TT&H eNotes: Workers' Compensation: January 2017
D. Klamut v. WCAB (Fleming Steel Company), 405 C.D. 2016, (Pa. Commw. Ct. 2016): CLAIMANT’S MEDICAL EXPERT’S OPINION WAS INCOMPETENT BECAUSE IT WAS BASED ON INACCURACIES AND HEARSAY ADMITTED WITHOUT OBJECTION WHEN UNCORROBORATED IS NOT SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT A CLAIM
OPINION NOT REPORTED.
Background: Claimant worked for Fleming Steel Company, and while he was repairing a submarine hangar, Claimant was exposed to pigeon excrement for one month. After coughing caused him to black out, Claimant started treating with a doctor. Claimant smoked for about forty years, although his doctor documented that Claimant stopped smoking in 2008. Claimant was hospitalized in February of 2012 and actually quit smoking at that time. In May of 2012, the doctor evaluated causes for the Claimant’s lung issues, other than smoking, and diagnosed him with Pigeon Fancier’s disease based on assumed facts which included that Claimant quit smoking in 2008 and Claimant was exposed to pigeon excrement from 2009-2012.
Claimant filed a claim petition alleging that his pulmonary condition is related to being exposed to pigeon excrement while working. When Claimant testified, he admitted that his exposure to pigeons was limited to one month. He also admitted to smoking a pack a day for forty years. Claimant’s medical expert opined Claimant had Pigeon Fancier’s Disease based on Claimant’s rendered history. Claimant’s treating physician made two assumptions in giving his opinions: (1) Claimant quit smoking in 2008 and did not smoke from 2009 through 2012 and (2) between 2009 and 2012, Claimant was exposed to pigeon excrement. Without this history, the expert would not have related Claimant’s condition to Pigeon Fancier’s disease. Also, since he assumed that Claimant quit smoking in 2008, from 2009 through 2012, Claimant’s lungs should have improved.
Conclusion and Legal Analysis: The WCJ granted the claim petition. However, the WCAB reversed and the Commonwealth Court affirmed the WCAB’s Order. When a medical expert’s opinions are based on inaccurate assumptions, the medical expert’s opinion is incompetent. Claimant’s medical expert’s testimony was incompetent because his opinion was based on two important and inaccurate assumptions: (1) the expert assumed that Claimant quit smoking in 2008 and (2) was exposed to pigeon excrement between 2009 to 2012. A report submitted subsequent to the deposition, even if admitted without objection, is hearsay and if it relates to a causal connection, it must be corroborated by competent medical evidence. Although the submitted report confirmed the expert’s diagnosis and based it on the correct dates that Claimant was exposed, since there was no medical evidence corroborating the hearsay, it was not competent evidence to support the claim. Therefore, Claimant’s medical expert’s deposition and the report was not substantial competent evidence to meet Claimant’s burden on the claim petition.
Take Away: It is important to effectively cross-examine Claimant’s medical expert in order to highlight inaccurate facts or the inaccurate history provided by the Claimant to show that the expert’s opinions are based solely on inaccurate facts, rendering the expert’s opinions incompetent.
Any questions regarding this case can be directed to Marc Aoun at 610-332-7006 or at email@example.com.
County of Allegheny v. WCAB (Parker) and Parker v. WCAB (County of Allegheny): An employer is entitled to reimbursement from claimant’s counsel for erroneously awarded unreasonable contest attorney’s fees.
Background: Claimant sustained a work-related 1993 shoulder injury. In 2007, employer filed a suspension petition alleging he refused a job within his work restrictions. The suspension petition was granted and claimant appealed. In 2009, the WCAB reversed on the basis of collateral estoppel and held that claimant’s counsel was entitled to an unreasonable contest attorney’s fee. Both parties appealed, and in 2011, the WCAB modified the attorney’s fee award, and ordered employer to pay counsel an attorney’s fee for work done regarding the suspension petition and the appeal from that decision. Both parties appealed to the Commonwealth Court and the employer requested supersedeas, which was denied. Following the denial, employer paid claimant’s counsel an unreasonable contest attorney’s fee of $14,750. In September 2012, the Commonwealth Court reversed and held that the WCAB erred in finding that employer’s 2007 suspension was barred by collateral estoppel. As claimant did not prevail, counsel was also erroneously awarded an unreasonable contest attorney’s fee.
Employer’s application for supersedeas fund reimbursement was denied with regard to the unreasonable contest attorney’s fee. Employer then filed a petition seeking an order requiring claimant’s counsel to refund the $14,750 attorney’s fee. The WCJ denied employer’s petition and the WCAB affirmed. Employer appealed to the Commonwealth Court, arguing that the Commonwealth Court’s decision in Barrett v. WCAB (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth. 2010), allows for direct reimbursement from claimant’s counsel.
