State News

Anthony DiFabrizio worked for US Airways since 1985 at both Newark Airport and LaGuardia Airport.  At Newark Airport he loaded and unloaded baggage from planes, trucks and conveyor belts, as well as driving equipment to push back planes from ramp areas.  At LaGuardia he worked from 1995 to 2008 doing similar work. He also worked two years in the freight facility, which he described as stuffy.  From 1999 to 2008 he drove trucks to push back planes and directed planes. As of the time of the court decision he was still working for US Airways but had returned to Newark Airport.

            In 2001, DiFabrizio started to feel short of breath and noticed that he could not exercise or play sports to the same degree he had been able to in the past. He saw his doctor for upper respiratory conditions and took some medication for a viral infection. However, he was able to do his job and volunteer for overtime work.  He never sought treatment from an allergist or pulmonologist. 

            DiFabrizio was examined as part of his workers’ compensation case by two experts:  Dr. Malcolm Hermele for petitioner and Dr. Benjamin Safistein for respondent.  Dr. Hermele interpreted his chest x-ray as showing “increased interstitial markings” indicative of restrictive disease. He also diagnosed chronic bronchitis, estimating an impairment of 35%.  Dr. Hermele relied on a 2001 article from OSHA regarding the negative health effects of exposure to diesel exhaust.  That article did not refer to any other substances that DiFabrizio claimed exposure to.

            For his part, Dr. Safirstein found petitioner’s physical exam to be normal.  He noted that petitioner denied shortness of breath and a cough, which would negate the diagnosis of chronic bronchitis.  He said the x-ray of the chest was normal and his pulmonary function testing was just shy of normal.  Unlike Dr. Hermele, Dr. Safirstein was board certified in pulmonary medicine.  Further, Dr. Safirstein performed more extensive pulmonary testing, while Dr. Hermele only performed spirometry. 

            Notwithstanding these significant differences between the experts, the Judge of Compensation awarded petitioner 5% permanent partial disability.  US Airways appealed and argued that the evidence did not support the award. 

            The Appellate Division said that where two experts have diametrically opposed views, it is crucial for the Judge of Compensation to explain why he or she favored one expert over the other.  The court said that in this case there was no such explanation.  The Appellate Division commented on the more thorough examination by respondent’s expert.  “While Dr. Hermele performed lung function tests that measured only spirometry, Dr. Safirstein administered additional tests including diffusion analysis, which he termed ‘the most important test that anyone can have in lung function.”  Dr. Safirstein said that doing spirometry alone is not enough because sprirometry is only preliminary in nature and cannot be used to diagnose restrictive pulmonary disease.

            The court also noted the specific standards that a claimant must meet in an occupational disease claim. It reversed the decision of the compensation judge and remanded the case. “On remand, the judge of compensation must make detailed findings and determine on the present record whether DiFabrizio 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.’”

            The case illustrates a number of lessons for practitioners.  In respiratory claims, it is particularly important to retain board certified experts who do the complete testing that is necessary to establish either an obstructive or restrictive impairment.  The abbreviated testing by petitioner’s expert put petitioner at a disadvantage. Moreover, science matters in occupational claims:  simply saying one is exposed to various pulmonary irritants is seldom enough without some scientific support linking the alleged exposure to the particular medical condition.

    This case can be found at DiFabrizio v. US Airways, A-1497-12T4 (App. Div. November 20, 2013).

Loparex, LLC and Sentry Insurance v. James Bates, Court of Appeals of Iowa, No. 3-593 / 13-0121

The Claimant was injured when his left hand was caught in a machine. He underwent several surgeries which resulted in the amputation of two fingers. He subsequently developed complex regional pain syndrome (CRPS). He experienced abnormal sensations and sensitivity to touch. He also suffered from severe depression as a result of the injury. Due to this, he was proscribed a variety of medications which he contended made him drowsy.

The agency entered a decision finding the Claimant to be permanent and totally disabled, which was affirmed by the District Court on appeal. The case was then appealed on the findings that the drowsiness complaints were related to the work injury, as well as the award of permanent total disability benefits. The Court reviewed these issues for substantial evidence.

