eNotes: Workers’ Compensation – April 2019
April 01, 2019
TTH Speaking Engagements
On April 26, 2019, Ryan Blazure, an attorney in TTH’s Wilkes-Barre office, will be presenting in Scranton, PA on the following topic: Dirty Litigation Tactics: How to Deal with the “Rambo” Litigator. The seminar will address overly zealous, frustrating and all-too-common litigation techniques . . . and how to combat them effectively. Further details can be found at https://www.nbi-sems.com/ProductDetails/82063ER?ctname=SPKEM.
Questions about this seminar can be directed to Ryan Blazure, at (570) 820-0240 ext. 8603 or email@example.com.
SIGNIFICANT PENNSYLVANIA CASE SUMMARIES
Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (Wegman’s Food Markets, Inc.), No. 1725 C.D. 2017 (March 29, 2019)
By: Justin D. Beck, Esquire
Settling a long-battled jurisdictional question within the fee review forum, the Commonwealth Court has now held that a Fee Review Hearing Officer may determine whether an entity is a “provider” within the meaning of the Act.
In Armour Pharmacy, the Claimant was prescribed a medical compound cream to treat pain. Armour Pharmacy dispensed the medicine to the Claimant on three separate occasions. Once invoiced, the Employer denied payment on the basis that (1) the $3,634.17 charge for each prescription exceeded the fees established by the fee schedule rates and the usual and customary rates; (2) a Utilization Review had been filed; and (3) supporting medical records had not been submitted.
Armour Pharmacy filed three applications with the Medical Fee Review Section, requesting review of the Employer’s refusal to pay. After review, the Section directed the Employer to pay Armour Pharmacy $3,322.16, plus ten percent interest, on each invoice.
The Employer appealed to the Fee Review Hearing Office, and filed a motion to dismiss its own appeal, arguing that because Armour Pharmacy was not a “provider” within the meaning of the Workers’ Compensation Act, the Hearing Office lacked jurisdiction.
The Hearing Office granted the Employer’s motion to dismiss, relying upon the Commonwealth Court precedent Selective Insurance Company of America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The Physical Therapy Institute) for the proposition that the Hearing Office could not proceed on the Employer’s appeal because it had challenged Armour Pharmacy’s status as a “provider,” an issue beyond its jurisdiction. Likewise, it was determined that the Medical Fee Review Section lacked jurisdiction to act upon Armour Pharmacy’s fee review applications, and thus, the Hearing Office vacated those determinations.
On appeal to the Commonwealth Court, Armour Pharmacy argued that, because the Pennsylvania Bureau of Workers’ Compensation had not promulgated appropriate regulations, a provider was left without a remedy where an employer questioned its status as a “provider” under the Act. Further, it was suggested that a claimant’s ability to establish an employer’s liability to a “provider” did not sufficiently protect providers because they are unable to compel claimants to file petitions in the first place. Finally, Armour Pharmacy asserted that a claimant’s interests may not always align with that of a provider.
Reviewing the applicable statutory and case law, the Court noted that it offends due process under the Pennsylvania Constitution, as well as the Act’s scheme for resolving fee disputes, to place the question of whether a putative provider is actually a “provider” beyond the reach of judicial review. Thus, the Court held that, where an employer challenges a fee determination of the Medical Fee Review Section for the stated reason that the medical service was not rendered by a “provider” within the meaning of the Act, that threshold question must be decided by the Hearing Office. However, such jurisdiction is not be decided by the Medical Fee Review Section, whose responsibility is solely administrative, with inquiry limited to the timeliness and correct amount of payment by an employer to a provider.
The Court cautioned that its holding “in no way” expands the scope of the fee review proceeding beyond timeliness and amount owed to a provider. In this regard, the Hearing Office remains unable to determine the reasonableness or necessity of medical treatment, the work-relatedness of an injury, or an employer’s liability. The Court reaffirmed that, where Utilization Review is sought, a fee determination is premature.
Similarly, the Court emphasized that “provider” status is not just limited to fee review proceedings. In appropriate cases, such question may also be determined by a Workers’ Compensation Judge in the course of a Claim or Penalty Petition proceeding. However, where the liability of an employer has already been established, the status of a putative provider may be addressed by the Hearing Office where raised by the employer.
