TTH eNotes: Workers’ Compensation – June 2018
June 01, 2018
Sedgwick Claims Management Services v. Bureau of Workers’ Compensation, Fee Review Hearing Office (Piszel and Bucks County Pain Center), No. 1033 C.D. 2017 (Pa. Cmwlth. April 11, 2018)
By: Anthony J. Gabriel, Esquire
Chiropractors are not entitled to bill workers’ compensation insurers separately for an office visit in addition to the usual treatment when there is no new medical condition, change in medical condition or other circumstances above and beyond the usual examination and assessment
Claimant, who had settled the indemnity portion of his claim in 1995, received ongoing chiropractic treatment from Michael Piszel, D.C. (“Provider”). On numerous dates of treatment, Provider billed for an office visit in addition to charges for chiropractic treatment. Sedgwick, as the workers’ compensation insurance administrator, denied payment for the office visit charges but paid Provider for the usual and customary treatment he provided on those dates. Provider then filed applications for fee review challenging the denials.
In the proceedings before the Hearing Officer, Sedgwick argued that the Medical Cost Containment Regulations prohibit payment of office visit charges for routine physical examinations and evaluations on the same day that customary chiropractic treatment is provided where there is no new medical condition and that all of Provider’s office visit charges were for routine examinations for the same medical conditions. The Hearing Officer ruled in favor of Provider and Sedgwick appealed.
The issue on this appeal is what constitutes “a significant and separately identifiable service performed in addition to the other procedure” under the Workers’ Compensation Medical Cost Containment Regulations such that a chiropractor is entitled to payment for an office visit in addition to his charges for the treatment provided at the same visit. The Commonwealth Court stated that the language of the Regulation revealed a clear intent to make payment for same-day office examinations the exception, not the rule. Consequently, a chiropractor is not entitled to payment for office visit charges for same-day examinations performed on a routine basis without special circumstances unique to the patient’s condition or nature of the treatment session.
The Commonwealth Court held that an examination involving no new medical condition, change in medical condition, or other circumstances that require an examination and assessment above and beyond the usual examination and evaluation for the treatment performed on the same date does not constitute a significant and separately identifiable service which is payable in addition to the customary chiropractic treatment provided.
For more information regarding this decision, please contact Anthony J. Gabriel, Esquire at (717)441-3957 or email@example.com
Cook v. W.C.A.B. (Dep’t of Transp.), No. 765 C.D. 2017 (Pa. Cmwlth. May 18, 2018)
By: Anthony J. Gabriel, Esquire
- Specific loss benefits may not begin until after payment of total disability payment ends
- Reduction of total disability rate to $0.00 does not change total disability status
On September 26, 2005, Claimant sustained rib, lung and left arm and hand injuries in the course and scope of his employment for which he received ongoing total disability benefits. Claimant subsequently filed a claim petition for specific loss benefits alleging a loss of use of his left arm and hand which was granted. Claimant’s specific loss benefits were to be paid when his temporary total disability status changes or when he is no longer disabled for his injuries other than those to his left forearm and hand.
Over the following years, Claimant’s weekly benefit rate was reduced to $0.00 as a result of a third-party settlement and Social Security and pension offsets. Claimant filed a Petition alleging, in relevant part, that he was entitled to his previously awarded specific loss benefits as his disability status changed when his compensation rate was reduced to $0.00. The Workers’ Compensation Judge denied Claimant’s Petition and the Appeal Board affirmed.
On appeal, the Commonwealth Court agreed that, although Claimant’s total disability payments were offset to $0.00, he remained in total disability status. The Court noted that Claimant is only entitled to collect specific loss benefits after his total disability benefits are no longer due and owing. Accordingly, as Claimant remained in total disability status, his total disability benefits were still due and owing albeit at a rate of $0.00.
The Commonwealth Court held that Claimant was not entitled to receive specific loss payments as of the date on which his total disability rate was reduced to $0.00 as a result of a third-party settlement and Social Security and pension offsets because his total disability status had not changed. The Court reminded Claimant that he continues to be fully compensated for his total disability status by the Employer-funded pension, Social Security, and third-party settlement payments, rather than indemnity checks.
For more information regarding this decision, please contact Anthony J. Gabriel, Esquire at (717)441-3957 or firstname.lastname@example.org
Commonwealth of Pennsylvania v. WCAB (Piree), No. 995 C.D. 2017 (Pa. Cmwlth. Nov. 22, 2017).
