Pennsylvania Workers' Compensation Journal An Online Digest of Developments in Pennsylvania Workers Compensation Practice and Procedure (The site search is limited to pages Google has indexed -- may be limited) |
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All statements and comments are those of the author and are not to be attributed to the Commonwealth of Pennsylvania Department of Labor and Industry or to the Bureau of Workers' Compensation Office of Adjudication.
Judge Robert Vonada is a Workers' Compensation Judge in the Altoona Field Office of the Bureau of Workers' Compensation Office of Adjudication. His circuit includes Altoona (Blair County), Huntingdon (Huntingdon County) and State College (Centre County). Contribute: Links: Get Acrobat Reader to read Decisions Workers'
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Thursday, May 20, 2004
Commonwealth Court Defines Procedure for Proving Modification Based on Surveillance Evidence of Earning Power
J. Burrell v. WCAB (Philadelphia Gas Works, et al.) is a case that has application in many areas. In the final analysis the Commonwealth Court affirmed the Order of the WCJ and Board that imputed income of $9.93 per hour for eight hours per week based on evidence the Claimant was working at least that much as a shoe shiner in his mother's shop. The first issue was whether modification can be granted without a Notice of Ability to Return to Work when surveillance found the Claimant working. The Commonwealth Court noted receipt of medical information documenting a change in condition triggers the Employer's obligation to send the Notice of Ability to Return to Work. The purpose of the statute is to place the Claimant on notice of the medical information. Where the Claimant deems himself able to work, such notice is not required. The next issue was whether the Employer had to demonstrate it had no job available to the Claimant within his restrictions before an award of modification. The Court held where the Claimant deems himself able to work, this can only be an affirmative defense of the Claimant. Another issue was whether the WCJ's holding that the Claimant's imputed hourly wage should be $9.93 was supported by substantial evidence. The Employer's Vocational Expert opined this is the average wage for a shoe shiner in Philadelphia. The Claimant basically argued he's not that good. The Court held the accuracy of the VE's opinion is beyond challenge when the WCJ gives full weight to the VE's testimony, and this determination is within the sole province of the factfinder. Finally, the Employer requested a credit. The Court recognized "Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another." and a credit may be granted to prevent unjust enrichment. However, the Employer could not prove the Claimant received wages or gratuities. Pennsylvania Workers' Compensation Practice and Procedure Reference 21.56; 21.38; 6.106 Monday, May 17, 2004
Commonwealth Court Holds Claimant Did Not Meet His Burden to Reinstate After Retirement
A. Capasso v. WCAB (RACS Associates, Inc.) describes the Claimant's burden to overcome testimony that he retired. Once the Claimant testifies he retired, the presumption that his loss of earning power is through no fault of his own is abolished. The Claimant must show he is seeking to return to work or he was forced to retire because of his work injury. The Commonwealth Court also held that where only the Claimant presented evidence, the WCJ was free to discredit it. The Court engaged in Daniels and Wintermeyer review of the WCJ's credibility finding that the Claimant's injury did not motivate him to retire, and the Court affirmed the finding. Penalties Are Awarded When Employer/Insurer Takes Unilateral Suspension Upon Accrual of Credit In T. Palmer v. WCAB (City of Philadelphia) The Employer took a unilateral suspension because the Claimant became entitled to a pension that offset her workers' compensation benefits. Even though the Claimant was due no workers' compensation benefits after the offset was applied, the WCJ's award of a penalty on the amount of workers' compensation due before the offset was affirmed by the Commonwealth Court. This could apply in the case of return to work unilateral suspensions as well. The Court stated the rule that no penalty can be awarded when no compensation is awarded does not apply when compensation is payable, but offset, because the purpose of the statutory provision is to penalize conduct of the Employer/Insurer that is unlawful, in this case the unilateral suspension. Wednesday, May 12, 2004
Bureau Statement of Policy Confirms Act 53 Qualifications of Vocational Experts are the Qualifications Set Forth at 34 Pa. Code §123.202
As noted in the recent Bureau of Workers' Compensation News and Notes, the Bureau issued a Statement of Policy providing the qualifications of vocational experts referred to in Act 53 of 2003 are as set forth in the "Qualifications (of vocational experts)" Regulation at 34 Pa. Code §123.202. Later regulation is promised and may address the requirement that vocational experts comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses and other matters. Pennsylvania Workers' Compensation Practice and Procedure Reference 21.51 Monday, May 10, 2004
