Another multiple issue work comp case.
As I mentioned a few days ago, many work comp cases involve several factual and legal issues, both during the litigation and upon appellate review.
Here is another case which reflects a successful litigation strategy by the Employer and Insurer from the time of the claim petition to the termination of liability.
Rivers v. WCAB (Saunders House), No. 893 C.D. 2012, an unpublished memorandum opinion of a panel of the Commonwealth Court, authored by Judge Leavitt on March 15, 2013, addressed several issues.
ISSUES PRESENTED:
1. Concurrent employment earning calculation
2. Unreasonable contest, Attorney fee request
3. Penalty Failure to Accept/Deny within 21 days
4. Reasoned decision - remand
5. Claimant credibility- inconsistencies
6. Termination (full recovery) during claim petition appeal
Factual & Procedural Background
Employee was a part-time dietary server at Saunders House, a nursing home.
After 3 weeks of employment, she slipped on a wet floor and nearly fell (but did not fall).
2006 Injuries from the slip & "near fall" were diagnosed as:
i. Bilateral C5-6 radiculopathy,
ii. post traumatic cephalgia,
iii. cervical & lumber spine sprain/strain,
iv. aggravation of C5-6 degenerative disc syndrome,
v. lumbosacral spine radiculitis,
vi. chronic myofascial pain syndrome
[ again... fortunately she did not actually fall...]
1st WCJ Harris decision:
a. Found claimant and her physician credible.
b. Granted claim for total disability.
c. Granted concurrent employment wage calculation of $395.58.
d. Granted 20% penalty for failure to deny.
e. Granted attorney fees for unreasonable contest.
WCAB remand:
1. WCJ failed to resolve inconsistencies in claimant testimony regarding concurrent employment;
2. WCJ failed to issue a reasoned decision regarding how she assessed penalty and attorney fee.
Employer Subsequent Petitions:
* Employer filed a termination petition for full recovery in March 2008 based upon Dr. Brody IME.
*Employer filed a suspension petition based upon offer of pre-injury job in April 2008.
2nd WCJ Guyton (Harris retired)
a. Credibility, did not reassess, not a remand issue
b. Granted claim thru date of IME
b.1 granted Termination based on Employer medical evidence.
c. Reversed concurrent employment finding. Employee not credible. She did not prove she worked 2nd
full-time job at time of injury, wage records did not added up!
d. Reduced 20% penalty to 10% as 1st WCJ failed to consider after untimely denial, the Employer
medical evidence provided a reasonable basis.
e. Denied attorney fees as Employer medical evidence provided a reasonable contest.
WCAB & Commonwealth Court Affirm WCJ Guyton
a. Credibility Issues
2nd WCJ specifically noted she would not re-visit the original credibility determinations of 1st
WCJ, as that was beyond the scope of WCAB remand.
b. Award of Benefits
2nd WCJ awarded temporary total disability based upon her assessment of medical evidence.
Employer Medical Expert did not challenge the original description of injury found by 1st WCJ.
b.1 Termination order
Termination was appropriate based upon Employer medical evidence, which was found
credible by the 2nd WCJ as to Employee's condition in March of 2008.
Employer did not attempt to "go back in time" and re-litigate Employee status at the time of the
original work injury in 2006.
Employer was not required to show a "change in condition" to establish a right to a termination
order. (as required in a subsequent termination filing).
Employer met it's burden of proof to establish "that the claimant's disability has ceased or that any
current disability arises from a cause unrelated to the claimant's work injury".
see: Miller v. WCAB (PeopleLease Corp. et. al.) (Pa. Cmwlth. 2011).
Here, Employer did not file termination/suspension petitions to litigate an issue raised on appeal.
Employer petitions did not challenge the occurrence of the work injury, they challenged the
continuation of any work disability. This is permitted, even in light of Sharkey v. WCAB
(Tempo, Inc) (Pa. Cmwlth. 1999) which prohibits litigation of an identical issue already raised in
an appeal of a claim.
c. Concurrent Employment
It was Employee burden of proof to establish concurrent employment wages, at the time of injury.
Concurrent Employment must be "on-going" at the time of injury. see: Ostrawski v. WCAB (UPMC
Braddock Hospital (Pa. Cmwlth. 2009).
Claimant tax records did not support her claim of full-time 2nd job.
They proved she worked only part of the year, they did not prove concurrent.
WCJ could properly find her testimony not credible.
d. Reduction of 20% Penalty to 10%.
1st WCJ only considered untimely denial, she did not consider Employer contest became reasonable
with receipt of Employer medical evidence. An untimely denial was a violation of the Act,
however, the imposition of a penalty is not automatic, it is within the discretion of the WCJ.
Here there was no abuse of discretion, for the reasons stated.
see: Bruitco v. WCAB (US Airways Inc.) (Pa, Cmwlth. 2004)
e. Reasonable Contest
Employer medical evidence rendered the contest of claim petition to be reasonable, after initial
denial. Employer Medical expert questioned Employee total body pain symptoms in light of the
mechanism of injury. Employer medical evidence, if believed, would have disputed Employee's
claims.
Practice Pointers:
1. Injury description - obtain a Medical Expert exam to challenge the Employee description.
2. Obtain employment records and scrutinize concurrent employment claims.
3. Establish a reasonable basis via medical evidence as soon as possible.
4. Establish mitigating circumstances in any penalty situation. Remember the WCJ has discretion.
5. Do not delay your assertion of any Termination/Suspension/Modification remedies when a claim
petition appeal is pending appellate review.
6. Remember it is not a "reasoned decision" if the WCJ does not adequately explain findings.
Appeal!
Thursday, March 21, 2013
Tuesday, March 19, 2013
Precise Wording of Job Offer = Suspension
One of the characteristics of works' compensation cases is that they can involve several different concurrent petitions and various factual and legal issues. We refer to a case as being a good example of a "return to work" letter from the employer, when in fact, a decision may reflect several issues which were successfully handled by the employer.
Vyas v. WCAB (Tyco Healthcare/Confab/KOP), No. 894 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court, authored by Judge Friedman on March 12, 2013, presented such a case.
Issues Presented:
1. Return to work letter - amount of post injury wage offer
2. Penalty to failure to accept/deny claim within 21 days.
3. Attorney fee assessment for Unreasonable Contest
4. Utilization Review of medical treatments
5. Extent of medical treatment responsibiity
6. Employer witness testimony based upon Hearsay or personal knowledge.
Procedural Background
There were several petitions filed:
a. Claim Petition for lower back injury
b. Penalty petition for failure to accept/deny within 21 days.
c. Employee UR Review of Determination
d. Penalty petition for failure to pay medical expenses
Factual Background
May 9, 2007 injury, return to work, light duty until May 24, 2007.
September 2007 Employer medical evidence, diagnosis "lumber strain and sprain"
with release to light duty work.
