Pennsylvania Workers' Compensation Update - 3rd Q '11

11.07.11

Category: Pennsylvania

Pennsylvania Supreme Court Cases

Dept. of Labor & Industry, Bureau of Workers' Comp. v. WCAB (Crawford & Co.), 23 A.3d 511 (Pa.2011).

Issue:  Whether the employer/carrier can recover from the Supersedeas Fund the payment of medical bills for treatment prior to date termination petition filed/supersedeas requested?

Answer:  Yes.

Analysis:  Claimant underwent an IME on 3/16/04 which found full recovery and then had surgery on 6/1/04 allegedly for the work-related injury.  On 7/19/04, Employer filed a Termination Petition based upon the 3/16/04 IME.  Employer also requested supersedes, which was denied on 8/30/04.  On 10/11/04, the provider who performed the surgery submitted a bill for the 6/1/04 surgery, which was paid on 1/25/05.  On 6/28/05, the Judge granted the Termination Petition, which was subsequently affirmed by the Board.

Employer then filed an application for Supersedeas Fund Reimbursement, which the Fund denied.  The Fund's position was that the surgery predated the supersedeas request and thus was not eligible for reimbursement.  The Supreme Court held that the fact that the surgery took place before the date of the supersedeas request did not matter as the bill was not submitted until after the supersedeas request was denied.  Thus, Employer had an obligation to pay the bill as a result of the supersedeas denial and is entitled to reimbursement from the Supersedeas Fund.

Conclusion: Supersedeas Fund reimbursement is appropriate for medical bills received and paid after the denial of supersedeas even if the treatment was rendered prior to the request for supersedeas.

Comment:  The language used by the Court implies that WCJ's have broad supersedeas powers including the consideration of medical bills.  Although prior Commonwealth cases have held that a WCJ does not have any power to consider supersedeas of medical bills in conjunction with a termination petition or at any other time, this case at least arguably gives a WCJ this authority and a supersedeas as to medical should be requested, when appropriate.

Gentex Corp. v. WCAB (Morack), 23 A.3d 528 (Pa. 2011).

Issue: What information must an employee provide in order to place employer on notice of a work related injury?

Answer:  Adequate notice is a fact-intensive inquiry that involves taking into account the totality of the circumstances regarding the communications between the employee and employer which may occur over a period of time.

Analysis:  Claimant worked for Employer for over 45 years.  She stopped working on 1/17/05, when she told her supervisor that she could no longer tolerate the pain and swelling of both her hands and left work.  She received an "off work" note and also applied for short term disability benefits.  In doing so, she indicated that she did not believe her condition was work-related.  After treating with a doctor, she was told that her condition was work-related.  Claimant testified she informed Employer that her doctor told her the condition was work-related by leaving messages for a human resources representative.  The Judge granted benefits and the Board affirmed. The issue of whether adequate notice was given went up to the Commonwealth Court,  which determined adequate notice was not given. The case then was accepted for appeal by the PA Supreme Court.

The Court found that the communications between employee and employer were adequate to establish sufficient notice of a work related injury and reinstated the award of benefits. Adequate notice requires the employee to inform the employer that she received an injury, described in ordinary language, in the course of her employment, on or about a specified time, at or near a place specified.  Because the Act is silent on what constitutes adequate notice, the Court held that the adequacy of the description of the injury is a fact-intensive inquiry that involves taking into account the totality of the circumstances.  Multiple communications between an employee and employer must be evaluated to determine if adequate notice has been provided.

Conclusion: Courts will look at the  totality of the circumstances to determine the adequacy of notice of the work injury. Adequate notice may be established through multiple discussions, and a single statement that the injury is not believed to be work related is not necessarily dispositive.

Commonwealth Court Cases

Little v. WCAB (B&L Ford/Chevrolet), 23 A.3d 637 (Pa. Cmwlth. 2011).

Issue:  Is a death compensable if it is caused by the impact of an employee's termination from employment?

Answer:  No.

