A recurring issue for Employers and Insurers is the limitation upon a remedy for successful termination of disbility benefits arising from the "changing injury description".
In a Termination Petition, the Employer/Insurer burden of proof is to establish that disability from the work injury has ceased.
Where the Employee continues to complain of pain, the Employer may meet this Termination burden of proof, via a credible and unequivocal medical opinion (within a reasonable degree of medical certainity) that the Employee has "fully recovered", can return to work "without restrictions" and there are "no objective medical findings" that can sustantiate the pain complaints OR connect them to the work injury. see: Udvari v. WCAB (US Air, Inc.) (Pa. 1997).
Edward J. Siegfried and Erie Insurance Co. v. WCAB (Zerbe) decided by Judge McGinley of the Commonwealth Court at No. 1815 C.D. 2012 on February 1, 2013 in an Unreported Opinion.
A Termination Petition was defeated when the Workers Compensation Judge assigned greater credibility to the medical opinions expressed by the Employee medical witnesses, Dr. Zeliger (back symptoms) and Dr. Ackerman (shoulder symptoms). Also, Employee was found credible.
TWO ISSUES were discussed on appeal.
#1. Employer argued the WCJ erred in denial of the Termination petition, as Employee medical expert Dr. Zeliger testified that Employee was not fully recovered as he had a "borderline herniated disc, protruded disc, at L5-S1 on the left". The NCP described the work injury as "lumbar sprain/strain and right shoulder contusion". The WCJ erred in assessing the medical opinions based upon an implicit, not express amendment of the injury to include a disc herniation.
Commonwealth Court reasoned the WCJ implicitly amended the description of injury based upon the determination that Dr. Zeliger was credible.
#2. After the close of the evidentary record and before a decision was published, Employer Counsel requested to re-open the record and schedule a status conference to discuss "new evidence", an office progress note from Employee's treating orthopedic surgeon, Dr. Ackerman, to the effect that Employee had reached "MMI" and was released to full duty work with respect to the shoulder.
Employee Counsel also requested the record be re-opened.
The WCJ did not respond to these requests. The Termination Petition decision was issued.
Employer counsel argued the WCJ erred in not reopening the record to consider the note from the treating orthopedic surgeon that Employee had fully recovered from the shoulder injury.
[Note: a "full recovery" is not synonymous with a return to "full duty". The appellate decision is not clear on this point.]
Citing the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges, 34 Pa. Code 131.101(c) the Commonwealth Court noted the WCJ may close the record after submission of all evidence or upon a party's motion or motion of the judge. They emphasized there is no specific rule or decision that the WCJ must reopen the record to accept after acquired evidence.
The general rule (not mentioned in this opinion) is that the WCJ has discretion to reopen the record and that decision will not be reversed, absent an abuse of discretion. See: Sharkey v. WCAB (Tempo, Inc.) Pa. Cmwlth. 1999.
My Concerns:
1. Why deny the JOINT request of Employer and Employee Counsel to re-open the record and review
medical evidence which was not previously available. I do not understand this. I recognize there
needs to be an end point and a time when the case goes to decision, BUT here there was fairly
important medical evidence, that reflected a significant chance in claimant's medical evidence of
ongoing disability.
As this was truly after discovered evidence, let it in.
2. The "implicit" amendment of the description of injury, without a Employee petition for Review,
does not provide Employer with any notice that the WCJ will "grant" this relief to Employee, such
that Employer's medical evidence is now devalued and this evidence no longer addresses the
critical issues of termination/continuance of the work related disability.
Employee must be required to challenge the description of injury and place the Employer on notice,
consistent with the appellate decisions at Cinram Mfg. Inc v. WCAB (Hill); Commercial Credit v.
WCAB (Lancaster) and Jeanes Hospital v, WCAB (Haas).
Practice Pointers
A. I guess you should ask Employee Counsel "on the record" if they are going to review the description
of injury. OK, I do not typically do this... may be we should... when it appears it may be an issue.
B. I do not have any "great" recommendations for getting the WCJ to re-open the record, particularly
where opposing counsel agrees with your request. Maybe strenuously argue the after-discovered
nature (maybe they did that here, it's hard to tell from this appellate report).
This is an unreported decision of the Commonwealth Court. Since 2008 one may cite and argued for its persuasive value, not as a binding legal precedent.
Wednesday, February 6, 2013
Friday, February 1, 2013
Post Settlement Review- Not Allowed!
As an increasing number of PA work comp cases are concluded via Compromise and Release Stipulation settlements, the finality of these settlement agreements is of paramount importance to the Insurers, the Employers and their attorneys.
An Employee may not petition to Review the description of injury after a Compromise and Release Stipulation, even where the agreement allows for the payment of future work related medical expenses.
Importantly, the Employer/Insurer documented their negotiations with Employee as to the specific injuries "accepted" as work-related for purposes of this settlement.
DePue v. WCAB (N. Paone Construction, Inc.) decided by the Commonwealth Court of Pennsylvania on January 30, 2013, at No. 1113 C.D. 2012, opinion authored by Judge Leadbetter.
Procedural Background
1996 Head injury
1996 NCP issued by Employer
March 2008 Compromise and Release settlement decision
July 2010 Employee Penalty petition for non-payment medical bills
September 2010 Employee Petition Review description of Injury
WCJ deny Penalty and Review Petitions
WCAB affirm denials
Commonwealth Court affirm denials
Factual Background
In 2008 the parties entered into settlement discussions and exchanged correspondence and draft settlement documents (LIBC 755 and addendum pages).