October 2007 Employer job offer letter - RTW light duty at pre-injury weekly wage.
Employee did not accept light duty job offer.
Employee medical evidence, cannot RTW, diagnosis "herniated bulging disc".
Employer witness, Environmental, Health & Safety manager testified regarding job offer.
WCJ 1st Decision find:
Employee suffered a work related "lumbar strain and sprain".
AWW included overtime.
WCJ award partial disability benefits for light duty work dates and total disability until October job offer. Benefits were suspended based upon refusal of job offer.
WCJ - Employer contest of claim was reasonable.
Employee appeal.
WCAB remand for findings of ongoing partial disability based upon alleged difference in pre and post injury earnings. Also remand regarding reasonable contest issue.
WCJ 2nd Decision find:
RTW job offer would not have resulted in a wage loss.
Employer additional testimony documented it's policy to pay workers in modified duty, their "pre-injury average weekly wage, without wage loss". Employee objected to this testimony, arguing it was based upon hearsay, the knowledge of others.
WCJ found contest of claim petition was unreasonable up to date of job offer, then is was reasonable thereafter. Award of partial amount of fees requested.
Commonwealth Court decision:
Affirm Suspension order.
WCJ relied upon employer testimony, credible evidence that employee would not have a wage loss as the plain language of the job offer was for payment of the average weekly wage (which included overtime). Rejected Employee argument that job offer was for 40 hours at prior hourly rate.
Employer manager testimony was not hearsay evidence.
Hearsay evidence, properly objected to, is not competent evidence to support a finding of fact.
Here the WCJ found the witness credible as to his personal knowledge of the employer's policies, including his prior experience of returning injured workers to new positions.
Unreasonable Contest Attorney Fees.
Reasonable attorney fees are awarded against the employer as a cost under Section 440, 77 P.S. 996 unless the record establishes a reasonable basis for the contest. Here the employer's contest transitioned from unreasonable to reasonable as of the date of the modified work offer.
citing: Arnold v. WCAB (Baker Industries) 859 A.2d 866, 870 (Pa. Cmwlth. 2004).
On this basis it was appropriate for the WCJ to limit the attorney fee award.
Penalty petition for non-payment of medical expenses.
Employee argued there was an obvious causal relationship of medical bills to the work injury.
WCJ disagreed and denied penalty. Court affirmed
Denied because the medical billing statements included treatments beyond the accepted injury.
Employer medical witness was found credible for diagnosis of "lumber sprain and strain".
Employee medical witness diagnosis of "herniated bulging disc" was not credible.
Treatment bills were for "herniated disc, lesions, thoracic sprain and radiculpathy".
WCJ noted, these conditions were never found to be compensible.
"We find unavailing Claimant's argument that merely because the diagnosed injury and the additional injuries impacted the lower back, the additional injuries are obviously a natural and probable result of the established, work-related injury". slip opinion at page 13.
In the absence of an obvious connection, Employee had the burden to prove the additional injuries arose out of the work injury. The WCJ found employee medical evidence was not credible or persuasive on this point. As Employee did not meet his burden of proof, it was appropriate that the WCJ did not penalize Employer.
Utilization Review - Employee Petition for Review
Employer filed a Utilization Review request of treatment provided by Dr. Pierce
UR Physician Thomas determined treatment provided by Pierce was not reasonable and necessary.
Court rejected Employee argument that Thomas, an expert in pain medicine was in a difference field from Pierce, an expert in "pain management".
Section 306(f.1)(6)(i) of the Act, 77 P.S. 531 (6)(i), only requires the reviewer to be of the same or similar specialty. The WCJ did not err in crediting Thomas' testimony.
Employee argued treatments by Dr. Pierce was "palliative" care which may be considered reasonable and necessary treatment. That may be true, but here the WCJ rejected the treatments not because they were palliative, rather as:
- many of the therapies did not follow standard treatment protocol;
- the treatments lacked documentation in accord with Pa State Medical Guidelines;
- Dr. Pierce kept incomplete records.
Substantial evidence supported the finding to affirm the UR Determination.
Practice Pointer:
Review the case background with an experienced work comp attorney, early in case assessment, as there may be multiple remedies available and multiple legal issues, within each case.
This case is a good example of the multiple remedies sought by employee.
Vyas v. WCAB (Tyco Healthcare/Confab/KOP), No. 894 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court, authored by Judge Friedman on March 12, 2013, presented such a case.
Issues Presented:
1. Return to work letter - amount of post injury wage offer
2. Penalty to failure to accept/deny claim within 21 days.
3. Attorney fee assessment for Unreasonable Contest
4. Utilization Review of medical treatments
5. Extent of medical treatment responsibiity
6. Employer witness testimony based upon Hearsay or personal knowledge.
Procedural Background
There were several petitions filed:
a. Claim Petition for lower back injury
b. Penalty petition for failure to accept/deny within 21 days.
c. Employee UR Review of Determination
d. Penalty petition for failure to pay medical expenses
Factual Background
May 9, 2007 injury, return to work, light duty until May 24, 2007.
September 2007 Employer medical evidence, diagnosis "lumber strain and sprain"
with release to light duty work.
October 2007 Employer job offer letter - RTW light duty at pre-injury weekly wage.
Employee did not accept light duty job offer.
Employee medical evidence, cannot RTW, diagnosis "herniated bulging disc".
Employer witness, Environmental, Health & Safety manager testified regarding job offer.
WCJ 1st Decision find:
Employee suffered a work related "lumbar strain and sprain".
AWW included overtime.
WCJ award partial disability benefits for light duty work dates and total disability until October job offer. Benefits were suspended based upon refusal of job offer.
WCJ - Employer contest of claim was reasonable.
Employee appeal.
WCAB remand for findings of ongoing partial disability based upon alleged difference in pre and post injury earnings. Also remand regarding reasonable contest issue.
WCJ 2nd Decision find:
RTW job offer would not have resulted in a wage loss.
Employer additional testimony documented it's policy to pay workers in modified duty, their "pre-injury average weekly wage, without wage loss". Employee objected to this testimony, arguing it was based upon hearsay, the knowledge of others.
WCJ found contest of claim petition was unreasonable up to date of job offer, then is was reasonable thereafter. Award of partial amount of fees requested.
Commonwealth Court decision:
Affirm Suspension order.
WCJ relied upon employer testimony, credible evidence that employee would not have a wage loss as the plain language of the job offer was for payment of the average weekly wage (which included overtime). Rejected Employee argument that job offer was for 40 hours at prior hourly rate.
Employer manager testimony was not hearsay evidence.
Hearsay evidence, properly objected to, is not competent evidence to support a finding of fact.
Here the WCJ found the witness credible as to his personal knowledge of the employer's policies, including his prior experience of returning injured workers to new positions.
Unreasonable Contest Attorney Fees.
