Issues In Creating Modified Duty Positions In Scranton

In Scranton, the City is attempting to bring back public safety workers on workers' compensation as greeters in City Hall. The Scranton Times has an article about the twists and turns so far with this plan.

Commonwealth Court Does Not Expand Wausau Holding To Eliminate Supersedeas Reimbursement Of Past Due Benefits

In Bureau of Workers' Compensation v. WCAB (Consolidated Freightways, Inc.) the Commonwealth attempted to expand the Commonwealth Court's holding in Wausau Insurance Companies v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 826 A.2d 21 (Pa. Cmwlth. 2003) to create a rule that when past due benefits are paid after an unfavorable ruling (and after a post-trial request for supersedeas is denied), the Employer's entitlement to supersedeas reimbursement is limited to benefits due after the date of the supersedeas request.

The Court rejected the Commonwealth's arguments. The request for supersedeas turns on information available to the Employer that payments it may make may be, upon review, not payable. Every dollar paid after the supersedeas request that was not, upon review, payable is subject to supersedeas reimbursement.

The Wausau case seemed to direct a different result because the Commonwealth Court denied reimbursement of sums the Employer could have known would be not, upon review, payable. Like in this case of reinstatement, the Employer in the Wausau case was defending a claim and was not paying when the IME indicated disability ceased. However, unlike in this case, the Employer in the Wausau case did not request supersedeas at the time the IME report came in. When benefits were paid without a supersedeas request on the record, the Employer was without the right of supersedeas reimbursement.

What is important here is the new standard of practice highlighted by the Wausau case which indicates the Employer must request supersedeas whenever evidence of a change of status comes up during litigation, even if the Employer is not paying.

Supreme Court Grants Allocatur to Review Commonwealth Court's Resolution of Leased Truck Driver Issue

The Supreme Court granted allocatur in Bifalco v. WCAB (Hafer et. al.), an unreported Commonwealth Court case. The Commonwealth Court apparently ruled on a leased truck driver issue and another that sounds much more interesting.

The Court's Order:

AND NOW, this 11th day of May 2005, the Petition for Allowance of Appeal in the above captioned matter is GRANTED, as to the following issues:
Whether the Commonwealth Court erred in holding that petitioner motor carrier is respondent’s employer when it did not exercise the requisite control over respondent’s activities?
Whether the Commonwealth Court erred in holding that joint and several liability can be appropriate under the workers’ compensation liability scheme?

Pittsburgh Post-Gazette Article on Artificial Discs

The Pittsburgh Post-Gazette published an article on artificial spinal disks, with the pros from Dr. Howard Senter and the cons from Dr. William Donaldson.

Reading down to the bottom of the article, I feel sorry for the baboon who now has a wristwatch that nags him about lifting.

Thanks to WCJ Manager Persifor Oliver, Jr., for sharing the article.

Costs of Litigation Should be Limited to Costs on Issue(s) on Which Claimant Prevails

In J. Jones v. WCAB (Steris Corp.) the Claimant prevailed in establishing a compensible injury. The WCJ credited the testimony of the Claimant's doctor that his lateral epicondylitis resulted from his work duties. The Claimant was not able to show he had restrictions when he was laid off. Only medical benefits were awarded. The Board affirmed the denial of disability benefits, but remanded for an award of costs of litigation. The Board reasoned the Claimant was successful in part.

The Claimant appealed to the Commonwealth Court on the disability benefit denial. The Court quashed the Claimant's appeal on the basis that the remand of the Board requires the WCJ not just to award the costs set forth in the WCJ's decision, but also to find that the costs were related to the issue on which the Claimant prevailed.

The costs were:

Medical Records
Hand, Microsurgery & Reconstructive $18.34
Hearing Transcripts
Sargent’s [$]98.15
Deposition Fee
D. Patrick Williams, D.O. [$]1,200.00
Deposition Transcript
Ferguson & Holdnack Reporting [$]140.50
Steffan & Stauffer Reporting [$]110.46
TOTAL $1,567.45

One hearing, two doctor's depositions (Employer's doctor testified the lateral epicondylitis was not related) and one set of medical records. Which might be unrelated to the issue of whether the lateral epicondylitis was work related?

The Court may have eliminated an incentive for the Employer to narrow the issues before the WCJ. Employers do apply pressure by keeping issues on the table, and the potential that Employers will not be assessed the costs of developing these issues in the Claimant's case in chief slightly encourages this behavior.

In this case, the Claimant almost certainly testified that he limited himself in the work he was doing. The Claimant might have sought a stipulation that the Claimant's supervisors were aware of this. The cost to the Claimant to develop this without a stipulation would be the transcript of a supervisor's testimony.

Assume the Employer correctly analyzed the disability issue to turn on the lack of a medical restrictions note. If the Employer has to reimburse all costs if it loses on the causal relationship issue, there is an incentive to enter into the stipulation. Under the Court's holding this incentive is eliminated.

Fall in Leased Parking Lot Not Compensable

In J. P. Ortt v. WCAB (PPL Services Corp.) the Commonwealth Court affirmed the WCJ and the Board which determined the Employe's fall in a leased parking lot was not compensable.

Workers' Memorial Day

April 28 is Workers' Memorial Day. Information and materials are available on the AFL-CIO web site.

