Wednesday, July 13, 2005
Insurance Journal Article on Pennsylvania Legislation
Insurance Journal has an article discussing two workers compensation bills that moved this session in the Pennsylvania General Assembly.
Bureau Publishes Proposed General Rules and Rules For Vocational Experts
Proposed amendments to the general regulations of the Bureau of Workers Compensation were published Saturday. These regulations discuss forms, employer posting and reporting requirements and there is a section on computation of time. The Proposed Rulemaking also includes regulations regarding vocational experts in response to Act 53 of 2003.
Saturday, July 09, 2005
Commonwealth Court Holds Only Post Injury Increase In Self-Employment Earnings Can Be Basis For Modification or Suspension of Benefits
In S. Weissman v. WCAB (Podiatry Care Center, P.C.) the Claimant had substantial pre-injury wages from the time of injury employment and substantial earnings from pre-injury self employment. He was able to continue self-employment after the injury. Excluding his self-employment earnings from his Average Weekly Wage, but using them in a partial disability calculation would have resulted in a suspension of benefits.
The WCJ concluded it was fair to award a modification of benefits only on any increase in self-employment earnings after the work injury. The Board reversed and required the WCJ to suspend benefits. On appeal to the Commonwealth Court, the Court reversed the Board and endorsed the reasoning of the WCJ.
The Court recognized the Employer would receive a windfall in this scenario when the Claimant was able to continue substantial self-employment. Based on Colpetzer v. Workers' Comp. Appeal Bd. (Standard Steel), ___ Pa. ___, 870 A.2d 875 (2005)(Colpetzer II), the Court held the "economic reality" of the Claimant's pre-injury earning experience must be considered (quotes in original). The Court stated Colpetzer II addresses the proper manner of calculating a claimant's AWW when his employment situation was not specifically addressed by the statute, and that is to make a calculation based on "the economic reality of a claimant's recent preinjury earning experience." Triangle Bldg. Ctr. v. Workers'? Comp. Appeal Bd. (Lynch), 560 Pa. 540, 746 A.2d 1108 (2000)
The Court endorsed the solution of the WCJ and remanded for modification of benefits based only on the increase in the Claimant's self-employment earnings.
The WCJ concluded it was fair to award a modification of benefits only on any increase in self-employment earnings after the work injury. The Board reversed and required the WCJ to suspend benefits. On appeal to the Commonwealth Court, the Court reversed the Board and endorsed the reasoning of the WCJ.
The Court recognized the Employer would receive a windfall in this scenario when the Claimant was able to continue substantial self-employment. Based on Colpetzer v. Workers' Comp. Appeal Bd. (Standard Steel), ___ Pa. ___, 870 A.2d 875 (2005)(Colpetzer II), the Court held the "economic reality" of the Claimant's pre-injury earning experience must be considered (quotes in original). The Court stated Colpetzer II addresses the proper manner of calculating a claimant's AWW when his employment situation was not specifically addressed by the statute, and that is to make a calculation based on "the economic reality of a claimant's recent preinjury earning experience." Triangle Bldg. Ctr. v. Workers'? Comp. Appeal Bd. (Lynch), 560 Pa. 540, 746 A.2d 1108 (2000)
The Court endorsed the solution of the WCJ and remanded for modification of benefits based only on the increase in the Claimant's self-employment earnings.
Articles on Proposed Workers' Compensation Reforms
Northeast Pennsylvania Business Journal has an article introducing a series workers' comp. reform. The article begins with an interesting discussion of the history of the Act. There are comments on needed reforms from employers, insurers and unions.
A second article specifically discusses proposed changes to IREs, the period for treatment with a panel provider, utilization reviews and "overpayment recovery".
There is an article summarizing other proposed changes and an article on how municipalities are affected by workers' compensation costs.
A second article specifically discusses proposed changes to IREs, the period for treatment with a panel provider, utilization reviews and "overpayment recovery".
There is an article summarizing other proposed changes and an article on how municipalities are affected by workers' compensation costs.
Wednesday, July 06, 2005
Supreme Court Grants Petition For Appeal on Job Availability When Claimant Has Relocated
In Motor Coils MFG/WABTEC, v. WCAB (Bish) the Employer offered a suitable job with the Employer to the Claimant, who had moved to Oklahoma. The reasons for the Claimant's move were reasonable. The Employer had downsized her and her husband prior to the offer, and he found work in Oklahoma at almost twice what he was making for the Employer.
