The Limited Scope of Medical Fee Review Proceedings.
On December 6, 2013, the Commonwealth Court of Pennsylvania issued an opinion and order in an insurer's appeal, in a Medical Fee Review Petition reported at:
Selective Insurance Company of America v. Bureau of Workers' Compensation Fee Review Hearing Office (The Physical Therapy Institute).
[blog entry December 31, 2013].
The December 6, 2013 opinion concluded that a Medical Fee Review Request is not the appropriate forum to litigate and to determine if a billing company, such as "PTI" a/k/a/ the Physical Therapy Institute, is a medical services "provider", for the purpose of workers' compensation reimbursements and medical fee review remedies.
The Commonwealth Court held that the issue of whether PTI is a "provider" of physical therapy is beyond the scope and jurisdiction of these administrative fee review proceedings. The Fee Review is a simple process with a narrow scope, dealing with the issues of the timeliness or correctness of the amount of reimbursement paid.
The issue of whether PTI is a "provider" entitled to any reimbursement, is a complex issue for a Workers' Compensation Judge to decide. As the Bureau did not have jurisdiction, the Fee Review Determinations were vacated.
The Commonwealth Court granted the PTI Request for Reargument and withdrew the December 6, 2013 opinion and order.
HOWEVER, when the Commonwealth Court issued its final decision on February 4, 2014, the opinion was identical, but for the addition of footnote #9.
Footnote #9 addressed the argument of PTI, that the provider's only recourse is to file a Medical Fee Review Request, as a provider cannot file other types of petitions. Without a Medical Fee Review remedy, the provider would be without any appropriate work comp remedy.
In response, the Court noted that the Work Comp Claimant will often file a petition for Review and/or Penalty, in order to raise the issue of medical expense reimbursements and Employer/Insurer liability to pay.
The Court referenced other known instances where claimants filed a petition to litigate the instant issue of PTI's status as a provider.
The absence of a direct statutory remedy for providers does not mean the Court may expand the scope of review to create a remedy. That is a matter for the legislature.
PRACTICE POINTERS
1. Have an experienced Work Comp Professional review medical billing statements for the presence of any legal argument regarding the "status" of the billing company as a "provider" within the intent and meaning of the Work Comp Act.
2. Perform a cost - benefit analysis... is the amount in controversy sufficient to justify the time and expense of litigation... is it a recurring charge ... is there a significant difference between the Medicare A and Medicare B reimbursement rates?
In Selective, the bills involved were $2,080 and $810. I would hazard a guess that these are recurring expenses, justifying this review and challenge.
Tuesday, February 11, 2014
Wednesday, February 5, 2014
Hurry up ... then wait! Is there Any Remedy for Work Comp Litigation Delays?
A good number of workers' compensation practitioners limit their legal practice, solely to the area of Workers' Compensation. This is true of many Employee and Employer counsel.
With a volume of cases and the corresponding number of hearings and depositions, there is always the possibility of a scheduling conflict. When legal issues of causation and disability necessitate the involvement of medical experts ... and the corresponding task of records production ... there may be further occasions for delay and scheduling conflicts.
Overall, the work comp system runs rather smoothly ... a testament to the congeniality, flexibility and professionalism of many participants. At times, conflict arises.
Each party desires a prompt, well-reasoned resolution of their case.
When there are delays in litigation, there are corresponding delays in obtaining a final result.
A party may believe their position is compromised by this delay.
The Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges provide specific time frames for the production of documents, medical examinations and witness testimony.
However, there is some flexibility in these time deadlines as the WCJ may, for good cause, waive or modify these time deadlines. See: 34 Pa. Code Section 131.3(a).
Wagner v. WCAB (Ty Construction Co. Inc.), No. 1202 C.D. 2013 is a published decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on January 3, 2014.
The issue of delay and the remedies of the parties are addressed in a well reasoned opinion.
Factual and Procedural Background
In March 2011, Employee filed a claim petition for disability due to a diagnosis of small cell lung cancer, alleged as a result of work-related exposure to paint chemicals.
[diagnosis was in January 2011].
The chronology of events, is noteworthy...
April 2011, at the initial hearing the WCJ told counsel to start getting their medical evidence as "it's going to be a long case", recognizing the complexities of this type of litigation.
June 2011, at this hearing (before another WCJ), Employee counsel deferred a medical expert report until documents of the employer work site chemicals were available for review.
Employer counsel agreed to provide this documentation.
The parties agreed Employer would defer a medical exam, until after receipt of Employee's medical expert report.
July 2011, one month later, at this hearing, Employer made a motion for dismissal of the claim petition as Employee failed to produce a medical expert report.
Employee counsel explained that he learned one week earlier that Employee's treating oncologist declined to participate in any legal proceeding. Counsel set out to identify another medical expert.
WCJ denied the motion for dismissal and directed Employee counsel to schedule a deposition of a medical expert with the month.
August 2011, at this hearing, Employer renewed the motion for dismissal.
