State News : Pennsylvania

TO MISCLASSIFY OR NOT TO?

By Jeffrey D. Snyder, Esquire

The Commonwealth Court’s Decision in Department of Labor and Industry, Uninsured Employers Guaranty Fund v. WCAB(Lin and Eastern Taste), decided on February 17, 2017, involved a questionable case at first impression, as to whether an individual who was remodeling a restaurant, was considered to be a misclassified independent contractor under the Construction Workplace Misclassification Act (Act 72) (CWMA), or was as alleged by the Claimant, an Employee of a restaurant that was undergoing remodeling.

The Commonwealth Court ultimately affirmed the initial Decision of the Workers’ Compensation Judge that the Claimant was not an Employee when injured, and that the CWMA did not apply to the facts of the case, as the Claimant was not working in the “construction industry”, as that term is not accurately defined under the CWMA.

A few facts always help.

The Claimant was injured while he was remodeling the Eastern Taste restaurant, which had yet to open for business.

Following his injury, he filed a Claim Petition against Eastern Taste, as well as later filing a Claim Petition against the Uninsured Employer Guaranty Fund (Fund).

Initially, before the Workers’ Compensation Judge, the Judge bifurcated the employment issue from the medical issues.

Following the bifurcation, the Claimant testified, with testimony being presented by the restaurant Owner, as well as another individual who was also working on remodeling the restaurant.

Based upon the fact testimony heard by the Workers’ Compensation Judge, the Judge found that certain facts were undisputed, to include:

• The restaurant was, just a restaurant, and was not in the construction business or industry;

• The Claimant had been hired to do remodeling, before the restaurant was even opened;

   

• The most experienced person on the job, in terms of construction experience, was the Claimant;

   

• The restaurant Owner’s husband, presuming the restaurant to be owned by a woman, had been in charge of what needed to be done in the course of the remodeling being undertaken;

   

• The Claimant was paid on a per diem basis, as were three other individuals also involved in the remodeling; and,

   

• The Claimant used his own tools, and his own van, with the restaurant Owner’s husband also having his own tools and materials.

   

Based upon the witness testimony that the WCJ heard, the WCJ determined that:

• The Claimant was not an Employee of the restaurant;

• The Claimant’s work was not in the regular course of the restaurant’s business;

   

• The Claimant’s employment was casual in nature;

   

• That the Claimant failed to sustain his burden of proving that he was an Employee of the restaurant; and,

   

• That the Claimant was not considered to be an Employee under the CWMA, as the WCJ reasoned that the CWMA did not apply to the restaurant, as it was not in the construction industry.

   

Based upon the above conclusions, the WCJ denied the Claimant’s Claim Petitions, both against the restaurant, as well as against the Fund.

The Claimant appealed to the Appeal Board, which then issued an Opinion concluding that the Claimant was an Employee of the restaurant, and that the Claimant’s employment was not casual in nature.

Reversing the WCJ’s Decision, the Appeal Board remanded the case back to the WCJ for Findings and Conclusions that would support an Award of compensation.

In a not so subtle genuflection to the remand, the WCJ granted the Claimant’s Claim Petition, resulting in benefits being awarded to the Claimant.

The Fund then appealed to the Appeal Board, requesting that the Board’s Opinion be made final, for purpose of appealing to the Commonwealth Court.  So holding, the case ascended to the Commonwealth Court under the Fund’s Appeal.

Before the Commonwealth Court, the Fund argued that the Board had engaged in impermissible fact-finding, an argument that resonated with the Commonwealth Court, which rebuked the Appeal Board’s conclusion that all of the Claimant’s construction experience had been in the role of an Employee, and that the Claimant had not been engaged in his own construction business, notwithstanding that, before the Workers’ Compensation Judge, there had been no evidence that the Claimant had established a business in which he held a proprietary interest.

