A BLOODIER KISS

By Kevin L. Connors, Esquire

To all familiar with our firm’s prior article impolitely titled “A Bloody Kiss:  The “Paye”-Off = The Missing Link”, addressing the Pennsylvania Supreme Court’s Decision inPayes v. WCAB, 79 A.3d 543 (Pa.2013), under which the Pennsylvania Supreme Court had held that mental injuries are highly fact-sensitive, requiring a reviewing Court to give deference to the fact-finding functions of the Workers’ Compensation Judge, with reviewing Appellate Courts being limited to determining whether the WCJ’s findings of fact are supported by substantial competent evidence, the Supreme Court has now directed the Commonwealth Court to revisit its Decision inKochanowicz v. WCAB (Pennsylvania Liquor Control Board),  a Decision circulated by the Commonwealth Court on September 20, 2011, and the subject of a yet-earlier article that we had posted for all receiving this post.

In  Kochanowicz, a Workers’ Compensation Judge had awarded workers’ compensation benefits to the Manager of a Pennsylvania Liquor Control Board Wine & Spirits Store, after the Manager was held-up at gunpoint, with the critical issue in the case being whether or not the Store Manager was able to prove that the robbery was an abnormal working condition that would have resulted in the Store Manager being entitled to receive workers’ compensation benefits for a mental/mental injury, in the absence of any physical injury having been sustained.

In reliance upon the Pennsylvania Supreme Court’s landmark Decision in Martin v. Kecthum, 568 A.2d 159 (Pa.1990), theKochanowicz Commonwealth Court held that a “psychic injury” case, involving an injury without any physical trauma or symptomatology, requires the Claimant seeking workers’ compensation benefits to prove that the injured Employee has been “exposed to abnormal working conditions and that his psychological injuries are not a subjective reaction to normal working conditions.”

Moreover, under Martin, “psychic injury” cases, involving the mental/mental claim, required the Claimant seeking workers’ compensation benefits to prove that the alleged working conditions causing injury had to be analyzed and considered in the context of the injured Employee’s specific employment, requiring a highly fact-sensitive analysis of not only the job being performed, but also the working conditions alleged to be abnormal, prior to the occurrence of the alleged mental/mental injury.

In Kochanowicz, the Commonwealth Court had also focused on an analysis as to whether the “working conditions” allegedly causing injury, alleged by the Claimant inKochanowicz to be abnormal, with the specific condition being the fact that the Claimant was held-up at gunpoint during a store robbery, were foreseeable or anticipated before the event in question by the Employer, as well as whether the Employee, the Store Manager, had been trained by the Employer that those types of situations, robberies at gunpoint, were potentially normal, in the course of performing work within their work environment, such that the potential for being exposed to violent crimes was a normal working condition.

With the Pennsylvania Supreme Court determining, in Payes, that psychic injury cases are highly fact-sensitive, it is has now directed the Commonwealth Court inKochanowicz, to reconsider the ruling that it had issued in 2011, effectively requiring the Commonwealth Court to give deference to the fact-finding functions of the Workers’ Compensation Judge, and to limit its review of the Workers’ Compensation Judge’s findings of fact to whether those findings are supported by substantial competent evidence.

In short, the Pennsylvania Supreme Court’s per curiam Order entered inKochanowicz on February 12, 2014, effectively reverses the earlier ruling by the Commonwealth Court on September 20, 2011, potentially eviscerating a long line of workers’ compensation decisions that have held, in similar situations, that the foreseeability of a robbery, as contemplated by the Pennsylvania Liquor Control Board inKochanowicz, negates the robbery from being considered to be an “abnormal working condition”, based on the frequency with which robberies occur in liquor stores, as well as by the fact that the Liquor Control Board contemplated that the robbery was not an unforeseen condition, and that it had, therefore, given specific training to its Employees, to include the Store Manager in question, as to what to do in those type of situations, with that foreseeability factor being negated by the Supreme Court’sper curiam Order in Kochanowicz.

Obviously missing from the Supreme Court’s February 12, 2014 per curiam Order is any reference to the issue of physicality, which seems to have been an underpinning in the Supreme Court’s ruling inPayes, as a careful reading of that Decision indicates that the Court was also relying upon the fact that the Claimant, a Pennsylvania State Trooper, had given mount-to-mouth resuscitation to a seemingly insane woman who had attempted suicide by police car, throwing herself in front of the State Trooper’s patrol car, with the State Trooper then attempting to resuscitate the bezerbo woman, and unsuccessfully so, although the State Trooper was exposed to the bezerbo woman’s blood, in the course of administering mouth-to-mouth resuscitation with there being, therefore, physical contact between the State Trooper and the bezerbo woman seeking relief from this tertiary existence, with no such physicality existing inKochanowicz, as there is no reference to any physical contact between the Store Manager, and the robber, during the incident alleged to have caused the mental/mental injury claim.

Although the Commonwealth Court will still be required, under the Supreme Court’sper curiam Order in Kochanowicz, to review the record to make sure that the Worker’s Compensation Judge’s findings of fact, finding that the Claimant proved the occurrence of a work-related mental/mental injury, sustained while the Claimant was subjected to “abnormal working conditions”, are supported by substantial competent evidence, it is predicted that the Commonwealth Court will now be affirming the rulings of both the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge, finding that the Claimant did sustain his burden of proving the occurrence of an injury as a result of “abnormal working conditions”, since the principle issue that the Commonwealth Court had relied upon in reversing the prior rulings by both the Appeal Board and the Workers’ Compensation Judge, were the factors of foreseeability, as well as the fact that the Store Manager had been trained to not only expect such an occurrence, but also how to deal with such an occurrence, when it occurred.

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.

