NWCDN

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.

NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.

Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.

Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.

Pennsylvania

RULIS & BOCHICCHIO, LLC

Our Website

(412) 566-1717

(412) 904-5021

05-Aug-2019: CONFLICTING I’S, IME VERSUS IRE IN PENNSYLVANIA By Kevin L. Connors, Esquire
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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.

05-Aug-2019: IS IT WORK-RELATED? By Kevin L. Connors, Esquire
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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!

22-Mar-2019: By:Kevin L. Connors, Esq. NWCDN POLL ON EMPLOYER SET-OFFS AND LIEN RECOVERY RIGHTS
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NWCDN POLL ON EMPLOYER SET-OFFS AND LIEN RECOVERY RIGHT

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!

13-Feb-2019: By Kevin L. Connors DATING A NTCP IN PENNSYLVANIA
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DATING A NTCP IN PENNSYLVANIA

Kevin L. Connors, Esquire

Dear Client:

First, for those not living and administering workers’ compensation claims in Pennsylvania, a Notice of Temporary Compensation Payable (NTCP) is what we regard, under our Pennsylvania Workers’ Compensation Act, and the Bureau of Workers’ Compensation’s Regulations, as an administrative and procedural device legislated by the General Assembly under reforms enacted in 1996, under Act 57, with the form being increasing utilized by employers, insurers, and third-party administrators, to initially administrate workers’ compensation claims, through an initial ninety (90) day post-injury phase, during which the employer and/or insurer has an election to make, being whether the workers’ compensation is formally accepted, with the issuance of what we call our Notice of Compensation Payable, essentially a compensation judgment against the employer and insurer, entitling the injured employee to continue to receive workers’ compensation benefits in the form of both indemnity compensation benefits, for wage loss, as well as medical compensation benefits, for medical treatment related to accepted work injuries, while the NTCP has increasingly been favored by employers and insurers for utilization to postpone formal acceptance of the workers’ compensation claim as being compensable and work-related, until the employer and insurer can complete its investigation beyond the initial twenty-one (21) day period that the Act had previously required employers/insurers to engage in their initial investigation, to determine whether the claim would be accepted or denied, acceptance requiring issuance of the Notice of Compensation Payable, denial requiring the issuance of Notice of Compensation Denial.

In 1996, a new administrative tool was added to our compensation toolbox, being the Notice of Temporary Compensation Payable (NTCP), which initially had a shorter lifespan after enactment in 1996, but now has a lifespan of ninety (90) days from date of disability to end date, upon with the NTCP expires, and either converts, or is withdrawn by the employer/insurer, in which case the employer/insurer is allowed under our Act, to deny the workers’ compensation claim as being compensable and work-related, and also authorizes the employer and insurer to stop the payment of temporary compensation benefits.

The key to the NTCP is that it was not intended to constitute a formal acceptance of the workers’ compensation claim as compensable and work-related, to allow the employer and insurer to have greater flexibility in terms of their initial investigation into the compensability of a claim, as well as to allow the employer and insurer to investigate the factual and medical issues that drive compensability issues, classically being the following factors in terms of whether a claim is or is not compensable under our Workers’ Compensation Laws, 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;

13-Feb-2019: DATING A NTCP IN PENNSYLVANIA
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31-Oct-2018: By: Kevin L. Connors, Esq. BADDA-BING: RE-BOOK YOUR IREs IN PENNSYLVANIA
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BADDA-BING: RE-BOOK YOUR IREs IN PENNSYLVANIA

By Kevin L. Connors, Esquire

Okay, the tag line is from Choice Hotels’ Badda-Bing television ad campaign.

A total distraction!

Check it out, Pennsylvania is in the process of reinstating Impairment Rating Evaluations, eviscerated in 2017 by the Pennsylvania Supreme Court’s landmark Decision inProtz v. WCAB (Derry Area School District), decided on June 20, 2017.

The evisceration of IREs under Act 57 by the Pennsylvania Supreme Court cast a dark shadow over Pennsylvania Workers’ Compensation claims, as IREs had been utilized by Employers, Insurers, and Third-Party Administrators, as a backstop against temporary total disability claims being “lifetime” claims in Pennsylvania, the paradigm being that once a workers’ compensation claim is accepted as compensable and work-related, and a Claimant begins receiving workers’ compensation benefits, whether through litigating a Petition for compensation benefits, and/or after the acceptance of a claim as compensable and work-related, resulting in claims conceptually being regarded as “lifetime” claims, absent one of the following occurring:

The Claimant dies, and compensation benefits terminate by operation of both death and loss;
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;
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;
The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
The Claimant is deported by virtue of not being able to prove legal immigration status;
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,
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.

In 1996, the Pennsylvania General Assembly had enacted a landmark reform to the Pennsylvania Workers’ Compensation Act, incorporating a provision that would allow Employers, Insurers, Third-Party Administrators to utilize an Impairment Rating Evaluation as a means to determine if a Claimant receiving temporary total disability benefits, had an Impairment Rating of less than 50%, in which case the Claimant’s temporarytotal disability benefits, could be converted/modified to temporary partial disability benefits, which, by their very definition under Section 306(b) of the WCA, meant that the Claimant could only receive 500 weeks of the temporary partial disability benefits, as opposed to temporary total disability benefits never ending, absent death, full recovery, a return-to-work, a settlement of the workers’ compensation claim under a Compromise and Release Agreement, or a Claimant waiving the right to continue receiving “lifetime” benefits, the same having never occurred since 1996.

