Section 204(a) Offsets to Pension, Severance and "Old Age" Social Security benefits.
In 1996 the Pennsylvania Workers' Compensation Act was amended to allow an Employer to offset its workers' compensation benefit payment liability by the amount of pension benefits paid to the injured Employee. There were several requirements.
The Pension offset was available, to the extent the pension was funded by the Employer.
This is the Employer directly responsible for work comp benefit payments.
The Employer can be insured or self-insured.
The Employee must receive the pension benefits, not just be entitled to receive them.
The vast majority of appellate litigation of pension offset issues address the pension funding question.
In Governmental body defined benefit plans, the question is: What is the amount funded by the employer, where amounts are paid into the plan on a "group" basis.
When a Corporation is bought/sold/merged, similar pension funding issues arise.
Stepp v. WCAB (FairPoint Communications, Inc.) No. 2270 C.D. 2013, a published panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on September 10, 2014, addressed this pension funding issue.
Factual and Procedural Background
Employee began work with Marianna Scenery Hill Telephone Company in 1973.
In 2000 FairPoint Communications Inc. acquired Marianna,
Employee sustained a back injury in 2008 and received total disability benefits via Notice of Compensation Payable (LIBC 495).
October 2010,Employee began receiving pension benefits.
January 2011, FairPoint filed a Notice of Workers' Compensation Benefit Offset (LIBC-761).
Employee filed a Petition for Review of the Pension Offset.
[Employer also filed a Petition for Suspension/Modification in July 2010 based upon medical examination and work availability. The WCJ accepted this evidence and modified total disability of $733.67 per week to a partial disability benefit rate of $123.01 per week.
This decision does not directly impact the pension funding issue, as a pension offset is available against total or partial disability benefits.].
WCJ Decision
Employee Petition for Review was denied.
FairPoint was entitled to the pension offset against the workers' compensation benefits paid.
WCJ found Marianna and FairPoint were the same entity for the purpose of determining whether Employee's work comp benefits were subject to an offset.
WCJ (mis-) calculated a net Employee work comp benefit rate as $310.40 per week.
WCAB Appeal by Employee
WCAB affirmed WCJ conclusion FairPoint was entitled to a pension offset.
WCAB "corrected" WCJ calculations.
Pension offset of $423.27 per week, applied against Employee modified indemnity wage loss benefit of $123.01 per week, resulted in $0 due and a suspension of work comp benefit payments.
Commonwealth Court Appeal of Employee
Employee argued FairPoint was not entitled to a pension offset as his pension plan was funded by Marianna, a different, still existing corporation.
Court referred to its prior statement of the legislative intent of the Section 204(a) amendment, in Pennsylvania State University v. WCAB (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006).
"In 1996, the legislature, attempting to combat the increasing costs of workers' compensation in Pennsylvania, amended Section 204(a) of the Act to allow employers an offset against workers' compensation benefits for social security, severance and pension benefits simultaneously received by an employee.
...Amended Section 204(a) serves the legislative intent of reducing the cost of workers' compensation by allowing an employer to avoid paying duplicate benefits for the same loss of earnings. Similarly, Section 204(a) implicitly recognizes that public policy bars an employer from utilizing an employee's own retirement funds to satisfy its workers' compensation obligation."
In a Petition for Review of a Pension Offset, the burden of proof remains upon the Employer, as it is the party seeking to change the benefit status of the employee.The employer bears the burden to prove the extent to which it funded the pension plan.
In Stepp, the percentage of funding by Marianna was not challenged by Employee.
Employee asserted error in allowing FairPoint any offset for the amounts funded by Marianna.
Court cited LTV Steel Corporation Inc. v WCAB (Mozena) 754 A.2d 666 (Pa. 2000) for the proposition, when corporations merge " the surviving corporation succeeds to both the rights and liabilities of the constituent corporation".
Mozena were hearing loss claim,s where the Supreme Court decision allowed consideration of all time periods and occupational noise exposure, in assessing the liability of LTV. This was based upon the authority of the Business Corporation Law of 1988, Section 1929.
"The mergers acquisitions or other changes in corporate structure from 1974 to 1984 did not constitute the creation of a new employer for determining the amount of hearing loss caused by any one employer. The totality of circumstances reflected that the new owner was a successor-in-interest and not a new employer.
The facts in Stepp bear repeating, as they made be important to assess their significance when discussing this decision, in regards to its application to other "merger" circumstances.
Employer presented the deposition of its benefits manager, J. Coan.
FairPoint's acquisition of Marianna was described as a "merger and fast purchase".
FairPoint held the stock of Marianna.
Marianna became a wholly owned second tier subsidiary of FairPoint in 2001.
Fairpoint acquired and maintains all human resources and employee benefit books and records of Marianna, including those before 2001.
After 2001 Marianna remained an active Company and all Marianna employees continued as Marianna employees, even though the had a new Parent Company and were part of the FairPoint family of subsidiaries.
The Court noted in Stepp, all employees in the FairPoint "family of subsidiaries" were covered by the same workers compensation plan. (slip opinion page 2).
Employee argues the "merger" of Mariana and FairPoint was not a true merger of the type described in the Section 1929 of the BCL of 1988.
On this point, the Commonwealth Court seems to return to its review of the legislation intent of the 1996 Amendments, in concluding, that Employee's position would effectively erase consideration of Marianna's pension plan contributions and result in a windfall to Employee.
Practice Pointers:
1. Employers should be diligent in review and monitoring the pension status of all employees receiving workers compensation benefits.
2. The availability and application of the benefit offset provisions may be significant.
In the above case, the work comp liability for partial disability was reduced from $123.01 per week to "0".
3. Equally significant is the Employer's success in reducing its total disability benefit from $733.67 per week to a partial rate of $123.01 per week.
This significant change in benefit liability was based upon the "old fashion" remedy of medical examination and establishing work available within the employee's limitations!
Kudo's, to Employer for the foresight to pursue of 2 different remedies for reduction of work comp liability, as available by the Act.
Tuesday, October 28, 2014
Friday, October 24, 2014
Work Injury AFTER a Voluntary Quit ... Work Comp or Civil Liability?
Is the Injured Employee always limited to the Workers Compensation Remedy?
Can an Employee sue the Employer?
If he/she sues ... is the work comp act a "defense" to the civil action?
... is that an Admission in a work comp claim?
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It has been said that remedies of the Workers' Compensation Act may be considered a "shield" or protection to the Employer from the financial exposure of Civil Litigation. In Workers' Compensation claims, an injured employee has a "limited" remedy against the Employer for wage loss and medical expense. There is no payment for "pain and suffering" or the "loss of consortium" of one's spouse.
Can an Employee sue the Employer?
If he/she sues ... is the work comp act a "defense" to the civil action?
... is that an Admission in a work comp claim?
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It has been said that remedies of the Workers' Compensation Act may be considered a "shield" or protection to the Employer from the financial exposure of Civil Litigation. In Workers' Compensation claims, an injured employee has a "limited" remedy against the Employer for wage loss and medical expense. There is no payment for "pain and suffering" or the "loss of consortium" of one's spouse.
At times the injured employee may attempt a civil action remedy. In one reported instance, the employee was on a sidewalk, when a trip and fall injury occurred. The employee desires the civil action remedy available to "a member of the general public". The employer wants the "protection" of the workers compensation act, with the avoidance of additional damages.
See: Gertz v. Temple University, 661 A.2d 13 (Pa. Super. 1995), where the sidewalk was considered part of the Employer's business premises and Employer avoided civil action damages.
See: Gertz v. Temple University, 661 A.2d 13 (Pa. Super. 1995), where the sidewalk was considered part of the Employer's business premises and Employer avoided civil action damages.
Does the Employer assertion of factual and legal arguments in that civil action, bind the Employer in the subsequent work comp claim?
... They may.
Marazas v. WCAB (Vitas Healthcare Corporation), No. 337 C.D. 2014, a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on August 11, 2014 addressed these issues.
Factual and Procedural Background
Employee filed a civil action, seeking damages for injuries sustained when he was on the Employer business premises, allegedly as a "business invitee".
Employee worked with Vitas as a driver technician.
He delivered and picked up medical equipment and furniture.
He quit his job as a driver technician.
After he told his boss "he quit", his manager told him to remove his personal belongings from the work truck. His manager escorted him, as per company policy.
After removing his personal items, he tripped over a pallet jack.
Injuries involved the upper, middle and lower back, with the left ankle and knee.
His manager observed this trip and fall.
In the civil action, Employer asserted plaintiff was in the scope of his employment at the time of his injury. The Work Comp Act was his exclusive remedy.
Employee withdrew the civil action and filed a Work Comp Claim Petition!
WCJ Decision
WCJ awarded Employee temporary total disability benefits for a closed period.
WCAB Appeal of Employer
Employer argued Employee terminated the employment relationship prior to his injury, such that his injury was not covered by the Work Comp Act.