TOP REASONS WHY INJURED WORKERS SEEK ATTORNEYS

By Kevin L. Connors, Esquire

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

1.      CLAIM DENIAL:

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

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

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

2.      INJURED WORKER REPRESENTED IN PRIOR CLAIM:

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

3.      CONFUSING STATE FORMS:

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

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

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

4.      CESSATION/TERMINATION OF CLAIM BENEFITS:

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

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

5.      PROCESS OVERWHELMES AND CONFUSES:

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

6.      DISSATISFACITON WITH MEDICAL CARE:

·                     Cannot get medical treatment authorized;

·                     Does not like employer-designated health care practioner;

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

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

7.      THIRD-PARTY LIABILITY:

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

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

8.      GOOGLE IT:

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

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

·                     It is ubiquitous;

·                     It is splattered all over public transportation;

·                     It is emboldened in numerous publications and periodicals.

9.      UNPAID MEDICAL BILLS:

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

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

·                     It happens!

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

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

11.  REFERRALS BY MEDICAL CARE:

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

·                     It is a symbiotic medico-legal universe.

12.  FEAR OF BEING FIRED:

·                     Are we surprised?

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

13.  FAMILY PRODDING:

·                     It is the nudge while watching TV;

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

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

Practical Tips:

Is there a moral to our priceless story?

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

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

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

·                     Be courteous;

·                     Be polite;

·                     Be truthful;

·                     Be fair;

·                     Be direct;

·                     Be responsive;

·                     Be informed;

·                     Be civil;

·                     Avoid argument;

·                     Avoid making assumptions about claim facts and claim personas;

·                     Be credible;

·                     Be yourself;

·                     Be real.

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

 ConnorsLaw LLP

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

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

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

PENNSYLVANIA COMMONWEALTH COURT FINDS LAST EMPLOYER

NOT LIABLE FOR ALLEGED CUMMULATIVE TRAUMA WORK INJURY

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

By

Jeffrey D. Snyder, Esquire

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

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

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

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

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

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

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

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

ConnorsLaw LLP

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

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

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

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

By: Jeffrey D. Snyder, Esquire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ConnorsLaw LLP

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

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

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

PENNSYLVANIA WORKERS’ COMPENSATION CLAIMS

INVOLVING FAMILY MEMBERS AND CASUAL LABOR

By

Kevin L. Connors, Esquire

Recently, the National Workers’ Compensation Defense Network, with ConnorsLawLLP being the Pennsylvania representative thereof, was asked to answer several questions regarding possible scenarios posed by an out-of-state insurer, seeking to access potential liabilities that might exist for Workers’ Compensation Claims involving family members and casual labor.

Our analyses of the scenarios are set forth below:

I.          UNPAID FAMILY MEMBER SCENARIO:

The insured has an employee who is an unpaid family member, and the unpaid family member does not receive any payroll from the business.  No insurance premiums were collected by the insurer for the employee.  The employee is injured, and the insurer is asking if there is any Workers’ Compensation coverage for this employee?

The insurer also asked a second question as to whether the potential coverage issue would be different if insurance premiums were collected by the carrier, utilizing a calculation of hours worked times minimum wages for premium purposes.

In response, we answered that if an unpaid family member is injured during the course and scope of their unpaid employment with the family business, there would be Workers’ Compensation coverage for the injury claim, as the injured employee would be entitled to receive Workers’ Compensation benefits and those Workers’ Compensation benefits would be payable under the insurance policy issued by the insurer to the insured employer.

In this scenario, if Workers’ Compensation benefits are paid to the injured unpaid employee, the insurer would have a right to audit the employer for additional uncollected premiums.  If the injured unpaid employee is, however, only entitled to receive medical compensation benefits as there were no wages paid to the employee, the absence of any pecuniary benefits being paid whatsoever, to include there being no ancillary benefits for payments of health insurance premiums, pension benefits, etc., there would, in this scenario, be no wages upon which to base a calculation of indemnity compensation benefits, the same also being dependent upon the injured family employee not being concurrently employed for wages elsewhere.

The second part of the question is asking whether or not the coverage issue would change if insurance payments had been collected by the carrier utilizing a calculation of hours worked times minimum wages for premium purposes.

The second part of the question does not change how the Pennsylvania Bureau of Workers’ Compensation Act is administered by the Bureau’s Workers’ Compensation Judges, as they would only consider the compensability issue, as the WCJ’s would not look at the coverage issues between insurer and insured, as those issues are contractual and do not neatly tie into compensability issue as to whether or not an injury has occurred within the course and scope of employment, resulting in the unpaid, injured family member being entitled to reasonable, necessary, and related medical treatment for their work-related injury.

II.        UNPAID FAMILY MEMBER IS INJURED WHILE BEING PAID UNDER THE

            TABLE:

Is there Workers’ Compensation coverage in the event of an injury claim, in a scenario where an unpaid family member is injured while being paid under the table?

Under the Pennsylvania Workers’ Compensation Act, the answer must again be, “yes”, as an injury has been sustained by an employee during the course and scope of their employment, and the method of payment, herein “cash under the table”, while, perhaps, intended to be “off the books”, would still be interpreted as wages paid for services rendered. 

In this situation, the insurer’s remedy, after becoming responsible for the payment of the Workers’ Compensation benefits, would be a collection or audit action against the insured for failing to report wages that otherwise should have been used to calculate insurance premiums for workers’ compensation coverage.

The second part of this question was whether the coverage analysis would change if insurance premiums had been collected by the insured, utilizing a calculation of hours worked times minimum wages for premium purposes? 

The answer to that question is that the compensability issue would not change, as compensability is still dependent upon an analysis as to whether an employee has sustained a work-related injury in the course and scope of their employment; the issues of whether the insurer has collected premium for the injury is not relevant before a Workers’ Compensation Judge for the purposes of determining compensability issues; however, it is relevant for the insurer’s claim against the insured for breach of contract, and failure to report paid wages necessary to correctly calculate insurance premiums.