Overturning, in part, Selective Insurance, the Commonwealth Court has now held that a Fee Review Hearing Officer may determine whether an entity is a “provider” for purposes of the Act. However, the Medical Fee Review Section retains its status as a purely administrative entity, and may only determine the timeliness and correct amount of payment by an employer to a provider, regardless of whether that status is challenged at the initial level.
Any questions regarding this case can be directed to Justin D. Beck, Esquire at (412) 926-1441 or at JBeck@tthlaw.com.
G.O. Carlson, Inc. v. Workers’ Comp. Appeal Bd. (Trauterman), No. 1068 C.D. 2018 (March 12, 2019)
Pennsylvania Commonwealth Court, Unpublished
By: Stephanie A. Walczak, Esquire
The Commonwealth Court discussed the need for an employer to file a Utilization Review or Review Petition to decide the reasonableness and necessity of treatment versus making a unilateral determination to deny treatment.
Claimant was a steel worker who sustained a work-related injury on January 12, 2009. Employer issued a Notice of Compensation Payable (NCP), describing the injury as a lumbar strain and accepting liability. Claimant returned to light-duty work on January 22, 2009, and eventually returned to full duty. Claimant filed a Penalty Petition asserting Employer violated the Act by refusing to preauthorize a lumbar fusion surgery recommended by Claimant’s treating physician without Employer having received a supersedeas or “properly challenging the reasonableness and necessity of the surgery.”
Claimant testified regarding the treatment of his back injury beginning in August 2009. After years of treatment Claimant’s doctor suggested that Claimant undergo a L4, L5-S1 fusion surgery, which was scheduled for June 3, 2015. Although scheduled, the surgery did not happen because an adjuster from Employer’s insurer advised Claimant that they “wouldn’t cover anything until Claimant has a second opinion.” Claimant went for a second opinion with a board-certified orthopedic surgeon, for an Independent Medical Examination (IME), on June 10, 2015. Following the IME Claimant still did not undergo the surgery. The IME doctor did not believe the surgery was reasonable or necessary because Claimant was overweight and smoked. The IME report stated that Claimant’s symptoms have been consistent since January 2009, and Claimant’s complaints of pain were consistent with the objective findings. Further, the doctor stated that Claimant was not fully recovered, had ongoing degenerative disc disease, ongoing lumbar radicular symptoms, and the preexistent degenerative disease was potentially aggravated by the work event. The IME doctor proposed the surgery was not reasonable due to Claimant being a heavy smoker and complaining more of axial back pain than radicular pain. The doctor opined that the heavy smoking made the surgery more likely to fail, making it an option of last resort. He opined that the surgery would likely not alleviate Claimant’s pain.
The Commonwealth Court held that the WCJ did not err in concluding that Employer had violated the Act by denying payment for Claimant’s work-related medical treatment, including but not limited to the proposed spinal fusion, beginning as of June 3, 2015, and continuing though December 22, 2015. Employer’s choice to challenge the proposed surgery based on causation exposed it to penalties if the surgery was found to be related to the work injury. Additionally, the Court found that the IME doctor’s objection to the surgery was not based on causation. Questions regarding the reasonableness and necessity should have been resolved with a UR petition, but one was not filed by either party. Further, the adjuster’s message went beyond a simple denial of preauthorization, it referenced a denial of ‘anything’, including the surgery.
If an employer wants to deny any treatment which could be considered causally related to a work-related injury, it is always best to file a Review or UR Petition so the issue can be decided by the Court and no unilateral decisions are made in regards to denying coverage by an Employer.
Questions about this case can be directed to Stephanie A. Walczak, at (610) 332-7025 or firstname.lastname@example.org
James Womack v. WCAB (Philadelphia Parking Authority), No. 14 C.D. 2018 (March 13, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Joseph J. Shields, Esquire
The Commonwealth Court reversed the WCAB’s Order, which had reinstated Claimant’s total disability benefits as of June 20, 2017, and remanded with instructions that Claimant’s benefits should be reinstated as of the date he filed for reinstatement, assuming Claimant offers evidence of ongoing disability pursuant to Whitfield.