WCAB vacated and remanded, to assess whether Employee was within the scope of his employment at the time of his injury.
WCJ Remand Decision
WCJ admitted additional documents, including the Court of Common Pleas civil action documents.
In these pleadings, employer denied Plaintiff was a business invitee and admitted Plaintiff was its employee.
WCJ found Employee quit before his injury BUT he remained in the scope of employment as he was "furthering Employer's business interests". He was injured where his employer directed him to go, to perform the requested task, when he was removing his personal belongings.
WCAB Remand Decision
Reversed WCJ award.
WCAB relied upon Little v. WCAB (B&L Ford/Chevrolet) 23 A.3d 637 (Pa. Cmwlth. 2011).
Employee quit before his injury. Injury occurred as a consequence of the final act of employment, therefore it was not compensable.
Commonwealth Court Arguments and Decision
1. Employer admitted Employee status in civil action pleadings.
Employer is estopped from denying that fact in work comp proceedings.
Did Employee waive this argument?
WCJ did not err in admission of civil action documents on remand. WCAB remand order did not preclude acceptance of additional evidence. This evidence was relevant to determining the remand topic - employment status.
Court rejected Employer argument that Employee waived estoppel argument by not raising it before the WCJ and WCAB in the first instance...
"we discern no merit in the waiver argument" slip opinion page 7.
[hmmm... so its OK to raise argument for the first time after remand].
The Court explained the doctrine of judicial estoppel:
"as a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained. Accordingly, judicial estoppel is properly applied only if the court concludes the following: (1) that the appellant assumed an inconsistent position in an earlier action; and (2) that the appellant's contention was "successfully maintained" in that action."
citing Canot v. City of Easton, 37 A.3d 53, 60 (Pa. Cmwlth. 2012).
As for the first element, the Court believed Employer position in civil action pleadings was inconsistent with work comp litigation. In the civil action proceedings, Employer admitted plaintiff was an employee "within the course and scope of employment" at the time of his injury.
Is there the second element of Judicial Estoppel, a "successfully maintained" position, where the civil action was withdrawn?
No. This element looks to the action of the decision-maker, not the action of the parties. A statement of a prior inconsistent statement, in an adjudicated matter is not sufficient.
Judicial Estoppel did not apply to Employer's arguments.
2. Scope of Employment Arguments
Scope of Employment is a legal conclusion, to be made based upon a WCJ's factual determinations.
Here, the WCJ found Employee quit before his injury.
It was undisputed he remained on Employer's premises.
Employee was acting at Employer's direction, when he performed the removal of his personal belongings.
The term "arising in the course of employment" is a necessary element of the Employee proof of a compensable work injury.
This term has been construed to include injury:
- sustained in the furtherance of the business or affairs of the employer,
- sustained on premises occupied or controlled by Employer.
The act of going to or leaving the employee's work station is a necessary part of one's employment, thus furthering the employers interest. citing: Allegheny Ludlum Corp. v. WCAB (Hines), 913 A.2d 345 (Pa. Cmwlth. 2006).
The Court noted, more important than the temporal proximity of the injury to the claimant's shift, is the claimant's purpose or activity at the time of injury. citing: Ace Wire Spring & Form Co. v. WCAB (Walshesky) (Pa. Cmwlth. June 10, 2014).
Employer argued that Employee cannot be considered to be "within the scope of employment" after that employment has ended! [remember that voluntary quit thing...].
The Court distinguished the denial of benefits in Little v. WCAB (B&L Ford/Chevrolet), where a claimant had a heart attack at his residence, days after his last day of work.
Practice Pointers:
A. This case highlights the necessity of the Employer team determining a litigation plan. Do we want to defend a civil action or a work comp claim? Can we defend both?
B. Is claimant an "employee", who is no longer within the scope of any employment?
Logically I have difficulty with the concept that this Employee voluntarily quit, he terminated the employment relationship, BUT it furthers the Employer interest for him to remove his personal belongings?
No, it is for the convenience of the former employee that he was allowed to collect his belongings and not wait to receive them later!
The fact that claimant sustained his injury in temporal proximity to the end of his work shift, is equally unpersuasive. Those cases deal with an individual who maintains a work relationship, not terminates a work relationship, at the end of the work shift.
C. ... in the end, if you do not want the individual to pursue a civil action remedy ... you are stuck in the work comp process ... I just have difficulty with the twisting, bending, contorting case precedents to justify the conclusion reached in this case. I guess I envision future claims of terminated workers alleging injury and pointing to this decision.
D. EMPLOYER'S NEW RULE ... when an employer QUITS or is terminated ... immediately escort them from the building ... send their stuff to them in a box!
Employee filed a civil action, seeking damages for injuries sustained when he was on the Employer business premises, allegedly as a "business invitee".
Employee worked with Vitas as a driver technician.
He delivered and picked up medical equipment and furniture.
He quit his job as a driver technician.
After he told his boss "he quit", his manager told him to remove his personal belongings from the work truck. His manager escorted him, as per company policy.
After removing his personal items, he tripped over a pallet jack.
Injuries involved the upper, middle and lower back, with the left ankle and knee.
His manager observed this trip and fall.
In the civil action, Employer asserted plaintiff was in the scope of his employment at the time of his injury. The Work Comp Act was his exclusive remedy.
Employee withdrew the civil action and filed a Work Comp Claim Petition!
WCJ Decision
WCJ awarded Employee temporary total disability benefits for a closed period.
WCAB Appeal of Employer
Employer argued Employee terminated the employment relationship prior to his injury, such that his injury was not covered by the Work Comp Act.
WCAB vacated and remanded, to assess whether Employee was within the scope of his employment at the time of his injury.
WCJ Remand Decision
WCJ admitted additional documents, including the Court of Common Pleas civil action documents.
In these pleadings, employer denied Plaintiff was a business invitee and admitted Plaintiff was its employee.
WCJ found Employee quit before his injury BUT he remained in the scope of employment as he was "furthering Employer's business interests". He was injured where his employer directed him to go, to perform the requested task, when he was removing his personal belongings.
WCAB Remand Decision
Reversed WCJ award.
WCAB relied upon Little v. WCAB (B&L Ford/Chevrolet) 23 A.3d 637 (Pa. Cmwlth. 2011).
Employee quit before his injury. Injury occurred as a consequence of the final act of employment, therefore it was not compensable.
Commonwealth Court Arguments and Decision
1. Employer admitted Employee status in civil action pleadings.
Employer is estopped from denying that fact in work comp proceedings.
Did Employee waive this argument?
WCJ did not err in admission of civil action documents on remand. WCAB remand order did not preclude acceptance of additional evidence. This evidence was relevant to determining the remand topic - employment status.
Court rejected Employer argument that Employee waived estoppel argument by not raising it before the WCJ and WCAB in the first instance...
"we discern no merit in the waiver argument" slip opinion page 7.
[hmmm... so its OK to raise argument for the first time after remand].
The Court explained the doctrine of judicial estoppel:
"as a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained. Accordingly, judicial estoppel is properly applied only if the court concludes the following: (1) that the appellant assumed an inconsistent position in an earlier action; and (2) that the appellant's contention was "successfully maintained" in that action."
citing Canot v. City of Easton, 37 A.3d 53, 60 (Pa. Cmwlth. 2012).
As for the first element, the Court believed Employer position in civil action pleadings was inconsistent with work comp litigation. In the civil action proceedings, Employer admitted plaintiff was an employee "within the course and scope of employment" at the time of his injury.
Is there the second element of Judicial Estoppel, a "successfully maintained" position, where the civil action was withdrawn?
No. This element looks to the action of the decision-maker, not the action of the parties. A statement of a prior inconsistent statement, in an adjudicated matter is not sufficient.
Judicial Estoppel did not apply to Employer's arguments.
2. Scope of Employment Arguments
Scope of Employment is a legal conclusion, to be made based upon a WCJ's factual determinations.
Here, the WCJ found Employee quit before his injury.
It was undisputed he remained on Employer's premises.
Employee was acting at Employer's direction, when he performed the removal of his personal belongings.
The term "arising in the course of employment" is a necessary element of the Employee proof of a compensable work injury.
This term has been construed to include injury:
- sustained in the furtherance of the business or affairs of the employer,
- sustained on premises occupied or controlled by Employer.
The act of going to or leaving the employee's work station is a necessary part of one's employment, thus furthering the employers interest. citing: Allegheny Ludlum Corp. v. WCAB (Hines), 913 A.2d 345 (Pa. Cmwlth. 2006).
The Court noted, more important than the temporal proximity of the injury to the claimant's shift, is the claimant's purpose or activity at the time of injury. citing: Ace Wire Spring & Form Co. v. WCAB (Walshesky) (Pa. Cmwlth. June 10, 2014).
Employer argued that Employee cannot be considered to be "within the scope of employment" after that employment has ended! [remember that voluntary quit thing...].
