eNotes: Workers’ Compensation – January 2022

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Lombardi v. WCAB (UPMC Health Plan, Inc.)
Commonwealth Court of Pennsylvania
No. 208 C.D. 2020

Decided: October 27, 2021

An employee who tripped and fell while on her way to purchase breakfast in a common area food court prior to the start of her shift was found to be injured in the course and scope of employment.

Background

Claimant worked as a telephone nurse case manager for Employer in an office on the 37th floor of a high-rise building. About thirty minutes before the start of her shift, the claimant entered the ground floor level of the high-rise building, and headed toward the downstairs escalator with the intent of buying breakfast in the basement food court. As she approached the escalator, she tripped and fell, fracturing her right forearm and wrist. The claimant testified that she regularly purchased breakfast from this food court before her shift out of personal convenience, and ate breakfast at her desk as she performed some work-related tasks. The employer submitted evidence showing that it did not own, control, or maintain the lobby or food court areas. The Workers’ Compensation Judge (WCJ) denied the claimant’s claim, finding that she did not show that she was required to be in the lobby or food court area by the nature of the employer’s business, and that the evidence showed that the claimant was engaged in a wholly personal errand to purchase breakfast before her shift. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed the WCJ. Claimant then appealed to the Commonwealth Court.

Holding

The Commonwealth Court reversed, holding that injuries arising in the course of employment includes one sustained while an employee is “actually engaged in the furtherance of the business or affairs of the employer,” as well as, “all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon,” if the employee’s presence is required by the nature of her employment. An employer’s “premises” includes common areas in multi-unit office buildings if they constitute a reasonable means of ingress to, or egress from, the workplace. An injury on the employer’s premises is compensable if (1) the employee is on premises under the employer’s control; (2) the employee is required by the nature of her employment to be there; and (3) the employee sustained injuries due to a condition of the premises or operation of the business. In this case, the Court noted that the lobby area where the claimant fell was included in the employer’s premises, as it was a reasonable and likely only means of entering her place of work. Second, the claimant was present on the premises about fifteen minutes before the start of her shift, which was a time reasonably proximate to her work hours. Finally, the third element was satisfied because the claimant’s testimony showed that she tripped over an unknown object on the lobby floor. Accordingly, the Court reversed the Board and remanded with instructions to the WCJ to make findings regarding disability and benefits.

Takeaway

This case signals an expanded view of what is considered a compensable injury on the employer’s premises, as nearly any activity could potentially meet the Court’s definition of “required by the nature of her employment,” regardless of whether it was completely personal in nature, so long as it occurred on the premises within thirty minutes or so of the start of the shift.

Any questions regarding this case can be addressed to John T. Morgan, Esquire, at jmorgan@tthlaw.com or (267) 861-7595.

Hughes v. WCAB (Wawa, Inc.)
Commonwealth Court of Pennsylvania
No. 333 C.D. 2021

Decided: December 13, 2021

The Utilization Review process may be used to wean claimants off opioids, particularly when the dosage exceeds the CDC’s guidelines.

Background

The employer and the claimant settled the wage loss portion of a workers’ compensation claim arising out of an injury including lumbar herniation, adjustment reaction, mixed anxiety, depressed mood, and pain disorder. The medical portion of the claim remained open, and the employer continued to pay for reasonable, necessary, and causally related medical treatment. In 2018, the employer filed two requests for utilization review, both of which included various opioid pain medications prescribed by two different doctors. The reviewers each determined that the prescription opioids were not reasonable or necessary, as they exceeded the recognized medical guidelines established by the Centers for Disease Control and Prevention (CDC). Recognizing the risks of abrupt discontinuation of narcotic withdrawal, one reviewer found that a gradual reduction of dosage and frequency to be reasonable and necessary, followed by a complete weaning as of June 2019. Claimant filed Petitions to Review both Utilization Review Determinations. The Workers’ Compensation Judge (WCJ) credited the testimony and opinions that the claimant’s opioid regiment far exceeded the CDC guidelines, and that a reduction of the opioid medications over time, as recommended by the reviewer, would be reasonable and necessary. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed. The claimant then appealed to the Commonwealth Court.

Holding

The Commonwealth Court affirmed the Board. The Court rejected Claimant’s argument that the Utilization Review Determinations amounted to improper advisory opinions, even though the reviewers did not state with certainty precisely how to wean the claimant off of the narcotics. The Court held that that the reviewers acted fully within their purview to consider the risks and palliative benefits of the treatment at issue when considering reasonableness and necessity, and were not obligated to devise an alternative treatment plan or set forth what to do if efforts to reduce the dosage were unsuccessful. Accordingly, the WCJ had properly denied the claimant’s Utilization Review Petitions.

