State News : Pennsylvania

2017 PENNSYLVANIA WORKERS’ COMPENSATION RATE CHANGES

By Kevin L. Connors, Esquire

Happy New Year!

To Employers and Insurers responsible for workers’ compensation benefits in Pennsylvania, the Pennsylvania Office of Adjudication has issued the controlling compensation benefit rates for 2017.

The maximum compensation benefit payable rate for 2017 is $995.00 per week, yielding $51,740.00 per year in temporary total disability benefits.

The $50,000.00 mark was passed with the maximum rate of $978.00 per week in 2016.

Average weekly wages between $1,492.50 and $746.26 will be adjusted on a 2/3^rd%basis, for purposes of yielding the temporary total disability benefit.

Average weekly wages that range between $746.25 and $552.78 will result in the temporary total disability benefit rate being set at $497.50.

An average weekly wage of $552.77 or less per week will result in the temporary total disability benefit rate being calculated based upon a 90% basis.

An average weekly wage of $552.77 would, therefore, yield a temporary total disability benefit rate of $497.49, yielding yearly temporary total disability benefits of $25,869.63.

Kindly contact our office with any questions that you might have regarding any calculations of a pre-injury average weekly wage, typically requiring calculation of wages only for the 52 weeks preceding the date of injury, as well as any questions that you might have in terms of the applicable temporary total or temporary partial disability benefits rates.

ConnorsO’Dell LLP

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.

DEFENSE COUNSEL SELECTION IN WORKERS’ COMPENSATION MATTERS

Kevin L. Connors, Esquire

With grateful appreciation to one of our very favorite workers’ compensation bloggers, Michael Stack, a Principal in COMPClub and Amaxx LLC, and an expert in workers’ compensation cost containment systems and Consultant to Employers seeking to reduce their workers’ compensation costs, we are reprinting Michael’s recent article, published on December 21, 2016, which he had titled “Important Factors In Workers Comp Defense Attorney Selection,” endorsing and adopting the selection factors cited by Michael:

Selecting the right person to defend a workers’ compensation claim is an important component of any program.

Not selecting the right attorney can be detrimental.

This includes failing to settle cases in a timely manner, unnecessary litigation costs and other missed opportunities.

Now is the time to review the panel of attorneys you are working with and remove those who are not meeting the needs of your program.

It All Starts with the Selection Process

Over the years, experienced claim handlers develop relationships with countless attorneys who defend workers’ compensation and other insurance related claims.  This results in a referral process where various firms are selected to represent the program on claims and the funneling of a consistent file load to those who make the grade.

While the development of these relationships is great, it can often have a negative impact on your claim files if the attorneys are not meeting the objectives of your program.

The review of defense attorneys and panels should be done on an ongoing basis.  While the development of a prior professional relationship is important, it should never be the sole or controlling factor.

Important Factors to Consider

There are a number of factors members of the claims management team should consider when selecting the right attorney to defend a case.  This includes some thoughtful consideration on the part of all members on the claims team who need to deal with and interact with attorneys.

·                     Ability to think independently.  All workers’ compensation cases are subject to evaluation based on criteria related to the statute and interpreting case law.  While component counsel must understand these basics, effective defense attorneys have the ability to peel back the layers of a claim and develop strategies that will drive a case toward settlement.

·                     Ability to be a zealous advocate.  This is the core of what separates a good attorney from one who is great.  In workers’ compensation, a zealous advocate is able to see through the smoke and provide the claims handler with an honest analysis on the case and all likely outcomes.  They will also be able to provide common sense solutions that take into consideration the law and other extraneous factors that are in play when it comes to a demanding file load.

·                     Ability to “win” every case.  The inherent bias in the workers’ compensation system toward the employee and compensability of claims means a majority of cases that go to hearing will result in an award to the employee.  It is important to work with those defense attorneys who understand the biases within the system and proceed with caution.  Top-notch defense attorneys are able to pick the cases that should go to court, and settle those that are destined for failure.

Other Important Intangibles

Interested stakeholders responsible for programs should also monitor and be aware of important intangibles that make a defense attorney great.  This should never include the inducement of free tickets to sporting events or fine wine.  Instead, those who seek to improve the counsel they work with should look at other facts:

·                     Ability to seek creative solutions to complex problems;

·                     Responsiveness to inquiries such as voicemail messages and email;

·                     Regular status reports and forthright analysis on files; and,

·                     A positive reputation amongst peers and ability to deal with difficult opposing counsel and claimants.

Conclusions

Most claims management teams have a number of good defense attorneys to work with on their disputed files.  The ability of claims handlers to find the great attorneys will reduce time spent on files and promote savings in their workers’ compensation program.  Part of this process includes the need to evaluate all defense counsel on a regular basis and work only with those dedicated to effective and efficient representation.

ConnorsO’Dell LLP

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.

TERMINATING COMPENSATION BENEFITS IN PENNSYLVANIA

By Kevin L. Connors, Esquire

“I’m never going to be disabled.  I’m sick of being so healthy.”

Thank you, Homer Simpson.

“All my life I’ve had one dream, to achieve my many goals.”

Thank you again, Homer!

With those self-evident truths behind us, we can now focus on the recent Decision of the Commonwealth Court inBaumann v. WCAB, decided on September 23, 2016.

This Decision is relevant why?

Because, the Commonwealth Court addressed the burden of proof that an Employer carries when seeking to terminate workers’ compensation benefits requiring proof that there has been a change in the Claimant’s physical condition from a prior Independent Medical Examination under Lewis v. WCAB, 919 A.2d 922 (Pa. 2007).

All of us will recall the Pennsylvania Supreme Court’s Decision in Lewis, in which the Court had held:

In order to terminate benefits on the theory that the Claimant’s disability has reduced or ceased due to improvement of physical ability, it is first necessary that the Employer’s Petition be based upon medical proof of a change in the Claimant’s physical condition.  Only then can the WCJ determine whether the change in physical condition has effectuated a change in the Claimant’s disability, i.e., the loss of his earning power.  Further, by natural extension, it is necessary that, where there have been prior Petitions to… terminate benefits, the Employer must demonstrate a change in physical condition since the last disability determination.

In so holding, the Lewis Court had explained:

Absent this requirement “a disgruntled Employer… could repeatedly attack what he considers an erroneous Decision of a WCJ by filing Petitions based on the same evidence ad infinitum, in the hope that one referee would finally decide in his favor., citingDillon v. WCAB, 640 A.2d 386 (Pa. 1994).

In Baumann, the Claimant sustained a right shoulder and upper back injury as a result of a car accident in 2007.  The claim was accepted as compensable by the Employer, with workers’ compensation benefits being paid to the Claimant.

In 2008, under a WCJ Order, the Claimant’s injury description was amended by Stipulation to include right C-6 radiculopathy.

In 2009, the Employer sought to terminate the Claimant’s compensation benefits in reliance upon an Independent Medical Examination performed by Dr. Richard Bennett, a board-certified neurologist.

In opposition to the Employer’s Termination Petition, the Claimant testified that he was not fully recovered from the work injury, and he presented the deposition testimony of his orthopedic surgeon, Dr. Norman Stempler.

The Employer’s Termination Petition was then denied by the Honorable Bruce Doman in a Decision issued in 2009.

In 2010, the Claimant again underwent a second Independent Medical Examination performed by Dr. Bennett, with Dr. Bennett again finding that the Claimant was fully recovered from the work injury, resulting in the Employer filing a second Termination Petition, in reliance upon Dr. Bennett’s full recovery opinions.

The second Termination Petition was then litigated before the Honorable Tina Rago, with there also being an Employer Modification Petition, and a Claimant Penalty Petition. 

In support of the Termination Petition, Dr. Bennett’s testimony was again presented, with the Claimant testifying, both at deposition and live before the WCJ, that he was continuing to see Dr. Stempler, but that he was not actively treating for his work injury.  The Claimant also testified that he continued to have pain in his shoulder and neck, and that his activities of daily living were significantly limited.

In 2011, the WCJ found the Claimant’s testimony of ongoing shoulder pain was not credible, since the Claimant was not actively treating for it, and that the activities that the Claimant did testify to, including playing guitar and video games, as well as getting several tattoos on his arms, evidenced that the Claimant was fully recovered from the work injury, conclusions supported by the Independent Medical Examination opinions of Dr. Bennett.