Reasonable attorney fees are awarded against the employer as a cost under Section 440, 77 P.S. 996 unless the record establishes a reasonable basis for the contest. Here the employer's contest transitioned from unreasonable to reasonable as of the date of the modified work offer.
citing: Arnold v. WCAB (Baker Industries) 859 A.2d 866, 870 (Pa. Cmwlth. 2004).
On this basis it was appropriate for the WCJ to limit the attorney fee award.
Penalty petition for non-payment of medical expenses.
Employee argued there was an obvious causal relationship of medical bills to the work injury.
WCJ disagreed and denied penalty. Court affirmed
Denied because the medical billing statements included treatments beyond the accepted injury.
Employer medical witness was found credible for diagnosis of "lumber sprain and strain".
Employee medical witness diagnosis of "herniated bulging disc" was not credible.
Treatment bills were for "herniated disc, lesions, thoracic sprain and radiculpathy".
WCJ noted, these conditions were never found to be compensible.
"We find unavailing Claimant's argument that merely because the diagnosed injury and the additional injuries impacted the lower back, the additional injuries are obviously a natural and probable result of the established, work-related injury". slip opinion at page 13.
In the absence of an obvious connection, Employee had the burden to prove the additional injuries arose out of the work injury. The WCJ found employee medical evidence was not credible or persuasive on this point. As Employee did not meet his burden of proof, it was appropriate that the WCJ did not penalize Employer.
Utilization Review - Employee Petition for Review
Employer filed a Utilization Review request of treatment provided by Dr. Pierce
UR Physician Thomas determined treatment provided by Pierce was not reasonable and necessary.
Court rejected Employee argument that Thomas, an expert in pain medicine was in a difference field from Pierce, an expert in "pain management".
Section 306(f.1)(6)(i) of the Act, 77 P.S. 531 (6)(i), only requires the reviewer to be of the same or similar specialty. The WCJ did not err in crediting Thomas' testimony.
Employee argued treatments by Dr. Pierce was "palliative" care which may be considered reasonable and necessary treatment. That may be true, but here the WCJ rejected the treatments not because they were palliative, rather as:
- many of the therapies did not follow standard treatment protocol;
- the treatments lacked documentation in accord with Pa State Medical Guidelines;
- Dr. Pierce kept incomplete records.
Substantial evidence supported the finding to affirm the UR Determination.
Practice Pointer:
Review the case background with an experienced work comp attorney, early in case assessment, as there may be multiple remedies available and multiple legal issues, within each case.
This case is a good example of the multiple remedies sought by employee.
Friday, March 15, 2013
Termination Remedy in Long-standing Lumbar Condition
The Employer's ability to secure a termination of workers' compensation liability, where the injured worker has a pre-existing non-occupational medical condition and the worker sustained a work injury to the same body region, is a recurring issue in work comp claims handling.
Another recurring issue is the extent of workers compensation liability based upon the description of accepted work injury. The description of the work injury is significant in a termination proceeding, as the Employer's examining medical expert must opine that the work related disability has ceased or that the remaining symptoms/disability are the result of a non-occupational condition.
Pleas v. WCAB (School District of Philadelphia), No. 1342 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Pellegrini on March 6, 2013 discussed these issues.
Factual & Procedural History
2002 Lumbar Laminectomy
July 2004 work injury, NCP describes "lower back strain and sprain".
March 2005 Lumbar laminectomy
November 2005 history of "pop" in back while at home
October 2008 Impairment Rating Determination 25%
July 2009 IME full recovery, Richard G. Schmidt M.D.
January 2010 Termination petition filed
February 2010 lumbar spine stimulator implanted
Employee medical evidence
Richard H. Kaplan M.D. treated employee since March 2007 for diagnoses of an aggravation underlying degenerative joint disease of the spine and recurrent disc herniation.
He also diagnosed failed low back surgery syndrome and chronic pain.
He recommended spinal cord stimulator, as necessitated by the work injury.
He acknowledged there was a long-standing history of degenerative lumbar findings.
He opined employee was totally disabled as a result of the work injury.
He did not compare employee's prior lumber MRI studies, pre-injury and post-injury.
Employer Medical Evidence
Richard G. Schmidt M.D. examined employee in 2008 and 2009.
Employee history was of lower back symptoms since the early 1990's.
Physical exam was improved 2008 to 2009.
Pre-Injury MRI February 2002 showed L5-S1 left lateral herniation
MRI August 2003 showed L4-5 left disc herniation, with post-op changes at L5-S1
MRI February 2004 showed L4-5 left lateral herniation, with post-op changes at L5-S1
*** There were no disc abnormalities, pathologies or injuries on any of the post-work injury MRIs that were not present on the pre-work injury MRIs.
Dr Schmidt opined that employee fully recovered from the work related lower back strain and sprain.
WCJ Decision
Termination granted. Dr. Kaplan was not credible to support diagnosis of aggravation of underlying degenerative joint disease of the spine as there was no evidence to suggest that claimant's work injury caused or aggravated any disc pathology.
He did not review and compare the pre-injury and post-injury MRI test results.
WCJ found the 2005 lumber surgery was not causally-related to the work injury, based upon review of the pre and post injury scans.
Commonwealth Court discussion
Employee argued WCJ capriciously disregarded competent medical evidence.
He had 2005 surgery due to aggravation of pre-existing condition... it was undisputed he suffered from post-laminectomy syndrome.
No, the accepted work injury was " lower back strain and sprain".
There was no claim being made or evidence of record to support a finding that the NCP was materially incorrect or to warrant amending the NCP to include disc pathology at any level including L4-5 and L5-S1. The WCJ specifically found no causal relation between the work injury and 2005 surgery.
[slip opinion pages 6-7 citing WCJ finding #8].
Whether employee was fully recovered from unrelated 2005 surgery was irrelevant to this termination determination.
There was no capricious disregard of competent medical evidence, rather the WCJ made necessary credibility determinations, which are supported by the record. No error here.
Practice Pointers:
1. Termination remedy is available where work related condition has ceased. Before the IME,
document the extent of the work injury. Has the description of injury been amended by agreement or
WCJ decision?
2. Take the extra time and expense to have the prior diagnostic test films available for review and
comment by your medical expert.
Another recurring issue is the extent of workers compensation liability based upon the description of accepted work injury. The description of the work injury is significant in a termination proceeding, as the Employer's examining medical expert must opine that the work related disability has ceased or that the remaining symptoms/disability are the result of a non-occupational condition.
Pleas v. WCAB (School District of Philadelphia), No. 1342 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Pellegrini on March 6, 2013 discussed these issues.
Factual & Procedural History
2002 Lumbar Laminectomy
July 2004 work injury, NCP describes "lower back strain and sprain".
March 2005 Lumbar laminectomy
November 2005 history of "pop" in back while at home
October 2008 Impairment Rating Determination 25%
July 2009 IME full recovery, Richard G. Schmidt M.D.
