State News

The Alabama Legislature recently passed HB-107, which would amend § 25-5-56 of The Alabama Workers’ Compensation Act. HB-107 was introduced by District 55 Representative Rod Scott (D) on January 14, 2014. The legislature passed the bill in March, and it has been sent to Governor Bentley for his signature. Under current law, if an employee dies as the result of an accident occurring in and arising out of his employment, the employer must pay burial expenses up to a maximum of $3,000.00. If Governor Bentley signs HB-107, the maximum burial expense would be increased to $6,500.00.

_______________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

On May 19, 2014, The New Mexico Court of Appeals ruled that Redwood Fire & Casualty must reimburse an injured mechanic for the cost of marijuana he was prescribed for pain due to his on-the-job injury. Gregory Vialpando injured his lower back in 2000 while working for Ben’s Automotive Services. Vialpando’s physician stated that Vialpando’ resulting pain was among the most intense, frequent and long-lasting out of thousands of patients the doctor had treated. In 2013, the workers’ compensation board approved Vialpando to use marijuana as treatment, but Redwood objected to reimbursing him for the cost of the drug due to its illegal status under federal law. While New Mexico passed theLynn and Erin Compassionate Use Act in 2007, legalizing the use of cannabis for treatment of debilitating medical conditions,The Controlled Substances Act of 1970 still classifies marijuana as a Schedule I drug under federal law with "no acceptable medical use", and makes its sale, possession, and distribution illegal. The Court of Appeals stated in its decision that neither Redwood nor Ben’s cited to any specific federal law that they would violate by reimbursing Vialpando for his herbal purchases.

MY TWO CENTS

It is unclear exactly what positions Ben’s Automotive and Redwood took at trial. However, it would appear that there are valid arguments to support denying reimbursement. By paying for Vialpando’s marijuana, Redwood would arguably be enabling Vialpando to purchase drugs that are illegal under federal law and, therefore, could arguably be considered to be conspiring to violate federal law. Section 846 of theControlled Substances Act of 1970 provides that any person who conspires to commit any other drug offense shall be subject to the same penalties as those prescribed for the offense itself. If reimbursing a person for buying drugs amounts to conspiracy to violate The Controlled Substances Act, Redwood’s concerns would certainly be understandable. Additionally, from Redwood’s perspective, insurance policies are contracts, so contract defenses would apply. Illegality is a defense to a breach of contract claim, so Redwood may have a valid defense in that regard, depending on what state’s law governs the insurance contract.

_________________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

The State of New Mexico has a Compassionate Care Act which provides for medical marijuana when a patient is certified for the program by his or her health care provider.  In the case ofGregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty, the New Mexico Court of Appeals affirmed a decision of a Judge of Compensation requiring the worker’s employer to reimburse him for the cost of medical marijuana.

            Mr. Vialpando was seriously injured on June 9, 2000.  He underwent multiple back procedures leading to a 99% permanent partial disability.  One doctor described his pain as “high intensity multiple-site” chronic pain.  Vialpando had been taking multiple narcotic-based pain relievers and multiple anti-depressant medications.

            On April 8, 2013, Vialpando filed an application for approval of medical treatment for medical marijuana. nbsp; He had been certified for the program by two physicians.  The Judge of Compensation found that the worker was “entitled to ongoing and reasonable medical care,” including medical marijuana, and ordered the employer to pay for the care.

            The employer appealed and made several interesting arguments.  First, the employer argued that the New Mexico Workers’ Compensation Act did not authorize reimbursement for the costs of medical marijuana.  The court noted that an employer is required to provide an injured worker with “reasonable necessary health care services from a health care provider.”  However, the court conceded that the list of health care providers does not include a dispenser of medical marijuana under the State’s Compassionate Care Act.  Nor has the Director of the Division of Workers’ Compensation approved a dispenser of medical marijuana as a health care provider. 

On the other hand, the Act does define “services” as “health care services, . . . procedures, drugs, products or items provided to a worker by an health care provider, pharmacy, supplier, caregiver, or freestanding ambulatory surgical center which are reasonable and necessary for the evaluation and treatment of a worker with an injury or occupational disease. . . “ Based on this definition, the court found that medical marijuana is a product from a supplier that may be reasonable and necessary for an employee’s treatment. 

