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.
Tuesday, February 24, 2004
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.
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.
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.
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.
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.
Sunday, February 01, 2004
Current Arguments For and Against Workers' Compensation Reform in Pennsylvania
A Northeast Pennsylvania Business Journal Article refers to the WCRI findings (January 21,2004 post) and includes commentary from a Harrisburg policy institute stating the cost of workers compensation insurance in Pennsylvania is about 8 percent above the national average cost per $100 of payroll, which ranks Pennsylvania 19th highest in the United States. The average benefit is more than 25 percent higher than the national average, ranking 11th. The article also includes comments from two claimants' counsel.
Wednesday, January 28, 2004
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.
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.
Wednesday, January 21, 2004
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.
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."
Thursday, January 15, 2004
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.
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.
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