For Low Back Pain, Exercise, don't go for Prolotherapy

In one recent study at VU University Medical Center, Amsterdam, Netherlands, a graded activity program, meaning a progressive exercise regimen without reference to subjective complaints, returned employees to work faster. After the participants were evaluated for any pathology for which activity would be contraindicated, they were put through a physical therapy regimen that emphasized function and de-emphasized pain. The participants apparently accepted the "hurt doesn't mean harm" mantra.

Harold Prather, D.O., Chief of Physical Medicine and Rehabilitation at Washington University School of Medicine commented: "Athletes and other professionals are highly motivated, have high self-esteem, are not depressed, and have a strong motivation to keep doing what they always do." He suggested that the graded activity program imbues the injured worker with some of the ideals and motivation of the injured athlete.

Prolotherapy is not the way to go according to a study at The University of Queensland, Brisbane, Australia. In the study, neither prolotherapy nor flexion-extension exercise improved pain or disability associated with chronic nonspecific low back pain beyond that observed with saline injections or normal activity.

School District May Take a Pension Offset Only For What the School District Contributes

Pittsburgh Board of Education v. WCAB (Schulz) answered the question left unanswered in Pittsburgh Board of Education v. WCAB (Dancho). For the pension offset, a school district can offset only what it contributes, not the Commonwealth's contribution.

Pennsylvania Costs Per Claim Rose, But Remain Lower Than Median of Other States

A press release regarding the latest WCRI Study states that while costs per claim in Pennsylvania rose 8.5 per cent per year on average from 1999 to 2002, costs per claim remained 15 per cent lower than the median of other states surveyed. Attorney involvement was not identified as a cost driver as it has been in the past. Cost drivers were identified as double-digit increases in medical costs per claim and benefit delivery expenses. Also, Pennsylvania public officials, insurers and employers were commended on compliance with the 21 day rule.

The WCRI site also touts a study that found workers in Pennsylvania and Massachusetts are more likely to have satisfactory recoveries and a timely return to work, although this is consistent with findings that workers in these states have better access to satisfactory medical care.

Commonwealth Court Confirms Cafeteria Plan Funds Not Wages

In J. Weikel v. WCAB (PECO) The Employer provided "flex dollars" for benefits, and the Claimant could get them in cash if they were unused. The WCJ held amounts allocated by the Claimant to purchasing plan items are not includable in the average weekly wage. The Commonwealth Court affirmed, noting Section 309 excludes from the AWW calculation "employer payments for or contributions to a retirement, pension, health and welfare, life insurance, social security or any other plan for the benefit of the employe or his dependents."

Commonwealth Court Affirms WCJ May Grant Motion To Dismiss on the Pleadings

In Karotka, et al. v. WCAB (Millcreek Community Hospital, et al.) the spouse of the Claimant who passed away from reasons unrelated to her work injury filed serial Penalty Petitions alleging vague misconduct by the Employer. The WCJ cut the Complainant off at the hearing and gave him an additional 30 days to state his case in writing. The WCJ then dismissed on the basis of res judicata.

The Commonwealth Court affirmed and further stated that nothing in Section 504 of the Administrative Agency Law requires an evidentiary hearing. Notice and the opportunity to be heard is satisfied if the WCJ reviews the pleadings and requests briefs. This can be on the WCJ's own motion, or on the motion of a party. The WCJ can dismiss a frivolous petition using this procedure.

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.