By defining ‘services’ as including a product from a supplier that is reasonable and necessary for a worker’s treatment, the regulations do not contemplate that every aspect of a worker’s reasonable and necessary treatment be directly received from a health care provider.  Such a requirement would be unworkable. A worker’s treatment may well require services that are not available from a health care provider. The most obvious of such services may be medical supplies or equipment.

As for the distinction that a doctor does not “prescribe” medical marijuana, but rather the employee gets certified to the New Mexico program, the court said it is unnecessary that each and every service must be provided by a health care provider.

            The employer also argued that medical marijuana should be viewed as a prescription drug, and since a doctor may not order medical marijuana, it should not be reimbursable under workers’ compensation.  The court rejected this argument as well. “A doctor may not order medical marijuana but may certify a patient to enroll in the medical cannabis program.” The court said that the definition of “services” is broader than the definition of a “prescription drug.”  Services include non-prescription drugs and products not necessarily prescribed by licensed pharmacists.  The court did concede that medical marijuana is a controlled substance and a drug but it reasoned that it makes no difference whether a pharmacist can prescribe it because the program authorized by the Department of Health is itself licensed. 

            Lastly, the employer contended that the court order requires the employer to violate federal law because marijuana is classified as a Schedule I Controlled Substance and is generally illegal to use or possess.  The court first observed that the employer was not specifically challenging the New Mexico Compassionate Care Act.  Rather, the employer was arguing that it was committing a crime in complying with the court order. 
“However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute.”

            This case is one of the first to deal with the employer’s obligation to pay for medical marijuana through workers’ compensation, and it will not be the last.  The analysis in the New Mexico case raises complex state and federal issues. Readers are invited to give your thoughts on this decision and its implications to employers in connection with the New Jersey Compassionate Use Medical Marijuana Act.

New Jersey has a powerful provision allowing employers to terminate temporary disability benefits on an offer of light duty, provided that the offer is made.  If it is made, the employee must return to the light duty job or temp benefits will be terminated. 

            But what happens if the light duty offer involves fewer hours than the employee normally worked and less pay than the rate of temporary disability benefits?  There is no published case on this issue but there is a helpful decision in the Division of Workers’ Compensation entitled Soto v. Herr’s Foods, Inc., 2012 NJ Wrk. Comp. LEXIS 4 (September 7, 2012).

            Mr. Soto was injured at work on January 29, 2011 and underwent two authorized surgical procedures involving his left knee.  In January 2012 the authorized treating physician wrote a report stating petitioner could return to work light duty. “I would like to start light duty and see if we can get him back to work, sedentary, four hours a day, and progress to eight hours.”

            The employer made a light duty offer for four hours a day.  Petitioner had been earning $976.15 per week at the time of his injury, entitling him to a temp rate of $683.31 per week.  However, his light duty wage was much lower since he was only working four hours per day.  While on light duty petitioner was receiving a net payment of $329.43 per week.  That was $353.88 less per week than petitioner was receiving on temp benefits.

            Petitioner returned to the light duty job but also contested in the Division of Workers’ Compensation the right of the employer to pay him less than the amount he was receiving on temporary disability benefits.  The Honorable Emille Cox, Supervising Judge of Compensation, ruled in favor of petitioner, holding that a temporarily disabled worker is entitled to  temporary disability benefits of 70% of his or her wage subject to the maximum and minimum limits in effect for the year in question. The Judge reasoned:

It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than the $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.

The decision of Judge Cox was not appealed, and had it been, the decision would no doubt have been affirmed.  The reasoning is sound, that one is still temporarily disabled while on light duty and therefore an employee must receive at least as much as his or her temp rate while working light duty until the employee reaches maximal medical improvement or returns to work full duty. Light duty cannot be used to reduce an employee’s wage below the rate of temporary disability benefits.

            There are many instances in which an injured worker argues that he was not employed so as to be able to bring a negligence action.  The case ofHernandez v. Port Logistics, A-3558-12T3 (App. Div. 2014) illustrates this situation.

            Daniel Hernandez was placing a box onto a load of pallets on August 23, 2011, when a wood splinter broke off and struck him in the eye, causing total loss of vision in the left eye.  Hernandez was employed by Staff Management, which had entered into a “Service Agreement” with Distribution Solutions, Inc. doing business as Port Logistics Inc. Hernandez sought workers’ compensation benefits from Staff Management.  Then he sued Port Logistics Inc. contending that the company was negligent in not providing him with eye protection.