By: Justin D. Beck, Esquire
- Heart and Lung Benefits
- Third Party Recoveries
Claimant, an agent for Employer’s Office of Attorney General (“OAG”), sustained injures in a work-related motor vehicle accident. Employer accepted the injuries by issuance of a Notice of Compensation Payable. Claimant was also eligible for, and received, payment of his full salary from OAG’s payroll fund, pursuant to the Heart and Lung Act.
OAG instructed its Third Party Administrator to pay Claimant’s weekly workers’ compensation payments from OAG’s workers’ compensation fund directly to OAG’s payroll fund. Sometime later, Claimant’s eligibility for Heart and Lung benefits (“H&L”) ended, and he began receiving only workers’ compensation benefits.
Employer and Claimant thereafter entered into a Third Party Settlement Agreement, which reflected that Employer maintained a net lien amount of $204,672.78 from Claimant’s third party recovery, related to the work injury, of $1.255 million. A workers’ compensation judge ultimately found that Employer had met its burden of proof in a Petition to Review, proving that it had a valid subrogation lien in the amounts paid to OAG’s payroll fund, which represented the workers’ compensation benefits owed Claimant.
The Workers’ Compensation Appeal Board reversed, and Employer appealed to Commonwealth Court.
Commonwealth Court first invoked the leading precedent of Stermel v. WCAB (City of Philadelphia), which held that self-insured public employers compensating employees injured in motor vehicle accidents under both the Workers’ Compensation Act and the Heart and Lung Act are excluded from subrogating any indemnity or medical expenses, regardless of how they are categorized by the employer.
The Court addressed the interplay of three statutes: (1) the Workers’ Compensation Act; (2) the Heart and Lung Act; and (3) the Motor Vehicle Financial Responsibility Law (MVFRL). Notably, the Court stated, although the Heart and Lung Act contains no subrogation provision such as that in Section 319 of the Workers’ Compensation Act, the statute has nevertheless been interpreted to provide employers with subrogation rights. However, if the compensable injury is the result of a motor vehicle accident, the MVFRL is implicated, which, by express statutory language, excludes H&L from subrogation.
The Court held that a self-insured employer cannot subrogate that portion of benefits paid pursuant to the Heart and Lung Act which are characterized as payments representing workers’ compensation benefits (here, the amount tendered to OAG’s payroll fund). This is so as the Heart and Lung Act requires full payment of salary and benefits, independent of any workers’ compensation benefits also owed. In the context of a self-insured employer paying H&L, the payment of workers’ compensation benefits typically involves, as here, the mere shifting of monies from one fund to another. Further, the MVFRL does not permit a plaintiff to recover for H&L.
In scenarios where the Motor Vehicle Financial Responsibility Law controls, a self-insured employer may not subrogate the portion of Heart and Lung benefits paid to a claimant which represents workers’ compensation benefits.
DiCarlantonio v. WCAB (Oldcastle Precast, Inc.)
No. 1682 C.D. 2017 (March 9, 2018)
By: Deborah B. Richman, Esquire
In a Claim Petition, the burden is on the claimant to prove all elements of a Claim, including ongoing disability. In this case, because Claimant’s expert’s testimony was equivocal, Claimant was unable to meet the burden of proving all elements of the Claim Petition and the burden never shifted to Defendant to prove full recovery.
Claimant worked as a supervisor at a rebar facility which also required him to work with black steel, galvanized steel and steel covered in epoxy. On March 11, 2015, Claimant noticed a rash on one arm which subsequently moved to both arms. He sought treatment and received a cream and a steroid, which improved the rash. The rash returned and he got more cream and steroid, several times. Eventually, on September 14, 2015, Claimant sought the opinion of a board certified dermatologist and stopped working due to the continuation of the rash and the pain caused by such. Claimant filed a Claim Petition describing the injury as contact dermatitis caused by his work environment. The WCJ awarded benefits for a limited period, September 14, 2015, to October 8, 2015, and terminated benefits as of October 8, 2015. Claimant appealed to the Board, which affirmed the WCJ and then Claimant appealed to the Commonwealth Court. On appeal, Claimant argued, inter alia, that his benefits should not have been terminated as of October 8, 2015, because his work-related injury, contact dermatitis stemming from occupational exposure, is an ongoing condition that, while currently resolved, would recur if he returns to work. The Commonwealth Court affirmed. The Commonwealth Court reviewed the evidence and determined that both experts were unsure of what caused the contact dermatitis but were fairly sure it resulted from exposure at work. While both experts recognized the possibility that the rash could return upon Claimant’s return to work, neither of them testified that it was likely that the rash would recur. Claimant’s expert testified that the rash was gone by Claimant’s October 8, 2015, visit, and there was no sign of it at a subsequent visit in March, 2016. Employer’s expert agreed that the rash was fully recovered as of October 8, 2015.
