Articles Posted in Case Law Update

We have lamented the severe and draconian limits on the ability to challenge Utilization Reviews (URs) on this blog before.  We have seen a case where a healthcare provider sent a treatment summary and talked with the reviewer, and a case where records were actually submitted by the provider, but then returned by the reviewer due to a missing verification, both of which were deemed unreachable by appeal (finding that the Workers Compensation Judge (WCJ) lacked jurisdiction due to the failure to supply records).

Considering that UR is the process to limit medical treatment to an injured worker, and that the Supreme Court of Pennsylvania just told us, in Parker v. Workers’ Compensation Appeal Board (County of Allegheny), “we observe that the Workers’ Compensation Act is to be liberally construed in favor of workers in order to effectuate its remedial purpose,” these cases are hard to rationalize.  And, with this latest contribution from the Commonwealth Court of Pennsylvania, even more disappointing.

As noted above, the case law, and regulations, have told us that when a healthcare provider fails to provide records, no report is to be prepared by the Utilization Reviewer, and no challenge can be made from the Utilization Review to a Workers’ Compensation Judge (WCJ).  In fact, the Utilization Review Determination Face Sheet has a specific box to be checked for when no Determination can be issued due to the failure to supply records.

Several years ago, we were excited to tell everyone about the Supreme Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap).  It was this case that made clear workers’ compensation insurance carriers in PA could not simply use a classified “help wanted” ad to reduce every injured worker’s benefits.

If a workers’ compensation insurance carrier in Pennsylvania wants to reduce the benefits of an injured worker, said the Court, the jobs shown must not only be open at the time they are found, the potential jobs in a Labor Market Survey (LMS) or Earning Power Assessment (EPA) should “remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.”  The reasoning behind this, of course, is that an LMS/EPA is not just a tool to cut the benefits of injured workers; it should be a device to assist an injured worker back to gainful employment.

The Commonwealth Court of Pennsylvania recently had to address exactly what a workers’ compensation insurance carrier needs to prove in this regard.  In Smith v. Workers’ Compensation Appeal Board (Supervalu Holdings PA, LLC), the injured worker (Claimant) hurt his neck and back.  At the time he was injured, he was earning an “Average Weekly Wage” (AWW; the calculation we do under the PA Workers’ Compensation Act to see the amount of benefits due to the injured worker) of $992.50.  The injury was accepted by the insurance carrier as a cervical strain and sprain (making eventual fusion surgery required due to the work injury a curious fit to that modest diagnosis).

Among the benefits available under the Pennsylvania Workers’ Compensation Act (Act), are “fatal claim” benefits.  Since these are only relevant for work accidents which involve the death of a worker, these are not things we like to often see.  Unfortunately, sometimes these things do happen, and they are cases which need attention.

In addition to modest “burial expenses,” fatal claim benefits also include benefits for any surviving minor children, and, potentially, a spouse (among other categories of possible recipients beyond this topic).  We say “potentially” since benefits to a spouse are not automatic.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Grimm v. Workers’ Compensation Appeal Board (Federal Express Corporation).  Here, the worker who died (Decedent) was employed by Federal Express.  She suffered a fatal heart attack while delivering packages in her normal course of work.

Sometimes odd facts in a Pennsylvania workers’ compensation case make for an odd decision.  Yet, even then, we can often find something of use in that decision.  Seeing how appellate courts approach different situations helps us understand how that may translate to other fact patterns and enable us to better represent injured workers in PA.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Dorvilus v. Workers’ Compensation Appeal Board (Cardone Industries).  Here, the injured worker hurt his low back in 2009.  A Claim Petition was filed, and a Workers’ Compensation Judge (WCJ) granted the Petition, awarding both disability and medical benefits.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ as to the award of disability benefits (though the injured worker received disability payments until this reversal in 2013).  Though the injured worker did prove that a work injury took place, said the WCAB, he failed to prove that he was “disabled” as a result of that injury.  This was affirmed by the Commonwealth Court of Pennsylvania (not the decision we are discussing here).  Though requested, an appeal to the Supreme Court of Pennsylvania was not accepted (unlike the WCAB and Commonwealth Court of PA, the Supreme Court of PA has the discretion to accept or decline an appeal).