Finding that the WCJ’s Findings and Conclusions that the Claimant was hired to do remodeling was supported by substantial evidence, the Commonwealth Court held that those Findings and Conclusions were binding on the Board and that the Board had erred by disregarding the Judge’s findings, thereby substituting its own findings that the Claimant was not hired to do anything specific from which it then inferred, erroneously, that the Claimant was working as a general laborer.

Following that the Board exceeded its authority by making its own findings, beyond those made by the WCJ, the Commonwealth Court did hold that the Board had engaged in impermissible fact-finding, relying on its own facts, to support its conclusion that the Claimant was an Employee, an erroneous conclusion in the opinion of the Commonwealth Court.

Concluding that the WCJ’s original findings were supported by substantial competent evidence and reasonable inferences deduced from substantial evidence, the Commonwealth Court held that the determination as to the existence of an Employer/Employee relationship is a question of law, and that the Court’s scope of review was plenary and the standard review isde novo.

Holding that Section 104 of the WC Act defines an Employee to be “synonymous with servant, and includes all natural persons who perform services for another for a valuable consideration, exclusive of… persons whose employment is casual in character and not in the regular course of the business of the Employer…” the Court noted that there is nobright line rule for determining whether a particular relationship is that of an Employer/Employee or Owner/Independent Contractor, although the Supreme Court inUniversal Am-Cam, Ltd. v. WCAB (Minteer), 762 A.2d 382 (Pa. 2000) had established several factors that have to be considered when making such a determination:

• Control of manner of work is to be done;

• Responsibility of result only;

   

• Terms of agreement between the Parties;

   

• The nature of the work or occupation;

   

• Skilled required for performance;

   

• Whether one is engaged in a distinct occupation of business;

   

• Which Party supplied the tools;

   

• Whether payment is by the time or by the job; and,

   

• Whether work is part of the regular business of the Employer, and also the right to terminate the employment at any time.

   

The controlling takeaway from those factors is that “control over the work to be completed in the manner in which it is to be performed are the primary factors in determining Employee status,” and “…it is the existence of the right to control that is significant, irrespective of whether the control is actually exercised.”

Since the WCJ had originally found that the relationship between the Claimant and the restaurant was similar to that of the relationship between a Property Owner and Painters, Plumbers, Electricians, Carpenters, and other remodelers, it was reasonable for the Workers’ Compensation Judge to conclude that the restaurant Owner’s husband did not control the manner in which work was being completed and performed by the Claimant, as the restaurant Owner’s husband did not reserve control over the means of performing the contract, merely reserving control as to the result of the remodel.

The Commonwealth Court also considered that the Claimant had been hired to perform remodeling, with no expectation of working in the restaurant after the remodeling.

Keeping in mind that the Claimant bore the burden of proving an Employer/Employee relationship, and that all evidence has to be viewed in the light most favorable to the prevailing Party, the Commonwealth Court, in an Opinion authored by Judge Hearthway, held that the WCJ’s conclusion that the Claimant was not an Employee was reasonable, and that it could not, therefore, be construed to be in error as a matter of law.

Not finished, the Commonwealth Court also held, this being the issue of first impression, that the CWMA concerns the construction industry, effecting the determinations of whether someone is an independent contractor versus an Employee under the WC Act.  Having already determined that the Claimant was not an Employee of the restaurant, the Commonwealth Court noted that an individual who performed services in the construction industry for remuneration will be deemed to be an independent contractor for purposes of workers’ compensation, with the converse being, that if a worker falls within the purview of the CWMA, and does not meet the requirements to be considered to be an independent contractor, then that individual is deemed to be an Employee for purpose of workers’ compensation.

Finding that the CWMA was not applicable, as the Workers’ Compensation Judge had concluded, the Commonwealth Court held that the restaurant was in the restaurant business and not in the construction business, and that the CWMA did not, therefore, apply to the facts of this case.

The dispositive question for determining whether one falls within the purview of the CWMA is whether the individual performed services for remuneration “in the construction industry,” a question that the Commonwealth Court held was one of first impression.  Although the CWMA defines the term “construction,” it does not define the term “industry,” requiring the Commonwealth Court to construe that term according to its common and approved usage in accordance with the Statutory Construction Act of 1972, with “industry” being commonly defined as “skilled employment involving skill” and “a department or branch of a craft, art, business or manufacturer.”