WCJ granted another 30 days for Employee to obtain a medical expert report, no later than September 24, 2011 or face dismissal of the petition.
*September 22, 2011 Employee obtained a medical expert report.
*Employer scheduled the medical expert deposition for October 2, 2011.
May 2012, the next hearing [footnote 2, the WCJ was on medical leave from January to May of 2012],
The parities "recapped" the events.
Employee Expert deposition was scheduled and postponed so Employer could obtain a medical exam.
Employer medical exam was accomplished in January 2012.
Employee had difficulty rescheduling the October 2011 deposition, due to the Expert's schedule.
Employee requested to defer his medical expert deposition until after the employer witness testified regarding the chemicals used in his business.
WCJ Decision
WCJ granted Employer's renewed Motion for Dismissal, as Employee failed to present evidence within the time limit set by the WCJ.
WCAB affirmed WCJ.
Commonwealth Court Decision
REVERSED WCJ and WCAB.
Case was remanded for further proceedings on the merits of Employee's claim petition.
Employee argued:
Employer argued:
Court Reasoning:
The Special Rules of Administrative Practice ad Procedure before Workers' Compensation Judges govern procedures, promote orderly and expeditious proceedings, consistent with fairness and due process.
[see: 34 Pa. Code 131.1(a)].
The WCJ may, for good cause, waive or modify time deadlines, including the deadline for submission of medical evidence:
" the deposition of a medical expert testifying for the moving party shall be taken
within 90 days of the date of the first hearing scheduled unless the time is
extended or shortened by the [WCJ] for good cause shown."
[34 Pa. Code 131.63(c)].
Delay cause Prejudice to a Party?
When dealing with the dismissal of a case, the WCJ should not dismiss a case, in the absence of prejudice shown by the moving party. [citing David B. Torrey and Andrew E. Greenberg, Workers' Compensation Law and Practice, Section 13:119 (West 2008).]
A WCJ dismissal of a case can be set aside for an abuse of discretion.
[Baird v. WCAB (MCTEL), (Pa. Cmwlth. 1992).]
Baird involved a claim petition where the worker did not submit medical evidence over 2 years.
There was an indefinite postponement during the litigation of a related civil claim.
Employer sought reactivation when Employee did not provide medical reports, as directed by the WCJ.
The worker did not appear for a hearing and the WCJ dismissed the claim!
On appeal the Commonwealth Court reversed, holding, based upon the harshness of this action,
dismissal is only appropriate where prejudice shown by Employer. In Baird there was no prejudice.
A different result was reached in US Airways v. WCAB (McConnell) (Pa. Cmwlth. 2005).
A claim petition was dismissed as claimant failed to attend 3 IME's scheduled by Employer and ordered by the WCJ. The Employer position was prejudiced as they were unable to obtain a pre-surgical IME!
Claim Petition Denial was affirmed on appeal, as the WCJ found prejudice AND the WCJ has discretion to control his docket and order parties to pursue litigation in a timely manner.
Here, Employee argued Baird and US Airways controlled, there must be a finding of prejudice, before there can be a claim dismissal.
Disregard of WCJ direction's
Employer argued Cipollini controls! A finding of "prejudice" is irrelevant.
They believed Cipollini appropriately focused upon the failure of Claimant to present medical evidence, even where directed to do so, by the WCJ.
In Cipollini, Employer objected to the several continuances granted to allow Claimant Attorney to schedule medical expert and fact witness testimony. Counsel failed to do so, despite warnings of closure of the record. The WCJ dismissed the claim because of "counsel's obvious lack of trying".
Dismissal was affirmed, even though claimant's misfortune arose solely from the non-action of her counsel.
Cipollini did not establish that "prejudice" is an irrelevant consideration.
Cipollini was based upon the lack of counsel attempting to comply with directives.
In the instant case, Employee counsel did not ignore WCJ directions, he attempted to comply, even when faced with an unforeseen circumstance, the medical expert refusal to participate in litigation.
The sole factual finding in support of the WCJ claim petition dismissal, is that Employee failed to abide by the WCJ order to schedule a medical deposition by August 19.
This finding was erroneous for 3 reasons:
1. the WCJ had extended this deadline to September 24.
2. Employer agreed Employee met that deadline, the deposition was scheduled , to take place on October 2.
3. This Employee deposition did not take place as Employer counsel requested a continuance!
Reconciling the Rules of law
In Cipollini the delays were caused by claimant counsel.
In contrast, here Employee counsel met the WCJ deadline.
He scheduled his medical expert and was actively trying to reschedule this deposition ... which was postponed as a courtesy to Employer counsel!
"Cipollini was not intended to relieve attorneys of the need to be professional
and respectful of opposing counsel's challenges". slip opinion page 10.
Baird established that a claim petition will not be dismissed for lack of prosecution without evidence of prejudice to the employer.
Cipollini established an exception, where the employee counsel "is not trying".
On these facts, the Cipollini exception does not apply.