Employee proposed addendum described the work injury as "closed head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short-term memory and bi-polar disorder.
Employer returned this document, "crossing out" the shoulder, chronic pain and bi-polar descriptions.
Employer note stated "we already negotiated the accepted injuries in 2007 and those are the only injuries I will outline on the agreement".
The C&R documents were prepared to describe:
"any and all injuries suffered at (employer) including but not limited to the accepted injuries of severe closed head injury with seizure disorder and short term memory loss".
Another settlement term was that Employer agreed to pay " all reasonable and related medical bills".
The settlement documents with the above injury description were executed and presented as exhibits at the March 2008 WCJ hearing. The Commonwealth Court decision reviewed these documents and Employee's March 2008 testimony.
Employee testimony reflected that:
there had been discussion of settlement for months;
he read and signed the agreement;
he understood medical expenses that were reasonable and necessary and causally related to his injury would continued to be paid;
he had enough time to review the agreement;
the terms were explained to his satisfaction;
he was not promised anything that was not in the agreement;
he understood that once approved he cannot go back and ask anyone for additional payments of wage loss benefits.
The "C&R" WCJ found as fact and concluded that Employee understood the full legal significance of the agreement "as regards [his] work related injury and right to workers' compensation benefits".
She concluded that the parties entered into "a valid and binding agreement".
Commonwealth Court decision
As noted above, I believe a significant factor in this positive litigation outcome was that the Employer Counsel documented the pre-settlement discussions with Employee counsel regarding the description of injuries that were considered "the work related injury". This is particularly important where you are agreeing to pay for future medical expenses. The documentation of these communications were submitted as exhibits in support of Employer's arguments in the litigation of the 2010 Review and Penalty Petitions.
Employee argument that the C&R Agreement should be "corrected" to add the shoulder injury as this was "erroneously" omitted from the final drafts was rejected. This was not consistent with the evidence, the pre-C&R hearing correspondence among the attorneys regarding the injury description.
After negotiations with Employer, Employee agreed to omit the shoulder injury description and signed those documents.
An approved C&R agreement may be set aside only upon a clear showing of fraud, deception, duress, mutual mistake or unilateral mistake caused by an opposing party's fault.
[ citing, Farner, Barszczewski, Dillard].
Once approved, a valid C&R agreement is final conclusive and binding upon the parties.
Employee asserted the Employer "routinely" paid medical bills for the shoulder and knew that the bills were causally related.
Employee argued legal principals of: Promissory estoppel; equitable estoppel and res judicata.
[ these arguments recur in work comp, so I will reference this discussion]
Promissory Estoppel may be invoked to enforce a promise made by a party to an opposing party when there is no enforceable agreement between the parties.
Equitable Estoppel may be invoked to enforce a promise where there is the party's inducement of the other party to believe certain facts to exist and the other party's reliance on that belief to act.
"Nothing in the record suggests that Employer promised to continue to pay medical bills for the left shoulder injury and that Claimant relied upon such promise to enter into the C&R agreement".
slip opinion p. 10.
Commonwealth Court repeated the general rule that an employer's voluntary payment of medical bills does not constitute an admission of liability for the left shoulder injury and cannot be construed as a promise to continue to make such payments. slip opinion p. 10-11.
Practice Pointers
1. Confirm all settlement terms in writing ASAP after the mediation or verbal settlement
discussions.
2. Where there is a term that was discussed and not included, I like to add language, something to
the effect, " during litigation of the claim petition claimant alleged his neck was
also injured at the time of his low back injury, but employer has disputed any relationship and
has not accepted liability for that medical condition or related treatment, as a term of this
settlement".
3. I no long try to "do things last minute". Reschedule the hearing. Take the time to review and
consider the language you use in the settlement documents.
[Here I like the fact that Defendant Counsel documented his discussions with Claimant
Counsel, IMO this was significant in obtaining a successful result]
An Employee may not petition to Review the description of injury after a Compromise and Release Stipulation, even where the agreement allows for the payment of future work related medical expenses.
Importantly, the Employer/Insurer documented their negotiations with Employee as to the specific injuries "accepted" as work-related for purposes of this settlement.
DePue v. WCAB (N. Paone Construction, Inc.) decided by the Commonwealth Court of Pennsylvania on January 30, 2013, at No. 1113 C.D. 2012, opinion authored by Judge Leadbetter.
Procedural Background
1996 Head injury
1996 NCP issued by Employer
March 2008 Compromise and Release settlement decision
July 2010 Employee Penalty petition for non-payment medical bills
September 2010 Employee Petition Review description of Injury
WCJ deny Penalty and Review Petitions
WCAB affirm denials
Commonwealth Court affirm denials
Factual Background
In 2008 the parties entered into settlement discussions and exchanged correspondence and draft settlement documents (LIBC 755 and addendum pages).
Employee proposed addendum described the work injury as "closed head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short-term memory and bi-polar disorder.
Employer returned this document, "crossing out" the shoulder, chronic pain and bi-polar descriptions.
Employer note stated "we already negotiated the accepted injuries in 2007 and those are the only injuries I will outline on the agreement".
The C&R documents were prepared to describe:
"any and all injuries suffered at (employer) including but not limited to the accepted injuries of severe closed head injury with seizure disorder and short term memory loss".
Another settlement term was that Employer agreed to pay " all reasonable and related medical bills".
The settlement documents with the above injury description were executed and presented as exhibits at the March 2008 WCJ hearing. The Commonwealth Court decision reviewed these documents and Employee's March 2008 testimony.