            Port Logistics Inc. argued that Hernandez was its employee and could not sue the company because his exclusive remedy was workers’ compensation.  In his deposition, Hernandez acknowledged that he was doing work for Port Logistics in loading and unloading trucks.  He worked under the direct supervision of Port’s managers, who provided him with his assignments and directed his work at the loading docks.  Port controlled his work hours and lunch time.  Port Managers could send Hernandez home early if work was lacking. 

            For his part, Hernandez argued that the Service Agreement said he was an employee only of Staff Management and that Staff Management was exclusively responsible for payroll, taxes and workers’ compensation.  The trial judge rejected this argument that only Staff Management was Hernandez’s employer.  The judge found that  Hernandez was a special employee of Port Logistics.  Hernandez appealed.

            The Appellate Division noted that it is quite common for an employee to have two employers.  The court said that the language of the Service Agreement alone did not control the outcome of the litigation.  Instead, the court reviewed all the factors noted above showing that Port Logistics exercised tremendous control over the day-to-day activities of Hernandez. “In short, under the precedent cited, defendant (Port) was a special employer of plaintiff, despite any contract language to the contrary.  As a result, plaintiff’s tort claim against defendant was barred by N.J.S.A. 34:15-8.”

            The lesson in this case is that sometimes an employer wants coverage under workers’ compensation because the exclusive remedy provision offers powerful protection for an employer faced with a potentially large negligence law suit. 

Frank Ascione worked for U.S. Airways at Newark Liberty International Airport as a fleet service agent since 1981.  He handled baggage and drove equipment to push back planes.  He would work in the “bag room” transporting baggage to and from the plane.  He assisted in de-icing of planes about 20 times in his career and worked with a chemical named glycol.  He said the diesel tugs he drove released smoke that would enter the cab of the tug, leaving a heavy soot on the floor of the vehicle.  It was often hard to breathe, and sometimes he would have to stick his head out the window for fresh air.  Sometimes the baggage conveyor belt would jam, requiring him to crawl into the system to remove baggage.  When that would happen, dirt, dust and asbestos would fall on him.  He also was exposed on occasion to clouds of smoke emanating from the engine while unloading the plane.

            Petitioner brought a claim for pulmonary injuries against U.S. Airways.  At trial he testified that he had a lack of energy, although he still worked for the company and took overtime.  He complained of a cough and shortness of breath which prevented him from exercising or playing sports.  He admitted to a history of heart problems and had a cardiac catheterization in 2009. 

            Dr. Malcolm Hermele testified for petitioner as an expert in internal medicine, although he admitted he is not board certified in pulmonology.  He testified that x-rays of petitioner’s chest showed damaged alveoli which could be caused by exposure to fumes, dust and pulmonary irritants.  He did concede that petitioner’s excessive weight could be an independent cause of fatigue and shortness of breath.  Losing weight, he admitted, would help petitioner reduce his symptoms.  Dr. Hermele said petitioner suffered from chronic bronchitis and probably restrictive pulmonary disease caused or aggravated by work exposures.  He estimated 35% permanent partial disability. 

            Dr. Benjamin Safirstein, a board certified pulmonologist, testified that petitioner’s physical exam was “pretty normal.”  He said that the first set of pulmonary functions studies were entirely normal.  He had no obstruction, restriction or impairment in diffusion.  One of the key factors in this case was that Dr. Safirstein did more extensive pulmonary function testing than Dr. Hermele did.  Dr. Safirstein performed spirometry, lung capacity and diffusion testing, while Dr. Hermele only did spirometry.  According to Dr. Safirstein, spriometry alone is only preliminary and cannot be used to diagnose pulmonary diseases.  Another point of contention between the experts was the x-rays, which were completely normal according to Dr. Safirstein. 

            Dr. Safirstein performed a second pulmonary function test in late 2012 which showed a mild decline in the vital capacity parameter of petitioner’s lung volumes.  He attributed this decline to lack of effort on the part of petitioner in performing the test and his excessive weight, or cardiac enlargement.  He did admit petitioner would qualify as having bronchitis but did not believe that this condition was due to work.  As for petitioner’s shortness of breath, that could be caused by any number of conditions, including morbid obesity and an enlarged cardiac silhouette suggestive of cardiac disease.

