UPDATE ON PENNSYLVANIA FACEBOOK DECISION

By Kevin L. Connors, Esquire

The Rule that has been emerging in Pennsylvania, related to discovery of Facebook postings by Plaintiffs in personal injury cases, or, for that matter, Claimants in workers’ compensation matters, is that the courts are generally granting limited discovery requests, with the threshold question being the extent to which the postings by Plaintiffs or Claimants are “public”, as opposed to being private, on social media pages.

Anyone familiar with Facebook, or social media, for that matter, is then familiar with there being some distinction, in social media websites, between allowing public access to postings, as opposed to the postee limiting access, through privacy settings that are generally available to anyone subscribing to social media.

Recently, a civil case being litigated in the Lancaster County Court of Common Pleas resulted in the trial judge, the Honorable James Cullen, ordering that a “neutral forensic computer expert” be hired, to view a Plaintiff’s private Facebook page, during a seventeen day window, the same being relevant as the Defendant was claiming that the Plaintiff, who alleged personal injuries as a result of the Defendant’s alleged negligence, had been photographed playing in the snow during that seventeen day period.

The case is Perrone v. Lancaster Regional Medical Center.

The trial judge further directed the parties to agree on the selection of a neutral expert, to be identified within seven days of the Court’s May 3, 2013 Order.

The trial judge further ordered that all discovery related to the Facebook issues be completed within sixty (60) days.

Under the trial judge’s discovery Order, the expert was to retain the Plaintiff’s Facebook user name and password, and to download the contents of the Plaintiff’s Facebook to a hard drive, with the time period from January 27, 2010 through February 13, 2010 being isolated.

The trial judge ordered that the cost of the expert’s fees to be borne by the Defendants.

This case appears to be the first case decided in Pennsylvania, in which a Pennsylvania judge has ordered the hiring of a neutral expert to view a parties’ Facebook postings and information.

In ordering the retention of a neutral expert, the trial court did not provide any specific reasoning.

As we are quickly becoming aware, trial courts throughout Pennsylvania are adopting the predominant standard, utilized in the course of granting or denying access to a parties’ private Facebook postings, with the threshold being the extent to which Facebook, or other social media,  postings are revealed publicly, with the public postings intimating that more private postings might be more relevant to the disputed issues in individual cases, vis-a-vis, whether the social media postee is what they claim to be, in court proceedings, etc., as opposed to their often embellished social media images, potentially representing greater activity than has or will be disclosed in the court proceedings in question.

To date, there have been a number of Pennsylvania trial court rulings, dealing with social media and Facebook issues, to include decisions in the following cases: 

·         Brogan v. Rosenn (Lackawanna County);

·         Hoy v. Holmes (Schuylkill County);

·         Simms v. Lewis (Indiana County);

·         Offenback v. L.M. Bowman (U.S.D.C.-Middle District);

·         Largent v. Reed (Franklin County);

·         McMillen v. Hummingbird Speedway (Jefferson County);

·         Mazzarella v. Mount Airy Casino Resort (Monroe County);

·         Gallagher v. Urbanovich (Montgomery County);

·         Zimmerman v. Weis Markets (Northumberland County);

·         Trail v. Lesko (Allegheny County);

·         Piccolo v. Paterson (Bucks County);

·         Arcq v. Fields (Franklin County);

·         Kalinowski v. Kirschenheiter (Luzerne County);

·         Martin v. Allstate (Philadelphia County);

·         Perrone v. Lancaster Regional (Lancaster County).

In general, the courts appear to be making the following rulings pertaining to social media:

·         There is no constitutional right to privacy, nor is there any privilege, that prohibits discovery of a parties’ social media activity;

·         Material found on the public portions of someone’s social media site is discoverable; and,

·         Material that is located on someone’s private page of a social media profile is discoverable, but only after a showing of a factual predicate, suggesting that allowing discovery of the private profile will lead to relevant information, and if there is no factual predicate established, discovery of private social media pages will not be allowed.

The cases that have allowed discovery include:

·         Offenback;

·         Largent;

·         Simms;

·         McMillen;

·         Perrone;

·         Mazzarella;

·         Gallagher; and,

·         Zimmerman.

When discovery was allowed, limitations were placed on the discovery that was permitted.

Discovery was not allowed, or was limited, in the following cases:

·         Trail;

·         Piccolo;

·         Arcq;

·         Simms (granted in part, denied in part);

·         Brogan;

·         Kalinowski;

·         Martin; and,

·         Hoy.

Social media issues will continue to excite, inflame, and educate litigators, as the lines between being public and private, continue to be blurred in our social unconscious, thanks to Carl Jung, the caveat to this is that no one is permitted to “friend” a litigant for the purpose of “discovery”.

Kevin L. Connors can be reached at:  kconnors@connorslawllp.com

TO RETIRE OR NOT TO RETIRE

By

Jeffrey D. Snyder and Kevin L. Connors

Yes, genuflecting in the general direction of T. S. Eliot:

“April is the cruelest month,

Lilacs of the dead land, mixing

Memory and desire, stirring

Dull roots with spring rain.

And, indeed, there will be time for us to determine the burden of proof in cases where an employer claims that an employee, post-retirement, has voluntarily withdrawn from the workforce, entitling the employee to the magis hubris of a suspension of indemnity compensation benefits.

What are we talking about, and why do we care?

Burdening all with the instructive yet pedantic ruling recently issued by the Pennsylvania Supreme Court inCity of Pittsburgh UPMC Benefit Management Services, Inc. v. WCAB (ROBINSON), we are nevertheless constrained to consider its analysis of the burden of proof in cases when an employer claims that an employee, allegedly post-retirement, has voluntarily withdrawn from the workforce, presumptively entitling the employer to the conceit of a suspension of indemnity compensation benefits.

What presumption are we talking about, and why should we read with relish on?

Poetic liberties aside, the Supreme Court has concluded in the City of Pittsburgh, decided on March 25, 2013, that the employer carries the burden of proof, under a “totality of circumstances” test, to establish an employer’s basis to suspend a Claimant’s workers’ compensation benefits, with the Court finding that the employer must prove, in a withdrawal from the labor force case, that the Claimant’s election and receipt of an employment-based pension establishes that the Claimant has voluntarily withdrawn from the workforce, effectively constituting a post-working motif, not to be confused with a paradigm, of making no effort to seek re-employment.

Will this result in higher cable TV charges, we wonder?

Da Facts

In the City of Pittsburgh, the Claimant was a Pittsburgh Police Officer, who had sustained a work-related injury in 1997.

Subsequent to that workers’ compensation claim, she sustained new injuries in 2001, when she was involved in an automobile accident, as she was driving to treatment for the original work injury.

Following her car accident, the Claimant was not able to continue working in a light-duty capacity, and she was not offered any subsequent employment by the employer.

Three years after the car accident, the Claimant applied for and received a disability pension from Pittsburgh.  Pensions are awarded to police officers, who, due to a work injury, are unable to perform the duties of their position.

Da Ruling

The Supreme Court held that the Claimant’s entitlement to receive the pension simply meant that she was unable to perform her pre-injury employment as a police officer, but that did not mean that she was precluded from performing any employment whatsoever.

Another three years fly by, as often happens in our squirrely compensation universe, and the Claimant was referred for an independent medical examination, with the IME doctor, bless his board-certified credibility, finding that the Claimant was unable to perform the pre-injury job as a police officer, but that she certainly could perform modified-duty work, as we all know that even Christopher Reeves was able to do that in a wheelchair, post-Superman.

As the Act requires, a Notice of Ability to Return to Work was issued, with the employer shortly thereafter filing a Suspension Petition, under which it was alleged that the Claimant was capable of working, but that the Claimant had voluntarily removed herself from the workforce, as she was not looking for work, had not looked for work, and was not seeking employment in the general labor market.

Yes, they subpoenaed her cable company bills to prove her inactivity (not).

Oddly enough, the Claimant responded, alleging that she remained umbilically attached to the workforce, having registered for work with the Pennsylvania Job Center, and she also claimed that she was not presently working because of the unavailability of work, as her light-duty position had been eliminated, negating the availability of immediate work for her.

Litigated before the workers’ compensation judge, the Claimant was able to establish, through testimony from a senior claims examiner, that the light-duty position that she had previously held had, yes, been terminated.