Employee testimony reflected that:
there had been discussion of settlement for months;
he read and signed the agreement;
he understood medical expenses that were reasonable and necessary and causally related to his injury would continued to be paid;
he had enough time to review the agreement;
the terms were explained to his satisfaction;
he was not promised anything that was not in the agreement;
he understood that once approved he cannot go back and ask anyone for additional payments of wage loss benefits.
The "C&R" WCJ found as fact and concluded that Employee understood the full legal significance of the agreement "as regards [his] work related injury and right to workers' compensation benefits".
She concluded that the parties entered into "a valid and binding agreement".
Commonwealth Court decision
As noted above, I believe a significant factor in this positive litigation outcome was that the Employer Counsel documented the pre-settlement discussions with Employee counsel regarding the description of injuries that were considered "the work related injury". This is particularly important where you are agreeing to pay for future medical expenses. The documentation of these communications were submitted as exhibits in support of Employer's arguments in the litigation of the 2010 Review and Penalty Petitions.
Employee argument that the C&R Agreement should be "corrected" to add the shoulder injury as this was "erroneously" omitted from the final drafts was rejected. This was not consistent with the evidence, the pre-C&R hearing correspondence among the attorneys regarding the injury description.
After negotiations with Employer, Employee agreed to omit the shoulder injury description and signed those documents.
An approved C&R agreement may be set aside only upon a clear showing of fraud, deception, duress, mutual mistake or unilateral mistake caused by an opposing party's fault.
[ citing, Farner, Barszczewski, Dillard].
Once approved, a valid C&R agreement is final conclusive and binding upon the parties.
Employee asserted the Employer "routinely" paid medical bills for the shoulder and knew that the bills were causally related.
Employee argued legal principals of: Promissory estoppel; equitable estoppel and res judicata.
[ these arguments recur in work comp, so I will reference this discussion]
Promissory Estoppel may be invoked to enforce a promise made by a party to an opposing party when there is no enforceable agreement between the parties.
Equitable Estoppel may be invoked to enforce a promise where there is the party's inducement of the other party to believe certain facts to exist and the other party's reliance on that belief to act.
"Nothing in the record suggests that Employer promised to continue to pay medical bills for the left shoulder injury and that Claimant relied upon such promise to enter into the C&R agreement".
slip opinion p. 10.
Commonwealth Court repeated the general rule that an employer's voluntary payment of medical bills does not constitute an admission of liability for the left shoulder injury and cannot be construed as a promise to continue to make such payments. slip opinion p. 10-11.
Practice Pointers
1. Confirm all settlement terms in writing ASAP after the mediation or verbal settlement
discussions.
2. Where there is a term that was discussed and not included, I like to add language, something to
the effect, " during litigation of the claim petition claimant alleged his neck was
also injured at the time of his low back injury, but employer has disputed any relationship and
has not accepted liability for that medical condition or related treatment, as a term of this
settlement".
3. I no long try to "do things last minute". Reschedule the hearing. Take the time to review and
consider the language you use in the settlement documents.
[Here I like the fact that Defendant Counsel documented his discussions with Claimant
Counsel, IMO this was significant in obtaining a successful result]
Monday, January 28, 2013
Undocumented Alien Worker - Suspension
The Worker Compensation Benefit entitlement of an undocumented alien worker was addressed by the Pa Supreme Court in Reinforced Earth Company v. WCAB (Astudillo) 810 A.2d 99 (Pa. 2002).
The Opinion announcing the Judgment of the Court (3 Justices) held that an undocumented alien worker is not barred from the Work Comp Act benefits for reasons of public policy. The Court declined to create a "public policy exception" from the Act's coverage.
However, in regards to the Suspension request, the Court stated the employer did not need to satisfy the Kachinski job availability requirement. Claimant, an unauthorized alien cannot apply for or accept lawful employment. There would be no point in requiring employer to show jobs were referred to claimant or jobs were available to claimant, in order to prove entitlement to a suspension of benefits. Claimant's immigration status, not his work injury would be the cause of his loss of earnings.
Eleazar Ortiz v. WCAB (Raul Rodriguez d/b/a Rodriguez General Contractors)
decided by the Commonwealth Court of Pennsylvania on January 15, 2013, at No. 446 C.D. 2012
opinion authored by Judge Leavitt.
Procedural & Factual History
June 2007 leg and ankle injury. Employer did not have WC insurance.
Employee filed an Uninsured Employers Guaranty Fund claim petition.
December 2008 WCJ granted claim.
TTD, then PPD benefits based upon earnings since November 2007 return to part-time work. Employer did not appeal.
September 2009 Employer petition for Suspension.
Asserted Employee was not authorized to work in USA.
Employee admitted not authorized to work.
Employer did not offer new medical evidence to show a change in physical condition since November 2007 return to work date.
WCJ denied Suspension.
Held Employer was required to show a change in physical condition.
WCAB Reverse. Grant Suspension as of November 2007 partial disability status.
Commonwealth Court affirm Suspension.
Commonwealth Court reviewed the Reinforced Earth decision and it's decision at Mora v. WCAB (DDP Contracting Co. Inc.) which followed in 2004.
Held: (1) the undocumented alien worker is eligible for total disability benefits, but is not eligible for
partial disability benefits.
(2) An Employer seeking to suspend disability benefits is not required to show job availability.
(3) The Employer need only demonstrate the claimant is an unauthorized alien and is no longer
totally disabled.
