Commonwealth Court Allows WCJ to Review Description of Injury Without Review Petition

In Cinram Mfg., Inc. & PMA Group v. WCAB (Hill), the Claimant had a herniated lumbar disc as early as 2000. When the Claimant had a work injury in March of 2004, the Employer described the injury as a lumbar strain. The Employer later filed a Termination Petition, alleging the lumbar strain had resolved.

The WCJ accepted the testimony of the Claimant’s expert that the March 2004 injury resulted in a significant change in the Claimant’s imaging study and symptoms. The WCJ concluded the Claimant’s herniated lumbar disc was either caused or materially aggravated by the March 2004 work injury, and denied the Termination Petition.

The Claimant did not file a review petition to expand the description of injury. The Employer argued on appeal that the Claimant’s expert’s opinion was incompetent. The Board and the Court rejected this argument.

The Claimant’s failure to file a review petition is harmless error so long as the WCJ places the burden on the Claimant to prove the nature of the injury beyond the insurer’s description. According to the WCJ’s credibility findings in this case, the record established the Claimant met his burden.

It is better practice, however, to file appropriate review petitions. These memorialize diagnoses for the medical experts to comment on, ensuring due process. The filing of a review petition also guides the WCJ to properly analyze the description of injury.

Commonwealth Court Holds WCJ May Not Decide Termination Petition After Full C&R

In Bureau of Workers' Compensation v. WCAB (US Food Service) the Commonwealth Court held the Employer could not get a post C&R decision on a pending termination petition and proceed to request supersedeas reimbursement.

The Court distinguished the present case from the Optimax case, holding a C&R is a final resolution of a case unlike the stipulation the parties entered into in Optimax. The Court also distinguished the present case from those in which the parties specifically reserved issues in their C&R agreements. However, the Court finalized its reasoning in a way that suggests all post C&R action of the WCJ is invalid, whether the parties reserve rights or not.

The Bureau's argument focused on the fifth element of proof for supersedeas reimbursement, that "in the final outcome of the proceedings it is determined that such compensation was not, in fact, payable." The Court held: "The hallmark of a compromise and release is finality. As we said in Stroehmann, 'we believe that the legislature intended that a C&R should be on equal footing with civil settlements, which are based on a public policy that encourages settlements and stresses finality.' 768 A.2d at 1196. Thus, the C&R, as the final agreement between the parties, was the 'final outcome of the proceedings' under Section 443 of the Act." The Court held it was therefore error for the WCJ to decide the termination petition in this case.

The Court's opinion is difficult to assimilate. The purpose of the "final outcome of the proceedings" language is to provide that an application for supersedeas reimbursement may not be made while an appeal is pending. There is no "final outcome of the proceedings" until the appeal period expires without an appeal having been filed.

In this case, twelve days after the C&R decision, the WCJ issued a decision granting termination. Because this was within the appeal period, it was prior to the "final outcome of the proceedings." Optimax should still control. Without knowing whether either party would appeal the decision on the C&R, the WCJ issued a decision on evidence prior to and independent of the stipulation underlying the C&R (as reasoned by the WCJ who granted the Petition for Supersedeas Reimbursement).

The obvious steps for the practitioner are to only enter into a C&R of future liability, to reserve the right to a decision on prior evidence independent of the stipulation underlying the Compromise and Release, and, if treatment is minimal, consider leaving the medical open for a limited period of time that will exceed the time frame for the WCJ's Order on the pending termination petition.

Supreme Court Grants Appeal on Whether Penalties Can Be Assessed In Workers' Compensation Security Fund Case

In Constructo Temps and Workers' Compensation Security Fund v. WCAB (Tennant), the Commonwealth Court held the Workers' Compensation Security Fund and the Employer are not responsible for penalties according to the provisions of the Act. The Supreme Court has granted the Claimant's petition for allowance of appeal. The Claimant framed the issues as:

(1) Whether an order prohibiting the assessment of penalties against the
Workers’ Compensation Security Fund for its failure to pay reasonable
and necessary medical expenses incurred by the claimant violated the
humanitarian purposes of the Workers’ Compensation Act?

(2) Whether an employer may be assessed a penalty for its failure to pay
reasonable and necessary medical expenses incurred by the claimant
where the penalties imposed resulted from the conduct of the
Workers’ Compensation Security Fund?

Commonwealth Court Holds Employer May Take Section 204 Offset Only After Receipt of LIBC-756

In Maxim Crane Works v. WCAB (Solano) the Claimant was injured on October 10, 2000 and was terminated by the Employer in December of 2000. In January of 2003, the Claimant applied for social security old age benefits. An agreement for compensation was entered into on April 4, 2003, and a supplemental agreement was entered into on September 12, 2003.

34 Pa. Code §123.501provides:
An insurer shall notify the employe of the employe's
reporting requirements under sections 204 and 311.1(a)
and (d) of the act (77 P.S. §§ 71 and 631.1(a) and (d)). In
addition, the insurer shall provide the employe with the
forms required to fulfill the employe's reporting and
verification requirements under section 311.1(d) of the act.

It was on June 6,2005 when the Employer first sent Form LIBC-756 to the Claimant. The Claimant reported his social security old age benefit. The Employer issued a Notice of Benefit Offset on August 3,2005 providing for a future credit and recoupment of a credit accrued during the past 14 months.

The Claimant challenged the recoupment of a past credit by filing a petition to review benefit offset. The WCJ denied recoupment prior to June 6,2005. The Board and Court affirmed.

The Court stated the Employer has no right to an offset until it complies with 34 Pa. Code §123.501. "While Claimant does owe a duty to report receipt of old age Social Security benefits, the regulations place the initial duty upon the employer or insurer to notify the employee of the reporting requirements and provide the employee with the proper forms." In addition, 34 Pa. Code §123.5(a) provides the Employer may take an offset only after receipt of LIBC-756

Employers are now limited to a section 204 credit only into the future and after receipt of LIBC-756, unless the Employer shows the Claimant provided inaccurate information on a prior LIBC-756. Taking an offset without receiving a LIBC-756 and/or taking recoupment of an accrued offset will subject the Employer to an assessment of penalties.

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.