Proof positive that April is the cruelest month.

Notwithstanding the employer presenting the expert medical testimony of the IME doctor, evidencing that the Claimant was physically capable of performing modified-duty work, the workers’ compensation judge, bizarrely enough, denied the Suspension Petition, concluding that the Claimant had not voluntarily removed herself from the workforce.

The workers’ compensation judge concluded that the Claimant had been forced into retirement when her light-duty work was taken away from her, cruelly eliminated by her employer.

The workers’ compensation judge also accepted the Claimant’s testimony that she had reported to the Pennsylvania Job Center, after receiving the Notice of Ability to Return to Work.

Da Appeals

Ascending through the appellate ranks, the employer eventually appealed the judge’s decision to the Commonwealth Court, which affirmed the judge’s decision in a bearish polarity opinion, finding that it was constrained by prior holdings, to include the infamousKachinski case, decided in 1987 by the Pennsylvania Supreme Court, forever establishing an employer’s burden of proof, when seeking a suspension of compensation benefits under Section 306, based on the ability to perform some level of work post-injury.

So, before the Supreme Court, the appellate issue turned on the question of when a Claimant has actually “retired” so as to invoke the suspending powers of the “withdrawal” cases, as the Commonwealth Court had concluded that the acceptance of any type of pension does not create a presumption of retirement, nor does it necessarily establish a complete withdrawal from the labor force.

Granting allocator, which is like getting dessert at your favorite diner, the Supreme Court recognized that to establish that a Claimant was withdrawing from the labor force, requires the tortured analysis of a Claimant’s state of mind, further requiring the interpretation and analysis of various subjective facts, to determine if the withdrawal was voluntary, as well as being presumptively total.

In shorthand, the Supreme Court held that the receipt of a pension, any type of pension, is not sufficient evidence, in and of itself, to establish an employer’s burden of proof, that a Claimant has voluntarily removed themselves from the workforce.

Presumptive v. Permissive

To establish that fact, as a legitimate basis for suspending a Claimant’s workers’ compensation benefits, there must be an unequivocal admission of no further attachment to or connection with the workforce, such as had been in the case ofDugan v. WCAB, 569 A.2d 1038 (Pa. Cmwlth. 1990). 

The analytical paradigm being, in City of Pittsburgh, that an employee’s receipt of a disability pension only entitles the employer to a “permissive inference that the Claimant has retired”.

That inference, alone, is insufficient to establish that the worker has fully retired from the workforce, such that a suspension of compensation benefits would be inappropriate under the Pennsylvania Workers’ Compensation Act.

Other relevant and credible evidence must be introduced by the employer, to sustain its burden of proving a withdrawal from the workforce.

In short, to be disabled is not necessarily to be retired, nor does it with any prima facie likelihood, mix the memory of working with the desire to do so.

Practical Tips

The Supreme Court’s ruling in City of Pittsburgh certainly clarifies the burden of proof and burden of production in cases of voluntary withdrawal from the workforce, while effectively reinforcing the standards of proof that had been applied in prior withdrawal cases, to include Dugan, with the predicate test for a “retirement/withdrawal” case, as basis for a suspension, being a “totality of the circumstances”, effectively begging the presidential, as opposed to precedential, question, “what is the meaning of the word, is?”.

Get it in writing!

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.

SUMMARY OF PENNSYLVANIA

WORKERS’ COMPENSATION LAW

By

Kevin L. Connors, Esquire

The following is a broad summary of practices and procedures under Pennsylvania’s Workers’ Compensation Act, 77. P.S. § 1-1031,

I.          Filing Deadlines:

Employee required to report injury to employer within 21 days of occurrence, for notice provisions of WCA; notice must be to management.

If not report within 120 days of injury, claim is time-barred under WCA. The same is true whether alleging physical injury, psychological injury, or occupational disease. 

Report of Injury required to be filed with the Bureau of Workers’ Compensation by employer within 48 hours of fatal injury, and within 7 days of other injuries.

There is a 7 day waiting period for the payment of wage loss disability benefits following injury. 

Beyond the 7 day waiting period, the injured employee is entitled to be paid wage loss disability benefits.  Benefits are payable back to the first date of disability, if disability exceeds 14 days post-injury. 

Wage loss disability payments must be made on the same schedule as the payment of wages pre-injury.  If benefits, inclusive of wage, medical, interest, attorneys’ fees, and/or penalties, are awarded to injured employee, under a Bureau-circulated WCJ decision, the benefits must be paid within thirty 30 days of issuance of the award/decision. 

II.        STATUTE OF LIMITATIONS:

A 3 year statute of limitations applies to the filing of a Claim Petition, seeking workers’ compensation benefits for an alleged work injury.

If workers’ compensation benefits are terminated, either by agreement or by decision, the injured employee has a 3 year statute of limitations to seek reinstatement of compensation, and to strike the effective termination of compensation benefits.

If compensation benefits have been suspended, and/or modified, based upon an injured employee again being able to return to work at wages equal to or greater than the pre-injury average weekly wage, or, if the injured employee is earning less than the pre-injury average weekly wage, the injured employee has a 500 week statute of limitations to reinstate temporary total disability benefits, to strike a suspension or modification.

Any employer or insurer seeking to limit an injured employee’s receipt of wage loss disability benefits in reliance upon an impairment rating evaluation cannot seek to convert a temporary disability claim to a permanent disability claim, until the injured employee has received 104 weeks of total disability benefits; the total disability benefits need not be cumulative, but they cannot be partial disability benefits.

The statute of limitations for an occupational disease claim is 300 weeks from date of last exposure. 

Appeal from a decision circulated by a workers’ compensation judge must be filed within 20 days of the circulation date of the decision. The appeal must be filed with the Workers’ Compensation Appeal Board; a party seeking Supersedeas from a decision issued by a WCJ must file the Supersedeas Petition within the same timeframe as the appeal, being 20 days from decision circulation date.

Any appeals from the Appeal Board to the next appellate level, the Pennsylvania Commonwealth Court, must be filed within 30 days of the decision circulation date.

III.       COMPENSATION BENEFIT RATE SCHEDULES:

2011 – 2012 - 2013

A.        AVERAGE WEEKLY WAGE CALCULATION:

The injured employee’s average weekly wage is calculated using the gross wages of the employee over the 52 weeks prior to the work injury. 

The 52 weeks are divided into 4 – 13 calendar quarter periods. The 3 highest 13 week periods are added together, and divided by 3, resulting in the average weekly wage.

If the injured employee has worked less than a full calendar quarter, wages are based upon the “expectations of the parties”. 

IV.       SCHEDULE/SPECIFIC LOSSES:

The following schedules apply to specific losses, either as total/partial amputations, or as “complete loss of use for all practical intents and purposes”:

V.        MOST COMMONLY USED WC FORMS:

VI.       GENERAL PRINCIPLES:

Injuries occurring in the course and scope of employment and related thereto are compensable under the Act.

Pennsylvania utilizes the AMA Guidelines to determine impairment ratings, although the same guidelines have no application whatsoever to a disability claim.

Appeals of decisions have three levels, from WCJ to Appeal Board, from Appeal Board to Commonwealth Court, and from Commonwealth Court to Supreme Court.

The Commonwealth Court averages about four compensation decisions per month. 

The Supreme Court averages about three or four compensation decisions per year.

 A.        COMPENSATION BENEFITS:

There are six compensation benefits available under the Pennsylvania WCA.

The compensation benefits are: 

·         Temporary compensation benefits;

·         Temporary total disability benefits (total disability wage loss);

·         Temporary partial disability benefits (difference between pre-injury wages and post-injury wages – subject to 500 week limitation);

·         Specific loss benefits (payable for amputation, complete loss of use of body part, or facial scars);

·         Death benefits, payable if the fatality is work-related;

·         Medical compensation benefits (payable for reasonable, necessary and related medical care for work injuries);

Compensation benefits are payable for work-related injuries occurring in the course and scope of employment, excluding intentionally self-inflicted injuries, injuries occurring as a result of a violation of law, such as when incapacitated due to intoxication or drugs, when violating a positive work order of the employer, when injury is caused by “personal animus), or where there is no employer/employee relationship.

Temporary total disability benefits are payable when an injured employee is disabled from performing pre-injury job.

