By:

Robert F. Horn, Esquire

Yes, Domtar was our firm’s case, in which we represented our clients, Liberty Mutual and Schneider National, seeking to perfect our clients’ independent right of subrogating their workers’ compensation lien against the third-party tortfeasor that caused injuries to Schneider’s employee, resulting in workers’ compensation benefits being paid to its employee, George Lawrence.

As lead counsel for this case, which has been followed both locally and nationally by employers and insurers, the April 27, 2015 3-2 Majority Opinion of the Pennsylvania Supreme Court, in an opinion authored by Justice Baer, is a very disappointing result, both professionally and personally, given the stakes presented as well as the time and energy expended in its pursuit.

Disappointed though we are, we remain confident that this was an issue incredibly important to pursue, with the Supreme Court’s Decision potentially opening the door for framing future subrogation lien recovery cases, under a “use-Plaintiff” procedure, as opposed to the procedure used in Domtar, being a “as subrogee of” procedure.

With disappointment comes future insight.

The Domtar case involved the Pennsylvania Supreme Court being asked to address a question raised inFrazier v. WCAB (Bayada Nurses, Inc.), 52 A.3^rd at 248 (2012), with the Supreme Court having granted our Petition for Allocatur to address the issue framed below:

·         Does Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 671, allow an employer/insurer to step into the shoes of an injured employee to subrogate against the negligent tortfeasor causing the injuries resulting in the payment of workers’ compensation benefits?

That question was taken directly from the Pennsylvania Supreme Court’s Decision inFrazier v. WCAB (Bayada Nurses, Inc.), 52 A.3d at 248 (2012), with the Pennsylvania Supreme Court having granted our Petition for Allocatur in reliance upon our usingFrazier to frame the appellate question.

The ruling issued by the Supreme Court on April 27, 2015 limits employers and workers’ compensation insurers from pursuing a direct right of subrogation against a third-party tortfeasor when the injured employee, who has received workers’ compensation benefits but takes no direct action against the tortfeasor from the employer or workers’ compensation insurance carrier directly suing  the negligent tortfeasor, absent the action being filed as an “in the name of” case.

This case arose as a result of our client’s employee, George Lawrence, sustaining work-related injuries while working as a driver for Schneider National on December 13, 2009.  Lawrence’s injuries resulted from Lawrence falling in a parking lot leased byDomtar, with Schneider’s workers’ compensation insurance carrier, Liberty Mutual, being forced to pay workers’ compensation benefits, as a result of the negligence of the tortfeasor against whom we sought to recover Liberty/Schneider’s subrogation lien for the workers’ compensation benefits paid to Lawrence.

When Lawrence did not elect to file a lawsuit on his own, and never responded to several requests to cooperate with Schneider or Liberty, to allow Schneider and Liberty to pursue a subrogation claim directly  againstDomtar, a Writ of Summons was filed against Domtar by our office, serving as Pennsylvania counsel for Schneider in defense of its workers’ compensation claims.

Despite repeated efforts to secure Lawrence’s direct involvement in the lawsuit, Lawrence never stepped forward to participate, and a Complaint was then filed againstDomtar on behalf of Schneider and Liberty, seeking recovery of the workers’ compensation benefits that had been paid during the pendency of Lawrence’s workers’ compensation claim, with the subrogation lien totaling $33,929.23.

The subrogation principle is simple enough, directly tracking Section 319 of the Act, which sets forth:

“Where the compensable injury is caused in whole or in part by the act or omission of a third-party, the employer shall be subrogated to the right of the employe[e], his personal representative, his estate or his dependents, against such third-party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe[e], his personal representative, his estate or his dependents.  The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement.  Any recovery against such third person in excess of the compensation  theretofore paid by the employer shall be paid forthwith to the employe[d], his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation.”

Following service of the Complaint on Domtar, Domtar, through counsel, filed Preliminary Objections to the Complaint, demurring to the Complaint, contending that the workers’ compensation insurance carrier did not have an independent right to seek subrogation directly against a third party tortfeasor, in the absence of the injured employee being involved in the prosecution of the subrogation claim and action.

