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.
Do you have a ping-pong table at your office? If not, maybe you should lobby for one. That’s the implication from an article in the June 24th edition ofThe Wall Street Journal which describes the extraordinary steps that insurance companies are taking to recruit, and retain, employees these days.
For example, according to theJournal, Acuity Insurance has furnished its offices with ping-pong tables, a 45-foot climbing wall, and a 27,000 square-foot fitness center, and it organizes twice-monthly happy hours to boot. And at school-recruiting events last autumn, Acuity reportedly served mounds of freshly cooked bacon, whose aroma drifted around the grounds. Also according to theJournal, some insurers are taking a page from Silicon Valley’s hip offices. For example, Allstate Corp. has a “happiness guru” in a building where it locates many data scientists.
The reason for these over-the-top enticements? It turns out that Americans under 30 (millennials) generally aren’t excited about the idea of working for an insurance company (gasp!). And that’s a problem because insurers reportedly must hire 500,000 newcomers over the next several years as a wave of retirement hits.--David L. Swanson, Stone Loughlin & Swanson, LLP
On June 29, 2017 the North Carolina General Assembly passed House Bill 26 which amends G.S. § 97-82(b) of the Workers’ Compensation Act. As previously discussed,Wilkes v. City of Greenville held that when a claim was accepted as compensable pursuant to a Form 60 or section 1 of a Form 63 that a rebuttable presumption was created that any additional medical treatment was related to the compensable condition. The rebuttable presumption was not limited to the specific body part or medical condition accepted in the Form 60 or 63. The overall impact of the legislature’s change is to limit the scope of any medical presumption. The legislation has been passed by the General Assembly and is now awaiting approval by Governor Cooper before it can become law.
Amendment to G.S. § 97-82(b)
The reformed G.S. § 97-82(b) expressly states that filing a Form 60 or 63 shall not create a presumption that medical treatment for an injury or condition not identified in the Form 60 or Form 63 is causally related to the compensable injury. The amendment applies to all accrued or pending claims. A claimant can request a full evidentiary hearing to prove that any additional injury or condition is causally related to the compensable injury.
Recommendations for Claim Acceptances and Denials
Filing a Form 60 or 63
Teague Campbell’s recommendation is that employers and carriers handling workers’ compensation claims be as specific as possible when describing exactly which injuries or conditions are being accepted as compensable on a Form 60 or 63. There will be a medical presumption created for any listed injuries or conditions, but no presumption created for injuries or conditions that are not specifically listed. In addition, employers and carriers can still use a Form 63, section 2, to pay for medical treatment, in medical only cases, without prejudice. We do not recommend adding language to the Form 60 or 63 in an attempt to modify or limit the IC forms because those modifications will likely not be accepted by the Commission and would have no practical effect.
Filing a Form 61
We do not recommend filing a generic Form 61 attempting to provide a universal denial of all claims not specifically listed on the Form 60 or 63. This is not necessary and could pose some unintended consequences for defendants. Although filing a Form 61 with a Form 60 or 63 is not necessary because no presumption is created for conditions not specifically accepted, there may be certain circumstances where filing a Form 61 for a denied condition might be appropriate. Please contact Teague Campbell with questions regarding filing a Form 61 in these situations.
Consideration of Other Issues Raised by Wilkes
As part of the negotiations amend G.S. § 97-82(b), representatives for both employees and industry have agreed to continue to discuss issues raised byWilkes concerning how employees prove a disability during the remainder of the 2017-2018 legislative session. In addition, both sides have agreed to discuss the potential implications ofWilkes in medical only cases, including cases where medical benefits are paid without prejudice under Section 2 of a Form 63, and whether an expedited hearing process should be available to claimants seeking to prove that an additional condition or body part not listed on the Form 60 or 63 is related to the compensable injury.
Beginning July 1, 2017, there will be a new statutory maximum and minimum workers’ compensation rate along with other rate and reimbursement changes. If you want to receive our Rate Sheets and Summary of Workers’ Compensation Law in SD, please contact Cheri Fodness at cafodness@boycelaw.com.
Summer is upon us and the 4th of July is just around the corner. Almost as exciting as fireworks is the third prong of the five-part rehabilitation test for South Dakota workers’ compensation claims. As Laura mentioned in last week’s blog post, I have the honor of discussing the third prong and what it means to you in evaluating your work comp claim. The third prong of the five-part test provides: The program of rehabilitation must be a reasonable means of restoring the employee to employment.