January 2010 Termination petition filed
February 2010 lumbar spine stimulator implanted
Employee medical evidence
Richard H. Kaplan M.D. treated employee since March 2007 for diagnoses of an aggravation underlying degenerative joint disease of the spine and recurrent disc herniation.
He also diagnosed failed low back surgery syndrome and chronic pain.
He recommended spinal cord stimulator, as necessitated by the work injury.
He acknowledged there was a long-standing history of degenerative lumbar findings.
He opined employee was totally disabled as a result of the work injury.
He did not compare employee's prior lumber MRI studies, pre-injury and post-injury.
Employer Medical Evidence
Richard G. Schmidt M.D. examined employee in 2008 and 2009.
Employee history was of lower back symptoms since the early 1990's.
Physical exam was improved 2008 to 2009.
Pre-Injury MRI February 2002 showed L5-S1 left lateral herniation
MRI August 2003 showed L4-5 left disc herniation, with post-op changes at L5-S1
MRI February 2004 showed L4-5 left lateral herniation, with post-op changes at L5-S1
*** There were no disc abnormalities, pathologies or injuries on any of the post-work injury MRIs that were not present on the pre-work injury MRIs.
Dr Schmidt opined that employee fully recovered from the work related lower back strain and sprain.
WCJ Decision
Termination granted. Dr. Kaplan was not credible to support diagnosis of aggravation of underlying degenerative joint disease of the spine as there was no evidence to suggest that claimant's work injury caused or aggravated any disc pathology.
He did not review and compare the pre-injury and post-injury MRI test results.
WCJ found the 2005 lumber surgery was not causally-related to the work injury, based upon review of the pre and post injury scans.
Commonwealth Court discussion
Employee argued WCJ capriciously disregarded competent medical evidence.
He had 2005 surgery due to aggravation of pre-existing condition... it was undisputed he suffered from post-laminectomy syndrome.
No, the accepted work injury was " lower back strain and sprain".
There was no claim being made or evidence of record to support a finding that the NCP was materially incorrect or to warrant amending the NCP to include disc pathology at any level including L4-5 and L5-S1. The WCJ specifically found no causal relation between the work injury and 2005 surgery.
[slip opinion pages 6-7 citing WCJ finding #8].
Whether employee was fully recovered from unrelated 2005 surgery was irrelevant to this termination determination.
There was no capricious disregard of competent medical evidence, rather the WCJ made necessary credibility determinations, which are supported by the record. No error here.
Practice Pointers:
1. Termination remedy is available where work related condition has ceased. Before the IME,
document the extent of the work injury. Has the description of injury been amended by agreement or
WCJ decision?
2. Take the extra time and expense to have the prior diagnostic test films available for review and
comment by your medical expert.
Wednesday, March 13, 2013
Hearing Loss Claims - a Successful Defense Strategy
A worker may file for disability benefits for permanent loss of hearing caused by long-term exposure to hazardous occupational noise. Benefits are payable according to a formula. See Section 306(c)(8).
Whether the worker has been exposed to hazardous occupational noise
OR
whether the employee has a long-term exposure to occupational noise,
is an affirmative defense of the Employer, these are not elements of the worker's burden of proof.
Hazardous occupational noise is defined as: noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Standards, 29 CFR 1910.95...
exposure exceeding ninety decibels (90 dB) for an 8 hour day. WCA Section 105.4.
Long-term exposure means exposure to noise exceeding the permissible daily exposure for at least 3 days each week for 40 weeks of one year. WCA Section 105.6.
Aquilino v. WCAB (Philadelphia Gas Works), No. 1599 C.D. 2012, an unpublished memorandum decision of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on March 11, 2013 reviewed these issues.
Factual & Procedural History
Employee worked for Employer from 1978 until December of 2007 when he suffered a compensable work related back injury. He did not return to work.
In April of 2009 he filed a claim for bilateral hearing loss.
Occupational exposure to noise included:
- two years in the streets department using pneumatic tools and heavy equipment
- twenty one years in field service (streets dept.) in loud commercial buildings
- three-four years in the meter shop.
The meter shop was the subject of testimony and audiometric testing.
Employee worked at an area adjacent to the "prover meter" which was "very loud".
He worked with pneumatic tools all day.
Medical Evidence
Employee medical expert Aaron Shapiro M.D. performed audiological testing in January 2009 which showed 29.4% impairment. He related this hearing loss to the work history of noise exposure.
Employer medical expert Lee Rowe M.D. performed audiological testing. He obtained a history of co-morbid factors related to hearing loss, including smoking.
He opined employee hearing loss was consistent with age related presbycusis, not occupational noise exposure for 2 reasons:
1st there was an accelerated deterioration of audiometric results in the 8 months since Shapiro's tests
2nd once he was removed from work noise there should be no further work related deterioration.
Employer Testimony
Shop Superintendent Ottinger testified regarding work processes and timing of noise creating activity.
He described work area and distance from machines. Hearing protection was always available.
Safety Manager Bright testified regarding field service jackhammer use and hearing protection.
Industrial Hygienist Allhouse testified regarding sound level testing of co-workers in employee work areas. Time weighted average exposure figures were 66.6 dBA over an 8.5 hour sampling period.
This was below the OSHA 90 dBA threshold hazardous noise level.
WCJ decision
Found Employer witnesses were credible, Employee testimony was rejected.
Employee did not meet his burden to establish a compensible hearing loss.
Employer met its burden to establish its affirmative defense.
Commonwealth Court affirmed claim denial.
1. Employee argue - employer medical evidence deducted a portion of hearing impairment for presbycusis, in conflict with Pa. Supreme Court at LTV Steel Co. v. WCAB (Morenza (2000).
No, Here Employer medical expert did not allocate a portion of loss to presbycusis and a portion to work exposure, rather he stated Employee exhibits evidence of an accelerated hearing loss consistent with presbycusis and not secondary to occupational noise exposure.
2. Employer affirmative defense evidence, dosimeter readings were not adequate under Joy Mining Machinery Co. v. WCAB (Zerres) Cmwlth. 2010) as:
a. tests were performed 2 years after employee ceased work,
b. worker was not performing employee's mechanic job,
c. readings were only one day,
d. sound-proofing material was not in place when employee worked.
No, here, unlike Joy, WCJ found employer's evidence reflected Claimant's individual exposure."
3. Employee argue WCJ erred in denying claim and not determining whether employee had a [threshold] 10% bilateral hearting loss and whether he was exposed to [any] occupational noise.
No, Employee has the burden to establish a 10% or more, permanent hearing loss, caused by long term exposure to hazardous occupational noise.
Here, Employee did not establish a work related loss by credible evidence. He is not entitled to a "presumption" of causation, just because his hearing loss exceeds 10%.