The Court found that there was evidence in the record to support the employer’s assertions that the Claimant was not credible, his partner stood much to gain by testifying on his behalf, the medical records did not contain consistent claims of sleepiness, the Claimant was diagnosed with sleep apnea which improved with therapy, he did not lose weight or avoid alcohol as instructed to help with drowsiness, a subsequent on the job injury was not caused by drowsiness as he claimed and that the Claimant had a history of carelessness at work. However, the Court went on to state that this didn’t mean the record lacked substantial evidence to support the finding of a causal connection. Ultimately the Court relied on the references in the medical records to medications causing drowsiness to find substantial evidence and chose not to reweigh that evidence.

The Court next took up the issue of permanent total disability and indicated that it would only overturn the Commissioner’s finding if it was “irrational, illogical or wholly unjustifiable”. The Court opined that they might draw different inferences in regards to Claimant’s permanent disability based upon the records as a whole, the Court could not say that the findings made by the Commissioner lacked substantial evidentiary support or that his determination was irrational, illogical or wholly unjustifiable. As such, the finding of the Commissioner was affirmed.

Iowa Newspapers, Inc. and AIG v. Michelle Watson, Court of Appeals of Iowa, No. 3-783 / 13-0334

On December 19, 2008, the Claimant injured her left side in the course of her employment when she slipped on ice. At first, the Claimant did not think the injury was significant, but it later led to back pain, burning and numbness, headaches, interrupted sleep and depression. In May of 2009, the Claimant ended her employment with Iowa Newspapers as it became too difficult to work.

The Claimant filed a petition for workers compensation benefits and a hearing was held on September 10, 2010. The agency found that the Claimant’s condition arose out of her work injury, that her healing period ended as she was at MMI and that she was permanently and totally disabled. The decision was appealed and affirmed by both the Commissioner and the District Court.

The decision was appealed by the employer on the grounds that the agency erred in finding the Claimant’s injury was related to her fall, her healing period and ended and that she was permanently and totally disabled. The Court opined that their review was for substantial evidence, and though there was conflicting medical evidence, the Court found substantial evidence supported the finding of the agency and affirmed the decision. 

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!

Jennifer Caswell successfully defended a claim arguing the injury was temporary and minor.  The judge restricted claimant to benefits already paid and denied additional extensive temporary benefits and potential permanent benefits.  Ms. Caswell also successfully defended a permanent total disability claim brought by a 49 year old claimant, thereby avoiding large permanency exposure.  Judge Fitzgerald also declined to award any future medical treatment in that case.

Ritsema & Lyon is proud to announce U.S. News & World Report selected us as a 2014 Tier 1Best Lawyers® “Best Law Firm” in Workers’ Compensation Law – Employer.  This is the second year Ritsema & Lyon received this recognition.  Here is just one sampling of some of the great things our clients had to say: “Ritsema & Lyon is the household name for workers’ compensation law in the community. Their attorneys are of the utmost quality with customer service being a top priority… They are truly a top notch firm.”  We are deeply appreciative to our clients for their feedback.  We strive to provide this type of service to each and every client.  Receiving recognition based on such positive feedback is a great honor!

TOP REASONS WHY INJURED WORKERS SEEK ATTORNEYS

By Kevin L. Connors, Esquire

Defying the conspicuously silent logic of the hoary adage that “what happens in Vegas, stays in Vegas”, disavowing any apostolic compulsion to confess, we herewith reveal the transparent composition of our recent presentation before the National Workers’ Compensation and Disability Conference and Expo, held in Las Vegas from November 20, 2013 through November 22, 2013, with apologies and atonements to David Letterman, he of the infamous Top Ten, as well as Alan Pierce, Esquire, our tactfully laconic moderator during our Vegas session on November 22, 2013, allowing our panel, and our attentive audience, to review and identify the following potential causes as reasons injured workers seek attorney representation in workers’ compensation matters:

1.      CLAIM DENIAL:

·                     This is the number one reason why injured workers hire attorneys;

·                     Denials are often, but not always, triggered by claim investigation;

·                     Multiple factors influence claim denials, to include medical evaluations, work restrictions, availability of alternative-duty work, prior claim history, and employer input.

2.      INJURED WORKER REPRESENTED IN PRIOR CLAIM:

·                     The existence of a prior attorney-client relationship, obviously dependent upon prior claim outcome, will usually result in an injured worker retaining attorney for a new claim.

