State News

On February 27, 2015, the Alabama Court of Civil Appeals released its opinion inDana Louise Pollock v. Girl Scouts of Southern Alabama, Inc. wherein it considered a claimed injury arising out of a horse riding accident. At the trial court level, the judge was presented with evidence that the injured employee, the business manager of a 6 week summer camp, voluntarily participated in a horseback ride at the end of the camp. The ride was for staff members only and participation was not required or encouraged. In fact, when the employee asked her supervisor for permission to participate, she was actually discouraged because of the existence of prior back injuries. During the ride, the horse bolted unexpectedly causing injury to the employee’s back. The employee contended that the injury was work related because it happened during work hours, during an event that occurs every year at the end of the summer session, it was on her employer’s property, and she had her supervisor’s permission. The employer file a motion for summary judgment asserting that the accident did not arise out of or in the course of her employment. The trial court granted the motion and the employee appealed.

The Court of Civil Appeals agreed with the trial court noting that the horseback ride was voluntary and the employer did not derive any benefit from the activity.

My Two Cents:

Whether or not an employer derives a benefit from a particular activity is an important, and sometimes overlooked, consideration when looking at the "arising out of" portion of the two part causation test. Just because you are at work when an accident occurs does not mean that the accident is work related. Simply being at work might satisfy the "in the course of" portion of the test but not both parts. In this case, it was determined that there was not substantial evidence that either part of the two part test could be proven.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish, Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers' compensation. Fish Nelson & Holden is a member of the National Workers' Compensation Defense Network. If you have any questions about this submission or Alabama workers' compensation in general, please contact Fish by e-mailing him atmfish@fishnelson.com or by calling him directly at 205-332-1448.

Brandon Lee Wegner v. Hormel Foods Corporation, Court of Appeals of Iowa, No. 14-0300

Claimant, Brandon Lee Wegner, worked for Hormel Foods Corporation and sustained an on-the-job injury on March 23, 2009.  Following a hearing, a deputy commissioner issued an arbitration decision accepting Hormel’s proposed weekly compensation rate over Claimant’s proposed rate, which, in the deputy’s view, was based on “unreliable,” “scissored snippets of original documents mashed together.” The deputy also summarily denied Claimant’s request for penalty benefits based on the claimed unreasonable rate calculation. Because Claimant had not reached maximum medical improvement, the deputy deferred ruling on permanent benefits, and also elected to defer consideration of any issues relating to temporary partial disability benefits.

On intra-agency appeal, the commissioner adopted the deputy’s decision. Claimant sought judicial review. The district court affirmed the commissioner’s decision. Claimant appealed following the denial of his motion for enlarged findings and conclusions. Claimant contends (A) the commissioner failed to set forth sufficient findings of fact and conclusions of law as required by Iowa Code section 17A.16(1), (B) the commissioner erred in determining his weekly compensation rate; (C) the commissioner erred in denying him penalty benefits arising from the compensation rate; and (D) the commissioner erred in bifurcating claims for past temporary disability benefits until he reached maximum medical improvement.

The Court of Appeals affirmed the district court’s judicial review decision affirming the commissioner’s workers’ compensation decision. The Court found both the deputy commissioner and the commissioner complied with Iowa Code section 17A.16(1) (2013) because they explicated their reasons for rejecting Claimant’s proposed rate calculations, denying penalty benefits based on the compensation rate, and deferring consideration of temporary disability benefits and penalties arising from the payment of these benefits. The Court emphasized that step-by-step reasoning in an agency decision is not essential, as long as it is possible to determine what evidence was considered and why certain evidence was credited over other evidence.

Additionally, the Court found the commissioner’s findings on the issue of Claimant’s weekly compensation rate are supported by substantial evidence. The deputy commissioner accepted Hormel’s proposed rate over Claimant’s proposed rate because Claimant’s exhibit did not appear to be a complete record. The Court also found the record contains substantial evidence to support the commissioner’s implicit findings in declining to award Claimant penalty benefits. Finally, the Court found the commissioner acted well within his discretion in deciding to defer consideration of issues relating to the past award of temporary benefits, given that the parties had stipulated Claimant has yet to reach maximum medical improvement and agreed “[e]ntitlement to permanent disability [was] not ripe for determination.”

