Commonwealth Court Confirms WCJ Should Take Limited Evidence On Petition to Review Utilization Review That Is Granted For Lack of Records

In R. Gazzola v. WCAB (Ikon Office Solutions) the Employer's Utilization Review was granted when the treating physician did not provide records. The WCJ dismissed the Claimant's Petition to Review the Utilization Review Determination under County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The WCJ stated, however, that the better procedure would be to take evidence on whether the treating physician had an excuse for not providing records.

I presumed this authority in my post on Geisler on June 6, 2005.

The Court endorsed the procedure as stated by the WCJ. The WCJ may take evidence on whether there was an excuse for the failure to provide records, and if there is a reasonable excuse, the WCJ may Order that the URO be performed on the treatment at issue.

Results Similar With or Without Lumbar Disk Surgery

The New York Times covered a recent study from JAMA finding patients with ruptured lumbar disks recovered with or without surgery. The study also found there was no harm in choosing the non surgical route.

Articles On Passage of Act 147

Articles on the passage of Act 147 include a release by the Pennsylvania Chamber of Business and Industry and general information. The Chamber release states the changes will speed up the system and reduce the cost of litigation. The legislation will do this primarily by requiring scheduling orders and mediation, tools we have been using effectively in this area for some time.

The mediation provisions of the Act will speed up litigation in areas where mediation was not available before, but in workers' compensation the parties typically have to litigate to gain discovery of the facts of a case. There is no formal pre-hearing discovery procedure.

The parties can mediate at any time, but it is effective only when the parties understand what the evidence, and thus the value, will be. The Act does not require the mandatory mediation conference to be scheduled until thirty days prior to the date closing submissions are due.

I recently mediated a case not yet in litigation. The Employer had a favorable IME they did not act upon. The Claimant requested the mediation to see if the Employer would give a reasonable settlement offer before the Claimant was due to become Medicare eligible in a few months.

The case did not settle. The Claimant did not really consider the risk of termination from the IME because the Employer hadn't filed after receiving the report. The carrier did not want to pay a premium amount, because it had a favorable report in hand. We did not know what the Claimant's treating physician would say.

I brought them within $15k of each other, and the case may settle, but I would be concerned it would be an unjust settlement. Unjust to the Employer, under the present facts (remember, I read the IME). Then again, I didn't see anything from the treating physician.

The bottom line, however, is that there will be more mediation because it works. The parties should expect it and get prepared to request the mediation conference they are entitled to at the earliest reasonable opportunity.

"Spine" Journal Article About Use of Spinal Fusion

According to an article in the new edition of the journal Spine, rates of lumbar spinal fusion surgery for chronic back problems have increased in recent years, with no improvement in overall results and a significant increase in complications. Abstract

Abstract of a study comparing MRI findings in nurses and secretaries with and without low back pain.

Commonwealth Court Holds Relevant Prior Medical Records Must Be Provided To IME Physician

In Central Dauphin School District, et al. v. WCAB (Siler), the Claimant was successful in a Claim Petition to establish injuries including various musculoskeletal conditions including fibromyalgia. The description of injury by the WCJ also included "altered states of consciousness."

When the Employer pursued later IMEs with a neurosurgeon and psychiatrist, the psychiatrist requested pre-injury records of psychological treatment. The WCJ concluded these records were not discoverable, and the Board affirmed, reasoning the records should have been sought in the Claim Petition litigation.

The Commonwealth Court reversed. The Court noted Claimant’s Counsel did not argue that the records are not discoverable, just that they are irrelevant to the adjudicated diagnoses. The Court remanded for the WCJ to compel the discovery of records that are relevant.

Commonwealth Court Holds WCJ Has Jurisdiction Over Attorney Fee Disputes Between Counsel When Prior Counsel's Fee Has Been Approved

In K. Hendricks v. WCAB (Phoenix Pipe & Tube), the Commonwealth Court held Pitt v. Workmen’s Compensation Appeal Board (McEachin), 636 A.2d 235 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 661, 648 A.2d 792 (1994) does not stand for the proposition that the WCJ does not have the authority to decide a counsel fee dispute when both attorneys’ fee petitions have been properly submitted to a WCJ.

Attorney fee disputes arise when the Claimant changes attorneys for whatever reason. Because the prior attorney is receiving a continuing 20% counsel fee, there is no room for a fee to be paid to the new attorney. The Pitt case is typically cited by WCJs to refer attorney fee disputes to the local County Bar Association Fee Dispute Committee, and ultimately to the local Court of Common Pleas. This is still the procedure if the prior attorney has not received fee approval, or at least properly placed a fee agreement in the record in an open case.

The Hendricks case states where a 20% fee has been approved for a prior attorney, the fee can be changed after an analysis by the WCJ as to what fee is appropriate for prior and present counsel. The WCJ must balance the right of the Claimant to counsel of the Claimant’s choice against the humanitarian purposes of the Workers’ Compensation Act that are perpetuated by prior counsel receiving a reasonable fee. The Court stated a Claimant cannot be permitted to avoid paying legal fees by simply discharging the Claimant’s attorney.

WCJ’s now will look at fee disputes when the Claimant changes attorneys. A WCJ still may seek consultation from the local Bar Association Fee Dispute Committee, but if there is not a resolution, the WCJ will resolve the dispute.

Claimant Cannot Petition for Modification or Reinstatement More Than Three Years After Last Date of Payment, Even When a Specific Loss is Discovered

In R. Seekford v. WCAB (R.P.M. Erectors), the Court analyzed whether the Claimant could file a claim for specific loss of his arm almost six years after the last payment of compensation via receipt of a commuted sum. The Claimant had sustained nerve damage to his arm after inadequate padding of his upper extremities during low back surgery seven and one-half years earlier. The Employer admitted an injury to the arm, but asserted the Claimant’s petition was time-barred, as it was not filed within three years of the last date of payment.

The Court held the Claimant’s Claim Petition must be treated as a Petition for Review. An injury that arose as the proximate result of surgery for the accepted injury is an injury that arose out of the accepted injury. Accordingly, the statute of limitations of three years from the last date of payment applies.

The Court then rejected the Claimant’s argument that he only discovered the specific loss when his doctor rendered an opinion of specific loss less than two years prior to the date of filing. The Court would not analogize the specific loss in this case to a specific loss of sight or hearing because the Claimant testified he knew there was a severe problem as soon as he woke up from the original surgery. The Court stated a Claimant who commutes his benefits runs the risk of finding himself beyond the statute of limitations when the Claimant’s injury worsens.

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.