TTH eNotes: Workers’ Compensation: March, 2019
February 28, 2019
Labor Union Sues, Claiming New IRE Provisions Unconstitutional:
Pennsylvania AFL-CIO Seeks Declaratory and Injunctive Relief against Act 111
By: Justin D. Beck, Esquire
In a suit filed February 5, 2019, the Pennsylvania AFL-CIO has requested declaratory and injunctive relief, alleging that Act 111 violates Article II, Section 1 of the Pennsylvania Constitution. The AFL-CIO posits that the recent amendment, which created Section 306(a.3) of the Act, reestablishing Impairment Rating Evaluations, impermissibly delegates the legislative authority of the Pennsylvania General Assembly to a private entity.
Citing Protz v. WCAB (Derry Area Sch. Dist.), the filing notes that the proper delegation of legislative power requires that (1) the General Assembly make the “basic policy choices” and (2) the legislation must include “adequate standards which will guide and restrain the exercise of the delegated administrative functions.” Indeed, the Protz court had admonished that the now-stricken Section 306(a.2) of the Act “did not include … any of the procedural mechanisms … essential to protect against ‘administrative arbitrariness and caprice.’” In this regard, the prior statutory language had not required the American Medical Association to hold hearings, accept public comments, or explain the grounds for its methodology, which could then be subject to judicial review.
The AFL-CIO thus alleges that the new Section 306(a.3) similarly violates the Pennsylvania Constitution’s non-delegation rule by compelling physicians to rely upon the Sixth Edition of the AMA Guides and failing to require that the AMA hold hearings, accept public comment, or explain the grounds for its methodology, which could then be subject to judicial review. The filing further emphasizes that physicians who author the Guides are not public employees subject to discipline or removal through standard governmental processes. For these reasons, the AFL-CIO alleges that Section 306(a.3) of the Act represents but another impermissible delegation of legislative authority.
It is notable that, while the AFL-CIO’s arguments closely mirror those which successfully led to the invalidation of Section 306(a.2) of the Act, the new Section 306(a.3) is generally perceived as having cured the deficiencies identified by the Pennsylvania Supreme Court in Protz. In this regard, the Court had found unacceptable the General Assembly’s delegation to the AMA where all future editions of the Guides were automatically adopted in the absence of any oversight by either a legislative or administrative body. This, the Court held, was an inappropriate delegation which failed to provide sufficient political accountability or governmental oversight. In stark contrast, the language of Act 111 expressly adopts only the Sixth Edition of the Guides, thus necessitating future legislation in the event the General Assembly wishes to adopt a subsequently-released edition. This critical distinction seemingly allays the central concerns raised by the Protz Court, and hence jeopardizes the persuasive value of the AFL-CIO’s arguments.
Thomas, Thomas & Hafer will continue to closely monitor the developments surrounding Act 111. Interested stakeholders are encouraged to contact us with questions or concerns related to Impairment Rating Evaluations and the continued implementation of Section 306(a.3).
SIGNIFICANT PENNSYLVANIA CASE SUMMARIES
Leroy Mason v. WCAB (Philadelphia AFL-CIO Hospital Association and Rodriguez), No. 655 C.D. 2018 (February 13, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Justin D. Beck, Esquire
In an unreported memorandum opinion, the Commonwealth Court held that a treating physician’s diagnoses codes were in fact related to the originally-accepted work injury, and that the Employer’s unilateral refusal to pay for treatment related to same was a violation of the Act warranting the imposition of penalties.
Claimant suffered a work-related injury after twisting his back while discarding medical records into a dumpster. The claim was accepted by way of a Notice of Compensation Payable, which described the injury as a lower back strain. Nearly six years later, the Claimant filed a Utilization Review (UR) Petition pertaining to his ongoing treatment and a Penalty Petition against the Employer, alleging that it had illegally and unilaterally failed to pay medical bills that were not subject to any UR.
Based upon Claimant’s doctor’s report, the WCJ found that the relevant diagnoses for UR were lumbosacral strain/sprain, lumbosacral radiculopathy, and lumbar HNP. In his report, Claimant’s doctor had determined that these conditions were related to the work injury and listed specific diagnosis codes for the same.
As part of the evidence of record, Claimant had submitted extensive documentation, including HCFA forms, which established that the unpaid medical treatments were administered in relation to the diagnoses codes identified by Claimant’s doctor. The Employer did not advance any defense with regard to the Penalty Petition, and failed to demonstrate that the medical bills or diagnoses were not causally related to the work injury.