Given the lack of prejudice to Employer, the WCJ abused his discretion by dismissing this claim petition.
PRACTICE POINTERS
1. Yes, I have made motions for dismissal.
2. Yes there have been delays in scheduling events in my cases.
3. Yes, at time both attorneys contribute to some delay.
IMO motions for dismissal are "judgment calls" which must be balanced with the instructions of the client and the existence of "real" prejudice (like US Airways case).
4. As a general rule, both Employees and Employers want the case to move towards a conclusion.
This case illustrates the value of case management and keeping the file on your diary ...
to get things scheduled.
This remains my New Year's resolution for 2014.
With a volume of cases and the corresponding number of hearings and depositions, there is always the possibility of a scheduling conflict. When legal issues of causation and disability necessitate the involvement of medical experts ... and the corresponding task of records production ... there may be further occasions for delay and scheduling conflicts.
Overall, the work comp system runs rather smoothly ... a testament to the congeniality, flexibility and professionalism of many participants. At times, conflict arises.
Each party desires a prompt, well-reasoned resolution of their case.
When there are delays in litigation, there are corresponding delays in obtaining a final result.
A party may believe their position is compromised by this delay.
The Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges provide specific time frames for the production of documents, medical examinations and witness testimony.
However, there is some flexibility in these time deadlines as the WCJ may, for good cause, waive or modify these time deadlines. See: 34 Pa. Code Section 131.3(a).
Wagner v. WCAB (Ty Construction Co. Inc.), No. 1202 C.D. 2013 is a published decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on January 3, 2014.
The issue of delay and the remedies of the parties are addressed in a well reasoned opinion.
Factual and Procedural Background
In March 2011, Employee filed a claim petition for disability due to a diagnosis of small cell lung cancer, alleged as a result of work-related exposure to paint chemicals.
[diagnosis was in January 2011].
The chronology of events, is noteworthy...
April 2011, at the initial hearing the WCJ told counsel to start getting their medical evidence as "it's going to be a long case", recognizing the complexities of this type of litigation.
June 2011, at this hearing (before another WCJ), Employee counsel deferred a medical expert report until documents of the employer work site chemicals were available for review.
Employer counsel agreed to provide this documentation.
The parties agreed Employer would defer a medical exam, until after receipt of Employee's medical expert report.
July 2011, one month later, at this hearing, Employer made a motion for dismissal of the claim petition as Employee failed to produce a medical expert report.
Employee counsel explained that he learned one week earlier that Employee's treating oncologist declined to participate in any legal proceeding. Counsel set out to identify another medical expert.
WCJ denied the motion for dismissal and directed Employee counsel to schedule a deposition of a medical expert with the month.
August 2011, at this hearing, Employer renewed the motion for dismissal.
WCJ granted another 30 days for Employee to obtain a medical expert report, no later than September 24, 2011 or face dismissal of the petition.
*September 22, 2011 Employee obtained a medical expert report.
*Employer scheduled the medical expert deposition for October 2, 2011.
May 2012, the next hearing [footnote 2, the WCJ was on medical leave from January to May of 2012],
The parities "recapped" the events.
Employee Expert deposition was scheduled and postponed so Employer could obtain a medical exam.
Employer medical exam was accomplished in January 2012.
Employee had difficulty rescheduling the October 2011 deposition, due to the Expert's schedule.
Employee requested to defer his medical expert deposition until after the employer witness testified regarding the chemicals used in his business.
WCJ Decision
WCJ granted Employer's renewed Motion for Dismissal, as Employee failed to present evidence within the time limit set by the WCJ.
WCAB affirmed WCJ.
Commonwealth Court Decision
REVERSED WCJ and WCAB.
Case was remanded for further proceedings on the merits of Employee's claim petition.
Employee argued:
- There was no evidence that Employer was prejudiced by the unforeseen delay in submission of Employee's medical evidence.
- Part of the delay in the litigation was occasioned by Employer.
- Employee used best efforts to meet the WCJ deadlines and his inability to comply was not his fault, the delay was caused by a third party.
Employer argued:
- Employee was given ample opportunity
- it is irrelevant whether Employer was prejudiced
Court Reasoning:
The Special Rules of Administrative Practice ad Procedure before Workers' Compensation Judges govern procedures, promote orderly and expeditious proceedings, consistent with fairness and due process.
[see: 34 Pa. Code 131.1(a)].
The WCJ may, for good cause, waive or modify time deadlines, including the deadline for submission of medical evidence:
" the deposition of a medical expert testifying for the moving party shall be taken
within 90 days of the date of the first hearing scheduled unless the time is
extended or shortened by the [WCJ] for good cause shown."
[34 Pa. Code 131.63(c)].
Delay cause Prejudice to a Party?
When dealing with the dismissal of a case, the WCJ should not dismiss a case, in the absence of prejudice shown by the moving party. [citing David B. Torrey and Andrew E. Greenberg, Workers' Compensation Law and Practice, Section 13:119 (West 2008).]