When determining whether a rehabilitation program is reasonable, the South Dakota Supreme Court has declared that the Claimant bears the burden of establishing the reasonableness of the program. Chiolis v. Lage Development Co., 512 N.W.2d 158, 161 (SD 1994). In considering an appropriate rehabilitation program, the Department “must not lose sight of the fact the employer has a stake in the case” and “the employer is required to ‘underwrite’ the expenses of rehabilitation.” Id. An injured worker cannot insist upon a college education if other suitable employment opportunities exist that do not require college training. Id. at 160, (quoting Barkdull v. Homestake Mining Co., 411 N.W.2d 408, 410 (S.D. 1987).
When reviewing requests for rehabilitation, the parties must look at the claimant’s underlying career and wages to determine the reasonableness of the requested/suggested rehabilitation program. For instance, it is probably unreasonable for a forty-five year old, over-the-road truck driver (who has been driving truck since he was 18), with a high school education, to get a four-year accounting degree when a two-year vocational program for bookkeeping would provide sufficient income to restore him to employment. As with the other prongs of the rehabilitation test, use of a vocational expert to address the third prong is a valuable tool to help determine whether the rehabilitation program is a reasonable means of restoring the employee to employment. The vocational expert will be able to analyze the job market, identify the average income for a variety of positions, and provide invaluable insight to evaluate the claim properly.
Stay tuned for further discussion of a rehabilitation claim in South Dakota in next week’s blog post, and the riveting discussion by Mike about the fourth prong of the five-part test. As always, feel free to contact us if you have any questions.
A good Global Positioning System can make all the difference in certain kinds of cases. Longstreet v. County of Mercer, A-3361-152 (App. Div. June 20, 2017) illustrates how effective this technology can be for claims involving injuries while driving work vehicles.
The case involved a claim by a heavy equipment operator against the County of Mercer. Mr. Longstreet reported that he injured his arm when his road grader hit what petitioner believed was a manhole while snow plowing on January 27, 2015. He reported the incident several days later. Petitioner said he started his shift on January 26, 2015 at 7:00 p.m. and was supposed to end his shift at 3:30 p.m. on January 27, 2015. He began the shift loading salt, utilizing a front end loader and was then instructed to begin snow plow operations on grader #57 at midnight. Petitioner claimed the incident occurred during snow plowing at 4:00 a.m. on Nursery Road and that he brought the grader in to the County repair shop to have the blades changed.
The problem with petitioner’s version was that the GPS showed that the vehicle petitioner said he was using to plow at 4:00 a.m. was idle from midnight to six a.m. A county witness testified that grader #57 was parked at the North Salt Dome at Mercer County Airport around midnight. Then it was moved around 2:00 a.m. to Interstate 95 where the vehicle remained stationary until 6:38 a.m. From 7:30 a.m. until 10:17 a.m., the grader was used only on four separate occasions on Nursery Road.
The County argued that the case must be dismissed because petitioner clearly could not have had an accident at 4:00 a.m. using grader #57 since the vehicle was not used at all until the morning hours, and then only briefly. During trial a repair order suddenly appeared for Grader #57. There was no repair time noted on the order. Witnesses at the County Garage could not recall fixing this vehicle that night, but the repair order referred to grader #57.
In spite of the overwhelming evidence that petitioner could not have been injured while using grader #57 at 4:00 a.m., the Judge of Compensation found the case compensable. The judge reasoned that it was possible that petitioner could have begun using Vehicle #57 at around midnight, switched to another vehicle after he brought grader #57 into the repair shop, and then got injured using this new vehicle. The Appellate Division rejected this reasoning since the record showed that petitioner was adamant that he only used one grader to plow, and that was grader #57. He never testified to using another grader, and he insisted that his injury happened in the dark of night at 4:00 a.m.. He also said that he used his personal vehicle to revisit the scene of the accident later in the morning around 10:00 a.m.
The Appellate Division reversed the ruling for petitioner and ordered a retrial of the case. The Court said that the ruling of the Judge of Compensation was without evidential support because the GPS system established beyond any doubt that petitioner was not using Grader #57 at 4:00 a.m. In fact, no one was using Grader #57 between midnight and 6:38 a.m. Petitioner could not have brought Grader #57 to the county shop until after 10:00 a.m. when the vehicle was no longer being used.