Further noting that the CWMA was intended to limit those who would be deemed to be independent contractors, as opposed to Employees, it was intended to address concerns that Employers were, shockingly, misclassifying workers as independent contractors, rather than Employees, in order to avoid the payment of unemployment taxes, workers’ compensation premiums, and payroll.

The Court also noted that to apply the CWMA to any remodeling project would have the effect of potentially turning every individual that took on a remodeling project into becoming an Employer “in the construction industry,” significantly expanding the scope of what the Commonwealth Court interpreted the purpose of the CWMA to be.

The Takeaway

This one is kind of a head-scratcher, as there are many Workers’ Compensation Judges who probably would have found the Claimant to be an Employee, simply to plug the hole in the dyke with insurance, whether against the restaurant or, alternatively, against the Fund.

Presumably, the restaurant had workers’ compensation insurance for its operations as a restaurant, employing restaurant workers in whatever capacities it would have required to continue operations as a restaurant.

Here, the restaurant was not actually open, and was not in operation, and was not, therefore, actually acting as a restaurant, although it would have done so after the remodeling project was complete.

Left unanswered by the Court’s Decision is the status of the Claimant, and the three other individuals who are doing the remodeling work, as there is no reference in the Opinion that they were working for a company, or a business, nor is it entirely clear how those individuals became associated with the remodeling project.

There is also no reference in the Opinion to any discussion, at any of the levels that this case ascended through, from a WCJ through Appeal Board to the Commonwealth Court, as to whether there was a contract in place for the work that was being performed for the remodeling project, as contracts usually require evidence of insurance, if even limited to general liability insurance for any work being performed by the remodelers, including the Claimant.

Post-injury, everyone scrambled for cover.

Better to make sure that contracts are in place, and that insurance is incorporated into the contracts, for the protection of all involved, both in terms of general liability insurance and workers’ compensation insurance.

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.

UNSEASONAL EMPLOYMENT IN PENNSYLVANIA

By

Jeffrey D. Snyder

A recent Pennsylvania Commonwealth Court Decision in Tojio Orchards, LLC v. WCAB (Gaffney), revolved around seasonal employment, as well as addressing an issue of the Claimant’s entitlement to a healing period, in connection with a specific loss claim.

The Claimant had sustained a specific loss of his left eye on October 8, 2013, as a result of his eye contacting a tree limb, while he was driving a tractor.

The employer then issued a Notice of Temporary Compensation Payable (NTCP), and filed a corrected Statement of Wages (SOW).  The SOW indicated an average weekly wage of only $35.10, resulting in the compensation rate of $31.59 per week being determined.

Subsequently, the TNCP was revoked, with the appropriate stoppage notice, and a “Medical Only” Notice of Compensation Payable being issued, immediately followed by the filing of a Claim Petition, seeking specific loss benefits for the loss of vision in the left eye.

Before the workers’ compensation judge, the petition proceedings were bifurcated, first addressing the issue of employment status and average weekly wage, to be followed by an adjudication of the medical issues.

The testimony presented to the workers’ compensation judge was that the Claimant was a friend of a principal of the employer.  The Claimant and principal had gone to school together, the Claimant had then worked for the employer as an apple picker 30 years before.  He was then hired for the apple harvesting season, driving a tractor, and moving bins for apple pickers as they lolligagged from tree to tree.

He was paid $9.00 per hour, with his normal working hours being between 7:00 a.m. and 5:00 p.m., 5 days a week, and he was never promised any extension of employment beyond the apple picking season, ending coincidentally when all the apples were picked.

Previously receiving Social Security Retirement Benefits, as the Claimant had retired about 6 years prior, the retirement benefits were stopped when he began working for the employer, although he then began to receive the retirement benefits after he was injured.

Interestingly enough, or maybe not, the employer had another employee who worked as a tractor driver for the employer year round.

