Weber Gallagher Simpson Stapleton Fires & Newby LLP

May 12, 2008 - Pennsylvania Workers' Compensation Update - 1st Quarter '08

Supreme Court Cases

McElheney v. WCAB (Kvaerner Philadelphia Shipyard), No. 15 EAP 2007 (Filed February 19, 2008)

Issue:  Is a worker injured in a graven dry dock while performing traditionally maritime functions entitled to concurrent jurisdiction of the Federal Longshore and Harbor Worker’s Compensation Act (LHWCA) and the Pennsylvania Workers’ Compensation Act?

Answer: Yes

Analysis: Claimant, a pipefitter welder, injured his ankle and shoulder when he tripped and fell on electrical wire while working on a ship in a “graven dry dock”. A graven dry dock is a dry dock that has been dug into the land adjacent to the water and which can be closed off from the waterway. Claimant was paid benefits pursuant to the LHWCA until Employer’s carrier determined that Claimant had recovered sufficiently to return to work. Believing he was unable to return to work, Claimant sought benefits under the PA Workers Compensation Act.

Claimant argued that the LHWCA did not preempt state workers’ compensation laws but rather provided concurrent jurisdiction for injuries occurring on land while the worker is performing a traditionally maritime function. The WCJ sided with Employer and determined that Claimant’s injury occurred over the navigable waters of the United States and therefore, the LHWCA had exclusive jurisdiction. The Board affirmed.

The Commonwealth Court reversed, finding concurrent jurisdiction because the vessel upon which the Claimant was working at the time of injury was not afloat but rather “in a physical sense on land”. In reaching this decision the Court distinguished between types of dry-docks, i.e. floating versus graven.

Conclusion: The Supreme Court held that concurrent jurisdiction was available as the graven dry dock, regardless of whether filled or drained of water, was a land-based site within the scope of the 1972 amendments to the LHWCA. The Court reasoned that because the graven dry dock was cut or dug out of the land the mere periodic flooding of the dock with water did not divorce it from the land and render it exclusively within the limits of the navigable waters of the United States. In footnote 12 the Court notes that the above analysis would not necessarily apply to a floating dry-dock and rejects the call to treat all types of dry-docks equally.

 

Griffiths v. WCAB (Seven Stars Farm), 148 MAP 2005, (Filed March 19, 2008)

Issues: 

1. Is a van modified to make it wheelchair accessible an orthopedic appliance under Section 306(f.1) (1) (ii) of the Act?
2. Would the cost containment provisions of the Act apply to a van modified to accommodate a wheelchair?

Holding:

1. The van, not merely the modification thereto making it wheelchair accessible, may qualify as “an indispensible device necessary to accommodate a catastrophic work injury” and thus may fall within the definition of an orthopedic appliance.
   
2. The cost containment provisions of the Act do not apply.

Facts:  Claimant was struck by a bale of hay that fell from overhead rendering him a quadriplegic and confined to a wheelchair.   Claimant’s wife testified that she needed a van to transport claimant to and from the hospital, doctor’s appointments and elsewhere.  Two different vans were rented for one month each to compare layout, features, etc.  Claimant ultimately purchased a minivan at a cost of $28,500.  The base price was $18,500 and the conversion cost $10,000. 

The carrier voluntarily paid for 80 percent of the van rental costs and 80 percent of the conversion costs, but refused to pay anything for the van itself.  Claimant filed a Penalty Petition alleging that the carrier violated the Act by failing to pay for the entirety of the van rental and the van purchase.  The WCJ granted the penalty petition holding that “without a van, with retrofitting for wheelchair accessibility, this paraplegic claimant is confined to his home due to the work injury.  Employer’s obligation to pay for retrofitting is of no benefit unless the claimant has a van.”  The judge also referenced this claimant’s particular financial circumstances and suggested that inquiry must be made therein to determine compensability.  The judge also found that the cost containment provisions of the Act do not apply as they only apply to a health care provider.

The employer appealed to the Board.  The Board affirmed the portion of the WCJ decision dealing with the cost containment provisions and reversed concerning liability to pay for the van itself.  The Board cited the controlling case law, Petrilla v. WCAB (People’s Natural Gas), 692 A.2d 623 (Pa. Cmwlth. 1997), which specifically held that a van itself is not an orthopedic appliance as defined by the Act.  The Board also rejected WCJ’s reliance on the claimant’s particular financial circumstances. 