            The Judge of Compensation ruled for petitioner and awarded 7.5%.  U.S. Airways appealed.  It argued that the Judge of Compensation failed to make critical findings concerning the conflicting testimony of the medical experts in this case.  The court said, “A workers’ compensation judge should ‘carefully explain why he or she considered certain medical conclusions more persuasive than others.’”Smith v. Montgomery nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).  The court said the judge failed to articulate her reasons for making discretionary decisions.  In a key statement the court said: “This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions.” What the court meant is that it was not enough for the judge to simply discuss the testimony of the experts:  since their testimony conflicted, she needed to make credibility findings. 

            The court observed that Dr. Safirstein’s testing was superior to that of Dr. Hermele.  All Dr. Hermele measured is air flow but not lung volumes.  More testing was needed to confirm an abnormality, according to Dr. Safirstein. “As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele.” The court remanded the case for the judge to make specific and detailed findings as to expert witness credibility and determine whether petitioner has proven “by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease.”

            This case can be found at Ascione v. U.S. Airways, A-5049-12T1 (App. Div. April 10, 2014). 

“SHOW ME THE MONEY!”

By Kevin L. Connors, Esquire

Sound familiar?

It is an all too familiar refrain in the context of workers’ compensation subrogation recoveries, with insurers simply seeking the equitable redistribution of no-fault compensation dollars paid by compensation insurers as a result of third-party negligence.

A recent Commonwealth Court Decision in Natasha Young v. WCAB (Chubb Corporation), decided on March 10, 2014, is an affirmation of an insurer’s statutory entitlement to subrogation, where workers’ compensation benefits were paid under the Pennsylvania Workers’ Compensation Act, although the third-party negligence occurred in a neighboring jurisdiction, with the accident giving rise to the workers’ compensation claim occurring in Delaware, as well as all litigation over the third-party personal injury lawsuit also being filed in Delaware, against a Delaware Third-Party Defendant.

The relevant facts in Young are/were:

·         Work-related motor vehicle accident in Delaware;

·         Third-party Defendant was a Delaware resident;

·         Pennsylvania workers’ compensation benefits paid to the Claimant pursuant to an NCP issued by the Employer/Insurer, accepting liability, under the Pennsylvania Workers’ Compensation Act, for the Claimant’s work injury;

·         Claimant filed a personal injury lawsuit in Delaware, seeking personal injury damages against the Third-Party Delaware Driver;

·         The Third-Party personal injury lawsuit in Delaware was settled for $160,000.00;

·         The Employer/Insurer asserted a statutory right of subrogation against the Claimant’s Third-Party recovery;

·         The Claimant challenged the Employer/Insurer’s right to subrogation, contending that Delaware, and not Pennsylvania, law should apply to the parties’ dispute over subrogation; and,

·         Employer/Insurer filed a Review Petition against the Claimant, seeking satisfaction of its workers’ compensation subrogation lien, equaling $101,381.94.

Correctly so, the WCJ granted the Employer/Insurer’s Review Petition, which was, in turn, then affirmed by the Workers’ Compensation Appeal Board.

Appealing to the Commonwealth Court, the Claimant argued that Delaware and not Pennsylvania law should be applied to the issue of the Employer/Insurer’s subrogation rights, given that the Claimant characterized Delaware’s subrogation laws as being more equitable than Pennsylvania subrogation law, and that the Claimant’s third-party recovery had been limited by Delaware law, such that the Claimant argued that Delaware law should also apply to the insurer’s right of subrogation.

Both at the WCJ and the Appeal Board levels, the Claimant’s argument that Delaware law should be applied was soundly rejected in reliance uponAllstate v. McFadden, 595 A.2d 1277 (Pa. Super. 1991), a Decision that had applied a significant contacts test to determine whether Pennsylvania or New Jersey law would apply to a workers’ compensation subrogation claim.

Claiming that there was a direct conflict between Delaware and Pennsylvania workers’ compensation laws, as Delaware specifically excludes certain expense items from subrogation, as the items are not admissible at Trial under the Delaware Code, in contrast to Pennsylvania law, which has long been interpreted to provide Employers with an absolute right of subrogation released only by their prorata share of costs and fees, the Claimant sought to apply Delaware subrogation law to the insurer’s subrogation claim.

This conflict of law disparity required the Commonwealth Court to utilize the Pennsylvania Supreme Court’s significant contact qualitative analysis underGriffith v. United Airlines, Inc., 203 A.2d 796 (1964) under which the Pennsylvania Supreme Court had held that a potential conflict between the application of state laws required the consideration of the policies and interests underlying the particular issue being brought before the Court, requiring that when jurisdictions are compared, the qualitative factors override quantitative factors when analyzing jurisdictional control.