Section 306(b)(2) provides, however, that "Earning power shall be determined by the work the employe is capable of performing ... If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply..."
The Commonwealth Court noted this was an actual job offer, and cited several cases in which the Court has held the criteria for a job offer under Kachinski still applies. One of these criteria is that the offered job must be within reach of the Claimant's residence.
The Supreme Court granted the Employer's Petition for Appeal. It does seem inconsistent that had the job been located only within the scope of a labor market survey, suspension would have been granted. The question is whether the Employer must go through the exercise. There is no requirement to do so during incarceration, and Smith v. W.C.A.B. (Dunhill Temporary Systems) 725 A.2d 1285 (Pa. Cmwlth. 1999) held it would be "irrelevant and fruitless" to establish a change of condition or job availability where the Claimant joined the Peace Corps and moved to Africa.
Update: The W.C.A.B. affirmed my decision in a case where the Claimant moved to New Zealand. A prior decision denying termination found the Claimant was able to work with restrictions. The Employer requested suspension on the basis that a labor market survey conducted in Pennsylvania would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. I granted suspension on this analysis and the Board affirmed.
However, there may be situations where the Employer will have to go through the exercise. In Bish, the modified duty job was not available on the open labor market. In my case, the Claimant did not have a job in New Zealand, like the Claimant did in Smith. It is the Employer's burden to show relevant jobs exist that are suitable to the Claimant given the Claimant's physical capabilities, education and experience.
Section 306(b)(2) provides, however, that "Earning power shall be determined by the work the employe is capable of performing ... If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply..."
The Commonwealth Court noted this was an actual job offer, and cited several cases in which the Court has held the criteria for a job offer under Kachinski still applies. One of these criteria is that the offered job must be within reach of the Claimant's residence.
The Supreme Court granted the Employer's Petition for Appeal. It does seem inconsistent that had the job been located only within the scope of a labor market survey, suspension would have been granted. The question is whether the Employer must go through the exercise. There is no requirement to do so during incarceration, and Smith v. W.C.A.B. (Dunhill Temporary Systems) 725 A.2d 1285 (Pa. Cmwlth. 1999) held it would be "irrelevant and fruitless" to establish a change of condition or job availability where the Claimant joined the Peace Corps and moved to Africa.
Update: The W.C.A.B. affirmed my decision in a case where the Claimant moved to New Zealand. A prior decision denying termination found the Claimant was able to work with restrictions. The Employer requested suspension on the basis that a labor market survey conducted in Pennsylvania would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. I granted suspension on this analysis and the Board affirmed.
However, there may be situations where the Employer will have to go through the exercise. In Bish, the modified duty job was not available on the open labor market. In my case, the Claimant did not have a job in New Zealand, like the Claimant did in Smith. It is the Employer's burden to show relevant jobs exist that are suitable to the Claimant given the Claimant's physical capabilities, education and experience.
Thursday, June 30, 2005
Social Security Old Age Benefits Are "Received" Under Section 204(a) on Date Of Eligibility and Application
In Pittsburgh Board of Education v. WCAB (Davis) The Commonwealth Court held the Employer was not entitled to an offset for the Claimant's Social Security old age benefits when the Claimant applied for benefits prior to his work injury but received his first check (including benefits back to the date of application) after the injury.
Workers' Compensation TV and Radio on the Web
The Legal Talk Network is offering a show on workers' compensation matters hosted by Attorney Alan S. Pierce of Massachusetts. Shows on sick building syndrome and ethical considerations are available for listening or download at Legal Talk Network.
Law Journal TV continues to offer webcasts of its shows from WFMZ-TV 69 in Philadelphia. About every fourth weekly show is on a workers' compensation topic.
Law Journal TV continues to offer webcasts of its shows from WFMZ-TV 69 in Philadelphia. About every fourth weekly show is on a workers' compensation topic.
