioned to exclude overtime, call-back or holiday pay, are not binding upon the Work Comp Act in calculating the AWW. Past appellate decisions have included these types of "wages" in the AWW calculation. Citing: Harper & Collins v. WCAB (Brown) 672 A2d 1319 (Pa. 1996).
Practice Pointers:
1. Where an injured worker is continuing to receive workers compensation benefits, the Section 413(a) statute of limitations does not commence, to limit Employee's possible litigation of issues, as basic as the average weekly wage calculation. The difficulty with this scenario is demonstrated in this case, where the employer did not retain the original wage documents for an extended time period. Fortunately (for employee, as he had the burden of proof) there were secondary records available.
2. Is there any time limit? YES, not a specific one, but there is a limit on employee's future review of issues. Where the issue was litigated or should have been litigated, employee should be precluded from re-exploring these issues at some remote time. In this case the Review petition was filed more than 23 years after the original date of injury.
3. In my humble defense-oriented opinion, I believe that employee should have litigated the issue of the review of the AWW, at the time of the reinstatement to total disability in 1990. I am unpersuaded that the AWW issue was not an integral part of that agreement.
If the Supplement Agreement is a contract between the parties to avoid litigation, Why is it not a binding contract, to avoid this litigation?
Likewise, I am unpersuaded that the AWW rate was not a significant fact in the 2008 Suspension petition litigation. This was a petition to determine if employee's benefits would continue... which benefits? ... the benefits rate determined by the AWW figure.
When Employers attempt to "correct" any past miscalculations, often they are denied the opportunity, where there is an intervening agreement... the WCJ will rule that you have lost your opportunity for review.
Perhaps ... what is good for the goose...
What is the Time Limit for an Employee review of his AWW and TTD calculations?
An employee is entitled to indemnity wage loss benefits based upon a calculation of his "average weekly wage" as defined at Section 309, 77 P.S. 582 of the Pennsylvania Workers' Compensation Act.
Generally an employee is paid a total disability rate of 66 2/3% of his average weekly wage, up to a maximum compensation rate.
"Average Weekly Wage" is a simple, yet complicated notion. Overtime, bonuses and vacation pay are included. Health insurance, life insurance and "fringe" benefits are excluded. There are rules for seasonal and concurrent employment. The nuances of AWW calculations are beyond the scope of this brief review.
One question that arises, with some frequency, is WHEN may one review a mistake in the AWW calculation. Is there a Statute of Limitations? At what point are the parties "locked" into these figures?
City of Pittsburgh v. WCAB (Britton), No. 1544 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on August 6, 2013, addressed this Review/Correction issue in the context of Employee and Employer petitions.
Factual and Procedural Background
Employee sustained a left knee injury in the course of his work duties on July 13, 1985.
Although the evidentary record did not contain a Notice of Compensation Payable (LIBC-495) the parties did not dispute the injury description or receipt of full wages in lieu of compensation from the day of injury, to his return to work after May 12, 1989. [presumably he received his full salary payments pursuant to the Employer's "Heart and Lung" benefit program].
Employee returned to work for about 2 months. He stopped working as of July 12, 1989.
A January 11, 1990, Supplemental Agreement (LIBC-337) reinstated total disability benefits. The compensation rate of $312.99 was referenced, however, employee would receive his full salary in lieu of the workers' compensation benefit rate.
On October 23, 1991, Employer filed a Petition for Suspension as employee failed to respond in good faith to a modified duty job offer.
On May 27, 1994, WCJ Cohen issued a decision denying Employer's petition. This decision recited the AWW of $469.49 with the corresponding TTD rate of $312.99.
Employer appealed but the WCAB affirmed the WCJ order on July 30, 1996.
During the WCAB appeal, the parties executed a 2nd Supplemental Agreement reflecting Employee had "retired" from active duty, but he remained eligible for workers compensation benefits as he did not retire from the workforce, in general.
This November 13, 1995 Supplemental Agreement stated that Employee was entitled to compensation payable at the rate of $336.00 per week. [the maximum rate for a 1985 work injury].
May 28, 2008, Employer filed a Suspension petition based upon an April 2008 medical exam and the legal argument that Employee has voluntarily removed himself from the workforce.
January 30, 2009, Employee filed a Petition for Review and Modification of his compensation benefits, alleging he was entitled to partial disability benefits when he returned to work (in 1989?).
Employee filed a Penalty Petition for Employer failure to file an NCP (in 1985??).
A 2nd Review Petition was subsequently filed by Employee, alleging that his Employer had under-calculated his AWW rate (in 1985??).
[if this petition was filed "later" than the January 30, 2009 petition, it was filed more than 1228 6/7 weeks or 8,602 days after the date of injury!]
WCJ Decision
Denied Employer Suspension petition, there was no voluntary withdraw from the workforce.
Denied Employee Review/Modification petition for 1989 partial disability.
Denied Employee Penalty petition for failure to file NCP as there was no prejudice to employee.
GRANTED 2nd Review and amended AWW to $568.86.
However Employee would continue to receive his TTD benefits at the maximum rate for a 1985 work injury which was $336.00. [ no change in benefits rate!!!]
City of Pittsburgh Appeal
Employer appealed the 2nd Review petition award.
Employer argued the petition was barred by:
1. technical res judicata;
2. collateral estoppel;
3. the doctrine of laches.
Employer also argued:
4. the AWW findings were not supported by substantial evidence, as the evidence was not properly authenticated;
5. the collective bargaining agreement excluded call-back pay, holiday pay,and longevity pay from the calculation of wages in determining the AWW.