In 2017, the Pennsylvania Supreme Court ruled in Protz that the Act 57 provisions regarding Impairment Rating Evaluations was “unconstitutional,” as it transferred constitutional authority over Impairment Ratings from the legislature, to the AMA’s Guides for Evaluation of Impairment Ratings, with the Guides, of course, being revised, with Act 57 having used the 4th Edition, and the more recent Edition being the 6th Edition, with the Pennsylvania Supreme Court, in its infinite judicial wisdom, determining that that transference of jurisdictional authority was unconstitutional, resulting in IREs becoming unusable as a mechanism for managing the exposures created by workers’ compensation claims in Pennsylvania, with the pre-Act 57 models and mechanisms for managing exposures associated with workers’ compensation claims, reverting back to traditional practices, being Independent Medical Examinations establishing full recovery, often times given judicial indifference by Workers’ Compensation Judges deciding Employer-filed Termination Petitions in reliance upon Independent Medical Examinations with board-certified physicians testifying to full recovery opinions, against which Claimants will testify that they not only do not feel that they are fully recovered from their work injuries, but do not feel as though they can return to any level of work, and the other option being some type of alternative employment, either light-duty with the injury Employer, or alternative job availability, subject to a magical matrix of medical restrictions and pigeon-holed job descriptions, again being subject to microscopic inspection by Workers’ Compensation Judges, with the general consensus being that job availability was more useful for settlement valuations, than for actual return-to-works.

Post-Protz, confusion descended upon the workers’ compensation marketplace in Pennsylvania, with an IRE model that had been in place and working for 21 years being shredded by one Decision, with no alternative options being provided by the Supreme Court as to how Employers could manage open-ended liabilities under the Pennsylvania Workers’ Compensation Act, when Employees have either accepted injuries or judicially-approved injuries, although still seemingly having some capacity for working, but having no actual incentive for doing so, as our Act is not structured to facilitate and encourage return-to-work scenarios, instead being unintentionally structured to perpetuate the shelf life of workers’ compensation claims as opposed to actually being interested in rehabilitation, being it medical and/or vocational.

Badda-Bing!

Several days ago, on October 24, 2018, Governor Wolf, seeking re-election on November 6, 2018, signed into law Act 111 of 2018, re-establishing the Impairment Rating Evaluation process in Pennsylvania, although this IRE process will be significantly different than the pre-Protz IRE provisions and procedures, as IREs will now need to be performed under the 6th Edition of the AMA’s Guides to Evaluation of Permanent Impairment, and the new IRE provisions under Act 111 will set athreshold for the presumption of total disability at 35%, as opposed to the pre-Protz presumption of total disability at or above 50%.

Since Act 111 is being immediately implemented into Pennsylvania’s Workers’ Compensation scheme, the Department of Labor and Industry, through the Bureau of Workers’ Compensation (Bureau) is re-activating the IRE functionality in its EDI platform, WCAIS, and it will resume authorization and designation of IRE physicians, to allow the performance of IREs pursuant to the regulations set forth in Act 111.

Seeking administrative consistency, it is anticipated that the process will track the pre-existing procedure on the regulatory framework in existence prior toProtz, to the extent and manner consistent with the newly-enacted provisions of Act 111.

Before exchanging high-fives, it should be noted that this functionality is still under review by the Bureau, as it updates its WCAIS screens and forms, with the Bureau ultimately needing to amend its regulations, to accurately reflect the new IRE provisions and requirements under Act 111.

Until those changes have been implemented, some screens and forms generated by the Bureau, regarding the IRE process, might still contain erroneous language, referencing the repealed language and requirements of the eviscerated Section 306(a.2), such as the reference in that statutory provision to “the most recent Edition” of the AMA Guides, and/or to any reference to a 50% threshold as being the controlling template for total disability consideration.

Notwithstanding any language to the contrary that might temporarily be found on either WCAIS screens, or Bureau forms, as well as any regulations previously utilized by the Bureau for IREs, it is anticipated that all IREs must be conducted and determined consistent with and pursuant to the new statutory requirements set forth in Act 111, during this transition, bridging the gap fromProtz eviscerating IREs to IREs being resurrected by Governor Wolf in a modified paradigm.

Deep breath!

Obviously, Act 111 is a compromise achieved by the diligence and energy of the insurance industry, to facilitate Employers having a mechanism for converting temporary total disability claims, not subject to any statutory cap, to temporary partial disability benefit claims, triggering the 500 week statutory gap under Section 306(b) of the Act.

It was a statutory framework resisted by the Claimant’s Bar, which relished the entombment of IREs underProtz, as the perception was that workers’ compensation claims had a greater value for settlement purposes, without IREs, as opposed to with IREs.

Yes, the vast majority of workers’ compensation claims will likely never involve IREs, as the injuries will not warrant that type of consideration, but for those claims that become more manageable with an IRE backstop, the IRE process has been, and will continue to be so, an invaluable instrument for Employers, Insurers and Third-Party Administrators seeking closure of open workers’ compensation claims in Pennsylvania.

While the total disability threshold has dropped from 50% to 35%, and only the 6th Edition of the AMA Guides are relevant for IRE purposes, let us not forget that the IRE is only accessible after a Claimant has received 104 weeks of temporary total disability benefits, and after the Claimant has reached maximum medical improvement, which still might require that an Independent Medical Examination be coordinated prior to an IRE, to secure a medical opinion of maximum medical improvement, prior to the IRE being implemented for conversion of total to partial disability.

Obviously, we encourage you to contact us with any questions you might have regarding the resurrection of IREs in Pennsylvania.

ConnorsO’Dell LLC

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

11-Oct-2018: By Lisa A. Miller, Esq. COMMONWEALTH COURT ISSUES ITS 2ND DECISION POST-PROTZ
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THE COMMONWEALTH COURT ISSUES ITS

SECOND DECISION POST-PROTZ

By Lisa A. Miller, Esquire

On June 6, 2018, the Commonwealth Court circulated a Decision in Whitfield v. WCAB (Tenet Health System Hahnemann LLC), Pa. Cmwlth., June 6, 2018.

The Commonwealth Court has published its second Decision addressing the Supreme Court’s holding inProtz regarding the retroactivity of the Impairment Rating Evaluations.

The facts of the case were not in dispute. On March 25, 2002, the Claimant suffered a work-injury that required her to undergo lower back surgery. From March 25, 2002, until September 28, 2002, the Claimant received partial disability benefits for the time period in which she performed alternative work.

The Claimant’s temporary total disability benefits began on September 29, 2002, the day before her lower back surgery.

On June 13, 2006, Dr. Brody performed an IRE under the Fifth Edition of the AMA Guides to permanent impairment. Dr. Brody concluded that the Claimant had an impairment rating of forty-four percent (44%).