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

             There have been a number of developments in the Division of Workers’ Compensation in 2015 of which practitioners should be aware:

            Retirement of Director Peter J. Calderone,

            After 13 years of service as Director of the Division of Workers’ Compensation and 39 years of service to the State of New Jersey, Chief Judge and Director Peter J. Calderone announced this week that he will be retiring effective February 28, 2015.  Director Calderone raised the level of professionalism within the Division and modernized the New Jersey workers’ compensation practice, with e-filing of pleadings, court listings and communications from counsel to the courts.  He led the creation of an extensive case management system and developed a first class Division website providing a wide range of valuable information to practitioners and the public.   During his tenure, rules for discovery on urgent motions for medical and temporary disability benefits were established, and new administrative rules were adopted for medical reimbursement petitions, thousands of which are now handled in the Division. 

            The new Director of the Division of Workers’ Compensation will be the Honorable Russell Wojtenko, Jr., Supervising Judge of New Brunswick vicinage.  Judge Wojtenko resides in Mercer County and currently sits in New Brunswick.  He has earned a reputation in the bar as  hard working and fair to all parties. 

            Three New Workers’ Compensation Judges

             The Governor has nominated three experienced practitioners as workers’ compensation judges: Michael J. Dillon, Esq., Thomas J. Ludlum, Esq. and John C. Gavejian, Esq., all from Bergen County.

             2015 Rate Charts Are Available

             For clients who are interested in receiving 2015 rate charts, please email the undersigned or Carol Wright atcwright@capehart.com.  The maximum rate for temporary disability benefits and total permanent disability benefits is $855 per week, up from $843 per week in 2014.  That amounts to approximately a 1.5% increase over last year.

            The minimum rate is now $228 per week.  The current state average weekly wage on which the rates are based is $1,140.02 per week. In 2005 the maximum rate was $666 per week and the minimum rate was $168.  In 1995 the maximum rate was $469 and the minimum rate $125.  In the past 20 years the maximum and minimum rates have increased 82%.

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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. 

 A number of clients have inquired recently whether claimants in workers’ compensation cases have a right to request their treating medical records from the insurance carrier, third party administrator, or the authorized treating physician.  The answer to this question comes from both the New Jersey Workers’ Compensation Act and from the rules of the New Jersey Medical Society.

 N.J.S.A. 34:15-128.4 provides that it is unlawful for an employer, the carrier or the treating physician, or a third party in the case or their agents “to withhold from the individual any medical information they have regarding that individual which is requested by the individual, and if an individual requests the medical information, the individual shall not be charged fees in excess of the cost of providing copies of the information.”  In other words, a claimant has a right to medical information from any party to a workers’ compensation case.  That includes the treating medical provider. 

Authorized workers’ compensation physicians owe the same obligation to a treating claimant as they would to a private patient.  The mere fact that the employer has designated the treating doctor and pays for the care in no way changes the doctor-patient relationship in a workers’ compensation case.

The rules of the New Jersey Medical Society are similar.  Under N.J.A.C. 13:35-6.5, the treating medical provider must provide patient records no later than 30 days from the receipt of a request from the patient or an authorized representative.  The records must include objective data such as test results and x-ray results.  The rules go on to say that when a patient has requested the release of medical records to a specified individual or entity, the physician shall secure a written medical authorization to protect the privacy interests of the patient. 

The Board of Medical Examiners also provides that the cost of reproducing such records shall not be greater than $1.00 per page or $100 for the entire records, whichever is less.  If the records are less than 10 pages, the medical provider may charge $10 to cover postage and associated costs related to the retrieval of such records.  Medical providers shall not charge for a copy of the patient’s records when the physician has effectively terminated a patient from practice in accordance with the requirements of N.J.A.C. 13:35-6.22.

It is important to understand the difference between a treating physician and a independent medical examiner.  Because there is no physician-patient relationship in a situation involving an independent medical examination, a physician who is performing an IME does not have to provide a copy of such a report to the examinee.  That report is sent to the party which requested it, usually the carrier, third party administrator or counsel. 