Holding: The Commonwealth Court reversed the decisions of the WCJ and WCAB, holding that employer was entitled to reimbursement of $14,750 in unreasonable contest attorney’s fees directly from claimant’s counsel. The Court based its’ decision upon Barrett, which held that an employer was entitled to reimbursement for an erroneous overpayment of litigation costs. The Court found that Section 440 of the Act includes unreasonable contest attorney’s fees as a type of litigation cost. Accordingly, employer was entitled to reimbursement, as claimant’s counsel was unjustly enriched and employer lacked any other remedy for reimbursement.
Any questions regarding this case can be directed to Joseph Shields at 570-820-0240 or at firstname.lastname@example.org.
Whitmoyer v. W.C.A.B. (Mountain Country Meats), No. 614 C.D. 2015 (Pa. Cmwlth. 2016): An employer should be entitled to subrogation of both indemnity benefits and medical benefits
· Employer’s Entitlement to a Credit for Future Medical Expenses
Background: Claimant sustained a work-related injury in 1993 in the nature of an amputation of his right arm at the distal forearm. Claimant initially entered into a supplemental agreement with his employer confining Claimant’s work injury to the specific loss of the amputation of his right upper extremity. Accordingly, after Claimant was paid a lump sum payment for his specific loss, the employer’s only on-going liability for payments under the Act was for Claimant’s medical bills.
In 1999, Claimant settled his third-party litigation, arising from the original work injury, for $300,000. Claimant and his employer then entered into a ‘third-party settlement agreement,’ which stated that the balance of the recovery, after the employer was reimbursed for its subrogation lien, would constitute a fund for credit against future workers’ compensation payable. At that point, the only on-going liability of the employer under the third-party settlement agreement was to pay Claimant a portion of related medical bills (representing a payment toward litigation costs) until the balance of recovery fund was exhausted. However, Claimant argued that §319 (regarding subrogation rights) only applied to indemnity benefits, not medical benefits. Both the WCJ and the W.C.A.B. rejected Claimant’s argument.
Analysis: On appeal, Claimant argued that when the credit in the amount of third-party recovery or settlement in excess of the prior lien is applied to future compensation, under the terms of §319, it is only applied to those future payments representing indemnity benefits, not medical expenses. In support of this argument, Claimant asserted that medical expenses does not constitute “instalments of compensation” under §319. The Court initially noted that the term compensation does not always encompass medical benefits. However, the Court determined that “instalments of compensation” under §319 encompassed both medical benefits and indemnity benefits. The Court stated that an employer should be entitled to subrogation of both indemnity benefits and medical benefits as it is, presumably, an innocent actor and not so ruling would allow the wrongdoer to escape liability.
Holding: The Commonwealth Court held that the phrase “installments of compensation” in §319 includes indemnity benefits, as well as medical benefits. Thus, §319 allows a credit against medical expenses incurred after payment of a third-party lien.
For more information regarding this decision, please contact Anthony J. Gabriel, Esquire at (717)441-3957 or email@example.com.
Salvadori v. W.C.A.B. (U.E.G.F. and Farmers Propane, Inc.), No. 2166 C.D. 2015 (Pa. Cmwlth. 2016): A Certification form stating Claimant was entitled to benefits under Ohio’s workers’ compensation law was found to comply with requirements under the Pennsylvania Workers’ Compensation Act
· Out-of-State Employer
· Unemployed Employers’ Guaranty Fund
· Rebutting a presumption of uninsurance
Background: Claimant was hired as a truck driver for Farmers Propane, Inc. (“employer”) which operates a trucking business in Ohio. Claimant worked almost exclusively in Pennsylvania, with a specific route from Pittsburgh, PA to Blair, PA, and would make an occasional trip to Maryland. Claimant sustained a work-related injury when he was parked at a truck stop in Pennsylvania.
Claimant filed a Claim Petition against employer. The employer did not carry workers’ compensation insurance in Pennsylvania and, therefore, Claimant filed a Claim Petition against the Uninsured Employers’ Guaranty Fund (“UEGF”). The UEGF then submitted evidence in an attempt to rebut the employer’s presumption of uninsurance (as the employer did not file a proof of insurance coverage) which included a §305.2(c) certification form and a copy of correspondence from the Ohio Bureau of Workers’ Compensation. The former certification form indicated that Claimant was covered by employer’s Ohio workers’ compensation insurance carrier for his work-related injury and that he was entitled to benefits under Ohio’s workers’ compensation law. The latter correspondence consisted of a copy of correspondence from the Ohio Bureau of workers’ compensation law section subrogation unit seeking to enforce its subrogation rights of $3,873.49 in medical bills that the Ohio Bureau of Workers’ Compensation paid on behalf of Claimant.