The Preliminary Objections were initially granted by the Trial Court, with the case then being appealed to the Superior Court. 

Granting Domtar’s Preliminary Objections, the Trial Court relied upon the Pennsylvania Superior Court’s Decision inReliance Insurance v. Richmond Machine Company, 455 A.2d 686 (Pa. Super. 1983), holding that only the injured employee, and not the employer/insurer, has a right of direct action against the third-party tortfeasor in a recovery predicated on negligence.

With the Trial Court concluding that the employer and insurer did not have an independent right to sue the third-party tortfeasor without intervention and involvement by the injured employee, Liberty Mutual filed a timely appeal of the Trial Court’s granting of Preliminary Objections to the Pennsylvania Superior Court, arguing that Section 319 of the Pennsylvania Workers’ Compensation Act provided an absolute right of subrogation for benefits that had been paid to Lawrence, and that the mere fact that Lawrence had not elected to bring his own action against the Defendant should not bar Liberty Mutual and Schneider National from perfecting their subrogation rights under Section 319 of the Act.

Before the Superior Court, Liberty Mutual and Schneider National relied upon the Pennsylvania Supreme Court Decision inScalise v. F. M. Venzie and Company, 152 A.90 (Pa. 1930), in which the Supreme Court had held “that the employer is not to be denied his right of suit because the employee does not sue, but may institute the action in the latter’s name.” Scalise, 152 A. at 90.

In 2013, the Superior Court affirmed the Trial Court’s order granting Domtar’s Preliminary Objections, rejecting Liberty Mutual’s contention that Section 319 of the Act, as well as the dictum from theScalise decision, permitted Liberty Mutual and Schneider National to separately pursue their subrogation claims against the third-party tortfeasor, when Lawrence, as the injured employee, took no direct action of his own. 

Moreover, the Superior Court ruled that “Section 319 does not provide employers with the ability to bring suit directly against a third party”, ruling “the action against the third party tortfeasor must be brought by the injured employee … i.e. the employee-victim must sue, and the employer’s carrier is subrogated to the employee’s claim”.  Liberty Mutual, 77 A.3d at 1288-89.

Boldly going where none had gone before, we successfully secured allocatur before the Supreme Court, to seek clarification of an issue critical to our clients, being preservation of their subrogation rights under Section 319 of the Act.

And yes, we believe strongly in our clients’ subrogation rights, as well as believing that there was sufficient confusion from prior subrogation cases that appellate clarification was absolutely necessary, notwithstanding the Supreme Court’s clearly divided decision in Domtar denying our clients’ “day in court”, constituting in baseball terminology, a third strike, low and at the knees, and a little at the edge of the plate, in terms of actually clarifying not only the existence of the right, but also the procedural mechanics in terms of how clients can effectively perfect their subrogation lien rights, as we are now headed to the dugout, scratching our heads, asking what could have been done differently to turn a 3-2 majority opinion against our clients into an affirmation of subrogation rights that have consistently been described, in innumerable appellate decisions, as being both “absolute” and “primary”, dating since the dawn of compensation legislation and litigation.

Keep in mind that 47 of the 50 States in the “I would never choose to live anywhere else” United States, have workers’ compensation statutes permitting the employer or insurance carrier to independently seek recovery of their subrogation lien claims against third-party tortfeasors responsible for causing the work-related injuries resulting in the payment of workers’ compensation benefits to injured employees, with Pennsylvania being one of only three jurisdictions in the United States which does not have such a right of recovery, adding fuel to the flames of “if you thought we asked the right question”, which is why you granted Allocatur in the first place, why then the harsh grade school ruler across the knuckles, that arriving at the prom without a date meant the retraction of dance privileges.

Yes, this was a fight worthy of its tortured course.

Did we prevail?

Trick question!

The answer being it depends upon what the meaning of “is” actually is, and thank you Bill for that illusion.