3.      CONFUSING STATE FORMS:

·                     Certain jurisdictions, Pennsylvania being one of them, employ compensation forms that even judges, experienced trained counsel, and the most highly sophisticated claims adjusters struggle to understand, in terms of their effect on compensability, disability, and related issues;

·                     Receipt of a State form, accompanied by a form letter, can be confusing to an injured worker unskilled in compensationitis;

·                     The same form can be the impetus for the Google keystroke, the counterpoint being to use simple, direct, and non-insulting directions for form execution and return.

4.      CESSATION/TERMINATION OF CLAIM BENEFITS:

·                     The stoppage of benefits, absent agreement to the stoppage, generally results in attorney retainage;

·                     Employer-filed WC litigation seeking to cease/terminate claim benefits drives injured workers to attorneys.

5.      PROCESS OVERWHELMES AND CONFUSES:

·                     Although not rocket science, it is a not uncomplicated process, to secure or retain workers’ compensation benefits, particularly when potentially impacting on other alphabet soup statutes, FMLA, ADA, Unemployment Compensation, as well as private disability coverage.

6.      DISSATISFACITON WITH MEDICAL CARE:

·                     Cannot get medical treatment authorized;

·                     Does not like employer-designated health care practioner;

·                     Disagrees with, or will not follow through with treatment recommendation;

·                     Cannot get the claims adjuster to answer questions regarding medical compensation benefits.

7.      THIRD-PARTY LIABILITY:

·                     The existence of third-party liability typically results in the involvement of personal injury attorneys, with referral to workers’ compensation Claimant attorneys;

·                     Potential third-party liability triggers potential subrogation lien interests of the employer/insured.

8.      GOOGLE IT:

·                     In general, the ability to find and retain skilled legal representation, in any kind of practice area, is only a computer keystroke away;

·                     It is also there on the radio, on the drive to the doctor’s office;

·                     It is ubiquitous;

·                     It is splattered all over public transportation;

·                     It is emboldened in numerous publications and periodicals.

9.      UNPAID MEDICAL BILLS:

·                     Collection notices for unpaid medical bills drive injured workers crazy, resulting in attorney involvement.

10.  I HATE MY JOB ALMOST AS MUCH AS I HATE MY BOSS:

·                     It happens!

·                     This evidences a lack of trust, not to be confused with pure retaliation;

·                     It is the perception that has festered, infecting claim dispositions.

11.  REFERRALS BY MEDICAL CARE:

·                     Particularly true with chiropractors, as well as physical therapists, as they tend to be quicker referral sources than other practioners;

·                     It is a symbiotic medico-legal universe.

12.  FEAR OF BEING FIRED:

·                     Are we surprised?

·                     The fear of being fired, besides producing cold sweats and trepidation, produces psychological crisis, resulting in guttural confrontation.

13.  FAMILY PRODDING:

·                     It is the nudge while watching TV;

·                     It is the frustrated “when are you going to do something about this?”;

·                     It is the stuck at home, no paycheck, no ride to the doctor, no work, and no taking out the trash, no doing house chores, building a base of friction and frustration.

Practical Tips:

Is there a moral to our priceless story?

Anyone attending the National Workers’ Compensation Disability Conference and Expo heard numerous presenters characterize workers’ compensation systems and procedures as having at their core, the function of restoring injured workers’ physical and psychological capabilities to return to work in order to achieve pre-injury status.

Several NWCDC panelists underscored the humanitarian policies upon which workers’ compensation statutes and systems are structured, placing great emphasis on the moral obligation of all workers’ compensation stakeholders to employ fairness in the administration of claims.

Embodying this turn, the following tips are suggested for all, in the course of dealing with injured workers, to include:

·                     Be courteous;

·                     Be polite;

·                     Be truthful;

·                     Be fair;

·                     Be direct;

·                     Be responsive;

·                     Be informed;

·                     Be civil;

·                     Avoid argument;

·                     Avoid making assumptions about claim facts and claim personas;

·                     Be credible;

·                     Be yourself;

·                     Be real.