The Court distinguished the denial of benefits in Little v. WCAB (B&L Ford/Chevrolet), where a claimant had a heart attack at his residence, days after his last day of work.
Practice Pointers:
A. This case highlights the necessity of the Employer team determining a litigation plan. Do we want to defend a civil action or a work comp claim? Can we defend both?
B. Is claimant an "employee", who is no longer within the scope of any employment?
Logically I have difficulty with the concept that this Employee voluntarily quit, he terminated the employment relationship, BUT it furthers the Employer interest for him to remove his personal belongings?
No, it is for the convenience of the former employee that he was allowed to collect his belongings and not wait to receive them later!
The fact that claimant sustained his injury in temporal proximity to the end of his work shift, is equally unpersuasive. Those cases deal with an individual who maintains a work relationship, not terminates a work relationship, at the end of the work shift.
C. ... in the end, if you do not want the individual to pursue a civil action remedy ... you are stuck in the work comp process ... I just have difficulty with the twisting, bending, contorting case precedents to justify the conclusion reached in this case. I guess I envision future claims of terminated workers alleging injury and pointing to this decision.
D. EMPLOYER'S NEW RULE ... when an employer QUITS or is terminated ... immediately escort them from the building ... send their stuff to them in a box!
Monday, September 29, 2014
Malingering and Modification of Total Disability via LMS/EPA
Malingering and the Employer Remedy for Modification of alleged Total Disability via a Vocational Expert Labor Market Survey and Earning Power Assessment.
An Employer may limit the time duration of total disability indemnity wage loss payments via an Impairment Rating Evaluation. (IRE) A successful IRE results in a limitation of Partial Disability Indemnity wage loss benefits for a duration of 500 weeks, albeit at the total disability compensation benefit rate.
An Employer may limit the amount and duration of indemnity wage loss benefits via a Petition for Modification/Suspension based upon:
(i) medical expert evidence of a post-injury physical capacity for a category of work;
(ii) vocational expert evidence of a post-injury earning capacity via a Labor Market
Survey (LMS) and an Earning Power Assessment (EPA);
(iii) compliance of the employer job offer obligations.
What is the medical evidence requirement for Modification/Suspension?
The Supreme Court of Pennsylvania stated that the employer must demonstrate, with medical evidence, that the claimant's current physical condition has changed since the time of the last disability adjudication. See: Lewis v. WCAB (Giles & Ransome, Inc.), 919 A.2d 922 (Pa. 2007).
The necessary change in condition has been defined as "any change in the claimant's physical well-being that affects his ability to work. Lewis 919 A.2d at 926. [...not very helpful].
"... it can be the total recovery from an illness or merely the symptoms [have] subsided."
919 A.2d at 926.
Where a modification is based upon earning capacity, it is not necessary to demonstrate that a claimant's diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment.
See: Simmons v. WCAB (Powertrack International), No. 2168 C.D. 2013, a decision of a panel of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on July 24, 2014.
Factual and Procedural Background
Employee received total disability benefits for a 2001 work injury described as a closed head injury resulting in post-concussive syndrome.
Employer was unsuccessful in 2 prior Termination Petitions.
The WCJ did not make specific findings regarding Employee's condition in denial of the 2nd Termination petition He found employee credible that his subjective complaints remained the same as at the time of the 1st Termination petition proceedings.
In the 1st Termination petition the WCJ credited Dr. Taylor and Employee that he suffered from depressive disorder, cognitive disorder, post-concussive syndrome.
Symptoms were: headaches, unsteadiness, memory problems, reduced activity, reduced social interaction, depression.
Employee medical evidence (credited by the WCJ) found the symptoms consistent with the diagnoses; there were no signs of symptom magnification or malingering; Employee was not capable of returning to work.
Employer Modification Petition Medical Evidence
Eric Fishman, Ph.D, a neuropsychologist, evaluated Employee in February 2008, administered neuropsych testing and review prior medical records and test results.
His diagnosis was probable malingered neuro-cognitive dysfunction.
He opined Employee was capable of returning to full-time employment.
He reviewed and approved the jobs which were include in the LMS/EPA vocational expert report.
[NOTE: Employee alleged ongoing symptoms, limited activity and disability. His use of a computer was disputed. However, Public website postings included on-line greetings, comments on photos, and other communications. Surveillance documented travel and attendance at auto races].
WCJ Decision
The WCJ made specific findings regarding Employee's activities and the inconsistency with his assertions of total disability!
WCJ granted Employer's petition for Modification.
WCAB Affirmed WCJ decision.
Employee appealed to Commonwealth Court.
Employee Appellate Argument:
The Employee argued Employer failed to demonstrate his condition had changed since the last termination petition proceeding. The Commonwealth Court rejected this argument.
Commonwealth Court Reasoning
"Contrary to Claimant's position, a diagnosis of malingering can be a sufficient change in condition as a matter of law to support a modification of benefits, if it leads the medical expert to conclude that the claimant's disability or ability to work has changed". slip opinion page 10.
Here, the Employer medical expert opinion was supported by evidence of Employee's activities and the WCJ observation of Employee at several hearings, which suggested Employee's subjective complaints were not as severe as he described or had improved since the last proceeding.
The fact that other medical experts found valid test performance and no signs of malingering five (5) years earlier did not preclude a current diagnosis of malingering.
PRACTICE POINTERS:
1. This appellate decision provides an additional basis for modification. We know we need to establish a "change" in Employee medical condition. There is some debate as to what "change" is required to establish Employer's burden to proof.
We know from Folmer v. WCAB (Swift Transportation) (Pa. Cmwlth. 2008) that a "change" in the evaluation of the credibility of claimant's "pain complaints" can be a sufficient change of condition. Simmons adds to that line of thinking.
2. As Employer can never be certain that the WCJ will find claimant "no longer credible", it is prudent to attempt to establish a change of claimant's status via medical expert evidence of:
(i) a change of physical capabilities;
(ii) a change of physical exam findings;
(iii) a change of reported symptoms.
3. Simmons also demonstrates the value of investigation of claimant activities, as a means to challenge claimant's credibility. Examination of public information from social media may document discrepancies from the claimant's professed status. This preliminary (low-cost) type of review, may also form the basis for a more in-depth investigation and surveillance of activities.
An Employer may limit the time duration of total disability indemnity wage loss payments via an Impairment Rating Evaluation. (IRE) A successful IRE results in a limitation of Partial Disability Indemnity wage loss benefits for a duration of 500 weeks, albeit at the total disability compensation benefit rate.
An Employer may limit the amount and duration of indemnity wage loss benefits via a Petition for Modification/Suspension based upon:
(i) medical expert evidence of a post-injury physical capacity for a category of work;
(ii) vocational expert evidence of a post-injury earning capacity via a Labor Market
Survey (LMS) and an Earning Power Assessment (EPA);
(iii) compliance of the employer job offer obligations.
What is the medical evidence requirement for Modification/Suspension?
The Supreme Court of Pennsylvania stated that the employer must demonstrate, with medical evidence, that the claimant's current physical condition has changed since the time of the last disability adjudication. See: Lewis v. WCAB (Giles & Ransome, Inc.), 919 A.2d 922 (Pa. 2007).
The necessary change in condition has been defined as "any change in the claimant's physical well-being that affects his ability to work. Lewis 919 A.2d at 926. [...not very helpful].
"... it can be the total recovery from an illness or merely the symptoms [have] subsided."
919 A.2d at 926.
Where a modification is based upon earning capacity, it is not necessary to demonstrate that a claimant's diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment.
See: Simmons v. WCAB (Powertrack International), No. 2168 C.D. 2013, a decision of a panel of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on July 24, 2014.
Factual and Procedural Background
Employee received total disability benefits for a 2001 work injury described as a closed head injury resulting in post-concussive syndrome.
Employer was unsuccessful in 2 prior Termination Petitions.
The WCJ did not make specific findings regarding Employee's condition in denial of the 2nd Termination petition He found employee credible that his subjective complaints remained the same as at the time of the 1st Termination petition proceedings.
In the 1st Termination petition the WCJ credited Dr. Taylor and Employee that he suffered from depressive disorder, cognitive disorder, post-concussive syndrome.
Symptoms were: headaches, unsteadiness, memory problems, reduced activity, reduced social interaction, depression.
Employee medical evidence (credited by the WCJ) found the symptoms consistent with the diagnoses; there were no signs of symptom magnification or malingering; Employee was not capable of returning to work.
Employer Modification Petition Medical Evidence
Eric Fishman, Ph.D, a neuropsychologist, evaluated Employee in February 2008, administered neuropsych testing and review prior medical records and test results.
His diagnosis was probable malingered neuro-cognitive dysfunction.
He opined Employee was capable of returning to full-time employment.
He reviewed and approved the jobs which were include in the LMS/EPA vocational expert report.