Partial disability benefits are payable if the injured employee is capable of working, with some presumption of continuing disability, and earning less than pre-injury wages.

Permanent partial disability is recognized in the context of specific loss claims and claims governed by impairment rating evaluations, but only where the impairment rating is less than 50% of a whole man threshold.

Permanent partial disability is compensable if an injured employee loses two appendages.

Death benefits are payable as long as the fatality is related to the work injury.

Workers’ compensation is regarded as an exclusive remedy, providing the employer with statutory immunity from tort-based liability, so long as the employee is insured for workers’ compensation.

The WCA is regarded as being both humanitarian, and an affirmation of public social policy.

B.        CLAIM PROCEDURES:

Pennsylvania Workers’ Compensation procedures are form-intensive, as every change in the compensation status of a claim requires that the change be recognized with the filing of the appropriate compensation form.

Most commonly used compensation forms are:

            Report of Injury (when injury is reported to employer);

            Notice of Compensation Payable (claim being accepted with injury and wage rates identified);

            Notice of Compensation Denial (when claim being denied, requiring basis be identified);

            Notice of Temporary Compensation Payable (temporary compensation benefits are payable for ninety (90) days without admission of liability as to injury or disability);

            Notice Stopping Temporary Compensation Payable (required to be filed before expiration of ninety (90) day temporary compensation period);

            Supplemental Agreement (post-claim acceptance form evidencing employee change in status, either as to return-to-work, or as to reinstatement, if work is stopped);

            Notice of Ability to Return to Work (form advising employee that they are medically released to return to work); (with mandatory issuance prior to any employer job offer being extended);

            Statement of Wages (provides basis to calculate pre-injury average weekly wage and compensation payable rate);

            Compromise & Release Agreement by Stipulation (document used to settle workers’ compensation claims, subject to approval by WCJ);

            Utilization Review (challenge to reasonableness and necessity of medical care);

            Physician’s Affidavit of Recovery (attesting to full recovery post-injury);

            Notification of Suspension/Modification (used to suspend or modify wage loss benefits within 7 days of return to work.

Reporting of injury claim with disability requires acceptance, denial, or agreement to pay temporary compensation benefits, within 21 days of first day of claimed disability from work injury.

Claim acceptance requires payment on weekly/biweekly schedule of temporary total disability benefits (TTD) to employee, without specific statutory time limitation, subject to change if the employee’s disability/ability to return to work status.

Claim acceptance results in the employer/insurer obligation to continue paying workers’ compensation benefits for both wage loss and medical expenses until:

·         Employee dies from non-work-related causes;

·         Employee sufficiently recovers from work injury to be able to return to some level of work;

·         If employee returns to work at pre-injury wages, wage loss benefits are suspended, and medical compensation benefits continue;

·         If employee returns to work at wages less than pre-injury wages, the employee receives temporary partial disability benefits, payable as 2/3 of the difference between pre-injury wages and post-injury wages, subject to 500 week limitation;

·         Impairment rating evaluation determines, after the Claimant has received 104 weeks of temporary total disability benefits, that the Claimant’s impairment rating is less than 50% under a whole person impairment standard, resulting in wage loss benefits being paid as temporary partial disability benefits, subject to the 500 week limitation;

·         An employee returns to work and the employer/insurer suspends or modifies wage loss benefits with the filing of a Notification of Suspension/Modification within 7 days of return-to-work;

·         An employee executes a Supplemental Agreement, evidencing a suspension, modification or termination of wage loss compensation benefits;

·         A WCJ orders wage loss benefits to suspend, modify, or terminate, in reliance upon evidence from the employer/insurer that the Claimant’s compensation status has changed, either due to full recovery from work injury, or due to employee sufficiently recovering from work injury to be capable of working with “earning power”;

·         The employee and employer/insurer settle the claim under a Compromise & Release Agreement, required to be approved by WCJ, with the WCJ’s jurisdiction over the Compromise & Release Agreement limited to determining whether the employee understands the “legal significance” of the settlement agreement.

Employers/insurers are entitled to credits for unemployment, employer-funded pension distributions, and a 50% credit for old age social security payments. 

C.        LITIGATION PROCEDURES:

Disputes over workers’ compensation claims are litigated before the Office of Adjudication, an office within the Bureau of Workers’ Compensation, a division of Pennsylvania Department of Labor and Industry.

• The web portal to the Office of Adjudication is www.portal.state.pa.us.

This portal includes facts and information on filing claims, litigating claims, as well as information regarding hearing procedures before WCJs. 

Several workers’ compensation petitions are utilized to litigate claims, to include: 

·         Claim Petition (filed by employee alleging injury and seeking workers’ compensation benefits);

·         Review Petition (filed by either employee or employer, seeking administrative review of compensation claim);

·         Reinstatement Petition (filed by employee seeking reinstatement of wage or medical compensation benefits);

·         Termination Petition (filed by employer, seeking termination of compensation benefits, both wage and medical, with evidence that employee is fully recovered from work injury);

·         Suspension Petition (filed by employer, with evidence that the employee is sufficiently recovered from work injury to be able to return to work at wages equal to pre-injury wages);

·         Modification Petition (filed by employer, with evidence that the employee has sufficiently recovered from work injury to be able to return to work at wages less than pre-injury wages);

·         Petition to Seek Approval of a Compromise & Release Agreement (filed by either employee or employer, seeking WCJ approval of a settlement agreement);

·         Penalty Petition (filed by employee, seeking penalties against employer/insurer for alleged violation of the Act) (maximum penalty equals 50% of benefits that were payable in absence of alleged violation).

Petitions are filed electronically with the Bureau, which assigns the petitions to WCJs, with assignments typically based on the employee’s hearing district residence.

Following petition assignments to WCJs, the WCJs conduct hearings on either a serial hearing scheduling basis, or on a 1 day trial scheduling basis, with WCJs directed to follow the Special Rules before WCJs, in terms of all case management scheduling guidelines, as well as to seek closure of the evidentiary record within 12 months of the date of assignment to the Judge.

Closure of the record by the WCJ results in WCJ directing the submission of Proposed Findings of Fact and Conclusions of Law. 

Petition-filing party typically charged with the burden of proof as to the allegations raised, either in terms of the benefits or change in status sought.

Decisions issued by WCJs are circulated by the Bureau, and are appealable for 20 days post-circulation.

Statutorily-mandated mediation is required for all litigated Pennsylvania Workers’ Compensation claims.

Appeals from WCJ decision are filed with the Workers’ Compensation Appeal Board which permits the employee and employer to argue the appeal orally as well as in briefs.

The Appeal Board typically rules on appeals within 6-12 months of the appeal being filed. 

Appeals from Appeal Board ruling are subject to appeals for 30 days post-issuance.

Appeals from the Appeal Board are filed, via Petition for Review, with the Commonwealth Court. 

The Commonwealth Court has jurisdiction over all appeals from Pennsylvania administrative agencies.

The Commonwealth Court typically rules on appeals within 6-12 months of their filing, permitting argument both orally and by briefs.

Commonwealth Court rulings are appealable to the Pennsylvania Supreme Court within 30 days of issuance, subject to allocator being petitioned for before the Supreme Court. 

The Pennsylvania Supreme Court typically only averages between 1-4 workers’ compensation decisions per year, typically denying allocator, in the absence of the following:

·         Cases of first impression;

·         Cases involving public policy consideration;

·         Cases involving precedential uncertainty or confusion at the Commonwealth Court level.

D.        SETTLEMENTS:

Since 1996, Pennsylvania has permitted workers’ compensation claims to be settled, utilizing a Compromise and Release Agreement.

The settlements must be approved by a WCJ.

The procedure for settling a workers’ compensation claim, after the settlement agreement has been negotiated, is to either amend a pending petition to be a Petition to Seek Approval of a Compromise and Release Agreement, or to file a petition seeking approval of C&R.

The WCA specifically prohibits settlements of workers’ compensation claims, absent a WCJ approving the settlement under a C&R.

For a WCJ to approve a C&R, the WCJ must determine that the employee settling their workers’ compensation claim understands the “legal significance” of the settlement agreement, with the WCJ having no responsibility to determine if the settlement agreement is in the “best interest” of the employee.