Based upon the IRE, the WCJ modified Claimant’s disability status from total to partial disability as of the date of the IRE.

The Appeal Board affirmed the modification of the Claimant’s benefits by Order on June 1, 2009.

The parties stipulated that the Claimant did not raise the constitutionality of the IRE before the original WCJ, or the Board.

Although the Claimant’s disability status was modified from total to partial, because she was not able to return to work following her surgery, the Claimant received workers’ compensation benefits at the temporary total disability rate from September 29, 2002, until mid-July 2015. She testified that she continued to receive medical benefits.

On November 13, 2015, about one month after the Commonwealth Court’s Decision inProtz I, the Claimant filed a Petition for Reinstatement to total disability based upon the Commonwealth Court’s Decision inProtz I, holding that the Fifth and Sixth Editions were unconstitutional.

At the Hearings on the Reinstatement Petition, the Claimant testified that she did not feel as though she had fully recovered from her injuries, and that she had been unable to work from the time of her surgery through July 15, 2015. There was some contradictory evidence that the Claimant was involved in a motor vehicle accident in May 2012, in which she injured her head, neck, and upper back, but not her lower back.

The Judge issued an Order denying the Claimant’s Reinstatement Petition. The Judge found that Claimant was not entitled to a reinstatement of her benefits based uponProtz I for a number of reasons:

(a) In Protz (I), the Commonwealth Court did not expressly void all prior [IREs] or state that its Decision applied retroactively;

(b) In Pennsylvania, generally only those matters that are pending in any phase of litigation, including Appeal or future matters, are entitled to a benefit in the change of the law, and the litigation in the instant matter ended on June 1, 2009; [and]

The WCJ cited Winchilla v. WCAB (Nextar Broadcasting), 126 A.3d (Pa. Cmwlth. 2016), for the proposition that the Claimant waived the constitutionality argument by not raising it previously. Because of the Judge’s Decision, the WCJ did not make a finding regarding the Claimant’s credibility.

The Claimant filed an Appeal of the WCJ Decision, and the Board affirmed in a 4 to 3 Decision.

The majority of the Board found that Claimant waived the right to challenge the constitutionality of the IRE citingRiley v. WCAB (Commonwealth of Pennsylvania), 154 A.3d 396 (Pa. Cmwlth. 2016). The Board found that the Claimant did not challenge the constitutionality of the IRE before the WCJ or the Board when her change in status Petition was first being litigated.

Additionally, the Board noted that the Claimant did not Appeal the Board’s June 1, 2009 Order, in which the Board affirmed the original WCJ Decision modifying her status to partial disability.

The Board also noted that a Claimant may appeal a change in status at any time during the 500-week period of partial disability, so long as the Claimant presents evidence of a revised impairment rating of at least fifty percent (50%). However, the Board held that Claimant was not entitled to a Modification of her disability status, because she failed to present such evidence.

The Board’s dissent disagreed with the Board’s majority that Claimant’s change in disability status was final. The dissent distinguishedRiley, noting that in Riley, the Claimant attempted to challenge the IRE more than 500 weeks after the change in disability status, whereas Claimant here filed her Petition with the 500-week period following her change in disability status.

In a footnote, the Board noted that the Claimant filed her Petition within 500 weeks of the change in status on June 13, 2006, the dissent went onto cite Section 306(a.2)(4), which provides, in relevant part, that “An employee may Appeal the change to partial disability at any time during the 500 week period of partial disability.”

The footnote goes on to state that Claimant received twenty (20) weeks and six (6) days of partial disability benefits in 2002, leaving her with 479 weeks, one day before her 500 weeks of partial disability benefits were exhausted. Although she did not actually receive payment of four (4) weeks of partial disability until April 2016, those benefits were for the period of July 13, 2015 through August 19, 2015. Therefore, the Claimant exhausted her benefits in the summer of 2015, but did not file her Petition until November 2015. Thus, Claimant did not file her Petition “during the 500 week period of partial disability”.

The dissent further found that Protz I should be applied retroactively, because it satisfied the criteria for retroactive application inBlackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991).

The first criterion is the purpose to be served by the new rule. The dissent concluded that “applyingProtz I retroactively to the instant case serves the important purpose of mandating conformity with the Constitution.

Otherwise “allowing Claimants to have their disability status, and ultimately have their benefits completely cut off, based upon an IRE that was based upon an unconstitutional section of the Act, greatly prejudices those Claimants and blocks the main purpose of the Protz I Decision.

With regard to the second criterion, the extent of the reliance on the old rule, the dissent noted that “The IRE process is inherently not a final process, and remains an open case for 500 weeks past the time that a Claimant’s disability status has changed.” Because the Guides could change, and Claimants retain a right to challenge their status during this 500 week period, the dissent found “Employers have never had full reliance that a change in Claimant’s disability status to partial would be final as that change only becomes final once the 500-week period has expired.”

The dissent believed “There would be a more adverse effect on the administration of justice ifProtz I was not retroactively applied to [cases in which the 500-week period had not expired], as those are not final cases.”

If Protz I was not given retroactive effect, the dissent stated “It would lead to the absurdity that Claimants would have the right to Appeal IREs, but have no actual remedy to carry through on that Appeal, as the right to Appeal would be based upon a now unconstitutional section of the Act.”

On Appeal to the Commonwealth Court, the Claimant argued that the Protz Decisions apply, and that she is entitled to have her disability status restored from partial to total disability, because the IRE upon which the change was based was unconstitutional and invalid. The Claimant contends that the case is “strikingly similar” to the Commonwealth Court’s Decision inThompson v. WCAB (Exelon Corporation), 168 A.3d 408 (Pa. Cmwlth. 2017), in which the Commonwealth Court reversed the Board’s affirmance of a WCJ’s Decision modifying a Claimant’s disability status from total to partial.

Claimant also argues that Reinstatement Petitions made be filed within three years of the date of last payment, which is satisfied here.