[NOTE: Employee alleged ongoing symptoms, limited activity and disability. His use of a computer was disputed. However, Public website postings included on-line greetings, comments on photos, and other communications. Surveillance documented travel and attendance at auto races].
WCJ Decision
The WCJ made specific findings regarding Employee's activities and the inconsistency with his assertions of total disability!
WCJ granted Employer's petition for Modification.
WCAB Affirmed WCJ decision.
Employee appealed to Commonwealth Court.
Employee Appellate Argument:
The Employee argued Employer failed to demonstrate his condition had changed since the last termination petition proceeding. The Commonwealth Court rejected this argument.
Commonwealth Court Reasoning
"Contrary to Claimant's position, a diagnosis of malingering can be a sufficient change in condition as a matter of law to support a modification of benefits, if it leads the medical expert to conclude that the claimant's disability or ability to work has changed". slip opinion page 10.
Here, the Employer medical expert opinion was supported by evidence of Employee's activities and the WCJ observation of Employee at several hearings, which suggested Employee's subjective complaints were not as severe as he described or had improved since the last proceeding.
The fact that other medical experts found valid test performance and no signs of malingering five (5) years earlier did not preclude a current diagnosis of malingering.
PRACTICE POINTERS:
1. This appellate decision provides an additional basis for modification. We know we need to establish a "change" in Employee medical condition. There is some debate as to what "change" is required to establish Employer's burden to proof.
We know from Folmer v. WCAB (Swift Transportation) (Pa. Cmwlth. 2008) that a "change" in the evaluation of the credibility of claimant's "pain complaints" can be a sufficient change of condition. Simmons adds to that line of thinking.
2. As Employer can never be certain that the WCJ will find claimant "no longer credible", it is prudent to attempt to establish a change of claimant's status via medical expert evidence of:
(i) a change of physical capabilities;
(ii) a change of physical exam findings;
(iii) a change of reported symptoms.
3. Simmons also demonstrates the value of investigation of claimant activities, as a means to challenge claimant's credibility. Examination of public information from social media may document discrepancies from the claimant's professed status. This preliminary (low-cost) type of review, may also form the basis for a more in-depth investigation and surveillance of activities.
Thursday, September 4, 2014
Work-Related Medical Expenses - Who is entitled to Payment?
In the event of a compensible work injury, Employers and their workers' compensation Insurers are responsible for the payment of indemnity wage loss benefits and the payment of medical expenses which are reasonable, necessary and related to the work injury.
At times, during the delay associated with the litigation of a claim petition, the medical expenses may be paid by another public or private insurer. When this occurs, the parties must determine which entity is entitled to receive payment/reimbursement for any work-related medical expenses, which are awarded by the WCJ.
The simple question of medical expense payments may become complicated.
Evans v. WCAB (Highway Equipment and Supply Company), is a recent decision of a panel of the Commonwealth Court of Pennsylvania at No. 2252 C.D. 2013, authored by Judge McCullough on June 30, 2014, which addresses these medical expense reimbursement issues.
Factual and Procedural background
On January 20, 2009, Employee was awarded ongoing total disability indemnity wage loss benefits and medical expenses for a work injury which occurred in April 2007.
On February 16, 2009, Employee counsel informed Employer of the amount owed to Claimant and submitted a subrogation lien of Highmark Blue Shield for medical expenses paid in the amount of $29,995.59.
On February 27, 2009, Employee counsel filed a Penalty Petition for Employer's failure to timely pay the January 2009 award.
Employee evidence included: (1) Healthcare Recoveries (Highmark vendor) October 8, 2008 letter and statement for medical expenses of $29k paid by Highmark to Geisinger Medical Center; (2) Healthcare letter for agreement for payment of 20% of amount, paid as an attorney fee to Claimant counsel.
WCJ Penalty Petition Decision
WCJ Concluded Employer violated the Act.
Directed Employer to pay $29k to the health care provider, less the 20% attorney fee.
Employee Appealed to WCAB
Employee argued the $29k should be paid directly to employee, with statutory interest, minus the 20% attorney fee.
WCAB Remanded
WCJ Remand Decision
Submission of the October 8, 2008 Healthcare Recoveries letter proved that a subrogation lien had been established before the WCJ January 2009 decision.
(really? wasn't the lien letter presented on Feb 16, after the Jan 20 decision?).
On this basis, payment was not to Employee, rather payment was to Healthcare Recoveries.
No interest was payable.
[WCJ would not allow Employer to take evidence that the Highmark lien was moot because Geisinger repaid the $29k medical expenses to Highmark.]
Employee WCAB Appeal II
WCAB Decision II
WCAB affirmed WCJ remand decision.
Subrogation lien had been established before WCJ Decision,
Lien was properly preserved in accord with Boeing Helicopters v. WCAB (Cobb), (Pa. Cmwlth. 1998).
WCAB held Frymiare v. WCAB (D. Pileggi & Sons), (Pa. Cmwlth. 1987) did not compel medical expense payment directly to Employee.
Here, (unlike Frymiare) Healthcare Recoveries had protected the Highmark Blue Shield subrogation interest.
As Employer evidence of Highmark-Geisinger repayment was beyond the scope of WCAB remand, the WCJ properly declined to accept this evidence.
Commonwealth Court Appeal - Employee arguments
(1). WCJ erred in failing to order medical expense payments directly to Employee.
(2). WCJ erred in failing to award interest.
(3). WCJ erred in determining that Highmark's subrogation lien had not been waived.
Commonwealth Court Decision
(1). The second paragraph of section 319 provides a health care insurer with a right of subrogation.
These subrogation rights are not automatic or self-executing.
The party asserting these rights must exercise reasonable diligence.
This has been interpreted as asserting one's subrogation rights during the pendency of the claim proceedings.
[See: Independence Blue Cross v. WCAB (Frankford Hospital), 820 A.2d 868, 872 (Pa. Cmwlth. 2003.].
The Court concluded, medical expenses were not directly payable to Employee in this case, as Employee submitted into evidence the October 8, 2008 Healthcare Recoveries letter stating the Highmark Blue Shield subrogation lien.
This letter established that an agreement* for the subrogation lien was in place before the WCJ initial claim petition decision. Therefore the Frymiare decision does not compel a medical expense payment to this Employee!
*[note: this agreement was between employee counsel and Healthcare/Highmark] .
(2). Interest was not payable to employee on the unpaid medical expenses as employee was not entitled to this payment.
(3). Highmark preserved and did not waive its subrogation lien.
The Commonwealth Court decision in Frymiare warrants further discussion regarding this medical expense payment issue.
In Frymiare, the claimant was awarded work comp indemnity wage loss benefits and reimbursement of his personal payments of medical expenses.
The claimant's private health insurer made some medical expense payments, but it did not seek subrogation in the claim petition proceedings. Claimant was not awarded these amounts.
The Commonwealth Court held that the claimant was entitled to payment of the medical expenses.
Employer/Insurer may not avoid their responsibility to pay for work-related medical expenses, on the basis that some other source may have initially defrayed theses medical costs.
In the absence of the assertion of a subrogation lien from his health insurer, claimant was entitled to payment for these medical expenses. (presumably, by contract, claimant would be responsible to repay his health insurer.)
PRACTICE POINTERS:
1. Employers and Insurers must determine if there are any payments of work-related medical expenses by any private health insurer plan, whether it be employer-funded or employee funded.
In order to avoid these time consuming and costly post-claim decision issues, it behooves the parties to document the rights/responsibilities regarding all outstanding work-related medical expenses.
This review includes the right of reimbursement to Medicare/Medicad for any conditional payments.
2. Attorneys - determine if you can reach a stipulation with Employee counsel as to the identity and amount any medical expense liens and which entity is entitled to reimbursement, in the event of a WCJ award.
3. Employer/Insurers, do not spend 20% of the amount due!
Do not ask the claimant attorney to represent the interests of an employer-funded plan.
Have your legal counsel submit any necessary documentation of the subrogation interest.
At times, during the delay associated with the litigation of a claim petition, the medical expenses may be paid by another public or private insurer. When this occurs, the parties must determine which entity is entitled to receive payment/reimbursement for any work-related medical expenses, which are awarded by the WCJ.
The simple question of medical expense payments may become complicated.
Evans v. WCAB (Highway Equipment and Supply Company), is a recent decision of a panel of the Commonwealth Court of Pennsylvania at No. 2252 C.D. 2013, authored by Judge McCullough on June 30, 2014, which addresses these medical expense reimbursement issues.
Factual and Procedural background
On January 20, 2009, Employee was awarded ongoing total disability indemnity wage loss benefits and medical expenses for a work injury which occurred in April 2007.
On February 16, 2009, Employee counsel informed Employer of the amount owed to Claimant and submitted a subrogation lien of Highmark Blue Shield for medical expenses paid in the amount of $29,995.59.
On February 27, 2009, Employee counsel filed a Penalty Petition for Employer's failure to timely pay the January 2009 award.