A WCJ dismissal of a case can be set aside for an abuse of discretion.
[Baird v. WCAB (MCTEL), (Pa. Cmwlth. 1992).]
Baird involved a claim petition where the worker did not submit medical evidence over 2 years.
There was an indefinite postponement during the litigation of a related civil claim.
Employer sought reactivation when Employee did not provide medical reports, as directed by the WCJ.
The worker did not appear for a hearing and the WCJ dismissed the claim!
On appeal the Commonwealth Court reversed, holding, based upon the harshness of this action,
dismissal is only appropriate where prejudice shown by Employer. In Baird there was no prejudice.
A different result was reached in US Airways v. WCAB (McConnell) (Pa. Cmwlth. 2005).
A claim petition was dismissed as claimant failed to attend 3 IME's scheduled by Employer and ordered by the WCJ. The Employer position was prejudiced as they were unable to obtain a pre-surgical IME!
Claim Petition Denial was affirmed on appeal, as the WCJ found prejudice AND the WCJ has discretion to control his docket and order parties to pursue litigation in a timely manner.
Here, Employee argued Baird and US Airways controlled, there must be a finding of prejudice, before there can be a claim dismissal.
Disregard of WCJ direction's
Employer argued Cipollini controls! A finding of "prejudice" is irrelevant.
They believed Cipollini appropriately focused upon the failure of Claimant to present medical evidence, even where directed to do so, by the WCJ.
In Cipollini, Employer objected to the several continuances granted to allow Claimant Attorney to schedule medical expert and fact witness testimony. Counsel failed to do so, despite warnings of closure of the record. The WCJ dismissed the claim because of "counsel's obvious lack of trying".
Dismissal was affirmed, even though claimant's misfortune arose solely from the non-action of her counsel.
Cipollini did not establish that "prejudice" is an irrelevant consideration.
Cipollini was based upon the lack of counsel attempting to comply with directives.
In the instant case, Employee counsel did not ignore WCJ directions, he attempted to comply, even when faced with an unforeseen circumstance, the medical expert refusal to participate in litigation.
The sole factual finding in support of the WCJ claim petition dismissal, is that Employee failed to abide by the WCJ order to schedule a medical deposition by August 19.
This finding was erroneous for 3 reasons:
1. the WCJ had extended this deadline to September 24.
2. Employer agreed Employee met that deadline, the deposition was scheduled , to take place on October 2.
3. This Employee deposition did not take place as Employer counsel requested a continuance!
Reconciling the Rules of law
In Cipollini the delays were caused by claimant counsel.
In contrast, here Employee counsel met the WCJ deadline.
He scheduled his medical expert and was actively trying to reschedule this deposition ... which was postponed as a courtesy to Employer counsel!
"Cipollini was not intended to relieve attorneys of the need to be professional
and respectful of opposing counsel's challenges". slip opinion page 10.
Baird established that a claim petition will not be dismissed for lack of prosecution without evidence of prejudice to the employer.
Cipollini established an exception, where the employee counsel "is not trying".
On these facts, the Cipollini exception does not apply.
Given the lack of prejudice to Employer, the WCJ abused his discretion by dismissing this claim petition.
PRACTICE POINTERS
1. Yes, I have made motions for dismissal.
2. Yes there have been delays in scheduling events in my cases.
3. Yes, at time both attorneys contribute to some delay.
IMO motions for dismissal are "judgment calls" which must be balanced with the instructions of the client and the existence of "real" prejudice (like US Airways case).
4. As a general rule, both Employees and Employers want the case to move towards a conclusion.
This case illustrates the value of case management and keeping the file on your diary ...
to get things scheduled.
This remains my New Year's resolution for 2014.
Wednesday, January 8, 2014
The Employer's "job offer obligation" and Vocational Expert Evidence
The Employer has a "job offer obligation" as a precursor to the Modification based upon a Vocational Expert Earning Power Assessment.
Prior to the 1996 Amendments to the Pennsylvania Workers' Compensation Act, an Employer could seek a modification of indemnity wage loss benefit payments via an actual job offer to an injured Employee.
An employer had to produce evidence of referral(s) of employee to a then-open job, that fit the occupational category, for which the employee received medical clearance. See: Kachinski v. WCAB (Vepco Construction Company) (Pa. 1987).
In 1996, Section 306(b)(2) of the Act was amended to allow modification of indemnity wage loss benefits based upon a Vocation Expert report of the Earning Power Assessment of the injured Employee.
For over 17 years, many workers' compensation professionals believed that the post-injury earning capacity was to be based upon vocational expert opinion evidence. This supposition was based upon the Legislative amendment, that contained this specific unambiguous language:
" Earning power shall be determined by the work the employee is capable of performing
and shall be based upon expert opinion evidence...".
Recently the Pennsylvania Supreme Court interpreted this statutory language to require consideration of the employee's opportunity and effort to seek and apply to job positions included in the Vocational Expert opinion evidence. See: Phoenixville Hospital v. WCAB ( Pa. November 21, 2013).