III.       CASUAL LABOR FOR SERVICES:

If an insured hires casual labor, such as a neighbor college student to perform lawn mowing services during the several summer months at the insured’s dental office location, and the insured pays the neighbor college student cash payments, if the neighbor college student is injured at the dental practice, is there Workers’ Compensation coverage for this claim through the dental practice’s Workers’ Compensation insurance coverage.

The answer to this question is that the commercial business, whether a dental practice or otherwise, would not appear to be liable for Workers’ Compensation benefits, as the casual laborer’s services would more probably be characterized as work being performed by an independent contractor, and not under the direction and control of the commercial business, such that any work performed is independent of the business, there being master/servant or employer/employee relationship.

As is well-established under Pennsylvania Workers’ Compensation Law, the existence of a master/servant or employer/employee is a necessary precedent to establish that an injury occurs within the course and scope of employment, a condition precedent to liability for Workers’ Compensation benefits attaching.

Ancillary to this question is whether this answer would change if the dentist had maintained records of payments made by the dental practice to the neighbor college student, with the answer being since there is no change in the nature of the relationship, that of an independent contractor relationship, that there is, again, no master/servant or employer/employee relationship, the same again being necessary conditions precedent to establish that an injury has occurred within the course and scope of employment. 

Obviously, it is always better to have a written agreement between the parties, but that is rarely the case in situations like this.

IV.       CASUAL LABOR FOR ONE DAY:

Here, the insured, again a commercial dental office location, hires casual labor, or a buddy, to help out on a one day job, whether it be to mow the lawn, or just do some office repairs, and the insured pays the laborer or buddy cash under the table, and the casual labor or buddy is injured, begging the question as to whether or not there is workers’ compensation coverage for the injury.

Again, this scenario appears to be an independent contractor scenario rather than an employer/employee relationship, particularly given that the job at hand is limited to one day, and the job itself is not directly controlled by the commercial business, such that it is highly unlikely that workers’ compensation benefits would be payable under this scenario.

The caveat to this is that there are some Workers’ Compensation Judges in Pennsylvania who might award benefits on this type of claim for the very simple reason that there was no formal agreement between the parties, such as a written contract clearly delineating that the work would only be for one day and that it was independent of the employer/employee relationship.

The risk for this type of scenario is that the injured worker claims that they would have been asked to work for more than one day, such that it is not work that is considered “casual”, as the commercial business might have believed, leaving the perception as to how long the job would last, or the work would continue, to be based upon the subjective perceptions of the parties, always a dangerous position to be in.

While there are some Pennsylvania Workers’ Compensation Judges who might find this claim to be compensable, any award of Workers’ Compensation benefits on these skeletal facts would scream for the business found to be the employer to file an appeal, based on the grounds that it was not an employer, that the work could not withstand the course and scope of employment factors as there was no master/servant or employer/employee relationship, and that the person injured was truly an independent contractor.

Generally, it is our impression that more than 90% of the Workers’ Compensation Judges in Pennsylvania would find this type of claim to be not compensable, and they would deny the claim if the casual laborer petitioned for Workers’ Compensation benefits.

Another caveat to this scenario is that there might be third-party negligence liability under this type of claim, and the claim would, therefore, have to be analyzed as to which form of coverage, commercial liability versus commercial workers’ compensation, might be better utilized to control the potential exposure associated with this type of claim.

Obviously, we encourage our clients to contact us with questions regarding Pennsylvania Workers’ Compensation issues.

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.

A POSTSCRIPT TO PENNSYLVANIA RETIREMENTS INVOLVING WORKERS’ COMPENSATION

By

Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire

On the Achilles heel of the Pennsylvania Supreme Court’s recent Opinion in theCity of Pittsburgh UPMC v. WCAB, a Decision that discussed the burden of proof in voluntary withdrawals from the workforce cases, the Commonwealth   Court has now rendered an Opinion on that same issue inFitchett v. WCAB, decided on April 8, 2013.

Fitchett involved a 2001 injury.

The Claimant was working as a Teacher’s Instruction Aide, and was injured in a student attack.

Multiple Petitions were litigated, including a Termination Petition, a Review Benefit Offset Petition, and a Penalty Petition.

Obviously, the employer, the PhiladelphiaSchool District, was litigating the Termination and Review Petitions, and the Claimant was retaliating with a Penalty Petition.

Oddly enough, there were no pleadings, nor amendments to pleadings, under which the employer had alleged that it was seeking a suspension of indemnity compensation benefits, based on the Claimant’s voluntary withdrawal from the workforce.

That issue was, however, nevertheless the subject of testimony in the course of the claim being litigated before the WCJ.

The Claimant began receiving Pension benefits in April of 2002, and then began receiving Social Security Retirement benefits in October of 2004.  After the work injury, the Claimant never sought any other work as the Claimant agreed that she was collecting “retirement” with her testifying that “but for” her work injuries, she would have continued working.

Questioned as to whether she had retired, she responded “at this point”, … “yes”, although she clarified her testimony, by indicating that she had left the workforce because of her work injuries.

She testified that she would still be working, if she was able to do so.

The WCJ found that the Claimant had retired, and voluntarily withdrawn herself from the workforce.  On credibility issues, the WCJ commented that the Claimant’s testimony “sounds good”, but “on close inspection falls apart”.

Moreover, the WCJ found that the surgery that the Claimant had undergone was unrelated to the work injury, that the Claimant had not searched for employment of any sort, while the Claimant was contending that she took a Pension benefit, as well as, Social Security Retirement benefits due to financial hardship, but that at the time she applied for the Pension benefits, she was receiving workers’ compensation benefits.

The Workers’ Compensation Appeal Board affirmed the WCJ’s Decision.

Before the Commonwealth Court, the Claimant argued that the WCJ had erred in deciding the issue of voluntary retirement, claiming that the employer never requested a suspension of benefits on the basis of retirement, and that there had never been any amendments to the pending Petition seeking that form of relief.