Claimant argued that employer must prove a change in his physical condition. He argued that there was no change in his condition since his return to part-time work in November 2007. At that time, the WCJ found he was entitled to PPD benefits, a finding the employer did not appeal from the December 2008 WCJ decision.
BUT claimant did not argue that the Suspension petition was barred by legal doctrine of res judicata, (ie., it was previously decided by the WCJ in the unappealled December 2007 order).
As this legal argument was not raised on appeal, it is waived.
Practice Pointers:
1. In the initial investigation, ask the Employee and Employer the work status of the employee.
In many cases it may seem superfluous, but consider asking just once.
2. When dealing with a known undocumented worker, schedule a medical examination ASAP or ask
the treating doctor for a statement regarding the claimant's work capability.
3. Remember the Kachinski 4 prong analysis of job availability evidence does not apply in regards to
modification/suspension of:
(a) incarcerated employee (Banic)
(b) voluntary retired employee (Henderson)
(c) disabled employee from a non-work related medical condition (Schneider).
The Opinion announcing the Judgment of the Court (3 Justices) held that an undocumented alien worker is not barred from the Work Comp Act benefits for reasons of public policy. The Court declined to create a "public policy exception" from the Act's coverage.
However, in regards to the Suspension request, the Court stated the employer did not need to satisfy the Kachinski job availability requirement. Claimant, an unauthorized alien cannot apply for or accept lawful employment. There would be no point in requiring employer to show jobs were referred to claimant or jobs were available to claimant, in order to prove entitlement to a suspension of benefits. Claimant's immigration status, not his work injury would be the cause of his loss of earnings.
Eleazar Ortiz v. WCAB (Raul Rodriguez d/b/a Rodriguez General Contractors)
decided by the Commonwealth Court of Pennsylvania on January 15, 2013, at No. 446 C.D. 2012
opinion authored by Judge Leavitt.
Procedural & Factual History
June 2007 leg and ankle injury. Employer did not have WC insurance.
Employee filed an Uninsured Employers Guaranty Fund claim petition.
December 2008 WCJ granted claim.
TTD, then PPD benefits based upon earnings since November 2007 return to part-time work. Employer did not appeal.
September 2009 Employer petition for Suspension.
Asserted Employee was not authorized to work in USA.
Employee admitted not authorized to work.
Employer did not offer new medical evidence to show a change in physical condition since November 2007 return to work date.
WCJ denied Suspension.
Held Employer was required to show a change in physical condition.
WCAB Reverse. Grant Suspension as of November 2007 partial disability status.
Commonwealth Court affirm Suspension.
Commonwealth Court reviewed the Reinforced Earth decision and it's decision at Mora v. WCAB (DDP Contracting Co. Inc.) which followed in 2004.
Held: (1) the undocumented alien worker is eligible for total disability benefits, but is not eligible for
partial disability benefits.
(2) An Employer seeking to suspend disability benefits is not required to show job availability.
(3) The Employer need only demonstrate the claimant is an unauthorized alien and is no longer
totally disabled.
Claimant argued that employer must prove a change in his physical condition. He argued that there was no change in his condition since his return to part-time work in November 2007. At that time, the WCJ found he was entitled to PPD benefits, a finding the employer did not appeal from the December 2008 WCJ decision.
BUT claimant did not argue that the Suspension petition was barred by legal doctrine of res judicata, (ie., it was previously decided by the WCJ in the unappealled December 2007 order).
As this legal argument was not raised on appeal, it is waived.
Practice Pointers:
1. In the initial investigation, ask the Employee and Employer the work status of the employee.
In many cases it may seem superfluous, but consider asking just once.
2. When dealing with a known undocumented worker, schedule a medical examination ASAP or ask
the treating doctor for a statement regarding the claimant's work capability.
3. Remember the Kachinski 4 prong analysis of job availability evidence does not apply in regards to
modification/suspension of:
(a) incarcerated employee (Banic)
(b) voluntary retired employee (Henderson)
(c) disabled employee from a non-work related medical condition (Schneider).
Friday, January 25, 2013
Subrogation Recovery not limited by Employer Actions
An Employer/Insurer right to assert a subrogation right against an Employee third part recovery, arising from a work injury has been said to be an "absolute" right, abrogated only by choice.
The Pa Supreme Court has also described this Section 319 subrogation right as "automatic" and "by its terms, admits no express exceptions, equitable or otherwise".
One "exception" to this absolute right has been recognized by the Pa Supreme Court, that is, "...where an employer undertakes in deliberate bad faith to subvert a third party suit brought by its employee..."
citing Thompson v. WCAB (USF&G) 781 A.2d 1146 (Pa. 2001).
Glass v. WCAB (The City of Philadelphia) No. 1274 C.D. 2012 decided by the Commonwealth Court on January 10, 2013 by Judge Cohn Jubelirer.
Factual History
Police officer sustained injuries when he lost control of a motorcycle during training exercises.
His injury was accepted as work related and paid. He filed a third party civil action against Philadelphia Cycle Center (PCC) asserting improper maintenance caused him to lose control, resulting in his injuries. He received a $490,000 arbitration award against PCC. Employer asserted subrogation rights via petition for review. Employee objected to the subrogation request asserting that Employer acted in bad faith by allowing spoliation of evidence. Any right to subrogation should be extinguished pursuant to Thompson case.
Employee Attorney sent a letter in May 2006 requesting the employer refrain from altering the motorcycle until inspected by an engineer expert. The motorcycle was repaired on September 2006, before the employee expert inspection of January 2007.