Interpreted by the Pennsylvania Supreme Court, in a decision in which three of the five sitting Justices have denied our relief, with two Justices dissenting on “are you kidding me” grounds, the answer to the question we posed is, well, it depends.

Seemingly, the only thing wrong with our case was that we could not:  (1) secure the agreement of Lawrence to be involved in the litigation; and (2), that we designated the case as a case of “as subrogee of”, instead of “in the name of”, or, alternatively, “in the use of”, distinctions which technically and procedurally change nothing in terms of the actual parties involved in the case, although the majority opinion does lay the ground work for what we think needs to happen in the future, in terms of how subrogation lien claims can be perfected in the course of seeking recoveries against responsible third-party tortfeasors.

Before we go there, the two dissenting opinions, by Justices Saylor and Todd, clearly suggest that this is “much ado about nothing”, with credits to Shakespeare, as both dissenting opinions evidence the majority opinion having failed to address the question that was posed to the Supreme Court in the course of allocatur being sought, being that subrogation, by its very nature, involves the act of stepping into another party’s shoes, in order to perfect the right that rightfully should be held, and, broadcast from the highest elevation, by the party actually paying for the third-party tortfeasor’s negligence, being the insurance carrier that files suit “as subrogree” of the injured party, whether it be in the context of workers’ compensation claims, or in any other context, as the injured party, compensated through insurance proceeds becomes the foil through which the negligence of a third-party tortfeasor becomes exposed.

Whether this right is perfected through the designation of “as subrogee of”, or “use-Plaintiff”, is a procedural issue that needs to be addressed by the Pennsylvania Supreme Court Civil Procedural Rules Committee, for study and recommendations, as correctly noted in the Dissenting Opinion of Justice Todd, believing this to be the criticaljudicial coding of the Domtar Decision.

Without plodding ad nauseum through the majority opinion authored by Justice Baer under which we were so impolitely turned away from a home plate seemingly within reach, potentially attainable had there been clearer precedent in terms of how to caption the case suit, who should be designated as parties, and the necessary procedural mechanics, there having been none, although there is, by extension ofDomtar, at least in terms of the dissenting opinions and negative extrapolation of the Majority’s Opinion, some clear indicia of how to proceed in future subrogation lien recovery cases yet to be filed, with the following recommendations being made:

·         First, it seems clear that any future action, needs to be filed as “to the use of”, with the caption being “John Doe, to the use of, ABC Insurance Co.”, which has yet to write any insurance policies in Pennsylvania, but which would, if retaining our firm to perfect its subrogation lien rights, file a Complaint, as just captioned;

·         This recommendation is necessary, as the Domtar Court has not explained the distinction between “as subrogee of”, as opposed to “to the use of”, and since English has always been a second language for us, it is, therefore, necessary to consider this as a lesson learned;

·         It is probably also necessary that the injured employee be served with a copy of the Complaint to be filed, as well as securing an Affidavit of Service on the injured employee, with it making sense to also serve the injured employee with a 30 day notice letter of your intent to file a “use” action, similar to procedural guidelines that have been established in states that have much more detailed procedural mechanics embedded in their workers’ compensation subrogation lien statues, such that everyone knows what to do, as well as when to do it;

·         It probably also makes incredible sense to incorporate a 30 day notice letter into the actual Complaint being drafted and filed, so that any attack by the defense bar, using Preliminary Objections to strike the pleadings, would be able to survive Preliminary Objections based on a demurrer to the Complaint, as then there is procedural evidence that the injured employee has consented, or at least failed to object, to the action being initiated, begging the question as to how involved the injured employee will need to be in the course of the claim being litigated against the third-party tortfeasor, for recovery of the subrogation lien; and,

·         It is also suggested that an assignment be taken from the injured employee, allowing the employer and/or insurance carrier to pursue the civil subrogation lien claim, on behalf of the injured employee, as well as in the “use of” the injured employee, for purposes of negating Preliminary Objections being granted in the nature of a demurrer to a complaint seeking recovery of a subrogation lien on behalf of an employer or insurance carrier for workers’ compensation benefits paid as a result of the negligence of a third-party tortfeasor.