Absent testimony from Claimant’s expert that his contact dermatitis would recur if he returned to work, Claimant was unable to meet his burden to establish ongoing disability and therefore did not meet his burden of proof on the Claim Petition. Since Claimant did not meet his burden tp prove all elements of a claim, the burden never shifted to Defendant to establish full recovery.
It is often advantageous for a Defendant to litigate a Claim Petition as opposed to a Termination Petition because Claimant has the burden of proof. If in doubt about whether to accept a reported claim, talk to your attorney. In addition, while Claimant’s expert’s testimony was equivocal in this case, it is generally important to have expert testimony on the defense side so that Defendant maintains a reasonable contest despite mistakes which may be made by Claimant’s expert.
Kush v. WCAB (Power Contracting Company), No. 1688 C.D. 2017 (May 17, 2018)
By: Joseph J. Shields, Esquire
The Commonwealth Court affirmed the decisions of the WCJ and WCAB, both of which found that no exception to the “coming and going” rule applied such that Claimant was not within the course and scope of his employment when he sustained injuries while on his way to a work site.
On January 12, 2015, Claimant was involved in a motor vehicle accident while driving to work, resulting in substantial injuries. Claimant filed a Claim Petition asserting that he was a traveling employee, or in the alternative, that he was on a special mission for Employer. Employer denied the Petition. Claimant testified that he worked for Employer and Vantage as a union electrical worker. Both companies shared contracts and conducted their operations from the same building, with their employees often shuttled between the two companies. It was common for Claimant to work at different job sites on the same day for both companies. Vantage provided him with a company truck and paid for fuel to travel to Vantage job sites while Employer paid for fuel to travel to its job sites. Claimant testified he was traveling to a job site in Shaler Township for Employer when the motor vehicle accident occurred. He left his home at approximately 4:30 a.m. when he struck a patch of ice on the roadway and crashed into a guardrail while on his way to the Shaler Job Site. Claimant testified that he worked almost exclusively for Employer between December 22, 2014 and January 12, 2015, and worked almost exclusively at the Shaler Job Site in the seven days prior to the accident. Claimant testified that he did not receive compensation for his travel time unless he needed to pick up a piece of equipment on his way to a job, or was traveling from the job of one employer to that of another. The WCJ denied Claimant’s Claim Petition, holding that no exception to the “coming and going” rule applied and that Claimant’s injury occurred during his commute to a fixed job location. Claimant appealed and the WCAB affirmed. Claimant appealed to the Commonwealth Court, asserting that the facts of his case fell under two distinct exceptions to the “coming and going” rule, specifically that he did not have a fixed place of employment and that his employment agreement with Employer included the time spent for transportation to and/or from work.
The Commonwealth Court affirmed the decisions of the WCJ and WCAB. Under the “coming and going” rule, injuries sustained while an employee is traveling to or from his/her place of employment are considered outside the course and scope of employment, and are, therefore, not compensable under the Act. However, there are four exceptions to this general rule: 1) the employment contract includes transportation to and/or from work; 2) the claimant has no fixed place of work; 3) the claimant is on a special assignment or mission; or 4) special circumstances are such that the claimant was furthering the business of the employer. The Court then distinguished the Peterson case from later cases. In Peterson, claimant worked for a nursing agency and did not report to the employer’s office. She was rather instructed on which job sites to report to and she was not provided transportation nor reimbursement for travel expenses. The Supreme Court held that a temporary employee who is employed by an agency never has a fixed place of work, such that she was a traveling employee and was furthering the business of the agency. The Court distinguished Peterson from later cases in which the employees were not employed on a temporary basis, but otherwise had indistinguishable facts. In those cases, the employees had a fixed place of work and were therefore ineligible for benefits under the “coming and going” rule. Here, the Court affirmed the decisions of the WCJ and WCAB. It found that Claimant was not a traveling employee because he worked almost exclusively at the Shaler Job Site for several weeks prior to the accident, making it a fixed job location. The Court also found that travel was not included in Claimant’s employment contract. To satisfy the employment contract exception to the “coming and going” rule, a claimant must satisfy two elements: 1) that a travel allowance is related to the actual expense and time involved in the commute; and 2) the employer provided or controlled the means of the commute. The Court found that Claimant failed to prove either element, as Vantage provided his work truck and Claimant testified that his wages did not include pay for travel. Accordingly, Claimant did not satisfy any exception to the “coming and going” rule such that the Commonwealth Court affirmed the decisions of the WCJ and WCAB.
Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at email@example.com.
Caffrey v. WCAB (City of Philadelphia), No. 1268 CD 2017 (April 12, 2018)
By: Lee Ann Rhodes, Esquire
Claimant worked as a firefighter for the City of Philadelphia. He filed a Claim Petition in March 2013 alleging that he sustained an occupational disease in the nature of bladder cancer as a result of exposures to carcinogens while working as a firefighter. Claimant’s alleged date of injury was his last day of work as a firefighter, December 12, 2003. In his petition, claimant sought only the payment of medical benefits. During litigation of the petition, claimant testified regarding his 31 year career as a firefighter. He described his exposures to smoke and soot as a result of fighting fires, and his exposure to diesel fuel emissions at the fire stations. Claimant was diagnosed with bladder cancer in March 2009.
The Judge denied Claimant’s Claim Petition on the basis of the pre-Act 46 version of Section 301 (c)(2) of the Workers’ Compensation Act. The Court’s decision in this case centered around the amendments to the Workers’ Compensation Act, known as Act 46. In addition to adding Section 108(r), which recognized a cancer, suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group I carcinogen by the International Agency for Research on Cancer, as a compensable occupational disease under the Workers’ Compensation Act. These amendments also added Section 301(f) of the Act which established standards for cancer claims under Section 108(r). Section 301(f) limits cancer claims to a firefighter who can show four or more years of continuous firefighting service and the absence of cancer prior to that service. Section 301(f) in conjunction with Section 108(r) requires that a firefighter be diagnosed with a type of cancer caused by exposure to a known Group I carcinogen. This section of the Act also requires that a claim under Section 108(r) be filed within 600 weeks of a firefighter’s last date of exposure to a Group I carcinogen. However, if the firefighter files his claim within 300 weeks of his last date of work place exposure, and establishes that the type of cancer is an occupational disease, Section 301(f) provides a presumption that his work place exposure caused his cancer.
The Judge in Caffrey reasoned that the pre-Act 46 version of this section of the Act remained in effect until the effective date of Act 46 in July 2011. Under this version of Section 301 (c)(2), claimant’s claim for benefits must have manifested within 300 weeks of his last date of employment. The Judge found that claimant’s last day of exposure occurred in December 2003, when he last worked as a firefighter on December 12, 2003. The Judge determined that because claimant’s claim did not manifest within 300 weeks of December 12, 2003 his claim was time barred.
Claimant appealed the Judge’s decision to the WCAB. Before the Board, claimant argued that the Judge applied the incorrect statute of limitations. The Board affirmed the Judge’s determination denying claimant’s Claim Petition. In making this decision, the Appeal Board relied on the Commonwealth Court’s decision in City of Warren v. WCAB (Haines), 156 A.3d 371 (Pa. Cmwlth.) appeal denied 170 A.3d 1039 (Pa. 2017). The Board noted that claimant had alleged a date of injury of December 12, 2003 and credibly testified that his last day at the firehouse was December 12, 2003 and he was exposed to diesel fuel emissions up until that time. The Board reasoned that his case, however, did not involve a death claim and did not involve disability. Claimant presented no evidence of disability, he did not allege disability or identify a date of any alleged disability, and the Judge did not find the occurrence of a work-related disability. The Board reasoned that in order to satisfy the limitation of Section 301(c)(2) the claimant’s disability or death must occur within 300 weeks of last exposure to a hazard. The Board noted that, in Haines, claimant filed the Fatal Claim Petition after the passage of Act 46 and that was not dispositive. The Court in Haines specifically determined that Act 46’s provisions could not be applied retroactively and establish a new statute of repose for occupational disease claims brought under Section 308(r), only where the right to bring the claim had not previously expired under Section 301(c)(2). Based on these factors, the Board rejected claimant’s argument and affirmed the Judge’s decision.