The parties are permitted to settle all workers’ compensation benefits, to include wage loss, specific loss, death benefits, medical benefits, penalties, attorneys’ fees, and any other benefit or claim under the jurisdiction of the WCJ, and within the scope of the WCA.

Typically, settlement agreements are also conditioned upon resignations, although the WCJ has no authority to rule on any employment law issues, to include resignations, as well as any issues with respect to the ADA, the FMLA, EEOC, and/or ADEA.

E.        LIENS:

Pennsylvania recognizes the right of the employer to subrogate against an employee’s third-party personal injury/tort recovery.

Subrogation is empowered under Section 319 of the WCA.

Relevant factors are:

            Employer payment of workers’ compensation benefits;

            Work injury caused by third-party negligence;

            Employee recovers third-party settlement/award;

Employer/insurer entitled to recover payments of wage loss and medical compensation benefits, subject to pro rata attorneys’ fees and expenses.

The BWC requires the filing of a Third Party Settlement Agreement (LIBC-380) to record the following for subrogation lien recoveries:

 ·         Third-party recovery;

·         Workers’ compensation lien;

·         Expenses of recovery;

·         Balance of recovery;

·         Pro rata attorneys’ fees and expenses;

·         Reimbursement percentage rate;

·         Net subrogation lien recovery;

·         Grace period reimbursement rate.

Pennsylvania permits employer/insurers to intervene via interpleader in third-party action, and the Supreme Court has recognized direct subrogation actions by employers/insurers against third-parties.

VII.     MAJOR REFORM TIMELINES:

1915:               WCA enacted.

1972:               Requirement of proving a work accident eliminated, with post 1972 focus on proving a work-related injury, opening the door for repetitive/cumulative trauma injury claims.

1993:               Overhaul of provisions dealing with medical compensation benefits, implementing utilization review and medical fee schedules based on Medicare reimbursements.  Instituted concepts of panel providers, temporary compensation benefits without formal acceptance of claim.

1995:               Reform of hearing loss provision, implementing baseline testing and utilization of AMA Guidelines to prove binaural hearing loss.

1996:               Established temporary compensation period at 90 days, true also for panel treatment.  Instituted Compromise & Release Agreements, Special Supersedeas, and Notification of Suspension/Modification provisions.

2007:               Mandated Mediation, instituted security fund for uninsured employers.

VIII.    LINKS:

• National Workers’ Compensation Defense Network: www.nwcdn.com
• Workers’ Compensation.com: www.workerscompensation.com
• Pennsylvania Department of Labor & Industry: www.dli.state.pa.us
• Pennsylvania Office of Adjudication: www.portal.state.pa.us
• Risk Insurance Management Society: www.rims.com

IX.       CONTACTS:

·         Kevin L. Connors: kconnors@connorslawllp.com

·         Kate A. O’Dell: kodell@connorslawllp.com

·         Jeffrey D. Snyder: jsnyder@connorslawllp.com

·         John J. Muldowney: jmuldowney@connorslawllp.com

·         Lisa A. Miller: lmiller@connorslawllp.com

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. 

Michael DePue v. WCAB (N. Paone Construction, Inc.) 

1113 C.D. 2012 (PA. Cmwlth. January 30, 2013)

By: Lisa A. Miller, Esquire

The Commonwealth Court affirmed the Decision of the Appeal Board and WCJ which denied the Claimant’s Review Petition to add a left shoulder injury to the description of his work injury more than two (2) years after the approval of a Compromise and Release Agreement, and also denied Claimant’s Penalty Petition for failure to pay medical bills for the left shoulder injury.

The Claimant sustained a work-related closed head injury on February 26, 1996. On March 3, 2008, the Claimant and Defendant entered into a Compromise and Release Agreement to settle the Claimant’s indemnity benefits for a lump sum amount of $175,000.00 as “full and final satisfaction of all future wage loss benefits.”

The injuries described in the C&R Agreement were described as “any and all injuries. . . . including but not limited to the accepted injuries of a severe closed head injury with seizure disorder, and short term memory loss.” The Defendant agreed to continue to pay “all reasonable and related medical bills.” 

The Claimant filed a Penalty Petition alleging that Defendant failed, neglected, or refused to pay medical bills. The Claimant sought a fifty (50%) percent penalty on $1,200.00 in medical bills. The Claimant also filed a Review Petition alleging that the description of his work injuries were incorrect. 

The Defendant denied the Claimant’s allegations, and sought dismissal of the Review Petition invokingres judicata and collateral estoppel.

The Claimant submitted a Pre-Trial Memorandum in which he alleged that Defendant informed him in January 2010 that it would no longer pay for treatment for his left shoulder injury.

The Defendant submitted the WCJ’s Decision approving the Compromise and Release Agreement; the transcript of the Compromise and Release Hearing; and a packet of Proposed Addendums to the Compromise and Release Agreement prepared by Claimant’s counsel with changes, including a hand written notation made by Defendant’s counsel thereon; and the February 27, 2008 letter that Defendant’s counsel sent to Claimant’s counsel. 

In an Interlocutory Order, the WCJ precluded Claimant from proceeding on the Review Petition, and scheduled a hearing on the Penalty Petition to determine whether the Claimant was alleging unpaid medical bills from the left shoulder injury only, or for other injuries accepted by the Defendant. The WCJ indicated that if Claimant was alleging the medical bills only for the left shoulder injury, the Penalty Petition would be denied. Claimant’s counsel stated that the Penalty Petition was related only to the left shoulder injury, and the WCJ denied the Review and Penalty Petitions. 

The WCJ concluded that the Review Petition was barred byres judicatabecause the Claimant was aware of the left shoulder injury at the time of the C&R, and agreed not to include it in the Compromise and Release Agreement. The WCJ relied onWeney v. WCAB (Mac Sprinkler Systems, Inc.),960 A.2d 949 (Pa. Cmwlth. 2008). InWeney the Claimant’s first Review Petition was resolved by a Stipulation, in which the parties agreed to amend the NCP to include a shoulder injury. Three (3) days after the WCJ approved the Stipulation and granted the Review Petition, the Claimant filed another Review Petition to amend the NCP to add neck or cervical spine injuries. The Court concluded that the second Petition was barred by theres judicata because the Claimant was aware of those injuries and their causal relationship to the work incident during the first Review Petition proceeding, and should have litigated the claim during that proceeding. 

The Appeal Board affirmed the WCJ’s Decision, concluding that the evidence did not indicate that the C&R Agreement was entered into by unilateral or mutual mistake.  The Board determined that the C&R Agreement was final and binding, and that the Review Petition was barred byres judicata. The Board noted the Claimant was attempting to raise a matter in his Review Petition that should have been litigated during the earlier proceeding on the Compromise and Release Agreement underWeney.

The Claimant argued that the Compromise and Release Agreement should be “corrected” to add the left shoulder injury to the description of his work injuries.  The Claimant alleged that the left shoulder injury was “erroneously” omitted in the final draft of the Agreement. Claimant contends that the Employer routinely paid medical bills for the left shoulder injury, and that it knew that the bills were “casually related to his injuries.” Claimant disputed thatres judicata applied to the matter noting that there was no prior litigation involving a request to amend the description of his work injuries.

Employer argued that the Claimant flagrantly misrepresented that the left shoulder injury was erroneously omitted in the final draft of the Compromise and Release Agreement.  Employer contended that the Claimant was entitled to receive medical benefits only for the injuries described in the Compromise and Release Agreement as accepted by the Employer, and that the Review Petition was barred byres judicata and collateral estoppel. 

Section 449(a) and (b) of the Act provides that:

a) Nothing in this Act shall impair the right of the parties interested to compromise and release …any and all liability which is claimed to exist under this act on account of injury or death.

b) Upon or after filing a Petition, the Employer or Insurer may submit the proposed Compromise and Release by stipulation signed by both parties to the WCJ for approval. The WCJ shall consider the Petition and proposed Agreement in open hearing and shall render a Decision. The WCJ shall not approve any Compromise and Release unless he first determines that the Claimant understands the full legal significance of the Agreement. The Agreement must be explicit with regard to payment, if any, of reasonable, necessary and related medical expenses. 

In enacting Section 449 of the Act, the legislature intended a Compromise and Release Agreement to be “on equal footing with civil settlements” in order to promote a public policy of encouraging the parties to settle disputes and bring them to finality. Stroehmann Bakeries, Inc. v. WCAB (Plouse),768 A.2d 1193, 1196 (Pa. Cmwlth. 2001).

