The number of documents created and reviewed in the Pennsylvania Workers' Compensation system is voluminous. At times, errors occur in the processing and payment of wage loss benefits. [Let's leave discussion of medical expenses for another day].
Under-payment of benefits may be readily corrected by the issuance of an "amended" Supplemental Agreement, LIBC 337. Statutory interest is due on any delayed payment.
See: Section 406.1
"Over-payments" of benefits may be voluntarily corrected, by agreement of the parties. A Supplemental Agreement should be executed to memorialize this benefit change.
What does one do, when the Employee has been over-paid, and will not voluntarily agree to a benefit correction and repayment/credit payment?
File a Petition to Review Benefit Payments.
Commonwealth of PA/Department of Transportation v. WCAB (Noll), No. 819 C.D. 2013 & No. 907 C.D. 2013, is a reported decision of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on November 6, 2013, which addressed a benefit overpayment issue.
Factual and Procedural history
There were a series of compensation agreements and petitions which ultimately led to the scenario where benefits were overpaid to Employee.
These facts bear repeating, as they illustrate a manner in which benefit payment status may become confused, over the course of extended claims handling and multiple decisions.
June 1995 injury accepted by agreement.
AWW $863.84; TTD rate $509.
5 weeks disability followed by Suspension upon return-to-work with restrictions.
August 1997, Employee discharged, grievance filed, return-to-work at another position, lower salary.
July 1999 injury described as a "recurrence" 1995 injury.
Supplemental Agreement paid TTD at a new rate of $433.50 [not $509].
August 1999 return-to-work, modified duty position.(same rate of pay, suspension?)
June 2000, work no longer available, TTD reinstated by agreement, at the $433.50 rate!
*********************************************************************************
Employee filed a Petition for Review, arguing the Reinstated Benefits should be at 1995 rate, $509.
WCJ Decision March 2002
WCJ agrees with Employee,
(1) orders payment of $509 rate commencing June 2000.
(2) Unreasonable Contest quantum meruit fees were awarded,
"20% of all past due and owning benefits directed to claimant's counsel, not deducted from claimants proceeds".
(3) WCJ approved the contingent attorney fee agreement "to deduct 20% of the claimant's benefits and pay them directly to counsel".
Employer appealed, WCAB Affirmed.
*********************************************************************************
OK. Let's recap for a moment.
Paragraph (2) specifically states "past" benefits.
Paragraph (3) does not say "future" benefits ... so it may be mildly vague ... but it is not inconsistent with 2.
December 2004 Employer files Termination and Suspension petitions.
WCJ Decision March 2006
WCJ denies both petitions.
WCJ approved the 20% contingent attorney fee agreement, directing Employer to pay:
"reasonable counsel fees and litigation costs".
The WCJ did not make any findings of an unreasonable contest and Employee counsel did not submit a quantum meruit attorney fee exhibit in this portion of this case.
*********************************************************************************
April 2010 Employer files the instant REVIEW Petition.
Apparently Employer made an overpayment to Employee by paying a full TTD rate of $509 per week without any attorney fee deduction from March 2004 to December 2009.
Employer also paid a 20% attorney fee to Employee counsel of $101.80 which resulted in this overpayment.
The overpayment was $30,540.
The 20% attorney fee deduction should have been $101.80 per week.
Employee net benefit rate should have been $407.20.
WCJ Decision December 2010 in Employer Review Petition
Employer submitted computer printout documenting payments.
Employee counsel argues:
(1) it was not an overpayment, as the WCJ ordered 20% to be paid in addition to claimant benefit!
(2) if it was an overpayment, it was a Employer's unilateral mistake and cannot be recovered!
WCJ DENIED EMPLOYER'S REVIEW PETITION.
WHY?
(1) There was no overpayment! His prior order required payment of $509 to Employee.
(2) Even if it was an overpayment, Employer could not recoup the money.
(3) Recoupment is only allowed for a mathematical miscalculation or mistake in an agreement, citing Dollar Tree Stores Inc. (2007).
WCJ EXPLAINED:
WCJ said (i) he had ordered Employee to be paid at the rate of $509, which Employer did.
WCJ said (ii) he had ordered payment of counsel fees of 20%, over and above claimant's $509 rate.
WCJ said (iii) he ordered "new"payment of the quantum meruit itemization to Employee counsel for unreasonable contest of the Employer Review Petition.
[problem with iii, there was NO itemization, in re this petition].
*********************************************************************************
So, let's recap, Employer tried to correct a mistake,
Employer was denied any relief and,
Employer was assessed the additional cost of Employee attorney fees.
WCAB decision reversed the unreasonable contest award in the Employer review petition,
BUT denied Employer recoupment of overpayments, as there was no evidence that payments were made under a "mistaken belief".
The Dollar Tree Stores Inc. case was interpreted to require payments are made under a "mistaken belief", in order to allow a recoupment to Employer..
Commonwealth Court gets it "right"!
l. Did an overpayment occur? YES
Unreasonable contest attorney fees are paid pursuant to Section 440.
Section 440 requires the submission of an itemized quantum meruit fee statement demonstrating the time and effort required and actually expended.
An attorney fee award that simple "adds" 20% to claimant's weekly compensation indefinitely, does not (1) relate to the work actually done and (2) is not authorized by the Act.
The Court reviewed the prior 2002 WCJ order, which the WCJ apparently had trouble deciphering in 2010.
In March 2002 the WCJ ordered payments to Employee at $509 per week.
WCJ directed Employer to deduct 20%of Employee's benefits and pay them directly to counsel.
WCJ ordered quantum meruit attorney fees for an unreasonable contest of all past due benefits.
In 2010, the WCJ erred in holding that his 2002 order required Employer to pay an ongoing quantum meruit fee of 20% in addition to the full amount of benefits awarded to Employee.
ll. Can Employer Recoup the Overpayment? YES
The circumstances where recoupment from an Employee is permitted are varied.
Prior decisions have allowed recoupment to prevent a double recovery or unjust enrichment to an Employee.
Where an Employer miscalculated an AWW rate and did not discover the mistake for two years, recoupment was permitted to prevent an unjust enrichment. Fahringer (1987).
Section 413 of the Act allows the WCJ to modify an agreement which contains a material mistake.
In Dollar Tree Stores Inc., the reason the Employer request for recoupment was denied was because Employer paid disability benefits without issuing an NCP or compensation agreement! There was no agreement to modify, as authorized by Section 413.
In Mino (2010) recoupment was allowed where Employee was awarded and paid PPD benefits, when unbeknownst to the Insurer, the Employer had continued to pay Employee full salary, despite reduced work hours.
In Lucey (1999) recoupment was allowed to avoid unjust enrichment, where Employer paid claimant $140k to pay a hospital bill, believing that amount was necessary to cover that expense. Claimant negotiated a lower payment of $110k. As the $140k was a payments made under a "mistaken belief", a credit was allowed against future benefit payments.
Appellate case decisions support Employer's argument that recoupment has been allowed to correct agreements and in other circumstances, to prevent unjust enrichment.
HERE Employer made payments under a mistaken interpretation of the WCJ orders.
This allows an argument for recoupment.
This case was remanded for a determination of a just and manageable sum for the weekly credit amount.
PRACTICE POINTERS:
1. HURRAY, The Commonwealth Court inserted reason and fairness in their analysis of this workers' compensation case. The parties should be allowed to correct mistakes.
We all make mistakes. A mistake should not be the basis for anyone to unrightfully claim or keep a financial payment.
The Court balanced the Employer right to a credit with the assessment of a fair figure for a weekly credit, paid by the Employee.