Employee evidence included: (1) Healthcare Recoveries (Highmark vendor) October 8, 2008 letter and statement for medical expenses of $29k paid by Highmark to Geisinger Medical Center; (2) Healthcare letter for agreement for payment of 20% of amount, paid as an attorney fee to Claimant counsel.
WCJ Penalty Petition Decision
WCJ Concluded Employer violated the Act.
Directed Employer to pay $29k to the health care provider, less the 20% attorney fee.
Employee Appealed to WCAB
Employee argued the $29k should be paid directly to employee, with statutory interest, minus the 20% attorney fee.
WCAB Remanded
WCJ Remand Decision
Submission of the October 8, 2008 Healthcare Recoveries letter proved that a subrogation lien had been established before the WCJ January 2009 decision.
(really? wasn't the lien letter presented on Feb 16, after the Jan 20 decision?).
On this basis, payment was not to Employee, rather payment was to Healthcare Recoveries.
No interest was payable.
[WCJ would not allow Employer to take evidence that the Highmark lien was moot because Geisinger repaid the $29k medical expenses to Highmark.]
Employee WCAB Appeal II
WCAB Decision II
WCAB affirmed WCJ remand decision.
Subrogation lien had been established before WCJ Decision,
Lien was properly preserved in accord with Boeing Helicopters v. WCAB (Cobb), (Pa. Cmwlth. 1998).
WCAB held Frymiare v. WCAB (D. Pileggi & Sons), (Pa. Cmwlth. 1987) did not compel medical expense payment directly to Employee.
Here, (unlike Frymiare) Healthcare Recoveries had protected the Highmark Blue Shield subrogation interest.
As Employer evidence of Highmark-Geisinger repayment was beyond the scope of WCAB remand, the WCJ properly declined to accept this evidence.
Commonwealth Court Appeal - Employee arguments
(1). WCJ erred in failing to order medical expense payments directly to Employee.
(2). WCJ erred in failing to award interest.
(3). WCJ erred in determining that Highmark's subrogation lien had not been waived.
Commonwealth Court Decision
(1). The second paragraph of section 319 provides a health care insurer with a right of subrogation.
These subrogation rights are not automatic or self-executing.
The party asserting these rights must exercise reasonable diligence.
This has been interpreted as asserting one's subrogation rights during the pendency of the claim proceedings.
[See: Independence Blue Cross v. WCAB (Frankford Hospital), 820 A.2d 868, 872 (Pa. Cmwlth. 2003.].
The Court concluded, medical expenses were not directly payable to Employee in this case, as Employee submitted into evidence the October 8, 2008 Healthcare Recoveries letter stating the Highmark Blue Shield subrogation lien.
This letter established that an agreement* for the subrogation lien was in place before the WCJ initial claim petition decision. Therefore the Frymiare decision does not compel a medical expense payment to this Employee!
*[note: this agreement was between employee counsel and Healthcare/Highmark] .
(2). Interest was not payable to employee on the unpaid medical expenses as employee was not entitled to this payment.
(3). Highmark preserved and did not waive its subrogation lien.
The Commonwealth Court decision in Frymiare warrants further discussion regarding this medical expense payment issue.
In Frymiare, the claimant was awarded work comp indemnity wage loss benefits and reimbursement of his personal payments of medical expenses.
The claimant's private health insurer made some medical expense payments, but it did not seek subrogation in the claim petition proceedings. Claimant was not awarded these amounts.
The Commonwealth Court held that the claimant was entitled to payment of the medical expenses.
Employer/Insurer may not avoid their responsibility to pay for work-related medical expenses, on the basis that some other source may have initially defrayed theses medical costs.
In the absence of the assertion of a subrogation lien from his health insurer, claimant was entitled to payment for these medical expenses. (presumably, by contract, claimant would be responsible to repay his health insurer.)
PRACTICE POINTERS:
1. Employers and Insurers must determine if there are any payments of work-related medical expenses by any private health insurer plan, whether it be employer-funded or employee funded.
In order to avoid these time consuming and costly post-claim decision issues, it behooves the parties to document the rights/responsibilities regarding all outstanding work-related medical expenses.
This review includes the right of reimbursement to Medicare/Medicad for any conditional payments.
2. Attorneys - determine if you can reach a stipulation with Employee counsel as to the identity and amount any medical expense liens and which entity is entitled to reimbursement, in the event of a WCJ award.
3. Employer/Insurers, do not spend 20% of the amount due!
Do not ask the claimant attorney to represent the interests of an employer-funded plan.
Have your legal counsel submit any necessary documentation of the subrogation interest.
Tuesday, August 19, 2014
Injury of the "Early Arrival" Employee and Scope of Employment
The Scope of the "Work Day"
The definition of a compensable work injury is specifically stated, yet broadly worded, so as to be subject to interpretation and meaning.
The Workers' Compensation Act definition of injury, includes the requirement that the employee is injured "in the course of his employment". See: Section 301 (a).
An "injury" is to be construed as one ..."arising in the course of employment and related thereto...".
See: Section 301 (c)(1).
From a non-lawyer point-of-view, one may believe the "work day" begins and ends with the "punching" of one's time card. Review of many workers' compensation appellate case decisions would quickly dispel that notion of simplicity. As often stated, "these cases are very fact-sensitive".
The case of the early arriving employee poses a question as to "When does the work day begin?"
This question was addressed in a recent decision of a panel of the Commonwealth Court of Pennsylvania authored by Judge Covey on June 10, 2014 at: Ace Wire Spring and Form Company v. WCAB (Walshesky), No 1916 C.D. 2014.
Factual and Procedural Background
WCJ awarded total disability benefits for the head injury resulting from a slip and fall on ice in the Employer's parking lot. On appeal, Employer argued that:
(1) Employee was not in the course and scope of his employment;
and
(2) Employee was not furthering the Employer's business interests.
Note: this Employer did not question the parking lot as a part of the business premises.
Employee testimony reflects;
He arrived at the employer parking lot at 6:30 am for his 8:00 am work shift.
He arrived early to avoid traffic.
He went into the building. He retrieved clean uniforms and took them out to his car.
(so he would not forget them).
As he returned to the building, he slipped and fell on ice in the parking lot.
He went into the building, reported this incident to his general manager (Froehlich).
He stated Froehlich insisted he go and wash up.
He stated he believes he passed out in the bathroom.
He awoke in a nursing home, paralyzed on his left side.
Employer testimony from Froehlich reflects;
He arrived about 6:30 am and unlocked the doors between the office and plant.
Employee appeared with dry blood on his head. He said he fell, but could not remember where.
He advised employee he would take him to the hospital when the plant manager (Margo) arrived.
He did not tell employee to "clean up" nor did employee leave him to go to the bathroom.
Employee was lucid and did not have difficulty talking or walking.
He stated the incident could not have occurred as employee stated, as employee did not have a key to enter the plant portion of the building (before Frohlich unlocked the building).
Inventory manager Ellich stated;
He arrived about 6:30 am and employee was sitting in his car holding his head.
Employee said he fell. He observed dry blood. He walked employee into the building.
He did not see employee thereafter.
Employee changed his prior testimony.
Now he stated he arrived at 7:30 am, not 6:30 am.
He recalled seeing the car of a co-worker (Larkin)..
He did not see Ellick.
The building was unlocked when he arrived.
Froehlich told him to go wash up.
Co-Worker Larkin testified he punched in at 7:47 am.
He was not in the parking lot at 7:30am.
He parked behind the building, it was not his car that employee described.
Employer testimony reflected Ellick punched in at 6:37 am.
Larkin punched in 7:47 am.
It appeared Ellick was the first to arrive and unlock the building.
Plant manager Margo stated when he arrived employee was sitting in the lunchroom.
He drove employee to the hospital. Employee was lucid and able to walk.
WCJ Decision- award of benefits
The WCJ is the fact-finder and rules on questions of credibility and weight assigned to the evidence.
The WCJ resolved the conflicting factual reports.
Th WCJ found Employee testimony to be more credible and convincing.
(acknowledging employee may have faulty memory due to his injuries)
The WCJ found employee was furthering the business of Employer when he was injured.
(Why?)
WCAB Affirmed WCJ Award
Commonwealth Court Decision
Substantial evidence supported the WCJ finding employee arrived between 6:30 and 730 am.
As a general rule,once on the premises, getting to or leaving the work station is a necessary part of ones employment.
Even though not actually engaged in the employers work, an employee will be considered in the course of employment if injured a reasonable time before or after the work period.
citing: Allegheny Ludlum Corp. v. WCAB (Hines), 913 A.2d 345 (Pa. Cmwlth. 2006).
THIS is the issue.
There is no bright-line test for assessing how long before commencement of the scheduled work day is a reasonable time for an employee to be furthering the employer's interests. slip opinion page 13.
In analyzing the past cases the Court noted it seems the exact amount of time does not appear to be as important as the claimant's purpose or activities during that time. (Agreed!).