[See: PaWCdefense entry at December 9, 2013].
Reichert v. WCAB (Dollar Tree Stores) No. 42 C.D.2013, is a recently reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Brobson on November 8, 2013 ...
just a few weeks before the Supreme Court decision in Phoenixville Hospital.
[Reichert Application for Reargument before the Commonwealth Court was denied January 3, 2014].
Th Commonwealth Court decision in Reichert looked at the Employer's obligation to offer a job position to an injured worker, in the context of the Employer pursuing a modification remedy based upon a Vocational Expert Earning Power Assessment.
Factual and Procedural Background
Employee suffered a work injury in 2001.
About 8 years later, the Employer filed a Modification petition in March 2009, which alleged work was generally available to this Employee within his vocational and physical capabilities.
Employer Medical Evidence
This petition was based upon the medical expert opinion testimony of David Baker M.D. that employee was capable of performing work within a light duty capacity.
[generally, lifting of 1-10 lbs frequently; 11-20 lbs occasionally].
Employer Vocational Expert Evidence
John W. Dieckman provided Vocational Expert opinion evidence on behalf of the Employer.
Dieckman stated that he conducted a vocational interview with Employee. He typically will contact the Employer after this interview to determine IF a job offer is possible or feasible with the Employer.
In this case, a representative of Specialty Risk Services, the insurance Third Party Administrator (TPA) for Employer advised Dieckman that Employer was not able to offer employment, consistent with Employee's physical limitations.
Based upon this information from the TPA, he conducted a labor market survey (LMS), in preparation of his Earning Power Assessment (EPA) of Employee. He prepared vocational analysis of 11 job positions, which were reviewed and approved by Dr. Baker.
On cross-examination, Dieckman admitted he did not directly speak with Employer regarding any possible job openings prior to conducting his LMS. He only spoke with the TPA to assess job availability with the Employer. [not a "best practice"].
Employer Supervisor Testimony
Gerald Joka, the Employer's District Manager for 8 years, testified he is in charge of sales, hiring, firing, "pretty much everything to do" with 10 local stores in his district.
He is routinely aware of available, open positions within his 10 stores and he generally described available positions within the retail stores to include: cashiers, stockers, assistant managers, managers, district managers.
Joka testified ALL of these positions are going to require a lot of physical movement.
There is very little "office" work.
Open positions are advertised through a computer based system, which allows on-line applications.
[did this Employee apply to any positions?].
Joka testified he reviewed Dr. Baker's report and the physical restrictions upon Employee.
He stated the Employer did not have ANY open positions-
* from July 28, 2008 ( the date of the LIBC Notice of Ability to Return-to-Work form)
*until March 10, 2009 (the date after the Modification petition was filed)
- that could have comported with Dr. Baker's "extreme" physical limitations for Employee.
[*note: this mirrors the time frame of the employer's job offer obligations as per Regulation 123.301 (b).].
On cross examination, Joka admitted no one asked him to look for a job for this Employee and he was never contacted by the vocational Expert.
Employee Vocational Expert Evidence
Gary A. Young testified on behalf of Employee that all of the jobs in the Dieckman labor market survey were not appropriate for Employee.
Young opined Dieckman has a "mandatory" duty to contact Employer regarding any open and available positions in Employer's retail stores, prior to conducting the labor market survey.
Young testified there were 56 Employer retail locations (within a 50 mile radius of Employee's residence) to illustrate that Joka's testimony regarding positions "open and available" was limited to the 10 stores he supervised, rather than all of the Employer's locations.
Young testified "at the time of my evaluation", the Employer was actively recruiting for workers in various areas.[a rather non-specific assertion!].
On cross-exam Young admitted the Employer website did not list any specific jobs.
Young conceded that Employee likely would NOT be capable of driving a 50 mile radius.
[good cross!].
WCJ Decision in Employer Modification Petition.
Granted!
Employer witness Joka was credible:
(i) all of Employer's jobs require physical activity
(ii) Employer has a return-to-work program for injured workers, but Dr. Baker's physical limitations upon Employee were too extreme,
(iii) he did not have a job position to offer Employee within Dr. Baker's restrictions,
(iv) Joka was aware of the physical demands of the jobs within Employers stores, Joka was aware how jobs may be modified, yet the Employer jobs did not to fit Employee's restrictions.
Accordingly, there were NO open positions with Employer during the timeframe of Employer's job offer obligations.
Employer Vocational Expert Dieckman was credible.
Employee Vocational Expert Testimony was not credible.
Young did not record any of his communications or contacts with various employers (in the LMS/EPA).
Young contacted these Prospective Employers after the LMS was complete and much after the jobs were identified as being available.
[the Phoenixville Hospital issue!].
Young did not visit the Employer website until April 22-29 of 2009.
- AFTER the Modification Petition was filed!
Filing the Petition, concludes the time period of the Employer's job offer obligation!