2. At times, the wording of decisions, lends itself to alternative interpretations.
Try to identify and address any problem areas with Employee counsel.
For example, a 50% penalty assessed on all outstanding medical bills ... does that mean outstanding at the time of the petition, or outstanding at the time of decision, when substantial payments were made in the interim.
In my experience, after we could not reach an agreement, I filed a Petition for Review, noting that we would pay ... we just wanted to be certain of the amount payment due.Unfortunately, We did not discover our disagreement, until after the appeal period expired.
3. Remember that a WCJ decision may be corrected or amended within 20 days, as per Regulation 131.112. A typographical or clerical error may be corrected by motion of the WCJ or either party.
Other amendments or corrections may be made upon written agreement of the parties.
4. The parties can always reach an agreement and voluntarily correct any mistake via the execution of a Supplemental Agreement. A best practice, is to explain the reason for the change of benefit status, where provided on the agreement.
Friday, January 3, 2014
Tuesday, December 31, 2013
Were Physical Therapy Treatments provided by a Medicare Part A provider or by a Medicare Part B provider? You'll never get an answer via a Medical Fee Review Petition.
Review of the "timeliness and/or amount" of Medical Fee Reimbursements.
The Pennsylvania Workers' Compensation Act provides that an Employer (Insurer) shall provide payment for reasonable medical services, related to a work injury. See: Section 306(f.1).
An Employer/Insurer may challenge the "Reasonableness and Necessity" of a medical expense via the Utilization Review procedures. Section 306(f.1)(6).
A Medical Provider may challenge the "Timeliness or Amount" of a payment via the Fee Review Procedures. Section 306(f.1)(5).
What if a question arises as to the "status" of the Physical Therapy billing entity and the propriety to reimburse treatments at the Medicare Part A rates or at the Medicare Part B rates?
That question is beyond the limited scope of Medical Fee Review Procedures...
so sayth the Commonwealth Court of Pennsylvania at Selective Insurance Company of America v. Bureau of Workers' Compensation Fee Review Hearing Office (the Physical Therapy Institute), No. 613 C.D. 2013, in a reported decision authored by Judge Leavitt, on December 6, 2013.
Factual Background
Employee injured his right shoulder at work. He was prescribed physical therapy modalities for treatment of his work injury. He received treatments at a facility called the "THE pt group". The worker compensation insurer received billing statements for this care from "The Physical Therapy Institute". [PTI].
Insurer DENIED any payment of these statements from PTI, stating PTI is not the entity which provided the physical therapy services represented on the submitted bill and therefore it is not entitled to payment under the medical cost containment provisions of the Act.
Insurer's legal brief asserted that:
"THE pt group" is a Medicare Part B provider and
"PTI" is a Medicare Part A provider.
The significance of this distinction is that there is a higher rate of reimbursement due to a Part A provider, compared to those due to a Part B provider.
Procedural Background
PTI filed 2 Fee Review Applications.
The Bureau Medical Fee Review (MFR) section "determined" in their administrative review (without a hearing, testimony or evidence) that the amounts billed were correct and directed Insurer to make these payments to PTI, together with statutory interest of 10%.
The MFR section stated: "Insurer did not provide a valid denial".
Insurer filed a Request for Hearing to contest the fee review determination, seeking a de novo hearing on both administrative determinations.
This matter was assigned to a Hearing Officer.
The parties appeared at a hearing and agreed the threshold issue was whether the Bureau had jurisdiction to decide the question of whether PTI was a medical provider, entitled to payment.
Penalty Petitions were also filed by Employee and they were pending consideration by a WCJ, after the parties made an "enormous" evidentary record. A "critical" issue was whether PTI was a "provider".
Bureau Hearing Officer Determination
The Insurer's Requests for Hearing were dismissed.
The Jurisdiction of the Medical Fee Review is limited to disputes over the amount or timeliness of payments. Here the issue was the status of PTI as a medical provider. This issue should be litigated before a WCJ.
[... it was pending].
Insurer's Commonwealth Court Appeal
At this juncture, Insurer had administrative determinations directing payments to PTI!
There was no relief available, in the form of a Bureau Hearing!.
Yes, the penalty petitions were still pending before the WCJ, but Insurer was in a vulnerable position.
Insurer filed an appeal to the Commonwealth Court.
Properly Insurer requested a supersedeas of medical expense payment ...
and the Commonwealth Court appropriately granted this supersedeas.
Commonwealth Court Decision
Insurer argued:
(1) the Bureau erred in concluding it lacked jurisdiction of the issue of whether PTI was a "provider"
(2) in the alternative, the Bureau erred in failing to dismiss the Fee Review administrative determinations, when it dismissed Insurers' request for hearing.
Court rejected argument (1).
The Fee Review process is limited to simple issues of payment amounts and timeliness.
The Fee Review process presupposes liability for medical expense payments has been established. (citing Nickel v. WCAB, 2008).
In cases where liability for a treatment is at issue, the claimant, not the medical provider must pursue that issue before a WCJ. (citing Crozer Chester M.C. v. Dept L&I, 2011).
Court accepted argument (2).
The parties have no dispute amount the amount billed.
The "critical" issue was always whether PTI provided the treatments such that it is a "provider" under the Act, entitled to seek a Medical Fee Review.
A WCJ must rule upon the issue of whether PTI is a "provider".
This is an issue which is beyond the scope of administrative medical fee review.
The MFR section should not have ordered Insurer to pay PTI.
This error was compounded by the Bureau leaving the fee review determinations in place.
If the Bureau lacked jurisdiction to decide the issue of liability for payment, then it also lacked jurisdiction to consider the initial PTI fee review requests.
Practice Pointers:
1.The procedural arguments serve as an excellent illustration of the necessity for experienced legal counsel in review of medical fee issues. Often, Insurers "wait until it it too late" to involve their legal counsel in the deliberative process of selecting an appropriate remedy. Here the expenses at issue were about $3,000. But, in many cases, medical treatments remain ongoing, generating a greater liability.
The "cost" of one telephone call is worth the valuable advice one gains.
2. The factual background of this case references the pending penalty petition litigation, which was filed by employee. In this situation, where the Insurer disputes the entitlement of PTI to any payment, the decision to deny all payments will generate a Penalty petition filing. It is difficult to avoid the penalty in this scenario.
3. One compromise position may be to pay the PTI billing statements for treatment at the Medicare Part B rates... BUT this payment may not eliminate the time and expense of penalty petition litigation ... BUT it may place Insurer in a more favorable position to prevail before the WCJ regarding the assessment of any (discretionary) penalty.
Tuesday, December 17, 2013
The PA Work Comp Act as the Exclusive Remedy of the Employee ...an additional Occupational Disease remedy
A New Rule for consideration of Employer Occupational Disease Liability
The Pennsylvania Workers' Compensation Act applies to all injuries occurring within the Commonwealth. (Section 101, 77 P.S. 1).
In 1972 the Workers' Compensation Act was amended to include injuries (not just "accidents") and occupational diseases (formerly covered under the Occupational Disease Act of 1939).
The Employer's liability to the Employee under Workers' Compensation Act, is said to be the Exclusive Remedy of the employee, on account of any injury or death or occupational disease. (Section 303(a), 77 P.S 481(a).
The recent decision of the Supreme Court of Pennsylvania at Tooey v. AK Steel Corporation, No. 21 WAP 2011 decided November 22, 2013, has altered our understanding of these Exclusive Remedy provisions and their application to remote Occupational Disease claims.
"The Holding"
Occupational Disease disability, which does not manifest within 300 weeks of the last date of employment, is not compensable pursuant to the time limitations in Section 301(c)(2) definition of injury.