Analysis:  Decedent suffered an injury on 10/1/05 and then worked light duty until 1/13/06, when he was told by Employer to return to regular duty work.  On 1/19/06, employer sent decedent home after receiving a letter from decedent's attorney indicating decedent could not work full duty.  Decedent then obtained a doctor's note taking him out of work and was going to bring it to Employer, but was told by Employer not to and that Employer was sending decedent a letter.  Decedent received a letter on 1/28/06 terminating his employment.  On 1/30/06, decedent had a heart attack at home, while re-reading the letter, and died.  The Judge found that decedent was not within the course and scope of his employment or furthering Employer's business when he died and denied the claim.  The Board agreed.

The Commonwealth Court affirmed and stated that the termination of an employee is not an event that creates liability under the Act if the termination alone results in an injury.  Here, the Court noted that the heart attack occurred two days after the termination of employment and also noted the absence of any medical evidence establishing a causal connection between the heart attack and decedent's actual employment.

Conclusion: Injuries/deaths that arise out of the termination  employment are not compensable if there is no causal connection between the actual employment duties and the injury/death.

PA Liquor Control Board v. WCAB (Kochanowicz), No. 760 C.D. 2010 (Filed September 20, 2011)

Issue: Whether a robbery is an abnormal working condition when the claimant has been provided extensive training on how to respond to a robbery and robberies are a common occurrence for the employer?

Answer: No.

Analysis: Claimant worked as a manager for Employer's retail liquor store. Claimant was working the evening shift when he was robbed at gun point and he was tied to a chair.  He was not physically harmed but developed post traumatic stress disorder. Claimant then filed a Claim Petition alleging that he suffered from work-related PTSD.

Employer presented testimony that it had established a work place violence program in the late 1980s due to employees being subjected to robberies, thefts and fights in Employer's retail stores.  Employer's witness testified that Employer gave its managers and employees several booklets to supplement the training, including one entitled, "Things You Need to Know About Armed Robbery." Claimant was trained on a monthly basis by his district manager, and Claimant was provided with a refresher on workplace violence and thefts at the trainings. Employer also presented testimony regarding the number of robberies at the stores in this district. Claimant did not contest this evidence.

The Judge granted the claim petition finding the robbery was an abnormal working condition in spite of the frequency of the robberies and the training provided. The Board affirmed.

The Commonwealth Court reversed, finding that Claimant was not exposed to an abnormal working condition when his store was robbed. The Court acknowledged that there is no bright-line test to apply this rule, but a standard used is whether the working conditions were foreseeable or could have been anticipated. Applying this standard, the Court found that Claimant should have anticipated being robbed at gunpoint, as he received extensive training on what to do during a robbery, as well as pamphlets and educational tools describing how to handle a robbery. The Commonwealth Court further noted that another standard used to determine whether a working condition is abnormal is to look at the frequency of its occurrence in the specific industry. Relying on Employer's uncontested evidence that there had been 99 robberies at Employer's locations since 2002, which averaged out to more than one per month, Claimant could have foreseen being robbed at his location.

Conclusion: One must look to the foreseeability of an event to determine if a specific working condition is abnormal. The training provided and the frequency with which an event occurs are both factors in determining whether the event was foreseeable.

Ronald K. Lewis v. WCAB (Andy Frain Services, Inc.), No. 1501 C.D. 2010 (Filed September 22, 2011)

Issue: Whether Claimant deviated from his employment by wandering from his post when his only job duty was to stay at his post?

Answer: Yes.

Analysis: Claimant filed a claim petition alleging he suffered an injury while employed as an event ambassador assigned to the Lexus tent at the U.S. Open Golf Tournament. The Judge accepted as credible the Employer's testimony that Claimant's only job duty was to remain at the Lexus tent and that he was to contact his supervisor if he needed a break and to contact security if he saw anything suspicious. The Judge also accepted Claimant's testimony that he left the Lexus tent and was injured while investigating lights and sounds in the surrounding areas. The Judge concluded that when the Claimant left his post at the Lexus Tent, he abandoned his position and was not furthering the interests of his employer. Thus, the Judge denied Claimant's claim petition, as he was not within the course and scope of his employment. The Board affirmed.

The Commonwealth Court affirmed, finding that Claimant was not within the course and scope of his employment.