WCAB Appeal affirmed WCJ decision.
Commonwealth Court Decision and Reasoning:
1. Technical Res Judicata would apply where there is an "indentity" of (i) the thing sued for, (ii) the parties to the action, (iii) the capacity of the parties sued.
Technical res judicata may apply to bar claims actually litigated, as well as those matters which should have been litigated.
When a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded. See: Henion v. WCAB (Firpo & Sons Inc.) 776 A2d 362, (Pa. Cmwlth. 2001).
[ end of case... right... the employee should have litigated the AWW in the prior WC litigation?!?].
No...
2. Collateral Estoppel, is a rule designed to prevent relitigation of an issue in a later action, despite the fact that the later action is based on a cause of action, which is different from the one previously litigated. See: Pucci v. WCAB (Woodville State Hospital), 707 A2d 646 (Pa. Cmwlth. 1998).
Collateral estoppel applies where:
(i) the issue decided in the prior case is identical to the one presented in the later case;
(ii) thee was a final judgment on the merits;
(iii) the party the rule applies against was a party (or in privity with a party) in the prior case and had a full and fair opportunity to litigate the issue;
(iv) the determination in the prior proceeding was essential to the judgment.
[ ... end of case ... right?]
Technical Res Judicata and Collateral Estoppel did not bar Employee's 2nd Review Petition (the one where the WCJ changed the AWW rate).
Employer argued the prior Supplemental Agreement in 1989 and/or the prior WCJ decision in 1994 in Employer's Suspension petition provided Employee with the opportunity to litigate the AWW issue.
WCAB and Commonwealth Court disagreed.
The Supplemental Agreements only reflected the TTD rate, they did not contain any AWW numbers.
The WCJ decision merely mentioned the AWW number.
The issues litigated in the Suspension petition were Employee's good faith response to the modified job offer. The AWW rate was not a claim or issue that was actually litigated or decided in the matter. The WCJ simply noted the information contained in the Statement of Wage form, prepared by the Employer. slip opinion page 10.
The Supplemental Agreement form was described as a voluntary contract between the parties, which is meant to avoid litigation. On this basis, the Agreement cannot constitute a final judgment for purposes of application of technical res judicata or collateral estoppel.
3. Laches is an equitable doctrine which is available in administrative proceedings, where there is no time limit applicable, when a party fails to exercise due diligence in commencing an action or where there is prejudice to another party by the time delay.
In the present case. Section 413(a) of the Act provides a time limit, the WCJ "may at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement... if it be proved that such notice of compensation payable or agreement was in any material respect incorrect".
Prior appellate case decisions have determined that a party seeking to review/correct an agreement,
must do so within 3 years after the date of the most recent payment of compensation.
As Section 413(a) provides a strict time limitation for filing petition, the doctrine of laches does not apply.
Here, Employee's compensation was ongoing! His petition was timely.
4. Substantial Evidence supported the findings of the WCJ. The WCJ correctly placed the burden upon Employee to demonstrate, in support of his review petition, that the agreement had a material mistake.
The evidentary records reflects the original NCP form was unavailable. The original Statement of Wage form was available, but was blank. The evidence presented by Employee was the "Records of Dues Received" document from the City of Pittsburgh Pension office. The pension office witness testified the forms reflect employee's complete W-2 wages, including overtime. Employer witness testified the payroll records are destroyed after 7 years. She stated she had no reason to question the accuracy of the pension document information.
This testimony and these documents were substantial evidence in support of the WCJ and WCAB, AWW re-calculation.
5. Collective Bargaining provisions, such as those mentioned to exclude overtime, call-back or holiday pay, are not binding upon the Work Comp Act in calculating the AWW. Past appellate decisions have included these types of "wages" in the AWW calculation. Citing: Harper & Collins v. WCAB (Brown) 672 A2d 1319 (Pa. 1996).
Practice Pointers:
1. Where an injured worker is continuing to receive workers compensation benefits, the Section 413(a) statute of limitations does not commence, to limit Employee's possible litigation of issues, as basic as the average weekly wage calculation. The difficulty with this scenario is demonstrated in this case, where the employer did not retain the original wage documents for an extended time period. Fortunately (for employee, as he had the burden of proof) there were secondary records available.
2. Is there any time limit? YES, not a specific one, but there is a limit on employee's future review of issues. Where the issue was litigated or should have been litigated, employee should be precluded from re-exploring these issues at some remote time. In this case the Review petition was filed more than 23 years after the original date of injury.
3. In my humble defense-oriented opinion, I believe that employee should have litigated the issue of the review of the AWW, at the time of the reinstatement to total disability in 1990. I am unpersuaded that the AWW issue was not an integral part of that agreement.
If the Supplement Agreement is a contract between the parties to avoid litigation, Why is it not a binding contract, to avoid this litigation?
Likewise, I am unpersuaded that the AWW rate was not a significant fact in the 2008 Suspension petition litigation. This was a petition to determine if employee's benefits would continue... which benefits? ... the benefits rate determined by the AWW figure.
When Employers attempt to "correct" any past miscalculations, often they are denied the opportunity, where there is an intervening agreement... the WCJ will rule that you have lost your opportunity for review.
Perhaps ... what is good for the goose...
Wednesday, September 11, 2013
Terminating the Poor-Performing Workers' Compensation Claimant
The Terminated Employee and Eligibility for Reinstatement of Workers' Compensation Benefits.
An injured employee is entitled to wage loss benefits where he/she is disabled from performing their regular work duties. If a position is available to the employee, within their physical and vocational capabilities, a return-to-work job offer will "suspend" the wage loss benefit payments. If there is a difference between the time-of-injury earnings and the "new" wages, a partial disability benefit may be due.