Brushing aside the Claimant’s arguments, the Commonwealth Court held that the issues before the WCJ and WCAB included issues related to the employer’s entitlement to an offset for Pension and Social Security Retirement benefits, such that the presence of those offset issues should have put the Claimant on general notice that her wage loss benefits could be suspended, based on a voluntary withdrawal from the workforce, under the “totality of the circumstances”, a legal nexus that the Pennsylvania Supreme Court had utilized in the City of Pittsburgh UPMC Decision, a recently issued decision.

No less true, the Commonwealth Court held that the issue of the Claimant’s voluntary retirement had been fully litigated before the WCJ, and that issue had been preserved for the WCAB.

Holding that the employer need not prove the availability of suitable work, when the employer establishes, under a totality of the circumstances, that a Claimant has voluntarily retired from the workforce, theFitchett Court also considered that a voluntary retirement from the workforce can be presumed from the acceptance of a Retirement Pension, a holding seemingly in some conflict with the Pennsylvania Supreme Court’s Decision inCity of Pittsburgh UPMC.

If we are to remove the notice issue from the Fitchett Decision, as the Claimant had argued that she did not have “notice” of the potential suspension of her workers’ compensation benefits based on a voluntary withdrawal from the workforce analysis, the Commonwealth Court appears to be following the Opinion rendered by the Supreme Court in theCity of Pittsburgh UPMC, with two key caveats.

The first, is that the Fitchett Court appears to be of the view, in stark contrast to theCity of Pittsburgh UPMC holding, that the receipt of a Retirement Pension benefit results in a rebuttable presumption of a voluntary withdrawal from the workforce.

Secondarily, the Fitchett Court is indicating that the issue of a voluntary withdrawal from the workforce is a matter of credibility for the WCJ to decide, making it a question of fact, rather than a pure question of law, or even a mixed question of fact and law.

What remains as the clear directive is that when an employer seeks to establish a voluntary withdrawal from the workforce, it remains the employer’s burden of proof to establish that a Claimant has done so under a “totality of the circumstances”, as is the holding of the Supreme Court in the City of Pittsburgh UPMC.

Practical Tips

Get it in writing!

Sustain your burden!

Make it real!

Make the Claimant look incredible!

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.

“YOU TALKIN TO ME?”

By Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire

The Pennsylvania Supreme Court’s recent Decision in Bowman v. Sunoco, Inc., decided on April 25, 2013, validates an agreement that an employee had entered into, when initially hired by her employer, Allied Barton, under which the employee agreed that he/she would not bring a third-party claim or action against Allied Barton’s customers, in the event of a work injury which might otherwise have triggered consideration of third-party liability, predicated in a tort-based negligence action for personal injuries.

Thus, we are talkin to you!

Bowman involved a private security guard employed by Allied Barton Security Services, who had signed a workers’ compensation disclaimer, under which she had waived her right to sue Allied’s clients for damages related to any injuries that would otherwise be covered under the Pennsylvania Workers’ Compensation Act.

The disclaimer stated:

            “I understand that state workers’ compensation statutes cover work-related injuries that may be sustained by me.  If I am injured on the job, I understand that I am required to notify my manager immediately.  The manager will inform me of my state’s workers’ compensation law as it pertains to seeking medical treatment.  This is to assure that reasonable medical treatment for an injury will be paid for by Allied workers’ compensation insurance.

            As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights that I may have to:

-          Make a claim, or

-          Commence a lawsuit, or

-       &nnbsp;  Recover damages for losses

from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the workers’ compensation statues”.

Falling on either snow or ice while providing security at a Sunoco refinery, the employee filed a workers’ compensation benefits claim, and then received workers’ compensation benefits pursuant to the Pennsylvania Workers’ Compensation Act.

She then filed a negligence lawsuit against Sunoco, under which she alleged that Sunoco had been negligent in failing to maintain and inspect its premises, resulting in the employee sustaining her work-related injuries.

In the course of discovery being conducted in the personal injury lawsuit, the employee’s disclaimer, entered into at her hiring by Allied Barton, was produced through discovery, evidencing the employee’s waiver of her right to file a personal injury claim against Allied Barton’s clients or customers, as well as evidencing her receipt of workers’ compensation benefits, with Sunoco filing a Motion for Judgment on the Pleadings, in support of which Sunoco argued that the employee’s negligence claim had to be barred by the employee’s voluntary disclaimer and waiver.

The employee argued that the disclaimer was void, claiming that it was contrary to public policy.

Specifically, the employee argued that the disclaimer violated the public policy considerations embedded in Section 204(a) of the Workers’ Compensation Act.  Her argument was framed around the disclaimer allegedly improperly waiving a cause of action that had not yet accrued.

Section 204(a) of the WCA sets forth:

            “No agreement, composition, or release of damages made before the date of any injury shall be valid or shall bar the claim for damages resulting therefrom; and any such agreement is declared to be against the public policy of this Commonwealth.”

At the trial court level, the disclaimer was not found to have violated the public policies articulated in Section 204(a), with the trial court granting Sunoco’s Motion for Judgment on the Pleadings.

The employee appealed the trial court Judgment to the Superior Court, with the Superior Court also agreeing that the disclaimer was not violative of public policy, reasoning that the employee had waived only her right to sue third-party customers for injury covered by workers’ compensation laws, and that the waiver/disclaimer was not an attempt to deprive her of rights under the Workers’ Compensation Act, nor was it intended to shield Allied from liability or to deprive the employee of compensation for any work-related harm or injuries.

Finding that the third-party release was not contrary to public policy, the Superior Court agreed with the trial court, affirming the Judgment against the employee and in favor of Sunoco.