The WCJ found that all of the procedures and treatments rendered by Claimant’s doctor were reasonable and necessary, granting Claimant’s UR Petition. The WCJ further found that all of the treatment and procedures reflected in the unpaid medical bills were causally related to the accepted work injury. This finding was based upon the determination that the diagnoses codes contained within the HCFA billing statements, as mirrored by Claimant’s doctor’s report, were related to the work injury. Accordingly, the WCJ ordered the Employer to pay the outstanding medical bills, 10% interest, and a 50% penalty of the total amount owed. The WCJ further directed the Employer to pay unreasonable contest counsel fees of 20% of the outstanding medical bills.
The Employer appealed to the Workers’ Compensation Appeal Board, which affirmed the WCJ’s grant of the UR Petition, however, it reversed the WCJ’s granting of the Penalty Petition, holding that the mere presence of a diagnosis code for a lumbar strain/sprain (the accepted injury) on Claimant’s HCFA forms did not prove that all other listed diagnoses codes were also work-related. Claimant appealed and Commonwealth Court reversed the WCAB.
The Commonwealth Court held that, pursuant to the controlling NCP, the Employer had accepted liability for a low back strain, and that the treatments previously at issue in the context of UR were found to have been both reasonable and necessary and causally related to the low back.
Further, the Court noted that Claimant’s doctor’s report served as substantial evidence in finding all of the listed conditions and diagnoses codes as “secondary” to, or stemmed from, the low back injury accepted in the NCP. Stated differently, the doctor’s multiple diagnoses were properly conceptualized as substituted, alternative, or overlapping diagnoses relatable to the original work injury. In this sense, the multiple specific codes identified by the doctor were not injuries separate and apart from the accepted injury, but were, instead, simply different or “other” diagnoses which maintained an obvious causal connection to the original injury, as all pertained to the low back.
The Court thus held that the WCJ had an adequate evidentiary basis upon which she could infer that the diagnoses articulated in Claimant’s doctor’s report and listed on the HCFA billing statements were causally related to the work injury. Accordingly, as the evidence demonstrated that the Employer unilaterally refused to pay medical expenses for the work-related injury, the Court concluded that the imposition of penalties was in fact proper.
An employer/carrier’s decision to deny certain medical bills invariably generates a risk of penalties later being imposed if the same is proven to be related to the work injury. This is so even where the precise diagnoses evolve under various treating physicians over time. Thus, any contemplated denial of treatment which is administered to the same body part as the original work injury should be cautiously approached and done only with the close advisement of counsel.
Any questions concerning this case can be directed to Justin D. Beck, Esquire, at 412-926-1441 or email@example.com
Pinto v. WCAB (Main Line Healthcare), No. 739 C.D. 2018 (February 22, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Ryan C. Blazure, Esquire
Commonwealth Court holds that a Review Petition may be filed to seek clarification of a previous WCJ decision under limited circumstances; however, if a change to the merits of a decision is sought, a Review Petition will barred under the doctrine of res judicata.
In April, 2013, the Claimant sustained a work injury by falling off a rolling chair. Initially, the injury was accepted as “cervical/lumbar/thoracic muscle strains.” Litigation followed, and the injury description was defined to include “lumbar strain/sprain and lumbosacral radiculitis from the work-related incident.” Claimant did not appeal this Order, yet the Employer did based upon a questionable issue as it related to Claimant’s continuing eligibility for benefits. However, that issue was resolved by virtue of a stipulation of facts entered into by the parties with Claimant reserving the right to file a Reinstatement Petition should the circumstances dictate and the Employer reserving the right to file a Termination Petition.
Subsequently, Claimant filed a Review Petition in September 2015, based upon the anticipated denial of reinstated benefits following neck surgery to repair disc herniations. Employer noted that in addition to the doctrine of res judicata, Claimant had not specifically reserved the right to review the description of injury. Ultimately, the WCJ found that Claimant had met her burden of proving that she sustained work-related disc herniations at C5-6 and C6-7 causing a combination of spinal cord and nerve compression. It was also found that surgery would be required and that she would be disabled from employment related thereto. This decision was appealed to the Workers’ Compensation Appeal Board which concluded that there is no mechanism for one WCJ to review an earlier WCJ’s award for material mistakes and that any matter concerning the merits of the original award must be addressed in the appeal process, and cannot be modified or corrected by way of a Review Petition. Accordingly, the WCAB reversed the WCJ’s Decision and Order. The matter was then appealed to the Commonwealth Court.