HOWEVER, where an Occupational disease is not compensable under the Workers' Compensation Act, due to the expiration of the 300 week period...
THE EMPLOYEES MAY SEEK COMPENSATION VIA A CIVIL ACTION AGAINST THE EMPLOYER, as the exclusive remedy provision does not apply!
WHY?
The majority opinion of the Supreme Court (5-1), authored by Madame Justice Todd reversed the decision of the Superior Court which concluded that injury which resulted from workplace exposures and manifested more than 300 weeks after the last employment were not "compensable" and did not render the exclusivity provision inapplicable.
1. The Statutory Interpretation Argument
This Supreme Court opinion reflects a well-crafted, if not elegant,
The definition of injury (section 301(c)(2)) states that "the term injury ... as used in this act, shall include occupational disease as defined in section 108 of this act... provided that whenever occupational disease is the basis for compensation ... it shall apply only to disability or death resulting from such disease and occurring within 300 weeks after the last date of employment...".
There was an extended discussion of the Employee and Employer arguments regarding the meaning of the word: "it", in the above passage.
Employee argued that the word "it" refers to "this act".
Employer argued that the word "it" refers to "the basis for compensation".
2. What do these arguments mean?
"If I had a world of my own, everything would be nonsense.
Nothing would be what it is, because everything would be what it isn't.
And contrary wise, what is, it wouldn't be, it would. You see?"
Lewis Carroll, Alice's Adventures in Wonderland & Through the Looking-Glass.
Employees read section 301(c)(2) to mean the Act only applies to injury or diseases occurring within 300 weeks ... the act does not apply to injury concurring more than 300 weeks later ... If the Act does not apply ... it cannot preclude one's rights, so Employees' can file a civil action against their Employer.
Employers read section 301(c)(2) to mean that the Act applies to all injuries and diseases, BUT compensation is available only for disability occurring within 300 weeks!
3. Revenge of the Nerds
YES all of you English majors can read about rules of grammar concerning restrictive and non-restrictive clauses and the significance of punctuation placement of the commas in the statutory interpretation.
The Court: "Upon review, we find [Employee's] interpretation of the language of Section 301(c)(2) to be the most reasonable one." slip opinion page 11).
The Act shall only apply to disability or death occurring within 300 weeks of the last employment
If the Act does not apply to disability or death manifesting beyond 300 weeks, the Act does not preclude a civil action remedy for the employee.
4. The Act as a replacement of the Common law Tort Actions
The traditional notion of the "bargain" of the Employer and Employee is discussed.
The Employee gives up the right to damages beyond wage loss and medical expense.
The Employer gives up its common law defenses.
The Employer assumes liability without considerations of fault, in exchange for relief from the possibility of larger damages.
Then We encounter the oft-repeated maxim:
... however the Act is " remedial in nature and intended to benefit the worker, and therefore must be liberally construed to effectuate its humanitarian purposes".
[ IMHO this phrase never adds anything to the discussion]
5. So how do we get around this exclusive remedy thing? (ie. the good stuff)
If the employee is not able to seek compensation for disability from an injury/disease arising 300+ weeks later, then the "quid pro qou" of the Act cannot be effectuated!
The employee is giving up all of his rights, without any reasonable opportunity to any compensation.
The employer is granted full immunity, under the illusion that there is no-fault liability for work injuries.
6. If there is no determination of compensability available under the Act, then the Employee civil action is not barred by the exclusive remedy provisions of the Act.
The Court cites prior cases where an employee did not have a work comp remedy and was allowed to pursue a civil action:
i. Lord Corp, where there was no work comp litigation of the disability and death from the employee's chemical exposures,
ii. Boniecke, where employee was denied relief under the Occupational disease Act,
iii. Greer, alleged pulmonary fibrosis, an occupational disease as a result of Employer negligence.
7. Conclusion: Because the claims are not compensable under the Act, the exclusive remedy provision of Section 303(a) does not bar the common law claims against the employer. (slip opinion page 15).
Employer argued there is a difference between coverage of the Act and compensability under the Act!
The Act applies to all work injuries ... but not every claimant wins!
An employee with an occupational disease manifesting disability more than 300 weeks later, cannot obtain workers compensation benefits, but he may have a civil remedy against non-employer defendants.
Employer unsuccessfully argued that the Act is the employee's exclusive remedy, even when compensation is not available. Several examples in support of this argument are:
i. Kline, claim for damages for impotency from a work fall,
ii. Moffett, partially disabled worker not entitled to OD Act benefits.
The Majority cites Section 305(d) which allows a civil action against an uninsured employer for the proposition that there exists a dual system of recovery ... whereas Employer's arguments for an exclusive remedy would result in no remedy for the employee.
"It is inconceivable that the legislature, in enacting a statute specifically designated to benefit employees, intended to leave a certain class of employees, who have suffered the most serious of work-related injuries, without any redress under the Act or at common law."
"... the legislature did not intend the Act to apply to claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational exposure".
The dissent, authored by Mr. Justice Saylor provides a well reasoned response.
He notes the legislative "line-drawing" involved in drafting any time requirement for compensability.
He emphasizes the difference between coverage of the Act and the compensability of a claim under the Act.
Claims for disability occurring more than 300 weeks after the last employment are "covered" by the act, but they are not "compensable" under the Act. If desired, the legislature may amend this provision.
Practice Pointers:
1. The Supreme Court has spoken.
This is the law. For now. Perhaps the Legislature will review this issue at a future date.
This is another "exception" to the Workers' Compensation Act, as the exclusive remedy of the employee against one's Employer for "damages" alleged as a result of a work-related harm.
There have been other exceptions, but those exceptions have been for damages not covered by the act, such as the harm from the fraudulent misrepresentations of the employer, where the employee was exposed to lead (Martin v. Lancaster Battery) or the harm of defamation, from the employer's handling of the an employee's seemingly threatening statements (Urban v. Dollar Bank).
Can this exception lead to other exceptions?
2. The Majority opinion artfully interprets the statutory language at 301(c)(2), which heretofore was considered a limitation upon the extent of work comp liability for remote effects of occupational disease.
What was once a limitation, has now been interpreted to allow an additional remedy for civil liability and recovery.
3. In the end result, one would assume that the insurance costs will increase for employers in industry with potential exposure to hazardous exposures, as the liability for remote disability has moved from the category of "uncompensated work comp claim" to the "possible civil liability claim".
4. The remote nature of these potential claims poses a defense nightmare. Perhaps as many businesses move to a computer-based document retention world, the pertinent medical records should remain available for examination. Hopefully the documentation of workplace exposures remains equally available for review and consideration.
5. Industries involved with materials that may pose an remote occupational hazard are prudent to assure retention of pertinent work records, particularly regarding employee job assignments.
The Pennsylvania Workers' Compensation Act applies to all injuries occurring within the Commonwealth. (Section 101, 77 P.S. 1).
In 1972 the Workers' Compensation Act was amended to include injuries (not just "accidents") and occupational diseases (formerly covered under the Occupational Disease Act of 1939).
The Employer's liability to the Employee under Workers' Compensation Act, is said to be the Exclusive Remedy of the employee, on account of any injury or death or occupational disease. (Section 303(a), 77 P.S 481(a).
The recent decision of the Supreme Court of Pennsylvania at Tooey v. AK Steel Corporation, No. 21 WAP 2011 decided November 22, 2013, has altered our understanding of these Exclusive Remedy provisions and their application to remote Occupational Disease claims.
"The Holding"
Occupational Disease disability, which does not manifest within 300 weeks of the last date of employment, is not compensable pursuant to the time limitations in Section 301(c)(2) definition of injury.