The rule regarding disclosure of treating medical records between counsel is contained inN.J.A.C. 12:235-3.8 (c), which states that either party must furnish medical information to the other within 30 days of the receipt of a demand for such records.  Usually the employer or its carrier/third party administrator has the treating records, and in that case those records must be made available to petitioner’s counsel or petitioner on request.  If the petitioner has obtained treatment on his or her own, then the same obligation rests on petitioner to provide such records to the employer on request.  If a party is not responding timely to a request for medical information in a litigated case, the appropriate step is to file a motion in the Division of Workers’ Compensation. 

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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. 

“TO MMI OR NOT TO MMI”

By Kevin L. Connors, Esquire

Under the 1996 amendments to the Pennsylvania Workers’ Compensation Act, Impairment Rating Evaluations, subject to certain prerequisites, allow an Employer/Insurer to modify a Claimant’s compensation benefits, following the acceptance of a work-related injury and payment of temporary total disability benefits, to temporary partial disability benefits, which statutorily limits the injured Employee to a maximum of 500 weeks of temporary partial disability benefits under Section 306(b) of the Act.

What?

Bear with us!

A recent Pennsylvania Commonwealth Court Decision in Neff v. W.C.A.B., decided in January 8, 2015, illustrates the confusion over what constitutes “maximum medical improvement” for IRE purposes.

First, the agreement to accept an injury as being work-related, when it involves lost time or disability, entitles the injured Employee to receive temporary total disability benefits, until such time as one of the following events occurs:

·                     The Claimant dies, and compensation benefits terminate by operation of both death and loss;

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

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

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

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

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

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

·                     The Claimant’s compensation benefits are terminated, modified, or suspended by order of a Workers’ Compensation Judge, with the Employer/Insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.

Next, when the injured Employee has received 104 weeks of temporary partial disability benefits, the Employer/Insurer is permitted to request that the injured Employee undergo an Impairment Rating Evaluation, performed in compliance with the AMA’s Guides to the Evaluation of Permanent Impairment, with the Employer/Insurer being entitled to convert/modify the injured Employee’s wage loss disability benefits from temporary total to temporary partial disability benefits, if the Impairment Rating Evaluation results in a determination that the injured Employee’s Impairment Rating is less than 50% of a whole person standard.

The thresholds permitting the Employer/Insurer to request that an injured Employee who has received 104 weeks of wage loss disability benefits undergo an Impairment Rating, under Section 306(a.2)(1), of the Pennsylvania Workers’ Compensation Act require the following prerequisites:

·                     Accepted work injury resulting in wage loss disability, or award of workers’ compensation benefits;

·                     Receipt of 104 weeks of temporary total disability benefits;

·                     The Employer/Insurer requesting an Impairment Rating Physician Designation from the Pennsylvania Bureau of Workers’ Compensation;

·                     Appropriate certification that the Impairment Rating physician is certified to conduct Impairment Rating Evaluations of the AMA’s Guides;

·                     A preliminary determination by the IRE designated physician that the injured Employee has reached maximum medical improvement, considered to be a point in time in the recovery process after an injury, when further formal medical or surgical intervention cannot be expected to improve the underlying impairment or injury; and,

·                     An Impairment Rating Evaluation is performed by a certified IRE physician who first concludes that the injured Employee is at MMI, and then concludes that the injured Employee has an Impairment Rating, utilizing the AMA’s Guides, of less than 50% of a whole person standard.

If all of the above criteria are met, the injured Employee’s wage loss disability benefits are then converted or modified from temporary total to temporary partial disability benefits, capping the amount of benefits that an injured Employee can receive at 500 weeks, after receipt of the 104 weeks of temporary total disability benefits, for a total of 604 weeks of disability benefits equal to $574,404.00 of Pennsylvania’s 2015 maximum compensation benefit rate of $951.00.

The total of both temporary total and temporary partial disability benefits equals 604 weeks.

If the IRE Request is made within 60 days of the injured Employee receiving 104 weeks of temporary total disability benefits, an IRE establishing an Impairment Rating of less than 50% automatically results in the injured Employee’s wage loss disability benefits converting from temporary total to temporary partial, again subject to the 500 cap.