The case is fascinating because without the use of a GPS system, this case would have been found compensable, as it would have been merely an issue of credibility. The successful appeal in this case on behalf of the County of Mercer was handled by Capehart Shareholder Lora V. Northen, and her associate, John Pszwaro.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Clients often ask questions about the permanency phase of the New Jersey Workers’ Compensation system. Frankly our system with respect to awards of permanent partial disability is so vastly different than those of neighboring states that it is no wonder there is confusion. Here are some of the questions this practitioner regularly receives.
Question (1): Why don’t employers settle cases before a workers’ compensation formal petition is filed? Wouldn’t that be more proactive?
Answer: There are two statutory provisions that deal with this issue. The first is N.J.S.A. 34:15-22, which states that “No agreement between an employee and his employer or insurance carrier for compensation shall operate as a bar to the formal determination of any controversy, unless such agreement has been approved by the commissioner (Judge of Compensation).”
The second section is N.J.S.A. 34:15-50, which states “Whenever an employer or his insurance carrier and an injured employee, or the dependents of the deceased employee, shall, by agreement, duly signed, settle upon and determine the compensation due to the injured employee . . . the employer or the insurance carrier shall forthwith file with the bureau a true copy of the agreement. The agreement shall not bind the employer or injured employee, or the dependents of a deceased employee, unless approved by the bureau.”
So the basic answer is that all agreements must be approved by a Judge of Compensation in New Jersey. If an employer and employee reach an agreement without such approval, the agreement is not valid and is not binding on the employee.
Question (2): When the petitioner’s doctor estimate 60% permanent partial disability and the respondent’s doctor estimates 5%, why not use the AMA Guidelines to the Evaluation of Permanent Impairment to resolve the dispute?
This question underscores a basic feature of the New Jersey system: we are one of only a few states where judges do not use the AMA Guides to the Evaluation of Permanent Impairment. This non-use of the AMA Guidelines is by tradition, not statute. There is no statutory prohibition against consulting the Guidelines to inform judges. In fact, it would be helpful if judges did utilize the AMA Guidelines where opinions on disability vary to a large extent. In respiratory claims the guidelines are extremely helpful in assessing permanency because spirometry and other pulmonary function testing are complicated to understand. For instance, the Guidelines provide certain norms for spirometric parameters like the FVC (forced vital capacity), FEV1 (forced expiratory volume in the first second) and FVC/FEV1 ratio. Using the AMA Guidelines would provide more uniform assessments and consistency in certain kinds of cases.
Question (3): What type of evidence matters most to the Judge of Compensation in arriving at an award of permanent partial disability?
Judges look for evidence in two broad categories: first proof of a medical impairment, and second, proof of disability from such impairment. An employee must prove an impairment under N.J.S.A. 34:15-36 by demonstrable objective evidence, but that alone is not enough. If a medical impairment exists but does not affect the employee in his work or non-work life, there is no disability. In this sense, “disability” is a broader concept than impairment. You need both.
The employee must demonstrate that the medical impairment reaches out and affects the employee in the activities of daily living or lessens the employee’s ability to perform work in a material degree. So judges focus on objective medical evidence like MRI results, surgical studies, CT scans, x-ray results, and they pay close attention to how the medical impairment has affected the life of the employee. Has the employee had to give up certain sports or cut back on hobbies or activities that he or she used to enjoy? Has the employee had to reduce hours at work or has the injury caused a reduction in pay? This is the kind of evidence that the judge studies in order to evaluate the degree of permanent disability. That is also why every Judge of Compensation requires testimony to support an order approving settlement regarding the complaints of the employee and the impact on work or non-work activities.
Question (4): Why does surgery drive up the value of a workers’ comp case? Isn’t surgery supposed to make the employee better?
This is a complicated question. Yes we all know people who have had surgery and have been completely healed with little or no lasting restriction. Surgery is often incredibly effective. For instance, a football player with a severe meniscal tear could never return to football again without surgery. A pitcher without ulnar collateral ligament reconstruction, also known as Tommy John surgery, might never pitch again. That is exactly what happened to the great Dodger pitcher, Sandy Koufax, who retired young because there was no Tommy John surgery in the 1960s. Now many pitchers with Tommy John surgery return to pitching at the same high level as before the injury, albeit perhaps with some loss of velocity.
