April 22, 2014

Payment of Wages After Injury Deemed Acceptance in PA Workers’ Comp; Reinstatement Proper Rather Than Claim

Often in a PA workers’ compensation case, the burden of proof is a critical issue. For example, the burden of proof faced by an injured worker in litigation of a Claim Petition is very different from that in a Reinstatement Petition. Unfortunately, however, there are times when an injured worker can win the battle (and have an appellate court agree an incorrect burden was placed) but lose the war (the appellate court then finding the injured worker still loses).

Such was the situation in Furnari v. Workers’ Compensation Appeal Board (Temple Inland). Here, the injured worker tore a tendon in his knee while doing his job, and required surgery on the knee. The workers’ compensation insurance carrier issued a medical-only Notice of Compensation Payable [NCP] (accepting the injury, but not disability), but the employer continued to pay the injured worker his regular salary (salary continuation). The injured worker then went back to a modified duty job for about five months before resigning.

Subsequently, the injured worker filed a Petition for Reinstatement, seeking ongoing workers’ compensation benefits. This was amended by the injured worker during the litigation to include a Claim Petition. The Workers’ Compensation Judge (WCJ) found that the combination of the medical-only NCP and the payment of salary continuation acted as if there was a full NCP, so the proper burden of proof was only that of a Petition for Reinstatement. The injured worker need only show that his loss in earnings was related to his injury. Unfortunately for the injured worker, the WCJ ultimately concluded that the injured worker failed to show that his injury worsened or that he was not capable of the modified duty job that remained available to him. As such, the Reinstatement Petition was denied.

On appeal, the Workers’ Compensation Appeal Board (WCAB) found that the WCJ applied the incorrect burden of proof. The WCAB felt that the payment of salary continuation did not transform the medical-only NCP or add any additional liability. If the injured worker wanted to obtain disability benefits for his injury, said the WCAB, he must meet the burden of proof of a Claim Petition. However, the WCAB then added that since the injured worker would have failed to meet either burden of proof in this case, the WCJ committed harmless error, so the decision was affirmed.

The Commonwealth Court of Pennsylvania, conversely, agreed with the WCJ. Where there has been: 1) Acceptance of an injury (by NCP or decision) AND, 2) Compensation for loss of earning power caused by the injury (here the salary continuation), the proper burden of proof is that of a Reinstatement Petition. As with the WCAB, though, the Court found that the injured worker failed to meet either burden of proof, so in the end, the Petition was properly denied.

Of interest, the Court also dismissed the next argument raised by the injured worker, that wage loss benefits could not be stopped without a Supplemental Agreement or an Order by a WCJ, so he actually had no burden to meet. This seems to be a far closer call than given by the Court. Indeed, the Court casually dismisses the argument, saying the WCJ has the power to order a suspension of benefits (based on the return to work) without a formal petition. We find it ironic that so much time was spent talking about the burden of proof faced by an injured worker to reinstate or obtain benefits, but the fact an employer actually faces a burden of proof to obtain a suspension of benefits was seemingly disregarded.

We keep reminding ourselves that appellate courts in PA consistently refer to the Pennsylvania Workers’ Compensation Act as “remedial legislation,” designed to be “liberally construed” to the benefit of the injured worker. Sometimes those words seem to ring rather hollowly.

April 16, 2014

Workers’ Compensation Judge Carl Lorine Retires

It is with mixed emotion that we received word of the retirement of Workers’ Compensation Judge (WCJ) Carl Lorine. Judge Lorine was a member of the judiciary in the Upper Darby Workers’ Compensation Hearing Office, which is located in the Southeastern District. Prior to becoming a WCJ, Judge Lorine served as Director of the Pennsylvania Bureau of Workers' Compensation. We wish Judge Lorine great health and happiness in his retirement, but we will miss his presence on the bench in Delaware County.

