April 13, 2012 - Pennsylvania Workers' Compensation Update - 1st Quarter '12
I. Pennsylvania Supreme Court Case
Giant Eagle, Inc., v. WCAB (Givner), No. 14 WAP 2010 (Decided March 13, 2012) (reported previously in email)
Issue: Whether a Judge has discretion to suspend both wage loss and medicals following Claimant's failure to attend a court-ordered IME?
Analysis: The case involved employer's scheduling of an IME and the employee's failure to appear. The employer filed a petition to compel which the Judge granted. The employee again failed to appear and employer filed a petition for suspension. The Judge suspended wage loss benefits, but employer appealed, arguing that medical benefits should have also been suspended.
The Board affirmed the Judge's holding that only wage loss benefits may be suspended and not medical benefits. The Commonwealth Court affirmed but qualified the Board's decision. It explained that while in this particular case it was appropriate only to suspend wage loss benefits, the Judge has the discretion to suspend both wage loss and medicals as a case might require.
The PA Supreme Court has affirmed the holding of the Commonwealth Court. While it did not permit the mandatory cessation of medical benefits in the context a petition for suspension based on claimant's failure to attend a court ordered IME, it left the issue to the Judge's discretion.
Conclusion: Claimant's refusal to attend an IME once ordered may result in the suspension of medical benefits in addition to wage loss benefits. Therefore, a suspension of medical benefits should be requested particularly if claimant is receiving partial or no indemnity benefits, i.e. prior suspension or settlement.
II. Pennsylvania Commonwealth Court Cases
John Leca, v. WCAB (Philadelphia School District), No. 679 C.D. 2011 (Filed March 7, 2012)
Issue (1): Whether medical evidence presented in a petition to review utilization review by a medical expert not licensed in the same specialty as the provider under review is competent to support a finding that the treatment is unreasonable and unnecessary?
Issue (2): Whether medical evidence presented in a petition to review utilization review that is based upon review of medical records pre-dating the period under review, but for the same treatment by the same provider, is sufficient to support a finding that the treatment is unreasonable and unnecessary?
Analysis: Claimant suffered a low back injury in April 2004. In March 2006, Employer filed a Utilization Review (UR) request to determine the reasonableness and necessity of chiropractic treatment beginning in February 2006. The Utilization Reviewer found the treatment reasonable and necessary and employer filed a petition to review the UR determination.
In support of the petition, employer presented the testimony of two orthopedic surgeons who both opined the treatment was unreasonable and unnecessary even prior to the period under review. The Judge granted the petition and claimant appealed. The Board affirmed.
Claimant argued to Commonwealth Court that employer's medical evidence was not competent because the physicians were not licensed in the same specialty as the provider under review. Commonwealth Court rejected this argument, noting that the Act requires only that the reviewer assigned to the UR to be licensed in the same specialty and does not prohibit evidence by physicians in an alternative specialty in conjunction with a petition for review of UR determination.
Claimant also argued that the testimony of employer's one medical expert should not have been accepted as the expert did not actually review the treatment records for the period under review. The Commonwealth Court rejected this argument as well, noting that the treatment rendered in the period under review was identical to the treatment rendered prior to the period under review and therefore, the review was appropriate.
Conclusion: Medical evidence in a petition to review UR need not be limited to medical opinions rendered by physicians of the same specialty as the provider under review and need not be limited to opinions based upon review of the treatment records for the period under review. However, as a practice tip we recommend that the treatment records for the period under review be provided to and reviewed by any medical expert.
City of Pittsburgh and UPMC Benefit Management Services, Inc. v. WCAB (Marinack), No. 100 C.D. 2011 (Filed February 7, 2012)
Issue: Whether Claimant's application for a disability pension and lack of effort to look for work proved Claimant's voluntary withdrawal from the workforce.
Analysis: Claimant sustained a compensable work injury and was receiving total disability benefits. Claimant's treating physician released him to light duty work. After issuing a Notice of Ability to Return to Work, employer filed a suspension petition alleging claimant had voluntarily withdrawn from the work force. Claimant testified he considered himself disabled and had applied for a disability pension but denied voluntarily withdrawing form the work force and testified that he had sought work. The Judge found claimant had withdrawn from the work force and granted the suspension. The Board reversed.