Procedural History
WCJ granted Petition to Review and allowed subrogation recovery.
WCAB affirmed.
Commonwealth Court affirmed.
Legal Issue
What level of employer conduct will extinguish one's right to subrogation?
In Thompson, the employer did not retain bolts from a crane which had loosened/failed and were said to be the cause of claimant's injury. As the bolts were not available for testing by experts in the civil action, claimant argued the employer should have no right of subrogation. The Thompson court articulated the above-cited rules that subrogation is absolute, unless where an employer acts in deliberate bad faith to subvert the claimant's lawsuit. But the Court did not deny employer subrogation, under those facts, concluding that claimant did not demonstrate that the employer acted in bad faith.
In Glass, the testimony of employer witnesses and documents were reviewed by the WCJ and the WCJ inferred there was a miscommunication among the City representatives and this miscommunication was not based upon a deliberate bad faith desire to subvert Employee's third party lawsuit against PCC.
In short, the testimony reflected that a legal assistant spoke to a sergeant and lieutenant on several occasions regarding employee's desire to inspect the motorcycle and advised to not alter it. The sergeant and lieutenant recalled the calls regarding the inspection request but not the direction to not alter the motorcycle. There was a lack of written records regarding these communications.
Commonwealth Court, stated that the inferences drawn by the WCJ were reasonable and a reasonable mind would accept such evidence as substantial evidence in support of the finding of a "miscommunication" not a bad faith act to subvert the employee's lawsuit. (slip opinion pp 12-13).
Thompson court also discussed a prior federal district court decision describing a "dereliction of duty" as a showing of bad faith. Here the WCJ did not find the City representatives direlict in their duties, there was a series of miscommunications, but not conduct sufficient to alter the WCJ analysis.
Practice Pointers
1. Early in the work comp case evaluation, one should identify claims involving possible third party negligence and potential subrogation.
2. Identify your team member to be the person with responsibility for communication with plaintiff counsel, responding to discovery requests and monitoring civil action case status.
3. Document discussions with written correspondence. You never truly know when you may need documents for future evidence of your actions.
The Pa Supreme Court has also described this Section 319 subrogation right as "automatic" and "by its terms, admits no express exceptions, equitable or otherwise".
One "exception" to this absolute right has been recognized by the Pa Supreme Court, that is, "...where an employer undertakes in deliberate bad faith to subvert a third party suit brought by its employee..."
citing Thompson v. WCAB (USF&G) 781 A.2d 1146 (Pa. 2001).
Glass v. WCAB (The City of Philadelphia) No. 1274 C.D. 2012 decided by the Commonwealth Court on January 10, 2013 by Judge Cohn Jubelirer.
Factual History
Police officer sustained injuries when he lost control of a motorcycle during training exercises.
His injury was accepted as work related and paid. He filed a third party civil action against Philadelphia Cycle Center (PCC) asserting improper maintenance caused him to lose control, resulting in his injuries. He received a $490,000 arbitration award against PCC. Employer asserted subrogation rights via petition for review. Employee objected to the subrogation request asserting that Employer acted in bad faith by allowing spoliation of evidence. Any right to subrogation should be extinguished pursuant to Thompson case.
Employee Attorney sent a letter in May 2006 requesting the employer refrain from altering the motorcycle until inspected by an engineer expert. The motorcycle was repaired on September 2006, before the employee expert inspection of January 2007.
Procedural History
WCJ granted Petition to Review and allowed subrogation recovery.
WCAB affirmed.
Commonwealth Court affirmed.
Legal Issue
What level of employer conduct will extinguish one's right to subrogation?
In Thompson, the employer did not retain bolts from a crane which had loosened/failed and were said to be the cause of claimant's injury. As the bolts were not available for testing by experts in the civil action, claimant argued the employer should have no right of subrogation. The Thompson court articulated the above-cited rules that subrogation is absolute, unless where an employer acts in deliberate bad faith to subvert the claimant's lawsuit. But the Court did not deny employer subrogation, under those facts, concluding that claimant did not demonstrate that the employer acted in bad faith.
In Glass, the testimony of employer witnesses and documents were reviewed by the WCJ and the WCJ inferred there was a miscommunication among the City representatives and this miscommunication was not based upon a deliberate bad faith desire to subvert Employee's third party lawsuit against PCC.
In short, the testimony reflected that a legal assistant spoke to a sergeant and lieutenant on several occasions regarding employee's desire to inspect the motorcycle and advised to not alter it. The sergeant and lieutenant recalled the calls regarding the inspection request but not the direction to not alter the motorcycle. There was a lack of written records regarding these communications.
Commonwealth Court, stated that the inferences drawn by the WCJ were reasonable and a reasonable mind would accept such evidence as substantial evidence in support of the finding of a "miscommunication" not a bad faith act to subvert the employee's lawsuit. (slip opinion pp 12-13).
Thompson court also discussed a prior federal district court decision describing a "dereliction of duty" as a showing of bad faith. Here the WCJ did not find the City representatives direlict in their duties, there was a series of miscommunications, but not conduct sufficient to alter the WCJ analysis.
Practice Pointers
1. Early in the work comp case evaluation, one should identify claims involving possible third party negligence and potential subrogation.
2. Identify your team member to be the person with responsibility for communication with plaintiff counsel, responding to discovery requests and monitoring civil action case status.
3. Document discussions with written correspondence. You never truly know when you may need documents for future evidence of your actions.
