February 05, 2008 - Pennsylvania Workers' Compensation Update - 4th Quarter '07
Supreme Court Cases
J.G. Furniture v. WCAB (Kneller), No. 149 MAP 2005, No. 150 MAP 2005 (Filed December 27, 2007)
Issues: Whether an amputation, resulting in Specific Loss benefits, performed after the issuance of a final receipt is more akin to a "recurrence" or an "aggravation" for purposes of determining Claimant's AWW?
Answer: Aggravation.
Analysis: Claimant suffered a work injury in 1976 to his left index finger. He received TTD benefits through 1978, at which time the parties executed a final receipt with respect to the injury. Claimant went back to work. In 1996, during extensive litigation of an unrelated subsequent Petition, Employer filed a Petition for Suspension/Review of Benefits, alleging Claimant suffered a specific loss of the entire finger. Indeed, the finger had been amputated in 1984, while Employer was insured through a subsequent carrier.
Conclusion: Our Supreme Court affirmed the Commonwealth Court, opining that "it is difficult to think of an amputation as less than an ‘aggravation' of the prior injury. The amputation in 1984 was not a mere recurrence of the prior temporary injury for which claimant signed a final receipt six years previously, the efficacy of which the insurer defended for another dozen years. Having an injured finger that hurts in winter is not pleasant, but to lose the finger entirely is, at the very least, an ‘aggravation'." With that, the Court found Employer's 1984 carrier responsible for benefits based on Claimant's 1984 AWW. This is an interesting case and in the event that you have a situation where claimant had an initial injury that ultimately leads to an amputation, the question of subsequent coverage must be explored.
Commonwealth Court Cases
Elberson v. WCAB (Elwyn, Inc.), No. 2408 C. D. 2006, (Filed September 10, 2007; Reported November 7, 2007)
Issue: Whether a medical opinion that a claimant had fully recovered from the work-related injury is a sufficient basis on which to terminate benefits where the expert rendered the opinion without knowing what was the precise nature of the work injury?
Answer: No. The testimony of Employer's medical expert is insufficient to support a termination of benefits where the expert is not aware of the nature of the work injury.
Analysis: Employer issued an NCP defining claimant's work injury as HNP at L4-5. Thereafter, Employer filed a Termination Petition alleging a full recovery from the work-related injury.
To establish full recovery, Employer relied upon the opinion and testimony of Howard Steel, M.D. Dr. Steel testified that he observed excellent range of motion and normal reflexes. He also noted that claimant gave indications of pain which were inconsistent. He additionally testified that his review of two separate MRI studies allowed him to conclude that claimant had bulging disks which pre-existed the work injury and, moreover, that a herniated disk at L5 - S1 was better.
Based on his assessment of her condition, Dr. Steel opined, that claimant had fully recovered from her work injury because no evidence suggested a herniated disk. He released her to full duty, but did place lifting restrictions upon her, which he attributed to claimant's pre-existing conditions.
In opposition to the Termination Petition, claimant presented her own medical expert, who concluded that she had not fully recovered, was unable to return to her pre-injury duties and was restricted to lifting no greater than ten pounds.
Finding Dr. Steel's testimony to be credible, the WCJ concluded the claimant had fully recovered and could return to work at full-duty with no restrictions related to that injury.
Claimant appealed to the Board, which found that even though Dr. Steel never addressed the work-related injury, he clearly stated that his examination revealed no evidence of an orthopedic or neurological disease or herniated disk. The Board affirmed.
Claimant then appealed to the Commonwealth Court, maintaining that without unequivocally establishing that she had recovered from the designated injury, Employer was unable to meet its burden to terminate benefits. Employer countered by stating that although Dr. Steel testified that he believed claimant's work injury was in the nature of a sprain or strain, he clearly stated that there was no clinical evidence to support any "abnormality" in claimant's spine, thus sufficient to support his opinion of a full recovery.
The Commonwealth Court concluded that Dr. Steel never recognized that claimant suffered from the HNP at L4-5 as he thought the work injury was a sprain or strain of her back. Even though he testified that there was no clinical evidence of any "abnormality" in claimant's spine, without recognizing the specific work-related injury, Dr. Steel's opinion was deemed insufficient to support that she had fully recovered from the specific work injury. Accordingly, because the WCJ and the Board improperly relied on Dr. Steel's opinion in granting Employer's Termination Petition, the Court reversed the WCJ's Order.
Conclusion: It is incumbent upon the entity scheduling the IME, whether it is the attorney, claims representative, or private vendor, to advise the IME doctor of the specific nature of the accepted injury. If the IME doctor does not specifically answer the question of the status of the work injury, a supplemental report should be obtained. Ultimately, the attorney must confirm a full recovery of the accepted injury at the deposition.