Under Allstate, applying Griffith, the Pennsylvania Superior Court, in the course of examining the contacts each State, Pennsylvania and New Jersey, had with the underlying controversy, being the Employer’s subrogation rights, vis-à-vis its payments of workers’ compensation benefits, the Pennsylvania Superior Court had ruled inAllstate that “Pennsylvania has a significant interest in payments made under its Act and the subrogation of Pennsylvania Employers to monies paid to its Employees by a Third-Party.”Allstate, 595 A.2d at 1279.

Other factors relevant to the Allstate holding included the Claimant being a Pennsylvania resident, the Employer being a Pennsylvania Corporation, the Claimant regularly working in Pennsylvania, and the Claimant being paid workers’ compensation benefits under a policy of workers’ compensation insurance coverage satisfying the insurance requirement of the Pennsylvania Workers’ Compensation Act.

Relying upon those factors, the Superior Court had ruled in Allstate that Pennsylvania was “the State with the most significant interest in determining the right of the Employer to subrogation where it has made payments to an injured Employee” under its workers’ compensation statute.

The reasoning applied by the Pennsylvania Superior Court in Allstate became the controlling holding inByard F. Brogan, 637 A.2d at 693, involving a Pennsylvania worker injured in a motor vehicle accident in West Virginia, who was paid workers’ compensation benefits under the Pennsylvania Workers’ Compensation Act, with the Employer seeking to enforce its right of subrogation, and the Pennsylvania Court applying Pennsylvania, and not West Virginia, law to the issue, although at the time that case was litigated, the Pennsylvania Motor Vehicle Financial Responsibility Law had abrogated an Employer’s right of subrogation for motor vehicle accidents, with that right being subsequently reinstated by subsequent Amendments to the Pennsylvania Workers’ Compensation Act in 1996.

Relying upon Griffith, Allstate, and Brogan, the Pennsylvania Commonwealth Court held inYoung, that the State with the most significant contact to a workers’ compensation claim, and the potential right of subrogation for workers’ compensation payments made, is the jurisdiction whose workers’ compensation laws have been applied to the underlying entitlement to receive workers’ compensation benefits for work-related injuries.

So concluding, the Young Court held that the Pennsylvania WCA applied “because it is the State with the most significant interest in determining the right of an Employer to subrogation where it has made payments to an injured Employee.”

Did we also mention that the Claimant had, in the course of the workers’ compensation claim being resolved, entered into a Compromise and Release Agreement with the Employer/Insurer, under which the C&R Agreement specifically indicated that the Employer/Insurer was reserving its right of subrogation, an issue not contested by the Claimant in the course of receiving an $85,000.00 C&R payment.

Resolving the choice of law “significant context” jurisdictional question, theYoung Court further upheld the underlying Decisions of the WCJ and Appeal Board, that the Employer/Insurer’s subrogation lien included the twenty percent attorneys’ fees that were deducted from the Claimant’s compensation benefit payments, in satisfaction of the Claimant’s Contingent Fee Agreement with her workers’ compensation attorney, as the Claimant sought to exclude those payments from the subrogation lien, contending that they were not compensation benefit payments.

Are you kidding?

A final desperate argument was raised by Claimant, requesting that the Court limit the Employer’s subrogation lien recovery to one-third of the Claimant’s Third-Party settlement, as monies sufficient to satisfy a one-third distribution had been escrowed by the Claimant, with the Commonwealth Court denying that request, finding it had no authority to order the Employer to accept one-third of the Claimant’s Third-Party settlement, when the Employer’s rights to enforce its subrogation lien could only be abrogated by the Employer/Insurer’s consent.

Denying the Claimant’s request, the Commonwealth Court also denied the Employer’s request, seeking counsel fees, pursuant to Pennsylvania Rule of Appellate Procedure No. 2744, permitting an Appellate Court to award reasonable attorneys’ fees, if it is determined “that an Appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are being imposed is dilatory, obdurate, or vexatious”, with the Commonwealth Court holding that, underPhillips v. WCAB, 554 Pa., 721 A.2d 1091 (1999), Employers are not entitled to counsel fees under P.R.A.P. 2744.

Show me the money!