Tuesday, January 22, 2013
Prior Bad Faith job refusal negated Reinstatement Request
When an employer makes a work offer to an employee with modified work capabilities, a refusal to return to an available work assignment or refusal to continue in that assignment (this case)
will limit the employee remedy for future reinstatement of total disability benefits, where there is no proof that the work related injury condition has worsened to further limits one's work capabilties.
An offer of modified work duty to a previously injured Employee remains one of the most effective remedies for reduction of work comp wage loss benefits. From the employee view, it may be an opportunity to transition back to work and/or maintain ones postion in the workplace. From the employer point of view, they receive some work effort as the employee collects wages and/or partial disability and they reduce their work comp benefit payout.
"Funded" employment is a viable option for the Employer who cannot provide modified duty work assignements.
Alfred Napierski v. WCAB (Scobell Co. Inc) No.330 C.D. 2012, was decided on January 10, 2013.
Factual & Procedural Background
Employee sustained a left leg injury in July 1995.
Employer made a "funded employment" job offer with IDI.
(funded employment = where WC insurer funds/pays wage amount to Third Party Employer, who pays wages to employee)
Employee returns to work with IDI in October 2004. PPD paid based upon of wage differential.
IDI experiences problems with office locations: heating malfunctions; mouse infestation, necessiate move in March 2005 and second move August 2005.
When Employee finds mouse feces were transported from office #2 to office #3, he "quits on the spot" believing the Employer was "playing games".
Employee files Modification petition to reinstate TTD benefits.
WCJ finds job was within physical capabilities, but reinstated TTD for time gap from January 2005 when heat malfunctioned (did EE take off?) until job became available at office #3 in August 2005.
WCJ found Employee refusal to work at office #3 was "bad faith". Order continued PPD based upon earnings available with IDI.
Cross appeals to WCAB. Employer argue error to allow PPD, WCAB agrees.
Employee argue error deny reinstate, appeal denied.
Commonwealth Court appeal by Employee denied, WCAB revision of WCJ order is affirmed.
Pa Supreme Court allocatur denied.
Employee "New" Reinstatement Petition 2010
Employee asked Employer to "fund" another job for him so he could return to work. Employer did not respond. Employee's "legal issues" decided without additional testimony.
WCJ deny Reinstatement, reasoning, benefits were modified for "bad faith" refusal to continue in funded job. Employee must prove medical condition has worsened and he can no longer perform previously available IDI position. "Funded" nature of job was not relevant.
WCAB affirm.
Commonwealth Court Appeal, Employee argued prior case precedents regarding job offers and bad faith should not apply to a funded position.
General Rule #1. A Claimant's Burden of Proof for Reinstatement is to show the reason for suspension/modification, no longer exists. For example, one's earning power is adversely affected by work related disability, such as: one can no longer perform the prior job, the job is no longer available, there is no other work available.
General Rule #2. A Claimant's burden of Proof where benefits have been modified because of "bad faith" is different, the claimant must show a change in his physical condition such that he can no longer perform the job(s) previously offered, citing Spinibelli v. WCAB (Massey Buick Inc. 1992.
( a prior Mike Sherman appellate victory).
" An employer cannot be given a never-ending duty to keep a job available for a claimant who rejects it in bad faith". Claimant must live with the consequences of his decision.
The situation where a funded position was only available for a finite time period (Myers 2004) was distinguished from this present situation. This IDI job offer was not temporary from the outset.
The fact that the IDI job was "specially created" for Employee did not demand a different result as the jobs in Spinibelli were specially created for that worker.
Rule of Law (good quote here)
" Once the claimant refuses any kind of job in bad faith, whether funded or specially created for the claimant, job availability ceases to be an issue. It matters not that an employer might be able to provide another job for the claimant; it cannot be forced to do so more than once".
Napierski slip opinion p. 10.
Practice Pointers
1. Funded employment may continue to be a viable litigation strategy and may not have the stigma associated with past programs.
2. Document the reason(s) provided by an employee when they depart a modified duty job and further document those reasons with a letter to claimant and his attorney.
3. Consider a contemporaneous medical exam to document the claimant remains physically capable of performing the position they abandoned.
will limit the employee remedy for future reinstatement of total disability benefits, where there is no proof that the work related injury condition has worsened to further limits one's work capabilties.
An offer of modified work duty to a previously injured Employee remains one of the most effective remedies for reduction of work comp wage loss benefits. From the employee view, it may be an opportunity to transition back to work and/or maintain ones postion in the workplace. From the employer point of view, they receive some work effort as the employee collects wages and/or partial disability and they reduce their work comp benefit payout.
"Funded" employment is a viable option for the Employer who cannot provide modified duty work assignements.
Alfred Napierski v. WCAB (Scobell Co. Inc) No.330 C.D. 2012, was decided on January 10, 2013.
Factual & Procedural Background
Employee sustained a left leg injury in July 1995.
Employer made a "funded employment" job offer with IDI.
(funded employment = where WC insurer funds/pays wage amount to Third Party Employer, who pays wages to employee)
Employee returns to work with IDI in October 2004. PPD paid based upon of wage differential.
IDI experiences problems with office locations: heating malfunctions; mouse infestation, necessiate move in March 2005 and second move August 2005.
When Employee finds mouse feces were transported from office #2 to office #3, he "quits on the spot" believing the Employer was "playing games".
Employee files Modification petition to reinstate TTD benefits.
WCJ finds job was within physical capabilities, but reinstated TTD for time gap from January 2005 when heat malfunctioned (did EE take off?) until job became available at office #3 in August 2005.
