State News : Pennsylvania

Medical Marijuana:

Recent Pennsylvania Commonwealth Court Decisions.

Fegley, as Executrix of Estate of Paul Sheetz v. WCAB(Firestone Tire & Rubber), ___ A.3d ___ (Pa.Cmwlth. 2023) and Edward Appel v. WCAB (GWC Warranty Corporation), ___ A.3d ___ (Pa.Cmwlth. 2023).

In Fegley the Commonwealth Court found that Section 2102 of Pennsylvania’s Medical Marijuana Act (“MMA”) which provides that, “[n]othing in this act shall be construed to require an insurer or health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” did not prohibit reimbursement of out-of-pocket payments by claimants for medical marijuana. It held that the Pennsylvania Worker’s Compensation Act mandates workers’ compensation carriers to reimburse claimants for out-of-pocket costs of medical treatments that have been found to be reasonable and necessary for work-related injuries and this included medical marijuana.

The court also addressed Section 2103 of the MMA which indicates that nothing in the MMA “shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.” In addressing   Section 841(a) of the Federal Drug Act which provides that it is “unlawful for any person knowingly of intentionally … to manufacture, distribute, or dispense … a controlled substance.” 21 U.S.C. § 841(a),the court held that reimbursement of out-of-pocket expenses for medical marijuana by a workers’ compensation carrier was not a violation of federal law as reimbursement is not the manufacturing, distribution, or dispensing of medical marijuana.

Following its Opinion in Fegley, the Commonwealth Court in Appel held that while the MMA did not require an employer/carrier to provide coverage for medical marijuana, coverage is “different and distinct from reimbursement,” and there is no statutory language which prohibited the reimbursement to a Claimant for costs incurred for the lawful use of medical marijuana. 

Thus, the denial of reimbursement costs incurred for lawful use of medical marijuana which has been found to be reasonable and necessary treatment of a compensable work injury can be found to constitute a violation of the Workers’ Compensation Act. Provided that medical marijuana is reasonable and necessary for a work injury and a Claimant is lawfully using the drug under the MMA, failure to make payment could now subject an employer/carrier to penalties under the Workers’ Compensation Act. 

Both decisions, based the rationale applied differentiating between coverage and reimbursement given the potential significant impact upon the defense industry,  will most likely be appealed to the Pennsylvania Supreme Court.  It should be noted that there was a well written and reasoned dissent filed in Fegley which noted that there should not be reimbursement made by a carrier if there is no coverage for the item that is requested to be reimbursed.  Further, it was posited that if the doctor is contributing to the dispensing of marijuana, which is still prohibited by Federal Law, the treatment may not be reasonable and necessary treatment.

It should be noted that there may be other arguments that could be advanced against the payment and/or reimbursement of medical marijuana.  Such argument may require the initiation of litigation.  Should a request be received for reimbursement for medical marijuana, it may be advisable to seek legal counsel as failure to take action or issue payment within thirty (30) days may now lead to the filing of a Petition for Penalties by the claimant’s bar as well as a request for the imposition of Lorino fees for the time expended by counsel in seeking reimbursement for such invoices.    

The Pennsylvania appellate courts continue to compound an apparent misunderstanding of how review of medical treatment is to be addressed under the Pennsylvania Workers’ Compensation Act and corresponding Medical Cost Containment Regulations.  Further, the Court continues to interpret the Act in the light most favorable to the Claimant’s bar as is reflected in a recent decision addressing reimbursement of costs.

In UPMC Benefit Management Services, Inc. v. United Pharmacy Services (BWC Fee Review Hearing Office), No. 558 C.D. 2021 (Pa.Cmwlth. December 15, 2022) and State Workers’ Insurance Fund v. Harburg Medical Sales Co., Inc. (BWC Fee Review Hearing Office), No. 712 C.D. 2021 (Pa.Cmwlth. December 15, 2022), the Commonwealth court has essentially indicted that liability for a claimant’s prescribed treatment may only be disputed through a utilization review.  If there is an open Notice of Compensation Payable or other document/decision establishing liability for a work-related injury, the Courts appear to be of the belief that this will foreclose the possibility to render a Fee Review premature under 34 Pa. Code 127.256.  This section reflects that a Fee Review will be returned as being prematurely filed by the provider when 1) the insurer denies liability for the alleged work injury; 2) utilization review has been filed or 3) the 30 day period allowed for paying a bill has not elapsed.  

According to the Court, when an employer or insurer seeks to render a provider’s fee review application premature, a dispute regarding the causal connection between the prescribed treatment and the underlying work injury apparently must be reframed as a challenge to the reasonableness and necessity of the treatment through the utilization review process. 

These Decisions compound the original error by the Court in its Decision in Omni Pharmacy Services, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (American Interstate Insurance Company) where the Court required a Utilization Review be filed so as to challenge treatment on the basis of causation, despite the regulation governing such actions specifically forbidding a Utilization Review from addressing causation.  See 34 Pa. Code § 127.406(b)(1), which provides that a Utilization Review may not decide “the causal relationship between the treatment under review and the employee’s work-related injury.”  These cases place the Workers’ Compensation Judge adjudicating such a matter in a difficult position of applying this clearly erroneous precedent or the law as has been applied for years in the practice of workers’ compensation.