Obviously, we anticipate the Supreme Court’s ruling in Domtar to generate significant press, necessitating that this decision be carefully analyzed in terms of what it might mean for the future of subrogating, in the course of seeking to perfect the subrogation lien rights of workers’ compensation carriers and employers that have paid workers’ compensation benefits because of the negligence of third-party tortfeasors, in order to prevent the third-party tortfeasors from escaping liability for work-related injuries resulting in the payment of workers’ compensation benefits that might otherwise not have been payable, but for the negligence of a third-party.

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.

BEING SPECIFIC ABOUT SPECIFIC LOSSES

By Jeffrey D. Snyder, Esquire

In Jacqueline Fields v. WCAB (City of Philadelphia), decided by the Pennsylvania Commonwealth Court on November 14, 2014, the Court addressed the issue of whether benefits payable for an injured employee sustaining multiple specific losses, arising from the same injury, should be paid consecutively, as opposed to being paid concurrently under the Pennsylvania Workers’ Compensation Act.

In Fields, the Pennsylvania Commonwealth Court ruled that the benefits should be paid consecutively, regardless of whether that meant that the benefits due and owing might not be completely paid within the injured employee’s life expectancy.

This case arose as a result of the injured employee sustaining injuries to her left shoulder, arm, wrist, and hand, while restraining an inmate, in the course of working as a prison guard for the City of Philadelphia in January of 2013.

In December of 2013, she was awarded workers’ compensation benefits, in the form of temporary total disability benefits, by the Workers’ Compensation Judge.

Three years later, a different Workers’ Compensation Judge granted the injured employee’s Review Petition, adding additional descriptions of injury to the injury nexus for the injured employee’s 2003 injury, including adding a partial tear of the left rotator cuff, a left brachial plexus traction injury, and reflex sympathetic dystrophy of the injured employee’s left upper extremity.

Yet another Workers’ Compensation Judge then granted the injured employee’s Claim Petition in 2008, awarding the injured employee 410 weeks of specific loss benefits for the specific loss of her left arm, finding that the specific loss benefits were payable as of the injured employee’s injury becoming a complete loss of use for all practical intents and purposes in August of 2006.

In addition, a 20 week healing period was also awarded to the injured employee.

The Workers’ Compensation Judge also ordered that the injured employee’s temporary total disability benefits would continue, as the injured employee was totally disabled, and the specific loss benefits would then be payable after total disability benefits concluded.

The injured employee then filed a second Claim Petition, alleging a specific loss of her right lower extremity and right foot, later amending the petition to include a specific loss of her left leg.

In 2009, yet another Workers’ Compensation Judge found that the injured employee’s work injuries had resolved into specific losses of her left arm, and both legs.  Doing so, the Workers’ Compensation Judge granted the Review Petition, awarding 410 weeks of specific loss benefits to the right leg, 410 weeks of specific loss benefits for the left leg, and a 25 week healing period.

The 2009 Decision also resulted in the employer, the City of Philadelphia, being entitled to a credit for weekly temporary total disability benefits that had been paid through the date of the Judge’s 2009 Decision.

An Amended Decision was then issued by the Workers’ Compensation Judge, changing the dates relevant for the interest that would be payable on the various awards of specific loss benefits.

The 2009 Decision was appealed, with the Appeal Board determining that the 2009 Decision incorrectly awarded interest to commence on different dates for each specific loss, with the Appeal Board modifying the Judge’s Decision, to reflect an accrual date, for interest purposes, for all three awards.

The Appeal Board held that the date of accrual for interest was when the evidence proved that the injured employee’s disability injuries had resolved into specific losses, with specific loss benefits then being payable, as temporary total disability benefits ended.

The Appeal Board’s Decision was then affirmed by the Commonwealth Court in the firstFields Decision, issued in 2012.