HOWEVER, where an Occupational disease is not compensable under the Workers' Compensation Act, due to the expiration of the 300 week period...
THE EMPLOYEES MAY SEEK COMPENSATION VIA A CIVIL ACTION AGAINST THE EMPLOYER, as the exclusive remedy provision does not apply!
WHY?
The majority opinion of the Supreme Court (5-1), authored by Madame Justice Todd reversed the decision of the Superior Court which concluded that injury which resulted from workplace exposures and manifested more than 300 weeks after the last employment were not "compensable" and did not render the exclusivity provision inapplicable.
1. The Statutory Interpretation Argument
This Supreme Court opinion reflects a well-crafted, if not elegant,
The definition of injury (section 301(c)(2)) states that "the term injury ... as used in this act, shall include occupational disease as defined in section 108 of this act... provided that whenever occupational disease is the basis for compensation ... it shall apply only to disability or death resulting from such disease and occurring within 300 weeks after the last date of employment...".
There was an extended discussion of the Employee and Employer arguments regarding the meaning of the word: "it", in the above passage.
Employee argued that the word "it" refers to "this act".
Employer argued that the word "it" refers to "the basis for compensation".
2. What do these arguments mean?
"If I had a world of my own, everything would be nonsense.
Nothing would be what it is, because everything would be what it isn't.
And contrary wise, what is, it wouldn't be, it would. You see?"
Lewis Carroll, Alice's Adventures in Wonderland & Through the Looking-Glass.
Employees read section 301(c)(2) to mean the Act only applies to injury or diseases occurring within 300 weeks ... the act does not apply to injury concurring more than 300 weeks later ... If the Act does not apply ... it cannot preclude one's rights, so Employees' can file a civil action against their Employer.
Employers read section 301(c)(2) to mean that the Act applies to all injuries and diseases, BUT compensation is available only for disability occurring within 300 weeks!
3. Revenge of the Nerds
YES all of you English majors can read about rules of grammar concerning restrictive and non-restrictive clauses and the significance of punctuation placement of the commas in the statutory interpretation.
The Court: "Upon review, we find [Employee's] interpretation of the language of Section 301(c)(2) to be the most reasonable one." slip opinion page 11).
The Act shall only apply to disability or death occurring within 300 weeks of the last employment
If the Act does not apply to disability or death manifesting beyond 300 weeks, the Act does not preclude a civil action remedy for the employee.
4. The Act as a replacement of the Common law Tort Actions
The traditional notion of the "bargain" of the Employer and Employee is discussed.
The Employee gives up the right to damages beyond wage loss and medical expense.
The Employer gives up its common law defenses.
The Employer assumes liability without considerations of fault, in exchange for relief from the possibility of larger damages.
Then We encounter the oft-repeated maxim:
... however the Act is " remedial in nature and intended to benefit the worker, and therefore must be liberally construed to effectuate its humanitarian purposes".
[ IMHO this phrase never adds anything to the discussion]
5. So how do we get around this exclusive remedy thing? (ie. the good stuff)
If the employee is not able to seek compensation for disability from an injury/disease arising 300+ weeks later, then the "quid pro qou" of the Act cannot be effectuated!
The employee is giving up all of his rights, without any reasonable opportunity to any compensation.
The employer is granted full immunity, under the illusion that there is no-fault liability for work injuries.
6. If there is no determination of compensability available under the Act, then the Employee civil action is not barred by the exclusive remedy provisions of the Act.
The Court cites prior cases where an employee did not have a work comp remedy and was allowed to pursue a civil action:
i. Lord Corp, where there was no work comp litigation of the disability and death from the employee's chemical exposures,
ii. Boniecke, where employee was denied relief under the Occupational disease Act,
iii. Greer, alleged pulmonary fibrosis, an occupational disease as a result of Employer negligence.
7. Conclusion: Because the claims are not compensable under the Act, the exclusive remedy provision of Section 303(a) does not bar the common law claims against the employer. (slip opinion page 15).
Employer argued there is a difference between coverage of the Act and compensability under the Act!
The Act applies to all work injuries ... but not every claimant wins!
An employee with an occupational disease manifesting disability more than 300 weeks later, cannot obtain workers compensation benefits, but he may have a civil remedy against non-employer defendants.
Employer unsuccessfully argued that the Act is the employee's exclusive remedy, even when compensation is not available. Several examples in support of this argument are:
i. Kline, claim for damages for impotency from a work fall,
ii. Moffett, partially disabled worker not entitled to OD Act benefits.
The Majority cites Section 305(d) which allows a civil action against an uninsured employer for the proposition that there exists a dual system of recovery ... whereas Employer's arguments for an exclusive remedy would result in no remedy for the employee.
"It is inconceivable that the legislature, in enacting a statute specifically designated to benefit employees, intended to leave a certain class of employees, who have suffered the most serious of work-related injuries, without any redress under the Act or at common law."
"... the legislature did not intend the Act to apply to claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational exposure".
The dissent, authored by Mr. Justice Saylor provides a well reasoned response.
He notes the legislative "line-drawing" involved in drafting any time requirement for compensability.
He emphasizes the difference between coverage of the Act and the compensability of a claim under the Act.
Claims for disability occurring more than 300 weeks after the last employment are "covered" by the act, but they are not "compensable" under the Act. If desired, the legislature may amend this provision.
Practice Pointers:
1. The Supreme Court has spoken.
This is the law. For now. Perhaps the Legislature will review this issue at a future date.
This is another "exception" to the Workers' Compensation Act, as the exclusive remedy of the employee against one's Employer for "damages" alleged as a result of a work-related harm.
There have been other exceptions, but those exceptions have been for damages not covered by the act, such as the harm from the fraudulent misrepresentations of the employer, where the employee was exposed to lead (Martin v. Lancaster Battery) or the harm of defamation, from the employer's handling of the an employee's seemingly threatening statements (Urban v. Dollar Bank).
Can this exception lead to other exceptions?
2. The Majority opinion artfully interprets the statutory language at 301(c)(2), which heretofore was considered a limitation upon the extent of work comp liability for remote effects of occupational disease.
What was once a limitation, has now been interpreted to allow an additional remedy for civil liability and recovery.
3. In the end result, one would assume that the insurance costs will increase for employers in industry with potential exposure to hazardous exposures, as the liability for remote disability has moved from the category of "uncompensated work comp claim" to the "possible civil liability claim".
4. The remote nature of these potential claims poses a defense nightmare. Perhaps as many businesses move to a computer-based document retention world, the pertinent medical records should remain available for examination. Hopefully the documentation of workplace exposures remains equally available for review and consideration.
5. Industries involved with materials that may pose an remote occupational hazard are prudent to assure retention of pertinent work records, particularly regarding employee job assignments.
Monday, December 9, 2013
Back to the FUTURE... Son of Kachinski
Back to the FUTURE ...
In 1996 the Pennsylvania Legislature amended the Workers' Compensation Act, to allow an Employer a remedy for Modification of wage-loss benefits based upon proof of the post-injury earning capacity of an injured worker via Vocational Expert opinion evidence.
Prior to the 1996 amendments, an Employer was required to establish the proof of the post-injury earning capacity via production of a job referral (a job offer) to employee. If employee was not hired, wage-loss benefits continued ...
Unless the employee was not hired due to a "bad faith" effort in the job application process. In that instance, the Work Comp Insurer would produce testimony and documentary evidence from the Vocational Expert and prospective employer(s) to provide substantial evidence of a bad faith response of the injured worker.
If the WCJ found evidence of bad faith, the Employer could be granted a Modification of benefits, even without an actual job offer or a actual return-to work.