Wednesday, June 29, 2005
Commonwealth Court Holds Attorney Fees For Unreasonable Contest Are Not Automatic When A Penalty Is Granted
In B. Bates v. WCAB (Titan Construction Staffing, LLC) the Commonwealth Court expressly overruled its holding that a finding of a violation of the Workers' Compensation Act mandates the imposition of attorney's fees for unreasonable contest. Hoover v. WorkersÂ? Comp. Appeal Board (ABF Freight Systems), 820 A.2d 843, (Pa. Cmwlth. 2003), overruled on other grounds by Snizaski v. WorkersÂ? Comp. Appeal Board (Rox Coal Co.), 847 A.2d 139 (Pa. Cmwlth.), alloc. granted, ___ Pa. ___, 862 A.2d 582 (2004). The Court stated the Employer has the right to establish a reasonable basis for contest in any case.
In Hoover, the issue was the conflict between the thirty day requirement to pay and the Board regulations that gave the Board more than thirty days to rule on supersedeas. The WCJ granted a penalty of 10% rather than the requested 50% on payments of over 85,000.00 that were only (arguably) a few days late. The WCJ found a reasonable contest because the effect of the Board regulations on the Employer's duty to pay was unsettled at the time. The Commonwealth Court affirmed the penalty and further held that due to the Employer's violation of the Act I erred as a matter of law in failing to award attorneys fees to the Claimant.
In the Bates case, the Claimant requested a penalty because SWIF paid him biweekly rather than weekly, as he was paid on the job. The WCJ awarded a reduced penalty of 10% rather than the 50% requested on this, what the WCJ determined to be a violation of the Act. The WCJ recognized, however, and explained that reasonable minds could differ on this issue and the WCJ found a reasonable contest. The Commonwealth Court agreed the contest was reasonable based on the genuine issue of law and on the basis the WCJ awarded less than the 50% requested.
Accordingly, counsel fees for unreasonable contest will be awarded only where the Claimant asserts a reasonably clear violation of the Act and requests an appropriate penalty.
This raises the issue of whether any penalty between 10% and 50% can be granted, since these are the only numbers the statute provides. I still may award 20%, 30% or 40%. Other Judges award only 10% or 50%.
The best practice would be to request the minimum 10% and amend the request in the course of litigation if a higher penalty seems warranted. Counsel could then seek guidance from the WCJ on whether the WCJ will consider numbers in between 10% and 50%.
In Hoover, the issue was the conflict between the thirty day requirement to pay and the Board regulations that gave the Board more than thirty days to rule on supersedeas. The WCJ granted a penalty of 10% rather than the requested 50% on payments of over 85,000.00 that were only (arguably) a few days late. The WCJ found a reasonable contest because the effect of the Board regulations on the Employer's duty to pay was unsettled at the time. The Commonwealth Court affirmed the penalty and further held that due to the Employer's violation of the Act I erred as a matter of law in failing to award attorneys fees to the Claimant.
In the Bates case, the Claimant requested a penalty because SWIF paid him biweekly rather than weekly, as he was paid on the job. The WCJ awarded a reduced penalty of 10% rather than the 50% requested on this, what the WCJ determined to be a violation of the Act. The WCJ recognized, however, and explained that reasonable minds could differ on this issue and the WCJ found a reasonable contest. The Commonwealth Court agreed the contest was reasonable based on the genuine issue of law and on the basis the WCJ awarded less than the 50% requested.
Accordingly, counsel fees for unreasonable contest will be awarded only where the Claimant asserts a reasonably clear violation of the Act and requests an appropriate penalty.
This raises the issue of whether any penalty between 10% and 50% can be granted, since these are the only numbers the statute provides. I still may award 20%, 30% or 40%. Other Judges award only 10% or 50%.
The best practice would be to request the minimum 10% and amend the request in the course of litigation if a higher penalty seems warranted. Counsel could then seek guidance from the WCJ on whether the WCJ will consider numbers in between 10% and 50%.
Wednesday, June 22, 2005
Commonwealth Court Defines Competent Medical Records in Two Cases of Less Than 52 Weeks of Disability
In two decisions, City of Harrisburg v. WCAB (Palmer) and Joy Global, Inc. v. WCAB (Hogue) the Commonwealth Court reviewed awards of the WCJ made on medical reports. In both, the WCJ found credible evidence of a strain (of the knee and ankle respectively) and awarded benefits for the sequelae of these injuries.
