State News

John Lance, a police officer for the City of Camden, New Jersey, was injured on May 10, 2004 in a work-related motor vehicle accident.  He received medical and temporary disability benefits in workers’ compensation.  However, he alleged that his workers’ compensation benefits were improperly terminated in October 2005. 

            On June 12, 2004, about a month later, Lance was directed to appear at police headquarters for a drug test.  He appeared and was given documents pertaining to the drug test.  He stated that he was unable to understand the documents and requested assistance.  When told he had to sign the documents, he refused and the test session was terminated.  The City then served disciplinary charges against Lance seeking his termination for failure to undergo the City’s drug test.

            The City conducted hearings on the disciplinary charges in November 2005 and January 2006. Lance claimed that he was not able to defend himself at the hearing because of cognitive impairments which were exacerbated by his inability to obtain medical treatment after the termination of his workers’ compensation benefits. 

            On January 23, 2006, the hearing officer issued a report recommending termination of Lance’s employment.  The City proceeded to discharge Lance. Around the same time, hearings continued in the Division of Workers’ Compensation, and Lance prevailed in his claim for continued temporary and medical benefits.  Ultimately, the City paid $189,892 in temporary disability benefits and $65,220 in medical benefits. Plaintiff also received an accidental disability pension, which would pay him two thirds of his salary free of federal taxes, and free of state taxes until age 65.            

Following his termination, Lance sued and claimed that the City violated his right against unreasonable searches and seizures by making him submit to a drug test.  He further claimed that the City retaliated against him for successfully obtaining workers’ compensation benefits and retaliated against him by delaying payment of his temporary disability benefits.  The trial court dismissed all of plaintiff’s claims and Lance appealed.

The Appellate Court rejected plaintiff’s employment discrimination claim:

While plaintiff alleged that he did not understand ‘what was going on’ when he appeared for the test, he provided no affidavit or certification supporting that allegation.  A police officer who unjustifiably refuses to comply with an order requiring that he undergo a drug test cannot be said to be performing his job in a manner that met the employer’s reasonable expectations.  Plaintiff provided no evidence showing that his refusal to submit to the test was medically justified.

As for the claim for retaliation due to the filing of a workers’ compensation claim, the Court acknowledged that there is a cause of action in New Jersey for retaliatory discharge for seeking workers’ compensation benefits.  In this case Lance contended that the City unlawfully retaliated against him for seeking workers’ compensation benefits by delaying payment of his temporary disability benefits. “The trial court correctly ruled that this claim should be pursued in the compensation case pending before the Division of Workers’ Compensation, in which plaintiff was seeking additional disability benefits.”

            Regarding plaintiff’s charge that he was wrongfully terminated for successfully obtaining workers’ compensation benefits, the court said that Lance failed to offer any proof on this count.  “Plaintiff presented no evidence from which a fact-finder could conclude that the City ordered the test or discharged plaintiff because he obtained workers’ compensation benefits.”

            This case can be found at Lance v. City of Camden, A-3157-11T3 (App. Div. April 18, 2013).

It is certainly not for lack of trying that plaintiffs remain largely unsuccessful in opening the door to intentional harm claims in New Jersey.  The door has remained closed in the past 10 years on intentional harm claims and all but locked, including the most recent challenge in Fendt v. Adam L. Abrahams, et. al., A-2333-11T1 (App. Div. April 9, 2013). 

            Michael Fendt worked in various capacities for Jeffrey Valvano, who operated JV Paving as a sole proprietorship.  He would fix equipment, drive machinery, and direct traffic around construction sites.  On May 19, 2008, Fendt was working as a “flagger,” stopping traffic on a busy county road so that Valvano could move a backhoe in and out of a driveway.  He stood in the center of the road with only a hand-held stop sign.  The company had fluorescent jackets, warning signs, cones, and flags available, but Fendt was not provided with any of this warning devices.  Valvano did not direct Fendt to utilize the warning devices.

            On the date in question, Fendt was doing his work, holding a stop sign, when the defendant Adam Abrahams drove into Fendt, causing serious injuries.  Abrahams said that he had taken his eye off the road to look at his radio.  He later stated that if there had been warning cones in the road, he would have driven more slowly.  The police issued various citations to the company for not having proper construction warning signs and not complying with signage requirements.

            Fendt sued the driver of the car, its owner and his own employer.  His expert opined that the employer “knowingly exposed (Fendt) to a risk that was substantially or virtually certain to result in harm.”  The expert cited the failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.