Granting the Termination Petition, the WCJ also granted the Claimant’s Penalty Petition, finding that the Employer had violated the Act by failing to pay for the Claimant’s shoulder surgery, although a 0% penalty was assessed with the granting of the penalty.

No surprise that the Claimant then appealed with WCJ’s Decision at the Appeal Board, with the Board remanding the matter back to the WCJ, to determine whether the Employer had met his burden of proving that the Claimant’s medical condition had changed between the denial of the 2009 Termination Petition, and the granting of the 2010 Termination Petition. 

In a Decision then issued in 2014, the WCJ again granted the Employer’s Termination Petition, as well as granting the Penalty Petition, in the course of which the WCJ found that the failure to pay for the Claimant’s shoulder surgery was not sufficiently significant to warrant more than a 0% penalty.

The WCJ’s Decision was then appealed to the Appeal Board, which affirmed the WCJ’s Decision, resulting in the Claimant appealing the Decision to the Commonwealth Court.

Recognizing that the evidence necessary to prove a change from a prior adjudication “will be different in each case,” the Commonwealth Court held that the WCJ is empowered to accept the Employer’s medical evidence of full recovery as being credible, allowing the WCJ to make a finding that the Employer has met the standard set forth underLewis to prove a change in a Claimant’s condition, as a prerequisite to granting a Termination Petition.

Affirming the granting of the Termination Petition, the Commonwealth Court held that “it is not necessary for the Employer to demonstrate that the Claimant’s diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment.”  Simmons v. WCAB, 96 A.3d 1143 (Pa. Cmwlth. 2014).

The Baumann Court held that a change sufficient to satisfy the Lewis requirement exists if there is a lack of objective findings to substantiate a Claimant’s continuing complaints.

Analyzing the WCJ’s findings, the Baumann Court specifically noted that the WCJ had found the Claimant’s testimony, as to his activities in relation to his shoulder pain, to be “incredible”, and that the Claimant’s lack of any active medical treatment since 2009, supported the IME’s physician’s conclusion that the Claimant had fully recovered from the work injury.

Finding that there was substantial evidence to support the WCJ’s conclusion that the Employer had proved that there was a change in the Claimant’s physical condition between the 2009 Decision and Judge Rago’s 2010 Decision, the Commonwealth Court affirmed the granting of the Termination Petition.

As for the Penalty Petition, the Commonwealth Court also agreed with both the WCJ and the Appeal Board, finding that when a Claimant has satisfied their burden of proving a violation of the Act, the amount of penalties to be imposed for that violation are left within the sole discretion of the WCJ.  Indiana Floral Co. v. WCAB, 739 A.2d 984 (Pa. Cmwlth. 2002).

Noting that the WCJ had awarded a 0% penalty in reliance upon the Claimant’s own incredible testimony concerning his pain levels and activities, as well as his intercontinental travels and tattoos, the Commonwealth Court found no error in the WCJ’s Decision, or the Appeal Board’s conclusion to affirm the WCJ’s Decision to assess a 0% penalty against the Employer.

The Takeaway

First, yahoo!

Tough case with familiar faces.

Two different WCJ’s, two different results.

Two very well-used physicians, both marginalized by their respective orientations, albeit disabled or recovered.

So, what was the tie-breaker?

Like Homer Simpson says, “if something’s hard to do, then it’s not worth doing.”

As backwards as Homer’s logic sometimes seems, elusive truths survive every fall.

ConnorsO’Dell LLP

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.

THE LONG AND SHORE OF IT

By Kevin L. Connors, Esquire

In Savoy v. WCAB, the Pennsylvania Commonwealth Court affirmed the underlying Decisions of the Appeal Board and the WCJ, with the Appeal Board affirming the WCJ’s Decision to deny the Claimant’s Claim Petition, finding that the Claimant’s claim fell within the exclusive jurisdiction of the Federal Longshore and Harbor Workers’ Compensation Act (Longshore Act), and could not, therefore, be adjudicated under the Pennsylvania Workers’ Compensation Act.

Working for Global Associates as an Electrician assigned to work on U.S. Navy vessels in the Philadelphia Navy Yard, the Claimant was injured in 2013, while walking along a passageway on a naval ship, when he tripped and twisted his right knee.

In 2014, the Claimant filed a Claim Petition, alleging that he had sustained a work-related torn right lateral meniscus.  Under his Claim Petition, the Claimant sought temporary total disability benefits, with Hearings then proceeding before the WCJ.

In the course of litigating the Claim Petition, it was stipulated that the Claimant was receiving benefits for his injury under the Longshore Act.  For that reason, the case was then bifurcated to address whether the Claimant was entitled to concurrent compensation under the Pennsylvania Workers’ Compensation Act, as opposed to benefits under the Longshore Act being exclusive.

In deciding the issue, the WCJ found the Claimant’s testimony to be credible to establish that the ship in which he was injured was on navigable waters of the United States at the time of his work injury, and that, therefore, the Claimant’s claim fell exclusively within the jurisdiction of the Federal Longshore Act, finding further that the Claimant had no entitlement to workers’ compensation benefits under the Pennsylvania Workers’ Compensation Act.

On Appeal before the Appeal Board, the Board held that the Claimant’s testimony established several crucial facts, to include that the ship on which he was injured was “on the water” at the time of his injury, as opposed to being in a dry dock, which would have potentially triggered the concurrent jurisdiction under the Pennsylvania Workers’ Compensation Act.

Concluding that the Claimant was injured on a ship that was “on the water” at the time of injury, the Appeal Board affirmed the WCJ’s Decision, holding that the Claimant’s exclusive remedy was under the Longshore Act.

Appealing to the Commonwealth Court, the Claimant argued that there was insufficient evidence to establish that the ship was “on the navigable waters of the United States” when he was injured, a prerequisite for exclusive jurisdiction under the Longshore Act.  Arguing that the record was unclear as to the precise location of the ship within the Philadelphia Navy Yard at the time of injury, the Claimant sought a remand, arguing that additional evidence was required to determine whether concurrent jurisdiction under the Pennsylvania Workers’ Compensation Act was proper.

Concluding that the evidence of record established that the ship on which the Claimant was injured was “on the water” when the injury occurred, the Commonwealth Court held that the Claimant’s exclusive remedy for benefits for his injury was under the Longshore Act, and that the facts surrounding the Claimant’s injury did not support a concurrent jurisdiction scenario. 

So holding, the Commonwealth Court concluded that the Claimant’s injury and claim did not fall within a “twilight zone” exception that had been carved out by the United States Supreme Court underDavis v. Department Labor of Industries of Washington, 317 U.S. 249 (1942), permitting concurrent jurisdiction when an injury occurs within a “twilight zone”, when an Employee’s injury occurs in a location that is neither strictly maritime nor strictly land-based.

Davis involved a Steelworker who was killed while dismantling a bridge over navigable waters, with the Supreme Court finding that the deceased Steelworker was entitled to concurrent jurisdiction for the claim, since the injury occurred over navigable waters, triggering jurisdiction under the Longshore Act, and it involved the repair of a bridge, a non-maritime function, triggering jurisdiction under a State Compensation Act.

Relying upon the Pennsylvania Supreme Court’s ruling in Wellsville Terminal Company v. WCAB, 632 A.2d 1305 (Pa. 1993), wherein the Court stated that “the outlines of a case of an injury received on navigable waters while engaged in essential repairs to an existing vessel have long been clear and distinct… As to them there is no twilight.”, further holding that the mere tethering of a ship to land is not a sufficient nexus to classify activities on the ship as being “land-based” for purposes of asserting jurisdiction under the Pennsylvania Workers’ Compensation Act.

So reasoning, the Savoy Court concluded that the Claimant’s injury did not fit within theDavis “twilight zone” exception, since the Claimant was injured while performing a traditional maritime function of ship repair while the vessel in which he was injured was “on the water.”

The Takeaway

It seemed like a pretty shore thing.