Defendant’s exhibits demonstrated that before the execution of the Compromise and Release Agreement, Claimant’s counsel sent a Proposed Addendum to the Agreement to Defendant’s counsel. 

Paragraph Twenty-Four (24) of the Proposed Addendum stated “the accepted injuries includes ‘closed’ head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short term memory and bi-polar disorder. Defendant agrees to continue to provide medication and medical care which is reasonable and necessary, and casually related to his injuries.”

Defendant’s counsel sent the Proposed Addendum back to Claimant’s counsel after crossing out the injuries of “left shoulder fracture”, “chronic pain”, and “bi-polar disorder” in paragraph 24, and placing a hand written notation, which stated that “we already negotiated these injuries at the time of the ‘settlement’”. In a letter dated February 27, 2008, that accompanied the Proposed Addendum sent back to Claimant’s counsel with his changes and notation, Defendant’s counsel further stated “we previously negotiated the accepted injuries in 2007 and those are the only injuries I will outline on the Agreement.” The C & R Agreement signed by the Claimant and Defendant described Claimant’s injuries as accepted by Defendant as “a severe closed head injury with seizure disorder and short term memory loss” and omitted the other injuries listed in the Proposed Addendum. 

At the March 3, 2008 hearing, the Claimant testified that his head injury affected mostly his short term memory and caused seizures.  He was not asked, and did not testify as to the left shoulder injury. 

The WCJ found that Claimant understood the full legal significance of the Agreement “as regards to his work related injury and right to Worker’s Compensation benefits.”  The WCJ determined that the parties entered into a “valid and binding Agreement” Department of Labor and Industry, Bureau of Worker’s Compensation v. WCAB (Ethan-Allen Eldridge Division),972 A.2d 1268 (Pa. Cmwlth. 2009).  An approved Compromise and Release Agreement can be set aside only upon a clear showing of fraud, deception, duress, a mutual mistake or unilateral mistake caused by an opposing party’s fault. Farner v. WCAB (Rockwell Int’l), 869 A.2d 1075 (Pa. Cmwlth. 2005);Barsczzewski v. WCAB (Pathmark Stores, Inc.), 868 A.2d 224 (Pa. Cmwlth. 2004).

After negotiations with the Defendant, the Claimant agreed to omit the left shoulder injury from the description of his injuries accepted by the Defendant in the Compromise and Release Agreement. The record did not support Claimant’s assertion that the left shoulder injury was erroneously omitted in the final draft of the Compromise and Release Agreement. The Compromise and Release Agreement was final and binding on the parties, and may not be amended after its unappealed approval period.

Once a Compromise and Release Agreement is approved, any issue which was not expressly reserved in the Agreement may not be raised later.  Department of Labor and Industry, Bureau of Workers’ Compensation v. WCAB (U.S. Food Service), 932 A.2d 309 (Pa. Cmwlth. 2007). Because the Claimant did not expressly reserve his right to add the new injury to the description of his work injuries, he was precluded from doing so more than two (2) years after the approval of the Compromise and Release Agreement.

Claimant argued that the description of the “injury” in the Compromise and Release Agreement as “any and all injuries” sustained in Employer’s workplace indicates the party’s intention to include the left shoulder injury in the injuries accepted by the Defendant. The Claimant relied on the contract construction rule that the intention of the parties must be ascertained from the document itself, if its terms are clear an unambiguous. 

However, Employer did not accept its liability for the left shoulder injury in the NCP or in any Agreement, and specifically refused to include it as part of the Compromise and Release. Nor was there any prior decision finding Defendant liable for that injury. 

The Court rejected the Claimant’s reliance on the Doctrine of Promissory and Equitable Estoppel. Promissory estoppel may be invoked to enforce a promise made by a party to an opposing party when there is no enforceable agreement between the parties. Crouse v. Cyclops Indus., 560 Pa. 394, 745 A.2d 606 (2000). 

In order to maintain an action in promissory estoppel, the aggrieved party must show the (1) the promissor made a promise that he or she should have reasonably expected to induce action or forbearance on the part of the promisee; (2) the promisee actually took action refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise.  The essential elements of equitable estoppel are that the party’s inducement of the other party to believe certain facts to exist and the other party’s reliance on that belief to act. Westinghouse Elec. Corp/CBS v. WCAB (Korach),584 Pa. 411, 883 A.2d 579 (2005). In the absence of “expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with the honest purpose and with absence of negligence as with their opposites.” Westinghouse, 584 Pa. at 423, 883 A.2d at 586. 

Nothing in the record suggests that Defendant promised to continue to pay medical bills for the left shoulder injury, and that Claimant relied on such promise to enter into the Compromise and Release Agreement. The record demonstrates that he negotiated the extent of his work injuries with the Employer, and ultimately agreed to omit the left shoulder injury in the Agreement. Claimant can not rely on the Employer’s voluntary payment of the medical bills for the left shoulder injury to support his estoppel claims. The Court has consistently held that Employer’s voluntary medical payment does not constitute an admission of liability for the injury. Securitas Sec. Servs. USA, Inc. v. WCAB (Schuh),16 A.3d 1221 (Pa. Cmwlth. 2011); Findley Township v. WCAB (Phillis),996 A.2d 111 (Pa. Cmwlth. 2010). To hold otherwise would be contrary to the Act’s policy of encouraging Employers to voluntarily pay medical expenses to injured employees to assist them in regaining health without fear of being later penalized for the payment. Defendant’s payment of medical expenses was not an admission of liability for the left shoulder injury and cannot be construed as a promise to continue to make such payment. 

In conclusion, the Claimant’s Review Petition was barred by the final and binding Compromise and Release Agreement. 

  PARTNER ANNOUNCEMENT 

THE SMART ACT ENACTED

By Kevin L. Connors, Esquire

On January 10, 2013, theSmart Act was signed into Law by President Obama.

The Smart Act stands for “The Strengthening Medicare And Repaying Taxpayers Act”.

This legislation reforms several aspects of Medicare requirements for conditional payments.

Under Section 201 (Conditional Payment Final Demand and Use of Website), efficiencies have been approved in the conditional payment system, with the following reforms:

Under Section 202 (Thresholds for Reporting a Conditional Payment Reimbursement); by November 15^th of every year, the Secretary will have to publish a threshold, wherein reporting conditional payment reimbursements shall not apply.

This procedure will not take effect until 2014.

Under Section 203 (Discretionary Fines for Non-Compliance of Mandatory Insurance Reporting):

Fines for non-compliance with Mandatory Insurer Reporting will now be discretionary, rather than mandatory.

The guidelines surrounding discretionary application have yet to be created.

Within sixty (60) days of the passage of the Smart Act, being signed into law as of January 10, 2013, CMS will seek proposed comments on which action/practices should or should not be sactionable, with publication of the proposed comments in the Federal Register.

This section established an enactment date of March 10, 2013.

Under Section 204 (Social Security Numbers); Social Security numbers will no longer be required on health identification claim forms. CMS has been given eighteen (18) months after the enactment date of theSmart Actto publish rules surrounding this declaration.

Under Section 205 (Statute of Limitations for Conditional Payment Recovery):

The statute of limitations for conditional payment recoveries is three (3) years after the receipt of notice of a settlement, judgment, award, or other payment made.

Effective as of January 1, 2014, certain liability claims will be exempt from reporting and reimbursement, if the claim falls below the annual threshold as calculated by the Secretary of Health and Human Services.

Civil penalties for non-compliance with mandatory insurance reporting requirements will be discretionary, and can be up to $1,000.00 for each day of non-compliance, with respect to each Claimant.

The Smart Act can be accessed online through several links, to include CMS.gov.

Copies of the Smart Act are also available through our office.

This is long overdue reform, intended to simplify what has become a Sisphysian ordeal, more complicated than necessary, and fraught with both frustration and uncertainty.

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 RATE INCREASE FOR WORKERS’ COMPENSATION BENEFITS

By Kevin L. Connors, Esquire

Effective as of January 1, 2013, the Pennsylvania Bureau of Workers’ Compensation increased the maximum compensation payable rate, for temporary total disability benefits, to a weekly rate of $917.00.

