Commonwealth's Contributions to PSERS Are Not Offset From W.C. Benefits

In Pittsburgh Board of Education v. WCAB (Dancho) the issue was offset for pension contributions of the Commonwealth to the Public School Employees Retirement System. The WCJ accepted the argument of the Employer School District that it was an agent of the Commonwealth, therefore the pension offset should be in the amount of both the School District's and the Commonwealth's contributions to the Claimant's pension. The Board reversed and the Commonwealth Court affirmed, noting that the Commonwealth is not and could not be the "employer liable for the payment of compensation," the party entitled to an offset for its pension contributions under Section 204(a). The Court did not address the effect of the policy in place since June 30, 1995 whereby the school district makes the contribution of the school district and the Commonwealth and is then reimbursed for the Commonwealth's share. The Court stated this issue was not raised below.

Claimant Cannot Reinstate By Offering Evidence That He Could Never Do The Job In The Prior Modification

In R. Williams v. WCAB (Hahnemann University Hospital) the Claimant was modified by Order of the WCJ, then petitioned for reinstatement after the 500 weeks expired. The Claimant's burden, of course, is to prove the Claimant cannot perform the job that was found available in the prior modification petition and can perform no work. In Williams, the Claimant presented medical and vocational evidence that he was never able to perform the work he was found capable of performing in the prior petition. The Commonwealth Court held this evidence that contradicted the prior findings of the WCJ was incompetent, and did not meet the Claimant's burden for reinstatement.

Commonwealth Court Holds No Pension Offset Unless Employer is Self-Insured

In Welliver McGuire, Inc. v. WCAB (Padgett) the Commonwealth Court addressed the argument that an Employer is not entitled to offset for a pension if the Employer is not self-insured. Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corporation), 794 A.2d 953 (Pa. Cmwlth. 2002), petition for allowance of appeal granted, 820 A.2d 700 (Pa. 2003) held the Employer is not entitled to an offset for severance benefits unless it is self-insured. The Court applied the reasoning in Kramer and held an Employer is entitled to an offset for the Employer's contribution to a pension only to the extent it is self-insured. This decision will be impacted by the Supreme Court's holding in Kramer, which will be argued in Harrisburg on December 2, along with Colpetzer/Zerby.

Commonwealth Court Remands Case to Board to Explain How the Range of Weeks Most Judges Would Award For Disfigurement is Arrived At

In Lord & Taylor v. WCAB (Bufford) the record supported only a finding that a scar that is three-quarters of an inch to an inch in length is permanent and related to the work injury. The WCJ awarded thirty weeks. The Board stated the award was significantly outside the range most judges would select. Without stating the range, the Board awarded 100 weeks. The Commonwealth Court remanded for the Board to explain 1) what disfigurement is covered by the award; 2) what is the range most WCJ's would award; and 3) how the Board arrives at that range. The Board can then state whether the WCJ's award fell in the range, and modify the award if it did not.

Treatment of Low Back Pain News

The World Health Organization released a report entitled The Burden of Musculoskeletal Conditions at the Start of the New millennium. The report indicated Low back pain has reached epidemic proportions being reported by about 80% of people at some time in their life. Total costs of musculoskeletal disease in the US in 2000 have been calculated at US$254 billion.

On the treatment front, spinal endoscopic adhesiolysis was found effective in a study reported in Doctor's Guide, as was the IDET Procedure in a study recognized as an outstanding paper by the North American Spine Society.

When spinal fusion is contemplated, another study recommends the use of the Dallas Pain Questionnaire to predict the outcome of spinal fusion surgery. According to the study, "the largest risk factors for inferior outcomes after spinal fusion are the pre-procedure existence of emotional distress, previous surgery and a status of not working."

Take a one hour CME course in the assessment and treatment of low back pain

No Specific Loss of Foot When Ankle is Useless

In Maple Creek Mining Co. v. WCAB (Bakos) the Employer moved to suspend benefits alleging the Claimant's ankle injury resolved into a specific loss of the foot. All the doctors testified the Claimant had lost the use of his foot based on the condition of his ankle. The WCJ and Board dismissed the case, and the Commonwealth Court affirmed. The Act does not provide for specific loss of the ankle, and there was no amputation. Accordingly, The Court held there is no statutory provision that allows the relief the Employer was seeking.

Commonwealth Court Reviews Several Issues of Competency of Utilization Reviews

In M. Haynes v. WCAB (City of Chester) The Claimant took his doctor's testimony in support of physical therapy his doctor prescribed. In opposition, the Employer presented the Utilization Reviewer, a physical therapist. The WCJ also requested a Peer Review and the Bureau assigned a physical therapist. The WCJ credited the physical therapists. The Commonwealth Court rejected the Claimant's argument that the physical therapists' opinions were not competent. The Bureau procedure provides for appointing physical therapists to review physical therapy, and there could be no issue of causal connection to the work injury, an issue that would require competent medical testimony.