The Commonwealth Court agreed with the WCAB and held there is no presumption that a claimant collecting a disability pension has withdrawn from the workforce; rather, it is the employer's burden to prove, by a totality of the circumstances, that the claimant on a disability pension intends not to return to work. The Court contrasted a disability pension with a situation where a claimant has accepted a retirement pension.
Conclusion: When claimant is receiving or has applied for a disability pension, the employer has the burden of proving that claimant intended to withdraw from the workforce. Claimant's lack of effort to look for a job does not prove an intention to withdraw from the workforce.
Caveat: A Petition for Allowance of Appeal has been granted by the PA Supreme Court in the case of Robinson v WCAB (the case that defined the "totality of circumstances" test above), and it remains to be seen if the Court will affirm this standard. Until the Supreme Court rules, the holding of Robinson must be followed. Therefore, when deciding to seek a suspension of benefits on the basis that claimant has withdrawn from the workforce, the employer must establish, by a totality of circumstances that the claimant on a disability pension intends not to return to the workforce.
Caputo, v. WCAB (Commonwealth of Pennsylvania), No. 191 C.D. 2010, (Filed January 5, 2012)
Issue: Whether the provision that allows for an offset for 50% of "old age" Social Security retirement benefits received by a claimant, violates the Equal Protection Clause of the PA Constitution?
Analysis: Claimant suffered a work injury in 2002 and began receiving total disability benefits. In August 2006 claimant began receiving Social Security retirement benefits and one month later began receiving her pension. Employer filed a Notice of Workers Compensation Benefits Offset, seeking a credit for 50% of her Social Security benefits and a credit for her pension. Claimant filed a petition for review offset which was denied as to the Social Security offset. Claimant appealed to the Board alleging the Social Security offset was unconstitutional. The Board affirmed.
Claimant asserted to the Commonwealth Court that the Social Security retirement benefit offset violated the Equal protection Clause of the Pennsylvania Constitution. The Court rejected this argument. The Court reasoned that there is no suspect classification; the statue seeks to promote legitimate state interests (it offers workers' compensation cost containment for employers and it encourages individuals collecting Social Security retirement benefits to remain in or re-enter the workforce).
Conclusion: Section 204(a) which permits an offset against workers compensation disability benefits for 50% of the claimant's Social Security retirement benefit does not violate the Equal Protection Clause of the Pennsylvania Constitution.
III. Medicare Tip
What can be done if the Medicare Secondary Payer Recovery Contractor has closed its file on a claim prior to settlement of the claim?
In this setting, Medicare had previously advised that the file would be re-opened when we called to check the status of the final conditional payment statement. However, this was inaccurate. While the individual to whom we were speaking could designate the file as re-opened at their level this did not actually re-open the file to allow for additional review.
We have now been advised that in order to re-open a file, the following must be submitted to the Medicare Secondary Payer Recovery contractor:
1. Written request to re-open the file with an explanation of why it should be re-opened.
2. An authorization that permits the party seeking the re-opening to act on behalf of claimant.
Because the proof of representation is required, this will require the involvement of claimant (if unrepresented) or counsel (if represented).
IV. Bureau Update-New Computer System
You are able to obtain updates on the progress being made on the new computer system (WCAIS) by visiting the following:
Based on information currently available, it appears this system will go live for the Workers' Compensation Appeal Board in the fall of 2012. The Bureau Help Line is also targeted for the same date.
The Bureau and the Office of adjudication will be added to WCAIS in the fall of 2013.
This project, when finished, will require that interested parties register in the system in some fashion. The system will provide access online to information, online filing, and document management at any time during, any day, 24/7 access.
V. Interesting Insurance Fraud Case in California
See the attached link. Amazing: http://blogs.laweekly.com/informer/2012/04/rafael_davis_firefighter_lafd_mma_fighter_workers_comp_fraud.php
David G. Greene, Esq.
Peter Weber, Esq./Renee M. Porada, Esq.
Ross Ventri, Esq./Charece Collins, Esq./Kevin Harchar, Esq.