In New Jersey, workers’ compensation practitioners are well aware that an employee has the potential to file a reopener petition should surgery be required in the future. The thinking is that if the injury does not require surgery now, it might not be as significant as it would be down the line when surgery will be required. Our statute under N.J.S.A. 34:15-27 permits the employee to reopen the case and seek additional treatment – often surgery – within two years of the last payment of compensation, as well as additional indemnity benefits. It is true that few if any claimants come to court and testify at settlement that their level of function is the same as they had before the work accident. If they did, they would not be entitled to permanency benefits. The expert for the claimant may point out that in spite of the surgical procedure, the employee has lost function post-surgery. The employee will testify to limitations in work or non-work functions. Hence, unoperated herniated discs are often valued lower than operated herniated discs because the condition has not reached a level requiring surgery.
It is also worth noting that there are many employees who have surgery who never file claim petitions because they feel they have fully recovered and have no complaints post-surgery. We don’t see those cases but must remember that they do exist. Not all employees who suffer work injuries in New Jersey file claim petitions for permanency.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
While the ADA does not require an employer to inquire whether an employee needs reasonable accommodation, the FMLA does require an employer to reasonably determine whether the FMLA may apply to a leave request which does not even mention the FMLA. This burden can be very onerous on an employer as one can see in a recent New York case, Coutard v. Mun. Credit Union, 2017 U.S. LEXIS 2322 (2ndCir. February 9, 2017).
The facts were very simple. The plaintiff worked for MCU, a financial institution, and on January 22, 2013, plaintiff took leave from MCU to care for his 82-year-old grandfather, who had been taken to a hospital on January 22, 2013. Mr. Coutard’s grandfather was discharged from the hospital on January 23, 2013 with bronchitis, but Coutard believed his grandfather, Mr. Dumond, was seriously ill and should not be left unattended. He sought leave until he could obtain the assistance of a home health aide.
When Mr. Coutard requested leave, he did not mention that he had been raised by Dumond beginning at age four when Coutard’s father died, until age 14. MCU advised Coutard that the FMLA did not apply to grandparents and declined the request for leave. It is undisputed that the term “parent” includes not only a biological parent but also “an individual who stood in loco parentis to an employee when the employee was a son or daughter.” 29 U.S.C. 2613.
MCU also suggested that Coutard apply for a short-term leave of absence under a separate MCU personnel policy. Coutard did not make any such application and was terminated on February 4, 2013. Coutard later sued for interference with his FMLA rights.
The federal district court ruled in favor of MCU but the Second Circuit Court of Appeals reversed based on the following language:
[W]e conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA’s applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.
Translation: the employer had to ask Coutard whether his grandfather raised him. In making this ruling the Court of Appeals distinguished an identical case which went the other way in favor of the employer, Sherrod v. Philadelphia Gas Works, 57 F. App’x 68 (3d. Circuit 2003). The Court distinguished the Sherrod case, which also involved leave to care for a grandparent, by saying that the Department of Labor changed regulatory language in 2009. The regulation used to say that an employee had to “explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act.” In 2009 the regulation at issue was changed to state that an employee need only provide sufficient information to indicate that the FMLA may apply. 29 C.F.R. 825.303.
While the new language seems very similar to the old language, the Second Circuit Court of Appeals felt that the change was significant. The Court concluded that this ever-so-subtle change in language shifted the obligation to the employer to ask further into the relationship between the employee and the grandfather. For these reasons, the Second Circuit Court of Appeals reversed judgment for MCU and remanded the case for trial.
The decision will come as a surprise to many employers. When an employee asks for leave to care for a grandparent and never mentions that the grandparent raised the employee, an employer will have no way to know any of this history. Only the employee knows this information. According to the Second Circuit Court of Appeals, the employer now can be held liable for violating the FMLA, as in this case, if the employer does not know the law well enough to ask further about the past relationship between the employee and his or her grandparent. The case imposes no burden on the employee to volunteer this information initially.
The reality is that this was a situation where neither party really did anything wrong. No violation should have been found. It would be unreasonable to expect the plaintiff in this case to know the in loco parentis definition of a parent under the FMLA, but the plaintiff did certainly know that his grandfather raised him for 10 years and never mentioned this. In response to the leave request, MCU offered plaintiff a leave of absence under another policy but the plaintiff never pursued that option. Yet MCU was held potentially liable for an FMLA violation for not asking detailed historical questions about the employee’s relationship with his grandparent.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
We are pleased to announce that Jim Waldhauser and Tom Kieselbach have once again been selected asSuper Lawyers (2017). Whitney Teel has been selected as a Rising Star (2017).
The selection process for Super Lawyers has been patented (U.S. Pat. No. 8,412,564). The selection process involves three steps: creation of the candidate pool, evaluation of candidates by the research department and peer evaluation by practice area. Each candidate is evaluated on twelve indicators of peer recognition and professional achievement. Candidates cannot nominate themselves nor can they pay to be on aSuper Lawyers’ list. For more information on Super Lawyers visit www.superlawyers.com.