See: Regulation 123.301 (b)
Young implied Employer could have offered a job to Employee.
BUT, Young conceded on cross, he did not know which positions employer was recruiting for
and he did not know the locations of those jobs.
[ ... again, good cross-exam ... poor rebuttal evidence].
Commonwealth Court Appeal of Employee
Employee argued Employer did not meet its prima facie burden of proof.
Employer failed to establish the absence of open and available positions at Employer's retail stores.
[? Employer burden is to prove a negative?]
Employer Vocational Expert failed to contact the Employer to determine if Employer had any open and available positions for employee PRIOR to conducting the LMS/EPA.
On this basis, Employee argued Employer violated the requirements of Section 306(b)(2) and Regulation 123.310. As a result, the LMS must be declared void ab initio.
Commonwealth Court Decision
Modification Affirmed!
The Court explained the elements of Employer's burden of proof and the Employee's right to submit evidence.
1. The Employer does not have the burden of proving the non-existence of available work at its facility as a necessary element of the Modification Petition.
citing Rosenberg (Pa. Cmwlth. 2008) and Kleinhagen (Pa. Cmwlth. 2010).
2. To the contrary, Employee may present evidence that during the period of the Employer's job offer obligation, that Employer had a specific job vacancy it intended to fill which employee was capable of performing.
3. Upon presentation of Employee's evidence, the burden of proof shifts to Employer to rebut employee's evidence.
4. Here Employer's witness Joka provided undisputed credible testimony of the job demands of Employer's positions and the absence of any available positions within Employee's limitations.
5. Employee may rebut the testimony regarding the availability of positions with Employer...
by demonstrating:
(i) during the period in which employer has a duty to offer a specific job,
(ii) employer is or was actively recruiting for a specific job vacancy,
(iii) that employee is capable of performing, or
(iv) employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing,
(v) which employer intends to fill.
[see: Regulation 123.301(f)].
Here, Employee did not establish by (credible) evidence that Employer was actively recruiting for a specific job vacancy or the Employer posted the existence of a specific job vacancy.
Employee did not rebut Employer's testimony with the non-credible testimony of his vocational expert.
In dicta, the Court notes that Employer's Vocational Expert was not required to contact Employer prior to conducting the LMS/EPA, to determine if there were open and available positions Employee was capable of performing
ALTHOUGH THE COURT NOTES THE VOC EXPERT WAS NOT REQUIRED TO CONTACT THE EMPLOYER, PRIOR TO CONDUCTING THE EPA/LMS,
in my opinion, best practices would dictate otherwise.
PRACTICE POINTERS:
1. It remains my recommendation to have the Vocational Expert "quarterback" the LMS/EPA process, meaning, the Vocational Expert should:
(a) identify an appropriate employer contact for these job availability issues,
(b) contact the employer immediately, upon assignment of the vocational referral as the "employer job offer obligation" commences with the filing of the LIBC 757 "Notice of Ability to Return to Work",
(c) continue periodic contact with the employer rep during the LMS/EPA preparations,
(d) contact the employer rep immediately before the petition is filed... which may be a date after the completion of the LMS/EPA.
These recommendations serve to limit the prospects that the time, effort and expense of a LMS/EPA may be inadvertently defeated by the Employer's job advertising or recruitment efforts, which are efforts that are typically separate and apart from the work comp case litigation efforts.
These 2 worlds may collide and create an adverse result.
Through communication, the parties working on behalf of the Employer may increase the opportunities for a successful litigation (or negotiated settlement) result.
Prior to the 1996 Amendments to the Pennsylvania Workers' Compensation Act, an Employer could seek a modification of indemnity wage loss benefit payments via an actual job offer to an injured Employee.
An employer had to produce evidence of referral(s) of employee to a then-open job, that fit the occupational category, for which the employee received medical clearance. See: Kachinski v. WCAB (Vepco Construction Company) (Pa. 1987).
In 1996, Section 306(b)(2) of the Act was amended to allow modification of indemnity wage loss benefits based upon a Vocation Expert report of the Earning Power Assessment of the injured Employee.
For over 17 years, many workers' compensation professionals believed that the post-injury earning capacity was to be based upon vocational expert opinion evidence. This supposition was based upon the Legislative amendment, that contained this specific unambiguous language:
" Earning power shall be determined by the work the employee is capable of performing
and shall be based upon expert opinion evidence...".
Recently the Pennsylvania Supreme Court interpreted this statutory language to require consideration of the employee's opportunity and effort to seek and apply to job positions included in the Vocational Expert opinion evidence. See: Phoenixville Hospital v. WCAB ( Pa. November 21, 2013).
[See: PaWCdefense entry at December 9, 2013].
Reichert v. WCAB (Dollar Tree Stores) No. 42 C.D.2013, is a recently reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Brobson on November 8, 2013 ...
just a few weeks before the Supreme Court decision in Phoenixville Hospital.
[Reichert Application for Reargument before the Commonwealth Court was denied January 3, 2014].