The Commonwealth Court recognized that under certain limited circumstances, clarification of a previous WCJ Decision can be sought by virtue of a subsequent Review Petition. However, the doctrine of res judicata must be borne in mind and any change to a WCJ’s decision going to the merits of a case is not generally permitted.
The Court focused upon the specifics of the case and those behind prior appellate opinions to recognize that whether or not an injury should have been included in the description of the work injury at the time of the original WCJ decision goes to the merits of the case and not to the satisfaction of the award from that original decision. The rule is strict and indicates that even if the omission of an injury is a mistake on the part of the WCJ, that mistake would go to the merits of the case and should have been appealed through the appellate process as set forth in the Act and Pennsylvania jurisprudence generally, if at all. Accordingly, the WCAB’s Order here was affirmed since the original WCJ’s decision did not include the sought-after cervical herniations and, thus, Claimant had been aggrieved thereby. Claimant had not been entitled to receive benefits or payment of medical expenses for that injury. She, therefore, had standing to appeal that original WCJ decision but failed to do so. Accordingly, the prior WCJ’s decision and Order were final and could not be collaterally attacked by a subsequently-filed Review Petition.
Even when we “win,” we need to take a very close look at the Order at issue, as traps for the unwary are ever-present. More direct to the defense of workers’ compensation claims, though, the history of a case which may contain WCJ, appellate findings and even stipulations of the parties are, in almost all circumstances, binding upon the future and must be carefully considered at the time of their creation.
Any questions concerning this case can be directed to Ryan C. Blazure, Esquire, at 570- 820-0240 or firstname.lastname@example.org
James McFillin v. WCAB (Township of Lower Merion & Delaware Valley Workers’ Compensation Trust), No. 478 C.D. 2018 (February 4, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Sean B. Epstein, Esquire
The Court reaffirms the Sloan decision which holds that a Claim Petition must be filed within three years of the date of injury even if a Medical Only Notice of Temporary Compensation Payable has been issued. The Court further concludes that a favorable arbitration award is insufficient evidence to determine the outcome of a Claim Petition.
Claimant was employed as a police officer. On January 31, 2007, Claimant injured his back. On October 19, 2009, the employer issued a Medical Only Notice of Temporary Compensation Payable. The claimant retired on July 31, 2012, originally receiving an age and service pension from the Employer. Subsequently, through a grievance, an arbitrator issued a decision converting Claimant’s age and service pension to a service connected disability pension.
Claimant filed a Reinstatement Petition on June 18, 2015, alleging that his 2007 work injury caused a decrease in his earning power in 2012 upon his retirement. A separate Claim Petition was also filed alleging that on July 1, 2012, Claimant sustained additional injuries resulting in disability.
The WCJ denied both the Reinstatement and Claim Petitions. The Judge concluded that the Reinstatement Petition was time barred because it was not filed within three years of the January 21, 2007 work injury. The Judge further denied the Claim Petition because: (1) Claimant did not prove that he sustained a work-related injury on July 1, 2012, and (2) he is not bound by the arbitrator’s award. The Board affirmed.
The Commonwealth Court held that because Claimant’s injury occurred on January 31, 2017, Claimant’s claim was “forever barred” unless an Agreement for Compensation or petition was filed by January 31, 2010. As Claimant filed his Reinstatement Petition on June 18, 2015, the petition was untimely. Interestingly, Claimant had attempted to have introduced into evidence an Agreement for Compensation which was purportedly signed on September 15, 2010. The Court rejected this and noted that the Act provides “no mechanism whereby an agreement can create or resurrect a right under the statute where the statute itself mandates that the right is expired.” The Court concluded therefore that even if the compensation agreement were considered, it would not have changed the outcome in resolving Claimant’s Reinstatement Petition as it was executed subsequent to January 31, 2010.
The Court further held that the Claim Petition alleging a July 1, 2012 work injury was properly denied and the Court concluded that the issue in the arbitration award was not identical to the one presented in the workers’ compensation claim. The Court noted that the arbitrator’s award indicated that Claimant was forced to retire due to a permanent service related disability that occurred in the January 2007 incident. The arbitrator’s decision no where referenced a July 1, 2012 injury. Consequently, the Court noted that as the issue in the Claim Petition was whether Claimant sustained a work-related injury on July 1, 2012, and the issue in the arbitration proceeding was whether Claimant was entitled to a service connected disability, the issue was not identical and collateral estoppel did not preclude the Judge from the denying the Claim Petition.