In short, even in contested/disputed claims, it is critically important to treat others, to include the Claimant, Claimant’s Counsel, the Employer, any Third-Parties involved in the claims administration process, Defense Counsel, and the administrative factfinder, as you would want others to treat you.

 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.

         In one of the most puzzling decisions in decades dealing with N.J.S.A. 34:15-40, the court inDever v. New Jersey Manufacturers Insurance Company, 2013 N.J. Super. Unpub. LEXIS 2553, (App. Div. October 23, 2013) ruled that respondent has no lien on the medical portion of a third party claim against a UM or UIM carrier.

            The case involved a motor vehicle accident which took place on January 3, 2000.  Plaintiff, John Dever, was an on-duty Atlantic City police officer who suffered injuries when his vehicle was struck by a vehicle driven by Alice Turner.  Plaintiff’s injuries were severe enough that he was granted an accidental disability pension effective January 1, 2001 granting him two thirds of his pay for life free of state and federal taxes. 

Dever settled his claim against Turner, who only had a $25,000 policy limit and then filed a claim under his underinsured motorist policy issued by NJM. At trial the parties stipulated liability based on an agreement to cap damages within the $500,000 policy limits as reduced by the $25,000 payment from Turner. 

Notwithstanding the extent of Dever’s injuries, the jury determined that he had not proven a permanent injury and awarded Dever $275,000 as compensation for his economic loss.  He was not awarded pain and suffering damages. Both parties then challenged the verdict.  NJM argued that the jury overcompensated Dever for what it contended were temporary injuries because most of the treatment ended in May 2000.  The trial judge and the Appellate Division both rejected that contention and noted that Dever’s depression disrupted his ability to obtain and retain employment and therefore the jury verdict was supportable.

NJM also challenged the reimbursement of plaintiff’s medical expenses.  The workers’ compensation carrier paid all the medical bills.  Following the verdict, Dever moved for NJM to pay $8,482.11 arguing that he should not be forced to absorb his own medical expenses.  The trial judge agreed with Dever in a post-verdict motion but the Appellate Division reversed.  The court noted that it was missing key information at the time it issued its decision. “The workers’ compensation carrier paid all medical bills and we are told placed a lien on plaintiff’s recovery from the tortfeasor.  The record does not disclose whether the workers’ compensation carrier was paid $8,482.11 from plaintiff’s settlement with Turner.”  

First, the Appellate Division noted that every automobile insurance policy must provide PIP benefits for the payment of medical expenses to the insured. The court further observed case law stating that an “injured person who was the beneficiary of the PIP payments could not and should not recover from the tortfeasor the medical, hospital and other losses for which he had already been reimbursed.” (citations omitted). Therefore, the court said, a plaintiff in this situation cannot offer evidence of the amounts collectible or paid under a standard automobile insurance policy of PIP benefits. The court added that when an accident victim is not compensated for medical expenses, the accident victim may recover medical expenses.

Next the court examined what happens when an accident victim incurs medical expenses arising from work.  It noted that workers’ compensation coverage is primary, as in this case, meaning that Dever’s medical bills were appropriately paid under workers’ compensation.  PIP carriers need not make payments which are covered by workers’ compensation.  In fact, had NJM paid the medical bills under PIP, the carrier would have had a right to recover those payments from the workers’ compensation carrier.

The court then discussed the subrogation rights of the workers’ compensation carrier underN.J.S.A. 34:15-40.  It said, “Section 40 has been found to require reimbursement when an employee obtains a recovery from his or her UIM carrier as a result of third-party liability.”Midland Ins. Co. v. Colatrella, 102 N.J. 612, 616-618 (1986).  This furthers the policy goal of workers’ compensation to avoid double recovery.

The court seemed to believe that there was tension between the automobile law and workers’ compensation law.  It said in a far-reaching opinion:

The record is not clear as to whether the workers’ compensation carrier invoked its lien against the $25,000 recovery from Turner.  We conclude such action would be inappropriate.  Under these facts, plaintiff’s medical expenses are the responsibility of the workers’ compensation carrier and are not reimbursable by defendant.  The trial court’s decision is reversed and the order for defendant to pay $8,482.11 representing plaintiff’s medical bills is vacated.

The court’s reasoning is hard to follow since it does not focus on the concept of double recovery so much as it does the concept of permitted recoveries. 