Requirement of "Furthering the Employer's Business or Affairs" When Work Injury Occurs Off the Premises
In an article in the Pennsylvania Bar Association Quarterly, James A. Tinnyo, Esquire analyzes Acme Markets, Inc. v. WCAB (Purcell) to hold that an employee must be engaged in the furtherance of business when he suffers an injury off the premises that arises out of employment. In the case, the Claimant labored heavily for years for the employer, but when his lumbar disk herniated, he was at home. What distinguishes this case from others is that the WCJ credited Claimant's doctor who opined the substantial cause of the herniated disk was the years of employment, not getting up off the floor after assembling a file cabinet for personal use. Perhaps in this pre Daniels, two months post Wintermeyer case the Commonwealth Court didn't feel it could review the credibility determination. One has to ask what the Court would have done if the Claimant, due to his degenerative condition accumulated from years at work, simply couldn't get up in the morning due to pain. If the Court would still deny the Claimant because he was at home (which is contrary to the heart attack cases Mr. Tinnyo cites) then a new precedent has been created. No Proof of Change of Condition is Necessary for Second IRE in a Twelve Month Period In S. Hilyer v. WCAB (Joseph T. Pastill, Jr. Logging), the Commonwealth Court endorsed the Bureau's Regulation at 34 Pa. Code §123.102(g) which provides an Employer can have an IME (Independent Medical Exam) that comments on the status of the Claimant's impairment under the AMA Guides within the twelve months following the IRE (Impairment Rating Evaluation) provided for in §306(a.2)(1) of the Act. The Court danced around the fact the Act only allows an IME to be held after the Employer's one shot at an IRE which must be conducted within sixty (60) days after 104 weeks of temporary total disability is paid. §306(a.2)(6) The Court allowed to stand the obfuscation of the regulation that states an Employer can have two IRE's in a twelve month period, when the statute clearly says IMEs. The bottom line, however, is the Court properly read §306(a.2) in pari materia to provide that in an IME that takes place after an IRE is properly conducted, the examiner can review the status of the Claimant's impairment under the AMA Guides. The Court further held no prefatory showing of a change in condition is required by §306(a.2)(6). Pennsylvania Workers' Compensation Practice and Procedure reference: 17.31 Monday, May 03, 2004
NCP, Including Description Of Injury, Can Be Reviewed Where Facts Were Available At Time NCP Was Issued
In Meenan Oil Co., L.P. v. WCAB (Pownall) the Commonwealth Court held that pursuant to Section 413(a) of the Act, a review petition can be filed "at any time" to correct material mistakes including the date of injury and the description of injury. The key here is the facts that direct the relief requested existed at the time the NCP was issued. The WCJ considered these facts under a review petition. The WCJ's finding that the date of injury and the description of injury were incorrectly entered on the NCP was within the authority granted by Section 413(a). Pennsylvania Workers' Compensation Practice and Procedure reference: 25.6 Monday, April 05, 2004
New NCP With Medical Only Check Box Published
The Notice of Compensation Payable (LIBC-495) to use for medical only cases is available at the Workers' Compensation Forms Matrix Site. This form replaces all prior versions of the NCP. Pennsylvania Workers' Compensation Practice and Procedure reference: 9.6 Tuesday, March 23, 2004
Commonwealth Court Affirms Board Order Quadrupling Disfigurement Award
In General Motors Corp. v. WCAB (McHugh) The Board explained a disfigurement case almost in the manner the Court asked the Board to do in Lord & Taylor v. WCAB (Bufford) November 7, 2003 post. The Court affirmed the Board's modification of a disfigurement award from fifteen (15) to fifty-five (55) weeks. The specifics: 3/4 in. scar right nostril -- WCJ 6 weeks, Board 15 to 25 weeks, awarded 20; 1/2 in scar right eyebrow -- WCJ 7 weeks, Board 3 to 5 weeks, awarded 5; "de mimimus" (per WCJ) deviation of bridge of nose to the left -- WCJ 2 weeks, Board 25 to 35, awarded 30. The element of Lord & Taylor that the Court did not require in the instant case was the requirement that the Board explain how it arrived at the range most WCJ's would select. The Court declined to offer any guidance itself, recognizing this is within the province of the legislature. The Court also again stated the "rule of thumb" of ten weeks per linear inch has no precedential value. The Court indicated it would affirm the Board's determination of "acceptable" awards to pursue uniformity. Monday, March 22, 2004
Employer Has Thirty Days After WCAB Supersedeas Disposition to Pay