The WCJ granted Claimant’s claim petitions against both the employer and the UEGF. The WCJ concluded that the UEGF was secondarily liable for payment of the award because the evidence of record established that employer did not maintain workers’ compensation insurance in Pennsylvania as of Claimant’s injury. The Board affirmed the granting of Claimant’s claim petition against employer but reversed the WCJ’s decision as to the UEGF. The Board concluded that the UEGF was not secondarily liable as it submitted the §305.2 certification indicating that employer was not uninsured, the employer had secured the payment of compensation under Ohio law and that Claimant was entitled to benefits under said law.
Analysis: On appeal, Claimant argued that the Board erred in concluding that the §305.2(c) certification form submitted into evidence by the UEGF conformed to the dictates of the Act to allow employer to be deemed insured as a matter of law. However, the Court noted that the UEGF’s certification form certified that employer had workers’ compensation insurance coverage in Ohio on the date of Claimant’s injury, that Claimant was covered under this policy and that Claimant was entitled to benefits under Ohio’s workers’ compensation law as well as an identification of the proper insurance carrier, the policy number and the active dates of the applicable policy. Accordingly, the Court determined that the certification form submitted into evidence by the UEGF conformed to the requirements of §305.2(C). These statements, coupled with the evidence that the Ohio Bureau of Workers’ Compensation paid $3,873.49 in medical bills on behalf of Claimant, rebutted Claimant’s argument.
Holding: The Commonwealth Court held that the certification form, which stated that Claimant was entitled to benefits under Ohio’s workers’ compensation law, complied with requirements under the Workers’ Compensation Act to allow employer to be deemed insured under the Act, thereby upholding the dismissal of the UEGF. However, please note that this is a cursory summary of §305.2(c) and that any employer wishing to submit such a certification should discuss the same with its legal representative to avoid noncompliance with that Section.
For more information regarding this decision, please contact Anthony J. Gabriel, Esquire at (717)441-3957 or firstname.lastname@example.org.
Lucas v. WCAB(City of Sharon), No. 2606 C.D. 2015 (December 20, 2015) : Any claim filed under Section 108(r) must be filed within 600 weeks of the last date of employment with exposure to the cancer causing agent.
Background: Claimant was a firefighter who sought benefits under the firefighter cancer section of the Workers’ Compensation Act after he was diagnosed with prostate cancer. Ultimately, the Court determined that the Claimant’s petition was untimely having been filed more than 600 weeks after his last date of employment with exposure to the hazards that can cause the disease.
Reasoning: Claimant joined the fire department in November 1976. He retired in March of 2000 and was diagnosed with prostate cancer in October 2009. He filed his Medical-Only Claim Petition in May 2012. During his 23 year career, he fought over 400 fires and was exposed to Group I carcinogens. He fought his last fire in February 2000. Claimant’s medical expert opined that the exposure to Group I carcinogens while performing as a firefighter was a substantial contributing factor in his development of prostate cancer. The Employer’s medical expert opined that as a matter of general causation, there was insufficient evidence to support the conclusion that firefighting caused prostate cancer.
The trial judge granted the Claim Petition, however, the Workers’ Compensation Appeal Board reversed finding the Claim Petition untimely. The Board pointed out that the Claimant testified that his last date of employment was March 31, 2000 and he filed his Claim Petition on May 18, 2012 or 633 weeks after his last date of employment and/or possible exposure to any cancer causing agent. Section 108(r) of the Act requires that any petition filed under the firefighter cancer presumption section must be filed within 600 weeks of the last date of employment with exposure to the cancer causing hazards.
The Commonwealth Court ultimately agreed and requires any claim that is being filed under Section 108(r), because it is beyond the 300 week presumption identified in Section 301(f), to be filed within 600 weeks of the last date of employment with exposure to the cancer causing agent. If the claim is filed beyond the 600 weeks the claimant is time barred and the discovery rule (allowing the statute of limitations period to begin running only after the claimant learns by medical diagnosis that the disability is work related) does not apply.
Tip: Claims that involve firefighters seeking benefits as a result of cancer diagnosis should be closely scrutinized in terms of when the claimant was first diagnosed, the last date of employment where the claimant was actually exposed to any cancer causing hazards, whether Claimant’s evidence documents the particular cancer at issue is caused by Group I carcinogens and whether the claimant’s medical evidence documents that the actual exposure caused the cancer.
Any questions regarding this case can be directed to Carrie E. Hyams, Esquire at 717-441-7068 or email@example.com.