November 01, 2007 - Pennsylvania Workers' Compensation Update - 3rd Quarter '07
Commonwealth Court Cases
Cinram Manufacturing, Inc. and PMA Group v. WCAB (Hill), No. 158 C.D. 2007 (Filed September 7, 2007).
Issues: Whether the WCJ erred in expanding description of injury to include Claimant's herniated lumbar disc where he did not file a Review Petition or a Claim Petition for that injury?
Whether the WCJ and the Board erred in failing to recognize that Claimant's herniated lumbar disc was diagnosed as early as 2000 and did not result from the March 2004 work injury?
Whether the WCJ and the Board improperly relied on the testimony of Claimant's medical expert, whose testimony was incompetent since he failed to recognize that the only accepted work injury was Claimant's lumbar strain/sprain?
Answers: No.
Analysis: Claimant suffered an injury in 2004 for which Employer issued an NCP, describing the injury as a "lumbar strain/sprain." Thereafter, Employer filed a Termination Petition alleging Claimant had recovered from his work injury. In support of its Petition, Employer presented evidence from a board certified neurologist and orthopedist. Claimant presented evidence, which the WCJ credited, that he sustained a herniated lumbar disc injury that was materially aggravated by the 2004 work injury. The WCJ amended the NCP accordingly, without a Review Petition filed by Claimant, and concluded that Employer failed to meet its burden of proof, denying Employer's Termination Petition.
The Commonwealth Court stated that the WCJ may amend the description of a claimant's work injury by modifying the NCP if it has been proven to be materially incorrect or if the claimant's disability status has changed. The Court held that the record contained sufficient competent evidence to support the WCJ's finding that the Claimant sustained a herniated lumbar disc as a result of the 2004 work injury and that the condition was a worsening of the underlying problems based on objective test results. The Court affirmed the WCJ's decision, thus allowing for the change in injury without a Review Petition.
Conclusion: This case is an important one since the Commonwealth Court has issued a decision that is arguably at odds with the Supreme Court's decision in Jeanes Hospital v. WCAB (Hass), 872 A.2d 159 (Pa. 2005), where the highest Court explained that it was Claimant's burden to file a Review Petition to expand the nature of the injury. In concluding that a WCJ may amend an NCP without the filing of a Review Petition, the Commonwealth Court has seemingly ignored Jeanes Hospital and practitioners must be cognizant of this inconsistency in the case law.
Linda Davis v. WCAB (Woolworth Corporation), No. 1873 C.D. 2006 (Filed July 5, 2007).
Issue: Whether a reason beyond the "mere passage of time" is required for the claimant to submit to a physical examination upon the request of the employer?
Answer: Citing to the decision In Linton v. WCAB (Amcast Industrial Corporation) 895 A.2d 677 (Pa.Cmwlth. 2006), the Commonwealth Court noted that the "mere passage of time" constituted sufficient grounds to compel a claimant to submit to a physical examination.
Analysis: Claimant suffered an injury to her wrist in November of 1990 and the Employer accepted liability for the injury via NCP in February of 1991. Claimant underwent an IME in 1997. Subsequently, in May of 1999, the WCAB approved a C&R Agreement for Claimant's indemnity benefits; however, the Employer was to remain responsible for the Claimant's reasonable and necessary medical expenses.
In March of 2004 the Employer filed a Petition to Compel a Physical Examination, contending that the Claimant's last physical examination had been in 1997. Claimant opposed the Petition, alleging "there was no reasonable basis for a medical examination because her prescriptions had been found reasonable and necessary." Without taking any evidence, the WCJ denied the Employer's request, concluding that the Employer had failed to "present a reasonable basis upon which to predicate an order compelling the Claimant to submit to the request of examination" as Employer did not allege a change in Claimant's condition.
Employer appealed. On appeal, the WCAB vacated and remanded the WCJ's decision, concluding that contrary to the WCJ's reasoning, it was irrelevant whether the Employer explicitly alleged a change in the Claimant's condition.
On remand, Employer's counsel stated on the record that Claimant's last physical examination had occurred seven years prior and the Employer's intention was to ascertain the Claimant's present condition. The WCJ again found the Employer had no reasonable basis for the examination other than the passage of time. Employer again appealed to the WCAB which reversed the WCJ's decision. The WCAB concluded the Employer was entitled to another physical examination when the last examination had occurred seven years prior. Claimant appealed to the Commonwealth Court.
The Commonwealth Court cited to Linton v. WCAB for the premise that a Petition for Physical Examination, per Section 314 of the Act, does not require an Employer to provide any reason for the request for physical examination and explicitly found the "mere passage of time" constituted grounds to compel a Claimant to submit to an IME.
Conclusion: This case confirms that an employer need not present a reason beyond the "mere passage of time" to support an entitlement to an independent medical examination.
