Pennsylvania Workers' Compensation Journal will return on a regular basis on November 15, 2004.
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CDC Disruption: Workplace Health at Risk
1 day ago
Thursday, October 07, 2004
Monday, July 19, 2004
Penalty Granted On Prescriptions Unpaid When Insurer Cancels Prescription Card
In T. Brenner v. WCAB (Drexel Industries) the Commonwealth Court reversed the Board and affirmed the WCJ's holding that the Employer/Insurer violated the Act when it unilaterally ended a prescription card program. The Claimant was able to get medications through the prescription card program. When the card was cancelled without prior notice to the Claimant, she went without medications for a period of time, then submitted prescription expenses she was able to pay, only to have them sent to utilization review.
The Commonwealth Court held the WCJ was correct to apply McLaughlin v. Workers' Compensation Appeal Board (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 717, 828 A.2d 351 (2003) which held the Employer cannot plead failure to present bills properly when it acts to prevent the treatment at issue. Where the Employer/Insurer gave no notice to the Claimant of the revocation of the prescription card, a penalty was appropriate under McLaughlin.
Pennsylvania Workers' Compensation Practice and Procedure Reference 13.37
The Commonwealth Court held the WCJ was correct to apply McLaughlin v. Workers' Compensation Appeal Board (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 717, 828 A.2d 351 (2003) which held the Employer cannot plead failure to present bills properly when it acts to prevent the treatment at issue. Where the Employer/Insurer gave no notice to the Claimant of the revocation of the prescription card, a penalty was appropriate under McLaughlin.
Pennsylvania Workers' Compensation Practice and Procedure Reference 13.37
Friday, July 16, 2004
C&R "Claimant Has Sustained No Other Injuries" Clause Held Not Effective
In J. Wallace v. WCAB (Bethlehem Steel, et al.) the Claimant C&R'd a 1996-97 inhalation injury on March 1, 2001. The C&R provided that the Claimant was not presently working due to back problems. In this context, the Claimant agreed:
In the Claimant's later Claim Petition alleging an August 3, 1998 back injury, the Claimant (who was represented by other counsel) testified his counsel on the C&R told him it wouldn't affect his back injury claim. Also, the Claimant was not questioned about the back injury at the C&R hearing. Under these circumstances, the Commonwealth Court felt it was appropriate for the WCJ to conclude the Claimant had not agreed to waive his back claim.
Pennsylvania Workers' Compensation Practice and Procedure Reference 26.19
Claimants allegation of injury is that he inhaled trichloroethylene and perchloroethylene in an unventilated area while cleaning metal plates. Claimant also alleges that he inhaled Chlorosolv in October 1996 and on March 24, 1997. By agreeing to this Compromise and Release Agreement, Claimant specifically represents that he has sustained no other occupational injuries or diseases arising out of or causally related to his employment with Bethlehem Steel; and that he has not given statutory notice of any other injuries or diseases.
In the Claimant's later Claim Petition alleging an August 3, 1998 back injury, the Claimant (who was represented by other counsel) testified his counsel on the C&R told him it wouldn't affect his back injury claim. Also, the Claimant was not questioned about the back injury at the C&R hearing. Under these circumstances, the Commonwealth Court felt it was appropriate for the WCJ to conclude the Claimant had not agreed to waive his back claim.
Pennsylvania Workers' Compensation Practice and Procedure Reference 26.19
Thursday, July 15, 2004
Two More Cases Hold Date of Injury in Cumulative Trauma Case is Last Day of Work
In Leslie Fay Companies, et al. v. WCAB (Macaluso, et al.) the Commonwealth Court let stand a WCJ's decision finding the date of injury in a cumulative trauma case was the last day of work. The insurer appealed because the Claimant had a long history of symptoms and the last insurer only covered the Employer for two an a half months.
As stated recently by the Supreme Court in City of Philadelphia v. WCAB (Williams) the analysis of the appropriate date of injury in a cumulative trauma case looks only to whether credited medical evidence establishes each day of work causes an "aggravation" or new injury.
Pennsylvania Workers' Compensation Practice and Procedure Reference 3.104
As stated recently by the Supreme Court in City of Philadelphia v. WCAB (Williams) the analysis of the appropriate date of injury in a cumulative trauma case looks only to whether credited medical evidence establishes each day of work causes an "aggravation" or new injury.