Also, the Legislature has decreed workers’ compensation insurance must be the primary source of payment for work-related automobile injuries, and the cost of the employee’s medical expenses is born (sic) by the worker’s (sic) compensation carrier not the PIP insurance carrier.  Therefore, a section 40 lien, which attaches only topermitted recoveries, cannot include medical expenses from a New Jersey no-fault insured; there is no right to recover such expenses.Patterson v. Adventure Trails, 364 N.J. Super. 444, 448-49, 836 A.2d 856 (Law Div. 2003).  Allowing reimbursement to a workers’ compensation carrier from an employee’s UIM carrier is counter to the legislative intent of this express statutory reimbursement scheme.

It is important for practitioners to understand the limitations in this decision. First, there was no workers’ compensation carrier involved in this case.  The compensation carrier’s identify is not disclosed, and there is no evidence that the compensation carrier appeared or made any argument.  NJM was the UIM carrier, not the workers’ compensation carrier. It appears that counsel for NJM was arguing that the UIM carrier did not owe plaintiff the sum of $8,482.11 because that sum had been paid by the workers’ compensation carrier.  The court took this a step further and went on to address the subrogation rights of the workers’ compensation carrier, which was not even involved in the proceeding.  As such, respondents can argue that the court’s holding in this case is what is called “dictum,” or irrelevant to the facts of the case. 

The reverberations of this case will be felt by employers until further clarification is given in future litigation.  Claimants’ attorneys will seize on this case to argue that in a work-related car accident case, employers have no rights to subrogation of medical benefits.  The Dever case is already being widely discussed by practitioners throughout the state, and employers need to seek a published decision clarifying theDever decision since it seems contrary to the established rule against double recoveries.

PENNSYLVANIA COMMONWEALTH COURT FINDS LAST EMPLOYER

NOT LIABLE FOR ALLEGED CUMMULATIVE TRAUMA WORK INJURY

A & J Builders, Inc./SWIF v. WCAB v Verdi (Pa. Cmwlth. 10/16/13)

By

Jeffrey D. Snyder, Esquire

This is a cumulative trauma case where the last employer in time was absolved of liability.

A Union carpenter was assigned through the Union to various employers.  The Claimant worked for A & J Builders, Inc. from August 2004 to September 5, 2007, and for J. V. Miller (Miller) for three (3) days until a final day of employment on October 6, 2008.

In pertinent part, there was a Claim Petition first against Miller and then a second Claim Petition was filed against A & J. 

The Claimant claimed a right knee injury from repetitive use in his usual job activities of carrying and installing drywall panels.  The Claimant was symptomatic at A & J Builders and continued to have discomfort, alleging that his knee was filled with fluid, when working for Miller.  He was laid off from Miller because the job was finished.

The Claimant’s physician attributed the Claimant’s knee discomfort to duties at both A & J and Miller.  Miller presented its medical expert, Dr. Duda, who considered the changes degenerative, with no contribution by job duties.  The WCJ credited the Claimant’s testimony to the extent that it focused on duties at A & J and rejected it as to contribution by job duties at Miller, the last employer in time.  The Judge relied in part on defense medical evidence absolving Miller. 

The major focus on appeal was twofold: whether the 120 notice requirement was met; and whether the last employer on the risk, Miller, was liable. The Court accepted a discovery rule on notice and found the notice timely based on a physician informing the Claimant of work relatedness. 

On the assignment of liability issue, the employer argued that the Judge’s finding that the last employer in time was not responsible was not supported by substantially competent evidence.  The Court pointed out that to the extent the Claimant’s medical expert found material aggravation of the knee at Miller, that conclusion was rejected in favor of the employer’s medical evidence suggesting no contribution by activities at Miller. 

The employer argued that the Judge could not rely on the employer’s medical expert testimony because that physician did not think any job duties at either entity contributed to the condition, but the Court noted that the WCJ was free to accept or reject any testimony, in whole or in part.  The Court cited to the record evidence that established no traumatic incident at Miller.

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.