Before the Commonwealth Court, claimant argued, based upon the discovery rule, that the three year statute of limitations in Section 315 of the Act began to run at the time he learned, through a medical diagnosis, that he suffered from an occupational disease. Claimant argued that the evidence of record supported his entitlement to benefits for an occupational disease under either the “catch all provision” in Section 108(n) or the firefighter’s cancer provision in Section 108(r). Claimant further argued that he was entitled to the newly added presumption of compensability in Section 301(f) of the Act. The Court found that Section 301(c) of the Act imposes a time limit upon a claimant’s ability to present an occupational disease claim and the operative time limit language of 300 weeks in Section 301(c)(2) pre-existed and was essentially unchanged by the passage of Act 46. The Court read this language as requiring some “significant, objective manifestation” of the occupational disease within 300 weeks of the last date of exposure at work. In a case where there is a claim for disability or death, the disability or death must occur within this 300 week period. In Caffrey, however, the claimant was seeking the payment of only medical benefits. The Court reasoned that while the statutory language does not explicitly address medical benefits, there was no reason to believe that the General Assembly intended to withhold medical benefits from a claimant, where some significant objective manifestation of the occupational disease had occurred within the 300 week period. In the instant case, the Court found that claimant’s cancer was diagnosed and he underwent significant surgery and follow-up treatment within the 300 week period. Claimant also incurred medical bills within the 300 week period. Based on these factors, the Court found that the claimant’s rights were not extinguished by the operation of the pre-Act 46 300 week statute of repose in Section 301(c)(2). The Court did find, however, that the Court’s previous decision in Haines did not control this case, because there was a cancer diagnosis and significant objective manifestation of the occurrence of claimant’s cancer in terms of his surgery within the statutory period and because medical bills were actually incurred within the statutory period. The Court found that because claimant’s bladder cancer occurred within 300 weeks of his last exposure to a work hazard in December 2003, he was entitled to medical benefits regardless of any disability, if he can prove he sustained an occupational disease under the “catch all” provision of Section 108(n) of the Act. The Court went on to hold that because claimant alleged that he sustained an occupational disease under Section 108(n) within 300 weeks of his last exposure to the hazards of the disease, and where he filed his Claim Petition within 600 weeks (11.5 years ) of his alleged last direct exposure to carcinogens in December 2003, claimant may also assert a firefighter’s cancer claim for medical benefits under Sections 108(r) and 301(f) of the Act. The Court found that claimant had satisfied both the pre-Act 46 occupational disease statute of repose of 300 weeks and the post-Act 46 statute of repose of 600 weeks. The Court went on to find, however, that because claimant failed to actually file his Claim Petition within the first 300 weeks after his last date of exposure to the hazards of the disease, he was not entitled to the presumption of compensability in Section 301(f) of the Act. The Court went on to find that claimant’s claim was not viable, based upon the passage of time between his 2003 “injury,” defined as the last date of his exposure, and his 2013 Claim Petition filing. The Court further held that in this case, claimant also had to satisfy the three year statute of limitations as stated in Section 315 of the Workers’ Compensation Act.
The Court ruled that claimant’s case was to be remanded back to the Judge for a determination that he had timely filed his Claim Petition under the discovery rule. The Court remanded the case with specific directions to the Judge to determine, based upon the existing evidence of record, whether claimant filed a timely Claim Petition for medical benefits for an occupational disease applying the discovery rule and, if so, whether the claimant met his burden of proving that he sustained an occupational disease, in the nature of bladder cancer under either Section 108(n) and 301(c)(2) of the Act or Sections 108(r) and 301(f) of the Act. If claimant could establish that he sustained an occupational disease under any applicable provisions of the Act, he would be entitled to payment of his medical bills related to his occupational disease even though he did not suffer a loss of earnings.
The Court’s decision in Caffrey focuses heavily on the different statutes of limitations applicable for an occupational disease case. With occupational disease cases, it is important to be aware of the different statutory requirements, with respect to the filing of claims. It is also important to note that the claimant in this case, a long time firefighter, was seeking the payment of only medical bills and it does appear that the Court perhaps went “the extra mile” to find a means to award benefits.