PROTZ ENTOMBS IREs IN PENNSYLVANIA
By Kevin L. Connors, Esquire
Ever have one of those days where you just wonder, why bother?
Today might be one of those days.
In a Homer Simpsonesque Decision, the Pennsylvania Supreme Court in Protz v. WCAB (Derry Area School District), decided on June 20, 2017, recently eviscerated the IRE (Impairment Rating Examination) provisions of Act 57, enacted in 1996, embodying the legal standard by which almost all Pennsylvania Workers’ Compensation claims have been administered and adjudicated since Act 57 became law on June 24, 1996.
Yes, your general knowledge of IREs is correct, that is that Act 57, under Section 306 (a.2) empowered insurance companies, after an injured Employee/Claimant had received 104 weeks of temporary total disability benefits, to request that the injured Employee/Claimant undergo an Impairment Rating Examination, applying standards adopted by the American Medical Association inGuides to the Evaluation of Permanent Impairment, for purposes determining whether the injured Employee/Claimant had an Impairment Rating of the work-related injury, applying a whole person standard, of less than 50%, which, if so, would then allow the insurance company to convert the injured Employee/Claimant’s temporary total disability benefits into temporary partial disability benefits, which, under Section 306 (b) of the Act, were then only payable for 500 weeks, not inclusive of the 104 weeks already paid, such that an injured Employee/Claimant with an IRE rating of less than 50% would, statutorily, still be entitled to receive 104 weeks of temporary total disability benefits, followed by 500 weeks of temporary partial disability benefits, without reduction of the weekly compensation benefit being paid, absent evidence of “earning power” which, if proved, could reduce the weekly compensation benefit being paid based upon a continuing wage loss to be calculated by incorporating the “earning power” of the temporary partial disability benefit rate that might continue to be owed to the injured Employee/Claimant.
Awaking on June 20, 2017, after having recently attended the Department of Labor Industries’ Bureau of Workers’ Compensation Conference in Hershey, Pennsylvania, on June 12, 2017 and June 13, 2017, I was not intellectually prepared for the massive headache that would be created by the Pennsylvania Supreme Court ruling in Protz that Section 306 (a.2) of the Act, the provision dealing with IREs, was unconstitutional, effectively eviscerating a procedure that has been utilized by Insurance Carriers, Third-Party Administrators, and Employers since 1996.
The first question, what does this mean for all workers’ compensation stakeholders?
Well, if you are an injured Employee/Claimant, or an Attorney representing one, you are likely toasting the Pennsylvania Supreme Court’s June 20, 2017 ruling inProtz v. WCAB (Derry Area School District).
However, if you are an Insurance Carrier, Third-Party Administrator, or Employer, you are scratching your head and going “WTF?,” wondering how a Statutory Provision that was more effective in facilitating settlements and reducing reserves than actually changing an injured Employee/Claimant’s compensation benefit rate, and that had been used without constitutional challenges, before Protz filed her initial challenge to her IRE Determination in 2011, as all IREs performed under Section 306 (a.2) of Act 57 are now null and void, having no legal consequence or validation under the Pennsylvania Workers’ Compensation Act on the Supreme Court’s June 20, 2017 Decision inProtz.
At this juncture, under Protz, IREs simply now have no validity under the Pennsylvania Workers’ Compensation Act, and their utilization, absent legislative action by the Pennsylvania General Assembly, is now an administrative and litigation black hole.
If you are feeling like you forgot to get dressed today, you are not alone.
Yes, true, there will also be an economic impact as the litigation mechanism for modifying compensation benefits will revert back to requiring proof that an injured Employee/Claimant has sufficiently recovered from a work injury to be able to return to available work, being actually available or available under a “earning power” analysis in the form of a Labor Market Survey, potentially not only extending the shelf life of workers’ compensation claims, but also potentially driving Claimant’s settlement values for Compromises and Releases even higher.
Moreover, Protz’ evisceration of IREs potentially will set in motion a chain of Reinstatement Petitions being filed for injured Employees/Claimants whose compensation benefits had been modified to temporary partial disability benefits under, what was then regarded as statutorily legal, IREs, after which the injured Employee/Claimant had exhausted the 104 weeks of temporary total disability benefits, paid before the IRE was requested, as well as the 500 weeks of temporary partial disability benefits, paid at the temporary total disability benefit rate, after the IRE evidencing an impairment of less than 50% was secured, and the injured Employee/Claimant’s compensation benefits were modified/reduced.