In addition, the Claimant also argues that public policy and justice require the retroactive application ofProtz II. Because Protz II struck the entirety of the IRE provision from the Act, the Claimant asserted that injured employees no longer have a statutory remedy to seek a change in status, and “by eliminating the statutory process for an employee to challenge his or her IRE – based partial disability status, the Supreme Court could not have intended to bind forever Claimants to a partial disability status that was unconstitutionally inacted. In addition, the Claimant emphasizes that the remedial nature of the Act stresses that it should be liberally construed in favor of injured workers.

Employer argued that the reinstatement was not warranted, because at the time thatProtz II was decided, the Claimant had “already conclusively litigated the change in her benefit status, collected 104 weeks of temporary total disability benefits, and collected the entirety of her 500 weeks of temporary partial disability benefits.”

Employer also notes that Employers have relied on the now-invalid IREs, which largely went unchallenged until theProtz Decisions. Employer explained:

“While the statutory scheme set forth in Section 306(a.2) of the Act allowed a Claimant to prove an entitlement to temporary total disability benefits at some point within thefuture of that 500 week period, presuming he/she was able to demonstrate a total person impairment of fifty [%] or greater, the statute did not provide a Claimant with 500 weeks within which to look back and invalidate apast IRE, and the corresponding change in benefit status.”

The Employer argued that Claimant fully litigated her change in benefit status a decade ago, but never challenged the constitutionality of the IRE provisions during that litigation. The Employer argued that if the Court were to give retroactive effect toProtz II, the parties expectation of finality would be upset.

The Court goes on to summarize the holdings in Protz I and II, and the subsequent Commonwealth Court holdings in betweenProtz I and II, namely Winchilla, Rileyand Thompson.

In Thompson, the Claimant’s disability status was changed on August 30, 2005 from total to partial disability following an IRE performed utilizing the Fifth Edition of the AMAGuides.

The parties were in the midst of litigating the merits of the earlier change in status, based upon the Claimant’s 2011 Petition for Review, challenging the 2005 IRE whenProtz I was decided. Although the Claimant had not challenged the constitutionality of the IRE before the WCJ or the Board, the Claimant in her Petition for Review to the Commonwealth Court raised the constitutionality issue.

The Employer argued that the Claimant failed to timely raise the issue, and should be barred from doing so on Appeal.

The Commonwealth Court rejected the Employer’s argument noting that “This matter began beforeProtz I and Protz II were decided. It implicated the validity of the statute, and the [Claimant] raised this issue at the first opportunity to do so.” Thompson.

The Commonwealth Court noted that post-Protz II, the statutory time requirements were no longer valid, and the Commonwealth Court allowed a Claimant to raise the constitutionality of the IRE for the first time outside of those time periods, but while the litigation involving the change in status was still pending. Thompson.

With regard to the case at bar, the Claimant argued that she was entitled to a reinstatement of her disability status from partial to total, because she filed her Reinstatement Petition within three years after the date of her most recent payment of compensation, and the IRE upon which the modification of her disability status was based is invalid. She argues that her case is most analogous toThompson, because she filed her Reinstatement Petition at the first available opportunity, just one month after the Decision inProtz I.

The Claimant also argues that Protz should be applied retroactively.

Employer argues against retroactive application, stressing that Claimant did not raise the constitutionality of the IRE at any time during the underlying litigation related to the IRE itself, and she cannot do so now, because it would upset Employer’s reasonable expectation of finality.

It is undisputed that the Claimant filed her Reinstatement Petition within three years after the date of the most recent payment of compensation. Her last payment was received in mid-July 2015, just four months before she filed her Petition. Therefore, under Section 413(a), the Court examined the disability of [Claimant] has increased, decreased, recurred, or has temporarily or finally ceased. 77 P.S. §772.

The Court notes that “disability” is synonymous with a loss of earning power resulting from a work-related injury. “Disability” may also refer to astatus, which is linked to the rate or amount of compensation to which a Claimant is entitled. Traditionally, this status was linked to Claimant’s earning power under the traditional vocational efforts and earning power assessments.

Section 306(a.2) to the Act provided another method of changing Claimant’s disability status from total to partial disability, butwithout regard to any change in Claimant’s earning power. The practical effect of the change in status for an impairment rating under fifty percent (50%) was to change the Claimant’s status from total to partial disability, and to limit a Claimant to 500 weeks of partial disability. See Diehl v. WCAB (I.A. Construction), 972 A.2d 100, (Pa. Cmwlth. 2009).

Diehl discussed the distinction between a change in disability status based upon an IRE, and a change in earning power based upon a vocational evaluation.

In Diehl, the Court explained that “IRE remedies are separate from remedies involving actual ability to work.” TheDiehl Court explained that “requiring proof of a Claimant’s level of impairment, and a Claimant’s earning power, would render the IRE provisions meaningless” and that “there would be no reason for the Employer to ever obtain an IRE.”

The Court noted that until the IRE provisions were struck down as unconstitutional, a Claimant’s disability status could be modified from total to partial disability in one of two ways: (1) evidence of earning power under Section 306(b)(2), or (2) based upon a Claimant’s impairment rating without regard to his or her earning power under Section 306(a)(2).

Because earning power did not play any role in Claimant’s change from total to partial disability in this case, we discern no reason why the term “disability” in Section 413(a) governing reinstatement from partial to total disability status in this case should be restricted to its traditional definition of earning power.

The Court next considered whether Claimant’s disability status “increased, decreased, recurred, or has temporarily or finally ceased”. 77 P.S. §772.

Under the facts of this case, Claimant may establish entitlement to reinstatement of her disability status “recurred”. The Court defined “recur” as “to return to a place or status”, or “to happen, take, place, or appear again.” Webster’s Third New International Dictionary.

The Court noted that the legal effect of Protz I and subsequentlyProtz II was to render Claimant once again eligible for total disability benefits. The impediment that rendered her partially disabled under the Act, the Impairment Rating Evaluation, is no longer a valid means of challenging a Claimant’s status. There was no longer a legal basis for Claimant’s disability status to remain partial, because the IRE upon which the change in status was predicated was found, as a matter of law, unconstitutional and invalid. This change in the law was a basis upon which Claimant could seek reinstatement.