This Wage-Loss Benefit Modification method was known as the "Kachinski" standard, based upon the 1987 decision of the Pennsylvania Supreme Court.
(Kachinski v. WCAB (Vepco Construction Co., 532 A.2d 374 (Pa. 1987).
One may read the dozens (hundreds) of appellate case reports which addressed the factual matrix for a "good faith" job application by employee versus a "bad faith" presentation.
... it appears we will now re-visit this laborious process, based upon the recent decision reported at Phoenixville Hospital v. WCAB (Shoap), No. 32 EAP 2011, authored by Mr. Justice McCaffery on November 21, 2013.
Factual Background
In 2003 Shoup injured her left shoulder at work.
Total disability wage loss benefits were commence via NCP.
Employer filed a Petition for Modification of Total disability benefits to Partial Disability benefits, based upon medical and vocational expert reports that employee had a post-injury earning capacity.
Employer medical Expert Sattel opined she could return to sedentary duty work.
Employer Vocational Expert Kimmich opined she has a post-injury earning capacity based upon the identification of 5 "open & available" job.
There were 2 Labor Market Survey (LMS) reports, July [3jobs] and August [2jobs] of 2007
Employee Medical Expert and Vocational expert testified she could not work at any of the 5 positions identified in the Kimmich LMS.
Employee testified that she actually applied to the first 3 positions on July 30, 2007 after she received the July LMS report. She applied to jobs 4 and 5, had telephone interviews, but was not hired. Employer #5 told her she was not qualified as she lacked familiarity with a certain computer program.
WCJ Decision
WCJ found Employer's Medical & Vocational Experts more credible that Employee's Medical and Vocational experts.
...BUT the WCJ found Employee was credible that she made a "genuine effort" to secure any one of the 5 jobs in the LMS, and she did not receive a job offer.
The WCJ found that Employee "has established that in good-faith, she followed through on all of the jobs referred to her by the Employer and that none of the referrals resulted in an offer of employment'. [ note the "Kachinski-esque" language].
For this reason, Employer failed to establish its right to a Modification of benefits under Section 306(b).
WCAB Decision Affirmed
Modification of Benefits could not be based simply on whether Employer had identified job listings within Employee physical restrictions and geographic area, where Employee produced credible evidence that the jobs were in actuality not available to her.
Commonwealth Court REVERSED
Employer met its burden of proof under Section 306(b), as the LMS jobs were "open & available" at the time the LMS was conducted.
It was not relevant that Employee "followed through" on these job listings in "good faith".
[slip opinion page 9].
... BUT Commonwealth Court would not consider job #5, as the job remained open after her interview... the job opening "existed" but it was not available to her. [hmmmm ...?]
Supreme Court Reinstates WCJ denial of Modification
Their reasonable reading of Section 306(b) ...
one that comports with a commonsense reading of the statutory language "substantial gainful employment that exists" (as well as the Act's humanitarian purposes) is an interpretation that "the proof required to modify/suspend employee's wage loss benefits must rest upon the existence of meaningful employment opportunities and not the simple identification of jobs in want ads or employment listings.
[this is not a term in the statute passed by the Pa Legislature]
Vocational Expert opinion evidence under Section 306(b) functions, not only as a means of demonstrating that there are open jobs that exist within an employee's limitations BUT also as a mechanism for providing the employee with NOTICE of the existence of these jobs, which thus provides A SERIOUS OPPORTUNITY TO SECURE EMPLOYMENT. [slip opinion page 21].
Accordingly an employee must have latitude, greater than that allowed by the Commonwealth Court, to PRESENT EVIDENCE REGARDING HER EXPERIENCE WITH APPLYING FOR THE JOBS IDENTIFIED BY THE EMPLOYER'S VOCATIONAL EXPERT WITNESS.
[slip opinion page 22].
THE STATUTORY CONCEPT OF "SUBSTANTIAL GAINFUL EMPLOYMENT WHICH EXISTS', WOULD BE MEANINGLESS UNLESS, THE LMS JOBS REMAIN OPEN UNTIL SUCH TIME AS EMPLOYEE IS AFFORDED A REASONABLE OPPORTUNITY TO APPLY FOR THEM.
[SLIP OPINION PAGE 23].
CASE REMANDED...
PRACTICE POINTERS:
1. Continue to assign Vocational Experts and obtain Post-Injury Earning Power Assessment evidence via Labor Market Surveys.
This remains a valuable remedy in the handling of PA work comp cases.
2. Confirm that your Vocational Expert will continue to monitor the Employee's post-report application efforts with the prospective employers identified in the LMS.
3. Obtain notarized statements form each prospective employer regarding the details of employee's application. Anticipate that you will need to produce these witnesses as rebuttal to Employee's assertions.
4. One "old" Kachinski strategy was to schedule an application time and/or interview time for the Employee so that the vocational Expert could attend and observe the application process with the prospective employer ... this may remain an effective strategy!
I will refrain from my personal commentary regarding the complete abrogation of the statutory language that "earning power" SHALL ( one of those mandatory... got to do it... words)
be determined by expert opinion evidence. These words are plain, easy to understand (for most) and an unambiguous expression on the Legislative intent of Section 306(b).
Unfortunately, this opinion corrupts that Legislative intent.
In 1996 the Pennsylvania Legislature amended the Workers' Compensation Act, to allow an Employer a remedy for Modification of wage-loss benefits based upon proof of the post-injury earning capacity of an injured worker via Vocational Expert opinion evidence.
Prior to the 1996 amendments, an Employer was required to establish the proof of the post-injury earning capacity via production of a job referral (a job offer) to employee. If employee was not hired, wage-loss benefits continued ...
Unless the employee was not hired due to a "bad faith" effort in the job application process. In that instance, the Work Comp Insurer would produce testimony and documentary evidence from the Vocational Expert and prospective employer(s) to provide substantial evidence of a bad faith response of the injured worker.
If the WCJ found evidence of bad faith, the Employer could be granted a Modification of benefits, even without an actual job offer or a actual return-to work.
This Wage-Loss Benefit Modification method was known as the "Kachinski" standard, based upon the 1987 decision of the Pennsylvania Supreme Court.
(Kachinski v. WCAB (Vepco Construction Co., 532 A.2d 374 (Pa. 1987).
One may read the dozens (hundreds) of appellate case reports which addressed the factual matrix for a "good faith" job application by employee versus a "bad faith" presentation.
... it appears we will now re-visit this laborious process, based upon the recent decision reported at Phoenixville Hospital v. WCAB (Shoap), No. 32 EAP 2011, authored by Mr. Justice McCaffery on November 21, 2013.
Factual Background
In 2003 Shoup injured her left shoulder at work.
Total disability wage loss benefits were commence via NCP.
Employer filed a Petition for Modification of Total disability benefits to Partial Disability benefits, based upon medical and vocational expert reports that employee had a post-injury earning capacity.
Employer medical Expert Sattel opined she could return to sedentary duty work.
Employer Vocational Expert Kimmich opined she has a post-injury earning capacity based upon the identification of 5 "open & available" job.
There were 2 Labor Market Survey (LMS) reports, July [3jobs] and August [2jobs] of 2007
Employee Medical Expert and Vocational expert testified she could not work at any of the 5 positions identified in the Kimmich LMS.
Employee testified that she actually applied to the first 3 positions on July 30, 2007 after she received the July LMS report. She applied to jobs 4 and 5, had telephone interviews, but was not hired. Employer #5 told her she was not qualified as she lacked familiarity with a certain computer program.
WCJ Decision
WCJ found Employer's Medical & Vocational Experts more credible that Employee's Medical and Vocational experts.