At times, an employee who has returned to work after a work comp injury, may be subject to dismissal from their employment due to a violation of work rules or due to poor performance of their assigned tasks.
The eligibility of the employee to have a reinstatement of work comp wage loss benefits becomes an issue for the Workers' Compensation Judge.
Hess v. WCAB (Target Corporation), No. 341 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on August 6, 2013 reviewed a fact scenario where the employee's conduct was at issue.
Factual and Procedural Background
Employee strained her left shoulder and arm while working as a "team leader" with Employer in January 2005. A Notice of Compensation Payable (LIBC 495) acknowledged a work injury.
Employee returned to work 22 months later in November 2006. As her earnings were equal to or greater than her time-of-injury wages, her work comp wage loss benefits were suspended.
Employee continued to work until December 2009, when her employment was terminated.
A Reinstatement petition was filed for total disability, averring her disability continued and her employment was terminated through no fault of her own.
WCJ Decision
Employee and Employer medical expert witnesses found employee was not fully recovered from her work injury, which was now described as "a re-tear of the SLAP lesion and adhesive capsulitis of the left shoulder". [ SLAP= superior labral tear from anterior to posterior].
"Despite finding Claimant's work injury continues, the WCJ concluded she did not meet her burden of proving loss of earnings through no fault of her own". slip opinion page 3.
The WCJ relied upon the credible testimony from Employee's Supervisor.
Employer's Testimony
Employee's personnel file contained 3 corrective reports between July and October of 2009.
[ note: this time frame was about 32 months after her return to work].
1st report was for an inappropriate statement.
2nd report was for attendance issues.
3rd report was for violation of safety policy.
In October 2009 Employer gave Employee a final warning, any additional offenses, either conduct-related or performance-related, would result in her termination.
After this warning, Employer noted further problems with performance, where employee was not turning in brand walks and coaching team members, from October through December.
As a result, employee was terminated in December 2009.
Employee acknowledged Employer issued 3 reports and the conduct described. She did not believe reports should have been issued for some of these infractions. She testified Employer gave her 9 reasons for her discharge in her termination meeting.
The WCJ concluded, employee failed to meet her burden of proving her loss of earnings was through no fault of her own. He did not reinstate her wage loss benefits.
Although the WCJ found her injury included the SLAP lesion and capsulitis, he did not amend the NCP description of injury.
He did not award reasonable litigation costs. [employee argued she "prevailed" in proving a new description for the work injury].
Employee Review Petition
Employee filed a Petition to Review and expand the description of injury, consistent with the "new" diagnosis and WCJ findings. The parties entered into a stipulation to amend the description. The WCJ "granted" the review but did not award litigation costs, reasoning that they were incurred in the reinstatement litigation, where employee did not prevail.
Commonwealth Court Appeal of Employee
[WCAB affirmed the WCJ]
Employee appeal argued:
1. the WCJ used an incorrect standard in denial of her reinstatement petition
2. the WCJ erred in not awarding litigation costs for the successful review of the description of injury.
3. Substantial evidence did not support WCJ findings regarding the violations of Employer policies.
l. Reinstatement Standard
A Claimant seeking reinstatement of wage loss benefits, following a suspension, must prove that her earning power is once again adversely affected by her disability and that such disability is a continuation of the original work injury. See: Bufford v. WCAB (North Amer. Telecom.) 2 A3d 548 (Pa. 2010).
Employer has the burden of proof to show the claimant's loss of earnings is not caused by the work-related disability.
"This burden may be met by showing "suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant's lack of good faith".
slip opinion page 7 citing: Vista International Hotel v. WCAB (Daniels), 742 A2d 649 (Pa. 1999).
ll. Termination Standard
Employee argued the standard for determining whether her work comp benefits are reinstated should not be a "termination for cause" standard, rather her conduct must rise to the level of "bad faith or willful misconduct" to preclude reinstatement of work comp benefits. [an unemployment comp standard].
The Commonwealth Court cited past decisions where it determined that the "stricter willful misconduct standard is not the standard to determine 'bad faith' in the context of allocating fault in a workers' compensation case.
Where the WCJ [and Court] determined the employer proved specific instances of "wrongful conduct" by claimant, making claimant's discharge her fault due to her conduct, the denial of reinstatement has been affirmed. [this would distinguish an unsatisfactory performance review where the worker has an inability to perform well, despite her best efforts].
It is not "bad faith" if the worker cannot perform satisfactory due to the work-related injury. citing: Shop Vac Corp. v. WCAB Thomas), 929 A2d 1236 (Pa. Cmwlth. 2007).
Whether the employee acted in bad faith, for purposes of a post-injury discharge, is a factual determination for the WCJ. slip opinion page 8.
In response to Employee's "substantial evidence" argument, the Court reviewed the details of employee's conduct and her discharge from employment. There was substantial evidence in support of the findings.
lll. Litigation Costs
A limited issue was the denial of reimbursement to employee counsel for reasonable litigation costs, as employee "prevailed" in amending the description of the work injury.
Employee was entitled to reimbursement of litigation costs. The costs "related to the matter at issue" Although the costs were incurred in the reinstatement petition litigation, the same evidence led to the successful review petition. On this basis they are payable. Citing: Western Pennsylvania Hospital v. WCAB (Cassidy) 725 A2d 1282 (1999).
Practice Pointers:
1. Review of this appellate record reflects a comprehensive review and detailed presentation of the facts supporting the employer decision to terminate this employee.