What is “medical treatment”?  Though most folks know that medical treatment for a work injury is covered under the Pennsylvania Workers’ Compensation Act (Act), even the courts seem confused as to what constitutes “medical treatment.”  In some ways, this issue was recently clarified by the Commonwealth Court of Pennsylvania.

In Schriver v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania, Department of Transportation), the injured worker suffered an injury to his low back.  For relief, the injured worker began treating with a chiropractor.  The chiropractor, in turn, referred the injured worker to a massage therapist in his office.  When presented with bills for the massage therapy, the workers’ compensation insurance carrier refused payment, denying that “massage therapy” falls under the category of “medical treatment.”

The injured worker filed a Petition for Review of Medical Treatment/Billing, and a Petition for Penalties.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted both Petitions and ordered payment of the massage therapy bills, in addition to penalties.

One of the tools in the arsenal of the workers’ compensation insurance carrier in Pennsylvania, in their fight to take away benefits from injured workers, is the “Labor Market Survey” (LMS), also known as an “Earning Power Assessment” (EPA).  Once an injured worker in PA has shown an entitlement to workers’ comp benefits, then the insurance carrier can use an LMS or EPA to show there are jobs available in the general community that the injured worker could get if he or she wished.  A “vocational expert” is used to locate these jobs.  This is typically followed by a Petition for Modification, seeking a reduction of workers’ compensation benefits based on the amount these potential jobs would pay.

As we discussed several years ago on this blog, the Supreme Court of Pennsylvania, in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), found that a defense to one of these Modification Petitions is for the injured worker to show that he or she applied to these supposed “open and available” jobs and did not receive an offer of employment.  This is a critical part of defending these Modification Petitions (typically).  However, the Court in Shoap did not specify exactly what the injured worker had to show to refute that the jobs were open and available (or how the insurance company could overcome the injured worker not receiving an offer of employment).

This brings us to a recent decision from the Commonwealth Court of Pennsylvania in Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance Company).  Here, the injured worker suffered serious damage to  her neck and shoulder.  In fact, the injured worker required a cervical fusion due to the work injury.  After that surgery, the workers’ comp insurance company had a LMS/EPA performed.  The injured worker attempted to apply for each of the six jobs that were identified (Though she was only able to contact three of the six potential employers, and only able to actually apply for two of the jobs, she had a vocational expert testify regarding all six jobs).  No offer of employment was received by the injured worker.

Though the phrase “scope and course of employment” does not appear anywhere in the Pennsylvania Workers’ Compensation Act, this is a frequent issue involved with appellate cases.  After all, a work injury is only compensable if one was performing his or her job at the time of the injury.  This issue often depends on the particular facts of each case.  A recent decision by the Commonwealth Court of Pennsylvania continues this concept.

In Rana v. Workers’ Compensation Appeal Board (Asha Corporation), the injured worker (“Claimant”) was a manager-in-training for a Dunkin Donuts franchisee.  The franchisee owned locations in Wyncote, Horsham, and Hatfield.  Claimant primarily worked as a manager at the Wyncote location, but would be expected to travel to the other locations occasionally for operational issues.  One night, after Claimant finished his regular shift at the Wyncote store, Claimant’s boss called him at home at 10:00 pm, and said an employee at the Hatfield location had a medical issue.  Claimant told his boss he would go in and see what was happening.  While heading to the location, Claimant was in a motor vehicle accident, and unfortunately was fatally injured.

A Fatal Claim Petition was filed by Claimant’s parents, who were dependent upon him.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Fatal Claim Petition, finding that Claimant “was furthering Employer’s business and was on a special assignment for Employer. Thus, Decedent was in the course and scope of his employment at the time of the accident and Claimants were entitled to collect compensation.”