In truth, this question probably got as far as it did because there is probably significant difference in the benefits potentially available to the Claimant under the Pennsylvania Workers’ Compensation Act, as opposed to under the Federal Longshore Act.  Without presuming to be a natural swimmer through the Longshore Act, one must presume that the procedural path to benefits under the Pennsylvania Workers’ Compensation Act is procedurally easier, that the benefit award might be higher, and that it is more difficult to terminate a workers’ compensation benefit claim under the Pennsylvania Workers’ Compensation Act, as opposed to under the Longshore Act.

ConnorsO’Dell LLP

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.

REEFER MADNESS CLOUDS PENNSYLVANIA

By Kevin L. Connors, Esquire

Released in 1936, the movie classic Reefer Madness captured the social hysteria of drug addiction amid a cloud of marijuana smoke.

Originally titled as Tell Your Children, with alternate titles beingThe Burning Question, Dope Addict, Doped Youth, the movie was an American drama highlighting melodramatic events after High School students were lured by drug pushers to try smoking marijuana, resulting in their slow descent into madness due to marijuana addiction, in the course of which the students were involved in hit and run accidents, suicide, rape, hallucinations, and homicide. 

80 years later, enlightened by time, science, and relativity, although marijuana remains a controlled and prohibited substance under Federal law, there is a growing consensus in the medical community that marijuana can serve a utilitarian purpose in the treatment of serious medical conditions, with 25 states, including Pennsylvania, having legalized medical marijuana.

On April 17, 2016, Governor Tom Wolf, signed the Pennsylvania Medical Marijuana Act (commonly referred to as “Senate Bill 3”, to be referenced herein as the “MMA”), into law, effectively making Pennsylvania the 24th state to legalize medical marijuana.

This enactment will effectuate sweeping changes in Pennsylvania, legalizing the use of medical marijuana, subject to its dispensing and utilization being regulated under the MMA, while marijuana still remains illegal under Federal law, specifically under the Controlled Substance Act (“CSA”), which went into effect in 1970, and classified cannabis as a Scheduled I substance.

Although marijuana is a controlled and prohibited substance under Federal law, the Federal Government is not forcing states that have legalized medical marijuana to criminalize its use, as there are no known cases of Federal prosecution involving the use of medical marijuana in the 25 states that have legalized its use.

In effect, cultivating, distributing, and/or possessing cannabis, even for medical treatment purposes, remains a Federal crime, complicating the issue of who will have to pay for medical marijuana treatment in Pennsylvania, once the MMA is fully implemented in Pennsylvania.

For this very reason, Section 2012 of the MMA, specifically states that “nothing in this Act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.”

So, where do you go to get into line to get your prescription filled?

First, it will take months, if not years, for the MMA to be fully implemented, before prescriptions are being dispensed.

Secondly, the MMA specifically requires that a patient must be diagnosed with a “serious medical condition” to qualify for medical marijuana.  These conditions are listed below:

·                     Cancer;

·                     HIV/Aids;

·                     Amyotrophic Lateral Sclerosis (ALS);

·                     Parkinson’s Disease;

·                     Multiple Sclerosis;

·                     Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity;

·                     Epilepsy;

·                     Inflammatory Bowel Disease (IBS);

·                     Neuropathy;

·                     Huntington’s Disease;

·                     Crohn’s Disease;

·                     Post-traumatic Stress Disorder (PTSD);

·                     Intractable Seizures;

·                     Glaucoma;

·                     Sickle Cell Anemia;

·                     Severe Chronic or Intractable Pain of Neuropathic Origin or Severe or Intractable Pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective; and,

·                     Autism.

Conditions not specifically listed above are considered to be excluded, as the Legislature intended to limit the conditions considered to be serious enough to warrant the use of medical marijuana as a treatment therapy.

Reviewing the list of “serious medical conditions” identified under the MMA, there are several that could potentially impact on workers’ compensation claims, involving work-related injuries arising within the course and scope of employment, likely being limited to the potential contraction of HIV/Aids, sometimes occurring in the medical profession, spinal cord injuries with intractable spasticity, neuropathies, post-traumatic stress disorder, and severe chronic or intractable pain of neuropathic origin.

If diagnosed with one of the enumerated “serious medical conditions”, the next question is how would a patient go about gaining access to medical marijuana?

The MMA provides several provisions that impact on accessibility, to include the patient being required to secure a medical marijuana card that can only be issued to a patient with a “serious medical condition”.  This will require the patient to be under the continuing care of a physician registered with the Pennsylvania Department of Health. 

The physician will be required to provide a signed certification to the patient, stating that the patient has a “serious medical condition”, with that certification then permitting the patient to apply to the Department of Health for an identification card.

So identified, the patient can then purchase medical marijuana at an authorized dispensary.

So now that the patient has been diagnosed with a “serious medical condition” and has secured the requisite identification card, and has been prescribed medical marijuana by a properly-certified physician, where will the prescription be filled for the patient? 

To regulate dispensement issues, the Pennsylvania Department of Health will require physicians, whether medical or osteopathic doctors, to apply to the Department of Health to become registered as “practitioners”, in the course of which the physicians must complete formal training before becoming a registered practitioner.

Being registered as a “practitioner” will allow physicians to certify patients to use medical marijuana.

Similar registration and training procedures will be implemented for pharmacies to dispense medical marijuana.

How will the enactment of the MMA impact upon workers’ compensation claims and litigation in Pennsylvania?

Well, the MMA contains several provisions, specifically impacting upon employment relationships, to include:

·                     An Employer cannot discharge, threaten, refuse to hire, or, otherwise, discriminate or retaliate against an Employee, solely on the basis of the Employee being certified to use medical marijuana;

·                     There is no requirement that an Employer must accommodate the use of medical marijuana on the premises or property of the Employer;

·                     There is also nothing in the MMA that would limit an Employer’s right to discipline an Employee for being “under the influence of medical marijuana” when working, nor does the MMA prohibit the Employer from disciplining an Employee whose performance falls below the standard of care normally accepted for that position “while under the influence of medical marijuana…”;

·                     There is also nothing in the MMA requiring the Employer to commit any act that would put the Employer in violation of Federal law;

·                     The MMA also allows an Employer to prohibit an Employee from performing certain tasks, deemed to be life-threatening to the Employee or other Employees, if the Employee has a blood content of more than 10 nanograms of active THC per milliliter of blood;

·                     The MMA also allows an Employer to prohibit an Employee who is prescribed medical marijuana from performing any duty or task that is a safety risk, regardless of the financial harm to the Patient/Employee; and,

·                     The MMA also does not allow an Employee to be under the influence of medical marijuana, or be impaired, during the work day, or while performing his or her duties in the workplace.

Signed into law 6 months ago, the Pennsylvania Department of Health estimates that the process of actually implementing the state’s Medical Marijuana Program will take between 18 to 24 months, before access is actually available.

An unresolved question for Employers, Workers’ Compensation Insurers, and Administrators, will be whether to accept or decline liability for paying for medical marijuana prescriptions. 

Consider that two of the “serious medical conditions” listed in the MMA, to include neuropathy and severe chronic pain, are currently regularly treated with excessive opiates, while the alternative of using medical marijuana as a substitute for pain medications might actually result in significant savings for Employers/Insurers.

To date, no specifics have been provided regarding the billing and pricing for medical marijuana treatments, nor is there any requirement under the MMA for Employers and Insurers to be responsible for the payment of medical marijuana prescriptions.

The opening scrawl in Reefer Madness was “the motion picture you are about to witness may startle you.  It would not have been possible, otherwise, to sufficiently emphasize the frightful toll the new drug menace, which is destroying the youth of America in alarmingly increasing numbers.  Marijuana is that drug—a violent narcotic—an unspeakable scourge—the Real Public Enemy Number One!”

Has the world gone mad?

The Takeaway

So, the truth is, beyond the “trust us, we just get it”, that we are not mad, and that we are about to embark on a regulatory framework that will have significant impact on not simply the administration of workers’ compensation claims, but upon the actual workplace, in terms of issues related to accommodation, discrimination, and performance.

Enactment of the MMA will almost necessarily create procedural and administrative frustrations for Employers and Insurers, as it could well take years to streamline the implementation of the MMA, and the regulations that will need to be enacted to manage its impact on treatment and dispensing.