Being Practical

Seeking enforcement of a subrogation lien for workers’ compensation benefits paid in Pennsylvania, when the Third-Party personal injury claim arose in or is litigated in another State,Young would require a Pennsylvania Court to apply Pennsylvania law to the Employer’s statutory subrogation lien rights if the underlying workers’ compensation claim is administered and paid under Pennsylvania’s WCA.

This is an important Decision for Pennsylvania Employers and Insurers seeking protection of their statutory subrogation rights under Section 319 of the Act.

It is also an important Decision for clarifying what constitutes the lien benefits that can be asserted in the context of subrogation, to include the actual payments of workers’ compensation benefits to the Claimant, which include not only attorneys’ fees deducted from the Claimant’s compensation benefits, but also medical expenses and reasonable expenses incurred in the administration of the workers’ compensation claim.

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.

“PRACTICE, WHY PRACTICE?”

By Kevin L. Connors, Esquire

No, we are not taking about the iconic Allen Iverson whose penchant for missing team practices while the leading scorer for the Philadelphia 76ers throughout his turbulent career became well-documented by his own tattooed admission before a viral TV reporter audience became the stuff of ignorant legend.

No, this time we are talking about the invalidation of an IRE physician who had originally been certified by the Pennsylvania Bureau of Workers’ Compensation as a certified IRE physician, by virtue of the physician having initially met the threshold credentialing requirement of being “active in clinical practice” for at least twenty hours per week when originally approved to conduct IREs, the seemingly mystical assessment of determining whole person impairment in reliance upon the byzantine AMA Guides to Impairment.

The case being discussed is the recent Commonwealth Court Opinion in Verizon v. WCAB (Ketterer), authored by Senior Judge Colins on March 12, 2014.  The issue examined by the Commonwealth Court was whether the IRE doctor’s (Dr. Antonelli) discontinuance of an “active clinical practice” negated/eviscerated her authority to perform an Impairment Rating Evaluation on the Claimant.

The Claimant had been a service technician for Verizon, performing installations and repairs for telephone, television, and computers.  He injured his neck and back while working for Verizon on August 27, 2008, when his service vehicle was rear-ended.

The claim was accepted, as some claims are, and the Claimant began receiving temporary total disability benefits, although the Employer filed a Termination Petition in 2009, seeking to terminate its liability for compensation benefits under the Notice of Compensation Payable.

Verizon’s Termination Petition was, however, denied by the Workers’ Compensation Judge, with there being no discussion in the Decision regarding the evidence presented in support of and in opposition to the Termination Petition.

Several months after the Termination Petition was denied, the Employer requested that the Bureau designate a physician to perform an IRE.

This is a two-step process, the first being that the IRE Physician Designation can only be requested after the Claimant has received 104 weeks of temporary total disability benefits, although the formal request can be made 60 days in advance of the Claimant receiving two years of compensation benefits.

The second step is that the Bureau then randomly assigns the IRE request, using a list of physicians that the Bureau has vetted through a credentialing and qualification process, seemingly untethered to specific medical specialties, requiring the following qualifications:

·         A license to practice medicine in Pennsylvania;

·         Physician training on the AMA’s Guides to the Evaluation of Permanent Impairment;

·         Board-certification in a medical specialty;

·         The hands-on requirement that IRE physicians must maintain a medical practice involving twenty hours per week of clinical medicine; and,

·         Formal approval of IRE physician status by the Bureau.

In Verizon, the Bureau had randomly assigned Verizon’s IRE Physician Designation request to Dr. Elena Antonelli, whom the Bureau had approved as an IRE physician in 2008.  In 2008, Dr. Antonelli maintained an active clinical patient practice with Capital Health.

Fast forward to Dr. Antonelli’s 2010 IRE of the Claimant, resulting in a 16% impairment rating, an impairment rating that would effectively convert the Claimant’s entitlement to temporary total disability benefits to only being entitled to receive temporary partial disability benefits, the relevance of which is that the Claimant would then be limited to receiving another 500 weeks of temporary partial disability benefits, the statutory limit under Section 306(b) of the Pennsylvania WCA, as opposed to there being no limit whatsoever for temporary total disability benefits.

Following the IRE, Verizon petitioned to modify the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, the statutory mechanism for converting the Claimant’s compensation benefits status when the IRE Physician Designation request has not been made either 60 days before or 60 days after the Claimant receives 104 weeks of temporary total disability benefits, as an IRE request within that window of claim time entitles the Employer to an automatic conversion of the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, while an IRE Physician Designation request made 60 days after the Claimant has received 104 weeks of temporary total disability benefits requires the Employer to Petition to Modify/Convert the compensation benefits from temporary total to temporary partial.

