SUPREME COURT CASES
Expansion of Injury Accepted in Notice of Compensation Payable
Jeanes Hospital v. WCAB [Shawn Hess], No.231 MAP 2003 [May 12, 2004]
This case addressed the appropriate mechanism by which a claimant can institute proceedings to amend a Notice of Compensation Payable [ hereinafter "NCP"] to add additional injuries.
The claimant was injured on 8/31/95 and received temporary total indemnity benefits pursuant to an NCP which described the claimant's injury as "low back". The employer filed a Petition to Terminate on 9/1/99 alleging that the claimant had fully recovered from his work injury as of 8/23/99. The claimant then filed a Petition to Review Compensation Benefits on 9/21/99 seeking to expand the NCP to include a shoulder injury, fibromyalgia, thoracic outlet syndrome and depression.
The Supreme Court noted that the record did not show that formal notice of the additional injuries was provided to the employer prior to the filing of the Petition to Review in 1999. However, as this issue was not raised by the employer, the same was not addressed by the Court. Nonetheless, the Court noted that "...we find the prevailing custom of delaying notification of additional injuries...until the employer files a Termination or Suspension Petition troubling".
The Court viewed the issue before it to be whether a claimant who develops a subsequent physical or psychological condition is required to file a Claim Petition seeking an adjudication that the condition is compensable, and thereby be subject to the three statute of limitations contained in Section 315 of the Pa. Workers' Compensation Act, or a Petition to Review seeking to amend the NCP. The same "dilemma" was said to present when the NCP does not reflect all of the injuries sustained by the claimant.
The Court reasoned that Section 413[a] of the Act permits a WCJ to amend an NCP it it is materially incorrect or if the disability status of the claimant has changed. An NCP was said to be materially incorrect if the accepted injury does not reflect all of the injuries sustained in the initial injury. Conversely, conditions that result or flow from the original injury represent an increase in disability. Focusing on the "often overlooked" third paragraph of Section 413 [a] which requires that petitions filed pursuant to said section be treated the same "as if such petition were an original claim petition", the Court held that it is unnecessary for a claimant to file a new Claim Petition for additional injuries not accepted by the employer, because the WCJ is empowered to and must treat a petition seeking to modify the description of injury as if it were a Claim Petition. That is, a petition seeking to expand the description of the accepted injury functions as a Claim Petition, with the same attendant burden of proof. It followed that the claimant correctly filed a Petition to Review, and was not required to file a Claim Petition.
The basic premise of the Supreme Court's holding is that a claimant is only required to file a Petition to Review when seeking to correct the description of injury contained in an NCP. While such a petition requires the claimant to satisfy the same burden of proof as if litigating a Claim Petition in the context of establishing the causal relationship of the additional injuries to the original accepted work injury, the important distinction is that the claimant is not subject to the three year statute of limitations contained in Section 315 of the Act.
COMMONWEALTH COURT CASES
Uninsured Motorist Benefits
Safe Auto Insurance Company v School District of Philadelphia, No. 2247 C.D. 2004 [April 13, 2005]
The claimant sustained a compensable injury as a result of being involved in a motor vehicle accident with an uninsured driver. The employer, a school district, which was self insured, paid the claimant workers' compensation benefits. The claimant also demanded uninsured motorist benefits from her employer. The employer denied the latter claim, asserting that it was immune from any obligation to pay such benefits pursuant to the Political Subdivision Tort Claims Act.
The Court held that the Supreme Court's holding in Hackenberg v. Southeastern Pennsylvania Transportation Authority, 586 A.2d 879 [Pa. 1991] controlled. That is, an employee is not entitled to uninsured motorist benefits from a self-insured employer.
Retirement
County of Allegheny v. WCAB [Weis], No. 1478 C.D. 2004 [April 15, 2005]
The claimant sustained a compensable injury to his knee in 1981. After paying indemnity benefits for 20 years, the employer filed a Petition to Suspend in 2001 alleging that the claimant had voluntarily withdrawn from the work force. The claimant never returned to work after his work injury and did not seek work after what he termed his "retirement".
