Employer Can File Termination Petition After IRE -- No Penalties for Unreasonable Contest

In J. Schachter v. WCAB (SPS Technologies), The Commonwealth Court held an award of attorney’s fees for unreasonable contest was not appropriate when the Employer filed a termination petition after an IRE and Notice of Change of Worker’s Compensation Disability Status. An IRE assessing a per cent total body impairment does not preclude a later finding of full recovery. The Employer expert’s opinion provided a reasonable basis for contest.

Commonwealth Court Holds Parties Can't Look Behind The Last Supplemental Agreement

In Sharon Tube Company v. WCAB (Buzard) the Commonwealth Court restated the principle that the parties cannot look behind the last Supplemental Agreement when requesting relief from the WCJ. The Claimant attempted to return to work, but then went off again. The Employer issued a Supplemental Agreement reinstating temporary total disability benefits. The Supplemental Agreement did not provide for a reservation of the employer’s right to file a modification petition based on the Claimant’s return to work.

The Employer later filed the modification petition. The WCJ denied the Claimant’s motion to dismiss based on the admission of total disability in the Supplemental Agreement. The WCJ found the Employer’s testimony credible and granted modification.

The Board reversed, and the Court affirmed the Board. The basis was that only the last agreement of the parties could be reviewed. Because the Employer did not produce evidence of a medical release and available work after the date of the Supplemental Agreement, no modification could be awarded.

Disfigurement Is To Be Viewed Without Prosthesis -- WCJ Abused Discretion in Making No Award

In P. Agnello v. WCAB (Owens-Illinois), the claimant lost three lower teeth as a result of a work injury. The WCJ observed her on two occasions and stated he could not see a difference in her appearance with her prosthesis out. He denied the Claimant’s petition for disfigurement benefits and the Board affirmed.

The Court noted the Board affirmed on the basis that the Claimant has a prosthesis, which is irrelevant to the disfigurement analysis. The disfigurement is to be viewed without the prosthesis. "Although Gardiner did not specifically hold that dentures should not be considered when determining whether there was a disfigurement, we now do so because they do not resolve the disfigurement, only mask it."

The Court held the absence of the teeth had to make some difference, and the WCJ abused his discretion in denying an award. The Court reversed the Board and remanded the case to the WCJ to make an award.

The Hartford List of Top Drugs Prescribed in Workers' Compensation Claims

The Hartford Issued its list of the top 25 drugs prescribed in workers' compensation claims. The report also indicates drug costs went down due to generics for oxycontin and neurontin and the withdrawal of vioxx and bextra. Press Release

Supreme Court Requires Deposition by Interrogatories Before Discovery of IME Doctor's 1099s

The Supreme Court has addressed the cases in which IME physician Dr. Eagle desires to not respond to the Order of the Common Pleas Court that he produce three years of 1099s from insurance companies and defense attorneys. The Judge found the discovery request was appropriate upon which to found a demonstration of bias. The Superior Court affirmed.

In Cooper v. Schoffstall; Appeal of: Eagle, M.D. the Supreme Court held a deposition by interrogatories is required before a Judge can order that 1099s be produced. The Court felt the IME doctor's answers to the interrogatories will be sufficient upon which to demonstrate bias in most cases where it exists.

Madame Justice Newman authored an excellent concurring opinion reminding the bar that requiring an expert witness to produce personal financial information is generally an abuse of the discovery process.

No one can deny, however, that IME physicians can underestimate the IMEs they perform for defendants, overestimate the IMEs they perform for Claimants, or both. The doctor's testimony can't be challenged without hard evidence, such as 1099s. One has to question the doctor's veracity when the doctor says he or she does one IME a week and all the Judges in our part of the state see the doctor's evaluations twenty times a year or more.

The Supreme Court decision still allows discovery that digs deeper than questioning the doctor without his financial records. The first step, however, will be to direct interrogatories to the doctor.

In workers' compensation, there is no provision in the Rules of Practice and Procedure before WCJs to conduct a deposition by interrogatories. Claimant's counsel will have to direct these questions to the IME physician at deposition. If the answers seem incredible to counsel, they will probably seem incredible to the Judge. In a rare case, counsel may seek additional documentation.

New Back Treatments

The Axiom DRX 9000 is a machine designed to provide advanced traction to lumbar discs. Article A Pittsburgh company intends to develop a new NSAID. Press Release

X-Stop Device for Spinal Stenosis

Dr. Jack Wilberger's comments on the x-stop device to relieve spinal stenosis.

Act 109 Requirements

Act 109 of 2006 becomes effective on September 5, 2006. The Act provides that WCJ’s must direct reimbursement of outstanding support liens to PASCDU when a net award of benefits to the Claimant exceeds $5,000.00. The lien value that will be used is the amount posted at www.childsupport.state.pa.us. Attorneys may register and obtain the information for use in Act 109 compliance. One other important consideration is that the Claimant information upon which verification of the lien is based must be presented to the WCJ in writing, with verification subject to 18 Pa.C.S.A. Section 4904.

Disputes will arise, particularly due to a collection authority placing an entire month’s obligation as a lien on the first of the month. A printout should be requested on the last day of the month to avoid this issue.

In the event of a dispute, the WCJ has the authority to order that the undisputed amount be paid to PASCDU and the disputed amount escrowed by Claimant’s Counsel. Since there is no workers’ compensation issue beyond the validity of the support arrearage data, the WCJ will ordinarily not exercise the WCJ’s authority under Rossa v. WCAB (City of Philadelphia) to resolve the dispute.