In both cases, the Court began with the premise that a case involving medical expenses and less than 52 weeks of disability may be decided on medical reports under Section 422(c) of the Act. The Employers' challenges were to the competency of the evidence submitted by the Claimant in each case.
In Palmer, the WCJ credited the Claimant's medical evidence, even though in one instance the Claimant's physician stated the Claimant's knee condition was unrelated to the work injury. The WCJ rejected this as inconsistent with the doctor's other statements on the issue. The Employer's main argument was there was no medical opinion relating the Claimant's total knee replacement to the work-related strain. The Court found it was sufficient that Claimant's physician diagnosed worsening pain as a result of the injury and also stated unrelenting pain is an indication for knee replacement surgery.
In Hogue, the Claimant's medical evidence was only "Clinical Worksheet" forms prepared by a nurse at the panel provider's office. The Court held these were competent to support an award because they fit the definition of reports of "medical providers" as defined in Section 109 of the Act. The forms clearly addressed the injury. Any other discussion of the content of the forms goes to the credibility of the evidence, not the competence, according to Budd Company v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170, 180 (Pa. Cmwlth. 2004).
The Court did state in a footnote that Claimant's counsel fees in Hogue would not be awarded under Pa.R.A.P. 2744 regarding frivolous appeals. The Court stated the application of the provisions of Section 422(c) is an emerging area in workers' compensation law, citing Budd.
In both cases, the Court began with the premise that a case involving medical expenses and less than 52 weeks of disability may be decided on medical reports under Section 422(c) of the Act. The Employers' challenges were to the competency of the evidence submitted by the Claimant in each case.
In Palmer, the WCJ credited the Claimant's medical evidence, even though in one instance the Claimant's physician stated the Claimant's knee condition was unrelated to the work injury. The WCJ rejected this as inconsistent with the doctor's other statements on the issue. The Employer's main argument was there was no medical opinion relating the Claimant's total knee replacement to the work-related strain. The Court found it was sufficient that Claimant's physician diagnosed worsening pain as a result of the injury and also stated unrelenting pain is an indication for knee replacement surgery.
In Hogue, the Claimant's medical evidence was only "Clinical Worksheet" forms prepared by a nurse at the panel provider's office. The Court held these were competent to support an award because they fit the definition of reports of "medical providers" as defined in Section 109 of the Act. The forms clearly addressed the injury. Any other discussion of the content of the forms goes to the credibility of the evidence, not the competence, according to Budd Company v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170, 180 (Pa. Cmwlth. 2004).
The Court did state in a footnote that Claimant's counsel fees in Hogue would not be awarded under Pa.R.A.P. 2744 regarding frivolous appeals. The Court stated the application of the provisions of Section 422(c) is an emerging area in workers' compensation law, citing Budd.
Tuesday, June 14, 2005
Commonwealth Court Holds WCJ's Findings of Fact Establish Collateral Estoppel
In D. Williams v. WCAB (South Hills Health System) the first WCJ granted a Termination Petition and found the Claimant did not have a herniated disk. The Claimant did not appeal. On a Reinstatement Petition, the second WCJ found there was a herniated disk and awarded benefits.
The Board and Commonweath Court reversed the second WCJ, holding the finding the Claimant did not sustain a herniated disk was final, e.g. the finding could not be revisited under the doctrine of collateral estoppel. This analysis was consistent with the holding in Gillyard v. WCAB (PA LCB), where the Court held a second WCJ could not adopt a lesser diagnosis than that accepted by the first WCJ to then terminate benefits.
I originally felt these holdings were inconsistent with J. Almeida v. WCAB (Herman Goldner Company). In that case, the Commonwealth Court held the Claimant does not have standing to appeal a WCJ's finding of fact (in fact, the exact same finding of fact, that the Claimant did not sustain a herniated disk). By holding the Claimant did not have standing to appeal, the use of the fact in a later proceeding would be a denial of due process.
However, even though the facts in this case are the same, the result on the first petition in this case would have given the Claimant standing to appeal. Termination was denied in the Almeida case. When termination was granted in this case, the finding of no herniated disk was essential and material to the judgement, and the Claimant would have had standing to appeal.