April 14, 2014

“Rocket Docket” Hits Pennsylvania Workers’ Comp System

When an injured worker in Pennsylvania discovers that it may take a year or more to get a decision in his or her PA workers’ compensation case, the client is often, understandably, distraught. We often explain that our job is to maximize the chances that the case is litigated properly, but we are not able to make it go any faster. This, of course, does not help pay the client’s bills while the litigation continues.

So, we are certainly aware of the hardships that injured workers face while awaiting a decision in their cases. At the same time, we are also aware of what is required in the litigation of a case. In most cases, the injured worker will testify, there will be a deposition from at least one medical expert on each side, and, often, either testimony or a deposition from a fact witness, or a different kind of expert (such as vocational). Once we take all of that evidence, we write briefs (which are anything but “brief”) and then it goes to the Workers’ Compensation Judge (WCJ) to await a decision. Depending on the complexity of the case, this can take well over a year to have all of this completed.

We have been told recently by a few WCJs that the PA Bureau of Workers’ Compensation is now quietly insisting that cases be tried, and decided, within a year. They are labelling this new push as the “Rocket Docket.” While this can have some beneficial aspects, by having cases decided sooner, it also carries significant costs, such as the WCJs rushing cases, or by multiple attorneys having to handle a file due to frequent conflicts (less common with a smaller firm like ours, but still a risk).

We hope this push by the Bureau was triggered by concern for the injured worker, and not simply an effort to justify a new expensive computer system (WCAIS). While we would absolutely welcome discussions with the Bureau, and the WCJs, to see how we can make the process faster and more efficient, a blanket rule with limited time is not in anyone’s best interests.

April 7, 2014

UEGF Held to Same Rules as Other Parties in PA Workers’ Comp

We have previously discussed the Pennsylvania Uninsured Employers Guaranty Fund (UEGF) and how that fund fills in when an employee is injured while working for an employer who failed to carry PA workers’ compensation insurance coverage. The UEGF is certainly an improvement over the way things used to be (when being injured working for an uninsured employer often resulted in no benefits at all), though there is a long way to go before the UEGF could be said to mirror the “remedial” nature of the Pennsylvania Workers’ Compensation Act, which is designed to benefit the injured worker. A recent decision of the Commonweal Court of Pennsylvania does take a step in the right direction.

One of the problems with the UEGF, as it currently functions, is that it operates, in some ways, above the law. For example, a workers’ compensation insurance carrier in PA can be assessed penalties if it violates the Pennsylvania Workers’ Compensation Act; the UEGF is not subject to penalties for any reason. A regular insurance company can be assessed counsel fees if it presents an “unreasonable contest;” again, the UEGF is immune to this risk. We have wondered where the lines would be drawn to hold the UEGF to any responsibility.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal
Board (Dudkiewicz)
, the injured worker fell from a roof while working for a subcontractor who failed to carry workers’ comp insurance. As often happens in cases like this, the UEGF filed a “Petition for Joinder,” which brings other parties into the case (other subcontractors or the general contractor), to give the Workers’ Compensation Judge (WCJ) a different party to assign liability.

A Petition for Joinder, by the rules, must be filed within 20 days of “the first hearing at which evidence is received regarding the reason for which joinder is sought.” The Joinder must also set forth the specific factual and legal basis for the Joinder. In this case, the WCJ found that the UEGF had knowledge of the need to pursue a Joinder on February 9, 2010 (when the injured worker testified about what companies were working on the jobsite), yet the UEGF did not file for Joinder against one party until May 27, 2010, and another on September 3, 2010. The WCJ dismissed both Joinder Petitions, as they were untimely, and failed to state the reasons for the Joinder. In the final decision, the WCJ granted the Claim Petition against the uninsured employer (and the UEGF). This was appealed to the Workers’ Compensation Appeal Board (WCAB), who affirmed the decision of the WCJ (A technical issue was remanded to the WCJ, but not relevant to our discussion).

On appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was again affirmed. First, the Court denied the argument that testimony of a party is not “evidence” to trigger the 20 day period. The important thing, said the Court, was the testimony put the UEGF on notice of the need for a Joinder. Similarly, the Court denied the suggestion by the UEGF that it is not an “insurer” and should be held to a different rule (or, more like, should not be held to any rules). In a curt dismissal, the Court said, “We reject the suggestion that where UEGF fails to pursue its rights in a
timely manner, the property remedy is for this Court to disregard the policies
underlying joinder practice and the twenty-day limit set forth in §131.36(d).”

While we continue to wish the UEGF could be subject to the same standards the other insurance carriers must face, we are heartened to see some responsibility placed on them.

March 13, 2014

Doctor Performing IRE in PA Workers’ Comp Must Have Clinical Practice

We have previously discussed the concept of an Impairment Rating Evaluation (IRE) in Pennsylvania Workers’ Compensation. By now, our readers know that the IRE is a tool the workers’ comp insurance carrier can use to limit benefits in most cases to a maximum of around 11 and a half years. While the IRE is not designed to lead to a high burden for the insurance company, their success is not guaranteed.

Take, for example, the recent case of Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), decided by the Commonwealth Court of Pennsylvania. Here, the claimant hurt his neck and back in a work-related car accident, and began receiving workers’ compensation benefits.

After the injured worker received two years of total disability benefits, the comp insurance carrier obtained an IRE, which found that he had reached maximum medical improvement (MMI) and had a whole person impairment rating of 16%. Since this is lower than the ridiculously high standard of 50%, the insurance company filed a Petition to Modify benefits, changing the status from “total” to “partial,” and starting the clock on the entitlement to 500 weeks of partial disability benefits (the amount of the benefit does not change, just the duration). This IRE was performed by a physician approved by, and selected by, the PA Bureau of Workers’ Compensation (not the insurance carrier).

The Workers’ Compensation Judge (WCJ) denied the Petition for Modification because the physician who performed the IRE, despite being selected and approved by the Bureau, no longer had a clinical practice. Under the Pennsylvania Workers’ Compensation Act, a physician who performs an IRE must be “active in clinical practice for at least twenty hours per week.” The doctor here testified that her entire practice was now administrative or legal – she had no “patients.” The decision of the WCJ was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal to Commonwealth Court of Pennsylvania, the workers’ comp insurance carrier argued that “clinical practice,” as that term appears in the Act, does not require any patient contact, but simply being current in the medical community. The Court rejected this argument and affirmed the decision of the WCJ. The legislature’s use of the term “clinical” in the Act must be given meaning, the Court said. Unless otherwise explained, the Court felt that “clinical” must be taken to mean treatment or care to patients, something that the physician in this case lacked.

March 7, 2014

Powerful and Controversial New Pain Medication Available

A common theme we see with work injuries in Pennsylvania, whether with a complex regional pain syndrome, failed back surgery, brachial plexopathy, knee, hip or shoulder replacement, or other permanent conditions, is an injured worker dealing with chronic pain. As a result, we always keep an eye out for new methods of helping patients deal with the lingering agony that can accompany a serious work injury.

While many of these new methods, whether it be medication or other treatment option, arrive quietly, one new medication is coming with quite a fuss. Zohydro ER, manufactured by Zogenix, Inc., is a powerful new hydrocodone product. This medication was recently approved by the FDA, and, as stated in the press release issued by the FDA, “is the first FDA-approved single-entity (not combined with an analgesic such as acetaminophen) and extended-release hydrocodone product.”

Because Zohydro ER is so potent, there is great concern in the medical and news community that the product will cause addiction and health issues. According to ABC News, Zohydro ER can have up to ten times more narcotic than Vicodin. In fact, that same article stated that “the FDA's own advisory committee voted against approval.”

According to CBS Philly, local police and safety officials in the Philadelphia and Bucks County areas are also concerned that Zohydro ER will cause an increase in both pharmacy and home burglaries, as desperate people seek the drug. In the article, Bensalem Public Safety Director Fred Harran said, “We’re going to see a spike in burglaries, robberies and thefts across the nation. We’re going to see more heroin overdoses, more overdoses of this drug because it’s so potent, it’s so powerful.”