ConnorsO’Dell LLP

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.

TO APPEAL OR NOT TO APPEAL

By: Kevin L. Connors, Esquire

In a recent Pennsylvania Commonwealth Court decided on June 14, 2016, in Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board, the Commonwealth Court addressed an issue often unique in workers’ compensation practice, being whether the an order that is clearly marked “Interim/Interlocutory”, further specifically providing on the face of the Decision cover letter, that “This Interim/Interlocutory Order is Not Subject to Appeal”, is actually appealable, in which case a party may ultimately be precluded from appealing a final Decision if it did not previously take an appeal from the Interim/Interlocutory Order.

In the context of compensation litigation, it is sometimes necessary for a workers’ compensation judge to dispose of certain interim issues, such as an employer’s request for Supersedeas, or the request of a Claimant for the imposition of a Section 410 order, with workers’ compensation judges addressing these ancillary issues by issuing Interlocutory Orders that are not subject to appeal, as an Interim/Interlocutory Order is not a final order under the Pennsylvania Rules of Appellate Procedure.

However, in the byzantine universe of workers’ compensation procedure, there are unique instances where an order, initially described as “Interim/Interlocutory”, is one that, if not appealed, cannot later be appealed when a final decision issued by the workers’ compensation judge disposes of all litigated issues in the claim.

If there is some confusion as to what the heck we are talking about, welcome aboard.

Perhaps some facts might help cut through this procedural fog.

The UEGF case involved the Claimant filing a Claim Petition against an uninsured employer, in response to which the UEGF filed a Joinder Petition against the uninsured employer’s prior insurance carrier, Somerset Insurance..

The uninsured employer’s prior insurance carrier, in the course of answering the Joinder Petition, also filed a Motion to Strike/Dismiss, on grounds that its coverage with the uninsured employer had lapsed prior to the date of the work injury claimed by the Claimant.

Issuing a docket cleansing “Interim/Interlocutory” order, the workers’ compensation judge dismissed the Fund’s Joinder Petition, concluding that the uninsured employer’s prior insurance carrier did not provide insurance coverage to the employer on the date of injury claimed by the Claimant, with the face sheet of the decision specifically indicating that the order was Interlocutory only, and specifically indicating “this order does not constitute a final disposition of Claimant’s petition but is only a determination of the Motion to Dismiss the Joinder Petition.  These Interlocutory findings of fact and conclusions of law will be incorporated into the final decision for purposes of potential appeal to the matters decided herein.”

Pretty explicit and exacting language nonetheless, the “Interim/Interlocutory” order also indicated: “This order is not subject to appeal.”

Guess who did not file an appeal?

Skipping ahead to the workers’ compensation judge’s final decision on the merits of the Claimant’s Claim Petition, in the course of which the workers’ compensation judge reaffirmed the prior Interlocutory Order regarding the Joinder Petition, the UEGF filed an appeal of the Judge’s decision to the Workers’ Compensation Appeal Board, with the Board holding that the “Interim/Interlocutory” order issued by the workers’ compensation judge to dismiss the Joinder Petition was actually a final order that should have been appealed, consequently resulting in the Appeal Board finding that UEGF’s appeal was untimely, resulting in its denial and dismissal.

The Appeal Board based its decision on Knish v. WCAB (Jerome Enterprises), 536 A.2d 856 (Pa. Cmwlth.), setting forth the elements of a final order, held to be one that “ends litigation, disposes of the entire case, puts a litigant out of court or precludes a party from pressing the merits of his claim.”

What the?

The Appeal Board also cited to the Commonwealth Court’s Decision in 3D Trucking v. WCAB (Fine), 921 A.2d 1281 (Pa. Cmwlth. 2007), holding that an order granting a Joinder Petition is not interlocutory in nature, as it resolves all issues raised by the Joinder petition.

In the case at issue, the Appeal Board drew a distinction between a Joinder Petition and an underlying Claim Petition, as the Appeal Board noted that a workers’ compensation judge is not required to necessarily consolidate a Joinder Petition with any other pending petitions, as the Joinder Petition can be granted or denied on its own merits.

In that context, an unconsolidated Joinder Petition is a procedural dispute in its own WCAIS context.

Applying that logic to the instant case, the Appeal Board held that the “Interlocutory” order granting the uninsured employer’s prior insurance carrier’s  Motion to Dismiss the Joinder Petition effectively “ended the litigation against Somerset, resolved all issues raised by the Joinder Petition, and disposed of the entire case against Somerset.”

For that reason, the Appeal Board determined that the Interlocutory Order was, in actuality, a final order as to the Joinder Petition, and issues raised thereunder, notwithstanding that the Interlocutory Order had specifically said that it was not what it ended becoming, a final order.

The Appeal Board also held that the declaration by the workers’ compensation judge in the Interlocutory Order was “not subject to appeal” actually had no procedural bearing on the outcome of the Joinder Petition, being its final dismissal.

Appealing to the Commonwealth Court, the UEGF argued that the Appeal Board incorrectly dismissed its appeal as being untimely, with the Commonwealth Court holding, that an order from a workers’ compensation judge dismissing a Joinder Petition is a final and appealable order, as it addresses all issues in the Joinder Petition with finality.

However, the Commonwealth Court carefully considered the “apparent confusion” that resulted from the workers’ compensation judge’s Interlocutory Order being described as “not subject to appeal”, as a basis for considering that the UEGF might be entitled to an appeal nunc pro tunc, with the Commonwealth Court remanding the case back to the Appeal Board to determine whether the elements necessary to support a nunc pro tunc appeal were present.

Believing that the requisite elements for an appeal nunc pro tunc were present, the Commonwealth Court remanded the appeal back to the Appeal Board, directing the Appeal Board to determine if the UEGF was entitled to appeal the workers’ compensation judge’s incorrectly described “Interim/Interlocutory” order dismissing the UEGF’s Joinder Petition.

Is there a takeaway?

If there is, it is that “not subject to appeal” might not always be an accurate description of the appealability of a decision otherwise described as being “Interim”, meaning that an “Interim” order needs to be carefully reviewed to determine the issues being decided, as well as their finality.

ConnorsO’Dell LLP

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.

AN IMPERFECT IMPAIRMENT IN PENNSYLVANIA

By Kevin L. Connors, Esquire

No, this is not a political diatribe on the politically insensitive defect who promises to make “America great” while asking us to believe that only he has the power to do so.

Instead, we are talking about the Pennsylvania Supreme Court’s most recent pronouncement on impairment ratings that became the subject of its ruling inIA Construction Corporation/Liberty Mutual v. WCA Appeal Board (Rhodes), decided on May 25, 2016.

If interested in a copy of the Decision, kindly file the appropriate request, utilizing the appropriate Bureau form.

In IA Construction Corporation, The Pennsylvania Supreme Court dealt with the validity of a workers’ compensation Judge’s decision to reject the opinion testimony of the physician performing an impairment rating examination for the employer/insurer, where no contrary evidence was ever produced, or, for that matter, adduced, by the Claimant.

The background of this case arose in the context of Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, promulgated in 1996 by the Pennsylvania General Assembly to address the rising costs associated with the workers’ compensation liability scheme. Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).

Under Section 306(a.2) of the WCA, an employer or insurer can request an impairment rating evaluation (IRE) when a Claimant has received 104 weeks of temporary total disability benefits; the IRE is a medical examination directed toward assessing the degree of the Claimant’s impairment attributable to a compensable injury.

In that same context, “impairment” connotes an anatomical or functional abnormality or loss resulting from a compensable injury that is reasonably presumed to be permanent, clearly distinguished from the compensation concept of “disability,” which more broadly concerns the loss of earnings capacity.  See Dillon v. WCAB (Greenwich Collieries),640 A.2d 386 (Pa. 1994).

As those of us practicing in Pennsylvania know all too well, the concept of “disability” under the WCA encompasses the incapacity to work resulting in compensable wage loss, clearly distinct from the concept of permanent impairment.

In IA Construction Corporation, the Claimant was injured in a motor vehicle accident in 2005, with the Claimant’s entitlement to workers’ compensation benefits litigated under a Claim Petition.