The employer thoroughly documented this employee's conduct over a period of months.
There was a substantial time period from the date of return-to-work to the time of discharge. This is not a case where the employer is "hunting" for reasons to discharge an injured worker, shortly after they return.
2. Termination of an employee, with physical restrictions from a work injury, requires a similar well documented case. One must take care to distinguish the "bad faith" behavior from the performance factors associated with or caused by the work injury.
3. My recommendation to employers is to apply their workplace rules and policies to all workers, even those with past work injuries. IMO this is an issue separate and apart from making work place accommodations or work task modifications. Attendance, Discipline and safety policies should not be compromised, merely because a worker has a past injury and may seek future work comp benefits if discharged.
4. Document your position.
An injured employee is entitled to wage loss benefits where he/she is disabled from performing their regular work duties. If a position is available to the employee, within their physical and vocational capabilities, a return-to-work job offer will "suspend" the wage loss benefit payments. If there is a difference between the time-of-injury earnings and the "new" wages, a partial disability benefit may be due.
At times, an employee who has returned to work after a work comp injury, may be subject to dismissal from their employment due to a violation of work rules or due to poor performance of their assigned tasks.
The eligibility of the employee to have a reinstatement of work comp wage loss benefits becomes an issue for the Workers' Compensation Judge.
Hess v. WCAB (Target Corporation), No. 341 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on August 6, 2013 reviewed a fact scenario where the employee's conduct was at issue.
Factual and Procedural Background
Employee strained her left shoulder and arm while working as a "team leader" with Employer in January 2005. A Notice of Compensation Payable (LIBC 495) acknowledged a work injury.
Employee returned to work 22 months later in November 2006. As her earnings were equal to or greater than her time-of-injury wages, her work comp wage loss benefits were suspended.
Employee continued to work until December 2009, when her employment was terminated.
A Reinstatement petition was filed for total disability, averring her disability continued and her employment was terminated through no fault of her own.
WCJ Decision
Employee and Employer medical expert witnesses found employee was not fully recovered from her work injury, which was now described as "a re-tear of the SLAP lesion and adhesive capsulitis of the left shoulder". [ SLAP= superior labral tear from anterior to posterior].
"Despite finding Claimant's work injury continues, the WCJ concluded she did not meet her burden of proving loss of earnings through no fault of her own". slip opinion page 3.
The WCJ relied upon the credible testimony from Employee's Supervisor.
Employer's Testimony
Employee's personnel file contained 3 corrective reports between July and October of 2009.
[ note: this time frame was about 32 months after her return to work].
1st report was for an inappropriate statement.
2nd report was for attendance issues.
3rd report was for violation of safety policy.
In October 2009 Employer gave Employee a final warning, any additional offenses, either conduct-related or performance-related, would result in her termination.
After this warning, Employer noted further problems with performance, where employee was not turning in brand walks and coaching team members, from October through December.
As a result, employee was terminated in December 2009.
Employee acknowledged Employer issued 3 reports and the conduct described. She did not believe reports should have been issued for some of these infractions. She testified Employer gave her 9 reasons for her discharge in her termination meeting.
The WCJ concluded, employee failed to meet her burden of proving her loss of earnings was through no fault of her own. He did not reinstate her wage loss benefits.
Although the WCJ found her injury included the SLAP lesion and capsulitis, he did not amend the NCP description of injury.
He did not award reasonable litigation costs. [employee argued she "prevailed" in proving a new description for the work injury].
Employee Review Petition
Employee filed a Petition to Review and expand the description of injury, consistent with the "new" diagnosis and WCJ findings. The parties entered into a stipulation to amend the description. The WCJ "granted" the review but did not award litigation costs, reasoning that they were incurred in the reinstatement litigation, where employee did not prevail.
Commonwealth Court Appeal of Employee
[WCAB affirmed the WCJ]
Employee appeal argued:
1. the WCJ used an incorrect standard in denial of her reinstatement petition
2. the WCJ erred in not awarding litigation costs for the successful review of the description of injury.
3. Substantial evidence did not support WCJ findings regarding the violations of Employer policies.
l. Reinstatement Standard
A Claimant seeking reinstatement of wage loss benefits, following a suspension, must prove that her earning power is once again adversely affected by her disability and that such disability is a continuation of the original work injury. See: Bufford v. WCAB (North Amer. Telecom.) 2 A3d 548 (Pa. 2010).
Employer has the burden of proof to show the claimant's loss of earnings is not caused by the work-related disability.
"This burden may be met by showing "suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant's lack of good faith".
slip opinion page 7 citing: Vista International Hotel v. WCAB (Daniels), 742 A2d 649 (Pa. 1999).
ll. Termination Standard
Employee argued the standard for determining whether her work comp benefits are reinstated should not be a "termination for cause" standard, rather her conduct must rise to the level of "bad faith or willful misconduct" to preclude reinstatement of work comp benefits. [an unemployment comp standard].
The Commonwealth Court cited past decisions where it determined that the "stricter willful misconduct standard is not the standard to determine 'bad faith' in the context of allocating fault in a workers' compensation case.
Where the WCJ [and Court] determined the employer proved specific instances of "wrongful conduct" by claimant, making claimant's discharge her fault due to her conduct, the denial of reinstatement has been affirmed. [this would distinguish an unsatisfactory performance review where the worker has an inability to perform well, despite her best efforts].
It is not "bad faith" if the worker cannot perform satisfactory due to the work-related injury. citing: Shop Vac Corp. v. WCAB Thomas), 929 A2d 1236 (Pa. Cmwlth. 2007).