In 2010, the injured employee filed a Petition to Review Medical Treatment, alleging that she required a personal care attendant, as well as modifications to her home and vehicle, also filing a Penalty Petition, alleging that the employer had violated the Act, by unilaterally reducing her compensation benefits.

In 2011, the Workers’ Compensation Judge concluded that the injured employee had met her burden of proof in support of her Review Medical Petition, without entering a specific award for the costs of the vehicle modifications, and home care services sought, since the injured employee did not present evidence of any modification estimates or service invoices.

The Penalty Petition was denied, on grounds that the Workers’ Compensation Judge found that the employer did not violate the Act.

The Workers’ Compensation Judge also concluded that, based upon the injured employee having multiple specific losses arising from the same injury, that the injured employee could elect to be paid specific loss benefits, rather than indemnity or temporary total disability benefits, but that the injured employee could not receive concurrent multiple awards of specific loss benefits.

This Decision was then appealed by both parties, with the Board disagreeing with the Judge’s determination as to how benefit payments should be made to the injured employee under the Act.  The Board also determined that the injured employee’s specific loss benefits should be paid consecutively, as opposed to concurrently.

Holding that the plain language of Section 306(c)(21) of the Pennsylvania Workers’ Compensation Act dictated that the employer should pay the injured employee specific loss benefits consecutively, the Commonwealth Court concluded, as the employer suggested, that the injured employee was attempting to back-door her specific loss benefits as though the same were being commuted, effectively accelerating the payment of benefits, although there was not a commutation petition before the Court.

Consequently, the Commonwealth Court determined, that an injured employee claiming bilateral specific losses, who chooses to receive the specific loss benefits rather than total disability benefits, mandates that the specific loss benefits should then be paid “in the same manner as the legislature intended other multiple specific losses, … which is consecutively”.

Holding that the injured employee’s disabilities resulted from a single occurrence, the Commonwealth Court ordered that the injured employee’s multiple specific losses should be aggregated pursuant to Section 306(c) of the Act, requiring that the benefits be paid consecutively, and not concurrently.

What is the take away from this specific loss Decision?

Simply put, it is that the Commonwealth Court has now made a bright line line ruling on an issue that rarely arises, being that an employer’s obligation to pay specific loss benefits, for multiple specific losses arising out of the same injury, requires consecutive and not concurrent payments, with an injured employee not being permitted to attempt to accelerate payments, in the absence of the benefits being commuted.

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 MMI OR NOT TO MMI”

By Kevin L. Connors, Esquire

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

What?

Bear with us!

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

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

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

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

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

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

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

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

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

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

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

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

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

·                     Receipt of 104 weeks of temporary total disability benefits;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Quoting from the AMA’s Guides regarding MMIs:

2.3c When Are Impairment Ratings Performed?

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

….

2.5e Maximum Medical Improvement

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

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

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

ConnorsO’Dell LLP

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

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

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

By Kevin L. Connors, Esquire

Hamlet beware!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ConnorsLaw LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

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

By Kevin L. Connors, Esquire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

·                     Motrin-179%;

·                     Flexeril-76%;

·                     Tramadol-132%;

·                     Hydrocodine (Vicodin)-233%;

·                     Naproxen-87%;

·                     Mobic-61%;

·                     Soma-742%;

·                     Alleve-41%;

·                     Percocet-289%; and,

·                     Prilosec-110%.

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

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

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

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

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

ConnorsLaw LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

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

By Kevin L. Connors, Esquire

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

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

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

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

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

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

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

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

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

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

By Kevin L. Connors, Esquire

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

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

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

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

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

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

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

By Kevin L. Connors, Esquire

So, in the midst of all this compensation claims chaos, you have to ask yourself:  do I feel lucky?

Of course, Dirty Harry, played by Clint Eastwood in the 1971 crime avenger epic, possessed sufficient firepower to answer that question with a big bang.