Generally, to obtain a suspension of benefits, an employer must demonstrate the availability of work which the claimant is physically able to perform in the context of his work injury. Kachinski v. WCAB [Vepco Constr. Co.], 532 A.2d 374 [Pa. 1987]. The employer presented no evidence to establish the availability of such work in the instant case. However, the Court reasoned that the Supreme Court has made a showing of work availability inapplicable in cases where the claimant retires. Southeastern Pennsylvania Transp. Auth. v. WCAB [Henderson], 669 A.2d 911 [Pa. 1995]. Here it was undisputed that the claimant had retired and did not seek employment after retirement. Therefore, the claimant was required to prove that he had to retire because his work injury caused him to be forced out of the entire labor market as opposed to simply being incapable of performing his preinjury job. Absent a showing that the claimant was forced to retire from the entire labor market as a result of his work injury or that he had sought employment, the employer was entitled to a suspension of benefits based on the claimant's retirement.
Fee Review
Temple University Hospital v. Pennsylvania Department of Labor, No. 1327 C.D. 2004 [February 9, 2005]
This case was originally an unreported Opinion. It was designated as a reported Opinion by Order dated May 5, 2005.
On May 3, 2001 the medical provider submitted a bill for services provided to a claimant in the amount of $106,119.81. The insurance carrier issued checks on May 7, 2001 and October 26, 2001 in the amounts of $20,190.69 and $13,965.65 respectively. On July 15, 2002 the provider filed an Application For Fee Review pursuant to Section 306 [f.1] of the Pennsylvania Workers' Compensation Act, requesting a review of the amount and timeliness of the payments in issue. Section 306[f.1][5] of the Act governs the initiation of fee disputes and states that a provider which has submitted reports and a bill to an employer or insurer and disputes the amount of payment rendered or the timeliness of the payment "shall file an application for fee review with the department no more than thirty [30] days following notification of a disputed treatment or ninety [90] days following the original billing date". Having failed to comply with either time limitation, the Application For Fee Review filed on behalf of the provider was time barred.
Impairment Rating Evaluation
Groller v. WCAB [Alstrom Energy Systems], No. 2521 C.D. 2004 [March 1, 2005]
This case was originally an unreported Opinion. It was designated as a reported Opinion by Order dated May 5, 2005.
The employer requested the designation of a physician to perform an IRE. Because this request was not made within 60 days after the claimant's receipt of 104 weeks of temporary, total indemnity benefits as required by Section 306[a.2][1] of the Workers' Compensation Act, the claimant did not appear for the original IRE. The employer filed a petition seeking to compel the claimant's attendance. The WCJ ordered the claimant to appear for an IRE. The examination took place and an impairment rating of 28% was determined. As a result, the employer changed the claimant's disability status to partial.
The claimant filed a Petition to Review alleging that the IRE was not performed in a timely manner pursuant to Gardner v. WCAB[Genesis Health Ventures], 814 A.2d 884 [Pa. Cmwlth. 2003]. The employer argued that because the claimant never appealed the WCJ's original IRE Order, res judicata barred the claimant from relitigating the issue. Reasoning that an Order directing a claimant to submit to a medical examination is interlocutory, and that the Order requiring the claimant to submit to the IRE neither affected the claimant's benefits nor the employer's obligation to pay benefits, the Court held that the Order requiring the claimant to attend the IRE was indeed interlocutory. Therefore, the issue whether the IRE was requested in a timely manner was not barred by the doctrine of res judicata.
Costs of Prosecution
Jones v. WCAB [Steris Corp], No. 1804 C.D. 2004 [May 19, 2005]
Section 440[a] of the Workers' Compensation Act authorizes an award to a claimant for a "reasonable sum for [litigation] costs". The condition precedent for an award of costs is where a "matter at issue has been finally determined in whole or in part" in favor of a claimant. The claimant's petition raised two distinct issues - whether he sustained a work related injury and, if he did, whether the injury was disabling. The claimant prevailed on the first issue, but on the second issue he did not. Absent a finding by the WCJ that the claimant's costs were incurred on the winning issue or the losing issue, the same were not reimbursable as there was no finding that they relate to the "matter at issue".
Supersedeas Fund Reimbursement
Bureau of Workers' Compensation v. WCAB [Consolidated Freightways, Inc.], No. 2465 C.D. 2004 [May 25, 2005]
On October 13, 1995, the claimant petitioned to reinstate indemnity benefits for the closed period from January 12, 1994 through May 1, 1995 in the context of an accepted injury sustained on December 11, 1992. The claimant ultimately prevailed before the WCAB pursuant to an Opinion and Order circulated on October 30, 2001.