Whether the employee acted in bad faith, for purposes of a post-injury discharge, is a factual determination for the WCJ. slip opinion page 8.
In response to Employee's "substantial evidence" argument, the Court reviewed the details of employee's conduct and her discharge from employment. There was substantial evidence in support of the findings.
lll. Litigation Costs
A limited issue was the denial of reimbursement to employee counsel for reasonable litigation costs, as employee "prevailed" in amending the description of the work injury.
Employee was entitled to reimbursement of litigation costs. The costs "related to the matter at issue" Although the costs were incurred in the reinstatement petition litigation, the same evidence led to the successful review petition. On this basis they are payable. Citing: Western Pennsylvania Hospital v. WCAB (Cassidy) 725 A2d 1282 (1999).
Practice Pointers:
1. Review of this appellate record reflects a comprehensive review and detailed presentation of the facts supporting the employer decision to terminate this employee.
The employer thoroughly documented this employee's conduct over a period of months.
There was a substantial time period from the date of return-to-work to the time of discharge. This is not a case where the employer is "hunting" for reasons to discharge an injured worker, shortly after they return.
2. Termination of an employee, with physical restrictions from a work injury, requires a similar well documented case. One must take care to distinguish the "bad faith" behavior from the performance factors associated with or caused by the work injury.
3. My recommendation to employers is to apply their workplace rules and policies to all workers, even those with past work injuries. IMO this is an issue separate and apart from making work place accommodations or work task modifications. Attendance, Discipline and safety policies should not be compromised, merely because a worker has a past injury and may seek future work comp benefits if discharged.
4. Document your position.
Monday, September 9, 2013
Obstacles to Successful Occupational Disease Claim Litigation
Occupational Disease Litigation
Work Injury is defined to include Occupational Disease at Section 301(c)(2) of the Pennsylvania Workers' Compensation Act. Where occupational disease is the basis for a compensation claim for death, "it shall apply only to disability or death resulting from such disease and occurring within three hundred (300) weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease".
An obstacle to successful claim investigation is the time delay which may arise from the work exposure to the time of filing and litigation of the claim. Individuals with first-hand knowledge of the work environment, products used and work assignments may become unavailable. The work environment may change. The products used and/or their composition may change. Documentation of work assignments may not be retained. The recollection of individuals may fade.
These factors may equally compromise the case of the Employer or Employee.
P.H. Glatfelter v. WCAB (Henry), No. 48 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on July 30, 2013, discussed a claim petition and the evidence in support of employee's burden of proof.
Factual and Procedural Background
Employee worked as a pipe-fitter with a paper manufacturer since 1972. He testified he worked around insulation that contained asbestos. It covered the boilers and pipes he repaired. He would remove this material without any special protective clothing, gloves or breathing apparatus. Early on, the hazard of asbestos was unknown. In the1990's Employer adopted an asbestos awareness program and trained employees in proper asbestos removal.
Employee testified his last exposure to asbestos was in 2006 when he repaired a leaking steam pipe. He removed the insulation, which was "all wet and mushy". It was too hot to inspect. It was not marked "asbestos" but he believed his employer had this material tested. He said the employer "came out and either assumed or said that it was asbestos". slip opinion page 3.
Significantly, other than this 2006 incident, Employee could not identify when he was last exposed to asbestos, in the 300 weeks preceding his disability.
Another significant point (as we later find) was that Employee testified that he was routinely exposed to lime dust during maintenance and repair inside a large lime kiln.
Employee worked until February 23, 2009, when he was hospitalized for his pulmonary condition.
As employee's date of disability/injury was February 23, 2009, it was his burden to establish that he was exposed to hazardous material within 300 weeks of that date, in other words, between May 2003 and February 2009. The history of the 2006 incident satisfied that burden of proof. slip opinion page 6.
Employee Medical Expert
Michael H. Ader M.D.opined employee suffered from a diagnosis of pulmonary fibrosis, scarring of the lungs. Employee reported a history of significant asbestos exposure at work for over twenty (20) years.
In the absence of a history of cigarette smoking and nay disease that would cause fibrosis, Dr. Ader opined Employee's condition was caused by his work exposure to inhaled dusts, including asbestos and lime dust.
Employer Medical Expert
Scott Manaker M.D., PhD. examined employee and agreed with the diagnosis of pulmonary fibrosis. However he opined the cause of his disease was unknown and not attributable to exposure to asbestos and lime dust.
WCJ Decision
WCJ awarded total disability benefits based upon a finding of work related pulmonary fibrosis related to employee's workplace exposure.
Commonwealth Court Decision
Employer argued that employee did not produce sufficient evidence to prove his disability manifested within 300 weeks of his last exposure to the occupational hazard of asbestos.
Employee's burden is to prove that his disease was caused by his occupation and disabled him. He must prove that he became disabled within 300 weeks of his last actual exposure to the hazardous material in the workplace that is responsible for his condition.
Importantly, whether a claimant has been exposed to hazardous material in the workplace is a question of fact for the WCJ. The claimant need not produce scientific evidence to prove the existence of a hazard. Lay witness testimony, of a witness possessing first-hand knowledge and observation of a hazard in the claimant's workplace is sufficient to prove the existence of a hazard and exposure to the hazard.
See: Witco-Kendall Co. v. WCAB (Adams) 562 A2d 397 (Pa. Cmwlth. 1989).
The Knowledge of a witness may come through formal education or practical experience in dealing with the hazardous material. See: Gibson v. WCAB (Armco Stainless & Alloy Products) 861 A2d 938 (Pa. 2004).
The Employer is free to rebut this lay witness testimony with scientific evidence that a hazard did not exist.