If the IRE Request is made more than 60 days after the injured Employee has received 104 weeks of temporary total disability benefits, an IRE establishing an Impairment Rating of less than 50% does not automatically entitle the Employer/Insurer to convert or modify the injured Employee’s temporary total disability benefits into temporary partial disability benefits, as the Employer/Insurer must then file a Modification Petition, to litigate the issue of the conversion or modification of the injured Employee’s disability benefits, requiring the Employer/Insurer to prove the validity of the IRE, in terms of perfecting the necessary elements to establish that the IRE was consistent not only with the AMA Guides, but also with the Pennsylvania Workers’ Compensation Act.

The determination of whether an injured Employee has reached MMI is both a sword and a shield in IRE litigation in Pennsylvania.

First, challenges to an injured Employee reaching MMI have long been utilized by the Claimant’s bar, to challenge the threshold determination of IRE physicians, as to whether an injured Employee has reached MMI, with the challenges often time being categorized as flanking moves to allege new or previously undiagnosed injuries as also being part of the compensable work injury nexus, particularly in psychological overlay situations, as well as in situations where diagnostic impressions have evolved, either due to additional diagnostic testing, or due to surgical intervention.

More recently, the Pennsylvania Commonwealth Court was asked to determine the validity of an IRE where the injured Employee contended that she might possibly require future surgery for her work injury, in the January 8, 2015 ruling inNeff v. W.C.A.B.

The underlying facts were that the injured Employee sustained a work injury on February 20, 2004, with the injury being described as right wrist carpal tunnel syndrome.

Subsequently, the Employer/Insurer filed Petitions to terminate and suspend the injured Employee’s compensation benefits, in response to which the injured Employee filed Petitions to Review the description of injury on the Notice of Compensation Payable, and to Review medical treatment that the injured Employee had received post-injury.

In ruling on the pending Petitions, the Workers’ Compensation Judge denied the Termination Petition, finding that the injured Employee had not recovered from the work injuries, with the WCJ granting the Review Petition, finding that the injured Employee’s injury also included chronic lateral epicondylitis.

Subsequent to that Decision, the parties entered into a Compromise and Release Agreement, under which the injured Employee’s benefits for the right carpal tunnel injury were resolved, with liability for the chronic lateral epicondylitis remaining open.

Two years later, the Employer/Insurer again filed a Modification Petition against the injured Employee, alleging that the open injury, the right lateral epicondylitis, had resolved into a permanent impairment of less than 50%, with the Employer/Insurer seeking to modify the injured Employee’s wage loss benefits from temporary total to temporary partial disability benefits.

The Modification Petition was based upon an Impairment Rating Evaluation that had been performed by Dr. William Prebola, a certified Impairment Rating examiner.

In the course of conducting the IRE, Dr. Prebola had determined that the injured Employee had reached maximum medical improvement, and that her whole person Impairment Rating was 1%.

The IRE was sought beyond the 104 week payment of temporary total disability benefits that would have permitted the Employer/Insurer to automatically modify the injured Employee’s compensation benefits from temporary total to temporary partial disability benefits.

Ruling on the Employer/Insurer’s Modification Petition, the WCJ granted the Petition, resulting in the injured Employee’s compensation benefits being modified, from temporary total to temporary partial disability benefits, with the injured Employee appealing the WCJ’s Decision to the Appeal Board, which likewise affirmed the WCJ’s Decision, following which the injured Employee sought review before the Pennsylvania Commonwealth Court.

On Appeal before the Pennsylvania Commonwealth Court, the injured Employee argued that the IRE that formed the basis for the modification of the injured Employee’s compensation benefits was invalid, arguing that the IRE was premature and invalid as a matter of law, where there existed a reasonable potential for the injured Employee to undergo future surgery that might cause a change in her condition.

Considering the injured Employee’s Appeal, the Commonwealth Court nevertheless affirmed the WCJ’s Decision modifying the injured Employee’s compensation benefits, as the Commonwealth Court held that the initial determination as to whether an injured Employee has reached maximum medical improvement is an inherently medical determination, which must necessarily either be supported or rebutted by medical testimony, with the Commonwealth Court finding that Dr. Prebola had considered the appropriate factors required by the AMA’s Guides, in determining that the injured Employee had reached MMI, and so long as Dr. Prebola had relied upon the factors dictated by the AMA’s Guides, the WCJ had judicial discretion to rely upon Dr. Prebola’s determination that the injured Employee was at MMI.