In R. Snizaski v. WCAB (Rox Coal Company) the Commonwealth Court reversed its holding in Hoover v. WCAB (ABF Freight Systems) and stated an employer shall not be penalized for not paying workers' compensation benefits due under an Order of the WCJ while the time for review of the Employer's supersedeas request before the Workers' Compensation Appeal Board has not expired. Judge Friedman's dissent pointed out the Board's procedure can take fifty (50) days, and with thirty (30) days to pay thereafter, the Employer could pay eighty (80) days after a WCJ's order without penalty. Supreme Court Takes Gardner, Denies Employer's Appeal in Cryder The Supreme Court granted allowance of appeal in Gardner v. WCAB (Genesis Health Ventures) January 15, 2003 post, which held an Employer may not have an IRE if it is not requested in the sixty (60) day window after the expiration of 104 weeks of temporary total disability. The Supreme Court denied the Employer's petition for appeal in Cryder v. WCAB (National City) June 24, 2003 post, which held when a Claimant on light duty was terminated for not meeting her production goals, her loss of earning power was through no fault of her own. Tuesday, March 16, 2004
Commonwealth Court Issues Another AWW Case
The G. Rebel v. WCAB (Emery World Wide Airlines #150) affirms that when a Claimant is off for a non work-related condition during the year prior to a work injury, but the Claimant did work a complete 13 week quarter prior to the injury, Section 309(d) is used to calculate the AWW. The Court stated the Claimant remained "employed" while she was off for maternity leave. This case lends itself to Judge Friedman's (joined by Judge McGinley) argument stated in the dissent in Zerby that when one is incapable of performing services for valuable consideration, one cannot be employed. Maternity leave is no more a factor in establishing pre-injury earning experience as a predictor of future earning potential than is a prior work injury or a period of disability for which the Claimant collected sickness and accident benefits. In the cases of Colpetzer, Zerby and Shire the Commonwealth Court put the Claimant's prior AWW or S&A; benefit rate in the Section 309(d) calculation. That was a fair compromise in those cases, but this case demonstrates a determination of whether the Claimant was capable of performing services for valuable consideration when the Claimant had no earnings is more universal in determining future earning potential. In the Dana Corporation cases, one could argue periods of lay off prior to a work injury are relevant to what the Employer's liability for future wage replacement should be. A direction that unemployment compensation should be included in a later AWW calculation would be appropriate for the legislature to consider. Colpetzer, Zerby and the three Dana Corporation cases, are presently before the Supreme Court. Commonwealth Court States Findings of Fact Not Reviewable In J. Almeida v. WCAB (Herman Goldner Company) the NCP accepted a strain to the lower back. In later termination proceedings, the Claimant's medical witness stated the Claimant sustained a herniated lumbar disc. The Employer's medical witness stated the Claimant was recovered from a lumbar strain and his continuing complaints were from non work-related mild degenerative disc disease. The WCJ found the Claimant's expert credible, but also found the Claimant did not sustain a herniated disc. The WCJ noted the Claimant's non work-related degenerative disc disease was not symptomatic prior to the injury. The Claimant appealed. He asserted the WCJ's finding the Claimant did not sustain a herniated disc was not supported by substantial evidence. The Board affirmed on the basis of the WCJ's authority over matters of credibility. The Commonwealth Court affirmed on the basis that a party lacks standing to appeal a finding of fact where the party does not appeal the Order of the WCJ. The Court stated the Claimant was not aggrieved by the Order of the WCJ, and therefore no standing to appeal is granted by Pa. R.A.P. 501 or Section 702 of the Administrative Agency Law. In a footnote (No. 5), the Court stated it agreed the WCJ's fact finding was "appropriate", but the Court was without power to set aside the WCJ's factual finding on the herniated disc without invading the province of the WCJ to weigh the evidence and make credibility determinations. The WCJ's fact finding in this case was appropriate because it satisfied the framework the Supreme Court has established in Daniels and Wintermeyer for reviewing credibility findings of a WCJ. The WCJ did explain, as required by Daniels, that the diagnosis of a herniated disc was not credible because it was unsupported by objective evidence. Also, it is not clear beyond doubt that the WCJ capriciously disregarded other competent evidence, which triggers judicial review under Wintermeyer. This analysis also would allow the finding of the WCJ to have Res Judicata effect. If a finding of fact cannot be appealed, the denial of due process as to this adjudication of the WCJ makes giving the finding Res Judicata effect also a denial of due process. The description of injury is a very important element in allocating the burden of proof under recent caselaw. If it is true a description of injury in a WCJ's finding of fact cannot be appealed, the parties should demand that whenever the description of injury is at issue it be included in the Order with the appropriate diagnosis code(s) as testified to by the medical witnesses. Commonwealth Court Affirms The Subsequent Injury Fund Is Not Liable for Penalties J. Chiconella v. WCAB (Century Steel Erectors, Inc., et al.) affirms the Subsequent Injury Fund is not liable for penalties. Only "employers" and "insurers" can be penalized. Tuesday, February 24, 2004