Pennsylvania Workers' Compensation Practice and Procedure Reference 3.104
Tuesday, July 13, 2004
Commonwealth Court Affirms Dismissal of Petition To Set Aside Compromise and Release Agreement Alleging Lack of Mental Capacity
In M. Stiles v. WCAB (Dept. of Public Welfare) the Commonwealth Court affirmed a summary dismissal of a Petition to Set Aside a Compromise and Release Agreement. The Claimant alleged she was not mentally competent when the C&R was approved. The dismissal was summary because Claimant's Counsel moved for a continuance for medical testimony at the first hearing and deferred the Claimant's testimony. The Employer thereafter moved for dismissal on the basis of collateral estoppel, and the WCJ granted the motion.
The Court distinguished the case from North Penn Sanitation Inc. v. Workers' Compensation Appeal Board (Dillard), ___ A.2d ___, (Pa. Cmwlth. No. 2115 C.D. 2003, filed, May 10, 2004) on the basis that Dillard's blindness was unknown to the WCJ. The Court stated the Claimant's mental competency was an issue before the WCJ, who made a finding the Claimant understood the Agreement.
Pennsylvania Workers' Compensation Practice and Procedure Reference 26.3 et. seq.
The Court distinguished the case from North Penn Sanitation Inc. v. Workers' Compensation Appeal Board (Dillard), ___ A.2d ___, (Pa. Cmwlth. No. 2115 C.D. 2003, filed, May 10, 2004) on the basis that Dillard's blindness was unknown to the WCJ. The Court stated the Claimant's mental competency was an issue before the WCJ, who made a finding the Claimant understood the Agreement.
Pennsylvania Workers' Compensation Practice and Procedure Reference 26.3 et. seq.
Wednesday, July 07, 2004
Personal Injury Lawyers Look to Workers' Compensation as a Result of Tort Reform
An article from the Philadelphia Business Journal reports that as personal injury lawyers have fewer and less lucrative cases, they are appearing more often before WCJs. "With the various changes with the law, the personal injury attorneys are seeing their business hit," [George] Martin said. "They're less inclined to refer [workers' compensation cases] out when their business is down."
Sunday, June 27, 2004
Local SSA Interpretation Limits Fee Reduction to Lifetime Pro-Ration of Indemnity
When preparing Sciarotta Language for Compromise and Release Agreements, Counsel typically does not show the attorney's contingent fee coming out of the Medicare Set Aside Amount. This is Medicare's directed procedure, according to a May 7, 2004 All Regional Administrators memorandum. Thank You to Judge Torrey for the memo reference
Counsel instead applies the whole counsel fee to the net amount representing future indemnity. The fee then may exceed 20% of the indemnity amount, but the context clearly shows the fee has been reallocated in accordance with Medicare's directive.
The lifetime pro-ration calculation is performed on the net amount after Medicare set aside and attorney's fees. Recently, however, a counsel from the Pittsburgh area has been instructed by representatives of the Social Security Administration to allocate only a pro rata portion of the fee to the indemnity.
If SSA limits the fee reduction to 20% of the indemnity amount, the Claimant will have to be asked: "Do you understand a portion of the attorney's fee in this case amounting to (the attorney's fee on the Medicare set aside amount) will be included as your income from this settlement for the purpose of calculating your future entitlement to social security disability benefits?"
Pennsylvania Workers' Compensation Practice and Procedure Reference 26.24
Counsel instead applies the whole counsel fee to the net amount representing future indemnity. The fee then may exceed 20% of the indemnity amount, but the context clearly shows the fee has been reallocated in accordance with Medicare's directive.
The lifetime pro-ration calculation is performed on the net amount after Medicare set aside and attorney's fees. Recently, however, a counsel from the Pittsburgh area has been instructed by representatives of the Social Security Administration to allocate only a pro rata portion of the fee to the indemnity.
If SSA limits the fee reduction to 20% of the indemnity amount, the Claimant will have to be asked: "Do you understand a portion of the attorney's fee in this case amounting to (the attorney's fee on the Medicare set aside amount) will be included as your income from this settlement for the purpose of calculating your future entitlement to social security disability benefits?"
Pennsylvania Workers' Compensation Practice and Procedure Reference 26.24
Tuesday, May 25, 2004
Commonwealth Court Reverses WCJ's Finding of Abnormal Working Condition in Supervisor's Pattern of Harassment
In RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) the Claimant alleged mental/mental disability arising from several instances of homosexual advances by his supervisor. The Claimant's supervisor's homosexual statements were abhorrent, but the evidence suggested they were not sexual advances.
"(Finding of Fact)5. Joe Ross, the other employee in the jeep with the claimant, was so affected by Rossi's (the Supervisor's) statement that he asked Rossi if he was queer and told Rossi "Don't you ever talk to me like that, I don't take that bullshit, joke or not, don't ever talk to me like that." Rossi responded that he was just joking and that he knew that Hoppy (the Claimant) gets mad and was teasing him."