Ruth Hough v. WCAB (AC & T Companies), No. 2198 C.D. 2006 (Filed July 17, 2007).
Issues: Whether a provider is required to seek a fee review before Claimant may proceed on a Penalty Petition alleging untimely payment of medical bills?
Whether an award of unreasonable contests attorney's fees is appropriate where the Claimant filed a Penalty Petition for unpaid medical bills, as opposed to the provider filing for a fee review?
Answers: The Act does not require that a provider seek a fee review before Claimant may proceed on a Penalty Petition alleging untimely payment of medical bills.
Unreasonable contest attorney's fees may be appropriate in this context.
Analysis: Claimant filed a Petition for Review of an Order of the WCAB that reversed an award of a penalty based on unpaid pharmacy bills and an award of unreasonable contest attorney's fees. The WCAB held that the WCJ lacked jurisdiction to determine whether penalties should be issued because Section 306 (f.1) (5) of the Act provides a fee review procedure that must be exhausted prior to filing a Penalty Petition.
Claimant received numerous prescriptions for RSD which developed after her work injury. The Provider submitted all outstanding balances, health insurance claim forms, and necessary medical reports to the Employer. The Employer failed to timely reimburse the Provider for Claimant's medications. In February 2005, Claimant filed a Penalty Petition alleging Employer failed to timely pay for the prescriptions related to the work injury. After two hearings, the WCJ issued a decision awarding a 50% penalty on $4,250.53 in outstanding medical bills. The WCJ also awarded a quantum meruit attorney's fee to the Claimant for unreasonable contest.
The Employer appealed the WCJ decision alleging that the Provider had a duty to file a fee review under Section 306 (f.1) (5) of the Act before any penalties could be assessed. The WCAB agreed with the Employer, noting that the Claimant received all of her prescriptions despite the Employers non-payment to the Provider. The WCAB specifically reasoned that it is up to the provider, not the claimant, to file a fee review application challenging timeliness of payment. Further, with regard to the reasonableness and necessity of the Claimant's medical services, the WCAB found that the WCJ lacked jurisdiction to determine the underlying payment dispute, because the Provider's remedy for late payment is a fee review. As a result, the WCAB reversed the WCJ's award.
In reversing the WCAB decision on the Penalty Petition, the Commonwealth Court held that the Board erred in determining that the WCJ lacked jurisdiction to address the Claimant's Penalty Petition. The Court cited Section 306 (f.1) (5) of the Act, governing fee reviews, but stated that the fee review provisions do not expressly bind all parties to the prescribed procedure. The Court added that the fee review provisions only address employers or insurers and providers. The fee review provision does not mention employees or claimants at all.
The Commonwealth Court further noted there was no language in the fee review provisions which limits an employee's right to pursue a Penalty Petition under Section 435 of the Act as a result of the late payment of medical bills. The Court added that because the Employer failed to challenge the Claimant's bills, via its own Petition, through a Utilization Review under Section 306 (f.1) (6), nothing preempted the WCJ's subject matter jurisdiction over the Penalty Petition. Accordingly, the Commonwealth Court held that Section 306 (f.1) (5) of the Act does not require the Provider to seek fee review before the Claimant may proceed on a Penalty Petition alleging untimely payment of medical bills.
With regard to the unreasonable contest attorney's fees, Claimant successfully argued to the Commonwealth Court that the Employer failed to establish a reasonable contest of the Penalty Petition and attorney's fees were awarded under Section 440 of the Act.
Conclusion: This case confirms that a claimant may seek an award for penalties even if the provider has not sought a fee review under the Act. Further, claimant's counsel, as in any penalty situation, may seek unreasonable contest attorney's fees.
Vaneman v. WCAB (Apollo Moving and Vanliner), 1711 C.D. 2006 (Filed August 6, 2007).
Issue: Whether an employer may seek an expert/vocational interview where claimant has returned to work at a modified wage rate and is receiving partial disability benefits?
Answer: A vocational interview may be used to assess a claimant's earning power even when claimant has returned to work with wage loss.
Analysis: Claimant began receiving workers' compensation benefits on March 28, 2003. On April 8, 2004, Employer filed a Petition to Compel Expert/Vocational Interview. By Order dated May 27, 2004, Claimant was directed to attend a vocational interview. On June 1, 2004, Claimant returned to work with Employer at a reduced wages and received partial disability benefits. Claimant filed a motion to dismiss the Interview Petition. The WCJ denied Claimant's motion based on his conclusion that pursuant to Section 314(a) of the Act, an employer may request that a claimant submit to a physical examination or expert interview at any time after an injury regardless of whether claimant has returned to work or whether employer has filed a subsequent petition. The Claimant appealed to the WCAB. The WCAB affirmed.