June Chalmers worked at a medical office cleaning the office space with another colleague.  On August 20, 2010, she fell on a piece of pipe while at work and suffered injuries which led to serious infections.  Chalmers didnot file a workers’ compensation claim and obtained treatment on her own.  However, she did file a civil law suit against Dr. Stephen Swartz, (hereinafter “Stephen”) who practiced with his father in the building.  She claimed that she was only employed by Dr. Stephen Swartz’s father, Dr. Harry Swartz, (hereinafter “Harry’), and she argued that she could sue Stephen because he owned the building where the medical offices were located.  Stephen’s attorney filed a motion to dismiss the case on the ground that Chalmers’s suit was barred by the exclusive remedy rule.

The key facts were as follows:  plaintiff Chalmers was hired in 2004 to clean the office.  Both doctors worked on the premises.  Harry began practicing medicine in the building in 1958, and his son Stephen joined the practice in 1987.  Stephen testified in his deposition that he spent ten hours a day treating patients at a local hospital and then saw patients in the medical building in the evening.  Both doctors practiced together, paid all expenses form a joint account, and obtained a workers’ compensation policy naming Harry and Stephen as policy holders.  There were no partnership papers, although the two doctors considered themselves to be in a partnership.

Chalmers contended that only Harry hired her and employed her.  He gave her direction in performing her job.  Harry’s name was on the W-2 forms and he signed her paychecks, although the checks were written on a joint checking account. 

In 2006 Harry transferred title to the building to Stephen for a payment of ten dollars.  Stephen did not charge his father rent. 

The trial judge ultimately granted the motion for summary judgment filed by Stephen and dismissed the case as barred by the exclusive remedy rule.  Chalmers appealed and argued that she not an employee of Stephen.  The Appellate Division began by noting that clearly Chalmers was an employee and was not an independent contractor.  The question was whether she was a joint employee of both Stephen and Harry and therefore unable to sue either doctor.

The court did not feel that analogy to case law on joint ventures was appropriate.  “Because a joint venture is typically entered into for a limited, frequently one-time purpose, those principles have limited applicability here, beyond a general instruction to consider the totality of the circumstances.”  Instead, the court adopted “a commonsense view,” in concluding that Chalmers was an employee of both doctors.

She was paid from a joint checking account in the names of both doctors.  She was covered by a workers’ compensation policy in the names of both doctors.  The policy, including the employee notification poster, listed both doctors as her employers. . . Plaintiff’s work served the purposes of both doctors, because she cleaned the entire building in which the medical practice was located, as opposed to limiting her cleaning services to Harry’s work space. Even if Harry directed plaintiff’s work, there is no dispute on this record that she performed her work for the benefit of both Harry and Stephen, and they both paid for her work. (citations omitted).

For these reasons the Court affirmed the dismissal of Chalmers’ suit.  The Court did, however, allow the case to be transferred to the Division of Workers’ Compensation as if originally filed on time in the Division.  It cited the rule inTownsend v. Great Adventure, 178 N.J. Super. 508 (App. Div. 1981) for the proposition that the Division of Workers’ Compensation was the proper jurisdiction for the claim of Chalmers and allowing the transfer, even if out of time, was in the interest of justice.

            This case may be found at Chalmers v. Stephen J. Swartz, A-1472-12T4 (App. Div. October 8, 2013).

Nancy Turner v. WCAB (City of Pittsburgh), No. 347 C.D. 2013 (Pa. Cmnwlth. Ct., October16, 2013)

By: Jeffrey D. Snyder, Esquire

This Appeal was from the granting of the employer’s Suspension Petition.  The Commonwealth Court vacated and remanded the Workers’ Compensation Judge’s granting of the Suspension Petition. 

The Claimant was injured in a work related motor vehicle accident in 1994, in the course and scope of her employment as a police officer.  A Notice of Compensation Payable was issued, after which the Claimant returned to work in a modified duty capacity.  The Claimant accepted a disability retirement and did not seek work thereafter.

Her Heart and Lung benefits converted to Workers’ Compensation benefits, based on a determination that her injuries were of a lasting and indefinite nature.

Years later, an IME found that the Claimant had some capacity to work, with a Petition to Suspend being filed by the employer, asserting that the Claimant’s Compensation benefits should be suspended based on her voluntary removal from the work force.  The Claimant shoots back that her withdrawal from the work force was involuntary.