The Claimant’s Claim Petition was then granted by the workers’ compensation Judge in 2007, with the Claimant awarded temporary total disability benefits, finding that the Claimant had sustained work-related injuries, described by the WCJ as a traumatic brain injury with organic affective changes, persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.

A few years later, the employer/insurer filed the appropriate notice, utilizing an appropriate Bureau form, requesting that the Bureau designate a physician to conduct an impairment rating evaluation of the Claimant.

In its infinite wisdom, the Bureau designated Dr. Bud Lateef, a physician maintaining board certifications in physiatry, rehabilitation, and pain management, to conduct an IRE of the Claimant.  

Given that the IRE was requested outside the period associated with the IRE being accorded automatic conversion of the Claimant’s temporary total disability benefits to temporary partial disability benefits, a very narrow window triggered by the 104 weeks receipt of temporary total disability benefits (“TTD”). The employer  filed a Petition seeking to modify the Claimant’s worker’s compensation benefits, in reliance upon the IRE, seeking to convert the Claimant’s compensation benefits from TTD to temporary partial disability (“TPD”).

Following assignment of the petition to the workers’ compensation Judge, the employer/insurer deposed Dr. Lateef, who assigned the Claimant an impairment rating of 34%.  Testifying that he examined the Claimant and reviewed the Claimant’s medical records, Dr. Lateef confirmed three primary diagnoses, described as the traumatic brain injury, a cervical condition in the nature of a herniated disc, and a spinal condition resulting in gait dysfunction. 

Testifying that he assigned discrete impairment ratings to each of those three conditions, Dr. Lateef testified that the three conditions constituted a 34% impairment rating under the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).

Parenthetically, the constitutional argument raised in Protz v. WCAB,124 A.3d 406(Pa. Cmwlth. 2015), challenging the impairment rating examination process in that case, as it used “the most recent edition” the AMA Guides, being the Sixth Edition, as opposed to utilizing the Fourth Edition, which was the controlling AMA Edition when the impairment regulations were promulgated in 1996, was not raised inIA Construction Corporation, and was not, therefore, considered by the Pennsylvania Supreme Court in this ruling.

In IA Construction Corporation, the employer then submitted the deposition testimony of Dr. Lateef, as well as his IRE report, in response to which the Claimant did not present any evidence whatsoever, nor did the Claimant testify on his own behalf.

Denying the employer’s Modification Petition, the WCJ rejected Dr. Lateef’s testimony regarding his impairment rating opinion, expressing concern that Dr. Lateef had “inappropriately lumped” an array of discrete injuries into three categories, with the WCJ referring to the injuries that had been described by the workers’ compensation Judge in the course of granting the Claimant’s original Claim Petition.

Moreover, the WCJ, in denying the employer’s Modification Petition, was critical of Dr. Lateef for failing to adequately account for all of the injuries described in the decision under which the Claimant’s Claim Petition had been originally granted.

Additionally, the WCJ criticized Dr. Lateef’s assessment of the Claim’s cognitive issues as being unduly limited, based on Dr. Lateef only performing a cursory examination, and otherwise limiting his opinion to his review of the Claimant’s medical records. Since Dr. Lateef’s medical expertise was limited to physical medicine and pain management, and not neurology, the WCJ rejected Dr. Lateef’s opinion concerning his impairment assessment of the Claimant’s cognitive deficits. 

The employer’s Appeal of the WCJ’s decision was then denied by the Workers’ Compensation Appeal Board in a divided opinion, with the majority substantially relying upon the principle that a WCJ, as the ultimate fact finder, is accorded discretion to determine the weight to be accorded to any evidence presented.  Rhodes v. IA Construction Corporation,No. A11-1630 (WCAB, 11/5/13).

The Appeal Board’s decision did so on grounds that the IRE, at least procedurally, was conducted in accordance with the requirements to the Act, further attributing  significance to the fact that employers do not participate in the process selecting IRE physicians, as that function is left to the administrative discretion of the Bureau.

Appealed to the Commonwealth Court, the Commonwealth Court reversed the Decisions of the WCJ and Appeal Board, holding that Dr. Lateef’s IRE conclusions satisfied the WCA’s qualifications for IRE physicians, and that Dr. Lateef had followed the statutorily-described methodology for conducting the IRE.  See IA Construction Corp. v. WCAB (Rose),110 A.3d 1096 (Pa. Cmwlth. 2015).

Taking the position that the WCJ lacked the authority to reject the testimony of a physician on the basis that cognitive impairment was outside the area of his specialization, the Commonwealth Court held that the “WCJ’s opinion as to the insufficiency of an IRE cannot stand without some record support”.  Id. at 1102.

Since the Claimant had failed to adduce any evidence on his own behalf, the Commonwealth Court held that the WCJ never referenced any provisions of the AMA Guides, or any other evidence that supported her conclusions that Dr. Lateef had mischaracterized or improperly grouped the Claimant’s injury, or that Dr. Lateef had erroneously miscalculated the impairment rating assigned to the Claimant.

Reflecting that impairment rating examinations and procedures were enacted as a cost-containment scheme focusing upon “impairment”, as opposed to “disability”, the latter being the traditional core of the workers’ compensation scheme, the Pennsylvania Supreme Court, in an opinion authored by Chief Justice Saylor, noted that the enactment of impairment rating regulations and procedures was essentially experimental legislation, subject to conceptual and other difficulties that have become increasingly evident over time, with there being certain conflicts that have appeared between the legislative statute and the AMA Guides, particularly with respect to the timing of a Claimant reaching maximum medical improvement. Combine v. WCAB (Nat’l Fuel Gas Distribution Corporation), 954 A.2d 776, (Pa. Cmwlth. 2008).

Citing to the incongruities that have arisen from the impairment rating statute, Justice Saylor suggested that this is an area of law that is ripe for legislative review, so that the statute can be clarified, and improved, to enhance fairness, incorporating the many compromises and trade-offs that are inherent in a workers’ compensation liability scheme, for purposes of implementing the manifest intentions of the policy-making branch (the Bureau), subject to constitutional limits.

Noting the conflict in the WCJ’s Decision between the “credibility” and “persuasiveness” of the opinions rendered by Dr. Lateef, the Supreme Court rejected the employer’s argument that to reject the opinion of Dr. Lateef in the absence of any contrary evidence was tantamount to an evisceration of the substantial-evidence review principle, with the Supreme Court held that the substantial-evidence facet of the appellate review of an administrative agency adjudication did not simply apply to scenarios in which the prevailing party presented no evidence whatsoever,  rather, these matters must turn upon the weight attributed by the fact-finder of the evidence presented by the party bearing the burden of proof.

Since the employer in IA Construction Corporation carried the burden to establish the factual and legal basis for the modification of compensation benefits that it sought, the Supreme Court held that the WCJ was free to accept or reject the employer’s evidence, even in the absence of any contrary evidence being presented by the Claimant.

Addressing employer’s argument that the WCJ’s analysis of Dr. Lateef’s opinion was superficial, particularly in reference to Dr. Lateef’s opinions concerning the Claimant’s brain injury, the Supreme Court noted that an examination for a neurological impairment “should be based on a detailed mental status examination, often in concert with neuropsychological assessment and testing”, with the Supreme Court finding that there was very little support in Dr. Lateef’s deposition testimony, or IRE report, suggesting that Dr. Lateef had undertaken a detailed mental status examination of the Claimant.

Moreover, the Supreme Court noted that Dr. Lateef’s testimony did not elaborate on the differences in impairment attaching to the different classes of neurological impairment, failing to address what additional impact the Claimant’s impairments would have on the activities of daily living, potentially affecting the impairment rating percentage that could potentially be assigned to the Claimant’s work-related injuries.

The Court also noted that other jurisdictions allowed WCJs to assign lesser weight to an underdeveloped and out-of-specialty impairment rating that was not contradicted by opposing medical evidence, relying uponAdams v. Massanari, 55 Fed. 2Fed. F Appx. 279 (6^th Circuit 2003) (explaining that, as a general rule at least, an administrative law judge “may discredit the opinion of a physician that is outside their area of expertise” (citingTurley v. Sullivan, 939 F.2d 524 (8^th Circuit 1991))).