The parties cross appealed to the Commonwealth Court.  The Commonwealth Court ruled in favor of Employer on both issues.  Citing Petrilla, the Court noted, “It is the modifications and the additional appliances, not the vehicle itself, which are necessary to accommodate the claimant’s work injury.”  The Commonwealth Court, by analogy noted that the purchase of the van itself is akin to the purchase of a new home equipped to accommodate a wheelchair-bound person.  “To argue that these latter costs should be compensable is simply untenable.”  The Court also held that “the [claimant’s] inability to purchase the van was a product of his own financial circumstances, not his work injury.”  The Court also addressed the cost containment issue and found that the Act provides for 80 percent limitation on products and services not calculated under the Medicare program.  It is undisputed that there is no Medicare calculation in this scenario.  If there is to be any reimbursement at all, the van rental and the wheelchair lift must be considered a “treatment, accommodation, product or service” subject to the cost containment provisions, otherwise, there is no basis for reimbursement at all.  Therefore, the Court held that reimbursement was capped at 80 percent.

Before the Supreme Court, Claimant argued that the van was an indispensible part of the wheelchair lift that is necessary to accommodate the claimant. Absent the van, the wheelchair lift is useless to him.  The Claimant argued that the van was necessary for him to travel and as such, is an orthopedic appliance.  Finally, Claimant argued that the Commonwealth Court decision restricts his right to access to medical treatment by denying him transportation and citing Section 306(f.1) (1) (i) of the Act which contemplates reimbursement for travel for medical care. 

Employer argued that the Court must affirm Petrilla and the Court below, arguing that Claimant’s logic would require not only reimbursement for the car, but by analogy and extension, a home.  Furthermore, it argued that the Act does not require reimbursement for local travel to and from medical appointments, only long distance travel.  And, the Employer argued that while the Act requires reimbursement for long distance travel, it does not hold employers responsible for purchasing the means of transportation which is what Claimant now seeks. 

Conclusion:  The Supreme Court concluded that the Claimant’s need for a van was a direct result of the work injury and was therefore compensable.  The modified van was critical to claimant’s ongoing health care and, as the Act is remedial, the modified van does “not begin to compensate [Claimant] for the quadriplegia that resulted from his work injury.”  “To a person in [Claimant’s] condition, the van is crucial to restore some small measure of the independence and quality of life that existed before the work injury.”  However, the Court does recognize that the Act does not authorize windfalls.  The Act does not require that the van be brand new; furthermore, inquiry into claimant’s pre-injury lifestyle may be relevant in fixing the appropriate expense owed by the employer to secure a vehicle.

 

COMMONWEALTH COURT CASES

Riddle v. WCAB (Allegheny City Electric, Inc.), No. 1390 C.D. 2007, (Filed January 8, 2008)

Issues: Can an employer rely upon a labor market survey conducted in the area of the claimant’s residence rather than the location of the injury?

Answer: Yes. The Act does not preclude the employer from performing a labor market survey in the geographic area of claimant’s residence.

Analysis: Employer filed Modification and Suspension Petitions based upon a labor market survey. Claimant, an electrician, suffered work related injuries to his right shoulder while working in Pittsburgh, Pennsylvania. However, claimant resided in Wheeling, West Virginia and holds an Ohio driver’s license and periodically resides with his father in Ohio. The vocational expert testified that at the first vocational meeting, both claimant and claimant’s counsel specifically requested that the job search occur in Wheeling, West Virginia where claimant resided. The vocational expert’s job search included no jobs in Pittsburgh but did include jobs in Washington, Pennsylvania; Wheeling, West Virginia; and Ohio. The Judge granted the modification petition. On appeal, The Board rejected claimant’s argument that because he did not reside in Pennsylvania, Section 306(b) (2) of the Act required the earning power assessment to be performed in the “usual area where the injury occurred”, i.e. Pittsburgh, Pennsylvania. The Board affirmed and claimant appealed. In affirming the Board, the Commonwealth Court noted that the Board concluded the 1996 Amendments were designed to reduce workers’ compensation costs and improve efficiency. The Commonwealth Court noted that the Board concluded no court decision interprets the Act to preclude a labor market survey conducted in area of claimant’s residence. Conclusion:  The Commonwealth Court agreed with the Board that the Act does not preclude the employer from attempting to establish job availability in the geographic area of claimant’s out-of-state residence rather than the location of the injury. It would seem that the key question is whether or not the jobs located were available, despite the literal wording of the Act.

Westmoreland County v. WCAB (Fuller), No. 1277 C.D. 2007, (Filed January 24, 2008)

Issues:   Does a finding in a prior round of litigation that claimant suffered an injury beyond the accepted work injury, without formal amendment of the NCP, expand the injury description? Is a medical opinion that fails to acknowledge the injury description contained in a prior decision incompetent to sustain the employer’s burden in a termination petition?

Answers:

1. Yes
   
2. Yes

Analysis: Employer accepted a “lumbar strain” via NCP. Employer subsequently filed a termination petition that was denied via decision. In the decision, the WCJ credited claimant’s medical testimony that claimant suffered a L4-5 disc herniation and post-traumatic lumbar radiculopathy at L4-5 as a result of her work injury. The decision specifically confirmed that the NCP did not include the above diagnosis and claimant did not formally amend the NCP to include the disc herniation and radiculopathy. Employer did not appeal.