This scenario is more akin to a Claimant seeking reinstatement of benefits currently under a suspension than one seeking a reinstatement of benefits following termination, because there is no allegation that Claimant’s disability had ceased.

The Supreme Court explained that suspension status “actually acknowledges” a continuing medical injury.” Latta v. WCAB (Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994).

In situations where Claimant’s benefits are suspended, the Claimant is only required to demonstrate that the reasons for the suspension no longer exist. Pieper v. Ametek-Thermox Instruments Division, 584 A.2d 301, 304 (Pa. 1990).

A Claimant is not required to demonstrate with medical evidence that the work-related injury giving rise to benefits continues; a Claimant’s testimony to that effect satisfies the Claimant’s burden of proof. Latta.

The Supreme Court held that “once a Claimant testifies that his prior work-related injury continues, the burden shifts to his Employer to prove the contrary. Where an Employer fails to present evidence to the contrary, the Claimant’s testimony, if believed by the Judge, is sufficient to support to reinstatement.”

The Supreme Court explained that because the Claimant already established a work-related injury, it would be improper to require a Claimant to establish it again. “In such suspension stituations, the causal connection between the original work-related injury and the disability which gave rise to the compensation is presumed.” Pieper.

The Court goes on to distinguish Stanek v. WCAB (Greenwich Collieries), 756 A.2d 661, 668 (Pa. 2000).

The Court distinguishes Stanek because the Claimant there did not have his status changed based upon an impairment rating, rather he received partial disability benefits based upon a change in earning power. InStanek, the Claimant exhausted 500 weeks of partial disability, and sought a reinstatement on the basis that his physical condition had worsened, rendering him totally disabled. The Commonwealth Court noted that the standard enunciated by the Supreme Court, requiring evidence of a loss of earning power and a worsening of the Claimant’s physical condition, under these circumstances makes sense.

However, in cases where the Claimant’s change in disability status was never based on either a change in earning power, or a change in physical condition, but solely on an impairment rating, it does not make sense for a Claimant seeking reinstatement based upon an unconstitutional IRE to show a change in earning power when the Employer was not required to share the same when it had the Claimant’s disability status modified from total to partial.

Furthermore, in some cases, a Claimant will not be able to show a change in earning power, because he or her earning capacity remains at zero. Moreover, because the change in disability status was not linked to any change in physical condition, but only to an impairment rating, it does not make sense to require Claimants to show their physical condition worsened.

Claimant testified that she was not able to work at all, since her surgery in 2002. Employer did not present any evidence to the contrary. Therefore, if Claimant’s testimony is credited, this satisfies her burden underLatta.

However, the Commonwealth Court remanded the matter to the WCJ, noting that the WCJ did not find it necessary to make any findings as to Claimant’s credibility, because of the Judge’s determination thatProtz I was inapplicable.

Therefore, the Commonwealth Court vacated the Board’s Order, and remanded the case to the WCJ to make factual findings related to whether Claimant credibly testified that she is totally disabled. If her testimony is credited, and because Employer presented no evidence to the contrary, the Claimant is entitled to a reinstatement as of the date that she filed her Petition underLatta.

The Court cites the humanitarian purposes of the Act for rendering their decision.

Interestingly, the Court appeared to “punt” on the retroactivity issue. The Court notes “Our Decision today does not impose any new legal consequences upon a past transaction. Simply becauseProtz II is being applied to a case that arose from a work injury and a change in disability status that pre-dates it does not mean it operates retroactively.” Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005).

It would be retroactive if it related back and gave a prior transaction a legal effect different from which it had under the law in effect at the time. This Decision does not alter Claimant’spast status. Rather, it gives effect to the Claimant’s status as it existed at the time she filed a Reinstatement Petition, which was within the statutory time frame for filing of such Petitions.

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24-May-2018: SEDGWICK CMS, INC. v. BUREAU OF WORKERS’ COMPENSATION
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SEDGWICK CMS, INC. v. BUREAU OF WORKERS’ COMPENSATION,

FEE REVIEW HEARING OFFICE (PISZEL AND BUCKS COUNTY PAIN CENTER)

1033 C.D. 2017 – Filed April 11, 2018

By Jeffrey D. Snyder, Esquire

The Commonwealth Court, referring to the matter as an issue of first impression, framed the issue here as “… what constitutes ‘a significant and separately identifiable service performed in addition to the other procedure’ under Workers’ Compensation Medical Costs Containment Regulation 34 Pa. Code §127.105(e), for which a chiropractor is entitled to payment for an office visit in addition to his charges for the treatment provided at the same visit”. The Commonwealth Court remanded the case to the Bureau of Fee Review Hearing Office on this mixed question of fact and law to determine whether the office visit charges in question were for routine examinations involving a known medical condition, change in medical condition, or other circumstances that required an examination and assessment above and beyond the usual examination and evaluation for the treatment performed on that date.

The Claimant sustained a work injury on February 28, 2005 and thereafter entered into a Compromise and Release Agreement that left medical expense open with the Employer thus obligated to pay reasonable and necessary medical expenses for the work injury, described as right shoulder partial thickness tear and superior labrum tear with post-operative scarring, rotator cuff inflammation and left shoulder overuse rotator cuff inflammation.

The Claimant received chiropractic treatment for shoulder and neck pain approximately three times a week. The chiropractic billed Sedgwick $78.00 per visit for office visits on dates in which the Claimant was the recipient of chiropractic treatment that was billed. Sedgwick denied payment for the offices visit charges, but paid Provider for other treatments that were provided on the subject dates. The Provider filed a Fee Review.

The Bureau administratively determined that the Provider’s claim for the office visit charges were to be denied. The Provider filed a Request for Hearing before a Hearing Officer. The chiropractor argued that: “Each time I treat Claimant, I perform a physical exam, I take a history of his subjective complaints, identified the objective findings on my exam, assess his conditions and treatment recommendations, and give a plan”. The chiropractor further asserted that these examinations were not included in the value of another procedure.