...BUT the WCJ found Employee was credible that she made a "genuine effort" to secure any one of the 5 jobs in the LMS, and she did not receive a job offer.
The WCJ found that Employee "has established that in good-faith, she followed through on all of the jobs referred to her by the Employer and that none of the referrals resulted in an offer of employment'. [ note the "Kachinski-esque" language].
For this reason, Employer failed to establish its right to a Modification of benefits under Section 306(b).
WCAB Decision Affirmed
Modification of Benefits could not be based simply on whether Employer had identified job listings within Employee physical restrictions and geographic area, where Employee produced credible evidence that the jobs were in actuality not available to her.
Commonwealth Court REVERSED
Employer met its burden of proof under Section 306(b), as the LMS jobs were "open & available" at the time the LMS was conducted.
It was not relevant that Employee "followed through" on these job listings in "good faith".
[slip opinion page 9].
... BUT Commonwealth Court would not consider job #5, as the job remained open after her interview... the job opening "existed" but it was not available to her. [hmmmm ...?]
Supreme Court Reinstates WCJ denial of Modification
Their reasonable reading of Section 306(b) ...
one that comports with a commonsense reading of the statutory language "substantial gainful employment that exists" (as well as the Act's humanitarian purposes) is an interpretation that "the proof required to modify/suspend employee's wage loss benefits must rest upon the existence of meaningful employment opportunities and not the simple identification of jobs in want ads or employment listings.
[this is not a term in the statute passed by the Pa Legislature]
Vocational Expert opinion evidence under Section 306(b) functions, not only as a means of demonstrating that there are open jobs that exist within an employee's limitations BUT also as a mechanism for providing the employee with NOTICE of the existence of these jobs, which thus provides A SERIOUS OPPORTUNITY TO SECURE EMPLOYMENT. [slip opinion page 21].
Accordingly an employee must have latitude, greater than that allowed by the Commonwealth Court, to PRESENT EVIDENCE REGARDING HER EXPERIENCE WITH APPLYING FOR THE JOBS IDENTIFIED BY THE EMPLOYER'S VOCATIONAL EXPERT WITNESS.
[slip opinion page 22].
THE STATUTORY CONCEPT OF "SUBSTANTIAL GAINFUL EMPLOYMENT WHICH EXISTS', WOULD BE MEANINGLESS UNLESS, THE LMS JOBS REMAIN OPEN UNTIL SUCH TIME AS EMPLOYEE IS AFFORDED A REASONABLE OPPORTUNITY TO APPLY FOR THEM.
[SLIP OPINION PAGE 23].
CASE REMANDED...
PRACTICE POINTERS:
1. Continue to assign Vocational Experts and obtain Post-Injury Earning Power Assessment evidence via Labor Market Surveys.
This remains a valuable remedy in the handling of PA work comp cases.
2. Confirm that your Vocational Expert will continue to monitor the Employee's post-report application efforts with the prospective employers identified in the LMS.
3. Obtain notarized statements form each prospective employer regarding the details of employee's application. Anticipate that you will need to produce these witnesses as rebuttal to Employee's assertions.
4. One "old" Kachinski strategy was to schedule an application time and/or interview time for the Employee so that the vocational Expert could attend and observe the application process with the prospective employer ... this may remain an effective strategy!
I will refrain from my personal commentary regarding the complete abrogation of the statutory language that "earning power" SHALL ( one of those mandatory... got to do it... words)
be determined by expert opinion evidence. These words are plain, easy to understand (for most) and an unambiguous expression on the Legislative intent of Section 306(b).
Unfortunately, this opinion corrupts that Legislative intent.
Friday, November 22, 2013
NWCDC 2013
Attending the National Workers' Compensation and Disability Conference in Las Vegas, Nevada.
Thursday, November 14, 2013
Hearing Loss Claim - A Well Documented, Successful Defense
The requirements for establishing a claim for benefits for work-related hearing loss are set forth at Section 306(c)(8) of the Pennsylvania Workers' Compensation Act.
The burden of proof is on the claimant to establish that he/she suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise.
Significantly, whether the employee has been, in fact, exposed to hazardous noise is not part of the claimant's burden of proof. Rather, it is an affirmative defense that may be asserted by the employer; that the claimant's exposure to noise was not hazardous or was not long-term.
The availability of information regarding work exposures and medical evaluation results, may impact the success of each party's position.
McCool v. WCAB (Sunoco, Inc.), No. 783 C.D. 2013, an opinion of the Commonwealth Court of Pennsylvania, authored by Judge Covey on October 18, 2013 reviewed claimant's entitlement to hearing loss benefits.
Factual and Procedural Background
Employee worked with Sunoco for five years from 2003 to his resignation on March 20, 2008.
He worked "office jobs" from 1998 to 2003.
Earlier, Employee was a Philadelphia firefighter for nearly 15 years, from November 1983 to October 1998.
Sunoco History
Employee alleged exposure to noise in his employment with Sunoco in his duties as an operator apprentice and refinery operator. The equipment and the refinery process was said to cause "extreme" noise.
He would occasionally report to a block house, where there was a restroom, kitchen and equipment with fans and motors. He alleged this was also noisy.
Sunoco furnished and required the use of personal hearing protection. Approximately 12 different types were available. He did not have to wear earplugs in the blockhouse, so he only wore them when he was outside. He communicated with coworkers via walkie-talkies. In his last year of employment he wore headphones that permitted communication without a walkie-talkie.
Firefighter History
During his employment as a firefighter he was exposed to noise.
[This is the extent of the description of "noise" exposure in his employment as a firefighter.].
In April 2001 Employee had an audiogram, as a number of firefighters were examined and were pursuing hearing loss claims. He saw the union examining expert, Dr. Gold.
At this time his audiogram did not show an impairment, sufficient to file a claim.
[As later developed, this scenario becomes significant when the issue of notice and Employee's knowledge arises].
Employee underwent a Pre-Employment audiogram with Sunoco in December 2002 and then on an annual basis, thereafter. The 2002 audiogram showed a pre-existing hearing loss that continued to accelerate across all frequencies at each yearly re-test.
[Note: rapid loss and loss across all frequencies is not typical for occupational hearing loss].
In 2006/07 at Employee's request, his family physician made a referral to a hearing specialist, Dr. Stuart Scherr. At this time employee started wearing a hearing aid.
Employee Medical Expert
August 2, 2010, Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment as a firefighter.
October 4, 2010, Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment with Sunoco.
[there is reference to a July 7, 2010 exam and audiogram, so it appears there was not a 2nd exam].
Employer Medical Evidence
Dr. Lee D. Rowe examined employee on February 17, 2011, conducted an audiogram and reviewed the prior medical records and audiograms.
The history included a past skull fracture as a youth, which could cause auditory nerve damage and later progressive hearing loss.
Audiogram results showed a significant difference in loss of high frequencies, left was far worse than the right
.
Dr. Rowe calculated a binaural hearing loss of 52.5% in accord with the AMA guidelines.
This was a significant acceleration during the short time period from the Dr. Shapiro audiogram in July 2010.
[Remember Employee stopped working in March 2008; ie., no more noise exposure!].
Dr. Rowe reviewed the prior medical records and audiograms and noted:
WCJ Decision
In the Claim Petition litigation, the WCJ rejected the conflicting Shapiro reports as not credible.
The WCJ rejected employee's testimony as to when he knew his hearing loss was work related, as it was inconsistent with his prior knowledge from the 2001 testing and attorney meetings regarding a possible claim as a Philadelphia firefighter.
Employer medical expert, Lee D. Rowe, M.D. was found credible.