Opening up your claim portal, after two cups of Dunkin Donuts or Wawa coffee, you spot a new claim in your inbox, opening it with three potential choices available to you under Pennsylvania’s Workers’ Compensation Act, being:

·                     Denial, for one of six potential reasons, including:

ü    There is no indication/evidence that the Claimant sustained a work-related injury, to include any alleged aggravation of their pre-existing condition;

ü    The Claimant was not in the course and scope of employment when injured;

ü    The Claimant failed to give timely notice of the alleged work injury, requiring notification, first within 21 days, and then within 120 days in avoidance of total claim denial;

ü    The Claimant was not employed by the alleged Employer;

ü    The Claimant is not disabled by the alleged work injury, meaning that the injured Claimant is not losing any time from work, nor having any injury-related wage loss, such that it is a medical only claim; and,

ü    The claim remains under investigation, as does life throughout the universe.

·                     Acceptance of the claim, as being work-related and compensable, with the Employer/Insurer agreeing to pay workers’ compensation benefits, in whatever form required by the claim, to include temporary total disability benefits, temporary partial disability benefits, specific loss benefits, medical compensation benefits, or fatal claim benefits, thereby effectively entitling the injured Claimant to continue receiving workers’ compensation benefits absent one of the following occurring:

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

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

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

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

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

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

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

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

·                     The final option being to pay temporary compensation benefits, whether for indemnity or medical compensation benefits, for 90 days from the date of injury, or the first date of payment of temporary compensation benefits, the caveat to which is that temporary compensation benefits can only be “stopped” with the time-sensitive issuance of two State forms, one being a Notice Stopping Temporary Compensation, notifying the injured Claimant of the stoppage of the temporary compensation benefits, AND, not or, a Notice of Compensation Denial, notifying the injured Claimant that the workers’ compensation claim is being denied, requiring the Claimant to be notified of the grounds for denial.

So, which door are you going to pick?

Keep in mind that each door has risks and rewards.

Sometimes, it might depend upon what the meaning of the word “is” is!

Obviously, three other factors also bear witness to the resolve to lay up, or to go for the green, being claim intelligence, claim intuition, accompanied by the best claim investigation possible, recognizing that the claim clock is always going tick-tock.

Back to the risk versus rewards issue, an analysis often challenged by a cookie cutter claims thought process, that all claims fit in one claims hole, when claims, like you and I, are often strangely unique, as much as we might like to say that every reported claim is evidence of claim fraud, a toxic rejection of humanism, as well as being evidence of conspiratorial arrogance.

Back to TNCP’s and temporary compensation benefits, which have been a fixture in Pennsylvania’s Workers’ Compensation landscape since 1993, with Act 44 empowering temporary compensation benefit payments for 6 weeks, and Act 57, enacted in 1996, expanding the territorial range of temporary compensation benefits to 90 days, equaling close to 12 weeks of compensation benefits.

Depending upon where you were seated in the Workers’ Compensation Courtroom, be it Bench, Claimant’s counsel, or defense counsel, very different perspectives exist with respect to the utilization of TNCPs and temporary compensation benefits.

The perception fueled by both fractional frown and salacious smirks, is that the Workers’ Compensation Bench, with consideration to internal Bureau directives, clothed in clandestine confidentiality for all too apparent public policy considerations, is one of subtle and deliberately disdainful reluctance to embrace what is thought to be a “kick the can” reaction to shouldering responsibility for a decisive claim decision, be it the denial or acceptance.

And, yes, the Bench has grown accustomed to their use although the Bench does not respect their blanket use for all lost time workers’ compensation claims. 

Such a blanket utilization is regarded by the Bench, gently prodded by the Bureau, as being an abuse of claims practice, when the TNCP, in an otherwise compensable claim, is yanked, to force the Claimant to file a Claim Petition, to litigate compensability issues, while living on Welfare.

So, if the TNCP should not be used with every single claim, and that is the message, when should it be used, and when should it not be used?

Absolutely, use it, with our blessing, with minor injury claims, requiring limited medical treatment, and no lost time, although caution militates against allowing the TNCP, in these situations, to “convert” to a Notice of Compensation Payable, resulting in the Employer/Insurer shouldering liability for whatever the compensation claim might turn into, be it lost time, or be it extended medical treatment.