WCJ found Employee refusal to work at office #3 was "bad faith". Order continued PPD based upon earnings available with IDI.
Cross appeals to WCAB. Employer argue error to allow PPD, WCAB agrees.
Employee argue error deny reinstate, appeal denied.
Commonwealth Court appeal by Employee denied, WCAB revision of WCJ order is affirmed.
Pa Supreme Court allocatur denied.
Employee "New" Reinstatement Petition 2010
Employee asked Employer to "fund" another job for him so he could return to work. Employer did not respond. Employee's "legal issues" decided without additional testimony.
WCJ deny Reinstatement, reasoning, benefits were modified for "bad faith" refusal to continue in funded job. Employee must prove medical condition has worsened and he can no longer perform previously available IDI position. "Funded" nature of job was not relevant.
WCAB affirm.
Commonwealth Court Appeal, Employee argued prior case precedents regarding job offers and bad faith should not apply to a funded position.
General Rule #1. A Claimant's Burden of Proof for Reinstatement is to show the reason for suspension/modification, no longer exists. For example, one's earning power is adversely affected by work related disability, such as: one can no longer perform the prior job, the job is no longer available, there is no other work available.
General Rule #2. A Claimant's burden of Proof where benefits have been modified because of "bad faith" is different, the claimant must show a change in his physical condition such that he can no longer perform the job(s) previously offered, citing Spinibelli v. WCAB (Massey Buick Inc. 1992.
( a prior Mike Sherman appellate victory).
" An employer cannot be given a never-ending duty to keep a job available for a claimant who rejects it in bad faith". Claimant must live with the consequences of his decision.
The situation where a funded position was only available for a finite time period (Myers 2004) was distinguished from this present situation. This IDI job offer was not temporary from the outset.
The fact that the IDI job was "specially created" for Employee did not demand a different result as the jobs in Spinibelli were specially created for that worker.
Rule of Law (good quote here)
" Once the claimant refuses any kind of job in bad faith, whether funded or specially created for the claimant, job availability ceases to be an issue. It matters not that an employer might be able to provide another job for the claimant; it cannot be forced to do so more than once".
Napierski slip opinion p. 10.
Practice Pointers
1. Funded employment may continue to be a viable litigation strategy and may not have the stigma associated with past programs.
2. Document the reason(s) provided by an employee when they depart a modified duty job and further document those reasons with a letter to claimant and his attorney.
3. Consider a contemporaneous medical exam to document the claimant remains physically capable of performing the position they abandoned.
Wednesday, January 16, 2013
Suspension based upon work offer & Penalty for non-payment during appellate remand
An Employer was entitled to a suspension of TTD benefits where the Employee left the available light duty position after 2 or 3 days, due to his lack of an available vehicle.
The Employee was entitled to a Penalty award, where the Employer/Insurer did not reinstate TTD benefits when the initial WCAB decison was vacated and remanded for further fact finding.
North Pittsburgh Drywall Co. Inc. v WCAB (Owen) was decided by the Commonwealth Court on January 9, 2013 in an opinion authored by Judge Cohn Jubelirer. (No. 1257 C.D. 2012).
Factual History: NCP issued for an October 2001 right wrist injury. Employer made an April 2003 light duty job offer of warehouse position, approved by Employee physician. Job was located 1.5 hours from residence, but was same location as regular job. Employee automobile had been repossessed after injury, so he borrowed his dad's vehicle and returned to light duty work for 2 or 3 days. (why do they not know the number of days at this point in the litigation?).
His father needed the vehicle, so Employee had no transportation and was unable to return. It was said he had no difficulty performing these work duties. Employer did not pay Employee for these work days. (almost a complicating factor).
Procedural History: Suspension petition filed by Employer.
WCJ 2005 decision denied relief as light duty job was not "available" to Employee, due to distance and unavailability of transportation.
WCAB 2006 decision, reverse and grant suspension as of initial job offer date.
Commonwealth Court 2007 Vacate WCAB order and remand for findings, "the focus of the inquiry is on the [claimant's] reason for losing the job, i.e. whether the loss of earnings was through 'no fault of his own'.
Penalty Petition filed by Employee as Employer did not reinstate TTD benefits upon Vacate order.
WCJ 2008 denied suspension as Employer did not meet burden to prove Employee lost his job through bad faith. (I thought he abandoned job?).
Penalty was denied as decision was not "complete" due to need for additional findings.
WCAB 2010 affirmed WCJ, suspension is denied. Reversed WCJ regarding penalty payment.
Commonwealth Court 2013 decision
This opinion provides a good review of:
1.the burden of proof in a reinstatement versus suspension petition and
2. a review where the employee's employment separation is voluntary versus involuntary.
Here, Employee voluntarily left an available light duty position which was approved by his physician and performed without incident for 2- 3 days.
The reason he did not continue in this job was that the borrowed vehicle was no longer available to him.
His failure to continue to perform the light duty job was NOT due to any residual effects of the work injury.
As the Pa Supreme Court stated in Hertz-Penske, "the Act is not intended as a remedy where a claimant's 'loss [in earnings]' is due to factors other than such injury" 546 A.2d at 261.
Penalty petition award was affirmed. Supersedeas was not granted during appeal. Vacation of the suspension order placed the parties back to the status where employee was eligible for TTD benefits.
Remand by Commonwealth 2013 decision back to WCJ to make additional findings of fact regarding employee's rate of pay for light duty position and duration of that position, "crucial factors in determining whether claimant's compensation should be reduced or suspended". (this was still unknown from prior remand?)