Commonwealth Court Appeal
Employee argument that the WCJ placed the burden of proving an exposure to hazardous noise upon him, was rejected.
Employee argument that the WCJ decision was not supported by competent evidence was rejected.
Employee's argument that the WCJ decision was not reasoned, was rejected.
Practice Pointers:
1. This litigation result demonstrates the value of obtaining detailed and complete medical records and employment history. This information allowed the medical expert to provide a well documented analysis of the non-occupational basis for employee's hearing loss.
2. In some cases, it is not possible to gather complete records. Information regarding past work environments, may be limited. This may compromise the ability of the medical expert to draw conclusions regarding the occupational or non-work causes of hearing loss.
In this instance, I recommend focusing your discovery efforts on the medical records, as a means to document your causation arguments.
The burden of proof is on the claimant to establish that he/she suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise.
Significantly, whether the employee has been, in fact, exposed to hazardous noise is not part of the claimant's burden of proof. Rather, it is an affirmative defense that may be asserted by the employer; that the claimant's exposure to noise was not hazardous or was not long-term.
The availability of information regarding work exposures and medical evaluation results, may impact the success of each party's position.
McCool v. WCAB (Sunoco, Inc.), No. 783 C.D. 2013, an opinion of the Commonwealth Court of Pennsylvania, authored by Judge Covey on October 18, 2013 reviewed claimant's entitlement to hearing loss benefits.
Factual and Procedural Background
Employee worked with Sunoco for five years from 2003 to his resignation on March 20, 2008.
He worked "office jobs" from 1998 to 2003.
Earlier, Employee was a Philadelphia firefighter for nearly 15 years, from November 1983 to October 1998.
Sunoco History
Employee alleged exposure to noise in his employment with Sunoco in his duties as an operator apprentice and refinery operator. The equipment and the refinery process was said to cause "extreme" noise.
He would occasionally report to a block house, where there was a restroom, kitchen and equipment with fans and motors. He alleged this was also noisy.
Sunoco furnished and required the use of personal hearing protection. Approximately 12 different types were available. He did not have to wear earplugs in the blockhouse, so he only wore them when he was outside. He communicated with coworkers via walkie-talkies. In his last year of employment he wore headphones that permitted communication without a walkie-talkie.
Firefighter History
During his employment as a firefighter he was exposed to noise.
[This is the extent of the description of "noise" exposure in his employment as a firefighter.].
In April 2001 Employee had an audiogram, as a number of firefighters were examined and were pursuing hearing loss claims. He saw the union examining expert, Dr. Gold.
At this time his audiogram did not show an impairment, sufficient to file a claim.
[As later developed, this scenario becomes significant when the issue of notice and Employee's knowledge arises].
Employee underwent a Pre-Employment audiogram with Sunoco in December 2002 and then on an annual basis, thereafter. The 2002 audiogram showed a pre-existing hearing loss that continued to accelerate across all frequencies at each yearly re-test.
[Note: rapid loss and loss across all frequencies is not typical for occupational hearing loss].
In 2006/07 at Employee's request, his family physician made a referral to a hearing specialist, Dr. Stuart Scherr. At this time employee started wearing a hearing aid.
Employee Medical Expert
August 2, 2010, Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment as a firefighter.
October 4, 2010, Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment with Sunoco.
[there is reference to a July 7, 2010 exam and audiogram, so it appears there was not a 2nd exam].
Employer Medical Evidence
Dr. Lee D. Rowe examined employee on February 17, 2011, conducted an audiogram and reviewed the prior medical records and audiograms.
The history included a past skull fracture as a youth, which could cause auditory nerve damage and later progressive hearing loss.
Audiogram results showed a significant difference in loss of high frequencies, left was far worse than the right
.
Dr. Rowe calculated a binaural hearing loss of 52.5% in accord with the AMA guidelines.
This was a significant acceleration during the short time period from the Dr. Shapiro audiogram in July 2010.
[Remember Employee stopped working in March 2008; ie., no more noise exposure!].
Dr. Rowe reviewed the prior medical records and audiograms and noted:
- No AMA impairment at the time of the December 2002 Sunoco pre-employment exam;
- audiograms after the firefighter and before Sunoco showed the beginning of an acceleration process that was not due to noise exposure; ie, when employee worked the "office jobs";
- this progression of loss accelerated during Sunoco employment;
- the start of hearing loss in 2005/06 was consistent with age-related hearing loss at age 53-54 years;
- employee utilized hearing protection when employer with Sunoco;
- asymmetrical hearing loss was consistent with the childhood skull fracture;
- asymmetrical hearing loss is inconsistent with occupational noise induced hearing loss;
- employee had other risk factors associated with hearing loss progression;
- the dramatic increase in AMA impairment from 2010 to 2011 was inconsistent with occupational noise induced hearing loss.
WCJ Decision
In the Claim Petition litigation, the WCJ rejected the conflicting Shapiro reports as not credible.
The WCJ rejected employee's testimony as to when he knew his hearing loss was work related, as it was inconsistent with his prior knowledge from the 2001 testing and attorney meetings regarding a possible claim as a Philadelphia firefighter.
Employer medical expert, Lee D. Rowe, M.D. was found credible.
Commonwealth Court Appeal
Employee argument that the WCJ placed the burden of proving an exposure to hazardous noise upon him, was rejected.
Employee argument that the WCJ decision was not supported by competent evidence was rejected.
Employee's argument that the WCJ decision was not reasoned, was rejected.
Practice Pointers:
1. This litigation result demonstrates the value of obtaining detailed and complete medical records and employment history. This information allowed the medical expert to provide a well documented analysis of the non-occupational basis for employee's hearing loss.
2. In some cases, it is not possible to gather complete records. Information regarding past work environments, may be limited. This may compromise the ability of the medical expert to draw conclusions regarding the occupational or non-work causes of hearing loss.
In this instance, I recommend focusing your discovery efforts on the medical records, as a means to document your causation arguments.
Thursday, November 7, 2013
PA Supreme Court awards State Trooper benefits for Abnormal Work Condition
An Employee claim for disability from a "mental-mental" psychic injury must establish the injury is a result of abnormal work conditions. For work conditions to be considered abnormal, they must be considered in the context of one's specific employment.
At times, appellate courts have struggled with this issue: What is "abnormal" for a job position which entails, stressful, difficult situations, such as encountered in employment as a police officer or other first responders?
Payes v. WCAB (Commonwealth, PA State Police), No. MAP 2011, an opinion of the Supreme Court of Pennsylvania, authored by Mr. Justice McCaffery on October 30, 2013 addressed this issue.
Factual and Procedural Background
Employee was a PA State Trooper for 12 years.
One evening a woman, dressed in black, ran in front of his patrol car. The car struck her. He administered mouth-to-mouth resuscitation, but she could not be revived. It was later discovered she was mentally disturbed and was seen walking near the highway, prior to this incident.
He was off work for about 5 weeks and then returned to office work, not his normal patrol duties. After 4 days he had recurring feelings of anxiousness and stress. He believed he could not continue to perform his duties as a State Trooper.
Employee filed a claim petition for total disability as a result of Post-Traumatic Stress Disorder (PTSD) from this incident. Employee testified. His Commander testified regarding police training, including stress management, automobile accident response and rendering first aid to accident victims. He described another incident where an individual was struck and killed while dashing in front of an officer's vehicle. Two Troopers testified regarding Employee's return-to-work attempt.
Employee medical experts diagnosed disability as a result of PTSD from this work incident.
Employer medical expert opined employee recovered from the PTSD condition.
WCJ Decision Awarded Benefits
WCJ assigned credibility to Employee testimony and to that of his medical experts.