Query: What will the effect of Protz be upon claims subject to IREs of a less than 50% Impairment Rating, where 604 weeks of compensation benefits have been paid, and the injured Employee/Claimant files to reinstate his/her workers’ compensation benefits as temporary total disability benefits, alleging that the administrative process used to suspend their weekly compensation benefits at 604 weeks has now been ruled unconstitutional, such that the injured Employee/Claimant now claims that there is no administrative or adjudicated form or Decision that bars them from seeking to reinstate their compensation benefits to temporary total disability benefits.
First, if the issue of the IRE rating was litigated, and a Workers’ Compensation Judge modified the injured Employee/Claimant’s workers’ compensation benefits from temporary total to temporary partial disability benefits in reliance upon an IRE rating with a less than 50% Impairment Rating, and the injured Employee/Claimant did not file an Appeal, it is our impression that the injured Employee/Claimant has waived the right to seek to re-open their workers’ compensation claim, in order to strike/remove the suspension of their workers’ compensation benefits, as they have not properly preserved that issue under the Pennsylvania Workers’ Compensation Act, and the Bureau’s regulations.
The same answer would be given if an injured Employee/Claimant had stipulated to the conversion of temporary total disability benefits to temporary partial disability benefits in reliance upon an IRE with a less than 50% Impairment Rating, particularly true, since the Stipulation would then have been adopted by a Workers’ Compensation Judge in a Bureau-circulated Decision, presumably never appealed.
Again, that would bring finality to the constitutional issue, and could be argued as a waiver of Section 306 (a.2) being challenged on constitutionality grounds.
Potentially more problematic, although there are probably much fewer claims like this, would be claims where the IRE was a basis for filing a Notice of Change, converting temporary total disability benefits to temporary partial disability benefits, with no Petition challenging the change ever being filed or litigated by the injured Employee/Claimant. The concern with those claims would beProtz’ evisceration of the Statutory Provision empowering the change of benefits from temporary total disability to temporary partial disability, potentially opening the “what if” door which, as we all well know, has pretty squeaky hinges, greased with the sweat of humanitarianism.
No question, Protz is a life-altering Decision by the Pennsylvania Supreme Court, for anyone involved with Pennsylvania workers’ compensation claims.
Like you, we are less concerned with how the Supreme Court arrived at its ruling, than we are with the consequences of this Decision, which we will all now be dealing with its holding through retirement.
In answer to the obvious question as to why an issue this important, with the potential risks associated therewith was not settled by the parties prior to its eventual resolution by the Pennsylvania Supreme Court, one can only assume, based upon the involvement of the Pennsylvania Association of Justice (PA Trial Lawyers Bar), which has been salivating at the constitutional challenge to IREs since 1996, that the claim might have been over-valued for settlement, in an attempt to defeat claim resolution prior to Supreme Court determination.
This is not the time to point fingers.
We can hear war drums beating in the offices of Claimant Attorneys statewide; time to circle the legislative wagons and seek amendment of the Workers’ Compensation Act to insure a cap in compensation benefits.
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.
ANNOUNCEMENT
By Kevin L. Connors, Esquire
It is with both congratulations and regrets that we announce that Kate O’Dell, a Partner in our firm, and Co-Chair of our Workers’ Compensation Practice Group, has elected to trade the outrageous slings and arrows of compensation claims for the tranquility and joyous personal redemption of semi-retirement, as Kate transitions from being a founding Partner to assuming the role “of Counsel” with our firm, allowing Kate to re-assign workers’ compensation cases that she was handling for our firm, and defending for our Clients, to other firm Partners in our Workers’ Compensation Practice Group, while Kate has graciously agreed to serve as “of Counsel” to the firm, as coverage needs and her personal schedule might dictate.
Having had the honor and privilege of being Kate’s Partner for 17 years, there is no question but that I will personally feel the deep sense of loss without her delicious wisdom and wit being available on a daily basis in our office.
Her intelligence and integrity to detail will also be sorely missed.
She has been, and remains, a dear friend, both to me, and to our firm.
Throughout her storied career with our firm, she has attained national and regional honors for her knowledge and professionalism in the defense of workers’ compensation claims.
Honoring her years of service to our firm, we will continue to strive, as a firm, to achieve and maintain the high idea and professionalism that Kate exhibited every day since her 1985 graduation from Law School.
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.