Since the WCJ had found that Dr. Prebola’s medical opinions were both persuasive and credible, not only in terms of the injured Employee reaching MMI, but also in terms of Dr. Prebola’s determination that the injured Employee had a 1% whole person Impairment, the Commonwealth Court held that the WCJ was correct in relying upon and crediting Dr. Prebola’s medical opinions to determine that the injured Employee had reached MMI in accordance with the AMA’s Guides.

So holding, the Commonwealth Court held that the Employer/Insurer’s IRE was, in fact, valid, resulting in the injured Employee’s Appeal being denied and the WCJ’s Decision being affirmed.

Quoting from the AMA’s Guides regarding MMIs:

2.3c When Are Impairment Ratings Performed?

Only permanent impairment may be rated according to the Guides, and only after the status of “maximum medical improvement” (MMI) is determined, as explained in Section 2.5e.  Impairment should not be considered permanent until a reasonable time has passed for the healing or recovery to occur.  This will depend on the nature of underlying pathology, as the optimal duration for recovery made very conservatively from days to months.  The clinical findings must indicate that the medical condition is static and well stabilized for the person to have reached MMI…[.]

….

2.5e Maximum Medical Improvement

Maximum Medical Improvement refers to a status where patients are as good as they are going to be from the medical and surgical treatment available to them.  It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change…[.]

Thus, MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment.  Therefore, MMI is not predicated on the elimination of symptoms and/or subjective complaints.  Also, MMI can be determined if recovery has reached the stage where symptoms can be expected to remain stable with the passage of time, or can be managed with palliative measures that do not alter the underlying impairment substantially, within medical probability…[.]

Obviously, this is a Decision very favorable to Employers and Insurers, in the course of validating the efficacy of IREs predicated upon MMI having been established.

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.

On January 30, 2015, the Supreme Court of Alabama reversed the Alabama Court of Appeals’ ruling inMadison Academy, Inc. v. Hanvey. The Supreme Court granted the employee’s Petition for Writ of Certiorari to review whether the Court of Civil Appeals erred in reversing the trial court’s judgment awarding the employe permanent and total disability benefits.

The trial court had found that in the absence of the exposure to chemical fumes at work, the employee would not have suffered the disability at the time, in the manner, or to degree that she did. The trial court had also found that the employee’s pre-existing myasthenia gravis was worsened by her exposure to chemicals at work, and that as a result of that exposure, she was permanently and totally disabled. The Supreme Court noted that a trial court’s findings of fact must be affirmed on appeal if they are supported by substantial evidence. The Supreme Court also noted that the appellate courts will not overturn the trial court’s findings in regard to the extent of disability if those findings are supported by substantial evidence. The Supreme Court held that the trial court’s findings were supported, and therefore could not be overturned.

MY TWO CENTS

Although the Supreme Court’s ruling reversed the Court of Appeals and upheld the trial court’s findings, it did not explicitly overrule the Court of Appeals’ rejection of the notion that "no pre-existing condition is deemed to exist if the employee was able to perform the work of an uninjured person at the time of the injury." Instead, the Supreme Court held that the Court of Appeals cannot re-weigh the evidence, and that the factual findings of the trial court must be upheld on appeal if there is substantial evidence to support those findings, even when there is also substantial evidence that support contrary findings.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

By Kevin L. Connors, Esquire

Hamlet beware!

In Wetzel v. WCAB, decided by the Pennsylvania Commonwealth Court on May 27, 2014, the Court reversed the Decision of the Pennsylvania Workers’ Compensation Appeal Board, which had reversed a Decision of the Workers’ Compensation Judge, who had granted a Claim Petition filed on behalf of the Claimant, Wetzel, who sustained severe and serious injuries, rendering him comatose and permanently disabled, in the course of attempting to stop a thief from leaving the Employer’s premises, during an attempted robbery of the Employer’s store.

The Claimant, now Decedent, was employed by Parkway Service Station as a Management Employee.

In his Claim Petition, he alleged that he sustained a work-related severe traumatic brain injury, rendering him comatose, permanently disabled, and incapacitated, as a result of being struck by a vehicle, while the Claimant was attempting to stop a thief, who was fleeing the store after attempting to rob the store.