While, in theory, any medication can be abused and can lead to an overdose. Many medications are known to potentially cause addiction. These things, however, do not seem like a reason to deny relief to folks who live each day in excruciating pain because existing medications cannot achieve an acceptable level of relief. Those lobbying the FDA to revoke its approval probably never found themselves in the chronic pain faced by an injured worker.

March 6, 2014

Topics to Cover in Our Blog?

You may have noticed that we have not updated our blog as frequently in the past month or so as we had been. For better or worse, there have been no cases from the Commonwealth Court of Pennsylvania or the Supreme Court of Pennsylvania dealing with PA workers' compensation issues. Also, we have not come across any recent medical developments, which would be of interest to injured workers in Pennsylvania. Even the normally volatile PA Bureau of Workers' Compensation has been rather quiet of late.

While we will continue to keep our eye on the Courts, on developments in medicine and on happenings within the Bureau of Workers' Compensation, we invite you to help us with this blog. Feel free to e-mail us at gneiman@bnlegal.com with any topics you think would be of interest to the readers of our blog. Perhaps there are questions that you have, or parts of the Pennsylvania Workers' Compensation Act that could be explained better. Chances are, if there is something you are wondering, other injured workers may wonder as well.

February 12, 2014

Medical Expert In PA Workers’ Comp Need Not Be Eyewitness To Claimant’s Disability Throughout Claim Petition

As a practical matter, a doctor is rarely present the instant a person gets injured at work. Similarly, the way litigation is done, a doctor has to testify while the injured worker is still disabled from work. Yet, despite these limitations, doctors routinely testify that the work injury led to the disability, and that the disability continues. But, of course, there are limits on how distant a doctor can be from the time at issue.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald), the Commonwealth Court of Pennsylvania dealt with this issue. Here, a laborer fell from a roof while tearing off materials and suffered a skull fracture and an injury to his left eye. Since the employer had no Pennsylvania workers’ compensation insurance, a Claim Petition was filed against the PA Uninsured Employers Guaranty Fund (UEGF).

The injured worker was first seen by his doctor two months after the injury, and was only treated by that doctor for about six months. After that last date, the injured worker failed to appear for any more appointments. At the time of the last appointment, the doctor theorized that the injured worker would continue to improve and may be able to return to work in six weeks, pending confirmation of the improvement. The Workers’ Compensation Judge (WCJ) found the testimony of the injured worker, and his doctor, to be credible, and granted the UEGF Claim Petition, awarding ongoing total disability benefits. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

An appeal was made by the UEGF to the Commonwealth Court of Pennsylvania. The UEGF argued that since the injured worker’s medical expert could not comment on the disability status after the last date the injured worker was seen, the testimony of ongoing disability could not constitute substantial competent evidence. The Court disagreed with the UEGF and also affirmed the WCJ.

“(I)t is a fundamental principle of workers’ compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight,” the Court noted, adding, “the WCJ’s fact-finding authority includes the authority to draw reasonable inferences from the evidence.” The WCJ here credited the testimony of the injured worker and his treating physician, both of whom supported ongoing disability. As to the time after the last time the injured worker was seen (a fact, to some degree, inherent in every single workers’ comp case), the Court simply stated, “a claimant’s medical expert is not required to be an eyewitness to the claimant’s disability throughout the pendency of a claim petition.”

The Court was similarly unmoved by the testimony of the treating physician that he anticipated the condition of the injured worker would improve. This opinion was found to be just speculative, and unable to meet the requisite burden to stop disability, without the confirmation the doctor mentioned.

January 27, 2014

Chiropractic Treatment Not Reasonable and Necessary in PA Without Lasting Improvement Beyond Other Available Methods

We have discussed Utilization Review in our Blog on several occasions, many times dealing with whether “palliative” treatment (that treatment which relieves pain, but does not change or cure the condition) is reasonable and necessary. This issue, and the timing within which a Utilization Review Determination must be issued, was recently addressed by the Commonwealth Court of Pennsylvania.