Social Security and Medicare Updated Information
For Social Security offsets, the new life tables were published on February 18. For Medicare set-aside account approvals, the Centers for Medicare & Medicaid Services (CMS) has a coordination of benefits contractor. Accordingly, there is a new address to send requests for approvals of medicare set-aside proposals. Supreme Court Grants Employer's Petition for Allowance of Appeal in More AWW Cases The Supreme Court granted the Employer's Petition for Appeal in the consolidated cases of Reifsnyder v. WCAB (Dana Corporation), Remp v. WCAB (Dana Corporation) and Hoffa v. WCAB (Dana Corporation). The Commonwealth Court in these cases reversed the WCJ's application of Section 309(d) of the Act on the basis that while the Employees were employed for all 52 weeks prior to the dates of injury, they had not worked a complete period of thirteen calendar weeks. The Commonwealth Court allowed the Employees to use section 309(d.2) of the Act. The Supreme Court now has these cases with Colpetzer and Zerby, both of which used Section 309(d) but included the AWW of a prior work injury in the calculation. The Court denied the Petition for Allowance of Appeal in Shire, which used section 309(d) and included S&A; benefits in the calculation. The Claimants in the Dana Corporation cases were laid off for periods, and presumably they collected unemployment compensation benefits that could be included in an AWW calculation to achieve an average weekly wage that reasonably reflects the reality of the Claimant's pre-injury earning experience as a predictor of future earning potential. Supreme Court Gives Standard for Ordering Diagnostic Testing With Physical Examination In Coleman, Aplt v. WCAB (Indiana Hospital, et al.) the Claimant sought review of a WCJ's Order that she undergo a triphasic bone scan and MRI. The WCJ found the unrebutted medical evidence was that the tests were required; there was no medical evidence suggesting the tests would not have diagnostic value or place the Claimant at risk. The Board dismissed the Claimant's appeal because she underwent the test, but the Commonwealth Court agreed to hear the issue and affirmed the WCJ as did the Supreme Court. The Supreme Court held the term "physical examination" includes all reasonable medical procedures and tests necessary to permit a provider to determine the extent of a Claimant's disability. Furthermore, the test must meet the standard for suspension for refusal of care, e.g. it must involve only a minimal risk and offer a high probability of success. The fact that a test or procedure is invasive is not relevant; the Court said injections are commonplace in medical diagnosis and treatment. However, a reasonableness standard will be applied to the intrusiveness of the test or procedure. A minimally invasive test may be unreasonably intrusive, such as genetic testing, and introduction of a contrast agent into the body will not be unreasonably intrusive in most cases. The Court concluded diagnostic testing to evaluate the extent of the Claimant's injuries falls under the definition of a physical examination when it is necessary, involves no more than minimal risk and is not unreasonably intrusive. Friday, February 13, 2004
Commonwealth Court Applies Logical Analysis of Cumulative Trauma Over Technical Analysis
In R. Armitage v. WCAB (Gurtler Chemicals) the Claimant suffered from plantar fasciitis that arose from continuous standing. The condition was diagnosed in 1995. The Claimant kept working, however, only suffering a work restriction when the Employer sought to increase his hours in 1999 and the Claimant stated he could not do it. The Claimant's modified duty status continued until December 2000, when modified duty was no longer available. When the Claimant filed a claim in March 2001, his doctor testified that while standing aggravates the Claimant's symptoms, the Claimant's condition was no better or worse than it was in 1995. The WCJ was constrained to dismiss on the statute of limitations. The Board affirmed. The Commonwealth Court agreed it is necessary to establish a daily aggravation to establish the last date of work is the injury date. The Claimant's doctor testified there was not a daily aggravation. However, the Commonwealth Court remanded for the WCJ to consider whether the Claimant's condition was aggravated on any date within the three year statute of limitations. The WCJ had not made a specific finding on this fact, and the Court identified testimony of the Claimant and his doctor that might support such a finding. The equities of this case favor the Claimant. The policy concern of allowing the Employer to conduct a fresh investigation of the circumstances of the injury is satisfied without regard to the passage of time. Proper notice was given, and the Claimant's physical condition is unchanged. The Claimant should not be punished for continuing to work. The Court did foreshadow a possible remedy for the Claimant. After recognizing the Claimant sought to set the date of injury when he first had a loss of (potential) earning power in 1999, the Court called this a "valid point," but then moved on to their analysis that the record might support an aggravation within the last three years. Thursday, February 12, 2004