This translates into yearly compensation benefits equaling $47,684.00.

This temporary total disability benefit rate is applicable to any pre-injury average weekly wage that equals or exceeds $1,375.90, representing sixty-six (66) and two-thirds (2/3) of the pre-injury average weekly wage.

Between a pre-injury average weekly wage of $1,375.50 and $687.76, the average weekly wage is multiplied by sixty-six (66) two-thirds (2/3), for the temporary total disability benefit rate.

For pre-injury average weekly wages between $687.75 and $509.44, the Bureau has assigned a temporary total disability benefit rate of $458.50 per week, yielding $23,842.00 in yearly compensation benefits.

For those earning $509.43 per week or less, the temporary total disability benefit rate will be determined at a ninety percent (90%) rate.

The 2013 maximum compensation payable rate represents a rate increase of approximately 3.265 percent over the 2012 rate.

For the last five (5) years, the maximum rates have been:

Access to Pennsylvania’s Bureau of Workers’ Compensation, now known as the Office of Adjudication, is available through the following link:

http://www.portal.state.pa.us.

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.

MISPLACED PRIVACY

By Kevin L. Connors, Esquire

“No matter where you go, there you are!”

If the above quotation, mouthed by the character of Buckaroo Banzai, played without lips by Peter Weller, later infamous as the RoboCop character, when Buckaroo, playing with  his rock band, the Hong Kong Cavaliers, tried to talk Penny Pretty, played by Ellen Barkin, out of committing suicide, as the band was playing at a bar in Grover’s Mill, New Jersey, also infamous as the Martian landing site in Orson Wells’ radio broadcast in 1937, in the classic, and yes, it should be watched at least once a year, movie, The Adventures of Buckaroo Banzai Across the 8th Dimension.

If that “no matter…” sounds vaguely familiar, it is and will always remain, incisively existential in perhaps an all too obvious paradoxical universe of Berkleyan idealism, posited by the English philosopher, George Berkley, credited with the development of the philosophy of subjective idealism, also sometimes referred to as empirical idealism, which point will soon prove all too true for you the reader, as Berkley asked “if a tree falls in the forest, and no one is there, does it make a sound”?

Now, if you are Dirty Harry, you would ask “Well, did it feel lucky”?

So what, if anything, do the above ramblings have to do with litigation, a question perhaps best answered by Jack Sparrow’s character in Pirates of the Caribbean, who quixotically confessed “It’s nice to be here, it’s nice to be anywhere”.

And, of course, it might well depend upon the presidential precedent of “it depends upon what the meaning of the word is, is?”

Yes, there is a point.

At what point is anything private, or can legally be expected to support a claim of privacy, when posting stuff about yourself, in whatever medium or format, on the internet, seemingly the most public medium in the history of human civilization, where you have no control over what happens to whatever you post after it is posted, to include what others who have been exposed to your posting might do with it, with or without your permission.

And if you think that whomever or whatever you have shared this personal information or data with, should stop to consider what they should or should not do with it, after they have been exposed, then you are, quite simply, both clueless and naive.

One might precede the other, although the more relevant thought might be, what were you thinking if at all, when you posted that thought you thought so brilliant?

And yes, we are finally at our point of departure, which is the always fascinating battles, in the context of discovery, motions and arguments, over what is, or is not, discoverable, with the flashpoints being relevance and expectations of privacy. 

And into that conundrum, with those against whom social media and discovery requests are made, claiming “expectations of privacy”, and with those seeking social media discovery, contending that there can be no “expectation of privacy” in a medium so universally visible and accessible.

Having previously reported on several Facebookian Court rulings in the past, the newest rulings, by Courts in Pennsylvania, and in other jurisdictions, continue to cement the requirements both for seeking and disclosing social media discovery.

Recent Pennsylvania Rulings

Two recent Pennsylvania rulings are of interest.

The rulings areMazzarella v. Mount Airy Casino Resort,a case decided in the Monroe County Court of Common Pleas, andSimms v. Lewis,decided in the Indiana County Court of Common Pleas.

Mazzarella v. Mount Airy Casino Resort

Mazzarellais a ruling issued on November 7, 2012.

It involved a premises liability slip, and fall case, with the Trial Court Judge deciding, correctly we think, that the Plaintiffs expectation of privacy in her social media activity was “misplaced”, as the Trial Judge, the Honorable David Williamson, ruled that “those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy”.

So ruling, Judge Williamson held that the Defendant’s social media discovery request was not a violation of privacy, with the Plaintiff being ordered to answer the Defendant’s discovery request.

The discovery request in question sought disclosure of the Plaintiff’s social media user name and password, with there being no time limitation imposed upon the Defendant for access, as general prior Court rulings on this issue in other jurisdictions, have imposed a time limitation on the requesting parties’ access to the disclosing parties’ social media.

Simms v. Lewis

Simms is a ruling decided by the Honorable Thomas Bianco in the Indiana Court of Common Pleas.

Simms involved the Plaintiff’s personal injury lawsuit, following a motor vehicle accident, with the Plaintiff claiming that her injuries were both serious and permanent.

After determining that the Plaintiff had a social media account with Facebook, My Yearbook, and MySpace, and that each of the accounts had been active after the Plaintiff was injured in the motor vehicle accident, the Defendant sought access to the Plaintiff’s social media accounts, filing a Motion to Compel when the Plaintiff refused to allow access.

In the Defendant’s Motion to Compel, the Defendant indicated that the front page of the Plaintiff’s MyYearbook account contained the Plaintiff stating “chillin with my girl tonight.  We’re going to do some Zumba fitness: ) so excited!!! HTC:p,”.

Not surprisingly, the Defendant sought the Plaintiff’s user name and passwords for her social media accounts with Facebook, MyYearbook, and MySpace.  Access to the accounts was sought in order to view private portions and pages on the site, with the Plaintiff impolitely declining to provide that information, resulting in the Defendant filing a Motion to Compel.

TheSimmsCourt began with the premise “as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A. 2.d 202 (PA.Supr. 2002).

It also reflected on Pennsylvania Rule of Civil Procedure No. 4003.1.

However, the Court indicated that there were no Pennsylvania Appellate Court cases that addressed the issue of discovery requests for information concerning an individual’s social networking account.

While there were no Appellate rulings on that issue, there were a number of Trial Court rulings, with theSimmsCourt citing to the Zimmerman v. Weiss Markets Decision out of Northumberland County in May of 2011, where the Plaintiff had been ordered to provide login and password information for the Plaintiff’s Facebook account, although the Trial Court in Zimmerman specifically limited access to a threshold determination obtainable from access to the Plaintiff’s public page, requiring that the public pages indicate that private postings might contain relevant information.

Adopting theZimmerman threshold, theSimmsCourt ruled that the Defendant must first show that access to the Plaintiff’s social media account would lead to the discovery of relevant information, which the Defendants were able to sustain inSimms, but only as to the Plaintiff’s MyYearbook account.

TheSimms Court denied the Defendant’s request for disclosure of the Plaintiff’s social media account user name and password for the Plaintiff’s Facebook and MySpace accounts, as the Court indicated that the Defendant “has failed to articulate the factual predicate necessary to meet his burden” with regard to those accounts.

So, while an expectation of privacy might be “misplaced”, the right to seek disclosure of social media user information is not absolute, and may well require a requesting party to meet a threshold pre-requisite, proving that public postings implicate the potential relevance of private postings.

New York, New York

Hot off the presses, is the ruling of the United States District Court for Eastern District of New York in the Federal District Court case of Karissa Reid v. Ingerman Smith LLP, which involved the Plaintiff suing the Defendant for economic and non-economic damages arising from the Plaintiff’s alleged sexual harassment by an employee of the Defendant.

In the course of discovery being conducted, the Defendant sought information relating to the Plaintiff’s social media accounts.

The Federal District Court Judge granted that Motion in part, and denied the Motion in part.

Recognizing that the law regarding the scope of discovery of electronically-stored information (ESI) remained unsettled, the Court also indicated that there was no dispute that social media information may be a source of relevant information that is discoverable.

This is particularly true in cases involving claims of personal injury, where social media information may reflect a “Plaintiff’s emotional or mental state, their physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”

The Court cited toSourdiff v. Texas Roadhouse Holdings, LLC a case decided by the United States District Court for the Northern District of New York, in 2011.

