Superior Court Case on Standard of Review of Allocation of Third Party Settlement

In Urmann V. Rockwood Casualty, the Claimant and his wife received a third party settlement. The Common Pleas Court held a hearing and approved a proposed allocation of $50,000.00 to the Claimant and $250,000.00 to his wife for loss of consortium. The Superior Court affirmed the decision of the Common Pleas Judge. The Court held substantial evidence supported the Common Pleas Judge’s findings and conclusions.

The Employer was a "full participant" in the hearing, according to the Court. However, it is difficult for the Employer to develop a rebuttal case to the family’s claims of loss of consortium. Even if such a case is presented, the fact finder is a common pleas judge who is actually deciding either to approve the settlement or to put the case back on the county’s trial list.

Possibly for these reasons, the Employer reserved its argument on the fairness of the allocation for the Superior Court. However, the Court deferred to the fact finder. The Employer is left with the unsatisfactory remedy at the common pleas level.

If the allocation of settlement will be evaluated on substantial evidence rather than fundamental fairness, the workers’ compensation judge should be the fact finder on the allocation of the settlement. The workers’ compensation judge can hold a hearing in which the Employer is actually a party to the proceedings. Also, the workers’ compensation judge does not have an interest in whether the case settles or goes back on the county trial list.

Employer’s Counsel who wants a ruling on the allocation of a proposed settlement should file a Petition to Review Compensation Payable and advise the common pleas court that the Employer is pursuing its administrative remedy. Claimant’s Counsel should point out Urmann v. Rockwood Casualty and request a hearing from the common pleas court.

The Lens of Dispute Resolution Through Mediation

This Article by Stewart Levine gives a clear description of the complete cost savings of conflict resolution. This is another valuable resource for parties to understand the process and benefits of mediation.

Paper on Dueling Experts in Mediation

This paper written for an Australian alternative dispute resolution association discusses methods for a mediator to deconstruct polar opposite expert opinions.

Some of the methods involve a lot of cost such as bringing the experts together to discuss their opinions. In workers compensation we might apply this technique by discussing in the mediation what the experts might say if we brought them together.

This material would be useful for counsel to prepare their clients for mediation.

RAND Center for Health and Safety in the Workplace

Pittsburgh Tribune Review Article about recent appointment to Pittsburgh RAND Center for Health and Safety in the Workplace.

Utilization Review Must Name Actual Treating Physician

In Bucks County Community College v. WCAB (Nemes, Jr.), the Employer filed for utilization review of the treatment of a Dr. Files. The Claimant was actually being treated by Dr. Mercora, a physician of the same license and specialty of Dr. Files in the same group. When the utilization review was filed, the Employer did request review of all physicians under the same license and specialty.

The utilization reviewer went ahead and reviewed Dr. Mercora’s treatment and found it reasonable and necessary in part. On a petition to review the utilization review determination filed by the Claimant, the WCJ found the report was invalid and therefore the Employer did not meet its burden to show any treatment was not reasonable and necessary. The Board and the Court affirmed.

The Act and Regulations require that a health care provider under review must be an individual, not a hospital, corporation or group. Multiple physicians’ treatment cannot be reviewed under one request. Accordingly, the Court stated the Employer must file naming the correct treating physician for the utilization review to be valid.

The Mechanics of Biomechanical Low Back Pain

Interesting article on fatigue and recovery of the low back in lifting occupations.

Two disc replacement surgery. Press Release.

Supreme Court Grants Petition for Appeal in Knechtel

The Supreme Court granted the Claimant's Petition for Appeal in Marilyn Knechtel v. WCAB (Marriott Corp.). In the Commonwealth Court's decision, the Claimant's designated health care provider at the IME was limited to the role of obtaining a firsthand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results. Post

Uninsured Employer Guarantee Fund Statement of Policy

The Bureau's Statement of Policy on the Uninsured Employer's Guarantee Fund is published at the Pennsylvania Bulletin site.

Forms: Claim Petition for Benefits from the Uninsured Employer Guaranty Fund and Uninsured Employer (LIBC-500) and Notice of Claim Against Uninsured Employer (LIBC-501) are available on the Downloadable Forms portion of the Bureau site.

PaTLA Amicus Curiae Briefs Available

PaTLA shares its Amicus Curiae briefs at this site. Several briefs in Workers' Compensation Matters appear at the bottom of the page.

Supreme Court Finds Abnormal Working Conditions in Harassment Case

In RAG (CYPRUS) Emerald Resources, L.P. v. WCAB (Hopton), Appeal of: Ronald A. Hopton, the Supreme Court reversed the Commonwealth Court's holding that the Claimant's supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant..." (WCJ finding) was not an abnormal working condition. The Commonwealth Court relied on Philadelphia Newspapers, Inc. v. Workmen's Compensation Appeal Board (Guaracino), 544 Pa. 203, 675 A.2d 1213 (1996) to hold the Claimant's response was a subjective reaction to normal working conditions.

The Supreme Court concluded the Commonwealth Court "abused its discretion by not limiting its review to determining whether the WCJ’s factual findings were supported by the record and, instead, focusing on a brief section of testimony not included in the WCJ’s factual findings to support its own conclusion that Rossi’s comments were “normal in the mining industry.” " The Supreme Court went on to find aggravation of the Claimant's pre-existing PTSD was not a subjective reaction of the Claimant and resulted from abnormal working conditions.

Law.Com Article

Legal Newsline Article

Study Finding Long Term Use of Narcotics in Low Back Pain Cases is Suspect

A study from Yale University published in the Annals of Internal Medicine found long term effectiveness of opioids for low pack pain was not conclusive and abuse was reported in 24 per cent of cases.

A Judge's Perspective on Mediation

This article by Federal District Court Judge Dan Aaron Polster for the Ohio State Journal on Dispute Resolution provides an excellent summary of mediation. Judge Polster explains the benefits of mediation and discusses considerations for a Judge who will mediate a case that will go to trial before the Judge.

WCJs are the trier of fact, and Judge Polster doesn't believe a judge who is the trier of fact should mediate the Judge's own case. He reasons: "If statements (the parties) made to me regarding the facts of the case conflict with their trial testimony, I would be placed in the untenable position of either ignoring what I knew, or making findings based upon facts outside of the record."

Because a WCJ is a Judge under Article IV of the Constitution of Pennsylvania, and because the Act specifically grants investigative powers, a WCJ should never be in a situation where a conflict between the parties statements to the WCJ in mediation and the record testimony is unresolved. However, justice in the adjudication will come at the expense of breach of the confidentiality of the mediation by the Mediator/WCJ.

Under Act 147, a decision cannot be circulated until the case is mediated, except where mediation is futile. Mediation is futile only when no losing party could convince the Board that the case should have been mediated. It is not enough that the parties and Judge agree mediation seems futile. The Board has the benefit of 20-20 hindsight as to whether a party could have done better had they mediated. If no mediation was held, a decision could be vacated. The parties therefore should be prepared to mediate every case, and, as stated by Judge Polster, mediate as soon as is practical.