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THE MOST IMPORTANT 2011/2012 RULINGS BY
PENNSYLVANIA COURTS ON WORKERS’ COMPENSATION ISSUES
By: Jeffrey D. Snyder
I. Pennsylvania Supreme Court:
Supersedeas Fund reimbursement; medical expense:
Dept. of Labor & Industry v. WCAB (Crawford), 23 A.3d 511 (Pa., 2011)
Supersedeas Fund reimbursement of medical expense will be based on the date of the presentation of an invoice for medical services (implied to have been presented in due course), not the date of service. This case further suggests that supersedeas may be granted as to past medical expense, following the reasoning ofMark v. WCAB (McCurdy), 894 A.2d 229 (Pa. Cmnwlth., 2006)which held that a retroactive payment made after a denial of supersedeas (there in satisfaction of a granted claim) is reimbursable by the Supersedeas Fund. Note that the Commonwealth Court has separately concluded that the Fund isnot liable for reimbursement of funds owed a petitioner by a third party (in that case an employer was exonerated in favor of another, joined, employer).GMS Mine Repair & Maintenance, Inc., No. 92 C. D. 2011 (Pa. Cmnwlth.)
Statutory Notice; sufficiency:
Gentex Corp. v. WCAB (Morack), 23 A. 3d 528 (Pa., 2011)
The time, place and manner notice requirements of the Act are to be liberally construed from the totality of the circumstances. The admitted deficiency in notice here was the description/diagnosis of the injury, omitted by that claimant from her voicemail to the employer – a voicemail which merely indicated “work-related problems”. The Court considered this notice to be sufficient under its perceived mandated liberal interpretation to satisfy section 312 of the Act, which per the Court requires a “fact intensive inquiry”.
Employer provided Uninsured/Underinsured (UM/UIM); coverage exclusion:
Heller v. Pennsylvania League of Cities & Municipalities, No. 16 WAP 2009 (Pa., 2011)
Employer provided UIM coverage may not exclude from that coverage an employee entitled to workers’ compensation benefits since employees in the course of employment are the expected UIM claimants under the policy and therefore that exclusion would render the UIM coverage illusory.
In a case decided at about the same time, the Court held that an employee’s personal UM coverage would not extend to a work vehicle if the personal policy has such an exclusion (a ‘regular use’ clause). Williams v. GEICO, 2011 WL 4953433 (Pa., 2011)
Statutory employment; owner of personal property:
Six L’s Packing Co. v. WCAB (Williamson), 2012 Pa. LEXIS 1238
In a case with coverage overtones, the Supreme Court held that an owner of personal property (i.e., a trailer) can be a statutory employer as to an entity with which it contracts for work that is a regular or recurrent part of the declared statutory employer’s business. Control of premises is not required under this framework for a finding of statutory employer. It is important to note that Six L’s did not have the Uninsured Employer Guaranty Fund (UEGF) as a party in the case. Questions may arise as to whether the UEGF is primary to any statutory employer for liability purposes.
Specific loss; average weekly wage (AWW) for specific loss purposes is AWW at time of resolution into specific loss - even where claimant is working at that time for a new employer:
Lancaster General Hospital v. WCAB (Weber-Brown), No. 69 MAP 2010 (4/11)
The claimant sustained an eye injury while earning $8.00 an hour at the Hospital. She had episodic flare-ups which treated and resolved. After she began working for Heart Group - at $21.00 an hour – she experienced a flare-up which did not resolve. A corneal implant then failed, and the claimant was left with loss of vision constituting specific loss. The Court held that the date of a specific loss is when a doctor tells the patient that there has been a loss of use for all practical intents and purposes that is work related, even if that means using wages from a new employer for the calculation of AWW. The Court reasoned that Section 309 of the Act, while referring to ‘employers’, was not specifically referring to any particular employer. The Court also noted that wages earned from other employers are utilized in other contexts, for example in the calculation of seasonal employment AWW.
II. Pennsylvania Commonwealth Court:
A. Burden of proof cases:
Challenge to relatedness of medical expense involving recognized body part; employer’s obligation to file Petition to Review:
CVA, Inc. v. WCAB (Riley), No. 2658 C. D. 2010 (10/11)
This case involves TMR (magnetic) treatment disputed as unrelated to the work injury. The Court indicates that in such a circumstance the employer is obligated to file a Petition to Review (treatment was to same body part as listed on NCP).