WCJ found this incident was not a circumstance one would be exposed to in the normal course of performance of one's work duties.
Although state troopers may expect to encounter or be involved in violent situations; such as death, murder, horrible accidents, use of deadly force; this particular incident is not one normally encountered or expected of state troopers.
Employee's mental injury and disability was caused by this abnormal work condition.
WCAB and Commonwealth Court disagreed with the WCJ award.
Commonwealth Court [5 A.3d 855, Pa. Cmwlth. 2010] reasoned that employee's injury did not result from abnormal work conditions.
The events that occurred may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of employee's employment. He was trained to respond to emergency situations and accidents, he was trained to render first aid, it was not extraordinary for him to respond and have a person suffer fatal injuries.
"[Employee], who works"in the line of employment" of a police officer, can be expected to be witness to horrible tragedy... These events will not be deemed "extraordinary" or "abnormal ...".
But for the one "unusual" fact, that Employee was "the one" who struck and killed this individual, there would be no question that a mental-mental injury would not be compensable under these circumstances.
Supreme Court Majority Opinion
The Majority states that the question of whether a claimant has been exposed to abnormal working conditions is a mixed question of law and fact. "Appellate review of this question is a two-step process of reviewing the factual findings and then the legal conclusion.". Slip opinion page 9 and page 10 citing RAG Cyprus Emerald Resources, L.P. (Pa. 2007).
[Writing in dissent, Mr. Justice Eakin correctly finds this to be a settled matter, the question of whether factual findings establish an abnormal working condition is a question of law. citing Martin v. Ketchum, 568 A.2d 159 (Pa. 1990). Mr. Chief Justice Castille [separately writing a concurring and dissenting opinion] agrees with this dissent argument regarding the standard of review.
The gist and relevance of the McCaffery opinion "mixed question" discussion appears to be the "deference" to the WCJ fact finding.
[If you lose the credibility arguments before the WCJ... you will always lose the case! mds].
This sophist argument is taken to its logical conclusions in this case.
The WCJ drafted finding #13, that State Troopers are not, in the normal course of their duties, exposed to the circumstances that occurred in this case...
"... this factual finding is based upon undisputed evidence of a singular extraordinary event occurring during [Employee's] work shift, was founded on substantial evidence of record." slip opinion page 16.
In my opinion, the short-coming of this analysis is that a "unique" set of circumstances must be "abnormal, precisely because it is a unique set of facts, not because those facts culminate in an abnormal work condition.
Unique is not the equivalent of abnormal.
Practice Pointers:
1. This decision, with its faulty analysis should have a limited impact, as mental-mental injury claims are not very prevalent.
Query: will Claimant Counsel be more likely to file mental-mental claims if they know that they can prevail on appeal, if they prevail before a sympathetic WCJ?
2. The defense handling of the mental-mental case remains the same. One must thoroughly explore the claimant's past history. One must document the work duties of the claimant, including the "regular" duties, in additional to the less frequent occurrences in the work place.
NOTE: my law partner Jim Mazzotta handled the appeal in this case, after the WCJ litigation.
I did not participate in this case.
At times, appellate courts have struggled with this issue: What is "abnormal" for a job position which entails, stressful, difficult situations, such as encountered in employment as a police officer or other first responders?
Payes v. WCAB (Commonwealth, PA State Police), No. MAP 2011, an opinion of the Supreme Court of Pennsylvania, authored by Mr. Justice McCaffery on October 30, 2013 addressed this issue.
Factual and Procedural Background
Employee was a PA State Trooper for 12 years.
One evening a woman, dressed in black, ran in front of his patrol car. The car struck her. He administered mouth-to-mouth resuscitation, but she could not be revived. It was later discovered she was mentally disturbed and was seen walking near the highway, prior to this incident.
He was off work for about 5 weeks and then returned to office work, not his normal patrol duties. After 4 days he had recurring feelings of anxiousness and stress. He believed he could not continue to perform his duties as a State Trooper.
Employee filed a claim petition for total disability as a result of Post-Traumatic Stress Disorder (PTSD) from this incident. Employee testified. His Commander testified regarding police training, including stress management, automobile accident response and rendering first aid to accident victims. He described another incident where an individual was struck and killed while dashing in front of an officer's vehicle. Two Troopers testified regarding Employee's return-to-work attempt.
Employee medical experts diagnosed disability as a result of PTSD from this work incident.
Employer medical expert opined employee recovered from the PTSD condition.
WCJ Decision Awarded Benefits
WCJ assigned credibility to Employee testimony and to that of his medical experts.
WCJ found this incident was not a circumstance one would be exposed to in the normal course of performance of one's work duties.
Although state troopers may expect to encounter or be involved in violent situations; such as death, murder, horrible accidents, use of deadly force; this particular incident is not one normally encountered or expected of state troopers.
Employee's mental injury and disability was caused by this abnormal work condition.
WCAB and Commonwealth Court disagreed with the WCJ award.
Commonwealth Court [5 A.3d 855, Pa. Cmwlth. 2010] reasoned that employee's injury did not result from abnormal work conditions.
The events that occurred may have been unusual, but they were not so much more stressful and abnormal than the already highly stressful nature of employee's employment. He was trained to respond to emergency situations and accidents, he was trained to render first aid, it was not extraordinary for him to respond and have a person suffer fatal injuries.
"[Employee], who works"in the line of employment" of a police officer, can be expected to be witness to horrible tragedy... These events will not be deemed "extraordinary" or "abnormal ...".
But for the one "unusual" fact, that Employee was "the one" who struck and killed this individual, there would be no question that a mental-mental injury would not be compensable under these circumstances.
Supreme Court Majority Opinion
The Majority states that the question of whether a claimant has been exposed to abnormal working conditions is a mixed question of law and fact. "Appellate review of this question is a two-step process of reviewing the factual findings and then the legal conclusion.". Slip opinion page 9 and page 10 citing RAG Cyprus Emerald Resources, L.P. (Pa. 2007).
[Writing in dissent, Mr. Justice Eakin correctly finds this to be a settled matter, the question of whether factual findings establish an abnormal working condition is a question of law. citing Martin v. Ketchum, 568 A.2d 159 (Pa. 1990). Mr. Chief Justice Castille [separately writing a concurring and dissenting opinion] agrees with this dissent argument regarding the standard of review.
The gist and relevance of the McCaffery opinion "mixed question" discussion appears to be the "deference" to the WCJ fact finding.
[If you lose the credibility arguments before the WCJ... you will always lose the case! mds].
This sophist argument is taken to its logical conclusions in this case.
The WCJ drafted finding #13, that State Troopers are not, in the normal course of their duties, exposed to the circumstances that occurred in this case...
"... this factual finding is based upon undisputed evidence of a singular extraordinary event occurring during [Employee's] work shift, was founded on substantial evidence of record." slip opinion page 16.
In my opinion, the short-coming of this analysis is that a "unique" set of circumstances must be "abnormal, precisely because it is a unique set of facts, not because those facts culminate in an abnormal work condition.
Unique is not the equivalent of abnormal.
Practice Pointers:
1. This decision, with its faulty analysis should have a limited impact, as mental-mental injury claims are not very prevalent.
Query: will Claimant Counsel be more likely to file mental-mental claims if they know that they can prevail on appeal, if they prevail before a sympathetic WCJ?
2. The defense handling of the mental-mental case remains the same. One must thoroughly explore the claimant's past history. One must document the work duties of the claimant, including the "regular" duties, in additional to the less frequent occurrences in the work place.
NOTE: my law partner Jim Mazzotta handled the appeal in this case, after the WCJ litigation.
I did not participate in this case.
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