Morella v WCAB (Mayfield Foundry, Inc., and Laundry Owners Mutual Liability), No. 141 C.D. 2007, (Filed November 5, 2007).
Issue: Whether a finding by the WCJ that a claimant was only capable of working twenty hours per week was inconsistent with the WCJ's acceptance of Employer's medical expert's testimony that Claimant could return to full-time employment?
Answer: Yes. Based on the facts as found by the WCJ, the Claimant could work full-time and it was improper for the WCJ to only modify benefits based on a twenty hour work week.
Analysis: Claimant, employed as a machinist, sustained a work-related injury to his lower back. Claimant received benefits consistent with an average weekly wage of $441.98. Thereafter, Employer filed a Modification Petition based on a medical opinion releasing claimant to full-time, light-duty employment and an earning power assessment finding open and available positions that were vocationally suitable and within claimant's medical restrictions. The earning power assessment established an earning capacity of $303.89.
In opposition to the Modification Petition, in addition to his own testimony, claimant presented the testimony of his treating pain management physician, who indicated that claimant was incapable of performing light-duty work and the jobs listed in the earning power assessment were not suitable for him.
Finding the medical opinion of Employer's expert more credible than the medical opinion of claimant's expert, the WCJ found that claimant was capable of work and granted the Modification Petition. The WCJ also found, however, that claimant exhibited credible issues with pain, but tended to exaggerate his symptoms and noted "significant doubts regarding the claimant's zeal in presenting himself as a likely employee." The WCJ concluded it would be difficult for claimant to return to any kind of employment on a full-time basis, ultimately determining that claimant was capable of only part-time employment, giving him an earning power of $151.95.
Employer appealed to the Board, which found that because the WCJ found the testimony that claimant could return to full-time light-duty work employment more credible than the contrary opinion of claimant's expert, the WCJ's finding that claimant was only capable of working twenty hours per week was inconsistent with that finding and not supported by substantial evidence. Thus, the Board modified the WCJ's Decision to reflect claimant's earning power of $303.89 per week based on his ability to perform full-time, light-duty work.
On appeal, the Commonwealth Court affirmed. In so doing, the Court stressed that the WCJ accepted the opinion that claimant could engage in full-time, light-duty employment. Moreover, there was no testimony in the record even suggesting that part-time work was necessary as part of some work hardening regimen - the only testimony being that claimant could work full-time or that he could not work at all. Based on the facts as found by the WCJ, the only substantial evidence was that claimant could work full-time and it was within the Board's authority to make the WCJ's findings conform to the award.
Conclusion: The only evidence of record in regard to claimant's ability to work was either that claimant could work full-time or that he could not work at all. The WCJ was required to accept one or the other and to render a decision consistent with that finding. Having accepted as true the opinion that claimant was capable of full-time work, the WCJ was compelled to issue such a finding with regard to earning capacity.
Seven Stars Farm, Inc. v. W.C.A.B. (Griffiths), No. 990 C.D. 2007, (Filed November 8, 2007)
Issue: Whether penalties were appropriate where the bills were not submitted on the proper Medicare-approved form (HCFA Form) or forms prescribed by the Department of Labor and Industry and failed to disclose relevant dates of Service, but where in the past the carrier had paid at least one bill for similar service which had not been submitted on the proper form?
Answer: Yes. Failure to submit the proper HCFA Form does not excuse penalties for the failure to pay bills where the carrier previously did not require technical compliance for the payment of medical services.
Analysis: Claimant's catastrophic work injury rendered him a quadriplegic in 2000. In 2003, he filed a Penalty Petition because his bills for home health aide services and other supplies and prescriptions were not being paid.
Employer's bookkeeper testified that she forwarded all such bills to the carrier, but the carrier denied payment because the bills were not submitted on proper forms and failed to disclose dates of service and other relevant information. The WCJ granted the Penalty Petition, finding that the carrier had all the information necessary to make the payments for the services of the home health aide except that the bills were not presented on proper forms.
After the WCAB affirmed, the employer appealed to the Commonwealth Court. The employer contended that while it was clearly its burden to pay reasonable and necessary medical expenses, it was the Claimant's burden to establish that bills were submitted on the proper forms. Employer argued that since the Claimant failed to provide this necessary information, the WCAB's decision that affirmed the penalty should be reversed.
The Commonwealth Court affirmed, finding that the employer had all necessary information to determine that the bills were properly payable. In fact, it found important that the employer had previously paid bills which were not in technical compliance with the HCFA reporting obligations.