On another point, the Court followed prior case law stating that where a case proceeds on medical report, the medical report(s) must be signed. [by the provider]. Montgomery Tank Lines v. WCAB (Humphries), 792 A.2d 6 (Pa. Cmnwlth., 2002)
Maximum Medical Improvement (MMI) for Impairment Rating Evaluation (IRE) purposes is date specific:
Westmoreland Regional Hospital v. WCAB (Pickford), No. 1188 C. D. 2009 (9/11)
An IRE rating is not invalidated (i.e., the MMI assessment is unaffected) by a claimant demonstrating a change in condition over time. There were no objective signs of the work injury, Reflex Sympathetic Dystrophy,at the time of the IRE. The lack of objective findings was consistent with a progress note of the treating physician for a visit the day before the IRE which also reflected no objective findings.
Job availability; required where a claimant is receiving a disability pension (rather than regular retirement) even where claimant is admittedly not actively seeking employment:
City of Pittsburgh v. WCAB (Marinack), No. 100 C. D. 2011 (1/12)
The claimant sustained orthopedic and psychological injuries and was released to work with restrictions some four years later. He had been turned down for a disability pension because he was discharged from employment for cause, and for the same reason was not eligible for a retirement pension. He did apply for two jobs, and there were several visits to the Office of Vocational Services. The Court ruled that without an admission of retirement or the receipt of a retirement pension, the employer had the burden of proof to establish available work, for example through an Earning Power Assessment. “Accordingly, it was employer’s burden to show that it assisted claimant in returning to the work force, and it did not present such evidence.”
Discharge from employment for cause; entitlement to wage loss benefits on a Claim Petition:
BJ’s Wholesale Club v. WCAB (Pearson), No. 2010 C. D. 2011 (3/12)
The employer had a substance abuse policy which allowed up to termination of employment for being under the influence of alcohol while working. The claimant, asserting a work related injury after a customer ran over her foot with a shopping cart, was provided with suitable work. Her Claim Petition sought wage loss benefits from the date of her termination from employment which followed a .108 blood alcohol result. She was not visibly intoxicated, but there was medical testimony accepted as credible that at .108 she was under the influence, mirroring the language contained in the employer’s substance abuse policy. The Court held that the discharge for cause barred wage loss benefits, with the burden of establishing a causal link between wage loss and the work injury on a Claim Petition belonging to the claimant.
Fatal Claim; burden of proof; not relaxed:
Werner v. WCAB (Greenleaf Service Corporation), No. 25 C. D. 2011 (4/11)
Here, the issue was course of employment for a decedent with a home office. The decedent was found unresponsive in his home office, after perhaps being injured falling outside his home where blood was found. The widow/claimant could not establish what the decedent was doing while injured. The record was unclear as to cause, location and time of the injury. The dissent argued that a home office should be treated the same as an employer’s premises and that minor deviation did not break course of employment.
Accidental fatal drug overdose; drugs prescribed for the work injury; Utilization Review:
J. D. Landscaping v. WCAB (Heffernan), No. 1866 C. D. 2010 (10/11)
Decedent accidentally overdosed on medication prescribed by the sister/doctor of his treating physician. Two days prior to the prescriptions by the sister, the same prescriptions by brother were found not reasonable or necessary by Utilization Review (UR). The employer argued that because the prescriptions were not reasonable or necessary – further arguing that the UR should extend to the sister – it should not be liable for the resulting effect – death – from ingesting the prescriptions. The Court defined the claimant’s burden as establishing that the decedent died as the result of medical treatment for the work injury. The Court cited to multiple cases standing for the proposition that the issue of causation is separate and distinct from the reasonableness and necessity of medical treatment. The Court explicitly considered the UR Determination irrelevant to the discussion.
Disfigurement award; unsightliness:
Walker v. WCAB (Health Consultants), No. 492 C. D. 2011 (2/12)
A claimant must establish that otherwise compensable scarring is unsightly as a prerequisite to an Award for disfigurement. Here, the claimant had scars on her nose, and the tip of her nose was crooked following two surgeries. The WCAB reversed the WCJ’s Award after viewing the scarring itself, finding that the crookedness was not unsightly. The Commonwealth Court no longer independently views disfigurement, and deferred to the viewing by the WCAB.
Withdrawal from the labor force; receipt of Social Security disability and ability to engage in substantial gainful activity:
Burks v. WCAB (City of Pittsburgh), No. 980 C. D. 2011 (11/11)
“We agree with employer that, because claimant sought a disability pension that was based on her inability to engage in substantial gainful activity and because claimant’s work injury did not prevent claimant from engaging in substantial gainful activity, claimant voluntarily withdrew from the workforce.”
In footnote, the Court commented that it would be pointless to require an employer to establish job availability where a claimant has removed himself from the workforce. It appears important to the Court’s reasoning that the work related condition resulted in a light category work release while the non-work related conditions translated into a sedentary category release, thus establishing, overall, some residual work capacity trumped by the claimant’s implied admission of withdraw based on seeking the disability pension.