The Pennsylvania Workers’ Compensation Act sets forth that medical treatment related to a work injury is to be paid for by the workers’ comp insurance carrier (provided the treatment is reasonable and necessary).  If there is a dispute as to whether treatment is related to a work injury, a petition must be filed.  If, on the other hand, the dispute is whether treatment is reasonable and necessary, then the Utilization Review process is to be used.  Whether treatment is related to a work injury is not a factor in a Utilization Review.  A recent decision from the Commonwealth Court of Pennsylvania dealt with this distinction.

In Haslam v. Workers’ Compensation Appeal Board (London Grove Communication), the injured worker (“Claimant”), fell from a building.  He suffered fractures to his right ankle, tibia, and fibula, a left calcaneus fracture, and injuries to his neck and low back.  After some time, the indemnity aspect (wage loss part) of the work injury was settled by Compromise & Release Agreement.  The settlement documents described the work injury as “R and L Foot Fracture.”

After the settlement, the workers’ compensation insurance company filed for Utilization Review against the treating doctor, seeking a ruling of whether ongoing medical treatments, including compound creams, were reasonable and necessary.  The Utilization Review Determination found all treatment to be reasonable and necessary.

Complicated fact patterns tend to make for complicated blog entries.  A recent decision by the Commonwealth Court of Pennsylvania in McNeil v. Workers’ Compensation Appeal Board (Department of Corrections, SCI-Graterford) is one of these situations, but is valuable for the lessons contained within.

In that case the injured worker (“Claimant”) tripped and fell on January 26, 2011, injuring her low back and left shoulder.  A Claim Petition was filed.  In the interim, a Notice of Compensation Payable (NCP) was issued accepting first left ankle sprain and left shoulder sprain, then later amended to add low back sprain.  Eventually, the Claim Petition was granted, so that the accepted work injury included, “left ankle sprain, acute cervical strain, acute back pain, musculoskeletal injury of the left shoulder, mild edema of the left ankle, left shoulder sprain, and tenderness of the Claimant’s left shoulder and upper and lower back.”  There was no appeal of this decision.

After the decision was rendered in the Claim Petition, the workers’ compensation insurance carrier filed a Petition for Termination, alleging that Claimant had fully recovered from the work-related injuries. The Petition for Termination was based on a May 21, 2014 “Independent” Medical Examination (IME, though a more realistic term is Defense Medical Examination, or DME).  Claimant filed Petitions for Review (to amend the description of injury) and Penalties (for the failure to pay for medical treatment related to the work injury); these Petitions were consolidated with the Petition for Termination.

Of course, no injured worker is trying to lose his or her Pennsylvania workers’ compensation benefits.  But, not being properly advised by an attorney who is certified as a specialist in PA workers’ compensation law can lead to that very result.  Take the cautionary tale of Mr. Torijano, a plumber’s helper who suffered a lumbar strain while working.

As addressed by the Commonwealth Court of Pennsylvania in Torijano v. Workers’ Compensation Appeal Board (In A Flash Plumbing), Mr. Torijano (“Claimant”) was released to go back to light duty work following his injury.  Initially, he did go back to work.  But, he felt the work was too heavy for him.  He also was unhappy that his employer reprimanded him (for failing to call in before each job, as the employer required).  Rather than bring the physical problems to the attention of his employer, or his doctors, he simply stopped reporting for work.

After hearing testimony from four representatives of the employer, and reviewing a letter the employer sent Claimant, making clear light duty work was available, the Workers’ Compensation Judge (WCJ) granted the Petition for Suspension, stopping the wage loss replacement benefits.  The testimony of Claimant’s own medical expert confirmed that he remained capable of light duty work.  Also not helpful was the admission from Claimant that he told the adjuster the only reason he stopped going to the light duty job was the reprimand.  The WCJ found that Claimant voluntarily quit the job, which was within his light duty capabilities.  This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).