The Supreme Court granted allocator to determine:

            “Did the Superior Court, in a decision of first impression of state-wide substantial significance, disregard the public policy of the Commonwealth of Pennsylvania and the plain meaning of the Pennsylvania Workers’ Compensation Act when it decided that a third-party release in the form of a ‘Workers’ Comp Disclaimer’, signed in consideration for employment or receipt of compensation benefits, which further required the waiver and eternal release of any and all rights to make a claim, commence a lawsuit, or recover damages or losses not void against public policy when the language of the disclaimer openly conflicts with the language of Section 204(a) of the Pennsylvania Workers’ Compensation Act, which expressly renders such agreements as void against public policy?”

Before the Supreme Court, the employee argued that the disclaimer that she had signed, the same being a condition of her employment and initial hire, violated the first sentence of Section 204(a) of the Pennsylvania Workers’ Compensation Act, as that sentence reads:

            “No agreement, composition, release of damages made before the date of any injury shall be valid or shall bar a claim for damages resulting therefrom; and any such agreements declared to be against public policy of this Commonwealth.”

Arguing that the sentence was plain and unambiguous, the employee asked the Supreme Court to invalidate the disclaimer that she had clearly consented to when hired.  A second basis for invalidation was asserted by the employee, as she contended that the disclaimer clearly contravene the subrogation clause of Section 319 of the Pennsylvania Workers’ Compensation Act, claiming that it was absurd for an employer to forego an opportunity to recoup expenses spent on an injured worker, effectively arguing that the negation of subrogation resulted in economic harm to her employer, Allied.

Sunoco responded by arguing that Section 204(a) only applied to an employer’s attempts to limit its own liability for workers’ compensation benefits and claims, and that it had no application whatsoever to releases that might involve third parties, ones not governed by the well-muscled reach of the Pennsylvania Workers’ Compensation Act.

Further arguing that the employee had never argued that the disclaimer was a contract of adhesion, or that it resulted from mistake, duress, fraud, or that it was either ambiguous or unsupported by consideration, Sunoco sought validation of the disclaimer, as waiver of any claim by the employee against it for a fall of personal injuries.

Dissecting Section 204(a) of the Pennsylvania Workers’ Compensation Act, the Supreme Court, in a majority opinion authored by Justice Eakin, held that only the first sentence of Section 204(a) deals with public policy issues, as the remaining sentences primarily discuss various sources and funds that an employee might receive, that might impact on the employee’s receipt and entitlement to workers’ compensation benefits.

Initially conceding that the first sentence in Section 204(a) was not free from ambiguity, the Supreme Court then examined the inter-relationship between Article II of the Act, in which Section 204 is one of five Sections as that Article related to the Pennsylvania Workers’ Compensation Act as a whole, as Article II is entitled “Damages by Action and Law”.  As had been observed by the Supreme Court in its 1999 DecisionFonner v. Shandon, Inc. fundamental premise of the Pennsylvania Workers’ Compensation Act is that the relations between the employee and the employer under the Act are essentially contractual in nature, as the employee embraced the right of exclusive remedy, and the employer embraced the right of statutory immunity, establishing a duality of purpose inuring to the benefit of both parties.

Interpreting legislative history, the Supreme Court determined that the legislature had originally intended that the provisions of Section 204(a) would only apply to agreements between an employer and employee that might bar an employee’s right to make a claim against their employer, and not, by extension, to bar claims against third parties.

Stripping away legislative ambiguities and contractual aversion, the Supreme Court held that the disclaimer and waiver entered into by the employee did not prevent the employee from receiving full and just compensation for her work-related injuries, and that its effective negation of Allied’s potential right of subrogation, was a business decision that only affected Allied, and that it was not a deprivation of the employee’s rights.

Another argument advanced by the employee was that the disclaimer/waiver contemplated actions that could only occur in the future, with the Court holding that the disclaimer was a condition of employment, under which the parties, both the employee and employer, and that it certainly contemplated that it would affect future causes of action, as the disclaimer dictated how claims for work injuries would be handled in the future.

Holding that the employee was never forced to sign the disclaimer, and that the disclaimer did not prevent her from receiving workers’ compensation benefits for her work-related injuries, the Supreme Court held that the disclaimer/waiver was merely a guarantee to Allied’s customers that they would not be held legally responsible or liable for injuries sustained by Allied’s employees.

Justice Eakin’s Opinion was joined in by Justices Castille, Saylor, Todd, and McCaffery.

A concurring Opinion was issued by Justice Saylor, with Justice McCaffery joining in that concurring Opinion.

The concurring Opinion posed a “modest reservation”, in the course of invoking the concept of a “double recovery”, and the public policy reasons behind subrogation, with Justice Saylor confessing to some circumspection as to whether an injured employee is ever able to fully recover in tort, where the recovery is diminished by compromise, settlement, litigation costs, and subrogation.

Justice Baer dissented, predicating the dissent on the first sentence of Section 204(a) of the Act being “clear and unambiguous”, resulting in Justice Baer concluding that the disclaimer/waiver at issue clearly was prohibited by the plain language of that sentence.

Practical Tips:

Does the Bowman Decision place employers who do not secure the Bowman-type disclaimer/waivers at a competitive disadvantage to employers who do not secure such a disclaimer or waiver?

Will these types of disclaimers raise questions as to the adequacy of consideration, a question that might arise, if someone already employed is asked to execute such a disclaimer/waiver, in the wake ofBowman?

Is it possible to argue that continued retention of employment is, in fact, adequate consideration for aBowman-type disclaimer/waiver?

What if an employee refuses to sign the disclaimer/waiver?

No less true, what if an employee is terminated for refusing to sign the disclaimer/waiver?

And where do we begin to analyze the definition of either a “customer or client” under the disclaimer/waiver?

Given what is at stake by application of the Bowman rule, additional litigation is clearly forecast in the future with this novel issue.

ConnorsLaw LLP

Trust us, we just get it!

It is trust well spent!

Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.