            The trial court dismissed the case, and the Appellate Division affirmed.  The court said that “intentional harm” encompassed more than a subjective intention to injure.  Mere knowledge and appreciation of a risk of harm to the employee does not equate to intent.  New Jersey courts have followed the rule in Millison v. E.I. Du Pont de Nemours & Co., 101N.J. 161 (1985), namely that there must be a showing of “substantial certainty.” First, the employee must knowingly expose the employee to a substantial certainly of injury.  Second, the resulting injury must not be a “fact of life of industrial employment.”

            The court also cited the recent Supreme Court decision in Van Dunk v. Reckson Associates Realty Corp,. 210N.J. 449 (2012) where plaintiff’s suit for intentional harm failed even though the workplace accident produced an OSHA citation for a “willful” violation of OSHA safety rules.  The Court said that even a finding of a willful violation under OSHA does not alone suffice to prove whether the employer committed an intentional wrong. 

The Appellate Division found that this case had some parallels to Van Dunk, given the OSHA citations, fines,  and failure to use safety devices. It citedVan Dunk and a string of cases where plaintiff made out strong cases for intentional harm 10 years ago.   “Similar toVan Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such asMillison, Laidlow, Mull, and Crippen.  In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.”

On April 8, 2004, Katherine Williams, a customer service representative for Bank of America, injured her back, arm and neck when a chair was pulled out from under her. Williams sought medical treatment, particularly for headaches and neck pain, and continued to work for Bank of America until she was laid off in 2008. In the Fall of 2009, her neurologist determined that she was unable to work in any capacity due to cervical disc disease and intractable post-traumatic headaches. At a subsequent hearing before the Deputy Commissioner, Williams was awarded temporary total disability benefits and ongoing medical treatment.

Defendants appealed to the Full Commission on November 15, 2011 and on December 8, 2011, the transcript of the hearing was transmitted electronically to the parties by the Industrial Commission. After receiving no further filings from Defendants, Williams filed a Motion to dismiss Defendants’ appeal on January 16, 2012 for failure to timely file a Form 44 Application for Review and a brief. On January 24, 2012, Defendants responded to Plaintiff’s Motion and also filed their Form 44 and brief. The Full Commission denied Williams’ Motion to Dismiss the appeal, but sanctioned Defendants by waiving their opportunity for oral argument. The Full Commission subsequently entered an Opinion and Award affirming the Deputy Commissioner’s decision with minor modifications. Both parties appealed.

On April 2, 2013, in Williams v. Bank of America, the Court of Appeals held that the Full Commission did not err in allowing Defendants’ appeal to go forward despite their failure to strictly comply with the time limitations set for filing a Form 44 and brief in Industrial Commission Rule 701. The Court noted that although Industrial Commission Rule 801, which allows the Commission to waive its rules in the interest of justice, does not allow the Commission to waive total noncompliance with Rule 701, in this instance, the Commission’s decision to waive strict compliance with Rule 701 was not abuse of discretion.

The Court next addressed the Full Commission’s conclusion that Williams’ headaches were causally related to her work injury and that she was disabled as a result. The Court rejected Defendants’ contention that the opinion of Williams’ treating neurologist, that her headaches were causally related to her work accident, was speculative and that he failed to rule out other potential causes of the headaches. The Court noted that the neurologist’s affidavit and deposition testimony established that he did consider other possible causes of Williams’ headaches and, ultimately, testified to a reasonable degree of medical certainty that her work related injury caused her headaches, which was sufficient to support the Commission’s determination.

Defendants also contended that Williams failed to meet her burden of proving an ongoing disability, particularly when she was able to continue working after her accident for more than four years, an assertion the Court rejected. It noted that Williams’ testimony regarding the debilitating effect of her post-traumatic headaches was sufficient, in itself, to establish her disability. However, Williams also offered the testimony of her neurologist that her post-traumatic headaches prevented her from being a "reliable employee" due to the fact that she could not maintain "consistent performance." In addition, her vocational expert testified that it would be futile for Williams to seek employment because he did not believe she could maintain it. As a result, the Court upheld the Full Commission’s determination that Plaintiff’s headaches were related to her on-the-job injury and that she continued to be disabled as a result.

Williams is another reminder that the Full Commission may rely on an injured worker’s own testimony regarding their incapacity for work and that such testimony, by itself, can be sufficient to meet the injured worker’s burden of proof.

Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act (H.R. 1982) into the House of Representatives May 15, 2013.