As an example, the Court indicated that Plaintiffs who had placed their emotional well-being at issue, in the course of asserting claims of sexual harassment or discrimination, had been subject to some Courts finding that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the contents’ posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009).

Conversely, other Courts had observed that “the relevance of the content of a Plaintiff’s Facebook usage… is more in the eye of the beholder than subject to strict legal demarcations.” Bass.

Tripping the light fandango, whether electronically-stored and disseminated on the internet or not, “anything that a person says or does might in some theoretical sense be reflective of their emotional state.” Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. 2006).

InReed, the Defendant claimed that the Plaintiff’s Facebook postings were relevant, as those postings contradicted the Plaintiff’s claims of mental anguish, allegedly resulting from her alleged sexual harassments, and subsequent termination of employment.

Not surprisingly, the Plaintiff argued that she should not be subject to broad discovery, to include the entirety of her social media accounts, potentially resulting in disclosure of private information.

Considering both arguments, for disclosure and in opposition to disclosure, the Court held in Reed that photographs and comments that the Plaintiff had posted on her publicly available Facebook pages provided probative evidence of her mental and emotional state, and the same could reveal the extent of activities in which she was engaged.

The Court also found that her private postings might likewise contain relevant information similarly reflective of her emotional state.

More germane, maybe to the point of this discourse, the Court further ruled that “even had the Plaintiff used privacy settings that allowed only her ‘friends’ on Facebook to see her postings, she had no justifiable expectations that her friends would keep her profile private”, citing toU.S. v. Meregildo, 2012 WL 3264501 (S.D.N.Y. 2012).

Moreover, the Courts founds that the wider the Plaintiff’s circle of friends might be, the more likely that her post would be viewed by someone that she never expected to view her post.

Although the Court declined to require full disclosure of all materials in the Plaintiff’s social media accounts, holding that not all postings might be relevant to her claims, the Court did order the Plaintiff to provide access to postings on her social media accounts that dealt with her social activities, where relevant to her claims of emotional distress and loss of enjoyment of life.

The Court also indicated that those postings might also provide information regarding potential witnesses with knowledge as to the Plaintiff’s social activity, as well as to the Plaintiff’s claims of emotional distress and loss of enjoyment of life.

So, in conclusion, it really does depend on what the meaning of the word is, is, aswell as no matter what your post, it might become relevant in discovery.

All three of the social media decisions reflected upon herein, clearly established a requesting parties’ right, dependent upon a threshold factual predicate, being that the parties subject to disclosure, and their public postings, suggests the availability of relevant information entitling the requesting party to seek disclosure of private postings, with there being a secondary predicate, being that the information being sought is “relevant” to the claims being asserted by the party to disclosure, as well as obviously relevant to the party seeking disclosure.

Kevin L. Connors can be reached at: kconnors@connorslawllp.com

THE MOST IMPORTANT 2011/2012 RULINGS BY

PENNSYLVANIA COURTS ON WORKERS’ COMPENSATION ISSUES

By: Jeffrey D. Snyder

I.      Pennsylvania Supreme Court:

Supersedeas Fund reimbursement; medical expense: 

Dept. of Labor & Industry v. WCAB (Crawford), 23 A.3d 511 (Pa., 2011)

Supersedeas Fund reimbursement of medical expense will be based on the date of the presentation of an invoice for medical services (implied to have been presented in due course), not the date of service. This case further suggests that supersedeas may be granted as to past medical expense, following the reasoning ofMark v. WCAB (McCurdy), 894 A.2d 229 (Pa. Cmnwlth., 2006)which held that a retroactive payment made after a denial of supersedeas (there in satisfaction of a granted claim) is reimbursable by the Supersedeas Fund. Note that the Commonwealth Court has separately concluded that the Fund isnot liable for reimbursement of funds owed a petitioner by a third party (in that case an employer was exonerated in favor of another, joined, employer).GMS Mine Repair & Maintenance, Inc., No. 92 C. D. 2011 (Pa. Cmnwlth.)

Statutory Notice; sufficiency:

Gentex Corp. v. WCAB (Morack), 23 A. 3d 528 (Pa., 2011)

The time, place and manner notice requirements of the Act are to be liberally construed from the totality of the circumstances. The admitted deficiency in notice here was the description/diagnosis of the injury, omitted by that claimant from her voicemail to the employer – a voicemail which merely indicated “work-related problems”. The Court considered this notice to be sufficient under its perceived mandated liberal interpretation to satisfy section 312 of the Act, which per the Court requires a “fact intensive inquiry”.

Employer provided Uninsured/Underinsured (UM/UIM); coverage exclusion:

Heller v. Pennsylvania League of Cities & Municipalities, No. 16 WAP 2009 (Pa., 2011)

Employer provided UIM coverage may not exclude from that coverage an employee entitled to workers’ compensation benefits since employees in the course of employment are the expected UIM claimants under the policy and therefore that exclusion would render the UIM coverage illusory.

In a case decided at about the same time, the Court held that an employee’s personal UM coverage would not extend to a work vehicle if the personal policy has such an exclusion (a ‘regular use’ clause). Williams v. GEICO, 2011 WL 4953433 (Pa., 2011) 

Statutory employment; owner of personal property:

Six L’s Packing Co. v. WCAB (Williamson), 2012 Pa. LEXIS 1238

In a case with coverage overtones, the Supreme Court held that an owner of personal property (i.e., a trailer) can be a statutory employer as to an entity with which it contracts for work that is a regular or recurrent part of the declared statutory employer’s business. Control of premises is not required under this framework for a finding of statutory employer. It is important to note that Six L’s did not have the Uninsured Employer Guaranty Fund (UEGF) as a party in the case. Questions may arise as to whether the UEGF is primary to any statutory employer for liability purposes.

Specific loss; average weekly wage (AWW) for specific loss purposes is AWW at time of resolution into specific loss - even where claimant is working at that time for a new employer:

Lancaster General Hospital v. WCAB (Weber-Brown), No. 69 MAP 2010 (4/11)

The claimant sustained an eye injury while earning $8.00 an hour at the Hospital. She had episodic flare-ups which treated and resolved. After she began working for Heart Group - at $21.00 an hour – she experienced a flare-up which did not resolve. A corneal implant then failed, and the claimant was left with loss of vision constituting specific loss. The Court held that the date of a specific loss is when a doctor tells the patient that there has been a loss of use for all practical intents and purposes that is work related, even if that means using wages from a new employer for the calculation of AWW. The Court reasoned that Section 309 of the Act, while referring to ‘employers’, was not specifically referring to any particular employer. The Court also noted that wages earned from other employers are utilized in other contexts, for example in the calculation of seasonal employment AWW.

II.     Pennsylvania Commonwealth Court:

A.     Burden of proof cases:

Challenge to relatedness of medical expense involving recognized body part; employer’s obligation to file Petition to Review:

CVA, Inc. v. WCAB (Riley), No. 2658 C. D. 2010 (10/11)

This case involves TMR (magnetic) treatment disputed as unrelated to the work injury. The Court indicates that in such a circumstance the employer is obligated to file a Petition to Review (treatment was to same body part as listed on NCP).

On another point, the Court followed prior case law stating that where a case proceeds on medical report, the medical report(s) must be signed. [by the provider]. Montgomery Tank Lines v. WCAB (Humphries), 792 A.2d 6 (Pa. Cmnwlth., 2002)

Maximum Medical Improvement (MMI) for Impairment Rating Evaluation (IRE) purposes is date specific:

Westmoreland Regional Hospital v. WCAB (Pickford), No. 1188 C. D. 2009 (9/11)

An IRE rating is not invalidated (i.e., the MMI assessment is unaffected) by a claimant demonstrating a change in condition over time. There were no objective signs of the work injury, Reflex Sympathetic Dystrophy,at the time of the IRE. The lack of objective findings was consistent with a progress note of the treating physician for a visit the day before the IRE which also reflected no objective findings.