These holdings would appear to be contrary to Listano v. WCAB (INA Life Ins. Co.), 659 A.2d 45 (Pa. Cmwlth. 1995); Delarosa v. WCAB (Masonic Homes), 934 A.2d 165 (Pa. Cmwlth. 2007)(providing that should an employer or carrier unilaterally deny treatment on the basis of causation, they may be subject to penalties, at the discretion of the WCJ, if it is found that the medical bills are causally related to the work injury).  The Court did not previously attempt to impose this requirement on employers and carriers to challenge causation through the utilization review process.  However, now it appears the Court conflates the issue of reasonableness and necessary with causation by indicating if treatment is not causally related to an accepted work injury, it is not reasonable and necessary treatment.  However, if the Utilization Review is precluded from deciding issues of causation, the reviewer is in a catch 22 as to how to address this issue.

In the United Pharmacy case, the issue was one where the carrier was arguing that the treatment in the nature of use of compound creams, 3 fills at $2,249.98 per tube, were not related to the low back strain injury.  In the Harrburg Medical Supply case, the carrier paid for $1,725.00 worth of the bills for multiple injuries but denied on the basis of causation the $2,199.95 memory foam mattress overlay as not being related to the work injury. Thus, in both of these situations, the treatment may have been provided for the accepted body part.  Hopefully that is the driving force in these decisions.  However, with the language utilized by the Court, there can be arguments that treatment clearly unrelated to the accepted injury now has to be subject to Utilization Review when the dispute is clearly on causation. 

If, hypothetically, a Notice of Compensation Payable is issued accepting a shoulder injury and.   Claimant starts to treat for a different/unaccepted body part, must the carrier now file for Utilization Review despite the holding of Listano in such situations?  Can the Claimant simply treat workers’ compensation like private health insurance to cover any conditions that they allege may be related to the work injury even if there is no obvious causal relationship to what was originally reported as being the injury?  Already there is the potential for abuse with charges for non-medical items like a foam mattress overlay and the language of these decisions seems to provide open the door to the potential for additional future abuses.  

If the carrier needs to file for Utilization Review that is typically a fixed cost of $1,500 to $2,000, is it worth the cost of filing for Utilization Review and then potentially the costs of litigation to avoid a charges like these in these matters?  When the carrier can deny on the basis of causation for treatment that is not obviously related to the work injury, like a memory foam mattress, that would dissuade medical providers from trying to take advantage of the system.

As it stands now, carriers may need to be more proactive in terms of filing a Petition to Review Medical Treatment and/or Billing, which is a Petition that can also bring the issue of medical causation before a Workers’ Compensation Judge.  However, the medical provider may still need to be paid for the treatment with there being a potential for reimbursement from the Supersedeas Fund if the carrier ultimately prevails.  Of course, there are the litigation costs and most likely the cost associated with obtaining a medical opinion whether through Independent Medical Evaluation or record review, associated with taking such action.  As it stands, the Medical Cost Containment Regulations are now approximately 30 years old and are in need of review and potential revamping.       

In Lawhorne v. Lutron Electronics Co., Inc. (WCAB), No. 1132 C.D. 2021 (Pa.Cmwlth. October 18, 2022), the Court once again looked into Section 440(a), like it did the year prior with Lorino v. WCAB (Commonwealth of PA/Penn Dot), 266 A.3d 487 (Pa. 2021).  In Lorino, the Court found that payment of counsel fees by the Employer/Insurer/Carrier was mandatory if the Claimant prevailed but could be excluded by the Judge in the event of a reasonable contest.  In Lawhorne, the Court once again review 440(a) of the Workers' Compensation Act, 77 P.S. §996(a), and determined that a claimant must be awarded reasonable litigation costs should the claimant prevails in part or whole, even if the costs incurred did not directly contribute to the success of the matter at issue.

Once again, the Courts looked at the language as being mandatory despite the Workers’ Compensation Judge having specifically concluded that the testimony offered by the Claimant’s medical expert was not credible and did not aide in the determination by the Judge that the Employer did not prevail on its Petition to Terminate Compensation Benefits.  In the past, these costs would have properly been excluded.  At least there was a dissent in Lawhorn, as it was noted that the Claimant could present with a number of medical experts who are not credible or even may not be contemptuous.  The dissent focused on the language “reasonable” cost and noted that this should allow discretion in the Workers’ Compensation Judge to determine whether the costs incurred are those that should be reimbursed.  I would think that the defense bar should continue to focus on the language in the dissent moving forward to argue for the Judge to be able to apply discretion to what costs are to be reimbursed as opposed to applying a standard that should the Claimant prevail, even if only in part, then all costs are required to be reimbursed.  

The Commonwealth Court of Pennsylvania revisited the voluntary withdrawal from the workforce argument in a recent decision, Hi Tech Flooring, Inc. v. WCAB (Santucci), issued on 08/09/22.  This case dealt with a work injury of 08/28/14, which was recognized as a right knee contusion.  A subsequent decision on a termination petition found the Claimant injury led to progressive degenerative changes of the knee.  In a 12/10/18 Decision, the workers’ compensation judge denied a subsequent petition to terminate compensation benefits but granted a suspension of benefits based upon a voluntary withdrawal from the workforce.  The WCAB reversed this decision via opinion circulated 12/03/19. 