Of course, if the statements were sexual hrassment, the claim would not be compensible. Heath v. WCAB (Pennsylvania Board of Probation and Parole) appeal granted
The Commonwealth Court held the behavior was not abnormal working conditions, citing Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996).
Another issue in the case was the basis for the Claimant's subjective reaction to what the Court found to be normal working conditions. Medical evidence suggested the Claimant reacted because he suffers from post traumatic stress disorder (PTSD) from his service in Vietnam. The Claimant's disability may be compensable in this circumstance, as pointed out in the dissenting statements of Judges Friedman and Leavitt. Zink v. Workers' Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa. Cmwlth. 2003) July 10, 2003 Post However, the WCJ did not resolve the issue of whether PTSD or a paranoid personality disorder was the underlying condition of the Claimant.
"(Finding of Fact) 18. ...Whether the claimant had post-traumatic stress disorder from Vietnam or had a paranoid personality disorder, the main point to this Workers' Compensation Judge is that the claimant was a working, functioning employee in the mines until harassed, aggravated and stirred up by the comments in the series of incidents involving Dominic Rossi. It is immaterial whether he has PTSD or personality disorder..."
The issue, as stated by the WCJ in the remainder of Finding of Fact 18, was whether the supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." was an abnormal working condition. The Commonwealth Court held it was not.
Pennsylvania Workers' Compensation Practice and Procedure Reference 3.149
"(Finding of Fact)5. Joe Ross, the other employee in the jeep with the claimant, was so affected by Rossi's (the Supervisor's) statement that he asked Rossi if he was queer and told Rossi "Don't you ever talk to me like that, I don't take that bullshit, joke or not, don't ever talk to me like that." Rossi responded that he was just joking and that he knew that Hoppy (the Claimant) gets mad and was teasing him."
Of course, if the statements were sexual hrassment, the claim would not be compensible. Heath v. WCAB (Pennsylvania Board of Probation and Parole) appeal granted
The Commonwealth Court held the behavior was not abnormal working conditions, citing Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996).
Another issue in the case was the basis for the Claimant's subjective reaction to what the Court found to be normal working conditions. Medical evidence suggested the Claimant reacted because he suffers from post traumatic stress disorder (PTSD) from his service in Vietnam. The Claimant's disability may be compensable in this circumstance, as pointed out in the dissenting statements of Judges Friedman and Leavitt. Zink v. Workers' Compensation Appeal Board (Graphic Packaging, Inc.), 828 A.2d 456 (Pa. Cmwlth. 2003) July 10, 2003 Post However, the WCJ did not resolve the issue of whether PTSD or a paranoid personality disorder was the underlying condition of the Claimant.
"(Finding of Fact) 18. ...Whether the claimant had post-traumatic stress disorder from Vietnam or had a paranoid personality disorder, the main point to this Workers' Compensation Judge is that the claimant was a working, functioning employee in the mines until harassed, aggravated and stirred up by the comments in the series of incidents involving Dominic Rossi. It is immaterial whether he has PTSD or personality disorder..."
The issue, as stated by the WCJ in the remainder of Finding of Fact 18, was whether the supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." was an abnormal working condition. The Commonwealth Court held it was not.
Pennsylvania Workers' Compensation Practice and Procedure Reference 3.149
Thursday, May 20, 2004
Commonwealth Court Defines Procedure for Proving Modification Based on Surveillance Evidence of Earning Power
J. Burrell v. WCAB (Philadelphia Gas Works, et al.) is a case that has application in many areas. In the final analysis the Commonwealth Court affirmed the Order of the WCJ and Board that imputed income of $9.93 per hour for eight hours per week based on evidence the Claimant was working at least that much as a shoe shiner in his mother's shop.
The first issue was whether modification can be granted without a Notice of Ability to Return to Work when surveillance found the Claimant working. The Commonwealth Court noted receipt of medical information documenting a change in condition triggers the Employer's obligation to send the Notice of Ability to Return to Work. The purpose of the statute is to place the Claimant on notice of the medical information. Where the Claimant deems himself able to work, such notice is not required.
The next issue was whether the Employer had to demonstrate it had no job available to the Claimant within his restrictions before an award of modification. The Court held where the Claimant deems himself able to work, this can only be an affirmative defense of the Claimant.
