SWMS Associated With Cancer

The International Agency for Research on Cancer, the cancer arm of the World Health Organization, will designate overnight shift work as a probable carcinogen according to a Pittsburgh Post-Gazette article. Judge David Torrey identifies the 1998 case of Met. Ed. v WCAB, 718 A2d 759 (Pa. 1998) as the Supreme Court case which previously held shift work maladaptation syndrome is not a compensible injury.

Report From National Workers’ Compensation and Disability Conference and Expo

Human Resource Executive Online summarizes a discussion from the National Workers’ Compensation and Disability Conference and Expo about outcome based workers’ compensation management. The panelists are all names Pennsylvania workers’ compensation practitioners will recognize.

NIOSH Guide: Simple Ways To Prevent Musculoskeletal Injuries in Construction

Safety Online Article

NIOSH .pdf materials

Furlough Benefits Are Not Severance Benefits

In G. Kelly v. WCAB (US Airways Group, Inc.) the Commonwealth Court reversed the opinion of the Board and WCJ that furlough benefits are severance benefits for which the Employer is entitled to a credit under Section 204(a) of the Act. The Court applied a plain language analysis.

L&I Offers Policy Search Via Internet

Information on workers compensation coverage for Pennsylvania employers is available at PA Employer WC Insurance Info on L&I's web site. The search will show the current insurance carrier and the coverage history.

Commonwealth Court Holds Expense Reimbursement Should Be Included in AWW

In T. Lennon, Dec', et al. v. WCAB (Epps Aviation, Inc.), the Claimant, an airplane pilot, received expense reimbursement for board and lodging from his employer. Claimant’s Counsel argued these amounts should be included in the average weekly wage calculation under Section 309(e) of the Act on the basis that they represent payments for board and lodging.

The WCJ denied the request to include reimbursed board and lodging expenses. The rule prior to this case was that board and lodging expenses are included in the average weekly wage only when a daily or weekly advance is paid to the claimant. These are reimbursements made under a nonaccountable plan and are therefore wages subject to withholding and employment taxes. Expense reimbursements paid to an employee under an accountable plan are exempt from withholding and employment taxes, and under the prior rule these were not included in the AWW.

The Board affirmed the WCJ’s decision, but the Commonwealth Court reversed. The Court stated according to the plain language of the statute, these amounts are includable in the average weekly wage. If there are policy considerations underlying the prior rule, the statute should except board and lodging reimbursement.

Commonwealth Court Reinforces Principle That Average Weekly Wage Calculations Should Be Made According To The Act’s Provisions.

In Lahr Mechanical, et al. v. WCAB (Floyd) the WCJ accepted the Claimant’s testimony about his expected wages and hours to make a Section 309(d.2) average weekly wage calculation. The Claimant testified he expected the prevailing rate. The Claimant was actually paid at three different rates: local, prevailing and overtime.

On appeal by the Employer, the Board averaged the Claimant’s rates. This resulted in a slightly lower AWW than the one found by the WCJ.

The Court reinstated the findings of the WCJ. Recent cases have allowed average weekly wage calculations outside the framework of the Act’s provisions, but the preferred disposition is to make findings of fact that allow a calculation within the framework of Section 309, as the WCJ did in this case.

Article Reporting Medicare Delays in New Jersey Workers’ Compensation Settlements

This Star-Ledger article reports on the history and development of CMS reviews of workers’ compensation settlements and the delays in processing these reviews. It is a very complete overview of the issue.
Thanks to WCJ David Torrey

Elizabeth Crum Elected President of IAIABC

Liz Crum, Deputy Secretary of Compensation and Insurance, was elected President of the International Association of Industrial Accident Boards and Commissions. The IAIABC’s mission is to advance the administration of workers’ compensation systems throughout the world through education, research, and information sharing.

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?