In essence, the Court reaffirms that Section 315 is a statute of repose. Once the right is extinguished, even a subsequent agreement executed mutually by the parties acknowledging disability, would not be appropriate. Specifically, and as the court stated, “the Act provides no mechanism whereby an agreement can create or resurrect a right under the statute where the statute itself mandates that the right is expired.”
Questions about this case can be directed to Sean B. Epstein, Esquire at 412-926-1451 or email@example.com
Erie Insurance Company and Powell Mechanical, Inc. v. Workers’ Compensation Appeal Board, No. 20 C.D. 2018 (February 21, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Andrew T. Kravitz, Esquire
The Failure To Pay Compensation Benefits When Due Can Result In Forfeiture Of Reimbursement From The Supersedeas Fund For Those Funds Withheld.
The Employer had accepted liability for Claimant’s work injury by issuing a Notice of Temporary Compensation Payable, which was subsequently converted to a Notice of Compensation Payable by operation of law. Employer became aware of the fact that Claimant may have been intoxicated at the time of the work accident. Employer, based on its conclusion that compensation was not due, unilaterally stopped paying for Claimant’s medical expenses. Employer filed Review and Termination Petitions, requesting Supersedeas. Claimant filed a Penalty Petition alleging violations of the Act for the failure to pay medical expenses. Supersedeas was granted on the Employer’s Termination Petition, but the Workers’ Compensation Judge ordered the payment of the outstanding medical expenses.
The WCJ granted Employer’s Termination and Review Petitions finding that the injury was not sustained during the course and scope of employment due to Claimant’s intoxication. The WCJ granted Claimant’s Penalty Petition finding that the Employer improperly withheld payment for Claimant’s medical expenses. After the WCJ’s decision became final, the Employer sought reimbursement for all medical expenses paid, including those bills initially withheld and later paid. Reimbursement as to the withheld medical expenses was granted by the WCJ. The Workers’ Compensation Appeal Board reversed and denied reimbursement for the medical expenses withheld and later paid.
The Commonwealth Court affirmed the denial of reimbursement for medical expenses withheld and later paid. Employer argued that it paid the medical expenses based on the implied denial of Supersedeas for medical expenses and not as a result of the Penalty Petition. The Commonwealth Court held that an employer who unilaterally withholds payment of medical expenses in violation of the Act may not be reimbursed for those payments even if the employer prevails on the merits.
This case serves as a great lesson in claim management. The employer had the winning case, but by engaging in self-help it cost them on the Penalty Petition and reimbursement for medicals paid.
Questions about this case can be directed to Andrew Kravitz, at (717) 237-7157 or firstname.lastname@example.org
Tong Dong v. WCAB (Eagle’s Corner), No. 784 C.D. 2018 (February 22, 2019)
Pennsylvania Commonwealth Court Unpublished
By: Joseph J. Shields, Esquire
The “Bunkhouse Rule” states that the Act allows compensation for injuries an employee sustains in their leisure time while occupying a bunkhouse or sleeping quarters provided by the employer if the nature of the employee’s work mandates that the employee reside on the employer’s premises.
Claimant was employed as a cook by the Employer. On May 26, 2015, assailants attacked Claimant while he was sleeping on the second floor above Employer’s business. Claimant sustained numerous injuries. Claimant filed a Claim Petition on September 4, 2015, seeking total disability benefits. Claimant later filed an identical Claim Petition against the UEGF on December 17, 2015. The matter was bifurcated to determine whether Claimant was within the course and scope of his employment at the time of his alleged injury. On June 8, 2017, the WCJ determined that Claimant’s alleged injuries were not sustained in the course and scope of his employment and dismissed Claimant’s Claim Petitions. Claimant appealed, and the WCAB affirmed the decision of the WCJ.
The Commonwealth Court affirmed the WCAB’s Order. Claimant argued that he was within the course and scope of employment because his Employer recruited him and he would only accept the job if his Employer provided lodging. The Commonwealth Court disagreed. The Court noted that if an employee is not furthering the employer’s affairs at the time of injury, the employee may only receive compensation if the employee was injured on premises occupied or under the control of the employer, was required by the nature of his employment to be present on the premises and sustained injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon. It was undisputed that Claimant was not furthering the Employer’s affairs at the time of injury. Testimony established that Claimant’s Employer did not require him to live on the second floor. Accordingly, the Court found that Claimant was not within the course and scope of employment at the time of injury.