The primary facts that led to the Judge’s decision were that the Claimant had been receiving a disability pension since 10/01/17 and social security disability benefits effective 10/07/15, was found capable of working and had not sought any work.  Accordingly, the Judge found the Claimant was withdrawn from the workforce. It should be noted that the Claimant receipt of these other benefits was for conditions beyond the work injury.  His pension application listed the conditions of right shoulder pain, neck pain and right facet arthropathy.  His SSD award was for herniated discs with constant pain – cervical; lumbar spine condition with constant pain; prior right knee surgery with remaining pain; left knee impingement undiagnosed; arthritis of both ankles; numbness of the left arm; carpal tunnel; gout; high blood pressure; and high cholesterol” as well as “lumbar and cervical disc disease, status post C5- 6 cervical discectomy and fusion; bilateral knee degenerative osteoarthritis, status post bilateral arthroscopic procedures; right hip degenerative joint disease; and status post total hip replacement.”

The Court applied the leading precent, City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) (Robinson II), 67 A.3d 1194 (Pa. 2013), noting that an employer may seek a suspension of benefits if the employer can establish, by the totality of the circumstances, that the claimant has chosen to not return to the workforce, but that “[t]here is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension[;] rather, the acceptance of a pension” only creates a permissive inference of such.  The Court found with the Board that these circumstance, with there being not Notice of Ability to Return to Work having been issued or job referrals made, did not arise to a voluntary withdraw under the totality of these circumstances. Simply receiving SSD and a disability pension and not looking for work, when those other benefits were based, in part, on the work injury, did not rise to a voluntary withdrawal from the workforce.  

While this decision seems to limit the voluntary withdrawal from the workforce argument, it also shows that this can be a viable means to get a case into litigation and to actually prevail, as was done before the Workers’ Compensation Judge.  This can create leverage to obtain a favorable resolution.  However, more is most likely needed than just evidence of retirement, ability to work and lack of following through on job offers. We typically recommend combining this argument with a labor market survey/earning power assessment as then the Claimant is provided with a Notice of Ability to Return to Work explaining he may have an obligation to look for work.  The EPA/LMS provides the Claimant with positions that are open and available within his/her physical and vocational capabilities, to which they typically do not apply.  Of course, should they apply, that may prove detrimental to the bringing of such an argument. However, combining such additional evidence hopefully will be found to demonstrate a voluntary withdrawal from the workforce under these totality of circumstances and may provide for a suspension of benefits rather than just a modification that could occur based upon the LMS/EPA, depending upon the amount of wages the located positions may pay.   

Dear Clients:

             We are continuing to monitor the Corona Virus (COVID-19) outbreak, and we want to take a moment to reach out and let you know that we are handling this developing situation at ConnorsO’Dell, as responsibly as possible, noting that our main priority is to insure the health and safety of our staff and our clients.

             Safety being our top priority, we are implementing the following:

 ·         We are taking every precaution possible, to include conducting extra cleanings of our offices, and frequently touched surfaces.

·         We have implemented screening measures to insure the safety of our staff and clients, and we have postponed most in-person appointments, and, to the extent available, are engaging in remote consultations and appointments.

·         We have instructed our staff that if they are not feeling well or are still recovering from illness, we have asked them to self-isolate, for the protection of all.

·         As of 3/16/20, we will also be working remotely for safety.

In reliance upon CDC recommendations, we suggest the following:

 ·         Wash your hands often with soap and water for at least 20 seconds.

·         Always cover your mouth when coughing and sneezing.

·         Maintain social distancing of 3 feet or more between yourself and other persons.

·         Avoid touching your eyes, nose and mouth with unwashed hands.

·         Clean and disinfect frequently used surfaces.

·         Get medical attention early if you have a fever, cough, or difficulty breathing.

·         Mild symptoms should seek medical care and stay home until recovered, if possible.

Please reference the CDC website for the latest updates about the Corona Virus (COVID-19).

We remain vigilant in representing the interests of our clients in this challenging situation facing our communities.

WORKERS’ COMPENSATION IMES IN PENNSYLVANIA

By

Kevin L. Connors, Esquire

            Many of you have expressed some confusion, regret, and/or a pain associated with the selection of independent medical examiners, particularly in the context of workers’ compensation cases.

             No question, this is a difficult task in workers’ compensation cases, as it could well become a claim-defining examination, since under Section 304 of the Pennsylvania Workers’ Compensation Act, Independent Medical Examinations (IME) can only be requested on an every six (6) months basis, triggering brow-furrowing and head-scratching, as to when do I get the IME.

             No less true, the issue for one to secure an IME often comes into question when you are either administering a “medical only” claim, which sometimes drift into the “I am disabled” claim, resulting in a claim for indemnity compensation benefits, as well as claims that are administered a Notice of Temporary Compensation Payable, whether for both indemnity and medical compensation benefits and/or simply for “medical only” compensation benefits.