And no less true, it is a very useful stopgap in workers’ compensation claims that require a claims investigation longer than 21 days, and that might involve other very critical factors, such as an extensive prior claims history, an extensive prior medical history, necessitating a longer tail for investigation of the claim, with stoppage of temporary compensation benefits, typically resulting in the filing of a Claim Petition, in defense of which the Employer/Insurer becomes armed with subpoena power, the great equalizer of both memory and history.

While the TNCP is a useful mechanism for managing early intervention of more marginal workers’ compensation claims, it should not be considered to be the “be all and end all” form, used indiscriminately with every workers’ compensation claim that ends up in your inbox. 

Discretionary utilization is regarded as evidence of claims intelligence and benevolent intuition.

Situations in which the claim decision to use the TNCP as the claim management form would be regarded as questionable, would include:

·                     A death claim;

·                     A claim involving significant trauma, where compensability is not questioned;

·                     An injury requiring immediate surgical intervention, where compensability is not questioned;

·                     An injury that does not result in lost time, but does result in marginal wage loss, as the TNCP form itself does not provide a mechanism for calculating and recording the payment of temporary partial disability benefits, with the possibility of there being claim form confusion when wages are restored to pre-injury capacity exists; and,

·                     Claims that might involve alternating/fluctuating wage loss, as, again, the form was not designed to compensate for those situations.

What about specific loss claims?

Well, the difficulty with specific loss claims is that, where compensability is not questioned, typically a specific loss claim will involve specific loss benefits that will exceed the benefit allowance under the TNCP, negating the effectiveness of the TNCP with specific loss claims.

Do we like the form?

Absolutely, it is just that we would not wear it to work every day.

And, no, every claim should not be managed through the issuance of a TNCP, although claims should be judiciously evaluated for clear and concise decision-making concerning form utilization. 

This is true with every form evaluated at claim initiation, including the TNCP, the NCP, and the NCD.

What other dangers exist with respect to utilizing the TNCP?

Well, one danger is the failure to stop the TNCP, and accompanying benefits, allowing the TNCP to convert to an NCP, when questions regarding compensability still exist, as well as questions with regard to ongoing disability. 

If the TNCP is to be utilized, it requires that a second decision be made, for claims management purposes, prior to the TNCP converting, with the TNCP either being stopped, or the claim accepted, with issuance of an NCP.

Yes, allowing the TNCP to “convert” to an NCP results in claim acceptance, with a “conversion” being indeterminate as to whether the conversion was accidental or deliberate.

Why should you care?

Perhaps it is just the compulsive impulse to be deliberate and decisive in the management of the claim.

True, this analysis might be counter-intuitive, and, perhaps, unpopular in certain claim cubicles, intending no delusional disrespect, as its begrudging bias is based upon the impracticability of observation and evidence.

Forgive our naïve and formulaic bewilderment.

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

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

By Kevin L. Connors, Esquire

A recent Commonwealth Court ruling in Owens v. Lehigh Valley Hospital, 472 C.D.2014, held that there is a cause of action in Pennsylvania for wrongful discharge of an Employee who has filed a claim for workers’ compensation benefits, but has not filed a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation.

Owens worked for Lehigh Valley Hospital.  She was terminated from the hospital, due to too many claims for work-related injuries.

She filed a Civil Lawsuit against the hospital, alleging that she had been illegally discharged for prior workers’ compensation claims.

Filing suit in the Lehigh Court of Common Pleas, the hospital responded by filing Preliminary Objections, arguing that since the Claimant had not filed a Claim Petition for workers’ compensation benefits, she was precluded from alleging a wrongful discharge for prior workers’ compensation claims.