Claimant suffered a work-related injury on June 15, 2011. On September 10, 2013, Claimant underwent an IRE performed under the 6th Edition of the AMA Guides. It was determined that Claimant’s whole person impairment was 14%. On November 20, 2013, the Employer issued a Notice of Change of Disability Status. On September 18, 2015, the Commonwealth Court issued its decision in Protz I, which found that the IRE provision of Section 306(a.2) was an unconstitutional delegation of legislative authority where it prospectively adopted future versions of the AMA Guides past the 4th Edition. On January 21, 2016, Claimant filed a Review Petition seeking reinstatement of his disability benefits to total disability status pursuant to Protz I. On September 9, 2016, the WCJ reinstated Claimant’s benefits as of September 10, 2013, as it was found that his change in status was unconstitutional pursuant to Protz I. On October 13, 2016, Employer appealed to the WCAB. While that appeal was still pending, the Supreme Court issued its decision in Protz II, which found the entirety of Section 306(a.2) unconstitutional. Accordingly, the WCAB affirmed the WCJ’s reinstatement of Claimant’s benefits, but reinstated said benefits as of June 20, 2017, the date the Supreme Court’s decision in Protz II was issued. Claimant appealed, arguing that the WCAB erred when it reinstated his benefits as of June 20, 2017, rather than September 10, 2013, the date of his IRE.
The Commonwealth Court reversed the WCAB’s Order, and remanded with instructions that Claimant’s benefits should be reinstated as of the date he filed for reinstatement, assuming Claimant offers evidence of ongoing disability pursuant to Whitfield. On appeal Claimant argued that pursuant to Protz II, his change in disability status should be treated as if it never occurred. Employer argued, pursuant to the Court’s decision in Whitfield, that Claimant was entitled to reinstatement as of the date Claimant sought reinstatement, January 21, 2016, rather than the date of the IRE. Employer further maintained that reinstatement was not automatic, and Claimant needed to prove continuing disability before total disability benefits could be restored. After a lengthy discussion of its cases decided subsequent to Protz II, the Court held that Whitfield controlled. Here, Claimant filed his petition within three years of the date of his last payment of compensation. The WCJ took no testimony and made no credibility determinations. Claimant’s reinstatement was based solely on Protz I and the legal arguments of the parties. The WCAB, prior to the Commonwealth Court’s decision in Whitfield, directed reinstatement of Claimant’s benefits as of June 20, 2017, the date Protz II was decided. Based upon these facts, the Court reversed and remanded. It found that the WCAB did not have the benefit of the Court’s decision in Whitfield when it directed Claimant’s benefits be reinstated as of June 20, 2017. Accordingly, the Court remanded with instructions to take evidence concerning Claimant’s disability. If Claimant proves continuing disability, his benefits should be reinstated as of January 21, 2016, the date of his Petition seeking reinstatement.
When there is a pre-Protz II IRE, a claimant’s TTD benefits should be reinstated as of the date he filed for reinstatement, assuming he offers evidence of ongoing disability pursuant to Whitfield.
Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at email@example.com.
Ayers v. Workers’ Compensation Appeal Board (General Dynamics), No. 1056 C.D. 2018 (March 22, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Andrew T. Kravitz, Esquire
A claimant must make a prima facie showing of a job vacancy with the employer before the employer’s burden to prove the lack of a vacancy suitable for a claimant is triggered.
Employer filed a Modification Petition based on the positions identified in a labor market survey.
Employer’s vocational expert testified that the positions identified in the labor market survey were open and available for at least three weeks after the labor market survey was completed. Employer submitted no evidence of a lack of job vacancy at the time-of-injury employer. Claimant submitted no evidence showing that there was a vacancy at the time-of-injury employer within his vocational or medical ability.
Claimant testified that he did not apply for any positions outside of those identified by the labor market survey. Claimant testified that he applied for the medically suitable positions within the labor market survey and received no interview or job offer, but also testified that he waited three weeks to apply for the positions, notified the potential employers that he could not start for six weeks, and advised the potential employers that he had a workers’ compensation claim and that he was coming back from total disability.
The Workers’ Compensation Judge granted Employer’s modification petition. The Workers’ Compensation Judge determined that Claimant’s application efforts did not refute Employer’s evidence of Claimant’s earning power through suitable jobs identified in the labor market survey. The Workers’ Compensation Appeal Board affirmed.