With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors atkconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

Jaime Whitesell v. WCAB (Staples, Inc.) No. 205 C.D. 2013 (Pa. Cmwlth. July 10, 2013)

By:  Lisa A. Miller, Esquire

The Court affirmed the Decision of the Appeal Board which denied the Claimant’s Fatal Claim Petition because the death did not occur within 300 weeks of the date of the original work-injury as required by Section 301 (c)(1) of the Workers’ Compensation Act.

Pursuant to an NCP, the Employer recognized that the Claimant/Decedent sustained an injury in the course of her employment described as a “lumbar strain/sprain” on October 15, 2003.  The Claimant/Decedent underwent two spine surgeries.  On June 28, 2006, the WCJ granted the Claimant’s Review Petitions in accordance with the parties’ stipulation that the description of the work injury be amended to “lumbar strain/sprain and lumbar disc disruption L4-5, resulting in total disc arthroplasty at L4-5 level.”

On June 8, 2011, the Claimant filed a Fatal Claim Petition alleging that on June 13, 2010, the Claimant/Decedent died as a result of mixed drug toxicity from medications prescribed by her treating physician.  Employer filed a timely Answer denying the allegations and asserting that the Petition must be dismissed because the Claimant/Decedent’s death did not occur within 300 weeks of her work injury (October 15, 2003) pursuant to Section 301 (c) of the Act.

The WCJ denied the Fatal Claim Petition holding that the Claimant/Decedent died more than 300 weeks after the date of her injury.  As such, the WCJ held that the Fatal Claim Petition was barred under Section 301 (c) of the Act.

Claimant appealed and argued to the Board that Claimant/Decedent’s death arose from an additional “injury” that was accepted pursuant to the WCJ’s 2006 decision, the Claimant/Decedent’s death was within the 300 week time limitation.

The Board held that the 300-week period of Section 301 (c) applies to the Claimant/Decedent because she sustained a work-injury as opposed to an occupational disease.   The Board citedShoemaker v. WCAB (Jenmar Corporation), 604 A.2d 1145 (Pa. Cmwlth. 1992), noting that “even in the case of an apparently consequential injury, arising subsequent to the date of the recognized injury, the 300-week period between a decedent’s work injury and death will be calculated beginning with the date of the original work injury.”

The Board also rejected Claimant’s argument that the reason for distinguishing between a work-injury and occupational disease does not apply to this matter because the Claimant/Decedent had an “additional insidious injury.”  The Board explained that the Commonwealth court has concluded that when the condition arose from a work-injury as opposed to an occupational disease that the death must occur within 300 weeks of the original work-injury, without exception under Section 301 (c).

Citing Shoemaker, the Commonwealth Court affirmed the Board, noting that the Commonwealth Court has consistently held, without exception, that Section 301 (c) (1) denies benefits where more than 300 weeks has elapsed between the commencement of the compensable injury and the injury related death.

SEPTA v. WCAB (Cunningham) No. 2045 C.D. 2011 (Pa. Cmwlth. July 12, 2013)

By:  Lisa A. Miller, Esquire

            The Court reversed the Order of the Appeal Board, which reversed the order of the WCJ suspending the Claimant’s benefits.

            On June 11, 1996, the Claimant sustained an injury to his right knee in the course and scope of his employment as a first class body mechanic.  The Claimant was working under permanent, light duty restrictions earning an average weekly wage of $825.91.  SEPTA accepted the Claimant’s injury and disability through a TNCP, but issued a Notice of Compensation Denial (NCD) on July 17, 1996.  Claimant filed a Claim Petition in August 1996, and a Penalty Petition in June 1997 alleging an unreasonable contest.

            The Claimant returned to his pre-injury light duty work shortly after the June 11, 1996 accident.  On July 7, 1996, the Claimant was involved in a non-work related car accident.  In that non-work related motor vehicle accident he sustained injuries to his left knee, low back and left hand.  The Claimant went out of work for the motor vehicle accident on July 12, 1996.  Claimant underwent surgery for the right knee injury that he sustained at work in January 1997, and returned to his pre-injury light duty position in April 1997.

            On December 27, 1998, the Claimant was struck by a vehicle and suffered injuries to his left knee, low back, left hand and left shoulder in a non-work related incident.  The Claimant stopped working again, and began receiving sickness and accident benefits.  Claimant unsuccessfully attempted to return to work during the week of December 26, 1998, but has not returned to work since then.

            On June 6, 2000, following hearings on the Claim Petition the WCJ issued an order granting the Claimant’s Penalty and Claim Petitions.  The Judge awarded total disability benefits for the period in which Claimant was disabled from the June 11, 1996 work injury, and not otherwise compensated up until the date of his Decision and indefinitely thereafter.

            On August 28, 2006, the Employer filed a modification and/or suspension petition alleging that as of April 12, 2006, the Claimant failed to respond in good faith to jobs referred to him that were within his physical and vocational capacities.  During the course of the litigation, on January 30, 2007, the Employer filed a second modification/suspension petition alleging that the Claimant was able to return to work as of November 9, 2005, but for his December 1998 non-work related injuries.

            Employer presented Dr. Bernstein, who opined that the Claimant’s work-related right knee injury had sufficiently recovered such that the Claimant was capable of performing sedentary work as of November 9, 2005, and that the only cause of the Claimant’s continuing disability was the non-work related December 1998 accident.

            Employer also presented the testimony of a vocational expert, Michael Smychynsky who conducted a vocational evaluation of the Claimant.  Mr. Smychynsky testified that he located four open and available positions that would have provided Claimant with wages up to $400.00 per week.  According to Mr. Smychynsky’s testimony, the Claimant went to each of the interviews, but only put his name and telephone number on the applications, and at the conclusion of two of the interviews, began “swearing” and “threatening” people.