The record then noted that the apple season lasts from September until November, and that the workers never work in the rain.  A year round tractor driver position, held by another employee, involved spraying, taking care of the farm, computer duties, and during the harvesting season, hauling apples out of the orchard.

Concluding that the Claimant was engaged in exclusively seasonal employment, the workers’ compensation judge granted the Claim Petition, awarding benefits for seasonal employment, and then awarding specific loss benefits for the loss of vision in the eye, with the specific loss benefits being awarded for 275 weeks, which at $31.59 per week, resulted in an award of $8,687.25.

The Claimant then asked the workers’ compensation judge to enter an Interlocutory Order, in order that the decision could be appealed.

The claim was then appealed to the Appeal Board, with the Claimant arguing that he was not a seasonal worker.  The Appeal Board believed that the workers’ compensation judge had imposed too narrow a construction on the Claimant’s employment, and that the judge should have focused on the nature of the work, not the period of time during which the Claimant was working for the employer, citing toFroehly v. TM Harten Company, 139 A.2d 727 (Pa. 1927) (post Andrew Jackson).

The Appeal Board characterized the Claimant’s employment as being that of “itinerant agricultural labor”, observing that employment, although short term, is not necessarily synonymous with seasonal occupation.

Another issue before the Appeal Board was the calculation of the Claimant’s average weekly wage, as the Claimant argued that he had worked less than 13 weeks, and did not have fixed weekly wages, with the Claimant alleging that he was working 50 hours a week, at $9.00 per hour, with the Claimant asserting that his average weekly wage should be $450.00.

The argument made by the Claimant over the calculation of his average weekly wage was rejected by the Appeal Board, determining that the Claimant’s gross earnings over the weeks worked, limited to 5 weeks, only totaled $1,755.00, yielding an average weekly wage of $351.00, and a compensation benefit rate of $315.90.

The Appeal Board also concluded that the Claimant was entitled to a 10 week healing period for a specific loss, modifying the judge’s specific loss award from 275 weeks to 285 weeks.

Shockingly, the employer appealed to the Pennsylvania Commonwealth Court.  In response, the Claimant filed a Designation of Additional Issues on Appeal, again challenging the calculation of his average weekly wage.

Citing to Section 309(e) of the Pennsylvania Workers’ Compensation Act, the Commonwealth Court noted that occupations that are exclusively seasonal, meaning they cannot be carried on throughout the year, should result in an average weekly wage that would be 1/50^th of the total wages which the Claimant or employee earned from all occupations during the 12 months immediately preceding the injury, and, if, for some reason, that calculation was deemed to be unfair, the calculation could be adjusted.

Noting that the Pennsylvania Workers’ Compensation Act does not specifically define what constitutes an “exclusively seasonal occupation”, the Court noted that the Pennsylvania Supreme Court had held inFroehly that “seasonal occupations logically are those vocations which cannot, from their very nature, be continuous or carried on throughout the year but only during fixed portions of it.”

As further noted by the Pennsylvania Supreme Court in Froehly, “a labor occupations possible of performance and being carried on at any time of the year, or through the entire 12 months, is certainly not seasonal.”

In Froehly, the Claimant had been working as a dishwasher for an amusement park that was only open during the summer, from June to September.  The amusement park argued that the Claimant was a seasonal employee, because the park was only open for a few months, with that argument being rejected by the Supreme Court, which found that dishwashing is not a seasonal occupation, even though the employer park was only open for a few months of the year.

An exception to the Froehly rule, involving amateur sports, occurred when the Claimant, while playing for the Arena Football League, inRoss v. WCAB, 702 A.2 1099 (Pa. Cmwlth. 1997), was injured while playing as a football player under a contract.  The AFL argued that the employee should be considered a seasonal employee, an argument that the Appeal Board endorsed.  The Claimant argued, however, that he was not a seasonal employee, because although the employer (AFL) had a set season, the Claimant could still play football for other teams in other leagues at other times, although the Commonwealth Court disagreed, holding that the Claimant’s employment contract, in Ross, prohibited the Claimant from engaging in off-season play.