Commonwealth Court Defines Role of Claimant's Designated Health Care Provider Who Attends Independent Medical Examination

In M. Knechtel v. WCAB (Marriott Corporation), the Claimant elected to have a health care provider of her choosing attend an independent psychiatric evaluation. The Claimant further requested of the WCJ that her designated health care provider be permitted to video or audio tape record the examination, question the examiner, comment on the examination process and assist the Claimant during the examination by rephrasing questions and asking additional questions during the examination.

The WCJ denied all of these manners of participation, holding the Claimant’s representative may only observe, take notes, and request brief recesses during the evaluation to confer with the Claimant. The Board and the Court affirmed. The Court reasoned it had ruled in Wolfe v. Workmen’s Compensation Appeal Board (Edgewater Steel Company), 636 A.2d 1293 (Pa. Cmwlth.), appeal denied, 537 Pa. 669, 644 A.2d 1205 (1994) that the Claimant is not able to be represented by her attorney at the examination. Participation of the type the Claimant was requesting was tantamount to an adversarial proceeding.

The Court stated the role of the Claimant’s designated health care provider is to obtain a firsthand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results.

Commonwealth Court Holds Expert Can Posit the Existence of Disease Causing Agent in Section 301(c)(1) Case

In Craftex Mills, Inc. of PA v. WCAB (Markowicz), the Employer tried to apply the evidentiary requirements for proof of occupational disease exposure as stated by the Supreme Court in Gibson v. Workers’ Compensation Appeal Board (Armco Stainless), 580 Pa. 470, 861 A.2d 938 (2004).

In the Gibson case, the Supreme Court, while coincidentally appearing skeptical of the Claimant’s expert medical testimony, held the Claimant did not meet his burden to show asbestosis. The Court stated there must be evidence there was asbestos in the plant, and the Claimant’s lay witness was unsure if the grey dusty material on the pipes leading from the boiler was, indeed, asbestos. See post.

In the Craftex Mills case, the Claimant’s physician testified the Claimant suffered from "hypersensitivity pneumonitis and asthmatic bronchitis as a result of his exposure to thermophilic actinomyces in the air conditioning unit." emphasis in original. The WCJ awarded benefits under Section 301(c)(1) of the Act. The Court stated: "The Judge was impressed by Dr. Mengel’s discussion of the diagnosed condition and its epidemiology." The Board and Court appeared to be similarly impressed.

On appeal, the Employer noted Dr. Mengel admitted not all air conditioning units have thermophilic actinomyces. The Employer pointed out there was no lay evidence that thermophilic actinomyces were present. The Court applied the Gibson test and agreed there was no competent lay testimony to establish that thermophilic actinomyces were present.

However, the Court found Dr. Mengel’s testimony competent on its own. Dr. Mengel explained he concluded the Claimant was exposed to thermophilic actinomyces from the air conditioning system because the Claimant had no history of other exposure such as from "mushroom houses, tree de-barking facilities, and areas in which pigeons roost."

This is reasonable, but indistinguishable from Gibson, in which the Claimant’s doctor surely would have reasoned the Claimant was not exposed to asbestos anywhere other than at work.

The Court in Craftex Mills pointed out post hoc testing could show thermophilic actinomyces were not present, even if they were present at the time of the injury. This would not be the case with asbestos, which would be still there or should be the subject of a record of removal and disposal. The Court also pointed out the Claimant in this case proved his case completely under Section 301(c)(1) rather than relying on the presumption of causation in a case of occupational disease. Based on these factors, the Court chose to defer to the expert opinion rather than placing an onerous burden on the Claimant.

Article on Supreme Court Arguments in Motor Coils MFG/WABTEC, v. WCAB (Bish)

Law.com has an article from the Legal Intelligencer about argument before the Supreme Court in Motor Coils MFG/WABTEC, v. WCAB (Bish). The Employer is clearly arguing it can make light duty available to a Claimant who has moved out of state and suspend benefits when she refuses the job. If a labor market survey proves there is light duty work available under these circumstances, benefits can be suspended.

The difference in the Bish case is that the job was created by the Employer. There is no evidence the Claimant could have found the job in the general labor market. If this tactic does not deny equal protection as discussed in Shapiro v Thompson, 394 U.S. 618 (1969), the Supreme Court may validate it.

Commonwealth Court W.C. Filings Down; Court Credits Workers' Compensation Mediation

In an article in the Legal Intelligencer, President Judge James Gardner Colins and G. Ronald Darlington, the Executive Administrator of the Commonwealth Court, identified compromise and release and its progenitor, workers' compensation mediation, as factors in the fourteen per cent (14%) decline of workers' compensation filings in the Commonwealth Court.

In mediations I conducted last week I settled two out of two, and achieved very fair results for parties that were situated to enter into a compromise and release. The expertise of the Workers' Compensation Judges who mediate as well as the Mediating Commissioners of the WCAB and the Mediating Judges of the Commonwealth Court is directly responsible for the reduced filing numbers and the resulting improvement in disposition time.

Judge Colins also acknowledged the requirement of Harkness v. UCBR that Employers be represented by attorneys in unemployment compensation cases was a factor in an 18% drop in appeals from the Unemployment Compensation Board of Review to the Commonwealth Court.