             As all of us know, the Notice of Temporary Compensation Payable (NTCP) permits the administration of a workers’ compensation claim for the first ninety (90) from issuance of the NTCP, to allow continuing investigation into the workers’ compensation claim, including terms of compensability, disability, injury description, etc., there may be many facets that play into whether a claim is accepted, denied, or administered under an NTCP, with the IME being one resource available to Employers and Insurance Carriers, as well as administrators, as the NTCP is approaching its end point, being that ninety (90) days from issuance, after which, absent the issuance of a Notice of Compensation Denial, as well as the issuance of Notice of Stopping Temporary Compensation, the NTCP becomes the claim-admitting document under which the Employer, Insurer and/or Administrator, becomes liable for the continuing payment of workers’ compensation benefits, being indemnity and medical, and/or only medical.

             Yes, it is a time-sensitive feature in workers’ compensation claims, with an accepted claim technically becoming a workers’ compensation claim with extensive exposure, in the absence of one of the following events occurring post-acceptance, i.e., the conversion of the NTCP into a Notice of Compensation Payable, to include the following possible claim occurrences:

 (1)            The Claimant dies, and compensation benefits terminate by operation of both death and loss;

(2)            The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;

(3)            The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;

(4)            The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

(5)            The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

(6)            The Claimant is deported by virtue of not being able to prove legal immigration status;

(7)            The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,

(8)            The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.

             So, back to IMEs.

             To address client and contact confusion over who to choose for a respective IME, with it being necessary to differentiate IMEs based upon medical specialties, we have prepared a list of our preferred IME physicians to include the following:

            All of the physicians listed above, are physicians that we have utilized in defense of workers’ compensation, and most of the above-listed physicians have been physicians which have testified on behalf of our clients in litigated workers’ compensation cases, with our having respect for every physician listed above, in terms of their specialty, the thoroughness of their Independent Medical Examination function, to include the narrative medical reports that these physicians draft post-IME, as well as their preparation for any trial depositions that might become necessary in the course of a workers’ compensation claim being litigated, and their tenacity defending their respective opinions, both findings and conclusions, in the course of being subjected to cross-examination by counsel representing Claimants, with the focus of cross-examination often turning on the IME physician indicating that they only had one opportunity to examine the Claimant, particularly in the context of a Claim Petition being defended, and/or how could the IME physician possibly conclude that the injured employee has fully recovered from a work injury, when the IME physician has only examined the Claimant on one occasion, some doctors conducting the examination and in reliance upon the history elicited from the Claimant, and any medical records that we might be able to provide to the IME physician in preparation for their IMEs.

             Obviously, we encourage you to contact us with any question that you might have with regard to any particular physician listed above, as well as any questions that you might have regarding specific medical specialties, the sometimes incongruous nature of workers’ compensation claims, as well the unreasonable evaluation sometimes placed on non-catastrophic injuries by counsel representing workers’ compensation Claimants.

                                                                                ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

             We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

             Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

HOW PERSONAL IS PERSONAL IN PENNSYLVANIA?

By

Kevin L. Connors, Esquire

            Recently, we were privileged to defend an Employer, against which a workers’ compensation claim was presented, for an Employee who was in the course of making a delivery, when the delivery truck was approached by a masked assailant, who then fired several gunshots into the rear bay of the delivery truck, avoiding aiming at a Co-Employee standing in the front of the back of the delivery truck, and aiming instead at an Employee, who then became the Claimant in the workers’ compensation case, who was standing at the back of the delivery truck trailer, with the masked assailant having made several statements, be it declarations, in the course of firing directly at the injured employee, suggesting that the attack was not work-related, but was personal in nature, resulting in the defense to the claim being raised under Pennsylvania’s “personal animus” defense, which is a defense permitted by Section 301(c)(1) which, in the course of describing what injuries are covered by the Pennsylvania Workers’ Compensation Act, included the statutory declaration “the term ‘injury arising in the course of his employment.’ as used in this article should not include an injury caused by any act of a third person intended to injure the employee because of reasons personal to “employee”, and not directed against him as an employee or because of his employment.”

            The personal animus defense in Pennsylvania, as in almost all jurisdictions, is a statutory defense that requires the employer, as opposed to the employee, carrying the burden of proving that an injury alleged by an injured employee to be within the course and scope of employment, is an injury that was caused by the personal animus, i.e., animosity, of a third party to the injured employee.

            Case in point, our firm recently successfully defended this workers’ compensation claim that involved a retail delivery employee sustaining several gunshot wounds in the course of making a delivery in a urban residential area that the injured employee claimed was a high crime area, attempting to set up the argument, for compensability, that the injured employee’s gunshot wounds, and related disability thereto, was caused by the employee being exposed to this incident in a high crime area, as opposed to the employer, our client, successfully proving, first before the Workers’ Compensation Judge, and then before Appellate body, that the injured employee’s injuries occurred because of the personal animus of a third party, who intended, in the course of the shooting incident, to wound and/or inflict bodily harm on the injured employee, and not to injure, and/or aim at a co-employee, who, when the shooting occurred, was actually closer to the shooter than the injured employee, with gunshots fired by a male unidentified third party, arriving on a bicycle, as the two employees, injured employee and co-employee, were unloading furniture for delivery to a employer customer.