Witco-Kendall, 562 A2d at 401.
Employer Argued that employee evidence was too vague to support a finding that he was exposed to an asbestos hazard in 2006.
Remember employee had to prove an exposure to an asbestos hazard within 300 weeks of his disability (February 23, 2009).
The testimony of the 2006 incident was the only evidence produced to satisfy this proof.
Employee stated he could not recall when he was exposed prior to 2006!
Employer argued the testimony produced in this case was similar to the testimony produced in the prior decision of the Pennsylvania Supreme Court in Gibson. That decision concluded that lay witness testimony was insufficient to prove asbestos exposure in the workplace as the co-worker testimony reflected that he did not have personal knowledge of the existence of asbestos at the workplace, rather he "went by what people said". This witness described he saw "dark gray material" on some pipes and ceiling that he believed to be asbestos, but he had no training or experience identifying asbestos and could not say with certainty whether the material he saw was asbestos.
Commonwealth Court distinguished the instant case.
Here, employee was medically diagnosed with an asbestos related disease.
In Gibson there was no asbestos diagnosis in the medical records
Here, Employer did not dispute the long time presence of asbestos in the workplace.
In Gibson, there was no evidence asbestos was ever in the workplace.
Here Employee acknowledged his difficulty identifying the insulation he removed in 2006, BUT he testified the employer tested the material and acknowledged that it contained asbestos.
Importantly, Employer did not rebut this testimony!
Here, "This is not a situation where Claimant had no idea whether asbestos was present in Employer's workplace and simply relied on what "people" told him. Employer informed him that there was asbestos in the insulation he had handled." The court viewed this an an admission.
Also, the Court noted that asbestos was not the sole cause of employee's illness. Employee medical evidence (found credible by the WCJ) opined the pulmonary fibrosis was caused by exposure to asbestos and lime dust.There was sufficient evidence to prove employee was exposed to hazardous materials in the workplace within 300 weeks of becoming disabled by pulmonary fibrosis.
Practice Pointers:
1. Although it may be difficult to acknowledge, the case law is clear, an employee may "prove" the existence of a hazard in the workplace by "unscientific" lay witness testimony. This type of testimony is often presented when the employee cannot produce scientific evidence of a workplace expose or the documentation of the employer use of a material via purchase orders, disposal records or direct identification.
2. Employer rebuttal evidence may be presented in the form of: (1) witness testimony (good); (2)documentation of workplace materials (better); (3) scientific test results of the material or workplace environment (best).
3. Discovery of medical records is imperative to rule-out any non-occupational factors.
4. Discovery of past work experience and possible workplace exposures may be significant for consideration of medical causation issues.
Work Injury is defined to include Occupational Disease at Section 301(c)(2) of the Pennsylvania Workers' Compensation Act. Where occupational disease is the basis for a compensation claim for death, "it shall apply only to disability or death resulting from such disease and occurring within three hundred (300) weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease".
An obstacle to successful claim investigation is the time delay which may arise from the work exposure to the time of filing and litigation of the claim. Individuals with first-hand knowledge of the work environment, products used and work assignments may become unavailable. The work environment may change. The products used and/or their composition may change. Documentation of work assignments may not be retained. The recollection of individuals may fade.
These factors may equally compromise the case of the Employer or Employee.
P.H. Glatfelter v. WCAB (Henry), No. 48 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on July 30, 2013, discussed a claim petition and the evidence in support of employee's burden of proof.
Factual and Procedural Background
Employee worked as a pipe-fitter with a paper manufacturer since 1972. He testified he worked around insulation that contained asbestos. It covered the boilers and pipes he repaired. He would remove this material without any special protective clothing, gloves or breathing apparatus. Early on, the hazard of asbestos was unknown. In the1990's Employer adopted an asbestos awareness program and trained employees in proper asbestos removal.
Employee testified his last exposure to asbestos was in 2006 when he repaired a leaking steam pipe. He removed the insulation, which was "all wet and mushy". It was too hot to inspect. It was not marked "asbestos" but he believed his employer had this material tested. He said the employer "came out and either assumed or said that it was asbestos". slip opinion page 3.
Significantly, other than this 2006 incident, Employee could not identify when he was last exposed to asbestos, in the 300 weeks preceding his disability.
Another significant point (as we later find) was that Employee testified that he was routinely exposed to lime dust during maintenance and repair inside a large lime kiln.
Employee worked until February 23, 2009, when he was hospitalized for his pulmonary condition.
As employee's date of disability/injury was February 23, 2009, it was his burden to establish that he was exposed to hazardous material within 300 weeks of that date, in other words, between May 2003 and February 2009. The history of the 2006 incident satisfied that burden of proof. slip opinion page 6.
Employee Medical Expert
Michael H. Ader M.D.opined employee suffered from a diagnosis of pulmonary fibrosis, scarring of the lungs. Employee reported a history of significant asbestos exposure at work for over twenty (20) years.
In the absence of a history of cigarette smoking and nay disease that would cause fibrosis, Dr. Ader opined Employee's condition was caused by his work exposure to inhaled dusts, including asbestos and lime dust.
Employer Medical Expert
Scott Manaker M.D., PhD. examined employee and agreed with the diagnosis of pulmonary fibrosis. However he opined the cause of his disease was unknown and not attributable to exposure to asbestos and lime dust.
WCJ Decision
WCJ awarded total disability benefits based upon a finding of work related pulmonary fibrosis related to employee's workplace exposure.
Commonwealth Court Decision
Employer argued that employee did not produce sufficient evidence to prove his disability manifested within 300 weeks of his last exposure to the occupational hazard of asbestos.