In the course of the Claim Petition being presented to the Workers’ Compensation Judge, the Claimant died, and the Petition was modified to assert claims for burial and medical expenses.

The Employer contended that the Claimant’s death was not causally related to his employment, that his injuries did not occur within the course and scope of employment, and that the Claimant was not, therefore, entitled to workers’ compensation benefits.

In defending the Claimant’s Petitions, the Employer contended that the Claimant violated a positive work order, as the Claimant was carrying a gun while on the Employer’s premises, as the Claimant had previously used a firearm, several years before, to stop an attempted robbery of the Employer’s store.

The evidence presented to the Workers’ Compensation Judge was that the Claimant had carried a gun at work before, that the Employer knew that the Claimant carried a gun, that there was no specific policy against Employees carrying guns, and that the Claimant had never received an Employee Handbook, during the 27 years that he worked for the Employer.

The evidence also established that the Claimant had shot a robber during a robbery attempt in 2007, and that he continued to carry a gun after that incident.

As for how the Claimant was injured, the Claimant was injured during a nightshift in November of 2009.

While working that shift, the thief entered the store, reached over the counter, attempted to grab cash out of the cash drawer, when another store Employee shouted at the thief, and the thief ran out the door, with the Claimant, and 2 others, chasing the thief.

The thief jumped into a car, and the Claimant leaned into the thief’s car, attempting to stop the thief from getting away.

The thief continued driving, dragging the Claimant with him, with the Claimant jumping onto the thief’s car, as the car sped towards the parking lot exit.

Unfortunately, the Claimant fell off the car, the thief’s car then ran over the Claimant’s head, and the thief got away.

In reliance upon those facts, the Workers’ Compensation Judge found that the Decedent had not violated a positive work order, by carrying a firearm, or by attempting to stop the robber, and the Judge found that the Decedent was furthering the business interests of the Employer, as he was injured as a result of being struck by the thief’s car, when the thief fled the premises, and the Claimant was attempting to stop a robbery in progress.

In reliance upon those facts, the Workers’ Compensation Judge concluded that the Claimant established that he sustained work-related injury, with the workers’ compensation benefits being awarded to the Claimant.

Before the Appeal Board, the Board concluded that the Claimant was not furthering the Employer’s interests, when the Claimant pursued and attempted to stop the thief, as the Board held “we cannot agree that the duties of the convenience Store Manager include the pursuit and apprehension of a criminal suspect”, holding that the Claimant did not meet his burden of proof, and that it was not, therefore, necessary for the Employer to establish a violation of a positive work order.

The Appeal Board further held that the Claimant’s premeditated, deliberate, extreme, and inherently high-risk actions were sufficient to remove him from the course and scope of his employment, in reliance uponPenn State University v. WCAB (Smith), 15 A.3d 949 (Pa. Cmwlth. 2011).

Affirming the granting of the Claimant’s Claim Petition by the Workers’ Compensation Judge, the Commonwealth Court found that the Claimant was required to be on the Employer’s premises, and that the Claimant’s attempt to stop the robbery in progress was not an abandonment of his employment, as the only interest in doing so was that of the Employer, to include securing the safety of fellow Employees and Customers, such that the Claimant had not abandoned his course and scope of employment, and that his injuries did, in fact, occur within the course and scope of his employment.

Although the violation of a positive work rule is an affirmative defense to a Claim Petition, the Employer must prove that the injury was caused by the rule violation, that the Employee actually knew of the rule, and that the rule implicated an activity not connected with the Employee’s job duties, with the Commonwealth Court finding that the Claimant’s pursuit of the thief was not removed from his job duties as a convenience Store Manager.

Did the slings and arrows of outrageous fortune swing in favor of the Claimant in this case, where the Claimant was where he was supposed to be, on the Employer’s premises, doing what he was paid to do, protecting the store, Employees, and Customers, in the course of which the Claimant sustained horrific injuries that became life-ending, making the Appeal Board’s reversal of the Workers’ Compensation Judge’s Decision quixotic at best, when, more often than not, the Appeal Board is typically affirming the Workers’ Compensation Judge’s Decisions, rarely reversing or overturning, in the course of benefits either being granted or denied.