            So when the unidentified assailant, presumed to be a male person, was never identified, was never found by police, with the crime itself never being solved, as to why the injured employee was “targeted”, how can the employer prove that incident was not work-related, and was caused by personal animus, such that the incident and related injuries do not fall under the umbrella of being within the course and scope of employment?

            Admittedly, these are not easy questions to answer, with it being obvious concern throughout the litigation of this workers’ compensation claim, being that the claim might ultimately be decided by a Workers’ Compensation Judge sympathetic to the fact that the injured employee was essentially gunned down while on the clock, doing a delivery, in the employer’s business interests, and otherwise not being able to contribute any significant information to the incident investigation, why it occurred, who was involved, and/or what the rationale for this incident was.

            In this particular case, the employer conducted a very thorough initial investigation, using its loss prevention specialist, to quickly interview everyone that the injured employee had worked with, as well as to interview the injured employee, prior to any formal claim for workers’ compensation benefits being asserted, and/or prior to any legal representation being secured by the injured employee.  It also involved a wider search and investigation into lifestyle issues that may have been confronting the injured employee,that may have influenced third party, girlfriends, lovers, friends, to choose a path of drastic retribution, as contrasted against the convenience of familial conversation, the brutally honest exchange of social offenses impactful on our humanity.

            And, yes, this particular claim had a multitude of factors impacting upon it influencing the decision by the employer to challenge the claim on grounds that it did not occur within the course and scope of employment, and that the injuries may have resulted from third party animosity breaching the boundaries of the course and scope of employment.

            No less true, a bigger question is how do you win the unwinnable case, when you begin with an event that seems drastic on its face, although leaking sufficient clues to point towards the events starting before the furniture delivery, coupled with the fact that the shooter aimed around a co-employee who stood closer to the shooter than the injured employee, with the assailant only aiming at the injured employee, and gutterly whispering “I am only here for the big guy”, there being very different physical attributions between the employee and the co-employee, who was not wounded in the incident, was never struck by any of the gunshots, and, after ducking for cover, was not confronted by the assailant, who continued only firing at the injured employee.

            And, yes, the claim investigation did reveal that the injured employee had talked with several co-employees, prior to the incident, that there was unsolvable tensions existing in his life, to include girlfriends, lovers, rent issues, with every potential witness being contacted, and with the witnesses presenting corroborating testimony to the Workers’ Compensation Judge, acting as factfinder, that the injured employee had personal conflicts in his life under personal conflicts in his life unrelated to his employment which, when coupled with the actual facts of the assault statement by shooter, shooter only aiming at the Claimant, than injured employee, shooter never aiming at the Co-Employee, all of which then became grounds for the Workers’ Compensation Judge to deny the compensability of the claim, a result then affirmed by the Appellate body, with both the Judge as factfinder, and the Appellate body as the Affirming Court, finding that   Pennsylvania’s “personal animus” defense did apply, that the assault, and related injuries were not injuries that occurred within the course and scope of employment, that the assault and injuries occurred as a result of a third party having personal animus towards the injured employee, a Decision which was rendered by both the fact-finding Judge and the Affirming Appellate Court as predicated upon both the statutory implication of Pennsylvania’s personal animus statute, as well as the individual facts of this particular claim and litigation.

            Yes, no doubt, this is a relatively rare case, hard to win, with it being no less true that a different Workers’ Compensation Judge may have found a different result, although our client rightly believes that this was the right decision based on the facts presented to the deciding Workers’ Compensation Judge.

            Obviously, very few workers’ compensation cases will potentially implicate compensability issues under the “personal animus” defense, although it is a defense that should be analyzed whenever there might be injuries involving interaction with third parties, particularly when the third parties have interacted with the injured employee before the alleged incident, and/or the alleged incident itself suggests third party interference, as well as potentially being a necessary evaluation when there are incidents between employees, be it horseplay, be it physical in-fighting, physical confrontations, etc.

            And then how do we, as defense law firm, representing the Employer and its Third Party Administrator, assess any credit or responsibility for the ultimate outcome of the Workers’ Compensation Decision, be it the denial of the workers’ compensation claim, beyond it being a moment of personal satisfaction, that a workers’ compensation case has been decided on the facts as applied to the legal standards, as well as the acute understanding that the outcome achieved in this particular case can only be achieved with the integration of employer investigation, Third Party Administrator continuing investigation, and support for defense recommendations made by defense counsel during the prosecution of the claim, and for all three parties, employer, administrator, and defense counsel coordinating their efforts for the benefit of the employer, to develop the necessary facts to establish a legitimate statutory defense to a claim involving irrefutable injuries.

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

SAVE THE DATE

By

Kevin L. Connors, Esquire

To All Workers’ Compensation Practitioners and Clients:

The National Workers’ Compensation Defense Network is hosting its 2019 Fall Conference in Chicago, Illinois on September 26, 2019.

The NWCDN event is open to all NWCDN member firms and their invited guests.

The NWCDN never charges its guests for attendance at its Conferences.

