Posted

Issue

WINDOW SHOPPING NOT SUFFICIENT TO DEFEAT SUSPENSION/RETIREMENT PETITION

The Commonwealth Court has addressed claimant’s burden of proof to defeat a Suspension Petition after retirement. Specifically, the Court reversed both the WCJ and WCAB and granted a suspension of benefits where the claimant testified that he was seeking employment. The facts established that claimant registered at a CareerLink website one week prior to hearing and inquired about a job with a local employer two weeks prior to the hearing. He also testified that he would review the CareerLink website and newspaper ads. The Court explained that searching the internet and newspaper ads for jobs without more does not constitute a job search, but instead constitutes "surfing" the web and reading the newspaper – window shopping.

See: The Pennsylvania State University/The PMA Insurance Group v. WCAB (Hensal), 948 A.2d 907 (Pa.Cmwlth. 05/19/08)

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KACHINSKI STANDARDS APPLY TO ACT 57 JOB OFFER REQUIREMENTS

On December 27, 2006, the Supreme Court affirmed without opinion the Order of the Commonwealth Court.

Claimant had worked for the employer as a glass machine operator. She sustained bilateral carpal tunnel syndrome and had undergone both right-sided and left decompression surgeries. Claimant subsequently returned to light-duty work and was thereafter laid off. Employer offered "opt-out" agreements or separation packages to employees. While claimant’s husband, also an employee, accepted such package, claimant did not. Claimant’s husband then obtained work in Oklahoma and the family relocated. Several months thereafter, the employer offered claimant her previous light duty job as storeroom assistant at wages equal to or greater than her pre-injury average weekly wage.

See: Motor Coils Manufacturing/WABTEC v. WCAB (Bish), 912 A.2d 212 (Pa. 12/27/06)

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INJURY FROM "HORSEPLAY" MAY BE COMPENSABLE DESPITE VIOLATING A POSITIVE WORK ORDER OF EMPLOYER

The workers’ compensation judge granted the claim petition for total disability as a result of a left leg injury sustained in the course of a work incident whereby the claimant was "bear hugged" by a co-worker and fell to the ground. The claimant testified that he was a "victim" not an active participant in the horseplay. Employer produced testimony that the co-workers were mutually engaged in horseplay. The claimant admitted that horseplay was prohibited by the employer.

See: Sysco Food Services of Philadelphia v. WCAB (Sebastiano), (Pa. Cmwlth. 01-23-08).

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ISSUANCE OF A PROPERLY WORKED NOTICE OF COMPENSATION DENIAL PERMITS THE DEFENDANT TO FILE A UTILIZATION REVIEW CHALLENGING THE CLAIMANT’S ONGOING MEDICAL AND/OR CHIROPRACTIC TREATMENT

Defendant/employer need not file a medical-only Notice of Compensation Payable in order to properly acknowledge a claimant’s work-related injuries as being of a medical-only nature. Furthermore, a defendant/employer need not issue a medical-only Notice of Compensation Payable in order to challenge a claimant’s medical or chiropractic treatment pursuant to the Utilization Review.

See: : Bureau of Workers’ Compensation v. WCAB (US Food Service) ), 932 A.2d 309 (Pa. Cmwlth. 8/22/07).

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EMPLOYER IS NOT ENTITLED TO SUPERSEDEAS FUND REIMBURSEMENT WHERE TERMINATION PETITION GRANTED AFTER C&R WHICH RESOLVED ALL PAST, PRESENT AND FUTURE LIABILITY

The employer filed a Petition for Termination. While it was pending, the parties entered into a Compromise and Release Agreement under which the employer paid the claimant a lump-sum to fully satisfy the employer’s past, present and future liability to pay the claimant benefits. A WCJ approved C&R. Two weeks later, the WCJ also granted employer’s Termination Petition. The employer then filed an application for supersedeas fund reimbursement. The Judge granted the Petition and the Board affirmed. The Commonwealth Court reversed and instead the Court concluded the employer was not entitled to reimbursement from the supersedeas fund.

See: Nathan Armstrong vs. W.C.A.B. (Haines & Kibble House, Inc.) , 931 A.2d 827 (Pa.Cmwlth. 2007)

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COURT REAFFIRMS RULE THAT EMPLOYER IS ENTITLED TO SUPERSEDEAS FUND REIMBURSEMENT AFTER IT PREVAILS IN LITIGATION. THIS WAS TRUE EVEN THOUGH THERE WAS A STIPULATION AS TO ONE FACTUAL ISSUE BUT EMPLOYER STILL CONTESTED P ETITION.

Claimant filed a Petition for Reinstatement on August 14, 2000. However, his benefits had been previously suspended on September 19, 1992 and terminated effective November 3, 1995. Defendant denied the Petition arguing that it was barred by the three year statute of limitations. The parties stipulated that claimant was totally disabled between 1/1/98 and 1/23/01 but that the Judge should address the statute of limitations argument.

See: J.P. Lamb Construction, Inc. v. WCAB (Bureau of Workers’ Compensation) 909 A.2d 18 (Pa. Cmwlth. 10/11/06).

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THE CLAIMANT HAS THE BURDEN TO REBUT THE CONCLUSION THAT
CLAIMANT LEFT THE WORK FORCE BY ACCEPTING A PENSION

The claimant must establish (1) he is seeking employment or (2) the injury forced him to retire.