There is no question that this case screamed for sympathetic overlay, where an Employee reacts to an extreme and high-risk situation, heroically placing personal safety over “that is not what I get paid to do.”

ConnorsLaw LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

By Kevin L. Connors, Esquire

Effective as of December 27, 2014, the Pennsylvania General Assembly, in its infinite wisdom, has grabbed the prescription drug reimbursement bull by the horn, in an Amendment to the Pennsylvania Workers’ Compensation Act, under House Bill No. 1846.

The Amendment is Act 184, signed into law by Governor Corbett on October 27, 2014; this Act amends Section 306 (f.1) (3) (vi) of the Pennsylvania Workers’ Compensation Act.

This Bill, a copy of which can be viewed via the following link, http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2013&sessInd=0&billBody=H&billTyp=B&billNbr=1846&pn=4314 is an attempt to rein prescription drug reimbursement costs, that, unchecked, have exponentially escalated medical costs for workers’ compensation claims.

The substance of the Bill is that prescription drug reimbursements will be limited to 110% of the average wholesale price of the product, calculated on a per unit basis, as of the date that the drug is dispensed.

Any physician seeking reimbursement for dispensed drugs, must include the original manufacturers’ national drug code, as assigned by the FDA.

Physicians may not seek reimbursement in excess of 110% of the average wholesale price (AWP) of the drugs being dispensed.  Dispensed drugs must reference the original manufacturer’s national drug code number.

Tackling the uncontrolled calculus of compounded drugs, this Amendment will not allow repackaged national drug code numbers to be used, the same being forever disallowed where the dispensing physician does not reference the original manufacturer’s national drug code number.

Under this Amendment, outpatient providers, and you know who you are, cannot seek reimbursement for the following category of drugs:

·                     “Controlled Substance, Drug, Device and Cosmetic Act”, which is dispensed in excess of 1 initial 7-day supply, commencing upon the Employee’s initial treatment by a healthcare provider or injury related to a specific workers’ compensation claim, with the Employee being entitled to a 15-day supply if treatment involved surgery;

·                     “Controlled Substance, Drug, Device and Cosmetic Act”, containing Hydrocodone, dispensed in excess of 1 initial 7-day supply, to commence upon the initial treatment by the healthcare provider, with a 15-day supply being commenced if the treatment involves surgery;

·                     Seek reimbursement for any other drug dispensed in excess of 1 initial 30-day supply, to commence upon the Employee’s initial treatment by a healthcare provider;

·                     Seek reimbursement for any drugs dispensed within any period of time in excess of the limitations set forth above; and,

·                     Providers, other than pharmacies, cannot seek reimbursement for over-the-counter drugs.

This Amendment further empowers the Workers’ Compensation Advisory Council, to annually conduct a study of the impact of this Amendment upon the calculation of the savings achieved by this Amendment in the course of drugs being dispensed for treatment of work injuries.

The Amendment further clarifies, for clinical equivalence, that reference to a drug, means the drug has chemical equivalence, which, when it is administered in the same amounts, provides essentially the same therapeutic effect as measured by the control of a symptom or a disease.

The Amendment further directs the Pennsylvania Compensation Rating Bureau to calculate the savings achieved through the implementation of this Amendment to Section 306 (f.1) (3) (vi) of the Pennsylvania Workers’ Compensation Act.

This Amendment is scheduled to take effect as of December 27, 2014.

Its impact will be immediate and obviously significant, in terms of limiting medical costs for treatment of work injuries.

In a Statement submitted by the American Insurance Association to the Pennsylvania General Assembly, the AIA documented disturbing statistics supporting the necessity of curbing the demonstrable cost-abuse of physician dispensing of repackaged drugs, a practice that has “mushroomed”, perhaps an inappropriate reference in this context, in recent years, resulting in physicians and drug-providing re-packaging middlemen significantly increasing the cost of workers’ compensation medical bills to Pennsylvania Employers and their Insurers.

The AIA submitted that the physician dispensing repackaged drugs was the most significant single medical cost driver in workers’ compensation systems.

The AIA indicated that physician-dispensed medications account for 25% of all workers’ compensation drug-related expenses.