Similarly, Almeida will be able to argue a disk herniation occurred the next time a termination petition is filed against him, because the finding of no herniated disk was not essential and material to the denial of the Employer's request for termination in his first case.
The Board and Commonweath Court reversed the second WCJ, holding the finding the Claimant did not sustain a herniated disk was final, e.g. the finding could not be revisited under the doctrine of collateral estoppel. This analysis was consistent with the holding in Gillyard v. WCAB (PA LCB), where the Court held a second WCJ could not adopt a lesser diagnosis than that accepted by the first WCJ to then terminate benefits.
I originally felt these holdings were inconsistent with J. Almeida v. WCAB (Herman Goldner Company). In that case, the Commonwealth Court held the Claimant does not have standing to appeal a WCJ's finding of fact (in fact, the exact same finding of fact, that the Claimant did not sustain a herniated disk). By holding the Claimant did not have standing to appeal, the use of the fact in a later proceeding would be a denial of due process.
However, even though the facts in this case are the same, the result on the first petition in this case would have given the Claimant standing to appeal. Termination was denied in the Almeida case. When termination was granted in this case, the finding of no herniated disk was essential and material to the judgement, and the Claimant would have had standing to appeal.
Similarly, Almeida will be able to argue a disk herniation occurred the next time a termination petition is filed against him, because the finding of no herniated disk was not essential and material to the denial of the Employer's request for termination in his first case.
WCRI Issues New Study on Return To Work
The Workers' Compensation Research Institute recently issued a study of Return-To-Work Outcomes of Injured Workers: Evidence from California, Massachusetts, Pennsylvania, and Texas. Nothing surprising, but the findings underscore several principles of managing return to work scenarios. Press Release
Monday, June 13, 2005
State Service Connected Disability Supplement Available When Workers' Compensation Benefits Are Offset For Receipt of Disability Pension
Section 5704(f) of the State Employees Retirement Code provides for a supplement for a service connected disability under which the Claimant is guaranteed to receive 70% of the Claimant's Final Average Salary in pension, workers' compensation (and social security, if applicable). In W. R. Gowden v. State Employees' Retirement Board the Claimant received workers' compensation benefits and his disability pension. After the Commonwealth took an offset for the pension, the Claimant's pension and workers' compensation benefits did not equal 70% of his Final Average Salary and he applied for the supplement.
The State Employees Retirement Board denied the supplement. They reasoned this would deprive the Commonwealth of the benefit of Section 204(a) of the Workers' Compensation Act. The Board also attempted to assert they would be entitled to a credit for the supplement, setting off a cycle at the end of which the Claimant would receive no workers' compensation benefits at all, only the supplement.
The Commonwealth Court held the Commonwealth clearly gets the benefit of Section 204(a) of the Act. It is an unrelated statutory provision which binds the State Employees Retirement System to pay the supplement. Furthermore, the Commonwealth Court stated the Commonwealth's second argument is not supported in the record. Counsel for the Board stated at oral argument SERS will not seek reimbursement for the supplement from The Office of Attorney General, the Claimant's Employer.
To assure a balance between the statutes, the Commonwealth Court held the Section 204(a) offset under the Workers' Compensation Act should be calculated without regard to the supplement the Claimant is entitled to under Section 5704(f) of the State Employees' Retirement Code.
The State Employees Retirement Board denied the supplement. They reasoned this would deprive the Commonwealth of the benefit of Section 204(a) of the Workers' Compensation Act. The Board also attempted to assert they would be entitled to a credit for the supplement, setting off a cycle at the end of which the Claimant would receive no workers' compensation benefits at all, only the supplement.
The Commonwealth Court held the Commonwealth clearly gets the benefit of Section 204(a) of the Act. It is an unrelated statutory provision which binds the State Employees Retirement System to pay the supplement. Furthermore, the Commonwealth Court stated the Commonwealth's second argument is not supported in the record. Counsel for the Board stated at oral argument SERS will not seek reimbursement for the supplement from The Office of Attorney General, the Claimant's Employer.
To assure a balance between the statutes, the Commonwealth Court held the Section 204(a) offset under the Workers' Compensation Act should be calculated without regard to the supplement the Claimant is entitled to under Section 5704(f) of the State Employees' Retirement Code.
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