In Gaffney, the case under discussion, the Commonwealth Court agreed with the Appeal Board that the Claimant was engaged in “itinerant agricultural labor”, when he was injured, but that his position as a temporary tractor driver for the apple harvest was not seasonal employment under Section 309(e) of the Act.

This holding was supported, in the Commonwealth Court’s opinion, by the fact that the Claimant did not have a contract precluding him from performing services throughout the year for another employer.

As for the Claimant’s average weekly wage, the Court held that the Claimant’s average weekly wage of $351.00, resulting from $1,755.00 being divided by 5 weeks, and further resulting in a disability rate of $315.90 representing “economic reality” with that finding being upheld before the Commonwealth Court.

Lastly, the healing period issue was addressed, with the Commonwealth Court holding that a specific loss award entitles a Claimant to a rebuttal presumption that the specific loss entitles the injured worker to a healing period.

Decided by the Commonwealth Court on March 13, 2017, the Gaffney holding is seasonally appropriate, given that the harvest season is only a few months away.

Take Aways

The obvious take away is that seasonal employment is an extremely limited holding, which will, underFroehly, be limited to occupations that by their very nature are fixed to certain seasons, and are not carried on throughout the year.  Conversely, any job that can be performed at any time of the year, will likely not be deemed to be seasonal under the Froehly holding.

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.

A DOUBLE-EDGED SWORD

By Jeffrey D. Snyder, Esquire

A recent, Court ruling in County of Allegheny v. WCAB (Parker), recently decided in 2016, held that attorneys’ fees that are awarded on the basis of unreasonable contest are considered to be litigation costs, that must be reimbursed by a Claimant Attorney, if the unreasonable contest of attorneys’ fees were paid pursuant to a denial of Supersedeas, on a prior Appeal, where the Employer ultimately prevailed that is contests of the Claimant’s claims and Petitions were reasonable.

Factually, this case involved the 80 year old Claimant sustaining a work-related shoulder injury in 1993.  In 2007, the Claimant’s compensation benefits were suspended, as a result of the granting of a Suspension Petition.

Appealed to the Workers’ Compensation Appeal Board, the underlying WCJ’s Decision was reversed, and remanded for an assessment of Counsel fees on the basis that the Appeal Board believed that the Employer’s contest was unreasonable, and that the Claimant was entitled to an award of unreasonable contest of attorneys’ fees under Section 440 of the Act.

The Board, in its infinite wisdom, believed it was bound by a prior 2004 Decision that had denied a Suspension of the Claimant’s compensation benefits.

On the remand, the WCJ did award Counsel fees on the basis of unreasonable contest, with the finding of an unreasonable contest then affirmed by the Appeal Board, although, it actually changed the amount of the unreasonable contest, increasing in favor of the Claimant and against the Employer.

Undaunted, the Employer appealed to the Commonwealth Court, with the Commonwealth Court concluding that the Appeal Board had been mistaken in relying on collateral estoppel, and that it further committed a legal error in awarding counsel fees on the basis of an unreasonable contest, given that the Employer had ultimately prevailed, with the Commonwealth Court sustaining the suspension of compensation benefits in deciding the underlying issues on Appeal.

Applying for Supersedeas Fund reimbursement, as the unreasonable contest attorneys’ fees had been assessed in the amount of $14,750.00, the Supersedeas Fund denied the reimbursement request, on grounds that the Act only allows it to reimburse for medical and wage loss benefits, not for litigation costs.

The Commonwealth Court then explained that to allow a situation where unreasonable contest attorneys’ fees are paid following the denial of Supersedeas on an Appeal, and the Claimant does not prevail with respect to the underlying case and issues, would constitute an unjust enrichment to Claimant’s Counsel, regardless of any intent to distribute the funds to the Claimant.

As a recommendation, the Commonwealth Court suggested that there be an agreement to stay an Appeal in similar circumstances, so that fund disbursements are not issued prior to the issues being ultimately decided.