The all-day Conference will be conducted on September 26, 2019 at the InterContinental Chicago Magnificent Mile in Chicago, Illinois located at 505 North Michigan Avenue, Chicago, Illinois.

Attaching a copy of the NWCDN’s Save The Date for its 2019 Conference, hotel reservations can be made by calling the hotel and mentioning the NWCDN Conference at 800-628-2112.

Registration for the event can be coordinated by contacting Carol Wright at Capehart Scatchard atcwright@capehart.com.

As always, NWCDN Conferences are intended to be educational, constructive, illuminating, and just plain good fun.

Also keep in mind that the NWCDN will be hosting a Cocktail Party on Wednesday, September 25, 2019.

The NWCDN would like to thank you for attending our Conference.

The NWCDN is a network of “Many Firms, One Purpose”, with all of our firms dedicated to defending workers’ compensation claims, for the protection of their clients, employers, insurers, and third-party administrators.

Join us in Chicago to meet our members and member firms!

ConnorsO’Dell LLC

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

Dear Client:

          So, which “I” do you pick, do you check the IME box, or do you check the IRE box?

            Starting over, if you are dealing with an open workers’ compensation claim, in which liability has been accepted by the Employer/Insurer/Administrator, with either the issuance of a Notice of Compensation Payable (“NCP”), or a Notice of Temporary Compensation Payable (“NTCP”), that has “converted” to a liability-accepting NCP, under which an obligation now exists for continuous payment of workers’ compensation benefits in the form of temporary total disability benefits, required to be paid to compensate for wage loss-producing disability, and medical compensation benefits, subject to reasonableness, necessity, and causal relationship to the accepted work injury benefits will have to be paid, absent one of the following claim-resolving events occurring:

(1)               The Claimant dies, compensation benefits terminate by operation of both death and loss;

(2)               The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;

(3)               The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;

(4)               The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

(5)               The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

(6)               The Claimant is deported by virtue of not being able to prove legal immigration status;

(7)               The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,

(8)               The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.

            Present tense, workers’ compensation benefits are now being paid on the claim, and if you are interested, as an Employer, or Administrator, or as a claims representative, to resolve the claim in avoidance of lifetime liabilities that might otherwise be imposed by the Pennsylvania Workers’ Compensation Act, 77 P.S. 1, et seq., what defensive resources are at your disposal?

            Given the blatant humanitarian nature of workers’ compensation statutes, effectuating the “grand bargain”, where the employee has statutorily sacrificed the right to sue for personal injury damages, requiring proof of negligence and/or fault, in exchange for the guarantee of compensation schedules, as to wage loss benefits, and medical compensation benefits, etc., the Pennsylvania Workers’ Compensation Act, as in almost all other states in the United States, provides Employers and their Insurers and Administrators with limited resources to challenge ongoing liability for workers’ compensation benefits, typically limiting the resources to the following challenges:

·         A claim denial, requiring the injured employee to prove compensability and disability;

·         The utilization review process, to challenge the reasonableness and necessity of ongoing medical treatment for the alleged work injury;

·         The independent medical examination, allowing the Employer/Insurer to request an IME of the Claimant, allowable every six months under Section 314 of the Act, typically focused on determining an injured employee’s recovery from the work injury, be it a full recovery, permitting a challenge to the ongoing entitlement to any workers’ compensation benefits being paid on the claimant, or to a recovery sufficient enough to allow an injured employee to return to work in some restricted-duty capacity, obviously subject to restricted-duty work either being available from the time of injury Employer, or alternative restricted-duty work being available, either through a Labor Market Survey (“LMS”) and/or Earning Power Assessment (“EPA”);

·         A job offer in some capacity, offered by the time of injury Employer, after medical evidence establishes that the injured employee is capable of performing some level of work, be it pre-injury work, and/or restricted-duty work, typically regarded as modified duty work, or light-duty work;

·         The unilateral right to suspend or modify compensation benefits, if the injured employee returns to work, with the time of injury Employer, or alternatively, the injured employee finds work on their own, such that the injured employee is again earning income/wages, whether at pre-injury wage rates, resulting in a suspension of compensation benefits, although medical remains open, or at wages less than pre-injury, resulting in a modification of the wage loss benefits, dependent upon wages actually earned, with compensation benefits converting to temporary partial disability benefits, subject to a 500 week cap, in the event of conversion of temporary total disability benefits to temporary partial disability benefits;

·         The Impairment Rating Evaluation, utilizing AMA Guides to determine the whole person impairment rating, limited to the accepted work injury, of an injured employee who has received 104 weeks of temporary total disability benefits, often resulting in litigation over the “conversion” from temporary total to temporary partial disability benefits.

            Historically, Pennsylvania has always been a form-intensive, wage-loss disability state, with the IRE concept first being introduced into the statute as a result of statutory reforms in 1996, initially establishing an impairment rating threshold, for conversion purposes, of any impairment less than 50% of the whole person, with that threshold reduced, in 2018, to a statutory threshold of 35%.

            We know, what the heck?

            So, when do you employ the IME versus the IRE?

            Obviously, the IME is your initial resource in defending the claim, as it can be requested, either in defense of a claim or claimant-filed petition, and/or it can be requested in an accepted claim, where benefits are being paid, with IMEs being allowed every 6 months, for purposes of determining an injured employee’s ability to return to work, and recovery from the accepted work injury.