PRACTICE POINTERS
THESE ARE SUGGESTIONS BASED SOLELY UPON REVIEW OF THIS OPINION AS I DID NOT REVIEW THE EVIDENTARY RECORD, I know from personal experience that the aappellate decision may not reflect the work that was performed or the arguments made by counsel during litigation.
1. Job Offer correspondence - attach physician approvals, if available.
1a. Job Description - review for completeness of information, although you may not avoid the claimant expression "uncertainty" re aspects of the job.
1b. In similar situations we prepared a video recording of the performance of the work duties so there is no ambiguity of the assigned tasks, the objects involved, the duration of tasks, etc.
2. Good practice to document the reason(s) for leaving available work. Here, there were no documented reasons relating to residual effects of the work injury.
2a. Also, one should document any work-related reasons, as the offending task may be eliminated and the job "re-offered".
3. Penalty award is difficult to accept, especially when you "win" the case. The best practice is to file for supersedeas of benefit payments during the appeal, at each level, going "up" and going"down". Admittedly I would have been tempted to argue that vacated order did not direct insurer to pay benefits during remand.
The Employee was entitled to a Penalty award, where the Employer/Insurer did not reinstate TTD benefits when the initial WCAB decison was vacated and remanded for further fact finding.
North Pittsburgh Drywall Co. Inc. v WCAB (Owen) was decided by the Commonwealth Court on January 9, 2013 in an opinion authored by Judge Cohn Jubelirer. (No. 1257 C.D. 2012).
Factual History: NCP issued for an October 2001 right wrist injury. Employer made an April 2003 light duty job offer of warehouse position, approved by Employee physician. Job was located 1.5 hours from residence, but was same location as regular job. Employee automobile had been repossessed after injury, so he borrowed his dad's vehicle and returned to light duty work for 2 or 3 days. (why do they not know the number of days at this point in the litigation?).
His father needed the vehicle, so Employee had no transportation and was unable to return. It was said he had no difficulty performing these work duties. Employer did not pay Employee for these work days. (almost a complicating factor).
Procedural History: Suspension petition filed by Employer.
WCJ 2005 decision denied relief as light duty job was not "available" to Employee, due to distance and unavailability of transportation.
WCAB 2006 decision, reverse and grant suspension as of initial job offer date.
Commonwealth Court 2007 Vacate WCAB order and remand for findings, "the focus of the inquiry is on the [claimant's] reason for losing the job, i.e. whether the loss of earnings was through 'no fault of his own'.
Penalty Petition filed by Employee as Employer did not reinstate TTD benefits upon Vacate order.
WCJ 2008 denied suspension as Employer did not meet burden to prove Employee lost his job through bad faith. (I thought he abandoned job?).
Penalty was denied as decision was not "complete" due to need for additional findings.
WCAB 2010 affirmed WCJ, suspension is denied. Reversed WCJ regarding penalty payment.
Commonwealth Court 2013 decision
This opinion provides a good review of:
1.the burden of proof in a reinstatement versus suspension petition and
2. a review where the employee's employment separation is voluntary versus involuntary.
Here, Employee voluntarily left an available light duty position which was approved by his physician and performed without incident for 2- 3 days.
The reason he did not continue in this job was that the borrowed vehicle was no longer available to him.
His failure to continue to perform the light duty job was NOT due to any residual effects of the work injury.
As the Pa Supreme Court stated in Hertz-Penske, "the Act is not intended as a remedy where a claimant's 'loss [in earnings]' is due to factors other than such injury" 546 A.2d at 261.
Penalty petition award was affirmed. Supersedeas was not granted during appeal. Vacation of the suspension order placed the parties back to the status where employee was eligible for TTD benefits.
Remand by Commonwealth 2013 decision back to WCJ to make additional findings of fact regarding employee's rate of pay for light duty position and duration of that position, "crucial factors in determining whether claimant's compensation should be reduced or suspended". (this was still unknown from prior remand?)
PRACTICE POINTERS
THESE ARE SUGGESTIONS BASED SOLELY UPON REVIEW OF THIS OPINION AS I DID NOT REVIEW THE EVIDENTARY RECORD, I know from personal experience that the aappellate decision may not reflect the work that was performed or the arguments made by counsel during litigation.
1. Job Offer correspondence - attach physician approvals, if available.
1a. Job Description - review for completeness of information, although you may not avoid the claimant expression "uncertainty" re aspects of the job.
1b. In similar situations we prepared a video recording of the performance of the work duties so there is no ambiguity of the assigned tasks, the objects involved, the duration of tasks, etc.
2. Good practice to document the reason(s) for leaving available work. Here, there were no documented reasons relating to residual effects of the work injury.
2a. Also, one should document any work-related reasons, as the offending task may be eliminated and the job "re-offered".
3. Penalty award is difficult to accept, especially when you "win" the case. The best practice is to file for supersedeas of benefit payments during the appeal, at each level, going "up" and going"down". Admittedly I would have been tempted to argue that vacated order did not direct insurer to pay benefits during remand.
Monday, January 14, 2013
2013 PA Maximum Compensation Rate
The Department of Labor & Industry has determined the Maximum Compensation Payable for a work injury occurring on or after January 1, 2013 shall be $917.00 per week.
For purposes of calculating the update to payments for medical treatment rendered on or after January 1, 2013, the percentage increase in the Statewide Average Weekly Wage is 3.3%.
For purposes of calculating the update to payments for medical treatment rendered on or after January 1, 2013, the percentage increase in the Statewide Average Weekly Wage is 3.3%.
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