Takeaway

This case offers support for the notion that the utilization review process may be properly used to wean claimants off of opioids, particularly in situations where the dosage exceeds the CDC’s guidelines. Carriers should consider this possibility when evaluating claims involving long term pain management, and consult with experienced counsel to navigate challenges to utilization review determinations.

Any questions regarding this case can be addressed to John T. Morgan, Esquire, at jmorgan@tthlaw.com or (267) 861-7595.

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VA CASE SUMMARIES

County of Chesterfield v. Harry Overton, Jr.
Virginia Court of Appeals
No. 0512-21-2

Decided: November 16, 2021

An employer filed an Employer’s Application for Hearing asking for termination of benefits after Claimant’s employment was terminated “for cause,” but the Application did not properly plead their allegation that Claimant had committed fraud against the employer.

Background

Claimant suffered a compensable rotator cuff injury while lifting a trash bag. The parties agreed to an open award for temporary total disability. The employer terminated Claimant for cause, as he misrepresented his work hours by claiming he had attended physical therapy sessions for which he only partially attended. The employer filed an Employer’s Application for Hearing, seeking to terminate benefits pursuant to the termination for cause of Claimant’s employment.

However, in its cover letter, the employer specifically stated that the termination was “based on poor job performance,” and in supporting materials stated the termination was related to “performance deficiencies,” but did not specifically mention the alleged fraud. At the hearing, the employer attempted to produce evidence of fraud by Claimant; the deputy commissioner refused to accept this evidence in its calculus, finding that “termination due to fraud” was not properly before him.” The employer appealed. The Full Commission affirmed, and the employer appealed again.

Holding

The Court of Appeals affirmed the below opinions, finding that the Employer’s Application did not properly identify fraud as a basis for termination.

When taken as a whole, the Employer’s Application indicated that the termination was for poor work performance. Claimant was not on notice that fraud would be alleged as a reason for termination, and the employer bears the burden of establishing a justified basis for termination. The employer could have corrected its mistake by making its Employer’s Application more clear, or providing supporting materials to show that fraud was part of the basis for termination, but they did not.

Takeaway

Employer’s Applications are one of the most technical and difficult procedural elements of Virginia Workers’ Compensation. Even the smallest of mistakes can be fatal to the termination of benefits, so extreme care must be taken. Even if the employer meant “termination for cause because of fraud,” its merely stating “termination for cause” was insufficient. Also of note is that the cover letter for these Employer’s Apps is considered by the Commission in construing their validity.

Any questions regarding this case can be addressed to Mike Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.

Emily Gutierrez v. Black Diamond Tommy’s Corp.
Virginia Workers’ Compensation Commission
VA02000035671

Decided: November 30, 2021

When a fight broke out between two employees – a fight in which Claimant was uninvolved – the “aggressor” analysis still barred recovery because Claimant helped instigate the altercation, even though she was not the intended recipient of the violent act.

Background

Claimant was a waitress at a restaurant. She was waiting tables when she noticed a verbal argument begin to arise between two other co-workers, who had personal animus stemming from a love triangle. Claimant pushed the one employee towards the other, and Claimant encouraged her to fight the other woman. The two women did indeed start fighting and pulling each other’s hair, when one began throwing items in the trash can. One of these items was a piece of glass; though the woman intended to throw it at the other co-worker, the piece of glass struck Claimant in the eye.

At hearing, Claimant argued that the traditional aggressor analysis did not apply because the object thrown was not directed at Claimant. Because the assault against her was unintentional, Claimant averred, it was irrelevant whether she contributed to the start of the argument. The Deputy Commissioner disagreed, and Claimant appealed to the Full Commission.

Holding

The Full Commission affirmed, and found that Claimant was disqualified from receiving benefits because she instigated the altercation. The fact that the thrown object was not directed at her did not sever the causation between her instigation and the fact that the injury occurred.

The purpose of the “aggressor” analysis is to determine whether the employment itself was the proximate cause of a worker’s injuries. Here, it was not the employment that caused the injury; instead, it was her own words which precipitated and encouraged the altercation. Those words were clearly not in furtherance of the employment.

Takeaway

This marks a slight expansion of the well-established doctrine that a claimant is not entitled to recovery if they caused an assault to occur. The purpose of that doctrine is to disincentivize workers from creating violence, and it does not strictly have to do with assaults against claimants themselves.

Any questions regarding this case can be addressed to Mike Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.