Th Commonwealth Court decision in Reichert looked at the Employer's obligation to offer a job position to an injured worker, in the context of the Employer pursuing a modification remedy based upon a Vocational Expert Earning Power Assessment.
Factual and Procedural Background
Employee suffered a work injury in 2001.
About 8 years later, the Employer filed a Modification petition in March 2009, which alleged work was generally available to this Employee within his vocational and physical capabilities.
Employer Medical Evidence
This petition was based upon the medical expert opinion testimony of David Baker M.D. that employee was capable of performing work within a light duty capacity.
[generally, lifting of 1-10 lbs frequently; 11-20 lbs occasionally].
Employer Vocational Expert Evidence
John W. Dieckman provided Vocational Expert opinion evidence on behalf of the Employer.
Dieckman stated that he conducted a vocational interview with Employee. He typically will contact the Employer after this interview to determine IF a job offer is possible or feasible with the Employer.
In this case, a representative of Specialty Risk Services, the insurance Third Party Administrator (TPA) for Employer advised Dieckman that Employer was not able to offer employment, consistent with Employee's physical limitations.
Based upon this information from the TPA, he conducted a labor market survey (LMS), in preparation of his Earning Power Assessment (EPA) of Employee. He prepared vocational analysis of 11 job positions, which were reviewed and approved by Dr. Baker.
On cross-examination, Dieckman admitted he did not directly speak with Employer regarding any possible job openings prior to conducting his LMS. He only spoke with the TPA to assess job availability with the Employer. [not a "best practice"].
Employer Supervisor Testimony
Gerald Joka, the Employer's District Manager for 8 years, testified he is in charge of sales, hiring, firing, "pretty much everything to do" with 10 local stores in his district.
He is routinely aware of available, open positions within his 10 stores and he generally described available positions within the retail stores to include: cashiers, stockers, assistant managers, managers, district managers.
Joka testified ALL of these positions are going to require a lot of physical movement.
There is very little "office" work.
Open positions are advertised through a computer based system, which allows on-line applications.
[did this Employee apply to any positions?].
Joka testified he reviewed Dr. Baker's report and the physical restrictions upon Employee.
He stated the Employer did not have ANY open positions-
* from July 28, 2008 ( the date of the LIBC Notice of Ability to Return-to-Work form)
*until March 10, 2009 (the date after the Modification petition was filed)
- that could have comported with Dr. Baker's "extreme" physical limitations for Employee.
[*note: this mirrors the time frame of the employer's job offer obligations as per Regulation 123.301 (b).].
On cross examination, Joka admitted no one asked him to look for a job for this Employee and he was never contacted by the vocational Expert.
Employee Vocational Expert Evidence
Gary A. Young testified on behalf of Employee that all of the jobs in the Dieckman labor market survey were not appropriate for Employee.
Young opined Dieckman has a "mandatory" duty to contact Employer regarding any open and available positions in Employer's retail stores, prior to conducting the labor market survey.
Young testified there were 56 Employer retail locations (within a 50 mile radius of Employee's residence) to illustrate that Joka's testimony regarding positions "open and available" was limited to the 10 stores he supervised, rather than all of the Employer's locations.
Young testified "at the time of my evaluation", the Employer was actively recruiting for workers in various areas.[a rather non-specific assertion!].
On cross-exam Young admitted the Employer website did not list any specific jobs.
Young conceded that Employee likely would NOT be capable of driving a 50 mile radius.
[good cross!].
WCJ Decision in Employer Modification Petition.
Granted!
Employer witness Joka was credible:
(i) all of Employer's jobs require physical activity
(ii) Employer has a return-to-work program for injured workers, but Dr. Baker's physical limitations upon Employee were too extreme,
(iii) he did not have a job position to offer Employee within Dr. Baker's restrictions,
(iv) Joka was aware of the physical demands of the jobs within Employers stores, Joka was aware how jobs may be modified, yet the Employer jobs did not to fit Employee's restrictions.
Accordingly, there were NO open positions with Employer during the timeframe of Employer's job offer obligations.
Employer Vocational Expert Dieckman was credible.
Employee Vocational Expert Testimony was not credible.
Young did not record any of his communications or contacts with various employers (in the LMS/EPA).
Young contacted these Prospective Employers after the LMS was complete and much after the jobs were identified as being available.
[the Phoenixville Hospital issue!].
Young did not visit the Employer website until April 22-29 of 2009.
- AFTER the Modification Petition was filed!
Filing the Petition, concludes the time period of the Employer's job offer obligation!
See: Regulation 123.301 (b)
Young implied Employer could have offered a job to Employee.
BUT, Young conceded on cross, he did not know which positions employer was recruiting for
and he did not know the locations of those jobs.
[ ... again, good cross-exam ... poor rebuttal evidence].
Commonwealth Court Appeal of Employee
Employee argued Employer did not meet its prima facie burden of proof.
Employer failed to establish the absence of open and available positions at Employer's retail stores.