The Commonwealth Court affirmed. The Commonwealth Court held that it was the Claimant’s burden to show a job vacancy at the Employer before Employer has to prove lack of job vacancy, and affirmed that Claimant did not meet his burden. The Commonwealth Court held that the Workers’ Compensation Judge’s finding as to the continued availability of the positions identified in the labor market survey was supported by the record.
A well prepared labor market survey and a close examination of a claimant’s efforts to apply for the positions identified in a labor market survey are the keys to a successful modification of compensation benefits based upon a labor market survey.
Questions about this case can be directed to Andrew Kravitz, at (717) 237-7157 or firstname.lastname@example.org.
Bristol Borough v. WCAB (Burnett), No. 464 C.D. 2018 (March 22, 2019)
By: Justin D. Beck, Esquire
Returning to the highly technical law now developing around firefighter cancer claims, the Commonwealth Court has further addressed the PennFIRS reporting requirements, applicable burden of proof, and competency of various testimonies in cases pertaining to volunteer firefighters.
In Burnett, the Claimant began working for a volunteer fire company in Bristol Borough in 1976 and served as a firefighter, lieutenant, captain, assistant chief, deputy chief, and chief. Regardless of rank, the Claimant would respond to fires. He estimated that he had responded to approximately 2,000 incidents throughout his career.
In February 2015, the Claimant was diagnosed with large B-cell NH-lymphoma. In September 2015, he filed a Claim Petition against the Employer under section 108(r) of the Act, alleging that his cancer was the result of exposure to IARC Group 1 carcinogens while working as a volunteer firefighter for the Employer.
Following submission of evidence, the WCJ determined that the Claimant’s cancer was in fact covered under Section 108(r) of the Act, and that he was entitled to a presumption of compensability under Section 301(f). The WCJ found that the Claimant sustained direct exposure to Group 1 carcinogens related to large B-cell NH-lymphoma in fire smoke, soot, diesel engine exhaust, and contaminated gear during 39 years of service as a firefighter. The WCJ also noted that the Employer’s PennFIRS reports properly documented the Claimant’s fire service.
The WCAB affirmed the WCJ, reversing only as to the proper entity entitled to subrogation.
The Commonwealth Court similarly affirmed. In an extensive Opinion, the Court addressed each of the Employer’s arguments on appeal, which included: (1) that the Claimant had failed to meet the PennFIRS submission requirements under Section 301(f) of the Act; (2) that the Fire Commissioner’s testimony before the WCJ was incompetent regarding the legislative intent of Act 46; (3) that the Claimant failed to meet his burden of proof under Section 108(r) of the Act; (4) that the opinions of the Claimant’s expert were equivocal and lacked factual support in the record; (5) that the Employer presented sufficient rebuttal evidence to overcome the presumption of causation accorded by Section 301(f) of the Act; and (6) that the WCJ erred in awarding a subrogation lien in favor of Highmark.
A. PennFIRS Submission Requirements
The Court rejected the Employer’s argument that a volunteer firefighter is limited to utilizing PennFIRS reports as the only acceptable proof of exposure to Group 1 carcinogens. Here, the Claimant had submitted a log sheet noting the calls to which he responded; that log sheet did not indicate whether the Claimant experienced any exposure, let alone a direct exposure, to a Group 1 carcinogen. The Court held that Section 301(f) of the Act requires only that PennFIRS reports document a volunteer firefighter’s presence at a type of fire where firefighters are routinely exposed to Group 1 carcinogens known to cause various types of cancer. Further, the Court noted that the Claimant’s “incident participation report,” the data of which had been drawn from PennFIRS reports, served to satisfy the PennFIRS reporting requirement; the Court specifically declined to hold that Section 301(f) of the Act requires a claimant to print out the actual PennFIRS reports entered by his or her volunteer fire company over the course of his or her fire service.
B. Fire Commissioner’s Testimony
The Employer further contended that testimony offered by the Pennsylvania Fire Commissioner was not competent evidence of the legislative intent for including the PennFIRS reporting requirements under Section 301(f). The Court rejected this argument, instead holding that, in light of the Fire Commissioner’s extensive knowledge of volunteer fire companies, the PennFIRS software, and the history of Act 46, the WCJ committed no abuse of discretion in his determination that the Fire Commissioner’s testimony constituted competent evidence of the limited purpose that the PennFIRS requirements under Section 301(f) were realistically intended to serve.