After Retirement, Burden Shifts To Claimant To Show No Work Is Available Within The Claimant's Restrictions

County of Allegheny (Department of Public Works) v. WCAB (Weis) is a significant case on the receipt of workers' compensation benefits after retirement. Where the Claimant was unable to do the job he retired from, but was able to perform sedentary work, the Claimant had the burden to show he continued to seek employment to avoid a suspension of benefits.

The WCJ and Board denied the Employer's Petition for Suspension on the basis that the Claimant could not do his pre-injury job. There was no evidence of sedentary job availability. The WCJ, though not the Board, granted attorney's fees for unreasonable contest.

The Commonwealth Court cited Southeastern Pennsylvania Transp. Auth. v. Workmen’s Comp. Appeal Bd. (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) for the proposition that the burden to show the Claimant remains in the labor market is on the Claimant. It was undisputed in the case that the Claimant did not seek any work, although he did testify he intended to "if they got my knee straightened out." The Commonwealth Court suspended benefits and affirmed the Board's finding of a reasonable contest.

The Dissent highlights that the majority's opinion suspended benefits even though the Claimant was only released to sedentary duty for two hours per day, and even though his retirement was a disability retirement.

This is interesting from a procedural standpoint. An Employer's Suspension Petition alleging the Claimant has removed himself or herself from the workforce basically becomes a rule on the Claimant to show cause why the Claimant's benefits should not be suspended. So long as there is evidence the Claimant is able to do some work, the Employer has a reasonable contest in filing such a petition.

Supreme Court Decision in Jeanes Hospital

The Supreme Court issued its decision in Jeanes Hospital v. WCAB (Hass), the Commonwealth Court case that held a Review Petition to add to the description of injury is barred after the three-year statute of limitations has passed. The Court noted the Claimant was treating for one condition she was seeking to add two days after the work injury. Another condition was not diagnosed until after three years had passed. The Court held Section 413(a) permits the WCJ to modify an NCP whenever it is shown that disability increased.

The court looked only at whether the Claimant met her burden to show the conditions were related to the work injury. One purpose of a statute of repose is to bar a claim which an employer cannot investigate because the trail has grown cold. In these cases, as soon as the Claimant gets a diagnosis and treatment, the employer is informed by the bill and medical report. At that point the employer, who unilaterally decides what description of injury is on the Notice of Compensation Payable, decides whether to deny the new diagnosis.

This really is an "if it ain't broke don't fix it" case. These review issues were not a problem until the Commonwealth Court decision in Jeanes Hospital.

Two Articles on Spinal Disk Replacement

There have been several articles about the artificial disk approved by the FDA such as this one. However, a survey of 133 surgeons conducted at a meeting of the American Orthopaedic Association found that only 7 percent said they'd choose disc replacement if they had unrelenting low-back pain.

United States Supreme Court Case in Sullivan is Relevant to Burden to Prove Pension Offset is Appropriate

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, et al.,PETITIONERS v. DELORES SCOTT SULLIVAN et al., is the Supreme Court of the United States case which held there is no violation of due process when medical benefits go unpaid during the pendency of a utilization review.

The Supreme Court's analysis was that an employe is entitled to reimbursement of only "reasonable and necessary" medical expenses, so a property interest of the employe does not attach until the expenses are found "reasonable and necessary". In this manner the court distinguished this property interest from the property interest in wage indemnity benefits.

The Court holds wage indemnity benefits cannot be reduced without notice and a hearing:

"In Goldberg v. Kelly, 397 U.S. 254 (1970), we held that an individual receiving federal welfare assistance has a statutorily created property interest in the continued receipt of those benefits. Likewise, in Mathews, supra, we recognized that the same was true for an individual receiving Social Security disability benefits. In both cases, an individual’s entitlement to benefits had been established, and the question presented was whether predeprivation notice and a hearing were required before the individual’s interest in continued payment of benefits could be terminated. See Goldberg, supra, at 261—263; Mathews, supra, at 332."

According to these precedents, predeprivation notice and a hearing are required before the employer can take a credit for a pension benefit that starts after payment of workers' compensation benefits has commenced.

The Bureau Regulations instead impose the procedure of the filing a Notice of Benefit Offset with a twenty day grace period and requiring the Claimant to file a Petition to Review Benefit Offset in response. This procedure can not shift the burden to the Claimant. The Supreme Court holding requires a hearing and accordingly places the burden on the moving party, the Employer, to show it is entitled to an offset in an amount calculated consistent with the terms of the Act.

Commonwealth Court Explains When Permanent Does Not Mean Permanent

In N. Wieczorkowski v. WCAB (LTV Steel) the Commonwealth Court again held that permanent (injury) does not mean permanent when the Employer seeks to later terminate benefits. A Supplemental Agreement may provide that an employe's disability is permanent either to remove a public safety officer from entitlement to heart and lung benefits or, as here, in an agreed-upon commutation. The Commonwealth Court has held in the past that a Claimant's medical condition remains subject to review, even where permenant disability has been stipulated to.

In this decision the Court provided a clear frame of reference. When there is a question of permenancy of an injury such that further review would be precluded, the Court will first look back to the description of injury. If, for example, the injury is silicosis, permanent does mean permanent because medical science cannot presently reverse the disease process of silicosis. When the description of injury does not establish the condition is permanent under today's standards of medical science, the condition is subject to review and a finding of full recovery.