The AIA traced the genesis of physician dispensing of repackaged drugs to Workers’ Compensation Reforms in California in 2003, establishing a pharmacy fee schedule that also allowed physicians to markup drugs.

Supporting House Bill 1846, the AIA indicated that the WCRI estimated that the average price per pill paid for drugs commonly prescribed for workers’ compensation injuries in Pennsylvania was significantly inflated over the same drugs being pharmacy-dispensed, with the following differentials being calculated:

·                     Motrin-179%;

·                     Flexeril-76%;

·                     Tramadol-132%;

·                     Hydrocodine (Vicodin)-233%;

·                     Naproxen-87%;

·                     Mobic-61%;

·                     Soma-742%;

·                     Alleve-41%;

·                     Percocet-289%; and,

·                     Prilosec-110%.

Citing to patient-safety concerns, the AIA confirmed what most already knew, that is that prolonged consumption of opioids leads to addiction and dependency, delaying recovery, and postponing return-to-work scenarios.

Similar results were tracked with physician-dispensing medications, resulting in higher overall medical costs for the containment of workers’ compensation claims.

Obviously, the longer workers are out of work, the higher indemnity and medical costs become for workers’ compensation claims.  The result is an erosion of the ability of Employers and Insurers to effectively manage disability, correctly noted by the AIA, to be the inherent objective of workers’ compensation legislation.

To close, quoting Philip K. Dick, the author of  “Androids Dream of Electric Sheep” (Blade Runner), albeit a well-regarded science fiction author, “drug misuse is not a disease, it is a decision, like the decision to step out in front of a moving car.  You would not call that a disease, but an error in judgment.”

This Amendment is a long overdue response to physician-dispensing practices that lengthen all costs associated with workers’ compensation claims, and inhibit the ability of Employers and Insurers to promote healthy recovery and facilitate restoration of functional capacity.

ConnorsLaw LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

By Kevin L. Connors, Esquire

To jump start 2015, Connors Law, LLP proudly announces its name change to ConnorsO’Dell, LLP, effective as of January 1, 2015, in honor of Kate O’Dell’s service to firm and clients, as we wish Kate CONGRATULATIONS!

Having had the honor and privilege of being Kate’s Partner since 2000, this announcement is long overdue.  It is a testament to her patience, deliberate will, her litigation intelligence, and her impassioned leadership, chairing our Workers’ Compensation Practice Group.

Locally raised, Kate is a Graduate of the University of Maryland, circa years ago, and Villanova University School of Law, circa 1985.

Initially channeling her energy in amorphous high-rise shareholder type firms, Kate has developed a very comfortable niche as a scion in the challenging trenches of an insurance defense practice dedicated to defending workers’ compensation claims for Employers, Insurers, and Third-Party Administrators.

Her accomplishments in this field are legion, crystalized in her election as a Fellow in the College of Workers’ Compensation Lawyers in 2013, primed by her certification by the Pennsylvania Bureau of Workers’ Compensation as a Workers’ Compensation Specialist in 2013.

She is regarded by Bench, Bar, and Clients as being compassionate, honest to a fault, loyal to her core, and just a really nice person to work with and be around, whether friend or foe.

Without her, our firm simply would not be as fun as it is.

Crowning her as a named Partner, we humbly congratulate her on all of the success that she has enjoyed throughout her illustrious career.

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

By Kevin L. Connors, Esquire

Effective as of January 1, 2015, the Pennsylvania Department of Labor and Industry has raised the maximum compensation benefit payable rate for workers’ compensation indemnity payments to $951.00 per week, yielding maximum yearly workers’ compensation benefits of $49,452.00.

If the average weekly wage is between $1,426.50 and $713.26, the compensation benefit rate is calculated at 66 and 2/3rds of the Claimant’s average weekly wage.

If the average weekly wage is between $713.25, and $528.33, the weekly compensation benefit rate is $475.50.  This benefit rate results in yearly compensation benefits equaling $24,726.00.

If the average weekly wage is equal to or less than $528.32, the compensation benefit rate is then set at 90% of the Claimant’s pre-injury average weekly wage.

In 2014, the maximum compensation benefit rate was $932.00, yielding yearly maximum compensation benefits of $48,464.00.

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.