Supreme Court to Review Timely Filing of Petition to Review Utilization Review Determination

The Supreme Court granted the Employer's Petition For Allowance of Appeal in Gallie v. WCAB (Fichtel & Sachs Industries). The case allowed a Claimant to file a Petition to Review Utilization Review Determination more than thirty days after the Claimant received the initial utilization review determination, because the WCJ observed the Bureau had received the initial determination less than thirty days before the date the Claimant filed.

I noted in my September 11, 2003 post on this case that application of this rule might be a challenge. The Bureau's CIMS database does not record the date of receipt of the initial determination, because it is not a filing. The date of the Bureau's receipt can only be determined from the date stamp on the copy of the initial determination that is sent to the WCJ, provided the stamp is legible.

Governor Rendell Signed HB88 on December 23 -- Effective February 21, 2004

Governor Rendell signed House Bill 88 (see December 22 post) on December 23. The Act is effective in sixty(60) days, so February 21, 2004 will be the effective date. Yahoo News -- Pa. Chamber of Business and Industry Press Release

Overutilization of Low Back Fusion

A New York Times Article (free subscription required) observes that while low back fusion has not been demonstrated to be more effective than laminectomy, the procedure continues to be offered frequently. The article discusses the methods of the hardware manufacturers to market their product and the increased medicare and private insurance reimbursement doctors and hospitals receive. Read all the way to page three for the story of a medical director of a California insurance company with back pain from an extruded disk -- the key here may be no leg pain -- his choice: no surgery, with recovery in two months.

Decision on Reasonable Attorney's Fees

In PATLA news, there is a link to a Decision of WCJ Eric Jones, posted, I think, for the proposition that a reasonable attorney's fee for eminent Claimant's Counsel in Pittsburgh is $250.00 per hour for a senior partner and $200.00 per hour for his mid-level partner or associate. Judge Jones made an unreasonable contest attorneys' fee award. The Decision and Order sets forth his usual detailed and complete analysis of the considerations in awarding these rates.

Maximum Compensation Rate for 2004

The Maximum Workers' Compensation Rate for 2004 is $690.

Legislation Addressing Caso and Other Issues Sent to Governor Rendell for Signature

House Bill 88 was sent to the Governor December 17, 2003 for action by December 27, 2003. The major provision of this legislation is to eliminate the requirement that an expert who will conduct a vocational evaluation be approved by the Department. The expert will have to meet the minimum qualifications established by the Department through regulation to conduct a vocational interview.

An additional requirement is that the vocational expert shall comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses. An element of this is the practice of using vocational counselors who are employed within the corporate structure of the insurance carrier, and who often do vocational assessments only for that carrier. Language prohibiting this was stricken from the final version of the bill. All the bill requires now is disclosure of the relationship at the time the exam is scheduled.

This disclosure may still be a powerful provision, because it will allow Claimant's Counsel to preserve an objection to the competency of the vocational witness on the basis of the witness' conflict of interest. The WCJ determines the competency of a vocational witness without regard to the provisions of the Act about the qualifications of vocational witnesses to conduct vocational interviews and the regulations related thereto. Wheeler v WCAB (Reading Hospital and Medical Center)

The final element of the legislation (at least on its face) is the inclusion within the definition of "employe" individuals who, while in the course and scope of their employment, go to the aid of a person and suffer injury or death as a direct result of preventing the commission of a crime, lawfully apprehending a person reasonably suspected of having committed a crime, aiding the victim of a crime or rendering emergency care, first aid or rescue at the scene of an emergency.

Section 306(a.2) Sixty (60) Days Runs From the Date of Payment When the 104 Weeks Expires During the Pendency of a Claim Petition.

Wal-Mart Stores, Inc. v. WCAB (Rider) gives an answer to the question of what happens when the 104 weeks under section 306(a.2) of the Act runs while the case is in litigation on a claim petition. The IRE ended up being requested almost 14 months after the 104 weeks ran.

At the point the 104 weeks ran, the Employer had an appeal pending with the Board. The Board eventually remanded, then the WCJ issued an Order granting the claim 13 months after the 104 weeks ran. The Employer let this Order become final, and promptly requested an IRE.

The Commonwealth Court assumed the Board had granted supersedeas on the Employer's initial appeal, and therefore assumed the employer paid only after the WCJ's final Order, and held the IRE was properly requested within sixty (60) days of when the 104 weeks was paid.

Pre-Claim Petition UR Binds the Parties

In L. Krouse v. WCAB (Barrier Enterprises, Inc.) a UR found chiropractic treatment not reasonable and necessary in what was then a medical only claim. The Claimant did not appeal. The Claimant later filed a Claim Petition and received an award. The Board and Commonwealth Court rejected her efforts to include the chiropractic treatment subject to the UR in her Claim Award on the basis of res judicata, collateral estoppel and the principle that the WCJ never has original jurisdiction of reasonableness and necessity.

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.