The Claimant said she would not have applied for a disability pension if her job had not been removed.  Although she agreed that she was not seeking employment, she had enrolled in a Community College where she was taught how to right a resume and participate in interviews.  The Claimant completed that program and then entered into an office technology program.

The WCJ granted the Petition to Suspend, accepting the Claimant’s testimony as generally credible, but rejecting her allegation that she had not voluntarily withdrawn from the work force “as she clearly has work capabilities and has admittedly not looked for work since retiring.”  The WCJ found that the employer had no obligation relative to providing alternative employment under the circumstances, given the Claimant’s retirement.

The Board remanded for additional evidence on the question of whether the Claimant was forced into retirement as a result of the work injury.  The Claimant testified on remand that she tried to go back to a job but could not continue due to pain.  The WCJ again granted the Petition to Suspend, finding that the Claimant was capable of performing work within restrictions, but that she had voluntarily removed herself from the labor market.  The WCJ concluded that the Claimant failed to establish that she was forced into retirement because of her work injuries or that she looked for work after retirement. 

The Board then affirmed the Workers’ Compensation Judge’s Decision on Remand, finding that after an employer establishes that a Claimant has received a disability pension, and a Notice of Ability to Return to Work has been issued, indicating restored earning power, the burden then shifts to the Claimant to rebut the presumption of voluntary withdrawal from the work force. 

The Board specifically stated that the Claimant had no legal obligation to look for work prior to the issuance of the Notice of Ability.  The Board nevertheless relied on the Claimant’s admission that she had no intention of returning to work at the time she accepted her disability pension, along with the fact that she only enrolled in a skill training program after receiving the Notice of Ability. 

On Appeal to the Commonwealth Court, the Claimant specifically took issue with the concept that the receipt of a Notice of Ability, as well as the receipt of a disability pension, is sufficient to raise the presumption of her intention to withdraw from the work force. 

The Commonwealth Court agreed with the Claimant, as the Court reviewed the relevant case law regarding the burden of proving job availability in the context of a claim of voluntary retirement from the work force. 

The Commonwealth Court noted that an employer was not required to establish job availability where it can demonstrate that the Claimant has voluntarily removed himself from the work force through retirement, citing toSEPTA v. WCAB (Henderson), 669 A.2d 911 (Pa. 1995). The Court relied upon the Supreme Court’s ruling inSEPTA, which held that to avoid a suspension, a Claimant must show that he or she is actively seeking employment after retirement, or has been forced into retirement because of a work related injury. 

The Commonwealth Court held that to avoid a suspension of Workers’ Compensation benefits, after a withdrawal from the workforce, a Claimant must show that he or she is seeking employment, post-actual retirement, or has been forced into retirement because of a work-related injury.

The Commonwealth Court’s Opinion in Turner specifically referenced the Supreme Court’s adoption of the totality of the circumstances test in withdrawal from the work force cases, specifically citing to the Supreme Court’s decision inSEPTA.  The burden of persuasion remains with the employer to persuade the trier of fact that there is substantial competent evidence of record to establish that a Claimant is able to work post-retirement, but nevertheless is not actively seeking employment and has, therefore, removed themselves from the work force.

In Turner, the Commonwealth Court held that the Claimant’s receipt of the disability pension merely reflected her inability to perform the pre-injury job, and was not proof that the Claimant could not perform any work whatsoever.

Ruling in favor of the Claimant, the Commonwealth Court again remanded the matter back to the WCJ to make further findings as to whether the receipt of the Claimant’s disability pension alone raised the presumption that the Claimant had retired from the work force, therefore, requiring a more complete record be made by the Workers’ Compensation Judge in compliance with the totality of the circumstances standard.

In a Concurring Opinion, Judge Simpson indicated that the issuance and receipt of a Notice of Ability should not become a per se rule as to when a Claimant would have the duty to seek employment, but rather the Notice of Ability should be evaluated by the factfinder in the course of considering the weight of evidence.

Again, the proof must be substantial, in order to convince either a Workers’ Compensation Judge, the Appeal Board, or the Commonwealth Court that an employer has satisfied its burden of proving a voluntary withdrawal from the work force, as opposed to the Claimant being able to prove that the withdrawal is voluntary, and has been caused by the work injury.

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.