Conclusion: While the Act requires providers to submit bills for service and records in accordance with the Act including the submission to be completed on prescribed forms, this case highlights the fact that a provider's failure to submit bills on the proper form is not an absolute defense to non-payment. If the employer has sufficient information to make payment, then payment must be made.
Sign Innovation v. WCAB (Ayers), No. 681 C.D. 2007, (Filed December 4, 2007)
Issue: Whether an employer may seek a modification of disability benefits even though an IRE reveals that the Claimant is still 50 percent impaired?
Answer: Yes.
Analysis: The Commonwealth Court explained that impairment is not the same as disability, i.e., loss of earning power. It further explained that the Regulations interpreting Act 57 confirm that "an employer may at any time rebut the presumption of total disability with evidence of earning power under Section 306(b)(2)."
Conclusion: If an employer has evidence of earning power, the employer is free to prove the Claimant's earning power through a Modification Petition even if a prior IRE determination found the claimant to have an impairment of 50% or more.
Schenck v. WCAB (Ford Electronics), No.1011 C.D. 2007, (Filed December 5, 2007)
Issue: Whether an employer may refuse payment of medical bills based on a prior UR Determination that similar treatment rendered by a different provider was unreasonable and unnecessary?
Answer: No.
Analysis: In 1996, Employer filed a UR request regarding the medical treatment Claimant received from Dr. Dennis Zaslow. The UR reviewer found Dr. Zaslow's treatment unreasonable and unnecessary. Seven years later, Claimant returned to Dr. Zaslow's office, intending to obtain treatment, only to find that Dr. Zaslow had left and the office was now occupied by Dr. Lance Yarus. Dr. Yarus treated Claimant and prescribed two (2) pain medications. Employer denied payment of the medical bills because the treatment rendered by Dr. Yarus was the same as the treatment that had been rendered by Dr. Zaslow, treatment which had already been deemed unreasonable and unnecessary.
Conclusion: This is a frustrating decision. The treatment claimant received from Dr. Yarus had already been found unreasonable and in our opinion this decision is wrong. Since we are stuck with it, please watch out for claimants who change providers after a utilization review has been filed and/or a decision stopping treatment has been received. A UR should be filed against this subsequent identical treatment.
Angelo Ballerino v. WCAB (Darby Borough), No. 1113 C.D. 2007, (Filed December 13, 2007)
Issue: Whether a volunteer firefighter is entitled to "stack" his actual earnings onto his presumed wages in calculating his effective compensation rate?
Answer: No.
Analysis: Claimant was a truck driver that moonlighted as a volunteer firefighter. The parties agreed that Claimant suffered a disabling work injury while in the course and scope of his duties as a firefighter. Under the Act, volunteer firefighters are presumed to receive at least the statewide AWW if injured in the line of duty. Under this formula, Employer provided weekly benefits in the amount of $477.85. Claimant filed a Claim Petition seeking to increase that compensation by "stacking" his $580 weekly compensation as a truck driver onto his presumed wages as a firefighter.
Conclusion: The WCJ, Board and Commonwealth Court all agreed that "stacking" of wages is not permitted under the Act and that Claimant's compensation rate was appropriately calculated using his presumed wages as a volunteer firefighter.
Paul Stock v. WCAB (Food Chek Shopping Bag), No. 1296 C.D. 2007, (Filed December 19, 2007)
Issue: Whether the payment of Specific Loss benefits tolls the running of the Section 413(a) three-year limitation period?
Answer: No.
Analysis: Claimant's indemnity and medical benefits were resolved via commutation on April 4, 1997. On July 29, 1999, Claimant filed a petition for specific loss benefits for scarring and disfigurement. The WCJ granted this petition and awarded Claimant specific loss benefits which were effectively paid through February 5, 2004. Shortly thereafter, claimant filed a reinstatement petition which was ultimately denied because claimant filed the petition more than 3 years after claimant's last payment of disability benefits. The Commonwealth Court, in a 2006 unpublished companion case Stock v WCAB (Food Chek Shopping Bag), No. 1965 C.D. 2005 (filed March 2, 2006), determined that the three year statute to file a reinstatement petition post commutation was not extended by the payment of specific loss benefits. During that litigation, on February 14, 2005, Claimant filed a review petition seeking to amend the NCP to include psychological injuries. The Judge denied the petition and the WCAB affirmed.
Conclusion: The Commonwealth Court affirmed the decision of the Board, finding the petition time barred, as it was not filed within three years after disability compensation had been finally paid in April 1997. It confirmed that the payment of specific loss benefits did not toll the running of the Section 413(a) three-year limitation period within which the claimant may seek reinstatement of benefits or review of an award.