Employer filed a subsequent termination petition based upon medical evidence that limited the injury to a “lumbar strain”. The WCJ granted this petition and drew a negative inference from claimant’s failure to present medical evidence or testify on her own behalf.

Claimant appealed. In her appeal, claimant asserted that the Judge’s off the record statements led her to believe the she did not need to testify or present evidence. The Board vacated and remanded to allow the claimant to present further testimony.

On remand, the Judge denied the termination petition finding the employer’s medical evidence incompetent as it did not recognize the disc herniation and radiculopathy as work related and did not include an opinion that claimant had recovered from those injuries.

Employer appealed and the Board Affirmed. Employer appealed.

The Commonwealth Court affirmed. The Commonwealth Court held that once the Judge denied the first termination petition on the basis that claimant had suffered from an L4-5 disc herniation and lumbar radiculopathy, the NCP was effectively expanded to include those injuries. Because employer’s medical expert in the subsequent petition did not recognize the L4-5 disc herniation and lumbar radiculopathy as work related injuries, his testimony was legally insufficient to support the termination petition.

Conclusion:   Once the Judge found that the Claimant had not fully recovered based upon injuries beyond those identified in the NCP, those injuries became a part of the work related injury; therefore, in order to succeed on a subsequent termination petition, the employer was obligated to present unequivocal medical evidence that the claimant had recovered from both the injuries identified in the NCP and those identified in the prior decision.

 

Gumm v. WCAB (J. Allan Steel), no. 599 C.D. 2007, (Filed January 28, 2008) and J. Allan Steel v. WCAB (Gumm), No. 703 C.D. 2007 (Filed January 26, 2008)

Issues: 

1. Is an employer in violation of the Act by revoking a Notice of Temporary Compensation Payable and issuing a Notice of Compensation Denial acknowledging an injury but denying disability rather than filing a Medical Only Notice of Compensation Payable?
   
2. Is an employer’s challenge to a claim petition when an injury is admitted but disability challenged per se unreasonable?
   

Answers:

1. No.  The Employer is not in violation of the Act, provided the reason provided for the denial is that disability is being challenged (a box 4 denial).
   
2. No.  The employer may a reasonably contest disability while acknowledging a work injury.

Analysis: On February 3, 2003 claimant suffered a work related injury to his ankle. Thereafter, employer issued a timely TNCP recognizing a right ankle sprain. Upon claimant’s release to return to full duty on April 21, 2003, employer filed a notice stopping temporary compensation and a notice of workers compensation denial (NCD). The denial was a box 4 and box 6 denial. In box 6 employer alleged that claimant had been released to full duty but was not offered employment due to economic reasons.

Claimant filed multiple claim petitions, one alleging a discreet injury on February 3, 2003 and the other alleging a repetitive trauma injury. Claimant also filed a penalty petition alleging that the issuance of the NCD rather than a medical only NCP violated the Act.

The Judge granted the claim petitions and found an unreasonable contest. The Judge also granted the penalty petition.

Both parties appealed to the Board. The Board affirmed the granting of the claim petitions but reversed as to the penalty petition and the finding of unreasonable contest. Both parties appealed to the Commonwealth Court.

The Commonwealth Court affirmed. The Commonwealth Court specifically found that it was not a violation of the Act for the Employer to issue the Notice Stopping Temporary Compensation and Notice of Denial utilizing boxes 4 and 6. In reaching this decision the Commonwealth court distinguished several controversial decisions including Lemansky, Waldemeer Park and Jordan, while favorably citing Gereyes, which seemed to justify the use of the TNCP in this context. The court also stressed that the NCD is an acceptable method to dispute disability, at least in the context of a full duty release.

Conclusion:  The Court has confirmed that a box 4 denial following a TNCP and full duty release does not violate the Act. This holding would also seemingly confirm that a Box 4 and 6 NCD, properly completed, would be acceptable in medical only situations.

 

Coyne v. WCAB (Villanova University and PMA Group), No. 610 C.D. 2007, (Filed February 11, 2007 and Villanova University v. WCAB (Coyne), No. 710 C.D. 2007, (Filed February 11, 2007)

Issues:

1. When the employer fails to file any Bureau documents accepting the work injury and a claim petition is granted, is claimant entitled to indemnity benefits to the date of the judge’s decision granting a claim petition when the decision terminated benefits prior to that date?
   
2. Is a claimant entitled to indemnity benefits where the employer acknowledges an injury but produces evidence that claimant was terminated due to “bad faith” or “misconduct” pre-dating her work injury?
   
3.  Is an employer’s contest of a penalty petition alleging failure to timely investigate unreasonable if the penalty is granted for failure to issue a Bureau document but not failure to investigate?