Practice Pointers:
1. Determine which employer witnesses can establish the work conditions that existed at the time of
the Claimant's employment.
2. Determine if any prior audiometric testing is available to document the work environment during
claimant's employment years.
3. Determine if the work environment can be "recreated" for current testing.
4. Medical Expert Witness must be familiar with the Employee burden of proof and the Employer
proof of an affirmative defense.
This case reflects a thorough job of identifying and presenting witnesses with a detailed knowledge of the work environment during claimant's work years. This allowed the WCJ to find as a fact that the evidence reflected claimant's work exposure.
See also a prior unreported "companion" case at: Stallings v. WCAB (Philadelphia Gas Works)
Pa. Cmwlth. No. 296 C.D. 2012 filed September 7, 2012 by Judge Pellegrini.
Whether the worker has been exposed to hazardous occupational noise
OR
whether the employee has a long-term exposure to occupational noise,
is an affirmative defense of the Employer, these are not elements of the worker's burden of proof.
Hazardous occupational noise is defined as: noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Standards, 29 CFR 1910.95...
exposure exceeding ninety decibels (90 dB) for an 8 hour day. WCA Section 105.4.
Long-term exposure means exposure to noise exceeding the permissible daily exposure for at least 3 days each week for 40 weeks of one year. WCA Section 105.6.
Aquilino v. WCAB (Philadelphia Gas Works), No. 1599 C.D. 2012, an unpublished memorandum decision of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on March 11, 2013 reviewed these issues.
Factual & Procedural History
Employee worked for Employer from 1978 until December of 2007 when he suffered a compensable work related back injury. He did not return to work.
In April of 2009 he filed a claim for bilateral hearing loss.
Occupational exposure to noise included:
- two years in the streets department using pneumatic tools and heavy equipment
- twenty one years in field service (streets dept.) in loud commercial buildings
- three-four years in the meter shop.
The meter shop was the subject of testimony and audiometric testing.
Employee worked at an area adjacent to the "prover meter" which was "very loud".
He worked with pneumatic tools all day.
Medical Evidence
Employee medical expert Aaron Shapiro M.D. performed audiological testing in January 2009 which showed 29.4% impairment. He related this hearing loss to the work history of noise exposure.
Employer medical expert Lee Rowe M.D. performed audiological testing. He obtained a history of co-morbid factors related to hearing loss, including smoking.
He opined employee hearing loss was consistent with age related presbycusis, not occupational noise exposure for 2 reasons:
1st there was an accelerated deterioration of audiometric results in the 8 months since Shapiro's tests
2nd once he was removed from work noise there should be no further work related deterioration.
Employer Testimony
Shop Superintendent Ottinger testified regarding work processes and timing of noise creating activity.
He described work area and distance from machines. Hearing protection was always available.
Safety Manager Bright testified regarding field service jackhammer use and hearing protection.
Industrial Hygienist Allhouse testified regarding sound level testing of co-workers in employee work areas. Time weighted average exposure figures were 66.6 dBA over an 8.5 hour sampling period.
This was below the OSHA 90 dBA threshold hazardous noise level.
WCJ decision
Found Employer witnesses were credible, Employee testimony was rejected.
Employee did not meet his burden to establish a compensible hearing loss.
Employer met its burden to establish its affirmative defense.
Commonwealth Court affirmed claim denial.
1. Employee argue - employer medical evidence deducted a portion of hearing impairment for presbycusis, in conflict with Pa. Supreme Court at LTV Steel Co. v. WCAB (Morenza (2000).
No, Here Employer medical expert did not allocate a portion of loss to presbycusis and a portion to work exposure, rather he stated Employee exhibits evidence of an accelerated hearing loss consistent with presbycusis and not secondary to occupational noise exposure.
2. Employer affirmative defense evidence, dosimeter readings were not adequate under Joy Mining Machinery Co. v. WCAB (Zerres) Cmwlth. 2010) as:
a. tests were performed 2 years after employee ceased work,
b. worker was not performing employee's mechanic job,
c. readings were only one day,
d. sound-proofing material was not in place when employee worked.
No, here, unlike Joy, WCJ found employer's evidence reflected Claimant's individual exposure."
3. Employee argue WCJ erred in denying claim and not determining whether employee had a [threshold] 10% bilateral hearting loss and whether he was exposed to [any] occupational noise.
No, Employee has the burden to establish a 10% or more, permanent hearing loss, caused by long term exposure to hazardous occupational noise.
Here, Employee did not establish a work related loss by credible evidence. He is not entitled to a "presumption" of causation, just because his hearing loss exceeds 10%.
Practice Pointers:
1. Determine which employer witnesses can establish the work conditions that existed at the time of
the Claimant's employment.
2. Determine if any prior audiometric testing is available to document the work environment during
claimant's employment years.
3. Determine if the work environment can be "recreated" for current testing.
4. Medical Expert Witness must be familiar with the Employee burden of proof and the Employer
proof of an affirmative defense.
This case reflects a thorough job of identifying and presenting witnesses with a detailed knowledge of the work environment during claimant's work years. This allowed the WCJ to find as a fact that the evidence reflected claimant's work exposure.
See also a prior unreported "companion" case at: Stallings v. WCAB (Philadelphia Gas Works)
Pa. Cmwlth. No. 296 C.D. 2012 filed September 7, 2012 by Judge Pellegrini.
Monday, March 11, 2013
WC Credit for Private Disability Insurance Benefits
An Employer may be entitled to a credit against the work comp liability, for payments made to an injured employee through an employer-funded benefit plan.
A 3 part test will determine if the credit is available against the work comp liability.
Frank v. WCAB (Marathon PT Inc), No. 1705 C.D. 2012, an unreported memorandum opinion of the Commonwealth Court of Pennsylvania, authored by Judge Cohn-Jubelirer on March 4, 2013 addressed this issue.
Factual & Procedural History
Employee was the president and owner of a subchapter S corporation, through which he performed professional services as a physical therapist.
2004 Employee had a left knee surgery, a total knee replacement procedure.
March 2008 Injury, Employee had a left knee contusion, sprain & strain. NCP issued.
July 2008 surgery due to breakdown of knee apparatus and progressive degeneration of knee.
September 2008 Employee return to work.
November 2008 Employee stop work and close business due to knee pain and instability.
Employer Termination Petition filed.
Employee Review petition filed.
Review Petition to add reconstructive knee surgery to NCP description of contusion, sprain & strain.
In addition to WC total disability benefits, Employee received $7,050 per month from disability insurance policy, which premiums were paid by Employer Corporation.
WC Insurer was unaware of disability insurance payments until July 2009 hearing regarding Termination and Review petitions.
Employer accountant testify regarding subchapter S corporation taxation of disability insurance premiums.
WCJ found WC Insurer was entitled to a credit for concurrent disability insurance benefits as the premiums were paid by the Employer Corporation.