Ruling summarily that the Supreme Court had previously determined that a physician’s impairment rating opinion was subject to “vetting through the traditional administrative process.”, theDiehl v. WCAB, 5 A.3d 245), the Supreme Court held that the Commonwealth Court had erred in its conclusion that a workers’ compensation judge lacked the authority to reject the uncontradicted testimony of an IRE physician, reversing the Commonwealth Court’s reversal of the Decisions by the WCJ and Appeal Board, with the Supreme Court remanding the case back to the WCJ, for reinstatement of the WCJ’s original adjudication.

Justices Baer, Todd, Donohue, Doughtery, and Wecht joined in Justice Saylor’s opinion.

TakeAways

Be careful what we wish for.

Obviously, the factors that influenced the Supreme Court in IA Construction Corporation clearly distinguish the logistical gap between the injuries originally found to be work-related and compensable under the initial granting of the Claimant’s Claim Petition, as opposed to the injuries evaluated by Dr. Lateef, in the course of conducting the IRE in question.

That appears to have been a fatal flaw in Dr. Lateef’s IRE findings and conclusions by the Supreme Court.

Unknown is whether Dr. Lateef had any knowledge as to the injuries found to be compensable and work-related when the Claimant’s Claim Petition was originally granted.

However, it is clear that the Supreme Court took issue with the fact that Dr. Lateef, a board-certified physiatrist, was assigning an impairment rating to a cognitive impairment, one presumably associated with an accepted and adjudicated work injury, when Dr. Lateef lacked either expertise or qualifications in the medical specialty of neurology, more traditionally associated with the evaluation of cognitive deficits and injuries.

A very different result might have been achieved if the Bureau had assigned the Claimant’s impairment rating examination to a board-certified neurologist, presumably qualified and competent to evaluate a cognitive injury, in the context of potential impairments.

So who is ultimately responsible for matching an accepted injury with the appropriate qualifications to evaluate injury-related impairments, with that responsibility being left, at this point, to the infinite wisdom of the Bureau, oftentimes making random impairment rating physician designations.

ConnorsO’Dell LLP

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.

                                                                     THE PA COMMONWEALTH COURT

DENIES COMPENSATION FOR PARKING LOT INJURY

By

Kevin L. Connors, Esquire

Inconceivable!

Interesting facts produce interesting law!

This was the case in Quality Bicycle Products, Inc. v. WCAB, decided by the Pennsylvania Commonwealth Court on April 25, 2016.

Quality Bicycle involved a course and scope of employment case, with Claimant originally being awarded workers’ compensation benefits by the Workers’ Compensation Judge, the award being affirmed by the Appeal Board, and the award then being overturned and reversed by the Commonwealth Court, which held that the Claimant’s injury, on the employer’s premises, did not occur within the course and scope of employment, as it was not caused by “a condition on the premises”.

Back to our interesting facts.

In Quality Bicycle, the Claimant was working in his employer’s warehouse when he was paged over the intercom that he had a telephone call from his fiancé, who was hysterical that their 9 year old daughter was missing from school.

The Claimant immediately told his manager that he had to leave work, for a family emergency.  Attempting to clock out, Claimant’s manager told him that he would clock out for him, and the Claimant immediately left the building.

As the Claimant was hurrying to his car, only about 10 or 12 feet into the parking lot, he felt a pop in his knee, and fell to the ground, unable to bear weight on his leg.

Ambulanced to the hospital, the Claimant eventually required surgery on his injured knee.

In support of his Claim Petition, Claimant testified that he was injured in the parking lot where he always parked for work, that all of his co-workers also parked in that parking lot, and that his employer had told him to park there for work.

However, the Claimant also testified, presumably on cross-examination, that there was no condition or abnormality of the parking lot that caused him to fall, as his knee simply gave out.

Awarding benefits to the Claimant, the Workers’ Compensation Judge accepted the Claimant’s testimony as being both credible and persuasive, including that the Claimant was injured on the employer’s premises in the course and scope of his employment.

Affirmed by the Appeal Board, probably through a statistical anomaly, the employer’s appeal to the Commonwealth Court argued that the Claimant’s injury was not in the course and scope of employment as the Claimant should have been required to prove, since he was not furthering the business or affairs of the employer when injured, each of the three following elements:

·         The injury must have occurred on the employer’s premises;

·         The employee’s presence on the employer’s premises was required by the nature of his employment; and,

·         The Claimant’s injury was caused by the condition of the premises, or by operation of the employer’s business, citing to Section 301(c)(1) of the Act and the Commonwealth Court’s 1991 Decision inMarkle v. WCAB, 785 A.2d 151, 153 (Pa. Cmwlth. 2001).

In reversing the Claimant’s award of compensation, the Commonwealth Court held that the Claimant was unable to prove that his knee injury was caused by a condition on the premises, such that the Claimant was not able to satisfy the requirements of Section 301(c)(1).

Reversing the Claimant’s award of compensation benefits, the Commonwealth Court reviewed several course and scope of employment decisions in which it had concluded that the Claimants’ injuries were not caused by conditions on the employer’s premises, to include:

·         Markle, involved the Claimant being injured while climbing over the center console in the front seat of her car, because the employer’s parking lot was snow-covered and the truck parked next to the Claimant was too close to allow her to open her driver’s side door, with the Court holding that the Claimant’s injury was caused by the Claimant’s act of climbing over the console, and not by any condition on the employer’s premises, to include either the accumulated snow, or the car parked next to the Claimant’s car;

·         Dana Corporation (548 A.2d 669), involving the Claimant being injured in the employer’s parking lot when a co-worker’s car moved backward as the Claimant was attempting to help push the car forward, with the Court determining that the Claimant’s injury was caused by the movement of the car, and not by the condition of the premises;

·         Anzese (385 A.2d 625), involving the Claimant being killed when he was struck by lightning in the employer’s parking lot, with the court holding that “death from lightning was in no way related to the condition of the premises …”

For argument sake, the Court also reviewed several decisions in which it had found that the Claimant’s injury, while not furthering the employer’s business or affairs, were caused by conditions on the premises, including:

·         WCAB v. United States Steel (376 A.2d 271), in which it was concluded that the employee’s injury was caused by a condition on the premises, when the employee, while driving to work in the employer’s parking lot, suffered a seizure and crashed into a concrete abutment, concluding that the abutment was a condition on the employer’s premises that contributed to the employee’s death;

·         Newhouse (530 A.2d 545), involving the employee being injured when thrown from the hood of a co-worker’s car on an access road on the employer’s premises, when the co-worker made an unexpected turn on the access road due to a closed exit gate, concluding that the closed exit gate and a bend in the road were conditions on the employer’s premises contributing to the employee’s injury.  

Since the Claimant did not allege, in Quality Bicycle, that the parking lot caused or contributed to his injuries, admitting that no physical condition of the parking lot caused his injury, the Commonwealth Court held that the Claimant had failed to prove any connection between his injury and any condition on the employer’s premises, resulting in the reversal of the Claimant’s compensation benefit award.

This appears to be a very straightforward decision predicated on the Claimant’s own testimony that his injury simply occurred, for no apparent reason, there being testimony from the Claimant himself that he was not injured because of somethingin or on the parking lot.

Keep in mind that this holding is also predicated on the Claimant’s injury occurring when the Claimant was not doing anything that could be construed to prove that the Claimant was furthering the business or affairs of the employer, as the Claimant was regrettably injured when responding to a family emergency.

Again, interesting facts make interesting law.

ConnorsO’Dell LLP

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.

PARENTAL NIGHTMARE, OR A VIOLENT COURSE AND SCOPE OF EMPLOYMENT PENNSYLVANIA CASE

By

 Kevin L. Connors, Esquire

Does being brutally stabbed by your son at home in the middle of the night while you sleep warrant an award of workers’ compensation benefits?

This is not a trick question. 

It was the critical factual/legal issue in O’Rourke v. WCAB, a decision issued by the Pennsylvania Supreme Court on October 27, 2015.

Not surprisingly, the critical issue was whether the undisputed injury occurred within the course and scope of employment, a necessary prerequisite for any award of workers’ compensation benefits in Pennsylvania.