Answer:

1. No. Claimant is only entitled to benefits to the date of the termination. No. The timing of the “bad faith” or “misconduct” is not necessarily controlling.
   
2. No. Each violation of the Act is separate and distinct.

Analysis: On March 23, 1999, claimant injured her right ankle while attempting to fix a paper jam. Claimant was a contract employee for Villanova and her employment contract was subsequently not renewed. She was dismissed but paid the remainder of her contract and employer did not challenge her unemployment compensation claim.

Claimant filed claim, penalty, and reinstatement petitions, alleging an entitlement to indemnity benefits as of the date that her contract expired and upon the exhaustion of her severance.  In its answer, Defendant admitted an ankle injury, but denied claimant’s entitlement to indemnity benefits.  The Judge granted claimant’s claim and reinstatement petitions, awarding claimant total and partial disability benefits following the severance for all times that claimant was either not working or earning less money (less unemployment credits) until August 26, 2002 when she found claimant to be fully recovered. The penalty petition and request for unreasonable contest were denied. 

On appeal, the Board vacated the denial of the penalty petition and remanded for further findings. The Board withheld a decision on the issue of unreasonable contest but affirmed the Judge’s decision in all other respects.

On remand, the Judge granted the penalty petition finding that employer failed to timely issue a Bureau document accepting the work injury.  The Judge also found the employer engaged in an unreasonable contest as to all petitions.  Both parties appealed.

The Board reversed the finding of unreasonable contest since employer presented evidence which, if believed, would have defeated the claim and reinstatement petitions. The Board further found that although employer violated the Act by not issuing a Bureau document, claimant alleged in her penalty petition that the employer failed to timely investigate and because the employer did timely investigate, the employer presented a reasonable contest and there was no violation of the allegation in the penalty petition. The Board affirmed in all other respects. Both parties appealed.

Citing to Edwards v. WCAB (Sears Logistic Serv.), 770 A.2d 805 (Pa. Cmwlth. 2001), for the holding that the proper inquiry was whether the loss of earnings was the result of the work injury, The Commonwealth Court remanded for further findings relative to whether employer’s testimony sufficiently demonstrated that claimant’s contract was not renewed due to misconduct.

The Commonwealth Court rejected claimant’s arguments that employer’s failure to warn her that continued misconduct would lead to dismissal or to challenge her unemployment claim precluded the employer from raising the “misconduct” defense. The Commonwealth Court rejected claimant’s argument that she was entitled to benefits beyond the effective date of the full recovery.

The Commonwealth Court also found that the allegation of a failure to investigate is distinct from a failure to issue a Bureau document. Therefore, because claimant’s petition alleged a failure to investigate and the evidence established a timely investigation, there was no penalty due.

Conclusion:  When a claimant is terminated due to misconduct, the timing of the claimant’s misconduct is not necessarily controlling and benefits may be suspended even if the misconduct occurred prior to the work injury.

The failure to investigate is a distinct violation of the Act separate and apart from the failure to issue Bureau documents. Alleging one is not the equivalent of alleging the other. Therefore, an employer may reasonably challenge a penalty petition alleging one violation of the Act if that violation was not committed even if the employer committed a separate violation of the Act.

 

Jean Sueta v. WCAB (City of Scranton and PMA), 1905 CD 2007, (Filed March 7, 2008)

Issues:

1. In a Utilization Review, is the date of mailing the proper date for determining if the records were timely submitted by the provider under review?
   
2. May the date of mailing be established by a private postage meter mark?

Answer:

1. Yes. The date of mailing, not the date of receipt, is controlling for determining compliance.
   
2. Yes. The date of mailing may be established by a private postage meter mark as well as a USPS post mark.

Analysis: A Utilization review was requested. On August 3, 2005 the assigned URO requested records from the provider under review. The records were due on September 6, 2005 but were not received until September 14, 2005.  Based upon the failure to submit the records the URO found the treatment under review to be unreasonable and unnecessary. A petition to review utilization review was filed.

Finding that the records had not been timely submitted, the Judge dismissed the petition to review utilization review determination on the basis of lack of jurisdiction.

The Board affirmed.

The Commonwealth Court reversed. Citing to Section 127.464(a) of the Act, the Commonwealth Court found that the relevant provision for determining medical record compliance is the date mailed not the date received.  Because the records were mailed on September 2, 2005, they were timely produced.  The Court also held that the provider’s private postage meter mark was sufficient to establish the date of mailing.

Conclusion:  This decision creates uncertainty as to the validity of utilization review determinations based upon lack of records from the provider under review. This decision also calls into question the length of time that the URO must wait after the “due date” to determine that the records were not timely filed. Editor David G. Greene, Esq. Co-Editor Renee M. Porada, Esq. Contributing Authors Shawn C. Gooden Esq. | Renee M. Porada, Esq. Workers' Compensation Department