The employer filed a Petition for Review with the Commonwealth Court together with a request for supersedeas on November 21, 2001. The latter request was denied but the employer ultimately prevailed before the Commonwealth Court.
Following the Commonwealth Court's decision, the employer filed an Application for Supersedeas Fund Reimbursement. The Bureau argued that reimbursement was not appropriate pursuant to Wausau Insurance Companies v. WCAB [Commonwealth of Pennsylvania], 826 A.2d 21 [Pa. Cmwlth. 2003] in that the reinstated benefits the employer paid to the claimant were attributable to a period of disability that predated the employer's petition for supersedeas. The Court disagreed, finding that the instant case was distinguishable from the facts which presented in Wausau, noting that the latter case involved an original claim and the instant case a Petition to Reinstate.
Petition For Utilization Review
County of Allegheny v. WCAB [Geisler], No. 1886 C.D. 2004 [June 6, 2005]
The employer filed a Petition For Utilization Review challenging the reasonableness and necessity of treatment provided by Dr. Behm. Because Dr. Behm failed to provide medical records to the URO, the URO issued a determination that the doctor's treatments were neither reasonable nor necessary. 34 Pa. Code Section 127.464[a]. The claimant filed a Petition For Review, and prevailed.
On Appeal, the employer argued that where a URO determines that treatment was neither reasonable nor necessary because the provider did not provide his medical records to the URO, a WCJ cannot review the merits of the URO's determination. That is, the WCJ's review must include the reviewer's report. Here a report was not issued because the reviewer failed to provide the necessary records. Absent the issuance of the reviewer's report there is nothing for the WCJ to review in a Petition For Review. In short, the WCJ would not have jurisdiction over the latter petition and should dismiss the same as a matter of law. The Commonwealth Court agreed, emphasizing that 34 Pa. Code Section 127.464 mandates that where the provider under review fails to mail records to the URO within 30 days of the date of the request for the records, the URO shall render a determination that the treatment under review was not reasonable or necessary, and further states the URO may not then assign the request to a reviewer. Further, for a Petition For Review to proceed, the reviewer's report must be in the record. Workers' Compensation Act 306[f.1][6][iv].
Medical Evidence in a Claim Petition
Joy Global, Inc. v. WCAB [Hogue], No. 78 C.D. 2005 [June 21, 2005]
The claimant filed a Claim Petition seeking the payment of various medical expenses as a result of an ankle injury on January 30. 2003. No medical depositions were recorded as no indemnity benefits were in issue. The only medical evidence offered on behalf of the claimant were various reports authored by nurses at a panel provider for the employer. The Commonwealth held that such reports constituted competent medical evidence as nurses are deemed to be "health care providers" as provided in Sections 109 and 422[c] of the Workers' Compensation Act and because the claimant was only seeking the award of medical benefits.
Assessment of Attorney Fees For an Unreasonable Contest
Bates v. WCAB [Titan Construction Staffing, LLC], No. 934 C.D. 2004 [June 29, 2005]
The WCJ granted the claimant's Penalty Petition but denied an award of counsel fees based on a finding that the employer's contest of the Penalty Petition was reasonable. The issue on Appeal was whether an employer's contest of a Penalty Petition is per se unreasonable as a matter of law because the WCJ finds that the employer violated the Workers' Compensation Act. The Commonwealth Court declined to apply such a rule, reasoning that there is no "...per se rule that any time a claimant demonstrates a violation of the Act, however slight or unintentional, or succeeds to any extent in a penalty petition, the employer's contest must be deemed unreasonable as a matter of law". It was instead held that each case must be decided on its own facts in order to determine whether an employer's contest of a Penalty Petition is unreasonable.
Social Security Retirement Benefits Offset
Pittsburgh Board of Education v. WCAB [Davis], No. 2371 C.D. 2004 [June 30, 2005]
Section 204[a] of the Workers' Compensation Act provides that 50% of "old age" benefits under the Social Security Act shall be credited against indemnity benefits but not if such benefits were received prior to the compensable work injury. The claimant did not actually receive his social security retirement benefits until after his work injury. The Commonwealth Court reasoned that pursuant to Section 402[a] of the Social Security Act, one becomes entitled to social security benefits upon application for those benefits after attaining retirement age. In the instant case, the claimant became entitled to social security retirement benefits when he applied for them before the work injury as opposed to the date he actually began receiving the same after his work injury. Therefore, he "received" those benefits prior to his work injury and no offset was appropriate pursuant to Section 204[a].