            In the above context, the IME almost always occurs before the IRE, and the claim may likely be the beneficiary of multiple IMEs, before the IRE question even arises.

            If there has been no change in benefit status, meaning that there is no IME evidence of a full recovery, to include no IME medical evidence of a claimant being able to return to available work, whether actual or fictional, excusing the linguistic license, as fictional is either the, LMS, or EPA, still requiring acceptance and adoption by mostly claimant-oriented Workers’ Compensation Judges, for purposes of suspending or modifying compensation benefits, then the IRE is a useful resource for determining if the Employer/Insurer/Administrator has a basis for seeking conversion of the injured employee’s compensation benefits from total to partial disability, potentially resulting in the partial disability benefits being capped at the 500 week statutory limit.

            However, there are some claims where you, as claim-bending claims representative, have an IME of full recovery, or it establishes the basis for either actual or fictional work, and the issue of challenging  the claimant’s compensation benefit status involves some form of defense petition, either a termination, predicated on a full recovery medical opinion, or a suspension or modification, based upon medical evidence of the ability to perform less than pre-injury work, and you have paid 104 weeks of temporary total disability benefits, potentially entitling you to request an IRE with the focused purpose of converting total disability to partial disability, then you have to ask yourself, “do I feel lucky, well do you?”

            Before you throw all your claims muscle against the IRE box the question arises as to how Workers’ Compensation Judges balance an IME medical opinion of a full recovery against an IRE medical opinion establishing some percentage of impairment for an accepted work-related injury?

            Since there are very few IREs that come back with a 0% impairment rating determination, essentially because it is extremely difficult to secure a 0% impairment rating in reliance upon the AMA Guides to impairment rating, absent an injured employee being in better physical shape and health than they were pre-injury, and that in 30 years of defending workers’ compensation claims, we have never witnessed such an occurrence, then the potential exists that the IRE establishing any impairment percentage, can potentially undermine a Workers’ Compensation Judge’s assessment as to the merits of medical evidence, through the IME medical report and IME’s doctor’s deposition that the injured employee has, in fact, fully recovered from the accepted work injury, the obvious footnote being that Termination Petitions, are rarely granted by Workers’ Compensation Judges, as the Termination Petition burden of proof is regarded as perhaps the highest burden of proof required for any petition under the Pennsylvania Workers’ Compensation Act, begging the question as to the next of requesting the IRE?

            Prove us wrong?

            So, back to that “do you feel lucky?” question the truth is, that it is probably a 100% guarantee that an IRE establishing any percentage of impairment while a defense petition is being litigated on an IME medical basis, will result in a denial and dismissal of the Employer-filed petition, as Workers’ Compensation Judges view the examination conflict, between an IME and an IRE, as a claim-defeating imbalance.

            Keep in mind, given the humanitarian nature of workers’ compensation statutes, as well as general claimant-inflected orientation unanimously maintained by Workers’ Compensation Judges they, however noble or not, are looking for ways to find weaknesses in Employer-filed petitions, begging the question of why make it easy for them?

            Perhaps the better recommendation, is to continue aggressively pursuing the termination, or other Employer-filed petition, while filing your Request for Designation of an IRE Physician, for purposes of being bound by the IRE physician designation requesting, for potential future conversion of the claimant’s compensation benefits from total to partial disability.

            And the only reason why we did not say that at the outset of this missive, is that we really love commas, as well as conclusions.

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

         So you are an Employer, by definition under most workers’ compensation statutes a “master”, with your employees, likewise being designated as “servants”, to fuel the pecuniary fiefdom that you propagate.

              Yes, in business, for profit, with associated overhead for business expenses, to include payroll, benefits, yadda, yadda.

            Of course, for your protection, or for that of whatever corporation you have designed and constructed, you have procured the necessary insurance coverages, to include coverage for general liability purposes, potentially meaning whatever, obviously subject to contractual interpretations, as well as, of course, workers’ compensation insurance coverage, in order that your company is not personally or corporately liable for injuries sustained by employees in the course and scope of their employment, in the course of which they are expected to be performing associated tasks commensurate with your business or your corporation.

            You have to ask yourself is every allegedly employee-sustained injury covered by workers’ compensation statutes, and, by extension, workers’ compensation insurance coverage, requiring a threshold analysis as to whether the alleged injury has occurred within the four corners of what we consider the course and scope of employment.

            And the answer is, sometimes yes, as well as sometimes no, beyond obviously working with your broker, your insurance carrier, and either in-house or extraneous counsel.

            Let’s begin with some basics.

            Workers’ compensation statutes have been in place since a horrific accident in New York in 1911, the Triangle Shirtwaist Fire, resulting in 146 workers dying when trapped in a burning factory, with Pennsylvania’s workers’ compensation statute being enacted in 1915, and then evolving over several structural and procedural reforms, the last of which were in the 1990s, reforming indemnity (wage loss) and medical compensation benefits. 