Presumably, that is the procedural background for how the IRE issue was litigated.

In defense and support of Verizon’s Modification Petition, Dr. Antonelli testified that her practice was essentially limited to conducting IMEs, IREs, and physical examinations for Pilots and Truck Drivers, as she was not otherwise engaged in an active clinical practice, testifying “I don’t have that much of a clinical practice any longer.”

Of course, this fact should have been disclosed by Dr. Antonelli before she was paid handsomely for her deposition testimony.

In fact, she testified that her practice was largely “administrative”, bizarrely not a credentialing requirement imposed by the Bureau for conducting IREs.

In reliance upon Dr. Antonelli’s admission of not having an active clinical practice, the WCJ denied Verizon’s Modification Petition, with that denial being affirmed by the Commonwealth Court in the course of which it has now been held, in a case of first impression, there being no statutory definition of “clinical practice” in the WCA, although the Bureau has addressed that definition in the Bureau Regulations that deal with Impairment Rating Evaluations, defining “active in clinical practice” as “the act of providing preventative care and evaluation, and treatment and management of medical conditions of patients on an ongoing basis.”34 Pa. Code § 123.103(b), with the Commonwealth Court holding that the Bureau’s regulatory definition requires that an active clinical practice involve both “preventative care and evaluation, and treatment and management” of medical conditions of patients, being a conjunctive grammatical structure, the conjugation of which requires an “and”, as opposed to an “or”.

“Practice, why practice”, means, yes, that an IRE physician must practice clinical medicine at least 20 hours per week, in the course of which the physician must not only evaluate patients, but must also manage their care and treatment.

In Verizon’s defense, Verizon argued that the legislative intent behind the requirements should be interpreted to mean that IRE physicians insure that their qualifications and medical knowledge are current and updated, with the Commonwealth Court interpreting that legislative intent to require that “physicians have a medical practice in which their judgments have genuine consequences for patient care and treatment”, to the exclusion of physicians whose work is primarily opinion-driven for legal determinations.

Holding that a physician whose practice consists solely of conducting independent medical examination of workers’ compensation claims, performing IREs for workers’ compensation claims, and physical examinations for certification and qualification requirements, does not satisfy the statutory requirements imposed under the Act for physicians to perform IREs, the Commonwealth Court affirmed the underlying Decisions of the WCJ and the Workers’ Compensation Appeal Board, denying the Employer’s Modification Petition.

Being Practical

This being a case of first impression, this Decision will impose another level of scrutiny on Employers and Insurers seeking to modify compensation benefits through the utilization of an IRE, requiring yet another threshold to be crossed, before the liability-capping actuality of an IRE can be realized.

So the Verizon ruling makes it clear that no one can assume that a physician designated by a Bureau to perform an IRE currently meets the Bureau’s regulatory requirements, in terms of maintaining an “active clinical practice”, such that any Employer/Insurer seeking to modify a Claimant’s compensation benefits in reliance upon an IRE, must be sure that the IRE physician is engaged in an “active clinical practice”, at the time that the IRE physician performs the IRE, so that the IRE is not later being challenged for having failed to meet all regulatory requirements, including the physician’s qualifications.

This ruling could potentially result in there being Claimant-focused discovery directed at determining whether an IRE physician meets the regulatory requirements of maintaining an “active clinical practice” and that could well turn into a paper chase of hours worked and patients consulted, requiring validation as a threshold to efficacy.

Despite Allen Iverson’s query to the contrary, practice is an essential test of professional skill and judgment, as well as being the regulatory requirement for conducting IREs.

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.

Readers should be aware of a potential landmark decision from the National Labor Relations Board on Wednesday, March 26, 2014, in which the NLRB found that the Division I football players receiving scholarships at Northwestern University are employees of the university under the National Labor Relations Act.  It is anticipated that the decision will be appealed by Northwestern University to the full National Labor Relations Board in Washington D.C. and possibly end up in front of the Supreme Court of the United States.  The Board’s decision is limited to the football players at Northwestern University, but could pave the way for athletes at similar private universities.  The Board’s decision was based on several specific factors listed below.

