Pennsylvania Weekly Case Law Summary

12.19.13

Can the employer suspend benefits if the claimant returns the LIBC 760 undated or fails to return the original?

In McCafferty v. WCAB (Trial Technologies, Inc.), No 208 C.D. 2013; FILED: November 21, 2013, the claimant’s attorney returned the signed, but undated form, via fax. The carrier rejected the fax; advising that McCafferty must have the original and it must be dated.

The Court agreed that the form must be dated and thus the suspension of benefits was proper. The Court noted, however, that a fax transmission of the form is acceptable.

Comment: Insurers should always send the employee verification forms while a claim petition is pending as the Act clearly allows this practice.

When a health care provider files an Application for Fee Review is the provider required to prove it is timely?

In Gupta v. Bureau of Workers’ Compensation Fee Review Hearing Office (Erie Insurance Co.), No 753 C.D. 2013; FILED: November 21, 2013, the doctor’s billing vendor submitted a bill for TMR treatment which the carrier denied as being experimental. Provider then filed a fee review but more than one year after the bill was submitted.

The Court agreed with the denial of the fee review. The Act requires a fee review to be filed by a provider no more than 30 days after notification of a disputed treatment or 90 days after the original billing date. The provider is the party that must establish that the fee review was timely; which it failed to prove in this case.

Comment: We suggest that the carrier be prepared to establish when the EOB was mailed to the provider.

Is the claimant required to prove both a work related injury and a loss of earnings due to the injury in order to recover wage loss benefits?

In Battles v. WCAB (Pittsburgh Steelers Sports, Inc.), No. 225 C.D. 2013; FILED: August 29, 2013, the claimant was under a one year contract with the Steelers but sustained an injury in the first game of the 2004 season and did not play again that season. The Steelers paid appropriate benefits and the claimant was medically cleared to play on August 20, 2005, but was not offered a roster spot with the Steelers or any other team.

The WCJ found that the claimant lost his roster spot because the Steelers found a better player and not because of the injury. The Commonwealth Court agreed that the claimant must prove an injury; disability due to the injury; and the duration of the disability. It stated, “Workers’ compensation benefits are not intended as a remedy where the claimant’s loss in earnings is attributable to factors other than the work injury.”

Comment: When accepting an obvious work injury, look at the other parts of the claimant’s burden. Is there a disability (a loss of earnings) due to the injury? If so, what is the duration of that disability?

Is the employer required to first prove that it has no suitable job for the claimant before undertaking a labor market survey and modification petition?

In Reichert v. WCAB (Dollar Tree Stores), No. 42 C.D. 2013; FILED: November 8, 2013, the employer filed a modification petition based on a labor market survey. The employer’s district manager testified that the employer had no jobs that fit the claimant’s restrictions. The WCJ found the employer’s evidence credible and granted the modification petition.

The Commonwealth Court affirmed and stated that the employer is not required to initially prove the non-existence of a job at its facility. Rather, the claimant may present evidence that the employer had a specific job vacancy that the claimant was able to perform. Then the burden shifts to the employer to rebut the claimant’s evidence. The Court also rejected the argument that the employer’s vocational expert must contact the employer about possible job openings before conducting the labor market survey.

Comment: Labor market survey cases are becoming increasingly complex. We still recommend that the vocational expert make direct contact with the employer to inquire about the possible availability of a job for the claimant. The inquiry should be documented and should be as detailed as possible. If a job does exist, it needs to be offered before a LMS proceeds.

Does a WCJ have jurisdiction over a Petition for Review of a UR Determination where the treating doctor provides a written and oral summary but no medical records?

In Levantakos v. WCAB (Spyros Painting), No. 2156 C.D. 2012; FILED: December 5, 2013, the Commonwealth Court held that a summary of treatment prepared for the review process and an oral description of the treatment rendered do not constitute “records” within the meaning of the regulations. The requirement for records applies to providers located out of the country. The Court affirmed the finding of unreasonable and unnecessary treatment based on the lack of records determined by the UR reviewer and the WCJ’s dismissal of the petition to review the determination based on the lack of records which denied the judge jurisdiction.

Comment: There is no exception to the requirement that records must be provided based on the fact that treatment was provided in another country.

Can the question of whether an entity submitting a bill for treatment is a provider or merely a billing agency be decided in the fee review process?

In Selective Insurance Company of America vs. Bureau of Workers’ Compensation Fee Review Hearing Office (The Physical Therapy Institute), No. 613 C.D. 2013; FILED: December 6, 2013, the Commonwealth Court determined that this issue must be decided by a workers’ compensation judge and not by the fee review process. Rather, the fee review process is only for deciding the amount and the timeliness of payments for treatment.

Comment: If this issue is one you need to raise, refer the claim to counsel for the filing of a petition. The argument advanced by the employer was that the billing vendor was not a provider and thus payments were not due and owing under the Act.

If a mother with a totally incapacitated daughter is receiving fatal benefits, what is the daughter entitled to receive upon the death of her mother?

In Wilson vs. Travelers Casualty and Surety Company and Honeywell, Inc., No. 863 C.D. 2013; FILED: December 3, 2013, the Commonwealth Court explained that the totally incapacitated daughter was a dependent entitled to continue receiving fatal benefits after the death of her mother.

Where there is no widow, one child is entitled to receive 32 percent of the deceased father’s wages up to the maximum compensation rate for the relevant year.

Comment: The proper procedure, according to the Court, is to enter into a Supplemental Agreement to change the benefit rate from 60 percent (widow and one child) to 32 percent (one child). The child would need an appointed guardian who would sign for agreement for the dependent child.

Media Contacts

Sara L. De Long
267.295.3377
sdelong@wglaw.com

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