Claimant then appealed to the Commonwealth Court, arguing that in interpreting Sections 314(a) and 306(b)(2) of the Act together it was unreasonable to require a claimant who had returned to work, even at reduced wages and while receiving partial disability benefits, to attend a vocational interview.
In rejecting the appeal, the Court found the Employer has a right to request "at any time after an injury" that an Employee attend a physical examination or expert interview and the only requirement is that the request is reasonable.
Conclusion: This is a logical interpretation of the Act supporting the broad use of vocational interviews and physical examinations to assess claimant's earning power without having to institute legal proceedings.
Boleratz v. WCAB (Airgas, Inc.), 147 C.D. 2007 (Filed August 24, 2007)
Issue: Whether an employer may deny payment for prescribed massage therapy treatment rendered by an individual who is not a licensed health care provider?
Answer: An employer is not responsible for payment for treatment rendered by an individual who is not a licensed health care provider even though such treatment is prescribed by a licensed health care provider.
Analysis: Claimant sustained a work-related injury on March 24, 2000. Employer issued an NCP describing the injury as a low back strain. Claimant's benefits were suspended effective June 4, 2001. In January 2005, Claimant filed a Review Petition alleging the Employer failed to pay for therapeutic massage that had been prescribed by his primary care physician. Claimant had been treating with a chiropractor and felt those treatments were not helping him so he asked his primary care physician about the possibility of starting therapeutic massage. The primary physician wrote prescriptions for massage treatments. Claimant testified he had less pain and became more functional from the treatment and thus found it easier to do his job.
Employer stipulated that the treatment was casually related to the work injury however asserted it was not responsible for payment as the massage therapist was not a health care provider as defined in the Act. The WCJ found Claimant credible and also found that the massage therapist was not a health care provider as defined in the Act. However, the WCJ decided that since a health care provider had prescribed the treatment, Employer was nevertheless responsible for the bills. Employer appealed and the WCAB reversed, concluding that medical services must be rendered by a duly licensed medical practitioner in order to be reimbursable under the Act.
Claimant appealed the Board's decision.
In rejecting Claimant's appeal, the Court found that a strict interpretation of the Act requires that medical services be rendered by a duly licensed medical practitioner, regardless of how those services are prescribed. Therefore, the services of a massage therapist, who is not licensed or otherwise authorized by the Commonwealth to provide health care services, are not reimbursable under the Act.
Conclusion: This case addresses the clear mandate that treatment must be performed by a duly licensed medical practitioner in order to be paid by Employer. We should all look at medical treatment carefully to ensure that it is being provided by a licensed medical practitioner.
Bureau of Workers' Compensation v. WCAB (US Food Services), 2011 C.D. 2006 (Filed August 22, 2007
Issue: Whether entering into a compromise & release agreement resolving all past, present and future liability renders a decision on a pending termination petition moot, thereby prohibiting Supersedeas Fund reimbursement?
Answer: Where a compromise and release agreement has been approved that resolves all past, present and future liability, an Employer cannot use a subsequent favorable termination petition ruling for Supersedeas Fund reimbursement.
Analysis: Claimant was injured while in the course of his employment with Employer on August 30, 2001 for which Claimant received weekly compensation benefits. Employer filed a Termination Petition averring that Claimant had fully recovered as of January 7, 2003 and requesting supersedeas pending the litigation. The WCJ denied supersedeas on December 21, 2004.
While the Termination Petition was pending the parties entered into a Compromise and Release Agreement to "fully and completely" satisfy employer/carrier's liability which was approved via Order of the WCJ. The Employer left the Termination Petition open and the WCJ granted the Employer's Petition. Employer then filed an application for Supersedeas Fund reimbursement from the date of the filing of the Termination Petition up to the date of the date of the order granting the termination. The Bureau contested Employer's supersedeas fund entitlement, but a second WCJ granted Employer's Application for supersedeas reimbursement.
The WCAB affirmed the grant of Employer's application and the Bureau appealed arguing that the terms of the Compromise and Release Agreement rendered the Termination Petition moot.
In reversing the WCAB, the Court found Employer did not meet the requirements for Supersedeas Fund reimbursement as the Compromise and Release, not the Termination, served as the final resolution of this claim. Because the Compromise and Release Agreement was a full and complete settlement of the claim, there was no final outcome determining that compensation was not, in fact, payable for Supersedeas Fund reimbursement. Unlike the cases cited by Employer, there was nothing in the Compromise and Release language that provided for the Termination Petition to remain open.
Conclusion: If parties entering into a compromise and release agreement intend to preserve possible future litigation issues or petitions, those must be documented in the agreement. Broad language indicating settlement of all past, present and future rights will render everything else moot and must be avoided if future relief is sought. We have successfully preserved our clients' rights for supersedeas fund reimbursement in this context by using language which specifically states that the compromise and release only applies to future benefits and the litigation regarding the existing petition is not affected by the compromise and release of future benefits.