In reversing the Pennsylvania Commonwealth Court, which had found that the Claimant had sustained her burden of proving that her injury occurred within the course and scope of employment, the Pennsylvania Supreme Court, in a Decision authored by Justice Stevens, ruled that the Claimant was not engaged in the furtherance of the employer’s business interests, when sleeping in her bedroom as she was brutally attacked by her son, such that the Court held that the Claimant’s injuries did not occur within the course and scope of her employment, and were not, therefore, compensable under the Pennsylvania Workers’ Compensation Act.

A ruling clearly predicated on statutory logic, defying deference to tragic circumstances.

In O’Rourke, the Claimant worked for accessAbilities, a state-funded program run by the Pennsylvania Department of Public Welfare. 

Employed by accessAbilities, she was paid hourly to provide attendant care for her 33 year old son, who suffered from a variety of complicated health issues caused by long-term drug use.

Begging the necessary question of how an employer-employee relationship existed, the Supreme Court considered that the employment arrangement was designed as a consumer model of service delivery, with the individual requiring care being the employer, necessitating that workers’ compensation insurance coverage be secured, with the employer, herein, the son in need of care, being responsible for hiring, training, disciplining, and terminating employees.

The state-funded program then acted as a payroll agent for any employees, as well as to meet employer needs if necessary.

In O’Rourke, the employer arrangement initiated when the Claimant’s son had his leg amputated in 2007.  Subsequent to the Claimant’s son undergoing in-patient rehabilitation, arrangements were made for the son to move in with the Claimant, to live more independently, in 2008.

Several weeks later, the Claimant and her son enrolled in accessAbilities, and the Claimant was trained to assist her son with dressing, bathing, wound care, taking medications, preparing meals, and transportation.

The son received funding through the state for 64 hours of care each week, although he never qualified to receive nighttime or 24-hour care.

Since the son was living with the Claimant, he requested that she provide him with care in the evening, if she was awake.  If the Claimant provided any nighttime care, she would log those hours against the next day that she would work.

Typically, she worked 40 hours per week, Monday through Friday, and then 12 hours per day on both Saturday and Sunday.  Her hours were recorded on timesheets through Halo, an online computerized system that allowed her to clock in and out each day.

On April 10, 2009, the Claimant returned home around 10:00 p.m., after a night of BINGO.  

When she came home, her son asked her to make him something to eat, although the Claimant asked if she could first change her clothes.

An argument then ensued between the two, although the Claimant did change her clothes, fed her son, and then went to sleep around 11:30 p.m.

In the early morning hours of April 11, 2009, the Claimant’s son came into the Claimant’s room, jumped on top of her, slashed her throat, and then stabbed her several times with a butcher knife, screaming, less than endearingly, “I’ll kill you, you fucking bitch”.

Anyone recall Oedipus Rex by Sophocles?

Surviving the violent attack, the Claimant then filed a Claim Petition against her son’s insurer, State Workers Insurance Fund (SWIF), alleging that she had sustained a work-related injury, resulting in the specific loss of her left arm, further claiming that she was also suffering from psychological injuries, unrelated to simply being a parent.

She then also filed a Review Petition, seeking medical treatment, as well as claiming that she was suffering from post-traumatic stress disorder (PTSD).

The WCJ bifurcated the litigation, in order to initially determine the course and scope of employment issue.

In support of her petitions, the Claimant testified to the employment arrangement, as well as the gruesome details of the attack causing her injuries.

A coordination specialist witness testified for accessAbilities. 

That testimony clarified that the Claimant’s son, as employer, never qualified for overnight care, as that level of care required a traumatic brain injury.

The accessAbilities witness also testified that the Claimant’s timesheets indicated that she never recorded working late night or early morning hours when caring for her son.

Initially determining that the Claimant’s injuries were compensable, finding that the injuries occurred within the course and scope of employment, the WCJ nevertheless concluded that the Claimant was not actually engaged in the furtherance of the employer’s (her son) business or affairs at the time of her injury, as she was sleeping when attacked, further finding that the Claimant did not routinely provide care to her son, who the WCJ found did not qualify for overnight care, with the WCJ concluding, however, that the Claimant was on the “employer’s premises” when injured, thereby entitling her to workers’ compensation benefits under the Interlocutory Order issued by the WCJ.

In determining that the Claimant’s injuries occurred within the course and scope of her employment, the WCJ also rejected SWIF’s argument that the Claimant’s injuries resulted from “personal animosity”, a defense that negates the compensability of alleged work-related injuries when the injuries occur as a result of reasons personal to the attacker and Claimant under Section 301(c)(1) of the Act.

Subsequent to the initial determination by the WCJ that the Claimant’s injuries occurred within the course and scope of employment, the medical issues were then litigated with the WCJ issuing a Decision awarding compensation benefits to the Claimant for both temporary total disability and specific loss benefits, with the specific loss benefits obviously only being recoverable after exhaustion of the temporary total disability benefits.

Both parties then appealed, with the Claimant contesting some of the Findings of Fact made by the WCJ, and with SWIF appealing the determination that the Claimant’s injuries occurred within the course and scope of her employment.

The Appeal Board then reversed the WCJ’s Decision, holding that the Claimant’s injuries did not occur within the course and scope of her employment as she was neither furthering the employer’s interests, nor did her employment require her to be “on the premises”, at the time of her injury, in reliance upon Slaugenhaupt v. US Steel, 376 A.2d 271 (Pa. Cmwlth. 1977); the seminal “on the premises” course and scope of employment workers’ compensation decision in Pennsylvania.

Effectively, the Appeal Board held that the Claimant was not “required” to “remain on the premises” once she finished her work duties and went to bed, further finding that the Claimant’s “employee status” ended, as she simply became a resident of the house, when she “embarked on a course of ‘recreation separate and distinct from the duties of her employment’.”, when she went to bed.

Appealed to the  Commonwealth Court, the Court reversed the Appeal Board’s Decision, reinstating the WCJ’s award of compensation to the Claimant, in the course of finding that the Claimant was entitled to compensation as she was “practically required” to live on the premises because of her employment.

Ever hear of the “bunkhouse rule”, cited in Malkay v. Kaskminetas Valley Coal Company, 123 A. 505 (Pa. 1924); a Decision in which coal miners were awarded workers’ compensation benefits for injuries that occurred while the coal miners were required to live on the employer’s premises?

Talk about working at home.

Concluding that the Claimant was required to live on the “work premises”, in order to provide care to the Claimant, the Commonwealth Court held that “when an employee is injured on the work premises by the act of another employee, there is a rebuttable presumption that the employee is covered by the Act.”  Citing to General Electric v. WCAB, 412 A.2d 196 (Pa. Cmwlth. 1980).

In reliance upon General Electric, the Commonwealth Court transferred the burden of proof from the Claimant to the employer (SWIF), to establish that the Claimant’s injuries were the result of an attack caused by personal animus, with the Court agreeing with the WCJ’s decision that SWIF failed to sustain its burden of proving that the attack resulting in the Claimant’s injuries was motivated by personal animus, instead of being related to the employment arrangement between the Claimant’s son and the Claimant.

Affirming the WCJ’s findings of fact, the Commonwealth Court held that the reason for the Claimant’s son assaulting the Claimant remained unknown, there being no evidence in the record from which a conclusion as to cause could be inferred.

Granting SWIF’s Petition for Allowance of Appeal, the Pennsylvania Supreme Court held that the Claimant had “clearly departed from her work duties and was engaged in a purely personal activity when she was attacked while sleeping in her bedroom”, it being clear that the Claimant was not engaged in the furtherance of the employer’s business when injured, such that the only scenario under which the Claimant would be allowed to recover workers’ compensation benefits is if it was proven that the Claimant was injured while on “premises occupied or under the control of the employer”.

This burden of proof would also require an analysis as to whether the Claimant’s presence, in her bedroom, at the time of the attack was “required by the nature of her employment”.

Reversing the Commonwealth Court’s finding that the Claimant was required to be “on the premises” when injured, the Supreme Court held that the Claimant’s employment contract and job description never required the Claimant to work late-night shifts, or to provide 24-hour care, or to be on call for son’s needs, as her son never qualified to receive funding for an overnight caretaker, given that his medical condition did not warrant such care.