The WCJ found employee arrived between 6:30 am [90 minutes before] through 7:30 am [30 minutes before] his work shift. There was evidence in support of this finding.
Employer did not conclusively establish employee arrived 90 minutes before.
Court: the employer did not establish employee arrived an unreasonable amount of time before his work shift.(... but I thought employee's activities were the important consideration?)
... there was no credible evidence that employee abandoned his employment
... engaged in something entirely foreign to his employment
... or acted contrary to any positive work orders ...
***The fact that employee collected his employer-provided uniforms and put them in his car ... does not place him outside the scope of his employment.
Employer argued the WCJ did not author a "reasoned decision" as all of the evidence supports a finding employee arrived 6:30 am.
No, the WCJ resolved this conflicting point ... in employee's favor.
The WCJ decision adequately explained the WCJ reasons for this finding.
The reasoned decision requirement is simply that the WCJ must articulate some objective reasoning to facilitate appellate review. citing: Green v. WCAB (US Airways), 28 A.3d 936 (Pa. Cmwlth. 2011).
This was accomplished.
PRACTICE POINTERS:
1. This decision illustrates the lengths to which simple rules of law can be altered by a "act-sensitive" analysis of scope of employment and premises issues.
The appellate record reflects a great deal of factual information
... sometime it seems that we deal in minutia, which has a disproportionate impact upon the result.
2. I agree with the premise that it is more appropriate to examine the purpose or activity of the claimant in the early arrival injury claim.
3. The exact amount of time of the early arrival, should not be as significant of a factor for a course of employment analysis ...
BUT logically, at some point in time, the claimant will be so early or so late, that it is difficult to make a reasonable argument that the claimant's presence has anything to do with the remote start or remote end of a work-shift ... and has more to do with the personal decisions of the claimant ... WHY is he/she there?
4. Once again we emphasize ...Employers get your workers' compensation professionals involved in the early part of the injury claim investigation.
The identification of witnesses ... the identification of undisputed facts ... and the identification of claimant's version of events, are all necessary components of a successful workers compensation defense.
Question: where his uniforms in his car? ... there always seems to be one more question ...
Wednesday, July 23, 2014
Pennsylvania "Extra-Territorial" Jurisdiction - Where is the Employment "Principally Localized"?
Interpretation of the Pennsylvania Workers' Compensation "Extra-Territorial" provisions for the possible extension of Jurisdiction and Coverage.
The Pennsylvania Workers Compensation Act applies to all injuries occurring within the Commonwealth. Section 101, 77 P.S. 1.
Application of the PA Workers' Compensation Act is extended by the "Extra-Territorial" provisions at Section 305.2, 77 P.S. 411.2.
(a) If an employee, while working outside the territorial limits of this state, suffers an injury ... (for which he would have received benefits if the injury occurred with the state)... he shall be entitled to benefits provided by this act, provided that at the time of such injury:
(1) his employment is principally localized in this state, or
(2) he is working under a contract of hire made in this state, in employment not principally localized in any state, or
(3) he is working under a contract of hire made in this state, in employment localized in another state, whose workmen's compensation law is not applicable to his employer...
(4) A person's employment is principally localized in this or another state when,
(i) his employer has a regular place of business in this or such other state and
he regularly works at or from such place of business, or
(ii) having worked at or from such place of business, his duties have required him to go outside of the state not over one year, or
(iii) if clauses (1) and (2) are not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.
What does this mean in a real world application?
Greenawalt v. WCAB (Bristol Environmental, Inc.), No. 1894 C.D. 2013, a published opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on May 12, 2014, offered a recent review of the application of these "extra-territorial' provisions.
Factual Background
Employee was a union laborer, receiving limited duration work assignments, with different employers, followed by layoff. He accepted an assignment with Bristol in New York. Bristol obtained lodging in an apartment complex for employees. He would return home to PA on weekends.
One morning, Employee slipped and fell on ice outside the apartment, as he walked to warm his automobile before leaving for the job site. He proceeded to the job site. He notified his foreman. Due to his symptoms, he was instructed to perform light duty work. He continued in light duty for several weeks, until his layoff.
Employee filed a Claim Petition alleging disability from this back injury.
Bristol denied the claim, asserting (1) PA lacked jurisdiction as the injury occurred in New York and (2) the injury did not occur in the course and scope of his employment
WCJ Decision
Claim Petition DENIED.
Employee worked under a contract of hire, made in Pennsylvania, for employment principally localized in New York. Although Employee worked in the past, for Bristol in New York, he did not have a continuous employment relationship, for purposes of determining where his employment was principally localized.
Employee Commonwealth Court Arguments
Employee argued his employment was principally localized in Pennsylvania, and jurisdiction was proper under 305.2 (a) (1).
Employee was hired in PA
He was trained in PA.
He completed over 30 assignments for Bristol in PA.
His New York job was expected to last less than one year (and it did).
Employee also argued in the alternative,
He as hired in PA.
His employment was not localized in any state.
Jurisdiction was proper under 305.2(a)(2).
Employee also argued in the alternative,
The WCJ did not determine if New York law would apply.
A remand was necessary to determine in there was jurisdiction pursuant to 305.2(a)(3).
Commonwealth Court Decision
Claim Petition Denial was AFFIRMED.
Commonwealth Court Reasoning
The claimant has the burden of proof to establish jurisdiction in Pennsylvania for his workers compensation claim.slip opinion page 7 citing Williams v. WCAB (POHL Transp.) 4 A.3d 742 (Pa. Cmwlth. 2010).
Here, the review of the record and the WCJ findings support a conclusion that this Employee's employment was principally localized in New York, not in Pennsylvania.
Employee worked exclusively in Rochester, New York for Bristol after one week of training in Pennsylvania. He worked at that location, "as a rule and not as an exception". (citing Williams 4 A.3d at 746.
There was no continuous employment relationship with Bristol, as Employee worked with Global Insulation and LVI Environmental during that same year. In light of this break of employment with Bristol, for several months, the WCJ correctly determined there was no continuous employment relationship.
The "continuous employment relationship" argument is an important element in determining if a series of individual per-job assignments should be considered one continuous employment for the purpose of determining where the employment is principally localized. Here the evidence did not support Employee's argument.
Similarly, Employee's argument that his employment was not principally localized in any state, was properly rejected, as the evidence showed his employment was principally localized in New York.
Employee argued that subsections (i) to (iii) of 305.2 (d) (4) were not met to support the conclusion that his employment was principally localized in New York. However, the record reflects that Employer operated its business at the Rochester, New York location. Employee regularly worked 40 hours from that location.
Subsection (iii) requires Employee to be domiciled in New York and he testified he remained domiciled in Pennsylvania.
The Commonwealth Court rejected Employee's argument that the case should be remanded for a finding as to the applicability of New York workers compensation laws to this Employer.
Employee had the burden of proof to establish jurisdiction over his claim. As he admittedly presented no proof on this point, the WCJ did not err in failing to make a finding on this point.
PRACTICE POINTERS
1. Reading this decision should alert the Employer and Workers Compensation claims professionals as to the complexity of these extra-territorial provisions.
One must carefully assemble evidence in support of each element of the "principally located" argument. Testimony and documentation will be necessary to establish Employer's position and rebut Employee's contentions.
Involve your workers' compensation defense counsel at an early stage of the claim investigation.
2. As the issue of "jurisdiction" is significant in determining the success of the Employee claim and the existence or extent of liability for the Employer. It behooves the parties to thoroughly investigate and document these facts. At the inception of the claim, one should devote the "extra time" to this issue.
3. Often, jurisdiction is not disputed. However, when it is an "out-of-state" injury claim, the topic of jurisdiction becomes an essential element of the claim investigation and preparation.
The Pennsylvania Workers Compensation Act applies to all injuries occurring within the Commonwealth. Section 101, 77 P.S. 1.
Application of the PA Workers' Compensation Act is extended by the "Extra-Territorial" provisions at Section 305.2, 77 P.S. 411.2.
(a) If an employee, while working outside the territorial limits of this state, suffers an injury ... (for which he would have received benefits if the injury occurred with the state)... he shall be entitled to benefits provided by this act, provided that at the time of such injury:
(1) his employment is principally localized in this state, or
(2) he is working under a contract of hire made in this state, in employment not principally localized in any state, or
(3) he is working under a contract of hire made in this state, in employment localized in another state, whose workmen's compensation law is not applicable to his employer...
(4) A person's employment is principally localized in this or another state when,
(i) his employer has a regular place of business in this or such other state and
he regularly works at or from such place of business, or
(ii) having worked at or from such place of business, his duties have required him to go outside of the state not over one year, or
(iii) if clauses (1) and (2) are not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.
What does this mean in a real world application?
Greenawalt v. WCAB (Bristol Environmental, Inc.), No. 1894 C.D. 2013, a published opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on May 12, 2014, offered a recent review of the application of these "extra-territorial' provisions.