WCJ granted Employer Termination petition.
WCJ ordered Employee to reimburse WC insurer for the amount of concurrent benefits paid in past... as there were could be no "future credit" as there were no future benefits payable after the termination order.
Employee appealed the Credit/Re-Payment issue.
[ no appeal re termination or denial of review injury description]
Commonwealth Court Decision
AFFIRMED Credit/ Re-Payment order.
Reasoning---
Employee argued relief is limited to a subrogation claim by the Disability insurer, payment to the WC insurer is not allowed by Act.
Court says credit is allowed where Employer makes payments in lieu of compensation for a work injury. See: Kuhn v. WCAB (Leader Nursing Centers Inc.) (Pa. Cmwlth. 1986).
Section 319 subrogation could apply to the Disability insurer, however they did not seek subrogation, so credit is appropriate.
An Employer may be entitled to a credit for employer-funded benefit payments to inured workers where those payments were made in lieu of work comp
OR
where the employer has already paid compensation that is due and a credit will avoid a double recovery.
A credit is not available is the worker is required to deplete exhaustible benefits, to which he would be entitled for a non-work illness, suck as sick leave.
Here the private disability policy premium was paid by the Subchapter S corporation.
All 3 criteria for a credit were met:
1st The employer purchased the insurance policy,
2nd Payments were for a disability arising in the employment,
3rd The payments were not wages for employment.
[See: Humphrey v. WCAB (Supermarket Service) (Pa. Cmwlth. 1986).]
A credit is due as to the WC Insurer for all periods during which claimant received disability policy benefits. As the WC Insurer paid claimant, claimant must re-pay the WC insurer. Claimant has no right to a double recovery. WC insurer remedy was not limited to a supersedeas fund reimbursement request, remedy was re-payment!
Practice Pointers:
1. Question claimant regarding the receipt of any insurance benefits during work related disability, then investigate whether a credit is available. It may not be readily apparent at the outset that a credit is available.
2. Use the LIBC 750, 756 & 760 forms to collect information from injured workers regarding any benefit payments.
3. Do so, even after the initial investigation and/or litigation of a claim.
A 3 part test will determine if the credit is available against the work comp liability.
Frank v. WCAB (Marathon PT Inc), No. 1705 C.D. 2012, an unreported memorandum opinion of the Commonwealth Court of Pennsylvania, authored by Judge Cohn-Jubelirer on March 4, 2013 addressed this issue.
Factual & Procedural History
Employee was the president and owner of a subchapter S corporation, through which he performed professional services as a physical therapist.
2004 Employee had a left knee surgery, a total knee replacement procedure.
March 2008 Injury, Employee had a left knee contusion, sprain & strain. NCP issued.
July 2008 surgery due to breakdown of knee apparatus and progressive degeneration of knee.
September 2008 Employee return to work.
November 2008 Employee stop work and close business due to knee pain and instability.
Employer Termination Petition filed.
Employee Review petition filed.
Review Petition to add reconstructive knee surgery to NCP description of contusion, sprain & strain.
In addition to WC total disability benefits, Employee received $7,050 per month from disability insurance policy, which premiums were paid by Employer Corporation.
WC Insurer was unaware of disability insurance payments until July 2009 hearing regarding Termination and Review petitions.
Employer accountant testify regarding subchapter S corporation taxation of disability insurance premiums.
WCJ found WC Insurer was entitled to a credit for concurrent disability insurance benefits as the premiums were paid by the Employer Corporation.
WCJ granted Employer Termination petition.
WCJ ordered Employee to reimburse WC insurer for the amount of concurrent benefits paid in past... as there were could be no "future credit" as there were no future benefits payable after the termination order.
Employee appealed the Credit/Re-Payment issue.
[ no appeal re termination or denial of review injury description]
Commonwealth Court Decision
AFFIRMED Credit/ Re-Payment order.
Reasoning---
Employee argued relief is limited to a subrogation claim by the Disability insurer, payment to the WC insurer is not allowed by Act.
Court says credit is allowed where Employer makes payments in lieu of compensation for a work injury. See: Kuhn v. WCAB (Leader Nursing Centers Inc.) (Pa. Cmwlth. 1986).
Section 319 subrogation could apply to the Disability insurer, however they did not seek subrogation, so credit is appropriate.
An Employer may be entitled to a credit for employer-funded benefit payments to inured workers where those payments were made in lieu of work comp
OR
where the employer has already paid compensation that is due and a credit will avoid a double recovery.
A credit is not available is the worker is required to deplete exhaustible benefits, to which he would be entitled for a non-work illness, suck as sick leave.
Here the private disability policy premium was paid by the Subchapter S corporation.
All 3 criteria for a credit were met:
1st The employer purchased the insurance policy,
2nd Payments were for a disability arising in the employment,
3rd The payments were not wages for employment.
[See: Humphrey v. WCAB (Supermarket Service) (Pa. Cmwlth. 1986).]
A credit is due as to the WC Insurer for all periods during which claimant received disability policy benefits. As the WC Insurer paid claimant, claimant must re-pay the WC insurer. Claimant has no right to a double recovery. WC insurer remedy was not limited to a supersedeas fund reimbursement request, remedy was re-payment!
Practice Pointers:
1. Question claimant regarding the receipt of any insurance benefits during work related disability, then investigate whether a credit is available. It may not be readily apparent at the outset that a credit is available.
2. Use the LIBC 750, 756 & 760 forms to collect information from injured workers regarding any benefit payments.
3. Do so, even after the initial investigation and/or litigation of a claim.
Thursday, March 7, 2013
Subsequent Termination Petitions
When an Employer is unsuccessful in the litigation of a Termination petition, the Employer may pursue the remedy of termination in a subsequent proceeding. The Employer burden of proof is to establish by unequivocal and competent medical evidence that the workers' disability has ceased or that any remaining disability is not related to the work injury.
An interesting issue arises when the second Employer medical expert does not describe the "work injury" in the same manner as the prior WCJ decision. This discrepancy may imperil the termination request.
Julio PazyMino v. WCAB (Crime Prevention Association) at No. 1659 C. D. 2012, an unreported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Colins on
February 26, 2013 discussed this issue.
*The procedural history of this case is lengthy. For this discussion, we will abbreviate the details*
Procedural & Factual History
June 2000 Injury, trip and fall. Employee was director of this non-profit in a sedentary.
He continued to work and receive medical care.
September 2003 He reduced his work hours and filed a Modification petition.
An NCP was issued for a "Lumbar strain & sprain".
December 2003 Employer files Termination petition.
October 2004 First WCJ decision, deny Termination.
Modification granted, Partial disability benefits awarded.
WCJ found injury caused pre-existing stenosis to become "truly symptomatic with nerve involvement", radiculopathy was evidence of recent trauma, not from a chronic problem.
July 2006 Employee work 1.5 hours per day, placed on inactive status, Total disability was paid.