            Having survived reforms, both positive and negative for Employers and insurance carriers, the purpose of workers’ compensation statutes is obviously humanitarian, as well as to act both as a safety net for injured employees, and to serve as a “grand bargain”, for businesses, Employers, and by extension, insurance carriers, as the exchange is that employees surrender their right to sue for civil or personal injury damages, with Employers being given the certainty of scheduled losses for both wage loss and medical benefits.

            So when does the analysis of “course and scope of employment” begin?

            Well, typically, at the first report of injury, as the Employer, and its insurer gather information regarding the claim, with the following considerations being necessary to implicate the occurrence of a work-related injury, resulting in wage loss disabling injuries, to include:

·         An employer/employee relationship;

·         A work-related injury occurring within the course and scope of employment;

·         That the work-related injury was not caused by non-work-related factors;

·         That the work-related injury has resulted in the Claimant being disabled from being able to perform either pre-injury work, or available modified-duty work;

·         That the Claimant is not impeachable on other grounds, to include fraud or dishonesty;

·         That the Claimant has not refused or failed to return to work; and,

·         That the Claimant is not fully recovered from the alleged work injury.

            Sounds simple enough.

            If it were that simple, no one would be reading this.

            Case in point, being one recently defended by our firm, involving an employee showing up for work early, routinely doing so until one day when the employee claimed an injury, while not actually performing any work for the Employer, and not even being scheduled to work at that time.

            From the Claimant perspective, the argument is, well, I was at work, so it must be work-related.  If that were all that there was to it, with the self-insured or insured, somebody might be writing that employee a check, and paying medical bills.

            It not only does not work like that, it is not supposed to work like that, and it should not work like that.

            It should require an injury occurring while an employee is actually performing work or services for the Employer that causes or contributes to a physical, psychological, or occupational injury disabling the employee from being able to continue performing that work or service, at which point, logically, there should be mechanisms and procedures to protect both employee and Employer from the potential liability imposed.

            Merely being present at a work location does not mean that you are actually working, and should not mean that you are, therefore, entitled to compensation for an accident resulting in injury.

            The caveat to that storyline is that there might well be other liabilities that the Employer is sensitive to incurring, particularly potential liability for personal injury damages, not subject to a schedule, or to any dollar limitation, although obviously requiring evidence of negligence, fault, and cause.

            So if the employee is injured when not scheduled to work, is not actually performing any work, is not scheduled to be paid when allegedly injured, does the employee have a right to workers’ compensation benefits, and/or is the Employer liable under comp law?

            Well, it depends upon what the meaning of “work” is!

            In our view, popular or not, although legally sound, is that, no, the employee is not working, and that the injury is, therefore, not compensable under workers’ compensation law, with there being zero guarantee that the allegedly injured employee will accept the logic of our analysis, particularly when counseled by representation vested in the contingent fee recovery that necessarily requires the employee to pursue and recover compensation benefits.  Absent other considerations, we would recommend a vigorous defense calculated on denying and dismissing the injury claim.

            Concern about liabilities not subject to a schedule or statute might actually result in Employers considering acceptance of an otherwise non-work related injury, in avoidance of potential personal injury liability.

            We get it, that makes business sense, as hard as it is to swallow such a bitter pill.

            Anyone actually following this?

            The point being that the mere fact that someone is an employee, that you are an Employer, and that your employee is claiming injury, does not, in and of itself, mean that the alleged injury is either work-related, and/or has occurred within the course and scope of employment.

            Seems logical, although logic is not always the predicate for making decisions regarding claim disposition and resolution.

            And if looking for the easy answer, it is not within reach.

            And so what do we do?

            Well, we serve, we protect, we defend, and we seek out and expose claim-defying facts to insulate your company, your business, your commercial purpose from liability.

            Trust us; we completely understand how important business continuity and risk management is to a successful company, corporation, place of employment, as well as the practical exercise in the power of work, and experience. 

            We do this with grace, dignity, respect, and the utmost professionalism.

            And, no less importantly, we do it because it needs doing!

            So if in need of defense counsel in Pennsylvania, you know who to call!

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

                      NWCDN POLL ON EMPLOYER SET-OFFS AND LIEN RECOVERY RIGHT 

By

Kevin L. Connors, Esquire

     As the Pennsylvania Member Firm for the National Workers’ Compensation Defense Counsel Network, our Group, from time to time, provides national guidance to Employers, Insurers, and Third-Party Administrators, regarding how different states and jurisdictions deal with issues specific to the administration of workers’ compensation claims.

            Recently, the NWCDN was asked by a client to poll its State Members, concerning Employer Set-Off, for alternative disability benefit sources, to include short-term disability benefits, long-term disability benefits, severance benefits, and unemployment compensation benefits.

            Since some of you might be handling jurisdiction outside the four corners of Pennsylvania state lines, we are providing the NWCDN’s national service of how individual states deal with these issues.

            Should you have questions about any individual state, please do not hesitate to contact us, as we can then serve as a conduit to connect you with a Member State’s defense counsel, as all Member State Firms maintain A+ rating with Martindale-Hubbell, as well as maintaining requisite certifications in individual states to specialize as workers’ compensation attorneys. 

            The Honor is Ours!

ConnorsO’Dell LLC 

Trust us, we just get it!  It is trust well spent! 

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.