Factual Background
Employee was a union laborer, receiving limited duration work assignments, with different employers, followed by layoff. He accepted an assignment with Bristol in New York. Bristol obtained lodging in an apartment complex for employees. He would return home to PA on weekends.
One morning, Employee slipped and fell on ice outside the apartment, as he walked to warm his automobile before leaving for the job site. He proceeded to the job site. He notified his foreman. Due to his symptoms, he was instructed to perform light duty work. He continued in light duty for several weeks, until his layoff.
Employee filed a Claim Petition alleging disability from this back injury.
Bristol denied the claim, asserting (1) PA lacked jurisdiction as the injury occurred in New York and (2) the injury did not occur in the course and scope of his employment
WCJ Decision
Claim Petition DENIED.
Employee worked under a contract of hire, made in Pennsylvania, for employment principally localized in New York. Although Employee worked in the past, for Bristol in New York, he did not have a continuous employment relationship, for purposes of determining where his employment was principally localized.
Employee Commonwealth Court Arguments
Employee argued his employment was principally localized in Pennsylvania, and jurisdiction was proper under 305.2 (a) (1).
Employee was hired in PA
He was trained in PA.
He completed over 30 assignments for Bristol in PA.
His New York job was expected to last less than one year (and it did).
Employee also argued in the alternative,
He as hired in PA.
His employment was not localized in any state.
Jurisdiction was proper under 305.2(a)(2).
Employee also argued in the alternative,
The WCJ did not determine if New York law would apply.
A remand was necessary to determine in there was jurisdiction pursuant to 305.2(a)(3).
Commonwealth Court Decision
Claim Petition Denial was AFFIRMED.
Commonwealth Court Reasoning
The claimant has the burden of proof to establish jurisdiction in Pennsylvania for his workers compensation claim.slip opinion page 7 citing Williams v. WCAB (POHL Transp.) 4 A.3d 742 (Pa. Cmwlth. 2010).
Here, the review of the record and the WCJ findings support a conclusion that this Employee's employment was principally localized in New York, not in Pennsylvania.
Employee worked exclusively in Rochester, New York for Bristol after one week of training in Pennsylvania. He worked at that location, "as a rule and not as an exception". (citing Williams 4 A.3d at 746.
There was no continuous employment relationship with Bristol, as Employee worked with Global Insulation and LVI Environmental during that same year. In light of this break of employment with Bristol, for several months, the WCJ correctly determined there was no continuous employment relationship.
The "continuous employment relationship" argument is an important element in determining if a series of individual per-job assignments should be considered one continuous employment for the purpose of determining where the employment is principally localized. Here the evidence did not support Employee's argument.
Similarly, Employee's argument that his employment was not principally localized in any state, was properly rejected, as the evidence showed his employment was principally localized in New York.
Employee argued that subsections (i) to (iii) of 305.2 (d) (4) were not met to support the conclusion that his employment was principally localized in New York. However, the record reflects that Employer operated its business at the Rochester, New York location. Employee regularly worked 40 hours from that location.
Subsection (iii) requires Employee to be domiciled in New York and he testified he remained domiciled in Pennsylvania.
The Commonwealth Court rejected Employee's argument that the case should be remanded for a finding as to the applicability of New York workers compensation laws to this Employer.
Employee had the burden of proof to establish jurisdiction over his claim. As he admittedly presented no proof on this point, the WCJ did not err in failing to make a finding on this point.
PRACTICE POINTERS
1. Reading this decision should alert the Employer and Workers Compensation claims professionals as to the complexity of these extra-territorial provisions.
One must carefully assemble evidence in support of each element of the "principally located" argument. Testimony and documentation will be necessary to establish Employer's position and rebut Employee's contentions.
Involve your workers' compensation defense counsel at an early stage of the claim investigation.
2. As the issue of "jurisdiction" is significant in determining the success of the Employee claim and the existence or extent of liability for the Employer. It behooves the parties to thoroughly investigate and document these facts. At the inception of the claim, one should devote the "extra time" to this issue.
3. Often, jurisdiction is not disputed. However, when it is an "out-of-state" injury claim, the topic of jurisdiction becomes an essential element of the claim investigation and preparation.
Tuesday, June 17, 2014
The Employer's Impairment Rating Evaluation (IRE) Remedy ... STILL the best remedy
The 1996 Amendments to the Pennsylvania Workers' Compensation Act, provided Employers and Insurers with a remedy to limit the "lifetime" duration of indemnity wage loss benefit payments.
The Impairment Rating Evaluation (IRE)provisions allowed the limitation of the duration of wage loss benefits to a period of 500 weeks. There were several requirements to obtain a successful review.
Employees have argued each point, in their attempts to prevent or limit this remedy.
One criteria, the Employee must reach "Maximum Medical Improvement" before the IRE may be conducted. This is a "term of art" which is defined by the AMA Guides to the Evaluation of Permanent Impairment.
Arvilla Oilfield Services Inc. v. WCAB (Carlson), No. 1578 C.D. 2013, a reported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on May 20, 2014, recently reviewed these IRE issues.
Factual and Procedural Background
[NOTE: This case has an interesting inter-play in the filing of successive, concurrently pending petitions and the corresponding proofs. A good argument for NOT consolidating petitions ... a discussion for another day.
Here, we will keep it a "simple" IRE case]
**********************************
Employee injured his right hip, right shoulder and low back in July 2004.
NCP accepted liability and described theses injuries as labral tear of the right hip, with strains/contusions of the right shoulder and low back.
Employee had subsequent right hip surgeries: 2004 arthroscopy ; 2005 total hip replacement; which were were found to be work related [WCJ decision 2007].
Employer filed a 2009 Modification petition [not a Termination petition] in December 2009, asserting Employee fully recovered from the low back and right shoulder injuries ... but not the hip injury.
(Dr. Levy October 2009 IME).
( a good strategy for limiting future medical expense disputes).
Employee medical expert Dominic M. Sciamanda, D.O. testified the post-injury abnormal gait caused the pre-existing lumbar degenerative disc disease to become symptomatic. Also, he attributed some of the back pain to the hip condition. He attributed the lumbar radiculopathy to the work injury.
The goal of Dr. Sciamanda's treatments was to reduce pain, increase mobility, range of motion and function.
He had not released employee to any type of work.
"He certainly has setbacks at times, where we have to kind of back track and move forward. Again, however, overall he seems to be making progress".
Based upon this medical testimony ...
Employee filed a Petition to Review Compensation Benefits and "add" lumbar radiculopathy and lumbar spondylosis to the NCP. A worsening of employee's condition was alleged.
[a recurring employee strategy, to change/expand the description of the work injury].
Employer medical expert, Jon A. Levy, M.D. testified employee had a significant pre-existing lumbar degenerative disc disease, which resulted in significant pre-injury pain complaints.
Based upon comparison of 2004 and 2006 MRI's he found not evidence the work injury changed the pre-existing changes. He related the ongoing lumbar symptoms to the pre-existing medical condition.
Dr. Levy opined employee recovered from the work related strains to the shoulder and low back.
Dr. Levy also opined employee reached MMI regarding the hip condition.
An IRE was conducted on June 3, 2010, during the pendency of Employer's Modification petition and Employee's Review petition. Jefferey M. Moldovan, D.O., found a 10% whole person impairment rating.
A Petition for Modification of employee disability status from total to partial was filed.
This 2nd Modification was consolidated with the pending petitions.
Dr. Moldovan testified employee was at MMI.
He demonstrated an altered gait and reported right hip discomfort.
Employee expressed no symptoms regarding the right shoulder or low back.That physical exam was normal.
Employee presented NO medical evidence in opposition to the IRE report.
WCJ Decision
1.Employee was fully recovered from the right shoulder stain. Dr. Levy was credible on this point.
2. Employee did not fully recover from the low back strain, as Dr. Levy did not address the effect of the hip injury and altered gait, upon the low back condition.
3. Employee's Review Petition was denied. The work related condition was not expanded to include lumbar radiculopathy and lumbar spondylosis (degeneration). Dr. Sciamanda was rejected.
4. WCJ rejected Dr. Moldovan's opinion employee had reached MMI and denied this Modification petition.
WCJ Reasoning
" According to Dr. Sciamanda's testimony, the claimant is continuing to make progress and he continues to have setbacks at times. Dr. Moldovan's opinion that the claimant is at MMI because [he] is "as good as he is going to get" is not supported by the treatment records".
Commonwealth Court Reversal
Employer appealed the denial of the IRE Modification petition.
Employer argued:
a. There was not substantial medical evidence in support of the finding that employee had failed to reach MMI at the time of the IRE (June 2010).
b. The one phrase by Dr. Sciamanda was speculative and taken out of context.
c. Dr Sciamanda DID NOT opine whether or not employee had reached MMI ... his most recent exam was months before the IRE was performed.
d. Dr. Sciamanda only testified in the defense to the employer argument for recovery and in support of employee's argument to expand the work injury description.