On July 5, 2017, the Hearing Officer issued a Decision ordering Sedgwick to pay all of the presented office visit charges. The Hearing Officer recognized that payment for office visits on the same day that another procedure is performed is permitted only when the office visit represents a significant and separately identifiable service performed in addition to the other procedures. The Commonwealth Court noted, however, that the Hearing Officer made no factual findings as to the nature of any of the examinations and evaluations for which an office visit charge was billed, and made no findings as to whether any of them were non-routine or involved new medical conditions, or evaluations for new or different treatments. Sedgwick argued that §127.105 of the Medical Cost Containment Regulations prohibit payment of office visit charges for routine physical examinations and evaluations on the same day as other treatment is performed where there is no new medical condition and that all of Provider’s office visit charges were for routine examinations for the same medical conditions. The Commonwealth Court cited to the Workers’ Compensation Act, as well as to Medicare procedure codes. The Court noted that the burden was on Sedgwick to prove by a preponderance of the evidence that it fully paid Provider the amounts to which Provider was entitled, citing the 34 Pa. Code §127.259(f). The Commonwealth Court observed that the meaning of the phrase “significant and separately identifiable service” performed in addition to the other procedures in §127.105(e) is a question of law, not an issue of fact, citing Commonwealth v. Kerstetter, 62 A.3d 1065, 1068, note 4 (Pa. Cmwlth. Ct., 2013),affirmed, 94 A.3d 991 (Pa. 2014). The Court noted that the Medical Cost Containment Regulations do not define any of the terms at issue and that no Court in the Commonwealth has interpreted §127.105(e) as to the phrase “significant and separately identifiable service”.

Interpreting the regulations, the Court noted that the rules of statutory construction apply to administrative regulations and that no words of a regulation are to be treated as mere surplusage. Federal decisions and regulatory interpretations addressing the same issue may be considered as well. Federal Medicare case law suggests that an examination or evaluation on the same date as another procedure does not constitute a “significant and separately identifiable service” unless it is above and beyond the usual evaluation performed in conjunction with that procedure, or is unrelated to the procedure that was performed on the same day, citing toUnited States v. Chen (USD Nevada No. 2:04 C.V. 00859, PMPPAL, filed May 30, 2006).

The Center for Medicare and Medicaid Services has stated with respect to chiropractors that chiropractors should not bill for an examination every time they treat a patient. MLN Matters No. SE0514, a CMS Publication. The Commonwealth Court observed that Federal law shows a clear intent to make payment for same day examination the exception, not the rule.

The take away here is that physical examinations billed separately for dates of treatment where other treatment/procedures are billed for the same day should be carefully reviewed in context to analyze whether payment for those examinations should be made or refused.

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09-Mar-2018: By: Jeffrey D. Snyder, Esq. YOU WANT ME TO PARK WHERE
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YOU WANT ME TO PARK WHERE;

A RECENT PA. WORKERS’ COMPENSATION

PARKING LOT COMPENSATION CLAIM

By: Jeffrey D. Snyder, Esquire

The Commonwealth Court of Pennsylvania reviews the law – a parking lot case.

In US Airways, Inc., v. WCAB (Bockelman), 612 C.D. 2017, filed February 22, 2018, in an Opinion authored by Judge Brobson, the Court affirmed the granting of a Claim Petition, finding that the Claimant was in the course of employment at the time she was injured by a fall down incident on an airport shuttle bus returning her to one of two employee parking lots after work.

The Court reviewed the facts. The Claimant was employed as a Philadelphia based flight attendant for US Airways, Inc. In order to get to work, she drove her own vehicle to the airport and parked in one of two designated employee parking lots that were both owned, operated and maintained by the City of Philadelphia/Division of Aviation for the use of all airport employees, not just those employees of US Airways, Inc.

In order to park in one of these two lots, employees were required to get a secured identification display area badge issued by the Department of Aviation and paid for by the Employer. After an employee parks in one of these lots, a shuttle bus transports the employee from the employee parking lot to the airport terminal and the reverse on the return at the end of the workday. Employer does not own or exercise control over the shuttle buses and did not require its employees to use the airport employee parking lots. The Employer maintained that it gave its employees no directive whatsoever in terms of how they should commute to work. There is a train from Center City Philadelphia to the airport, with no contentions regarding that alternate means of transportation by either the Claimant or the Employer in this Appeal based on the language in the Opinion.

The incident in question occurred on January 23, 2015. The Claimant was returning from a one day and back trip to Miami late in the evening about 9:47 p.m. She boarded the shuttle bus and attempted to lift her suitcase onto the luggage racks and while doing so stepped in water on the floor causing her right foot to slip out from underneath her. Her left knee buckled causing her to fall backwards, crushing her left foot under her. She needed assistance.

The Claimant subsequently filed a Claim Petition for injuries to the left foot from this slip and fall incident. The Answer to the Claim Petition denied that the Claimant was in the scope of employment at the time of the injury.

In a Decision circulated April 27, 2016, the Workers’ Compensation Judge granted compensability concluding that the injury occurred on the Employer’s premises, that the Claimant’s presence on the shuttle bus was required by the nature of her employment, and that the injury was caused by the condition of the premises. The Board affirmed.

On Appeal to the Commonwealth Court of Pennsylvania, the Employer was arguing that the Claimant was not injured on the Employer’s premises because the Employer did not own, lease or control the shuttle bus and parking lot, and they were not integral to the Employer’s business. The Employer asserted further error in the conclusion that the Claimant’s presence on the bus was required due to her employment status because Employer never required Claimant to use the shuttle bus.

The Commonwealth Court observed that injuries may arise during the course of employment in two distinct situations. First, the course of employment may be established by showing that the employee is injured on or off the Employer’s premises, while actually engaged in furtherance of the Employer’s business or affairs. This was not shown in the case.

Alternatively, to establish a course of employment, an employee can show that although not actually engaged in the furtherance of the Employer’s business or affairs, the Claimant is on the premises occupied or under the control of the Employer, or upon which the Employer’s business or affairs are being carried on, and is required by the nature of employment to be present on the Employer’s premises, and sustains injuries caused by the condition of the premises or by operation of the Employer’s business or affairs thereon, further citing to WCAB (Slaugenhaupt v. United States Steel Corporation, 376 A.2d 271 273 (Pa. Cmwlth., 1977).