Conclusion: If an employee is not furthering the interests of his employer at the time of injury, even if on work grounds, his benefits can be denied based upon a finding that he was not within the course and scope of his employment.

Westmoreland Regional Hospital v. WCAB (Pickford), No. 1188 C.D. 2009 (Filed September 23, 2011)

Issue: Whether the Claimant's objective physical condition at the time of the IRE governs the conclusions of the IRE?

Answer: Yes.

Analysis: Claimant's work injuries were accepted as cervical and lumbar strain via NCP. A WCJ later expanded the injury to include cervical disc injuries, brachial plexus stretch, and reflex sympathetic dystrophy (RSD).

An IRE concluded that Claimant had a total body impairment of 22% with individual impairment rating of 5% to the cervical region, 5% to the lumbar region, 7% to Claimant's right arm, and 6% to Claimant's left arm.

Employer filed a Modification Petition,  seeking to change Claimant's disability status from total to partial. At issue was the fact that although the IRE physician acknowledged Claimant's work-related conditions included RSD and brachial plexus stretch, he found no objective evidence of either condition at the time of the IRE. The AMA guidelines require objective evidence of a condition for it to be rated. Therefore, the IRE physician assigned zero impairment ratings to both of these work-related conditions.  Claimant's medical expert testified that although Claimant presented with no symptoms of RSD on the date following the IRE, he did exhibits symptoms five months later and his RSD symptoms fluctuated significantly. The Judge accepted this testimony and denied the employer's Modification petition seeking partial disability status. The Board affirmed holding that the IRE was invalid since not all work related conditions were rated.

The Commonwealth Court reversed, holding that an IRE that assigns a zero impairment rating to a work injury does not render the IRE invalid. The Court noted that the IRE physician acknowledged Claimant's work-related conditions of brachial plexus stretch and RSD, and only testified that he did not find objective evidence of the conditions, in accordance with the AMA Guidelines. The Court further concluded that Claimant's condition at the time of the IRE is the only thing that must be considered when determining the validity of the IRE. The Court also clarified that the purpose of the IRE is to assess the Claimant's degree of impairment, not to determine whether the Claimant is fully recovered. Under the AMA Guidelines, the IRE physician is to assign impairment ratings to injuries that exhibit objective symptoms at the time of the IRE.

Conclusion: Claimant's condition at the time of the IRE, and not over a period of time, is what governs the IRE's validity. The assignment of a zero percentage impairment to a condition that has been deemed compensable doesn't invalidate the IRE.

Jacqueline O'Neill v. WCAB (News Corp. Ltd.), No. 2203 C.D. 2010 (Filed June 15, 2011, Ordered published September 15, 2011)

Issue: Whether a doctor's skepticism towards an accepted work-injury renders his opinion incompetent and insufficient to support a termination of benefits?

Answer: No.

Analysis: On November 1, 1993, Claimant suffered a compensable work injury, accepted via NCP as left carpel tunnel syndrome. Claimant's injury was subsequently expanded to include cumulative trauma disorder, bilateral carpal tunnel, thoracic outlet syndrome, scapholunate ligament injury, and depression. The parties later stipulated that Claimant no longer suffered from depression.  Employer filed a Termination Petition alleging full recovery. Employer's medical expert had expressed skepticism as to the Claimant's injuries as defined in the earlier litigation but found that she had fully recovered from all injuries. The Judge granted the termination and the Board affirmed.

The Commonwealth Court affirmed, holding employer's medical expert's testimony was competent and sufficient to support the termination of Claimant's benefits. The Court noted that although the expert had expressed skepticism he did not reject or refuse to accept that the Claimant suffered the injuries.

Conclusion: A doctor is free to express skepticism towards a Claimant's work-related injury, so long as he acknowledges that it has been established, and renders an opinion as to whether the Claimant has recovered from that injury.                    

Editor
David G. Greene, Esq.

Co-Editors
Peter Weber, Esq./Renee M. Porada, Esq.

Contributing Authors
Charece Z. Collins, Esq./David A. Assalone, Esq./Timothy J. Yunker, Esq.

Media Contacts

Sara L. De Long
267.295.3377
sdelong@wglaw.com

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