Another issue was whether the WCJ's holding that the Claimant's imputed hourly wage should be $9.93 was supported by substantial evidence. The Employer's Vocational Expert opined this is the average wage for a shoe shiner in Philadelphia. The Claimant basically argued he's not that good. The Court held the accuracy of the VE's opinion is beyond challenge when the WCJ gives full weight to the VE's testimony, and this determination is within the sole province of the factfinder.
Finally, the Employer requested a credit. The Court recognized "Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another." and a credit may be granted to prevent unjust enrichment. However, the Employer could not prove the Claimant received wages or gratuities.
Pennsylvania Workers' Compensation Practice and Procedure Reference 21.56; 21.38; 6.106
The first issue was whether modification can be granted without a Notice of Ability to Return to Work when surveillance found the Claimant working. The Commonwealth Court noted receipt of medical information documenting a change in condition triggers the Employer's obligation to send the Notice of Ability to Return to Work. The purpose of the statute is to place the Claimant on notice of the medical information. Where the Claimant deems himself able to work, such notice is not required.
The next issue was whether the Employer had to demonstrate it had no job available to the Claimant within his restrictions before an award of modification. The Court held where the Claimant deems himself able to work, this can only be an affirmative defense of the Claimant.
Another issue was whether the WCJ's holding that the Claimant's imputed hourly wage should be $9.93 was supported by substantial evidence. The Employer's Vocational Expert opined this is the average wage for a shoe shiner in Philadelphia. The Claimant basically argued he's not that good. The Court held the accuracy of the VE's opinion is beyond challenge when the WCJ gives full weight to the VE's testimony, and this determination is within the sole province of the factfinder.
Finally, the Employer requested a credit. The Court recognized "Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another." and a credit may be granted to prevent unjust enrichment. However, the Employer could not prove the Claimant received wages or gratuities.
Pennsylvania Workers' Compensation Practice and Procedure Reference 21.56; 21.38; 6.106
Monday, May 17, 2004
Commonwealth Court Holds Claimant Did Not Meet His Burden to Reinstate After Retirement
A. Capasso v. WCAB (RACS Associates, Inc.) describes the Claimant's burden to overcome testimony that he retired. Once the Claimant testifies he retired, the presumption that his loss of earning power is through no fault of his own is abolished. The Claimant must show he is seeking to return to work or he was forced to retire because of his work injury.
The Commonwealth Court also held that where only the Claimant presented evidence, the WCJ was free to discredit it. The Court engaged in Daniels and Wintermeyer review of the WCJ's credibility finding that the Claimant's injury did not motivate him to retire, and the Court affirmed the finding.
The Commonwealth Court also held that where only the Claimant presented evidence, the WCJ was free to discredit it. The Court engaged in Daniels and Wintermeyer review of the WCJ's credibility finding that the Claimant's injury did not motivate him to retire, and the Court affirmed the finding.
Penalties Are Awarded When Employer/Insurer Takes Unilateral Suspension Upon Accrual of Credit
In T. Palmer v. WCAB (City of Philadelphia) The Employer took a unilateral suspension because the Claimant became entitled to a pension that offset her workers' compensation benefits. Even though the Claimant was due no workers' compensation benefits after the offset was applied, the WCJ's award of a penalty on the amount of workers' compensation due before the offset was affirmed by the Commonwealth Court.
This could apply in the case of return to work unilateral suspensions as well. The Court stated the rule that no penalty can be awarded when no compensation is awarded does not apply when compensation is payable, but offset, because the purpose of the statutory provision is to penalize conduct of the Employer/Insurer that is unlawful, in this case the unilateral suspension.
This could apply in the case of return to work unilateral suspensions as well. The Court stated the rule that no penalty can be awarded when no compensation is awarded does not apply when compensation is payable, but offset, because the purpose of the statutory provision is to penalize conduct of the Employer/Insurer that is unlawful, in this case the unilateral suspension.
Wednesday, May 12, 2004
Bureau Statement of Policy Confirms Act 53 Qualifications of Vocational Experts are the Qualifications Set Forth at 34 Pa. Code §123.202
As noted in the recent Bureau of Workers' Compensation News and Notes, the Bureau issued a Statement of Policy providing the qualifications of vocational experts referred to in Act 53 of 2003 are as set forth in the "Qualifications (of vocational experts)" Regulation at 34 Pa. Code §123.202.
Later regulation is promised and may address the requirement that vocational experts comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses and other matters.
Pennsylvania Workers' Compensation Practice and Procedure Reference 21.51
Later regulation is promised and may address the requirement that vocational experts comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses and other matters.
Pennsylvania Workers' Compensation Practice and Procedure Reference 21.51
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