            Claimant presented the testimony of Dr. Greene, his treating physician.  Dr. Greene testified that Claimant was not capable of returning to work due to his work-related right knee condition.  However, Dr. Greene acknowledged that he had not reviewed Claimant’s treatment records from four previous surgical procedures on the Claimant’s right knee or any records in connection with the Claimant’s December 1990 accident.

            The Claimant also presented the testimony of Donald Jennings, a licensed psychologist and certified vocational expert, who testified that Claimant’s limited reading, writing and spelling abilities accounted for his minimal responses on the employment application.  However, on cross-examination, Mr. Jennings acknowledged that the only reason the Claimant stopped working for employer was the December 1998, non-work related accident.

            The WCJ found Dr. Bernstein’s testimony more credible than the testimony of Dr. Greene, and concluded that employer met its burden of proving that Claimant’s work related injury had resolved to the point where he could perform sedentary work, but for his non-work related injuries, which rendered him incapable of all possible work activities.  The WCJ determined that employer notified Claimant of his release to sedentary work and referred four open and available positions to the Claimant which were within his vocational and physical capabilities which would have paid $400.00 per week, but the Claimant failed to pursue the positions in good faith.  As such, the WCJ granted the modification petition and reduced Claimant’s benefits for the period of April 12, 2006 to January 26, 2007.  In addition, the WCJ found that the Claimant’s non-work related injuries rendered him incapable of all possible work activity, and suspended the Claimant’s benefits as of January 26, 2007.

            The Claimant appealed, and the Board affirmed the WCJs decision to modify Claimant’s benefits.  The Board agreed with the Claimant that the Judge erred in suspending Claimant’s benefits because employer failed to establish the availability of a job equal to or greater than Claimant’s pre-injury average weekly wage of $825.91.

            On appeal to the Commonwealth Court, SEPTA argued that it was not required to demonstrate job availability given that Claimant’s non-work related injuries are totally disabling.  The Court agreed and noted that a suspension of benefits is governed by Section 413 of the Act.  The Commonwealth Court affirmed the decision of the Supreme Court inSchneider, Inc. v. WCAB (Bey), 560 Pa. 608, 747 A.2d 845 (2000), in which the Supreme Court held that an employer was not required to show job availability where the Claimant was totally disabled by non-work related conditions.  InSchneider, the Claimant suffered a work-related injury to his head and neck.  While he was receiving temporary total disability benefits, the Claimant was involved in a non-work related incident and suffered severe brain damage and paralysis, leaving him permanently unable to work in any capacity.  The Court considered the Claimant’s serious non-work related injuries prevented him from returning to work and the court concluded that it would be unreasonable to require the employer to present evidence of job availability.  The Court explained that requiring the employer to “show that a sedentary or light-duty position is available to the Claimant would be an exercise in futility by virtue of the Claimant’s physical condition, and we can see no valid point in requiring such a show.”

            The Employer argued that Schneider applies to this matter.  The Claimant’s injuries are not as severe as the injuries inSchneider, but the evidence supported the WCJ’s finding that the Claimant’s non-work related injuries rendered him incapable of all possible work activities.  Like the Claimant inSchneider, the Claimant was involved in a non-work related accident that left him totally disabled.

           Significantly, in this case, Claimant had successfully returned to his pre-injury position 20 months earlier.  Thus, the records amply support the WCJ’s conclusion that the Claimant’s work injury had resolved where he could perform sedentary work, but for his non-work related injuries.  Under the circumstances, where Claimant’s non-work injuries rendered him incapable of all possible work activity, we believe that it would be unreasonable to require employer to present evidence of available jobs.

THE FUTURE OF LEGISLATIVE REFORMS OF WORKERS’ COMPENSATION IN PENNSYLVANIA

Two years away from the one-hundredth anniversary of the enactment of the Pennsylvania Workers’ Compensation Act, Governor Thomas Corbett has proposed several reforms to the Pennsylvania Workers’ Compensation Act, including provisions that would reform the following:

• Injured Employee’s requirement to procure prescription medications from employer-designated dispensing sources;
• Medical care providers’ requirement to refund overpayments made in excess of medical charges found payable under the Act as reasonable and necessary;
• Requirement that medical care providers not request or accept payment for surgical implants, supplies, or durable medical equipment in excess of 110% of the actual cost to the provider of the same supplies or equipment;
• Requirement that outpatient providers, excluding licensed pharmacies, not require, request, or accept payment for prescription medications in excess of an initial five-day supply;
• Redefining reasonableness and necessity of medical care under the Act, basing the same upon evidence-based medical treatment guidelines, to be developed by the Department of Labor and Industry;
• Initiative for Pennsylvania’s Governor to appoint a Panel of Medical Providers, from each of the medical specialties, Occupational Medicine, Orthopedic Medicine, Neurosurgical Medicine, Pain Management, Physical Therapy, Chiropractic Medicine, Osteopathic equivalent, to develop evidence-based treatment guidelines for medical care for the most prevalent work-related injury, with the Panel to be appointed for six year terms without remuneration;
• Initiative that the Department of Labor and Industry adopt treatment guidelines, based upon nationally recognized evidence-based treatment guidelines, until such time as Pennsylvania’s Medical Treatment Panel has developed treatment guidelines;
• Allowance for Employees and Providers to seek Utilization Review, for treatment or proposed treatment either unaddressed under treatment guidelines, or deviating from the same;
• Establishment of a Medical Review Panel, appointed by the Secretary of the Department of Labor and Industry, to assist the Panel in developing medical treatment guidelines, consistent with Utilization Quality Assurance Reviews, with a party having the right to appeal a Medical Review Board’s determination to the Workers’ Compensation Appeal Board, which will otherwise be required to affirm the Medical Review Board’s determination, unless the Panel proves that the determination is an abuse of discretion, or materially misstates the content of either medical records or guidelines reviewed;
• Requirement that Employers and/or Insurers make payments to Medical Care Providers, the same being required to submit bills and records in accordance with the Act, within one-hundred eighty (180) days of the treatment being provided;
• Requirement that injured Employees seeking compensation benefits from the Uninsured Employers Guaranty Fund place the Fund on notice of the claim within forty-five (45) days after the injured Employee knows that the Employee’s employer was uninsured for workers’ compensation benefits, with compensation being disallowed if notice is not given within forty-five (45) days;
• The barring of any claim against the Fund if not filed within one-hundred twenty (120) days after notice has been given to the Fund of a claim being made based upon the injured Employee’s employer being uninsured;
• Allowance for the Fund to establish Panel Provider lists, by county, consistent with the other provisions of the Act;
• Allowance that the Fund’s payment of medical treatment or service need not exceed payments under the Medical Assistance Program under Article IV of the Public Welfare Code, with disallowance of an injury with disallowance for payments for any treatments not reimbursable by Medical Assistance;
• Allowance for the Fund to not be liable for any wage loss benefits unless the injured Employee proves the payment of wages through checks, check stubs or payroll records, tax returns, or unemployment compensation records;
• Allowance for the testimony of an uninsured Employer to establish the existence of an employment relationship, although that testimony is specifically disallowed as being competent evidence of the payment or amount of wages for the purposes of a claim under the Uninsured Employer’s Guaranty Fund provisions;
• Allowance for the Fund to seek restitution of all payments made as a result of an injury to an Employee of an uninsured Employer, with restitution not being limited to the amount of a compensation award, and also including any administrative and litigation costs incurred by the Fund;
• Limitation for the Fund’s liability being limited to its actual assets, with its liabilities not being borne by the Commonwealth;
• Requirement that uninsured Employers certify to the Fund the possession of records of insurance, that the Employer no longer operates a business, that the Employer no longer employs individuals entitled to workers’ compensation benefits under the Act, or that the Employer is otherwise exempt from the requirements of obtaining insurance;
• Requirement that the uninsured Employer certify the above information to the Fund within fifteen (15) days of the Fund’s demand;
• The assessment of administrative penalties of $200.00 per day against any uninsured Employer that fails to respond to a Fund demand for information as to insurance and business operations;
• Enhancement of the Fund’s enforcement proceedings against uninsured Employers, permitting the Fund to enter an uninsured Employer’s premises or work site, to demand that the uninsured Employer prove insurance status or business operations;
• Empowering the Fund to secure a Cease and Desist Order from the Department of Labor and Industry, to force an uninsured Employer to cease all business operations for failure to insure its workers’ compensation liabilities as required by the Act;
• Such a Cease and Desist Order is to remain in effect until released by either the Department or a Court of competent jurisdiction;
• An Employer’s failure to comply with a Cease and Desist Order empowers the Commonwealth or Department to file suit against the uninsured Employer to enforce a Cease and Desist Order.
• Jurisdiction for such a suit is conferred upon the Commonwealth Court, the Dauphin County Court of Common Pleas, or the Court of the County in which the violation has occurred;
• Requirement that an injured Employee alleging an injury against an Employer domiciled in another State, when the Employer has not secured the payment of compensation as required by the Pennsylvania Workers’ Compensation Act, submit a Decision, Notice, or Ruling from such other State, that the injured Employee has sought and is not entitled to benefits in such other State, with no compensation being payable until the injured Employee submits such a Decision, Notice or Ruling.

As is clear, the proposed reforms primarily deal with six areas:

• Prescription Drugs;
• Utilization Reviews;
• Fee Schedule;
• Managed Care;
• Administrative Burdens; and,
• Uninsured Claims.

REFORMS PROPOSED BY THE PENNSYLVANIA CHAMBER OF

BUSINESS AND INDUSTRY

In addition, reforms have also been proposed by the Workers’ Compensation Executive Committee of the Pennsylvania Chamber of Business and Industry.  The Chamber has indicated that it plans to make reform of workers’ compensation procedures and policies a priority in 2013.  The Chamber is supported by an Employer base, with 75% of Pennsylvania Employers supporting workers’ compensation reform.

The proposed reforms are supported by the Chambers’ 2012 Economic Survey, with Pennsylvania Employers indicating that the Pennsylvania workers’ compensation system should be improved through legislative reforms, specifically directed at the medical costs associated with workers’ compensation claims, as Employers were reporting a workers’ compensation insurance premium increase, with only one percent of Pennsylvania Employers noting a decrease in workers’ compensation insurance premiums, with 34% responding that there had been no change in their workers’ compensation costs, and 52% indicating premium rate increases for workers’ compensation insurance.

The Pennsylvania Chamber is in support of reforms to improve efficiency, provide necessary updates to the Pennsylvania Workers’ Compensation Law, and to address deficiency that the Chamber has identified as being conducive to abuse.

Specifically, the Chamber had advocated for legislation (HB 808), introduced in the 2011-2012 session of the General Assembly, that would have extended the period during which an injured worker would be required to seek treatment through a Panel of medical providers established by the Employer, expanding the 90 day period currently required under the 1996 Reforms to the Pennsylvania Workers’ Compensation Act, most often referred to as Act 57, to a 180 day period, with the Chamber indicating that both Employers and Employees consistently reported that injured workers treating with Panel Providers were more satisfied with the quality of care and often returned to work faster, than injured Employees who treated with non-Panel Providers.

The legislative reforms currently proposed by Governor Corbett and the Pennsylvania Chamber of Business have very strong opposition from several lobbying groups, to include the trial lawyers and physician/medical provider groups, that oppose limitations on managed care, fee schedules, utilization review, and prescription reimbursements.

The proposed legislative reforms remain in committee, with no clear legislative directives as to enactment.

Opponents of the proposed reforms claim that proposals limit access to reasonable and necessary medical care, and otherwise conflict with the humanitarian and remedial public policies forming the legislative basis for workers’ compensation legislation.

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.