Employee's burden is to prove that his disease was caused by his occupation and disabled him. He must prove that he became disabled within 300 weeks of his last actual exposure to the hazardous material in the workplace that is responsible for his condition.
Importantly, whether a claimant has been exposed to hazardous material in the workplace is a question of fact for the WCJ. The claimant need not produce scientific evidence to prove the existence of a hazard. Lay witness testimony, of a witness possessing first-hand knowledge and observation of a hazard in the claimant's workplace is sufficient to prove the existence of a hazard and exposure to the hazard.
See: Witco-Kendall Co. v. WCAB (Adams) 562 A2d 397 (Pa. Cmwlth. 1989).
The Knowledge of a witness may come through formal education or practical experience in dealing with the hazardous material. See: Gibson v. WCAB (Armco Stainless & Alloy Products) 861 A2d 938 (Pa. 2004).
The Employer is free to rebut this lay witness testimony with scientific evidence that a hazard did not exist.
Witco-Kendall, 562 A2d at 401.
Employer Argued that employee evidence was too vague to support a finding that he was exposed to an asbestos hazard in 2006.
Remember employee had to prove an exposure to an asbestos hazard within 300 weeks of his disability (February 23, 2009).
The testimony of the 2006 incident was the only evidence produced to satisfy this proof.
Employee stated he could not recall when he was exposed prior to 2006!
Employer argued the testimony produced in this case was similar to the testimony produced in the prior decision of the Pennsylvania Supreme Court in Gibson. That decision concluded that lay witness testimony was insufficient to prove asbestos exposure in the workplace as the co-worker testimony reflected that he did not have personal knowledge of the existence of asbestos at the workplace, rather he "went by what people said". This witness described he saw "dark gray material" on some pipes and ceiling that he believed to be asbestos, but he had no training or experience identifying asbestos and could not say with certainty whether the material he saw was asbestos.
Commonwealth Court distinguished the instant case.
Here, employee was medically diagnosed with an asbestos related disease.
In Gibson there was no asbestos diagnosis in the medical records
Here, Employer did not dispute the long time presence of asbestos in the workplace.
In Gibson, there was no evidence asbestos was ever in the workplace.
Here Employee acknowledged his difficulty identifying the insulation he removed in 2006, BUT he testified the employer tested the material and acknowledged that it contained asbestos.
Importantly, Employer did not rebut this testimony!
Here, "This is not a situation where Claimant had no idea whether asbestos was present in Employer's workplace and simply relied on what "people" told him. Employer informed him that there was asbestos in the insulation he had handled." The court viewed this an an admission.
Also, the Court noted that asbestos was not the sole cause of employee's illness. Employee medical evidence (found credible by the WCJ) opined the pulmonary fibrosis was caused by exposure to asbestos and lime dust.There was sufficient evidence to prove employee was exposed to hazardous materials in the workplace within 300 weeks of becoming disabled by pulmonary fibrosis.
Practice Pointers:
1. Although it may be difficult to acknowledge, the case law is clear, an employee may "prove" the existence of a hazard in the workplace by "unscientific" lay witness testimony. This type of testimony is often presented when the employee cannot produce scientific evidence of a workplace expose or the documentation of the employer use of a material via purchase orders, disposal records or direct identification.
2. Employer rebuttal evidence may be presented in the form of: (1) witness testimony (good); (2)documentation of workplace materials (better); (3) scientific test results of the material or workplace environment (best).
3. Discovery of medical records is imperative to rule-out any non-occupational factors.
4. Discovery of past work experience and possible workplace exposures may be significant for consideration of medical causation issues.
Tuesday, September 3, 2013
Is that Notice of a Work-Related Disability... or are you just having a bad day?
Notice of the Work Injury to the Employer
The Pennsylvania Workers' Compensation Act requires the injured employee provide "notice" of the work injury to the employer, in instances where the employer does not have knowledge of the alleged injury.
"Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his(her) behalf ... shall give notice thereof to the employer within 21 days after the injury, no compensation shall be due until such notice is given...
and, unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed..." . Section 311, 77 P.S. 631.
Notice of the work-related injury is an essential element of the burden of proof for the injured employee.
At times, a factual issue arises as to the "adequacy" of the employee statement.
Does the employee comment rise to the level of the required "notice" to the Employer?
Section 312 provides further detail of the requisite "notice".
"notice ... shall inform the employer that a certain employee received an injury, described in ordinary language, in the course of employment, on or about a specific time, at or near a place specified".
Rusko v. WCAB (Pouvoir Co.), No. 273 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leadbetter on July 19, 2013, addressed the adequacy of notice issue.
Factual and Procedural Background
Employee was a bookkeeper and personal assistant for "the Boss" an Optometrist, from May 2005 to May 4, 2009. In August of 2010, approximately 15 months after her last day of work, she filed a Work Comp Claim Petition.
Her petition alleged she sustained a psychological work injury on May 4, 2009.
Her symptoms consisted of anxiety, stress, depression with physical manifestations of sleeplessness, nausea.
The WCJ granted the parties' request to bifurcate the Claim Petition and separately consider the issue of notice. Bifurcation in this manner allows the parties to avoid the time and expense of litigation (usually medical expert witness costs) where it is possible the claim may be denied, solely on the issue of lack of proper notice of injury.
WCJ Decision
WCJ found Employee testimony to be credible.
However, WCJ found that Employee testimony failed to establish that she gave Employer "timely and proper notice of the alleged work-related injury". slip opinion page 2.