C. Burden of Proof under Section 108(r) of the Act
Relying upon the Commonwealth Court’s now-superseded interpretation of Section 108(r) of the Act, the Employer argued that the Claimant had failed to prove that his cancer could be caused by exposure to a Group 1 carcinogen. The Employer asserted that, under Section 108(r), the Claimant was required to prove that his cancer was “caused by” direct exposure to such a carcinogen.
Pointing to the Supreme Court’s recent decision in Sladek, the Court held that the general causation requirement in Section 108(r) only requires a claimant to produce evidence that it is possible that a carcinogen at issue caused the type of cancer from which he or she suffered. However, Section 108(r) has not been interpreted to require that a claimant “prove that the identified carcinogen actually caused [his or her] cancer.”
The Court held that the opinions of the Claimant’s expert, Dr. Guidotti, satisfied this general causation requirement where he opined that the Claimant’s lymphoma arose from his occupational exposure to Group 1 carcinogens in “fire smoke and atmospheres at the scene.” This opinion was sufficient to establish a causal link between the Claimant’s type of cancer and a Group 1 carcinogen.
D. Competency of the Claimant’s Medical Evidence
The Employer further asserted that the opinions of the Claimant’s expert, Dr. Guidotti, were equivocal and unsupported by the evidence of record. In this regard, the Employer alleged flaws in the studies relied upon by Dr. Guidotti. The Court spent little time addressing this argument, noting that credibility determinations are within the exclusive province of the WCJ, and refused to disturb the same.
E. Employer’s Rebuttal Evidence
The Employer also argued that, even if the Claimant presented sufficient evidence to warrant application of the presumption of compensability under Section 301(f), the Employer had produced rebuttal evidence sufficient to overcome such presumption.
The Court noted that where, as here, a claimant meets the general causation burden in Section 108(r), an employer may not rebut the evidentiary presumption in Section 301(f) merely by challenging the accuracy of the general causation requirement. Instead, at the rebuttal stage, the issue relates not to the type of cancer relative to potential carcinogens, but rather, requires proof that the claimant’s cancer was not caused by his occupation as a firefighter.
Citing the WCJ’s rejection of the Employer’s medical expert as not credible, the Court held that the Employer was unable to rebut the evidentiary presumption of a causal relationship.
Finally, the Employer argued that the WCAB erred in sustaining the WCJ’s award of a subrogation lien by Trover on behalf of Highmark. In this regard, the Employer alleged that documents submitted by counsel for Trover did not establish the necessary elements to prove the existence of an awardable lien and failed to establish the true party in interest.
Rejecting all of the Employer’s arguments, the Court held that Highmark sufficiently preserved its subrogation lien under Section 319 of the Act prior to the close of the record where submitting a letter to the WCJ outlining the outstanding lien amount.
Further, the testimony of a workers’ compensation recovery unit supervisor for Trover’s predecessor had established a course of dealing or industry practice between Trover and insurers, established the insurer/clients as the source of documents upon which it relied when undertaking extensive recovery services, and established how the documents were created and maintained in the regular course of business.
Thus, the Court determined that an agency relationship existed between Trover and Highmark, and that Trover indeed represented Highmark as an authorized agent in the subrogation matter.
For these reasons, the Court held that the WCJ’s award of a subrogation lien in favor of Highmark was supported by competent, substantial evidence.
The law surrounding firefighter cancer claims continues to become ever more technical, particularly with regard to the applicable shifting burdens of proof. This latest case from the Commonwealth Court clarifies that a claimant’s presentation of information gathered from previously-submitted PennFIRS reports will satisfy the requirements of Section 301(f), and that a claimant need not actually submit the original PennFIRS reports to do so. Further, applying the Supreme Court’s recent Sladek decision, the Court emphasized that the general causation requirement in Section 108(r) requires only that a claimant produce evidence that it is possible that a carcinogen at issue caused the type of cancer from which he or she suffered, as opposed to proving that the identified carcinogen actually caused his or her cancer.
Any questions regarding this case can be directed to Justin D. Beck, Esquire at (412) 926-1441 or at JBeck@tthlaw.com