April 2006 IME Dr. Malumed, Employee fully recovered.
Employer file Termination petition.
April 2008 Second WCJ decision, grant Termination.
Found Employee recovered from lumbar strain & sprain, and radiculopathy.
Problem: Second WCJ did not consider "stenosis" to be part of work injury.
February 2010 Commonwealth Court vacated & remanded termination petition as Second WCJ did not include aggravation of pre-existing stenosis as part of accepted work injury.
February 2011 Second WCJ remand order, new findings, grant Termination.
Based upon Dr. Malumad opinions Employee fully recovered from work injuries including aggravation of stenosis.
Employee still had chronic back pain from pre-existing stenosis BUT it was the result of the normal progression of his pre-existing stenosis, not the work-related "aggravation" of the stenosis.
Commonwealth Court affirmed the Termination order.
Second WCJ found Employer medical evidence was credible.
Employee argued Dr Malumed testimony was not legally competent to support a termination as he did not acknowledge the accepted work injuries. He did not believe that Employee sustained any injury beyond the lumbar strain & sprain.
An Employer may not re-litigate the scope or extent of the accepted injury in a subsequent proceeding.
A Medical opinion is not legally competant if it does not acknowledge the accepted work injury and opine the worker recovered from those injuries.
Dr Malumed specifically addressed all of the components of the accepted work injuries - the radiculopathy; the aggravation of stenosis - he opined Employee fully recovered, when asked a hypothetical question .
Dr. Malumed apparently held the opinion that Employee's chronic back pain was the result of the progressive worsening of the pre-exisiting stenosis, he did not relate those symptoms to the work trauma.
These opinions were deemed to not conflict, as the First WCJ expanded the work injury to "only" include the pre-existing stenosis become "symptomatic". The work injury did not change or aggravate the stenosis itself, it only made it symptomatic. Dr. Malumed believed there was a full recovery from the work related injuries, employee's condition had improved, there were no more radicular findings.
"There is no requirement, however, that the medical expert believe that the claimant actually suffered the accepted injuries or believe that the accepted work injuries were in fact work-related."
slip opinion page 10.
***{My understanding of past case law was that the medical expert had to accept the description of
the accepted work injury... this case puts a new twist on that analysis}
"It is well established that medical expert testimony that specifically addresses the accepted work injuries and unequivocally opines that the claimant has recovered from those injuries is competent and sufficient to support the termination of benefits, even though the expert does not believe the injuries occurred or were the result of the work-related accident."
slip opinion page 10, citing O'Neill v. WCAB (News Corp. Ltd.)(Pa. Cmwlth. 2011).
Practice Pointers:
1. It is imperative that the examining medical expert have an accurate description of the work injury, including any modifications by prior agreements or WCJ decisions. Do not rely upon the accuracy of the original NCP description.
2. A prior WCJ decision may "modify" and/or "amend" the description of injury, based upon the evidence presented, even in the absence of a Claimant Review petition.
3. When pursuing a subsequent Termination petition, assess whether there is an advantage to having the same medical expert perform serial examinations and be in the position to comment upon any change in the worker's physical condition.
An interesting issue arises when the second Employer medical expert does not describe the "work injury" in the same manner as the prior WCJ decision. This discrepancy may imperil the termination request.
Julio PazyMino v. WCAB (Crime Prevention Association) at No. 1659 C. D. 2012, an unreported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Colins on
February 26, 2013 discussed this issue.
*The procedural history of this case is lengthy. For this discussion, we will abbreviate the details*
Procedural & Factual History
June 2000 Injury, trip and fall. Employee was director of this non-profit in a sedentary.
He continued to work and receive medical care.
September 2003 He reduced his work hours and filed a Modification petition.
An NCP was issued for a "Lumbar strain & sprain".
December 2003 Employer files Termination petition.
October 2004 First WCJ decision, deny Termination.
Modification granted, Partial disability benefits awarded.
WCJ found injury caused pre-existing stenosis to become "truly symptomatic with nerve involvement", radiculopathy was evidence of recent trauma, not from a chronic problem.
July 2006 Employee work 1.5 hours per day, placed on inactive status, Total disability was paid.
April 2006 IME Dr. Malumed, Employee fully recovered.
Employer file Termination petition.
April 2008 Second WCJ decision, grant Termination.
Found Employee recovered from lumbar strain & sprain, and radiculopathy.
Problem: Second WCJ did not consider "stenosis" to be part of work injury.
February 2010 Commonwealth Court vacated & remanded termination petition as Second WCJ did not include aggravation of pre-existing stenosis as part of accepted work injury.
February 2011 Second WCJ remand order, new findings, grant Termination.
Based upon Dr. Malumad opinions Employee fully recovered from work injuries including aggravation of stenosis.
Employee still had chronic back pain from pre-existing stenosis BUT it was the result of the normal progression of his pre-existing stenosis, not the work-related "aggravation" of the stenosis.
Commonwealth Court affirmed the Termination order.
Second WCJ found Employer medical evidence was credible.
Employee argued Dr Malumed testimony was not legally competent to support a termination as he did not acknowledge the accepted work injuries. He did not believe that Employee sustained any injury beyond the lumbar strain & sprain.
An Employer may not re-litigate the scope or extent of the accepted injury in a subsequent proceeding.
A Medical opinion is not legally competant if it does not acknowledge the accepted work injury and opine the worker recovered from those injuries.
Dr Malumed specifically addressed all of the components of the accepted work injuries - the radiculopathy; the aggravation of stenosis - he opined Employee fully recovered, when asked a hypothetical question .
Dr. Malumed apparently held the opinion that Employee's chronic back pain was the result of the progressive worsening of the pre-exisiting stenosis, he did not relate those symptoms to the work trauma.
These opinions were deemed to not conflict, as the First WCJ expanded the work injury to "only" include the pre-existing stenosis become "symptomatic". The work injury did not change or aggravate the stenosis itself, it only made it symptomatic. Dr. Malumed believed there was a full recovery from the work related injuries, employee's condition had improved, there were no more radicular findings.
"There is no requirement, however, that the medical expert believe that the claimant actually suffered the accepted injuries or believe that the accepted work injuries were in fact work-related."
slip opinion page 10.
***{My understanding of past case law was that the medical expert had to accept the description of
the accepted work injury... this case puts a new twist on that analysis}
"It is well established that medical expert testimony that specifically addresses the accepted work injuries and unequivocally opines that the claimant has recovered from those injuries is competent and sufficient to support the termination of benefits, even though the expert does not believe the injuries occurred or were the result of the work-related accident."
slip opinion page 10, citing O'Neill v. WCAB (News Corp. Ltd.)(Pa. Cmwlth. 2011).
Practice Pointers:
1. It is imperative that the examining medical expert have an accurate description of the work injury, including any modifications by prior agreements or WCJ decisions. Do not rely upon the accuracy of the original NCP description.