The Commonwealth Court further noted that the procedure for seeking reimbursement is to file a Petition for Refund, filing the same with the Bureau for assignment to a Workers’ Compensation Judge.  This mechanism appears to extend to all litigation costs that include unreasonable contest of attorneys’ fees, where the issue is ultimately decided in favor of the Employer, that the Employer’s contest in the underlying claim was reasonable, and should not have been subject to an unreasonable contest attorney fee Award.

Finally, in County of Allegheny, the Commonwealth Court remanded the case for the Petition for Refund to be granted, in the amount of $14,750.00 in unreasonable contest attorneys’ fees that the Employer had paid to Counsel, ultimately requiring Counsel to reimburse the Employer for the same fees.

By way of a takeaway, this is an obviously favorable Decision for Employers and Insurers, although, in practice, it has been our experience that unreasonable contest attorneys’ fees, on Appeal, usually result in Supersedeas being granted, meaning that the Employer or Insurer does not become obligated for paying the unreasonable contest attorneys’ fees during the pendency of an Appeal of factual and legal issues decided in a Decision by a Workers’ Compensation Judge or by the Appeal Board.

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.

2017 PENNSYLVANIA WORKERS’ COMPENSATION RATE CHANGES

By Kevin L. Connors, Esquire

Happy New Year!

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

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

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

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

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

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

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

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

ConnorsO’Dell LLP

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

DEFENSE COUNSEL SELECTION IN WORKERS’ COMPENSATION MATTERS

Kevin L. Connors, Esquire

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

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

Not selecting the right attorney can be detrimental.

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

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

It All Starts with the Selection Process

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

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

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

Important Factors to Consider

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

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

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

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

Other Important Intangibles

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

·                     Ability to seek creative solutions to complex problems;

·                     Responsiveness to inquiries such as voicemail messages and email;

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

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

Conclusions

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

ConnorsO’Dell LLP

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

TERMINATING COMPENSATION BENEFITS IN PENNSYLVANIA

By Kevin L. Connors, Esquire

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

Thank you, Homer Simpson.

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

Thank you again, Homer!

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

This Decision is relevant why?

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

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

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

In so holding, the Lewis Court had explained:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Takeaway

First, yahoo!

Tough case with familiar faces.

Two different WCJ’s, two different results.

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

So, what was the tie-breaker?

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

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

ConnorsO’Dell LLP

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

THE LONG AND SHORE OF IT

By Kevin L. Connors, Esquire

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

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

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

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

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

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

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

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

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

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

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

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

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

The Takeaway

It seemed like a pretty shore thing.

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

ConnorsO’Dell LLP

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

REEFER MADNESS CLOUDS PENNSYLVANIA

By Kevin L. Connors, Esquire

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

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

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

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

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

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

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

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

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

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

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

·                     Cancer;

·                     HIV/Aids;

·                     Amyotrophic Lateral Sclerosis (ALS);

·                     Parkinson’s Disease;

·                     Multiple Sclerosis;

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

·                     Epilepsy;

·                     Inflammatory Bowel Disease (IBS);

·                     Neuropathy;

·                     Huntington’s Disease;

·                     Crohn’s Disease;

·                     Post-traumatic Stress Disorder (PTSD);

·                     Intractable Seizures;

·                     Glaucoma;

·                     Sickle Cell Anemia;

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

·                     Autism.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Has the world gone mad?

The Takeaway

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

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

ConnorsO’Dell LLP

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

TO APPEAL OR NOT TO APPEAL

By: Kevin L. Connors, Esquire

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

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

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

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

Perhaps some facts might help cut through this procedural fog.

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

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

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

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

Guess who did not file an appeal?

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

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

What the?

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

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

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

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

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

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

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

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

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

Is there a takeaway?

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

ConnorsO’Dell LLP

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

AN IMPERFECT IMPAIRMENT IN PENNSYLVANIA

By Kevin L. Connors, Esquire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TakeAways

Be careful what we wish for.

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

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

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

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

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

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

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