Commonwealth Court Further Defines Supersedeas Reimbursement After C&R

In Coyne Textile v. WCAB (Voorhis) the WCJ dismissed the Employer's Termination Petition after a C&R holding the C&R resolved all the issues in the case. The Employer wanted a decision on the Termination Petition to get supersedeas reimbursement.

The Commonwealth Court noted the following language in the C&R:

Upon approval of the Compromise and Release Agreement by [the WCJ], the [C]laimant will receive a total of $17,500 to fully and finally settle any entitlement for indemnity and medical benefits from August 16, 2000 into the future.
Specifically, the parties acknowledge that this Compromise and Release Agreement does not adjudicate the issues raised by [Claimant's Challenge Petition], filed in response to the [Suspension Petition] filed by the [E]mployer on June 23, 1999. Those issues will be decided by the [WCJ] based on the evidence of record already submitted by the parties.
(Emphasis in the decision of the Court)

With this language in the C&R Agreement, the Commonwealth Court held it was appropriate for a decision to be issued on the Employer's Petition for Termination. The Court remanded to the WCJ to render a decision.

When the WCJ receives the remand, the WCJ can either do a full opinion and order or follow the procedure set forth in Optimax, Inc. v, WCAB (Yacono). In Optimax, the parties entered into a stipulation that a Termination Petition should be granted. The WCJ entered a decision and order on the stipulation. The Employer proceeded to file a Petition for Supersedeas Reimbursement, and this petition was assigned to a WCJ. The WCJ who decided the Petition for Supersedeas Reimbursement dismissed the Petition because the termination was entered on a stipulation. The Commonwealth Court reversed and remanded to the WCJ that received assignment of the Petition for Supersedeas Reimbursement, with the direction that this WCJ review the record and determine whether the record supported the facts stipulated to, e.g. the facts supporting termination. The Court stated supersedeas reimbursement could be had if the record supported termination.

Therefore, the procedure according to these two cases is to provide in the C&R that the lump sum is in consideration of future benefits, and that the Employer's Petition will be decided on the record. There has to be a record, e.g. a supporting deposition or withdrawal of Claimant's objection to Employer's medical report under Section 422(c). To dispose of the Employer's Petition, the parties enter into a stipulation that the petition should be granted. The WCJ issues a decision on that stipulation. The Employer files a Petition For Supersedeas Reimbursement. The WCJ who receives assignment of the Petition For Supersedeas Reimbursement reviews the record and determines whether the record supports the stipulation. If so, supersedeas reimbursement may be granted.

Supreme Court Denies Appeal on Some Cases of Interest, Consolidates Korach With Jeanes Hospital

The Supreme Court denied Allowance of Appeal in Sekulski v. WCAB (Indy Associates) (June 18, 2003 post) a course and scope of employment case commented on at Hershey.

The Supreme Court also denied Allowance of Appeal in Shire v. WCAB (General Motors) (July 8, 2003 post). The Shire holding including non-work related sickness and accident benefits in an AWW for a later injury may not be inconsistent with the way the Court is leaning in Colpetzer/Zerby (August 26, 2003 post), in which the issue is whether a Claimant's AWW from a prior work injury gets included in an AWW calculation for a later work injury.

The Supreme Court granted Allowance of Appeal in Westinghouse Electric, Pet v. WCAB(Korach) (July 1, 2003 post), consolidating it with Jeanes Hospital (September 23, 2003 post). In Korach, the statute of limitations with respect to the filing of a Claim Petition to add a psychiatric description of injury to the NCP was tolled by the payment of psychiatric bills by the Employer.

Supreme Court Holds WCJ May Determine Paternity, Limited To WC Claim

In Rossa v. WCAB (City of Philadelphia) the issue before the WCJ was the paternity of a child prosecuting a fatal claim petition. The Supreme Court held: "Given the familial relationships that the WCJ must often disentangle, determining the eligibility of a child is not an extraordinary task. It is a responsibility that the WCJ is well able to assume."

The Court further held the standard of proof is preponderance of the evidence.

Supreme Court Reverses Commonwealth Court in Caso

On December 23, Section 306(b) was amended to provide a vocational expert that meets qualifications established by the Department by regulation can conduct a vocational interview. On December 30, the Supreme Court in Caso v. WCAB (School District of Philadelphia) held that is what Section 306(b) meant all along. The Court held the Department's interpretation of the statute was entitled to great deference, and should not have been overturned unless such interpretation was clearly erroneous. Here, the interpretation that "approved" in Section 306(b) means "competent" was held by the Court to be reasonable.

The Court then reviewed the resulting application of the statute: an expert that meets the qualifications set forth in the regulations is deemed "approved" and the claimant may be compelled to attend a vocational examination with the expert. On a subsequent petition the WCJ determines competency of the vocational expert and may do so in light of the Bureau's (Department's) regulations. Finally, the Court noted defendant employers and insurers are subject to the imposition of penalties for bad faith selection of an unqualified interviewer.

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.