The third prong, the condition of the premises, was undisputedly met, so the Court focused on the first two factors, premises and required by the nature of employment to be present on these premises.

In terms of whether the Claimant was on the Employer’s premises, noting the Employer did not own, lease, maintain or control the shuttle bus, the Court observed that Section 301(c)(1) of the Workers’ Compensation Act presents the issue as determinative on the establishment of the site of the accident being so connected to Employer’s business as to form an integral part of that business, citing toEpler v. North American Rockwell Corporation. 393 A.2d 1163 (Pa. 1978).

The critical factor is not the Employer’s title or control over the area, but rather the fact that the Employer had caused the area to be used by employees in performance of their assigned tasks. The Commonwealth Court observed that reasonable means of access to the work place is considered an integral part of the Employer’s business and, therefore, part of the Employer’s premises, citing toNew House v. WCAB (Harris Cleaning Services, Inc.), 530 A.2d 545 (Pa. Cmwlth., 1987),appeal denied, 538 A.2d 879 (Pa. 1988). Property becomes integral to an Employer’s business when the Employer causes employees to be in the area, citing toEpler, supra. The Court quoted from the Opinion in Interstate United Corp., 424 A.2d 1015 (Pa. Cmwlth., 1981):

“[T]he record shows that [Employer’s] cafeteria was located in the interior of the …plan, that employees customarily crossed the foot bridge that Claimant was injured on to enter and exit the cafeteria area, and that [Employer] was aware of this fact. In numerous cases, Pennsylvania Courts have held that a reasonable means of access to the situs of an Employer’s business operation is such an integral part of an Employer’s business has to be encompassed within the definition of “premises” as determined to be used in Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act.”

The Court noted with approval the analysis in Fashion Hosiery Shops v. WCAB, 423 A.2d 792 (Pa. Cmwlth., 1980), where a Claimant sustained injury while approaching an entrance to her workplace. That Employer had three separate points of entry and indicated no preference to which point an employee should utilize. That Employer did not own, lease or control the walkway upon which that Claimant fell. The fact that the Employer inFashion Hosiery Shops did not require any particular point of entry to be utilized, was not found to be significant in the course determination of the premises issue there. The Court observed that in that case ofFashion Hoisery Shops, supra.:

“Given the relational nature of the area in question to the Employer’s place of business, it must be concluded that the Claimant was injured on an entranceway that was available and intended for use; and as such, a constituted part of the Employer’s premises, regardless of it not being owned or controlled by the Employer. Nor does the availability of alternative entrances nullify that conclusion. Each of the three available and intended ways of ingress to Fashion’s shop was a part of Fashion’s “premises” for purposes of Section 301(c) of the Workers’ Compensation Act.”

Turning to the instant case involving Ms. Bockelman, the Commonwealth Court of Pennsylvania observed that Ms. Bockelman used the airport parking lot and shuttle bus to enter and exit the workplace. She used her vehicle as her means of transportation to work and the airport provided employees who work at the airport, which included Ms. Bockelman, no cost parking in employee parking lots designated by the airport. Ms. Bockelman rode the shuttle bus in order to get to her workplace. The Employer, US Airways, knew that as to employees who drove to work, they would need to board the shuttle bus after commuting to the airport and the same for the return trip. “Accordingly, the shuttle bus is such an integral part of Employer’s business and has to be part of the premises, in addition to being a customary means of ingress and egress, and the WCJ correctly concluded as such.”

The Commonwealth Court of Pennsylvania then turned to the next prong of theSlaugenhaupt test, that is whether the nature of Claimant’s employment required her to be on Employer’s premises where she was injured. The Employer argued that the Claimant’s presence on the shuttle bus was not required, as Employer gave no directive on where to park and hence did not require the Claimant to board the shuttle bus.

The Court noted the case of ICT Group v. WCAB (Churchray-Woytunick), 995 A.2d 927 (Pa. Cmwlth., 2010), where a Claimant who slipped on ice on the Employer’s premises while leaving for her lunch break was found to be in the course of employment, the Court pledged no significance on the fact that the Claimant inICT Group independently decided to leave the building during her lunch break, since the Claimant’s presence was required by the nature of her employment.

Injuries that occurred reasonably proximate to work hours are compensable, as justified by the observation that once an employee is on the Employer’s premises, actually getting to or leaving the Employer’s work station is a necessary part of an employee’s employment. Reasonable time is a concept discussed in the case ofHeverly v. WCAB (Ship N’ Shore), 578 A.2d 575 (Pa. Cmwlth., 1990), where the Claimant returned to work after initially leaving because she wanted to retrieve her eyeglasses.

The Commonwealth Court of Pennsylvania concluded that in this case, the Claimant’s presence on the shuttle bus was a necessary part of her employment, because it was the means by which he traversed between her work station, which was a terminal, and the parking lot designated for airport employees. The Court considered the Claimant’s presence on the shuttle bus “so connected to her employment relationship” that it was required by the nature of that relationship.

This Opinion of the Commonwealth Court illustrates the complexity of parking lot cases that can turn on a nuance. These cases are highly fact sensitive and suggest that exposures can be somewhat mitigated by advance planning regarding directives to employees as to commuting and the lack of such directives.

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13-Feb-2018: By Jeffrey D. Snyder, Esq. ~ Dennis Smith v WCAB (SuperValu Holdings PA)
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Dennis Smith v. WCAB (SuperValu Holdings PA),

No. 796 C.D. 2016 (Pa. Cmwlth. Ct., 2018)

In an Opinion filed January 5, 2018, close in time to its prior Opinion in the case ofValenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), No. 1302 C.D. 2016, (filed December 7, 2017), addressing the issue, the burden of proof in a vocationally based case involving an Earning Capacity Assessment is further explored and clarified by the Pennsylvania Commonwealth Court.

This was a Claimant’s Appeal from the grant of a Petition to Modify by a Workers’ Compensation Judge based on a Labor Market Survey reflecting five (5) available jobs with an average wage of $456.00 a week. The WCAB affirmed, noting that in its view there was compliance with the directives of the Pennsylvania Supreme Court set forth in the case ofPhoenixville Hospital v. WCAB (Shoab), No. 32 EAP 2011 (Supreme Court of Pennsylvania, November 21, 2013). The Commonwealth Court affirmed the WCAB, other than for a small change in the applicable weekly benefit rate.