In Womack v. Workers’ Compensation Appeal Board (The School District of Philadelphia), the Commonwealth Court of Pennsylvania affirmed a decision by a Workers’ Compensation Judge (WCJ) finding the chiropractic treatment not reasonable or necessary.

The injured worker suffered herniated discs in the lumbar spine, right medial meniscal
tear, right shoulder pain, and chronic lumbar pain with anxiety and depression, in the work injury. Seeking relief from her symptoms, the injured worker began treating with a chiropractor. As so frequently happens, the workers’ comp insurance carrier promptly filed for Utilization Review (UR). Under the Pennsylvania Workers’ Compensation Act, the filing of the UR allows the insurance carrier to stop paying for the treatment being challenged.

To make sure a UR is decided in a timely fashion, the Pennsylvania Workers’ Compensation Act contains specific time limitations on how long a Utilization Review Organization (URO) has to make a determination regarding whether the treatment at issue is reasonable or necessary. In this case, the facts make clear that the URO exceeded the permitted time limitations. The injured worker argued to the WCJ that the determination rendered by the URO should be thrown out, because it was untimely. In the alternative, the injured worker argued that the chiropractic treatment provided her relief, and should be found reasonable and necessary. The WCJ disagreed on both counts, and found the treatment unreasonable and unnecessary. Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision.

The Commonwealth Court of Pennsylvania also affirmed. As to the issue of the timing, the Court said the WCJ was correct to not throw out the untimely UR because the URO was not a party and the delay was not the fault of the workers’ comp insurance carrier. Essentially, the Court felt it would be wrong to punish the insurance carrier for something beyond its control. The Court seemingly failed to recognize the severe prejudice to an injured worker, who goes longer without having treatment paid for. Given that the burden of proof on a UR is always with the insurance carrier, it would appear objectively, that the determination should have been thrown out as untimely. Either way, one party will be punished for something beyond its control; given the remedial nature of the Act, and the relative burdens, that party seemingly should have been the insurance carrier.

As to the merits of the chiropractic treatment, the Court said the WCJ was correct in his findings. The WCJ noted that relief from the chiropractic treatment was only temporary (which, by such a standard, all medications would be unreasonable and unnecessary). The Court also noted that the WCJ found, as the ultimate finder of fact, that the injured worker “’is able to perform the exact treatment she receives at (the chiropractor) from her own home’ and that she ‘admitted she feels the same amount of relief at home when performing those treatments as she does in the doctor’s office.’” While the former does not seem a valid reason upon which to deny treatment, admittedly, the latter could serve as a sufficient basis.

January 23, 2014

Attending Seminar on WCAIS to Better Handle Workers’ Comp Cases in PA

On Friday, January 24, 2014, our offices will be closed for part of the day so our attorneys, and our staff, can attend a seminar regarding the usage of the new computer system recently installed for the Pennsylvania Bureau of Workers’ Compensation. Called the WCAIS system, this program went live back in September.

Though we were involved in the early testing of the WCAIS system, each day has brought changes to the new program. To best handle our cases with the Bureau of Workers’ Compensation, we felt it important that we, and our staff, attend a seminar held to review the current status of WCAIS, and how best to use the system. The seminar is scheduled to have Hon. Elizabeth A. Crum, Director, Workers' Compensation Office of Adjudication in Harrisburg, Hon. Susan B. Caravaggio, Central District Judge Manager for the Workers’ Compensation Office of Adjudication, and three of the lead programmers who worked on, and refined, the system.

While we apologize for any inconvenience caused by us closing the firm, we believe our attendance at this seminar this will better enable us to represent injured workers throughout Southeastern and Central Pennsylvania.

January 20, 2014

Notice of Ability to Return to Work Not Necessary in All Situations

We have dealt before with the Notice of Ability to Return to Work, and when such a document needs to be issued. The general rule is that the document must be issued by the PA workers’ compensation insurance carrier before the benefits can be modified or suspended. As with any rule, there are exceptions, such as when the injured worker already has knowledge of the work capabilities.

