Pennsylvania Case Update

01.23.14

Did a mother (claimant) paid to care for her son (employer) in her own home sustain a compensable injury when she was stabbed by her son?

 
In O’Rourke v. WCAB (Gartland); No. 1794 C.D. 2012, decided on 01/18/2014, a mother (the claimant) was paid under a state funded program to provide care in her home for her son (the employer). While she was sleeping in her bed, the mother was stabbed by her son and sustained significant injuries. The WCJ awarded benefits on the basis that the claimant’s employment required her to be on the employer’s premises and there was no proof that the attack was personal in nature. A divided Appeal Board reversed, but the Commonwealth Court reinstated the WCJ’s award of benefits holding that under the “bunkhouse rule,” the claimant lived on the employer’s premises because she was practically required to do so.
 
Comments: This is an odd decision with odd facts. The dissent, in a three line opinion, seemed to aptly state that it defies logic to provide workers’ compensation to a mom who is stabbed by her son while she is sleeping in her own home.
 

Are you required to issue a Notice of Ability to Return to Work during the litigation of a Claim Petition?

 
In School District of Philadelphia v. WCAB (Hilton), No. 598 C.D. 2013, decided on 01/07/2014, the claimant alleged a work related injury due to the stress of her job. The employer issued a Notice of Denial and re-assigned the claimant to teach at a different school. In the resulting Claim Petition, the WCJ awarded benefits for a closed period ending when the employer re-assigned the claimant. The Board reversed. On appeal, the Commonwealth Court reinstated the suspension, holding that the employer was not required to issue the Notice of Ability to Return to Work for the re-assignment.
 
Comments: It is best to send the Notice of Ability to Return to Work any time there is a new or different medical release regardless of the type of petition at issue. However, this case says that the form is not required in a Claim Petition setting and suggests the form is not required prior to liability being formally accepted by a Bureau document.
 

When UR reviewer is late submitting the UR determination is it invalid and must the treatment be found reasonable and necessary?

 
In Womack v. WCAB (The School District of Philadelphia), No. 1137 C.D.2013; decided January 14th 2014, the UR determination was submitted 11 days late per the regulations and claimant argued that the report was invalid and that treatment under review must be found reasonable and necessary. The WCJ rejected this argument and determined that the treatment was unreasonable and unnecessary. The WCAB affirmed.
 
The Commonwealth Court also affirmed and noted that the employer/carrier who files the UR Request has no control over the health care provider assigned to review the treatment and can't control the timely submission of the UR Determination.
 
Comment: In the event a particular UR reviewer is chronically late submitting the UR Determination, the Bureau should be made aware of the problem so that appropriate measures can be taken to warn the reviewer of the need to comply with the time limitations and for potential removal from URs if the reviewer cannot comply.
 
For more information please contact Carl Smith at csmith@wglaw.com or 412.894.0107 or Peter Weber at pweber@wglaw.com or 215.972.7901.

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