The Claimant in Haynes also did not prevail on his argument that the physical therapy he received provided palliative care, because the physical therapists reasoned it was not reasonable and necessary on the basis that it was repetitive, did not require skilled care, and incomplete.

In C. Havenstrite v. WCAB (Tobyhanna State Park), The Commonwealth Court en banc held the provider does not need to be consulted when his notes are characterized by the reviewer as "sketchy". The Court held this goes to the weight to be given to the reviewer's opinions.

The dissent noted the requirement of 34 Pa. Code Section 127.469 that states the reviewer shall initiate discussion with the provider when such a discussion will assist the reviewer in reaching a determination. The dissent would have combined this with the requirement that the issue be resolved in the favor of the provider if the reviewer is unable to determine whether the treatment is reasonable and necessary to hold the reviewer's opinions were incompetent.

Issue in Gibson v. WCAB (Armco Stainless & Alloy Products) is the Standard of Proof of Asbestos Exposure

I was provided the .pdf of Gibson v. WCAB (Armco Stainless & Alloy Products), the unreported decision of the Commonwealth Court on which the Supreme Court granted the Employer's Petition for Allowance of Appeal and granted supersedeas.

In the case, the WCJ granted a fatal asbestosis claim, but the Board reversed, finding there was not substantial, competent evidence to support the finding that the Claimant was exposed to asbestos.

The evidence of exposure was a co-worker's testimony that he saw a dark grey, heavy-cotton type material that he believed was asbestos on pipes running in and out of the furnace. The witness indicated the stuff fell off, created dust, and the Claimant would have to sweep up the material as part of his job. The witness finally testified that one facility where he worked with the Claimant was shut down for several years, and it appeared new walls were installed and asbestos material was removed from the walls. The witness admitted, however, that he had no training in identifying asbestos and he could not state with certainty that what he saw was asbestos.

The Commonwealth Court en banc reversed the Board and found that the WCJ properly relied on the testimony of the lay witness under the clear Commonwealth Court precedent regarding the non-technical nature of a Claimant's burden of proof in establishing asbestos exposure. The Court cited Witco-Kendall Co. v. WCAB (Adams), 562 A.2d 397 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 652, 581 A.2d 577 (1990) which held, inter alia, that the Claimant's failure to identify the dust to which he was exposed was not fatal to his petition.

The Court did not mention McMullen v. WCAB (City of Philadelphia) which extended this principle to the extent that where the Claimant testified his firehouse underwent asbestos removal, the rebuttable presumption of Section 301(e) arose.

The Dissent in Gibson would have affirmed the Board because the co-employee's testimony was equivocal. Interestingly the dissent distinguished Witco-Kendall on the basis that the Employer in that case did not contest asbestos exposure. This is consistent with application of McMullen which would always establish in the record whether the Employer contests exposure, and if so, what its evidence is to rebut the Claimant's exposure case.

Thanks to Brian S. Frantum, Esquire
Holsten & Associates
Media, PA

Claim Petition Available Online

The Claim Petition for Workers' Compensation Benefits is now available to complete and file online at the Bureau of Workers' Compensation's Quick Links Site.

Status of OSHA Regualtion of Repetitive Stress Injuries

An article in the Washington Post details the debate about reporting of repetitive stress injuries. The OSHA rule requiring reporting passed by the Clinton Administration was reversed by the Bush Administration.

Petition for Allowance of Appeal Granted with Grant of Supersedeas, But The Unreported Commonwealth Court Opinion Posting Has Expired

The Supreme Court granted a Petition for Alllowance of Appeal and granted supersedeas in Gibson v. WCAB (Armco Stainless & Alloy Products), Petition of: Armco Stainless, et al. Apparently the underlying case was unreported and its posting expired after 90 days. If anyone knows the issue and/or can provide a copy of the unreported decision, email me.

SWIF Unsuccessful In Voiding Policy On Allegation Of Employer Misrepresentation

In SWIF v. WCAB (Hering, et al.) the Claimant was found by the WCJ to be an employee of the Employer while working as a parcel delivery person. Upon SWIF's review of the policy, they found the Employer was charged a premium based on a nominal estimated payroll of $1,000.00 for parcel delivery persons, category 808, and SWIF resisted the claim arguing SWIF relied on an Employer representation to its detriment, therefore voiding the policy.

The evidence revealed there is a system of checks and balances through The Pennsylvania Compensation Rating Bureau and the Insurance Department that prevent a category being taken off the policy without reason. In this case, the procedure had been complied with. Based on information including the Employer's computerized payroll printouts, SWIF had received permission to leave category 808 off. SWIF nevertheless issued the policy with this category and assumed the risk of this claim.