2. A prior WCJ decision may "modify" and/or "amend" the description of injury, based upon the evidence presented, even in the absence of a Claimant Review petition.
3. When pursuing a subsequent Termination petition, assess whether there is an advantage to having the same medical expert perform serial examinations and be in the position to comment upon any change in the worker's physical condition.
Monday, March 4, 2013
Issuing the Notice of Ability to Return to Work form - LIBC 757
A Notice of Ability to Return to Work LIBC-757 must be issued when the Employer/Insurer receives medical evidence that Employee is able to return to work in any capacity. The Employer/Insurer must provide prompt written notice on a form prescribed by the Bureau.
[ See: 306(b)(3)].
The case law regarding "exceptions" to this rule continues to develop.
If the Modification/Suspension is based upon surveillance evidence (not medical evidence) or if the employee is found to be working, a notice form may not be required.
Burrell v. WCAB (Phila. Gas Works)(Pa. Cmwlth. 2004).
Slight modifications to an employee's work restrictions may not require a new form, where the employee is working. Ashman v. WCAB (Help Mates Inc.) (Pa. Cmwlth. 2010).
Zyskowski v. WCAB (Allied Services) No. 1665 C.D. 2012, an unreported panel decision of the Pennsylvania Commonwealth Court, authored by Judge Simpson on February 26, 2013,
addressed this issue.
Factual & Procedural History
A part-time certified nursing assistant injured her low back on October 6, 2009.
On the same day she was examined by a panel physician and released to return to modified work duties. Employee returned to perform a monitor position, an assignment where she would observe TV monitors at the nursing station. This position could be performed while sitting or standing.
Employee alleged difficulty with back pain from prolonged sitting.
Panel MD 1 released her to regular duty on November 13, 2009
Panel MD 2 released her to modified duty, 10lbs lifting on November 24, 2009.
Employee did not return to work after November 24, 2009.
She wrote to Employer she was exercising her right to seek her other medical care.
Employee testified she called off work with no MD excuse on the 14th, 15th, 17th, 21st and 22nd.
She stated she was "no call, no show" on the 27th, 30th and December 1st.
Employer witness stated the Disciplinary Policy was that two (2) consecutive "no calls, no shows" was grounds for termination.
Employee was terminated for violation of this policy.
WCJ decision
In Claim petition litigation the WCJ found a work injury occurred, but employee was not entitled to indemnity wage loss benefits as she was provided work within her capabilities and she voluntarily quit, resulting in her termination.
[ as an aside, employee medical witness did not state she was totally disabled or unable to perform the monitor position]
Commonwealth Court reasoning
Employee argued that Employer is required to issue a Notice of Ability to Return to Work on November 24, 2009, failing to do so, she did not have a "good faith" duty to return to work after that date. She is entitled to total disability benefits.
This argument was rejected.
"The clear purpose of Section 306(b)(3) is to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits".
slip opinion page 10, citing Burrell.
"...formal notice is not required where a claimant is actually performing work".
slip opinion page 11 citing Ashman.
Here, as in Ashman, this employee returned to work without receipt of any notice form.
She worked until she decided to not continue.
She was aware of her medical restrictions.
She was familiar with the monitor work duties.
She was not receiving benefits, so this was not a situation where there was an attempt to "change" her "existing" benefits based upon new medical information.
Practice Pointers:
1. In what seems to have become a secondary issue, the employer was successful in avoiding ongoing
disability benefits by (a) proving suitable work availability and (b) proving termination for cause.
2. IMO is is a good practice to always issue an LIBC 757 Notice when a medical report is
received which addresses the employee's work capabilities.
I like to have "one rule" to simplify these procedures and eliminate the necessity to evaluate the
need to issue/not issue a form in each case.
[ See: 306(b)(3)].
The case law regarding "exceptions" to this rule continues to develop.
If the Modification/Suspension is based upon surveillance evidence (not medical evidence) or if the employee is found to be working, a notice form may not be required.
Burrell v. WCAB (Phila. Gas Works)(Pa. Cmwlth. 2004).
Slight modifications to an employee's work restrictions may not require a new form, where the employee is working. Ashman v. WCAB (Help Mates Inc.) (Pa. Cmwlth. 2010).
Zyskowski v. WCAB (Allied Services) No. 1665 C.D. 2012, an unreported panel decision of the Pennsylvania Commonwealth Court, authored by Judge Simpson on February 26, 2013,
addressed this issue.
Factual & Procedural History
A part-time certified nursing assistant injured her low back on October 6, 2009.
On the same day she was examined by a panel physician and released to return to modified work duties. Employee returned to perform a monitor position, an assignment where she would observe TV monitors at the nursing station. This position could be performed while sitting or standing.
Employee alleged difficulty with back pain from prolonged sitting.
Panel MD 1 released her to regular duty on November 13, 2009
Panel MD 2 released her to modified duty, 10lbs lifting on November 24, 2009.
Employee did not return to work after November 24, 2009.
She wrote to Employer she was exercising her right to seek her other medical care.
Employee testified she called off work with no MD excuse on the 14th, 15th, 17th, 21st and 22nd.
She stated she was "no call, no show" on the 27th, 30th and December 1st.
Employer witness stated the Disciplinary Policy was that two (2) consecutive "no calls, no shows" was grounds for termination.
Employee was terminated for violation of this policy.
WCJ decision
In Claim petition litigation the WCJ found a work injury occurred, but employee was not entitled to indemnity wage loss benefits as she was provided work within her capabilities and she voluntarily quit, resulting in her termination.
[ as an aside, employee medical witness did not state she was totally disabled or unable to perform the monitor position]
Commonwealth Court reasoning
Employee argued that Employer is required to issue a Notice of Ability to Return to Work on November 24, 2009, failing to do so, she did not have a "good faith" duty to return to work after that date. She is entitled to total disability benefits.
This argument was rejected.
"The clear purpose of Section 306(b)(3) is to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits".
slip opinion page 10, citing Burrell.
"...formal notice is not required where a claimant is actually performing work".
slip opinion page 11 citing Ashman.
Here, as in Ashman, this employee returned to work without receipt of any notice form.
She worked until she decided to not continue.
She was aware of her medical restrictions.
She was familiar with the monitor work duties.
She was not receiving benefits, so this was not a situation where there was an attempt to "change" her "existing" benefits based upon new medical information.
Practice Pointers:
1. In what seems to have become a secondary issue, the employer was successful in avoiding ongoing
disability benefits by (a) proving suitable work availability and (b) proving termination for cause.
2. IMO is is a good practice to always issue an LIBC 757 Notice when a medical report is
received which addresses the employee's work capabilities.
I like to have "one rule" to simplify these procedures and eliminate the necessity to evaluate the
need to issue/not issue a form in each case.
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