Funded employment; treated no differently than any other employment for a claimant seeking to reinstate within three years of date of last payment of partial wage loss benefits:
Sladisky v. WCAB (Allegheny Ludlum Corp.), No 67 C. D. 2011 (11/11)
The claimant was receiving partial wage loss benefits in funded employment. The funding ended when the claimant received 500 weeks of those partial benefits. The Court held that the claimant’s burden of proof on his post 500 week Petition was to show a worsening of condition to the extent of establishing the inability to do the light/funded employment. The claimant retired, and as such could not work in the employer’s Union facility, hence the funded employment elsewhere. The claimant agreed that but for the lack of funding and layoff, he would have continued working at the funded employment, thus defeating his burden of proof.
For filings within 500 weeks, the burden is to show that the job is no longer
available. The Court: “Simply, there is nothing untoward about funded employment. It is a legitimate way to bring an injured claimant back to work and reduce his disability from total to partial.”
B. Supersedeas Fund reimbursement case
Supersedeas Fund reimbursement; availablity on a Petition to Review to set aside a Notice of Compensation Payable based on concealed medical history:
Comcast Corporation v. WCAB (Jones), No. 2208 C. D. 2010 (11/11)
Overruling almost a quarter century of precedent, the Court held that Supersedeas Fund reimbursement is available in any case where a Notice of Compensation Payable (NCP) is set aside on the basis of a concealed medical history (and should probably be interpreted expansively) since the statutory language provides that reimbursement is available “in any case”. The Court rejected prior precedent that relied on reasoning suggesting that benefits are due and payable under a NCP until it is actually stricken, pointing out that benefits payable under an open but later stricken NCP in general are no different than benefits paid under an open NCP while asserting a change in status (i.e., termination, suspension or modification) and should be treated no differently for reimbursement purposes.
C. Enforcement cases
General Release of employment claim; obtained in connection with the Compromise and Release of a Workers’ Compensation case:
Miller v. Tyco Electronics, Ltd., 2011 U. S. Dist. LEXIS 135037 (M.D. Pa. 2011)
The claimant signed a General Release in connection with the resolution of her workers; compensation case, releasing her employment claim being investigated by the Pennsylvania Human Relations Commission (PHRC). The PHRC later issued a no cause letter, after which the claimant filed suit. The Court held that the suit was not released since the Release was unclear as to whether it was releasing the PHRC investigation based claim or the resulting suit which followed the no cause letter. The Court considered the claimant’s limited education, limited time to consider the matter (15 minutes before the workers’ compensation hearing) and lack of separate consideration for the Release.
Resignation of employment; obtained in connection with Compromise and Release Agreement:
Lee v. Unemployment Compensation Board of Review, No. 2085 C. D. 2010 (1/11)
In short: “Finding these [discussed] cases persuasive, we adopt their rationale. Accordingly, we hold that when a claimant agrees to execute a resignation/release in order to settle a workers’ compensation claim, the claimant terminates her employment voluntarily without necessitous and compelling cause.”
D. Limitation cases
Petition to Reinstate from a Suspension filed more than 500 weeks after suspension; time barred; statute of repose:
Palaschak v. WCAB (US Airways), No. 1699 C. D. 2010 (6/11)
The claimant was injured in 1992. Benefits were suspended on February 5, 1996. The claimant filed a Petition to Reinstate on April 21, 2006. The claimant argued that he was not time barred in seeking total benefits, in that he should have three years from the provision of modified work to file a claim for benefits. The employer argued that the time limit was 500 weeks form the date of last payment, and that argument prevailed. The Court relied on section 413 (a) of the Act. The Court emphasized that the applicable period was not 500 weeks plus three years, distinguishing the receipt of partial wage loss benefits which is then subject to a three year statute of limitation. The Court further noted that the 500 week limitation was a statute of repose, meaning that the right and the remedy are both extinguished when the limitation period expires. Two Judges dissented.
Another recent case notes that the expiration of a statute of repose deprives a Court of jurisdiction. (Cozzone v. WCAB (Pa. Municipal/East Goshen Township), No. 664 C. D. 2011 (1/12))
III. Pennsylvania Superior Court:
Scope of privilege; communication with expert by counsel:
Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super., 11/11)
Written communications between counsel and an expert containing posited mental impressions or legal analyses are protected by privilege and need not be produced in discovery.
Questions that might arise in the context of workers’ compensation claims can be directed to:
Kevin L. Connors at email@example.com (Phone: 610-524-2100 Ext. 112).