Employee testified that she told the office manager that she could no longer stand working for the Boss.
Employee testimony was that she made the following declaration to the office manager on her last day of employment: "I'm done. This time I'm really done."
WCJ found as a fact and concluded as a matter of law, that Employee's declaration was insufficient to constitute notice of a work-related injury.
On this basis, the Claim Petition was denied.
Commonwealth Court Reasoning
The Court affirmed the WCJ decision.
On appellate review the Court examined the context provided by employee for her statements.
The WCJ determined "... at best, the claimant's statement can be interpreted as her stating to [the office manager] that she was leaving work because she could no longer stand working with [the Boss].
Employee argued that the WCJ failed to take into account, the totality of circumstances, consistent with the decisions reported at Gentex Corp. v. WCAB (Morack) (Pa. 2011) and Kocher's IGA v. WCAB (Dietrich (Pa. Cmwlth. 1999).
Morack allowed for consideration of multiple communications.
Dietrich allowed for notice of the possibility of a work-relationship where employee was not sure.
In review of the WCJ decision, the Court simply stated, "We agree".
Simply giving notice that one can no longer tolerate working with someone or that person creates a stressful work environment, is not the equivalent of giving notice that one's job caused a work-related psychological injury. slip opinion page 4.
Practice Pointers:
1. At the outset of a claim investigation, interview the employer representative to determine is the employee has met the essential elements of establishing a work injury, including proof of:
a. an employment relationship
b. jurisdiction in Pennsylvania
c. injury arising in or related to work
d. disability ... if disability is not obvious...
e. medical expert evidence of disability.
2. Interview employee, at the outset, if employee is not represented by legal counsel.
3. Claim representatives should discuss any legal issues with their defense counsel prior to acceptance or denial of the claim. Assess the strength of employee allegations and the availability of any rebuttal evidence.
The Pennsylvania Workers' Compensation Act requires the injured employee provide "notice" of the work injury to the employer, in instances where the employer does not have knowledge of the alleged injury.
"Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his(her) behalf ... shall give notice thereof to the employer within 21 days after the injury, no compensation shall be due until such notice is given...
and, unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed..." . Section 311, 77 P.S. 631.
Notice of the work-related injury is an essential element of the burden of proof for the injured employee.
At times, a factual issue arises as to the "adequacy" of the employee statement.
Does the employee comment rise to the level of the required "notice" to the Employer?
Section 312 provides further detail of the requisite "notice".
"notice ... shall inform the employer that a certain employee received an injury, described in ordinary language, in the course of employment, on or about a specific time, at or near a place specified".
Rusko v. WCAB (Pouvoir Co.), No. 273 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leadbetter on July 19, 2013, addressed the adequacy of notice issue.
Factual and Procedural Background
Employee was a bookkeeper and personal assistant for "the Boss" an Optometrist, from May 2005 to May 4, 2009. In August of 2010, approximately 15 months after her last day of work, she filed a Work Comp Claim Petition.
Her petition alleged she sustained a psychological work injury on May 4, 2009.
Her symptoms consisted of anxiety, stress, depression with physical manifestations of sleeplessness, nausea.
The WCJ granted the parties' request to bifurcate the Claim Petition and separately consider the issue of notice. Bifurcation in this manner allows the parties to avoid the time and expense of litigation (usually medical expert witness costs) where it is possible the claim may be denied, solely on the issue of lack of proper notice of injury.
WCJ Decision
WCJ found Employee testimony to be credible.
However, WCJ found that Employee testimony failed to establish that she gave Employer "timely and proper notice of the alleged work-related injury". slip opinion page 2.
Employee testified that she told the office manager that she could no longer stand working for the Boss.
Employee testimony was that she made the following declaration to the office manager on her last day of employment: "I'm done. This time I'm really done."
WCJ found as a fact and concluded as a matter of law, that Employee's declaration was insufficient to constitute notice of a work-related injury.
On this basis, the Claim Petition was denied.
Commonwealth Court Reasoning
The Court affirmed the WCJ decision.
On appellate review the Court examined the context provided by employee for her statements.
- She testified she went to the office manager after the Boss requested that she change payroll records, a request she refused.
- She advised the office manager she was done that day as the Boss made her life a living hell.
- She complained to the office manager about stress, anxiety and work load during her employment
The WCJ determined "... at best, the claimant's statement can be interpreted as her stating to [the office manager] that she was leaving work because she could no longer stand working with [the Boss].
Employee argued that the WCJ failed to take into account, the totality of circumstances, consistent with the decisions reported at Gentex Corp. v. WCAB (Morack) (Pa. 2011) and Kocher's IGA v. WCAB (Dietrich (Pa. Cmwlth. 1999).
Morack allowed for consideration of multiple communications.
Dietrich allowed for notice of the possibility of a work-relationship where employee was not sure.
In review of the WCJ decision, the Court simply stated, "We agree".
Simply giving notice that one can no longer tolerate working with someone or that person creates a stressful work environment, is not the equivalent of giving notice that one's job caused a work-related psychological injury. slip opinion page 4.
Practice Pointers:
1. At the outset of a claim investigation, interview the employer representative to determine is the employee has met the essential elements of establishing a work injury, including proof of:
a. an employment relationship
b. jurisdiction in Pennsylvania
c. injury arising in or related to work
d. disability ... if disability is not obvious...
e. medical expert evidence of disability.
2. Interview employee, at the outset, if employee is not represented by legal counsel.
3. Claim representatives should discuss any legal issues with their defense counsel prior to acceptance or denial of the claim. Assess the strength of employee allegations and the availability of any rebuttal evidence.
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