The Claimant, Mr. Smith, sustained a work injury in February 2011 involving his head and neck when a case of product fell on him. A Notice of Temporary Compensation Payable, later converted, recognized the injury as a cervical strain/sprain with a temporary total disability rate of $661.67, based on an average weekly wage of $992.50. The subject Petition to Modify was filed in November 2013, alleging earning power of $440.00 a week, which would reduce the Claimant’s weekly rate to $368.33. The Claimant filed an Answer denying the allegations of the Petition to Modify. The Employer’s Request for Supersedeas was denied.

An Expert Vocational Interview reflected various transferable skills and five (5) employment positions in the Claimant’s geographic area, open and available, including jobs as a dispatcher, alarm dispatcher operator, dispatcher, and two (2) security guard positions. The pay for the jobs ranged from $360.00 to $440.00 a week.

The Claimant was post-surgical. A post-surgical complication in the nature of a failed fusion was noted in the record.

Mr. Smith agreed he met with the defense vocational expert and further stated that he applied for the five (5) identified positions. He was not offered employment. He also conducted a job search on his own but was not interviewed or offered employment based thereon.

The Workers’ Compensation Judge accepted the expert vocational testimony as credible and persuasive, notwithstanding that the Claimant applied for the five (5) positions identified therein via the Labor Market Survey, noting that there was no evidence of record suggesting that the five (5) positions were not open and available at the time of application or that the jobs were already filled at that time and did not exist. The Workers’ Compensation Judge therefore modified wage loss benefits.

Both parties appealed to the WCAB which as noted affirmed. The WCAB noted that the identified jobs were consistent with the Claimant’s transferrable skills and were in a suitable geographic area in terms of the applicable labor market.

The Claimant argued that the WCAB improperly shifted the burden of proof to him to establish that the positions in question were not open and available, and thereby improperly applying thePhoenixville case.

The Commonwealth Court noted that the testimony of the vocational expert was that the identified positions were open at the time of the Survey and further noted that the Claimant applied the positions which apparently remained open - and there was no indication that any evidence was presented that the positions were not open as of the time of the Survey. In the view of the WCAB, the opinion inPhoenixville provides the Claimant with the opportunity to present evidence that he applied for the indicated positions but that none were open. The WCAB then observed that the WCJ found there was nothing in the record to indicate the five (5) positions were not open and available at the time of Claimant’s application. That is, although the Claimant contended that the positions were not open and available, he presented no satisfactory proof to that effect. The WCAB saw no error in that the Claimant’s record evidence did not establish his contention that the positions were not open and available.

The Claimant further argued to the Commonwealth Court that the vocational expert did not establish that the identified positions were located through a transferrable skills analysis.

The Claimant also asserted that it was error not to consider his own independent job search in the credibility process. The Employer argued that the Decision of the WCJ and the WCAB was supported by substantially competent evidence. It was noted that the vocational expert had testified that the identified positions were “just an example” [of jobs in the labor market]. It was noted that the vocational expert described the suitability of the jobs, noting that they required only a High School Diploma and that each employer was willing to train as necessary.

The Commonwealth Court noted that in the Phoenixville case it was required that jobs remain open for a reasonable amount of time to allow for a Claimant to apply for the jobs. To this end, a Claimant was to be given the opportunity to submit evidence regarding his or her experience in pursuing the jobs identified in the Labor Market Survey, but it was not the Claimant’s burden to do so.

The Commonwealth Court noted that in the recent case of Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), No. 1302 C.D. 2016, filed December 7, 2017,the employer did not offer evidence of the jobs remaining open past the discovery of those jobs, but likewise the Claimant offered no evidence that the jobs were not open and available when she applied for some of them but received no offer of employment.

Pointing to Valenta, the Commonwealth Court indicated that it was indeed the employer’s burden of proof to show that the jobs were open and available, but the Claimant could present evidence to the contrary. The Court held that “if a Claimant offers evidence about her experience in pursuing the jobs identified in a Labor Market Survey, the evidence can be considered against her in the overall evaluation of the availability of the jobs”. “Based onPhoenixville and Valenta, we hold that a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as a Claimant is afforded a reasonable opportunity to apply for them. In the absence of such evidence, earning power associated with specific positions cannot be used in the calculation of earning power under §306(b).” The Commonwealth Court emphasized that the Employer bore the burden of proof of establishing all facts entitling it to a modification of benefits, including the continued availability of the jobs identified as proof of earning power. If the Claimant presented evidence of pursuant of the jobs identified in the Labor Market Survey, that evidence can be considered on the issue and could be considered against a Claimant in an overall evaluation of the availability of the jobs.

The Commonwealth Court then discussed the concept of substantial evidence in the realm of establishing the open and available nature of the jobs identified in the Labor Market Survey. The Court stated that where there is an in-person application where information is exchanged, evidence of follow-up communications between the Claimant and a prospective employer which prompts acts or inaction by a Claimant, or evidence relating to an interview, such might constitute substantially competent evidence to establish that the jobs identified in the Labor Market Survey remained open and available through that time period. The Commonwealth Court emphasized that there must be evidence beyond mere application. Importantly, the Commonwealth Court stated that “consequently, we note the Board’s observation that Claimant only received an interview for the two (2) security guard positions with Am-Guard. Therefore, we are constrained to hold that only those two (2) positions remained opened and available underPhoenixville. It was on this basis that the Court affirmed the modification with a slight change in the partial rate. A concurring opinion by Judge McCullough joined by Judge Leavitt concurred in the result but did not considerPhoenixville Hospital to allow a Claimant’s employment applications to be used against him or her on the question of the open and available nature of the jobs. There was a dissent by Judge Cosgrove, again citing disagreement with the holding in Valenta to the extent of using the application process against the Claimant. Judge Cosgrove was of the view thatPhoenixville Hospital was being misinterpreted and considered the misapplication a taint requiring the dissent.

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