[? Employer burden is to prove a negative?]
Employer Vocational Expert failed to contact the Employer to determine if Employer had any open and available positions for employee PRIOR to conducting the LMS/EPA.
On this basis, Employee argued Employer violated the requirements of Section 306(b)(2) and Regulation 123.310. As a result, the LMS must be declared void ab initio.
Commonwealth Court Decision
Modification Affirmed!
The Court explained the elements of Employer's burden of proof and the Employee's right to submit evidence.
1. The Employer does not have the burden of proving the non-existence of available work at its facility as a necessary element of the Modification Petition.
citing Rosenberg (Pa. Cmwlth. 2008) and Kleinhagen (Pa. Cmwlth. 2010).
2. To the contrary, Employee may present evidence that during the period of the Employer's job offer obligation, that Employer had a specific job vacancy it intended to fill which employee was capable of performing.
3. Upon presentation of Employee's evidence, the burden of proof shifts to Employer to rebut employee's evidence.
4. Here Employer's witness Joka provided undisputed credible testimony of the job demands of Employer's positions and the absence of any available positions within Employee's limitations.
5. Employee may rebut the testimony regarding the availability of positions with Employer...
by demonstrating:
(i) during the period in which employer has a duty to offer a specific job,
(ii) employer is or was actively recruiting for a specific job vacancy,
(iii) that employee is capable of performing, or
(iv) employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing,
(v) which employer intends to fill.
[see: Regulation 123.301(f)].
Here, Employee did not establish by (credible) evidence that Employer was actively recruiting for a specific job vacancy or the Employer posted the existence of a specific job vacancy.
Employee did not rebut Employer's testimony with the non-credible testimony of his vocational expert.
In dicta, the Court notes that Employer's Vocational Expert was not required to contact Employer prior to conducting the LMS/EPA, to determine if there were open and available positions Employee was capable of performing
ALTHOUGH THE COURT NOTES THE VOC EXPERT WAS NOT REQUIRED TO CONTACT THE EMPLOYER, PRIOR TO CONDUCTING THE EPA/LMS,
in my opinion, best practices would dictate otherwise.
PRACTICE POINTERS:
1. It remains my recommendation to have the Vocational Expert "quarterback" the LMS/EPA process, meaning, the Vocational Expert should:
(a) identify an appropriate employer contact for these job availability issues,
(b) contact the employer immediately, upon assignment of the vocational referral as the "employer job offer obligation" commences with the filing of the LIBC 757 "Notice of Ability to Return to Work",
(c) continue periodic contact with the employer rep during the LMS/EPA preparations,
(d) contact the employer rep immediately before the petition is filed... which may be a date after the completion of the LMS/EPA.
These recommendations serve to limit the prospects that the time, effort and expense of a LMS/EPA may be inadvertently defeated by the Employer's job advertising or recruitment efforts, which are efforts that are typically separate and apart from the work comp case litigation efforts.
These 2 worlds may collide and create an adverse result.
Through communication, the parties working on behalf of the Employer may increase the opportunities for a successful litigation (or negotiated settlement) result.
Monday, January 6, 2014
New Maximum Pennsylvania Workers' Compensation Rate for 2014
New Maximum Pennsylvania Workers' Compensation Wage Loss Benefit rates for 2014.
The Department of Labor and Industry of Pennsylvania, Bureau of Workers" Compensation has announced a Maximum wage loss benefit rate of $932.00 for any work injury occurring on or after January 1, 2014.
Employees earning $1,398.01 or more, will be entitled to this weekly total disability rate (TTD).
Employees earning between $699.01 and $1,398.00 a week, will be entitled to a TTD rate at 66 2/3% of their average weekly wage.
Employees earning between $517.78 and 699.00 a week, will be entitled to a TTD rate of $466.00 per week
Employees earning $517.77 or less will be entitled to a TTD rate based upon 90% of their average weekly wage.
For purposes of calculating the update to payments for medical treatments rendered on and after January 1, 2014, the percentage increase in the Statewide Average Weekly Wage is 1.6%
The Department of Labor and Industry of Pennsylvania, Bureau of Workers" Compensation has announced a Maximum wage loss benefit rate of $932.00 for any work injury occurring on or after January 1, 2014.
Employees earning $1,398.01 or more, will be entitled to this weekly total disability rate (TTD).
Employees earning between $699.01 and $1,398.00 a week, will be entitled to a TTD rate at 66 2/3% of their average weekly wage.
Employees earning between $517.78 and 699.00 a week, will be entitled to a TTD rate of $466.00 per week
Employees earning $517.77 or less will be entitled to a TTD rate based upon 90% of their average weekly wage.
For purposes of calculating the update to payments for medical treatments rendered on and after January 1, 2014, the percentage increase in the Statewide Average Weekly Wage is 1.6%
Friday, January 3, 2014
Can you Correct "Mistaken" Work Comp Benefit Payments?
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.
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.
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.
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