See: Mason v. WCAB (Joy Mining Machinery), (Pa. Cmwlth. 03-18-08)

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THE CLAIMANT MUST ESTABLISH A LOSS OF USE VIA COMPETENT AND CREDIBLE MEDICAL EVIDENCE OF A PERMANENT LOSS FOR ALL PRACTICAL INTENTS AND PURPOSES

In Jacobi v. WCAB (Wawa, Inc.) (Pa. Cmwlth. 02-12-08), the Appeal Board correctly reversed the workers’ compensation judge’s decision granting the claimant’s Petition for Review of Benefits Payable as a result of the original work injury. While employed as a truck driver/deliverer, the claimant caught his fingers in a freight elevator door. Notice of Compensation Payable described the injury as a crush injury to claimant’s right index and middle fingers. Temporary total disability benefits were paid through claimant’s date of return to work. The claimant filed a subsequent Review Petition alleging a loss of use of the right middle finger following a surgical procedure. The claimant actually had three surgeries. In the last procedure, the distal joint was fused and a metal screw was inserted.

See: Jacobi v. WCAB (Wawa, Inc.) (Pa. Cmwlth. 02-12-08)

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The performance of an Impairment Rating Evaluation (IRE) is not an admission of permanency of claimant’s disability and does not preclude subsequent litigation of any change in employee’s disability, where the employee’s condition is not irreversible. Although the defendant did not prevail in the underlying termination petition litigation, the Court concluded that a termination petition was not prohibited where a defendant filed a termination petition based upon a change in the employee’s disability. A finding of "permanent disability" is not the equivalent of a finding that the injury is irreversible. A petition would be precluded where the claimant’s condition is clearly irreversible, such as in the case of a progressive occupational disease.

See: Schachter v. WCAB (SPS Technologies), No. 320 C.D. 2006 (Pa. Cmwlth. 10-12-06).

Practice Pointer: As a termination/modification/suspension petition is not precluded by an impairment rating evaluation, we recommend utilization of the IRE procedure to commence the 500 week period of partial disability benefit status.

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The Claimant May Be Required To Release Medical Records As Part Of IME

The claimant duty to cooperate with an independent medical evaluation (IME), pursuant to §314 of the Act, includes a requirement that claimant provide a release of her/his relevant medical records. Cooperation requires more than mere attendance at the appointed time and place. Prior appellate decisions interpret the term "physical examination" to include all reasonable medical procedures and tests necessary to permit a provider to determine the extent of a claimant’s disability. This includes non-evasive diagnostic testing such as an MRI or bone scan. In this case, the matter was remanded for a determination of whether the claimant’s psychiatric treatment records were relevant to the physical injuries with psychological components. See: Central Dauphin School District v. WCAB (Siler), No. 612 C.D. 2006 (Pa. Cmwlth. 10-17-06).

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A claim petition filed in May of 2002 alleges the loss of use of the right arm for all practical intents and purposes as a complication of the work-related back surgery. Defendant admitted the compensability of the right arm injury. There was no prior petition for review of the Notice of Compensation Payable, the claimant made that request at the initial claim petition hearing. The workers’ compensation judge awarded loss of use benefits relying upon claimant’s "discovery rule" argument. He argued that the statute of limitations did not commence until he "knew" of the work relationship of loss of use, which occurred via his treating physician report in December of 2002 (after the date of the filing of the claim petition?). The Commonwealth Court rejected claimant’s "discovery rule" argument as this argument has been rejected in similar injury claims, including aggravation of arthritis conditions. (See: Young v. WCAB (J&L Steel), (a FKWZ&G case).

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The Supreme Court affirmed the decision in Gardner, that an Insurer WAIVES it's right to an Impairment Rating Evaluation (IRE), if it is not requested within 60 days of the claimant's receipt of 104 weeks of total disability benefits. The court distinguished this "automatic relief" provision from the right to request an IRE at a subsequent time. The court did "preserve" the right to request an IRE, which would not provide automatic relief. The insurer would be required to obtain an agreement with claimant or file a petition, to obtain any relief.

Gardner v. WCAB (Genesis Health Ventures) decided December 28, 2005.

PRACTICE POINTER: To obtain an IRE, the insurer MUST request an examination within these strict time parameters, within 60 days of RECEIPT of 104 weeks of TTD benefits.

We recommend diary of all injury cases for consideration of an IRE remedy. We continue to recommend the IRE remedy, in limited circumstances, where a total recovery is not anticipated.

ISSUE: Claimant filed a Claim Petition against the employer alleging an aggravation of a preexisting low back condition. The employer/carrier filed a late answer due to a misunderstanding by the employer concerning the claim procedure. Nevertheless, the case was defended on the basis that, despite the late answer, the substantial evidence of record showed that the claimant’s current disability, which resulted in additional surgery, was related to a prior back injury that the claimant sustained while working for another employer.

SEE: Steve Deliman v. Pinkerton Security Services, Inc.

Issue: A claimant’s AWW for a prior work injury should be used in calculating AWW for a subsequent work injury when claimant missed work due to the prior work during the four quarters immediately proceeding the subsequent injury. The PA Supreme Court AFFIRMED the decision of the Commonwealth Court in a highly contentious case where multiple parties submitted briefs. see: William Colpetzer v. WCAB (Standard Steel), David Zerby v. WCAB (Reading Anthracite), 2005 Pa. Lexis 620, March 30, 2005.

Where a claimant suffers two work related injuries to two different body parts, and each injury was a substantial contributing factor to his or her total disability (and each injury is covered by a separate insurance carrier), the claimant’s benefits are appropriately paid by both insurers on a pro-rata basis. The Commonwealth Court AFFIRMED the decision of the WCJ and Board. see: Guard Insurance Group v. WCAB (York and TIG Premier Insurance), 864 A.2d 1285 (Pa. Commw., January 25, 2005).