Job availability; required where a claimant is receiving a disability pension (rather than regular retirement) even where claimant is admittedly not actively seeking employment:

City of Pittsburgh v. WCAB (Marinack), No. 100 C. D. 2011 (1/12)

The claimant sustained orthopedic and psychological injuries and was released to work with restrictions some four years later. He had been turned down for a disability pension because he was discharged from employment for cause, and for the same reason was not eligible for a retirement pension. He did apply for two jobs, and there were several visits to the Office of Vocational Services. The Court ruled that without an admission of retirement or the receipt of a retirement pension, the employer had the burden of proof to establish available work, for example through an Earning Power Assessment. “Accordingly, it was employer’s burden to show that it assisted claimant in returning to the work force, and it did not present such evidence.”

Discharge from employment for cause; entitlement to wage loss benefits on a Claim Petition:

BJ’s Wholesale Club v. WCAB (Pearson), No. 2010 C. D. 2011 (3/12)

The employer had a substance abuse policy which allowed up to termination of employment for being under the influence of alcohol while working. The claimant, asserting a work related injury after a customer ran over her foot with a shopping cart, was provided with suitable work. Her Claim Petition sought wage loss benefits from the date of her termination from employment which followed a .108 blood alcohol result. She was not visibly intoxicated, but there was medical testimony accepted as credible that at .108 she was under the influence, mirroring the language contained in the employer’s substance abuse policy. The Court held that the discharge for cause barred wage loss benefits, with the burden of establishing a causal link between wage loss and the work injury on a Claim Petition belonging to the claimant.

Fatal Claim; burden of proof; not relaxed:

Werner v. WCAB (Greenleaf Service Corporation), No. 25 C. D. 2011 (4/11)

Here, the issue was course of employment for a decedent with a home office. The decedent was found unresponsive in his home office, after perhaps being injured falling outside his home where blood was found. The widow/claimant could not establish what the decedent was doing while injured. The record was unclear as to cause, location and time of the injury. The dissent argued that a home office should be treated the same as an employer’s premises and that minor deviation did not break course of employment.

Accidental fatal drug overdose; drugs prescribed for the work injury; Utilization Review:

J. D. Landscaping v. WCAB (Heffernan), No. 1866 C. D. 2010 (10/11)

Decedent accidentally overdosed on medication prescribed by the sister/doctor of his treating physician. Two days prior to the prescriptions by the sister, the same prescriptions by brother were found not reasonable or necessary by Utilization Review (UR). The employer argued that because the prescriptions were not reasonable or necessary – further arguing that the UR should extend to the sister – it should not be liable for the resulting effect – death – from ingesting the prescriptions. The Court defined the claimant’s burden as establishing that the decedent died as the result of medical treatment for the work injury. The Court cited to multiple cases standing for the proposition that the issue of causation is separate and distinct from the reasonableness and necessity of medical treatment. The Court explicitly considered the UR Determination irrelevant to the discussion.

Disfigurement award; unsightliness:

Walker v. WCAB (Health Consultants), No. 492 C. D. 2011 (2/12)

A claimant must establish that otherwise compensable scarring is unsightly as a prerequisite to an Award for disfigurement. Here, the claimant had scars on her nose, and the tip of her nose was crooked following two surgeries. The WCAB reversed the WCJ’s Award after viewing the scarring itself, finding that the crookedness was not unsightly. The Commonwealth Court no longer independently views disfigurement, and deferred to the viewing by the WCAB.

Withdrawal from the labor force; receipt of Social Security disability and ability to engage in substantial gainful activity:

Burks v. WCAB (City of Pittsburgh), No. 980 C. D. 2011 (11/11)

“We agree with employer that, because claimant sought a disability pension that was based on her inability to engage in substantial gainful activity and because claimant’s work injury did not prevent claimant from engaging in substantial gainful activity, claimant voluntarily withdrew from the workforce.”

In footnote, the Court commented that it would be pointless to require an employer to establish job availability where a claimant has removed himself from the workforce. It appears important to the Court’s reasoning that the work related condition resulted in a light category work release while the non-work related conditions translated into a sedentary category release, thus establishing, overall, some residual work capacity trumped by the claimant’s implied admission of withdraw based on seeking the disability pension.

Funded employment; treated no differently than any other employment for a claimant seeking to reinstate within three years of date of last payment of partial wage loss benefits:

Sladisky v. WCAB (Allegheny Ludlum Corp.), No 67 C. D. 2011 (11/11)

The claimant was receiving partial wage loss benefits in funded employment. The funding ended when the claimant received 500 weeks of those partial benefits. The Court held that the claimant’s burden of proof on his post 500 week Petition was to show a worsening of condition to the extent of establishing the inability to do the light/funded employment. The claimant retired, and as such could not work in the employer’s Union facility, hence the funded employment elsewhere. The claimant agreed that but for the lack of funding and layoff, he would have continued working at the funded employment, thus defeating his burden of proof.

For filings within 500 weeks, the burden is to show that the job is no longer

available. The Court: “Simply, there is nothing untoward about funded employment. It is a legitimate way to bring an injured claimant back to work and reduce his disability from total to partial.”

B.     Supersedeas Fund reimbursement case

Supersedeas Fund reimbursement; availablity on a Petition to Review to set aside a Notice of Compensation Payable based on concealed medical history:

Comcast Corporation v. WCAB (Jones), No. 2208 C. D. 2010 (11/11)

Overruling almost a quarter century of precedent, the Court held that Supersedeas Fund reimbursement is available in any case where a Notice of Compensation Payable (NCP) is set aside on the basis of a concealed medical history (and should probably be interpreted expansively) since the statutory language provides that reimbursement is available “in any case”. The Court rejected prior precedent that relied on reasoning suggesting that benefits are due and payable under a NCP until it is actually stricken, pointing out that benefits payable under an open but later stricken NCP in general are no different than benefits paid under an open NCP while asserting a change in status (i.e., termination, suspension or modification) and should be treated no differently for reimbursement purposes.

C.     Enforcement cases

General Release of employment claim; obtained in connection with the Compromise and Release of a Workers’ Compensation case:

Miller v. Tyco Electronics, Ltd., 2011 U. S. Dist. LEXIS 135037 (M.D. Pa. 2011)

The claimant signed a General Release in connection with the resolution of her workers; compensation case, releasing her employment claim being investigated by the Pennsylvania Human Relations Commission (PHRC). The PHRC later issued a no cause letter, after which the claimant filed suit. The Court held that the suit was not released since the Release was unclear as to whether it was releasing the PHRC investigation based claim or the resulting suit which followed the no cause letter. The Court considered the claimant’s limited education, limited time to consider the matter (15 minutes before the workers’ compensation hearing) and lack of separate consideration for the Release.

Resignation of employment; obtained in connection with Compromise and Release Agreement:

Lee v. Unemployment Compensation Board of Review, No. 2085 C. D. 2010 (1/11)

In short: “Finding these [discussed] cases persuasive, we adopt their rationale. Accordingly, we hold that when a claimant agrees to execute a resignation/release in order to settle a workers’ compensation claim, the claimant terminates her employment voluntarily without necessitous and compelling cause.”

D.     Limitation cases

Petition to Reinstate from a Suspension filed more than 500 weeks after suspension; time barred; statute of repose:

Palaschak v. WCAB (US Airways), No. 1699 C. D. 2010 (6/11)

The claimant was injured in 1992. Benefits were suspended on February 5, 1996. The claimant filed a Petition to Reinstate on April 21, 2006. The claimant argued that he was not time barred in seeking total benefits, in that he should have three years from the provision of modified work to file a claim for benefits. The employer argued that the time limit was 500 weeks form the date of last payment, and that argument prevailed. The Court relied on section 413 (a) of the Act. The Court emphasized that the applicable period was not 500 weeks plus three years, distinguishing the receipt of partial wage loss benefits which is then subject to a three year statute of limitation. The Court further noted that the 500 week limitation was a statute of repose, meaning that the right and the remedy are both extinguished when the limitation period expires. Two Judges dissented.

Another recent case notes that the expiration of a statute of repose deprives a Court of jurisdiction. (Cozzone v. WCAB (Pa. Municipal/East Goshen Township), No. 664 C. D. 2011 (1/12))

III.   Pennsylvania Superior Court:

Scope of privilege; communication with expert by counsel:

Barrick v. Holy Spirit Hospital, 1856 MDA 2009 (Pa. Super., 11/11)

Written communications between counsel and an expert containing posited mental impressions or legal analyses are protected by privilege and need not be produced in discovery.

Questions that might arise in the context of workers’ compensation claims can be directed to:

Kevin L. Connors at  kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).