The bill establishes clear and consistent standards for the administrative process which provides for reasonable protection of the injured worker and Medicare. Supporters indicate that it will benefit injured workers, employers and insurers by creating certainty as well as allowing the settlement process to move forward without the delays that parties are currently presented with.

The legislation is supported by the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC- Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

The bill will likely be referred to the Ways & Means Committee for consideration.

___________________________________

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

Charles Coffey v. Mid Seven Transportation Company and Great West Casualty Company, Supreme Court of Iowa No. 11-1106

 The claimant, Charles Coffey, worked for the Defendant employer, Mid Seven Transportation Company, as an over the road trucker. On February 8, 1994, the Claimant fell on an icy parking lot while working in Missouri. His left leg and foot were then run over by an eighteen wheel tractor-trailer. He sustained a medial malleolar fracture and suffered from compartment syndrome in the leg.

The Claimant was motivated to begin working again, but was unable to return to full time employment. He was placed at maximum medical improvement in August 1994 following several surgeries. The Claimant also suffers from post polio syndrome which causes whole body fatigue, weakness, pain and cramping in the legs, pelvis and lower back.

The Claimant had been found by physicians to be incapable of returning to work as a truck driver. He did work part time as a substitute school bus driver in 1996, 1997 and 1998, however the most he ever earned was $7,800 per year, and he eventually terminated that employment due to complications with his right shoulder. He also was awarded social security disability benefits starting in December 1997. He receives approximately $1,192 per month.

Prior to filing his workers’ compensation claim, the Claimant settled his third party claim for $275,000 on December 22, 1997. After attorneys fees and reimbursement to the employer/insurer, the Claimant pocketed $134,786.95. The Claimant instituted his workers’ compensation action in January of 1998 alleging injury to the back, leg and head as well as PPS. The employer admitted the work injury occurred on the date set forth in the petition.

Prior to arbitration, the employer had made workers’ compensation payments to the Claimant of $70,783.19 which included payment for healing period, permanent partial disability, medical expenses and mileage. Also before arbitration, the Claimant and his wife entered into another third party settlement for $100,000. His wife was allocated $60,000 of the settlement for loss of consortium. The Claimant received $24,634.14 after payment of legal fees.

At arbitration on September 5, 2002, the deputy found the Claimant was entitled to workers’ compensation benefits and that his injury caused his PPS, which resulted in a 75% industrial disability. However, it was found that the Claimant’s pulmonary, cardiac, vascular, thyroid problems, bladder cancer, spinal and shoulder issues were not work related.

The employer was ordered to pay 375 weeks of permanent partial disability benefitsat the benefit rate of $472.18 which had been being underpaid at the rate of $392.33. The employer was ordered to satisfy the underpayment by paying $79.85 per week. The employer was also ordered to pay certain disputed medical expenses, including the cost of travel for PPS care.

The decision of the deputy was affirmed on intra-agency appeal, as well as on appeal to the district court and court of appeals. Following the denial of further review, counsel for the employer wrote to the Claimant’s attorney stating that the Claimant’s third party recoveries covered the Claimant’s workers’ compensation claim, but asked whether the Claimant’s attorney claimed any further amounts were due on the award. The Claimant’s attorney responded indicating at lease one third of the amount awarded was due.

The employer’s attorney then responded that they had calculated the amount owed under the agency’s decision to be $154,719.26, however it appears this did not take into account mileage, medical payments or interested owed. It was stated that because the third party statements exceeded the calculated amount, the employer contended all they owed was a payment of the attorney fees for the claimant’s attorney in establishing their credit. This amount was deemed to be $51,573.09, which was paid to the Claimant and his attorney. Claimant’s attorney corresponded back indicating that he believed Claimant was owed more than the calculation done by the employer’s attorney.

The Claimant then filed a review reopening petition on April 2, 2008 seeking additional disability benefits, reimbursement for medical expenses and an order requiring the employer to pay the amount still due under the agency decision as well as a calculation of the credit to which they were owed. On hearing, the deputy found the claim for additional benefits was untimely under the statute of limitations. It was determined the date that the statute began to run was the date of the intra-agency appeal decision, March 23, 2004. The deputy however did award the payment of the medical expenses sought by Claimant, but the deputy did not determine the amount still due under the award, if any, or the amount of credit to which the employer was entitled. The deputy found the payment of $51,573.09 made by the employer was not intended as benefits but rather as a reimbursement of the Claimant’s attorneys in achieving third party settlements.