Reviewing Pennsylvania Wrongful Discharge Law, the Commonwealth Court, in an Opinion authored by Judge Colins, initially addressed the fact that Pennsylvania does not recognize a claim for wrongful discharge, where there is no specific employment contract, as employment in Pennsylvania is considered to be “at will”, and an Employee may, therefore, be discharged with or without cause. Weaver v. Harpster, 975 A.2d 555 (Pa. 2009).

However, a public policy exception to that doctrine was recognized by the Pennsylvania Supreme Court in its 1998 ruling inShick v. Shirey, 716 A.2d 1231 (Pa. 1998).

In Shick, the Court held that an at-will Employee who alleges a claim of retaliatory discharge for filing a workers’ compensation claim can state a Common Law cause of action, for which relief can be granted.

Ruling on the hospital’s Preliminary Objections, the Lehigh County Court of Common Pleas entered an Order sustaining the Preliminary Objections, in the nature of a demurrer, resulting in Owens’ Complaint being dismissed. 

Ruling on the Preliminary Objections, the Trial Court held that Owens had a three-prong threshold to establish a prima facie case for wrongful discharge, to include:

·                     That the Employee engaged in a protected Employee activity;

·                     That the Employer took an adverse employment action contemporaneous with the Employee’s protected activity; and,

·                     A causal link exists between the Employee’s protected activity and the Employer’s adverse action.

The Trial Court ruling relied upon a Federal District Court ruling in Landmesser v. United Air Lines, Inc., 102 F. Supp. 2d 273 (E.D. Pa. 2000).  In Landmesser, the Federal District Court concluded that once the Pennsylvania Supreme Court had an opportunity to define the elements necessary to establish a prima facie case for wrongful discharge, it would adopt the test applied in Title VII retaliation claims, under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Although the Commonwealth Court noted that Owens should have appealed the Trial Court’s Order to the Superior Court, and not to the Commonwealth Court, the hospital never objected to jurisdiction before the Commonwealth Court, allowing the Court, noting judicial economy, to decline transfer of the Appeal to the Superior Court.

In ruling in favor of Owens, the Commonwealth Court noted that the Pennsylvania Supreme Court first recognized, inGeary v. U.S. Steel Corp., 319 A.2d 174 (Pa. 1974) that an at-will Employee could have cause of action against an Employer for wrongful discharge, when the discharge threatened a clear mandate of public policy.  

Shick was then the first time that the Pennsylvania Supreme Court recognized a claim for wrongful discharge in violation of the clear mandate of public policy, in the context of a retaliatory discharge for filing a workers’ compensation claim.

In allowing the wrongful discharge action to proceed in Shick, the Pennsylvania Supreme Court addressed the issue of “exclusivity” under the Pennsylvania Workers’ Compensation Act, concluding that the historical balance embodied in exclusivity would be superseded by an Employer’s ability to penalize an Employee for filing a workers’ compensation claim, such that the statutory right for compensation benefits would be completely undermined.

Opposing Owens’ Appeal, the hospital argued that Owens should have filed a Claim Petition, with the Commonwealth Court ruling that whether Owens filed a Claim Petition or not had no bearing on whether she could bring a Common Law claim, as had been made clear by the Pennsylvania Supreme Court in Shick, as well as in a related ruling,Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511 (Pa. 2005), where a Supervisor was fired for failing to dissuade an Employee from seeking workers’ compensation benefits, with the Supreme Court allowing the fired Supervisor to file a wrongful discharge claim against the Employer.

Alternatively, the Employer argued that, under the Title VII analysis, Owens had failed to plead a causal connection between any alleged protected activity and her dismissal, with the Commonwealth Court holding that the factual allegations raised by the Claimant suggested a sufficient causal connection to allow the cause of action to survive preliminary dismissal.

The Owens Court also ruled that the Trial Court should not have analyzed the sufficiency of Owens’ claim under a Title VII test, as that same test had specifically been rejected by theRothrock Court.

Consequently, Owens stands for the proposition that there is a cause of action under Pennsylvania Law for wrongful discharge of an Employee who files a claim for workers’ compensation benefits, even if they have not filed a Claim Petition with the Bureau.

ConnorsO’Dell LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

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