First, the Board found that scholarship football players perform services for the benefit of the University for which they receive compensation.  In finding that the University benefits from the scholarship football players, the Board noted that Northwestern University’s “football program generated revenues of approximately $235 million during the nine year period between 2003-2012 through its participation in the NCAA Division I and Big Ten Conference that were generated through ticket sales, television contracts, merchandise sales and licensing agreements.”  The Board found that the scholarships to the players are a transfer of economic value since the University pays for the players’ tuition, fees, room, board, books and a stipend for players living off-campus for up to five years, which can total up to $76,000 per calendar year at Northwestern University.  The Board also found that “The fact that the Employer does not treat these scholarships or stipends as taxable income is not dispositive of whether it is compensation.”

Secondly, the Board found that the scholarship football players are subject to the University’s control in the performance of their duties as football players.  The Board noted that the players who receive scholarships are under strict and exacting control throughout the entire year.  The players are subject to NCAA eligibility guidelines as well as the team rules that are enforced by threat of discipline or loss of scholarship.

Third, the Board found that the scholarship players are employees under the common law definition.  “Under the common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”  Brown University, 342 NLRB 483, 490, fn. 27 (2004) (citingNLRB v. Town and Country Electric, 516 U.S. at 94).  The Board found that “players receiving scholarships to perform football-related services for the Employer (Northwestern University) under a contract for hire in return for compensation are subject to the Employer’s control and are therefore employees within the meaning of the Act.”  However, the Board found that the walk-on players, those not receiving scholarships, do not meet the definition of “employee.”  Similarly, the Board noted that unpaid interns, even if they are subject to similar terms and conditions of employment, are not employees because they did not receive compensation.

The Board specifically found that the statutory definition of employee articulated in Brown University, 342 NLRB 483 (2004), was not applicable to the football players at Northwestern University.  In Brown University, the Board found that graduate assistants were not employees of the university since the relationship between the graduate assistant and the university was primarily an educational one, rather than an economic one.

The Board found the scholarship football players at Northwestern University were employees under the Act and that the College Athletes Players Association (CAPA) (Petitioner) is a labor organization within the meaning of the Act.  The Board ruled that all football players receiving football grant-in-aid scholarships not having exhausted their playing eligibility that were employed by the Employer were eligible to vote whether or not they desire to be represented for collective bargaining purposes by CAPA.  The Board specifically excluded office clerical employees, professional employees and supervisors from voting.

What are the possible implications of the Board’s Decision for Workers’ Compensation? If the decision is affirmed, the Board’s ruling has the potential to change the landscape of college sports and raises a number of important questions for workers’ compensation practitioners.  Will the decision include Division I scholarship athletes for all sports at private universities?  What kind of benefits will the labor union(s) be bargaining for?  If the athletes are employees within the meaning of the Act, are they entitled to workers’ compensation benefits for injuries that occur while they are working? Should the scholarships received by the athletes be taxed as income and used to establish a wage?  The ultimate impact of the decision remains to be seen and we will keep readers posted as this case moves forward.

Bobbie Kehoe and Scott Sunkimat began cohabiting in their home in Point Pleasant, New Jersey in 1999.  They made a life-long commitment to each other to spend their lives together but declined to marry.  They shared utility bills and bank accounts and both of their names were on the deed to their home.  Bobbie Kehoe was the sole beneficiary of Scott Sunkimat’s retirement plan, but she was not the beneficiary of his life insurance policy.  The two represented themselves as husband and wife in public. 

            In March 2007, the decedent fell from a platform while engaged in the performance of his duties as an employee of Ultralum Enterprises.  The fall arose out of and in the course of employment.

Bobbie Kehoe filed a dependency claim petition asserting that she was the decedent’s surviving spouse.  She argued that during a two-week visit to Texas in 2004, she and decedent established the elements of a common law marriage under Texas law by (1) agreeing that they were then married; and (2) cohabitating as husband and wife; and (3) representing to others that they were husband and wife. A family relative testified that the two did indeed represent themselves as husband and wife while in Texas.

            The Judge of Compensation denied the claim because New Jersey does not recognize common law marriages.  The Court said, “Here, it is undisputed that petitioner and the decedent were never formally married under New Jersey law.  On the facts presented, petitioner is not entitled to benefits under N.J.S.A. 34:15-13(f).  Petitioner’s argument based on the recognition of common law marriages by the State of Texas lacks sufficient merit to warrant discussion in a written opinion.”

            This case can be found at Kehoe v. Ultralum Enterprises, Inc., A-4531-12T4 (App. Div. March 18, 2014).