On intra agency appeal, the Commissioner upheld the finding that the claim for benefits was untimely. However, he reversed the finding that the employer should pay the medical expenses sought by the Claimant as he did not believe they were proved to be related to the work injury. He also affirmed the decision of the deputy that no order was need compelling the employer to make payment as the Claimant could seek a judgment. The decision was then appealed to and affirmed by the district court.

On appeal to the Supreme Court, the Court stated that in regards to the issue of the statute of limitations, such would be reviewed for errors at law as the legislature did not clearly vest the Workers’ Compensation Commissioner with the authority to interpret the statute. The issue as to whether the medical expenses were related to the Claimant’s work injury would be reviewed under the substantial evidence standard.

The Court took up the issue of the statute of limitations and indicated that there was no disagreement between the parties that the review reopening petition must be filed within three years from the date of the last payment of weekly benefits. The employer argued that the statute began to run from the date the commissioner issued the arbitration award, whereas the Claimant challenged the argument on two grounds; 1) that the payment of $51,573.09 constituted payment of weekly benefits, and 2) the statute did not begin to run until the Court denied further review of the arbitration decision.

The Court determined that the commissioner did not determine whether any further benefits were owed under the award, and as such, it could not be determined by the court whether or not the credit of the third party settlements covered all the weekly benefits under the award. The Court held that the Commissioner must first decided whether any further benefits were owed, as the Claimant contended, before determining what the last date of payment of weekly benefits was. The Court then remanded the issue to the Commissioner for a determination whether benefits were still owed. And following the decision of that issue, the Commissioner must then determine whether the last installment of weekly benefits has been paid and on what date if that has occurred.

The Court went on to state that if it is determined that the employer paid all weekly benefits prior to the arbitration award via the credit afforded to it by the third party settlements, the date the statute began to run must still be determined. The Court rejected the Claimant’s argument that the payment of $51,573.09 was payment of weekly benefits. This was based on the logic that 1) the obligation to pay weekly benefits would have already been completely fulfilled prior to the payment, and 2) the Code makes clear that the payment of attorneys fees to the injured party’s attorney for amounts recovered in third party settlements is not considered payment of weekly benefits.

The Court then held that the statute is not tolled pending final appellate review of the arbitration award. Rather, in a situation where the obligation to pay benefits is satisfied before the entering of an arbitration award, the statute begins to run when the award is entered.

Finally, the Court took up the issue of the payment of medical expenses and determined that based upon the review of the record, substantial evidence supported the Commissioner’s finding that the Claimant had failed to prove by a preponderance of the evidence that the sought after medical expenses were related to the work injury. The Court then remanded the case as to the statute of limitations issue, but affirmed the finding in regards to payment of medical expenses.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Brenda Hernandez f/k/a Brenda Flores v. Osceola Foods, Court of Appeals of Iowa, No. 3-269/12-1658

The Claimant was employed at Osceola Foods from January 2003 to April 2008. On May 7, 2004 she injured her back while at work. A settlement agreement was entered into by the parties on May 22, 2006. She was awarded permanent partial disability for a fifteen percent loss of earning capacity. At the time she had a permanent thirty pound lifting restriction.

She continued working for the employer for almost two years after the settlement, at which point, she was terminated dishonesty as she had improperly filled out an employment application for her husband and intentionally misrepresented his employment history. The next day, the Claimant went to a temp staffing agency and filled out an application for Farley’s and Sathers Candy Company, acknowledging she was able to perform all duties as set forth in the job description. This included lifting up to fifty pounds. She was hired through the agency and eventually hired permanently by Farley’s on September 15, 2008. On January 9, 2009, Farley’s learned of her lifting restriction and terminated the claimant’s employment for misrepresenting her ability to do the job.

Following this, she filed a review-reopening petition based upon an allegedly greater loss of earning capacity. The deputy commissioner found that the Claimant did have a change in actual earning but it was due to her dishonest conduct resulting in the loss of her job rather than the work injury. This finding was affirmed by both the commissioner and the district court. The Claimant then appealed to the Court of Appeals.

On appeal, the Court stated the correct standard of review was for errors at law, but also noted that if substantial evidence supported the factual findings of the commissioner these would be upheld. The Court went on to state that while the Claimant attempted to frame the issue as an error at law, the Court agreed with the district court that the “crux of her argument is whether she proved by a preponderance of the evidence there has been a compensable change in her economic circumstances.” The review was thus limited to whether the conclusion reached by the agency was supported substantial evidence.