Employee argued, the WCJ assessment of the medical evidence was a credibility determination for the WCJ to decide.
Commonwealth Court Reasoning -
"... Dr. Sciamanda did not testify on the issue of MMI.
Further, it cannot be inferred from Dr Sciamanda's deposition that employee had not reached MMI on the day Dr. Moldovan examined him". slip opinion page 10.
MMI is a term of art.
The AMA Guides definition was reviewed.
MMI is not the same as "full recovery".
The testimony of Dr. Sciamanda, cited by the WCJ, does not support any finding regarding MMI.
Dr. S last examined employee in February 2010. The IRE was June 2010.
Dr. S was providing palliative care to manage employee's symptoms.
Palliative measures are consistent with a finding of MMI.
Dr. S was treating employee for conditions which the WCJ did not add to the injury description!
Only impairment from the work injury is included in the assessment of MMI and impairment rating.
Dr. Moldovan's exam and testimony were compatible with the AMA Guides description of the MMI term.
Dr. Moldovan presented the only legally competant medical opinion regarding the presence or absence of MMI.
A WCJ may reject controverted competent evidence.
However the WCJ " must identify that evidence and explain adequately the reasons for its rejection.
See: Section 422(a)
For this reason, the order of the WCAB was vacated and the case was remanded back to the WCJ for further findings on this critical issue. If Dr. Moldovan is to be rejected, there must be an adequate explanation.
PRACTICE POINTERS:
1. When dealing with multiple petitions, with different burdens of proof, take care to outline your litigation plan and identify the evidence which supports each element of your burden of proof.
2. Similarly, when reviewing your defense to each employee petition. assess the evidence offered in support of each employee petitions and your evidence/argument in opposition.
3. An essential element in the IRE burden of proof is the employee status as "MMI". We see frequent attacks upon the IRE Modification Petition Remedy, based upon the argument that employee is not at MMI, as his/her condition may improve ... or his/her condition may decline.
4. Have your medical expert testify and explain the MMI definition and provide specific reasons why the claimant is at MMI.
5. Challenge any employee medical expert evidence offered in "defense" to the IRE Medical expert, which did not conduct an examination in accord with the AMA Guides.
The Impairment Rating Evaluation (IRE)provisions allowed the limitation of the duration of wage loss benefits to a period of 500 weeks. There were several requirements to obtain a successful review.
Employees have argued each point, in their attempts to prevent or limit this remedy.
One criteria, the Employee must reach "Maximum Medical Improvement" before the IRE may be conducted. This is a "term of art" which is defined by the AMA Guides to the Evaluation of Permanent Impairment.
Arvilla Oilfield Services Inc. v. WCAB (Carlson), No. 1578 C.D. 2013, a reported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on May 20, 2014, recently reviewed these IRE issues.
Factual and Procedural Background
[NOTE: This case has an interesting inter-play in the filing of successive, concurrently pending petitions and the corresponding proofs. A good argument for NOT consolidating petitions ... a discussion for another day.
Here, we will keep it a "simple" IRE case]
**********************************
Employee injured his right hip, right shoulder and low back in July 2004.
NCP accepted liability and described theses injuries as labral tear of the right hip, with strains/contusions of the right shoulder and low back.
Employee had subsequent right hip surgeries: 2004 arthroscopy ; 2005 total hip replacement; which were were found to be work related [WCJ decision 2007].
Employer filed a 2009 Modification petition [not a Termination petition] in December 2009, asserting Employee fully recovered from the low back and right shoulder injuries ... but not the hip injury.
(Dr. Levy October 2009 IME).
( a good strategy for limiting future medical expense disputes).
Employee medical expert Dominic M. Sciamanda, D.O. testified the post-injury abnormal gait caused the pre-existing lumbar degenerative disc disease to become symptomatic. Also, he attributed some of the back pain to the hip condition. He attributed the lumbar radiculopathy to the work injury.
The goal of Dr. Sciamanda's treatments was to reduce pain, increase mobility, range of motion and function.
He had not released employee to any type of work.
"He certainly has setbacks at times, where we have to kind of back track and move forward. Again, however, overall he seems to be making progress".
Based upon this medical testimony ...
Employee filed a Petition to Review Compensation Benefits and "add" lumbar radiculopathy and lumbar spondylosis to the NCP. A worsening of employee's condition was alleged.
[a recurring employee strategy, to change/expand the description of the work injury].
Employer medical expert, Jon A. Levy, M.D. testified employee had a significant pre-existing lumbar degenerative disc disease, which resulted in significant pre-injury pain complaints.
Based upon comparison of 2004 and 2006 MRI's he found not evidence the work injury changed the pre-existing changes. He related the ongoing lumbar symptoms to the pre-existing medical condition.
Dr. Levy opined employee recovered from the work related strains to the shoulder and low back.
Dr. Levy also opined employee reached MMI regarding the hip condition.
An IRE was conducted on June 3, 2010, during the pendency of Employer's Modification petition and Employee's Review petition. Jefferey M. Moldovan, D.O., found a 10% whole person impairment rating.
A Petition for Modification of employee disability status from total to partial was filed.
This 2nd Modification was consolidated with the pending petitions.
Dr. Moldovan testified employee was at MMI.
He demonstrated an altered gait and reported right hip discomfort.
Employee expressed no symptoms regarding the right shoulder or low back.That physical exam was normal.
Employee presented NO medical evidence in opposition to the IRE report.
WCJ Decision
1.Employee was fully recovered from the right shoulder stain. Dr. Levy was credible on this point.
2. Employee did not fully recover from the low back strain, as Dr. Levy did not address the effect of the hip injury and altered gait, upon the low back condition.
3. Employee's Review Petition was denied. The work related condition was not expanded to include lumbar radiculopathy and lumbar spondylosis (degeneration). Dr. Sciamanda was rejected.
4. WCJ rejected Dr. Moldovan's opinion employee had reached MMI and denied this Modification petition.
WCJ Reasoning
" According to Dr. Sciamanda's testimony, the claimant is continuing to make progress and he continues to have setbacks at times. Dr. Moldovan's opinion that the claimant is at MMI because [he] is "as good as he is going to get" is not supported by the treatment records".
Commonwealth Court Reversal
Employer appealed the denial of the IRE Modification petition.
Employer argued:
a. There was not substantial medical evidence in support of the finding that employee had failed to reach MMI at the time of the IRE (June 2010).
b. The one phrase by Dr. Sciamanda was speculative and taken out of context.
c. Dr Sciamanda DID NOT opine whether or not employee had reached MMI ... his most recent exam was months before the IRE was performed.
d. Dr. Sciamanda only testified in the defense to the employer argument for recovery and in support of employee's argument to expand the work injury description.
Employee argued, the WCJ assessment of the medical evidence was a credibility determination for the WCJ to decide.
Commonwealth Court Reasoning -
"... Dr. Sciamanda did not testify on the issue of MMI.
Further, it cannot be inferred from Dr Sciamanda's deposition that employee had not reached MMI on the day Dr. Moldovan examined him". slip opinion page 10.
MMI is a term of art.
The AMA Guides definition was reviewed.
MMI is not the same as "full recovery".
The testimony of Dr. Sciamanda, cited by the WCJ, does not support any finding regarding MMI.
Dr. S last examined employee in February 2010. The IRE was June 2010.
Dr. S was providing palliative care to manage employee's symptoms.
Palliative measures are consistent with a finding of MMI.
Dr. S was treating employee for conditions which the WCJ did not add to the injury description!
Only impairment from the work injury is included in the assessment of MMI and impairment rating.
Dr. Moldovan's exam and testimony were compatible with the AMA Guides description of the MMI term.
Dr. Moldovan presented the only legally competant medical opinion regarding the presence or absence of MMI.
A WCJ may reject controverted competent evidence.
However the WCJ " must identify that evidence and explain adequately the reasons for its rejection.
See: Section 422(a)
For this reason, the order of the WCAB was vacated and the case was remanded back to the WCJ for further findings on this critical issue. If Dr. Moldovan is to be rejected, there must be an adequate explanation.
PRACTICE POINTERS:
1. When dealing with multiple petitions, with different burdens of proof, take care to outline your litigation plan and identify the evidence which supports each element of your burden of proof.
2. Similarly, when reviewing your defense to each employee petition. assess the evidence offered in support of each employee petitions and your evidence/argument in opposition.
3. An essential element in the IRE burden of proof is the employee status as "MMI". We see frequent attacks upon the IRE Modification Petition Remedy, based upon the argument that employee is not at MMI, as his/her condition may improve ... or his/her condition may decline.
4. Have your medical expert testify and explain the MMI definition and provide specific reasons why the claimant is at MMI.
5. Challenge any employee medical expert evidence offered in "defense" to the IRE Medical expert, which did not conduct an examination in accord with the AMA Guides.
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