Recently, in School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), the Commonwealth Court of Pennsylvania addressed whether a Notice of Ability to Return to Work is necessary during the litigation of a Claim Petition.

This case concerned a teacher whose stressful environment caused injury to her vocal cord, and also aggravated her pre-existing lupus (remember that stress can lead to a work injury, without proving “abnormal working conditions,” when the stress results in a physical manifestation). A Notice of Denial (NCD) was issued by the workers’ comp insurance carrier. A few months later, the injured worker was offered a job at a less stressful school, but she declined. Shortly after that, the injured worker filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

After litigating the case before a Workers’ Compensation Judge (WCJ), the Claim Petition was granted. However, the WCJ suspended benefits the date the new job was offered (since there was no medical evidence that the injured worker was not capable of performing the job at the new, less stress, school). The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the WCJ, finding that benefits should not have been suspended.

Upon further appeal, the Commonwealth Court of Pennsylvania affirmed the granting of the Claim Petition, but reversed the decision of the WCAB, agreeing with the WCJ that benefits should be suspended based on the offer of the less stressful job. The burden to prove that the loss of earnings is related to the work injury remains with the injured worker throughout a Claim Petition. The evidence did not show that the injured worker was not capable of performing this new job. Since the injured worker was not yet entitled to benefits, the Court felt that a Notice of Ability to Return to Work was not necessary. Specifically, the Court noted, “the main reason for issuance of a Notice of Ability to Return to Work, the need to protect a claimant from a haphazard suspension of
benefits without proper notice, was not present.” As such, the workers’ comp insurance carrier had no duty to issue a Notice of Ability to Return to Work.

January 15, 2014

Injured Workers in PA Have 60 Days to Challenge IRE or Potentially be Forever Barred

Sometimes, we will meet with an injured worker who is already receiving PA workers’ compensation benefits. The injured worker may ask, “Why do I need to have an attorney if I am already receiving benefits?” The answer is that the rights of the injured worker in Pennsylvania can be impacted by inaction as much as by action. That paper which is disregarded can come back to haunt an injured worker for years.

An example of this situation came in Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy). Here, the employee injured his back in 2002. The injury was accepted as a “low back strain.” The injured worker continued to work until May 5, 2003, when he had lumbar surgery (it is amazing that workers’ comp is the only area where a person needs surgery for a “strain” – unless, perhaps, the workers’ comp insurance carrier accepted the injury as something less than it really was, of course).

In 2005, after the injured worker received total disability workers’ compensation benefits for 104 weeks (two years), an Impairment Rating Evaluation (IRE) was performed and a “whole body impairment rating” of 11% was found. As we have previously discussed, an IRE resulting in an impairment rating of less than 50% may result in a shifting of benefits from total to partial status. That is what happened here; the IRE was not challenged.

In 2009, the injured worker filed three Review Petitions. One was to add depression and other psychiatric injuries, and chronic and severe low back pain. The second was to add post-laminectomy syndrome and chronic L5 radiculopathy. Finally, the third was to challenge the 2005 IRE since it did not account for these conditions.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the first two Review Petitions (except for one aspect of the alleged psychological injury), but denied the third. The WCJ found that the 2005 IRE could only be challenged within 60 days of when it was issued. Therefore, the only way for the injured worker to change the status back to total would be to prove he had a whole body impairment rating of at least 50%. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania affirmed the decision of the WCJ. Once the injured worker failed to challenge the IRE within 60 days of it being issued, the IRE became “beyond challenge.” Since the injured worker then failed to prove that he was at least 50% impaired, the status could not be changed, despite the addition of these other work-related conditions. While the new conditions would now count toward rising to the 50% level, that absurd a standard remained out of reach. Had the injured worker been represented in 2005, the IRE could have been challenged and set aside, since it did not include the entire extent of the true work injury. And THAT is why all injured workers should have attorneys.