New York Times Article: "Healing a Bad Back Is Often an Effort in Painful Futility"
A New York Times Article picked up on the same theme as the study mentioned in the January 28 post that supports a prompt return to graded activity. The article focused on cases in which overutilization of low back surgery reverses normal recovery from a low back sprain. Thanks to Workers Comp Insider for directing me to the article. Read the comment at Workers' Comp Insider Thursday, February 05, 2004
Two Pennsylvania Bar Association Quarterly Articles on Workers' Compensation
In the January 2004 Pennsylvania Bar Association Quarterly, Paul Dellasega and Crystal Williamson of Thomas, Thomas & Hafer outline the employee's burden of proof in a wrongful discharge action alleging termination based on the employee's prosecution of a workers' compensation claim. Also, Daniel R. Shuckers, Prothonotary of the Commonwealth Court, argues in favor of abolition of the "legal residuum" rule. The rule provides that in administrative adjudications when hearsay evidence comes in to the record, a finding of fact may not be based solely upon hearsay. Mr. Shuckers suggested the 1976 Commonwealth Court holding in Walker v. U.C. Board of Review is a relic of an era when administrative law judges were political appointees, untrained and/or uncaring about due process. Since this is no longer the case, Mr. Shuckers suggests the Commonwealth Court should fall in line with the Administrative Agency Law and the Rules of Evidence. In the Administrative Agency Law and the General Rules of Administrative Practice and Procedure, even objected to hearsay can be admitted if relevant, material and and of the kind that would affect reasonable and fair minded persons in the conduct of their daily affairs. The Rules of Evidence (which are not binding on agency determinations) allow unobjected to hearsay to be relied upon. John Gedid, Director of the Widener University School of Law -- Law and Government Institute, argues in favor of the "legal residuum" rule. Relying on fundamentals of due process from both the Federal and State Constitutions, Mr. Gedid states the courts have a duty to assure meaningful judicial review of agency action by assuring due process at the agency level. The right of cross-examination is the due process right preserved by the "legal residuum" rule. In an introduction, the authors do recognize that the Supreme Court lately has been leaning toward more regulation of ALJ's. This is evidenced by the Supreme Court holdings in Daniels, which requires WCJ's to state the reasons for credibility determinations made on all but live testimony, and Wintermeyer, which holds the courts can reverse a credibility determination made with capricious disregard of other competent evidence. The suggestion was made that pressure on ALJs to decide large numbers of cases informally, efficiently, rapidly and inexpensively can cause an otherwise highly trained and diligent ALJ to pursue these objectives at the expense of fairness to a Claimant. The article did not consider that fairness to the Claimant is not always achieved by requiring cross examination. In 1976, Baksalary had not been decided. Then, it was a matter of fairness to Claimants that the Employer should not be able to take an automatic supersedeas based upon an opinion of full recovery and then get a final order without a deposition. Now, it is often the Claimant that is prejudiced by the requirement that the Claimant take a medical deposition in every long-term (more than 52 weeks) case as defined in Weaver v. State of the Art. However, the current state of the law still provides the necessary framework to achieve fairness in these cases. The legislature amended Section 422(c) of the Act to provide a medical report may be admitted in any case where there is no objection, and the Commonwealth Court withdrew the Iroquois Tool decision that held this amendment was unconstitutional. Under Rule of Professional Conduct 3.1 counsel has an obligation to not assert an issue unless there is a basis for doing so that is not frivolous. The comment to the rule would suggest that interposing a hearsay objection solely because counsel knows it is not cost effective for the Claimant to take his doctor's deposition would be in violation of the rule. Fairness can be achieved with the "legal residuum" rule. The only result of abolishing the "legal residuum" rule would be renewed efforts to require that workers' compensation cases be litigated exclusively on medical reports. |