So holding, the Pennsylvania Supreme Court ruled that the Claimant’s “presence in her bedroom in the middle of the night was not required by the nature of Claimant’s employment”, such that the Claimant should not have been entitled to an award of workers’ compensation benefits.

The Supreme Court also held that the Commonwealth Court’s reliance upon the Supreme Court’s earlier decision inMalky, was misplaced, as the “bunkhouse rule covered situations in which an employee’s living arrangements in the work presence is reasonably necessary to perform the tasks required by the employer.”

In Malky, the employees were required to be on the employer’s premises 24 hours a day, withMalky involving union coal mine workers being killed in an explosion when striking workers threw a bomb into the mine bunkhouse in the middle of the night, with the WCJ initially denying compensation, finding that the mine workers were not required to be on the employer’s premises at the time of the explosion, with the Supreme Court holding that the mine workers were required to be on the employer’s premises 24 hours a day, and that the employer occupied and controlled the premises where the mine workers were killed.

The Supreme Court also held that the Commonwealth Court in O’Rourke failed to recognize that the bunkhouse rule should only result in an employee being compensated for work-related injuries that result from normal activity during the employee’s leisure time, if the employee is required to live on the employer’s premises and the premises are controlled and used by the employer in its business.  SeeMalky, 123 A. at 506.

In short, the bunkhouse rule imposes workers’ compensation liability on an employer requiring its workers to live in employer-furnished premises, when the employer controls, maintains, and uses the premises for its own benefit.

The rationale underlying the bunkhouse rule is that “an employee’s reasonable use of the employer’s premises constitutes a portion of the employee’s compensation.” Pierre v. Seaside Farms, Inc., 689 S.E. 2d, 615 S.C. (2010).

Consistently acknowledging the remedial nature of the Workers’ Compensation Act, intending that the benefits inure to injured workers, the Supreme Court nevertheless held that it was “mindful that the Act was not intended to make the employer an insurer of its employees’ lives and health.”  Kmart Corporation v. WCAB, 748 A.2d 660 (Pa. 2000).

Holding that the Claimant was not engaged in furtherance of her son’s business when she was attacked while sleeping in her bedroom, nor did the nature of her employment require her to be in the bedroom at the time of the attack, the Pennsylvania Supreme Court concluded that her injuries were not sustained in the course and scope of her employment, and were not, therefore, compensable under the Workers’ Compensation Act.

A dissenting opinion was submitted by Justice Todd, in the course of which Justice Todd would have held that the nature of the Claimant’s employment did require her to live with the employer, her son, and that her home was, therefore, the “work premises”.

TAKE AWAY

Clearly, this is a highly unusual case, involving unique circumstances.

All kinds of factors were at play in this case, with our analysis being that the Supreme Court correctly decided that the Claimant’s injuries were not sustained within the course and scope of her employment, and that the nature of her employment relationship did not require the Claimant’s presence “on premises” controlled or occupied by the employer, her son.

Given the highly unusual facts involved with this case, course and scope of employment issues need to be carefully scrutinized for factual inconsistencies defying statutory logic.

ConnorsO’Dell LLP

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.

TO BE EMPLOYED OR INDEPENDENT IN PENNSYLVANIA

By

Jeffrey D. Snyder, Esquire

In the Commonwealth Court’s Opinion in Agatha Edwards v. WCAB (Epicure Home Care),1106 C.D. 2015, filed March 10, 2016, the Court re-visited the issue of employee versus independent contractor. 

The Claimant was a personal caretaker who received her assignments through Epicure.  The case was bifurcated before the WCJ below to address the employee versus independent contractor issue. 

The Workers’ Compensation Judge (WCJ) concluded that the Claimant was an Employee.  On the Employer’s appeal to the Workers’ Compensation Appeal Board (WCAB), that Decision was reversed.  That reversal was affirmed by the Commonwealth Court (Court).

The WCJ considered that Epicure, referred to as the “Company” in this Court Opinion, registered and screened caretakers and then matched caretakers to clients in need of in-home care.  The Claimant worked for the Company for some six years before the date of injury.  The Company controlled work assignments and set wages. 

The Company advised the Claimant of the client’s condition, set work hours, and required the Claimant to check in and out when working on assignments.  The Company set guidelines for care and provided a related manual to the caretaker.  A caretaker could be removed from an assignment by the Company.

The Claimant was injured when she fell down a flight of steps in a client’s home.

A classic OOPS!

The WCJ noted that the Claimant worked as a caretaker for over 19 years, never working independently but always associated with an agency.  The Company billed the clients at a suggested rate for services and the clients then sent separate checks to the Company and to the Claimant. 

The Claimant deducted her own taxes - and her tax returns identified her as self-employed.  The Company did not inform the Claimant that it would not provide workers’ compensation insurance coverage.  Eventually, and before her accident, the Claimant signed an Employment/Independent Contractor Agreement with the Company.

The WCAB, in reversing the WCJ, relied on an unpublished Opinion in Fletcher v. WCAB (Saia d/b/a Visiting Angels), Pa. Cmwlth. Ct. 1664 C.D. 2009,filed March 26, 2010;  unpublished Opinions may be cited as persuasive, but not as controlling precedent, per the Operating Rules of the Court. 

Fletcher was said to involve similar facts as here, and in that case, the Court had concluded that the home health caregiver was an independent contractor.

The Claimant argued on appeal to the Court that the WCAB was re-weighing the evidence and substituting its own fact-finding for that of the WCJ.  The Court determined that it was not dealing with issues of credibility as much as issues of law relative to the employee versus independent contractor status of the Claimant. 

The Court noted that the Claimant had the burden of proof on this Claim Petition, and that: “The existence of an Employer-Employee relationship is a question of law based on the facts presented in each case”.  The Court cited to the case ofHammermill Paper Company v. Rust Engineering Company, 243 A.2d 389 (Pa., 1968), for factors indicative of employee versus independent contractor status.  These factors include ten items for consideration:

            (1) Control of manner in which the work is done;

            (2) Responsibility for result only;

            (3) Terms of agreement between the parties;

            (4) Nature of the work/occupation;

            (5) Skill required for performance;

            (6) Whether one is engaged in a distinct occupation or business;

            (7) Which party supplies the tools/equipment;

            (8) Whether payment is by time or by the job;

            (9) Whether work is part of the regular business of the ‘Employer’; and,

            (10) The right of the ‘Employer’ to terminate employment. 

The Court observed that one factor is not dispositive, with control over the work to be completed and the manner in which it is to be performed being the primary factors in determining employee status.  Payment is not determinative, citing toAmam. Rd. Lines v. WCAB (Royal), 39 A.3rd 603 (Pa. Cmwlth., 2012), nor is a declaration of self-employment on a tax filing dispositive, citing toGuthrie v. WCAB (The Travelers Club, Inc.), 854 A.2d 653 (Pa. Cmwlth., 2004).

The Court agreed with the WCAB that the facts in Fletcher were nearly identical to those presented in this case.  The Court nonetheless observed that the WCJ made findings supporting status as an independent contractor.  Although the Company billed clients and set a suggested rate of pay, the clients paid Claimant directly and determined the rate of pay.  The Claimant deducted her own taxes.  The Claimant identified herself as self-employed on her tax returns.  The Company did not provide its caretakers with any sick time, vacation or holiday pay.  The Claimant signed an Employment Agreement, which provided that caretakers are not employees of the Company.  The Claimant was free to work for other agencies.

In the view of the Court, the WCAB did not re-weigh the evidence or substitute its findings for that of the WCJ.  The Court considered this case similar to that inFletcher, but nevertheless held that ultimately the findings of the WCJ did not support the legal conclusion that Claimant was a Company Employee.  The Court did not specifically distinguish the facts inFletcher, but noted that as an unreported Opinion, it could be cited as persuasive authority, although not as a controlling precedent. 

The Court made no mention whatsoever of Pennsylvania’s adoption of the Construction Workplace Misclassification Act, a statute specifically designed to provide parameters for independent contractor versus employee status in the construction industry, in this Opinion.

The take away from this case is that the determination of Employee versus independent contractor status resides in the details, and that the structuring of the relationship is the key to determining the issue and surviving appellate review.

ConnorsO’Dell LLP

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.