The Court went on to find that the Claimant’s initial job loss was due to her dishonesty rather than any physical impairment. Her subsequent job loss at Farley’s was also found to be due to her dishonesty rather than any lifting restriction she had. She had apparently been told by Farley’s that if she had been honest about her restriction, she would not have been offered the job. The Court found however that the agency was correct in determining that any loss of access to the labor market she now has is no different than the loss of access she had when the agreement for settlement was approved. The Court ultimately found that no facts about the Claimant’s employability attributable to her injury have changed since her settlement. Substantial evidence supported the findings of the agency and the Court affirmed the decision.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Mary Frances Powe sustained a compensable injury to her low back and left hip in 2001 for which she received weekly indemnity benefits and vocational rehabilitation provided by Defendants. In 2005, those benefits were suspended due to non-compliance with vocational rehabilitation, a decision which was affirmed by the Full Commission and Court of Appeals (Powe I). Defendants continued to provide vocational rehabilitation through February 22, 2008, when the vocational case manager terminated those services. Although Powe attended vocational meetings, she consistently failed to follow through on the case manager’s suggestions and recommendations.

At a hearing in 2009, the Deputy Commissioner determined that Powe continued to be non-compliant with vocational rehabilitation, but held that since Defendants had stopped offering vocational rehabilitation, Powe was entitled to reinstatement of her indemnity benefits. On appeal, the Full Commission concluded that Powe had not "fully complied" with vocational rehabilitation, but affirmed the Deputy Commissioner’s Order to reinstate Powe’s indemnity benefits as of the date vocational services ceased. Both parties appealed and the Court of Appeals remanded the case to the Full Commission for further findings regarding whether Powe was substantially compliant, and not significantly interfering with, the vocational case manager’s efforts to assist her in returning to suitable employment (Powe II). (See Risk Alert Vol. 13, No. 9, Oct. 2011) The Court also directed the Full Commission to address in more detail why vocational rehabilitation was not being provided.

On remand, the Full Commission found that Powe misrepresented her true physical capacity to the vocational case manager; her attendance at vocational meetings, alone, was insufficient to constitute substantial compliance with vocational rehabilitation; Powe failed to make a genuine effort to locate employment and comply with vocational rehabilitation; she interfered with her case manager’s efforts to assist her and willfully refused vocational rehabilitation through February 22, 2008; the cessation of vocational rehabilitation was not entirely the result of Powe’s failure to comply; Powe would have benefitted from continued vocational rehabilitation which Defendants should have provided; and Powe’s failure to comply with vocational rehabilitation ceased when those services stopped in February 2008. As a result, the Full Commission reinstated Powe’s indemnity benefits as of that date. Both parties appealed.

On April 2, 2013 in Powe v. Centerpoint Human Services (Powe III), the Court of Appeals affirmed in part the Full Commission’s decision and again remanded for further findings of fact on the issue of Powe’s disability. The Court noted that while the Commission is not required to make findings as to each fact presented by the evidence, it must make specific findings as to crucial facts on which the injured worker’s right to compensation depends. Because Powe’s disability affected her right to compensation, the Court held that the Commission was required to make specific findings as to both the existence and extent of her disability.

The Court also held the Full Commission did not err in reinstating Powe’s benefits as of February 22, 2008. It is well established in North Carolina that an appellate court is bound by the Full Commission’s findings of fact so long as there is any credible evidence to support them, even when the record contains evidence to the contrary and even though the Court disagrees with the Commission’s findings. Therefore, although the evidence Powe presented was minimal, at best, it was competent to support the Commission’s finding that vocational rehabilitation was ended prematurely and due, at least in part, to factors other than Powe’s noncompliance.

Risk Handling Hint:

Powe III cautions risk managers to carefully consider ending vocational rehabilitation efforts when the injured worker retains some wage earning capacity and the cessation of services is, even in part, for reasons other than the injured worker’s noncompliance.

May 2013

Tennessee Governor Signs Workers’ Compensation Reform Bill

On April 29, 2013, Governor Bill Haslam signed Senate Bill 200 – House Bill 0194.  Self-titled as “The Workers’ Compensation Reform Act of 2013,” this legislation brings about the most sweeping changes of Tennessee Workers’ Compensation Law since it was first codified in 1919.

The bill has been enacted as Tennessee Public Chapter 289.  Please see our posting of April 26, 2013, for more detail as to the specific elements of this reform. 

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.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

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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.