Claimant also argued that he was within the course and scope of employment because the “Bunkhouse” Rule applies. The Bunkhouse Rule states that the Act allows compensation for injuries an employee sustains in their leisure time while occupying a bunkhouse or sleeping quarters provided by the employer if the nature of the employee’s work mandates that the employee reside on the employer’s premises. The Court found that Claimant’s presence on the Employer’s second floor at 5:00 a.m. was not reasonably necessary for Claimant to complete his work tasks as Employer’s cook. Further, Employer did not receive any benefit from allowing Claimant to live on the premises. Accordingly, the Court found the Bunkhouse Rule inapplicable and affirmed the WCAB’s Order.
Simply because an employee resides on an employer’s premises, if it not reasonably necessary for the claimant to complete his work tasks, an on-premises injury is not necessarily compensable.
Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at email@example.com
Pamela Joan Van Leer v. WCAB (Hudson), No. 1127 C.D. 2018 (February 27, 2019)
Pennsylvania Commonwealth Court
By: Justin D. Beck, Esquire
In a reported opinion, Commonwealth Court held that an overnight caretaker for a patient suffering from mild dementia fell within the Domestic Service Exception of the Act, and was thus barred from receiving benefits.
Claimant was injured while caring for an individual with dementia. Claimant regularly worked overnight, and her duties included ensuring that the dementia patient was ready for bed, took her appropriate medications, and did not get hurt or leave the house. By her own testimony, Claimant’s shifts consisted mostly of “sitting there, making sure.”
Following an injury which resulted in a broken nose, damaged teeth, lacerations, and an aggravation of preexisting arthritis, Claimant filed a Claim Petition, alleging that such maladies had arisen in the course of her employment. The WCJ denied the Petition, finding that the Claimant was engaged entirely in domestic service, and thus fell within the Domestic Service Exception of Section 321 the Act, which states:
“Nothing contained in this Act shall apply to or in any way affect:
(1) Any person who at the time of injury is engaged in domestic service: Provided, however, that in cases where the employer or any such person shall have, prior to such injury, by application to the [D]epartment [of Labor and Industry] and approved by the [D]epartment, elected to come within the provisions of the Act, such exemption shall not apply.”
TClaimant appealed to the Workers’ Compensation Appeal Board, which affirmed; she subsequently appealed to Commonwealth Court, which affirmed the denial of benefits.
Reviewing its limited precedent addressing the Domestic Service Exception, the Court noted that, historically, persons engaged in domestic services performed in a private home had been excluded from compensation under the Act. This exception had previously been interpreted to encompass cooks, maids, gardeners, and babysitters, all of whom were said to have narrowly served the needs of a household. Conversely, workers whose duties involved the unique needs of disabled individuals were not considered to be engaged in domestic service, but were instead conceptualized as akin to health aids, and thus entitled to compensation benefits in the event of injury.
The Court specifically cited, and seemingly found persuasive, the WCAB’s characterization that the only difference between Claimant’s duties and those of a babysitter was the age of the person for whom she cared. As Claimant’s responsibilities consisted primarily of preparing the patient for bed and monitoring her activities during the overnight period, with no medical care rendered, the Court held that the employment fell squarely within the Domestic Service Exception, affirming the denial of benefits.
Where a caretaker’s job duties consist only of household monitoring and chores, rather than medical care, a cognizable defense exists to any claim for benefits under the Domestic Service Exception of the Act. In consideration of the highly fact-intensive nature of such analysis, it is advised that counsel be immediately consulted where such scenarios present.
Any questions concerning this case can be directed to Justin D. Beck, Esquire, at 412-926-1441 or firstname.lastname@example.org.
SIGNIFICANT NEW JERSEY CASE SUMMARY
Kocanowski v. Township of Bridgewater, A-55-7-16T1 (080510) (February 19, 2019)
By: Deborah B. Richman, Esquire
The New Jersey Supreme Court Rules that volunteer firefighters are entitled to maximum temporary benefits whether or not they engage in outside employment.
Jennifer Kocanowski (Petitioner), was a volunteer firefighter for 15 years for the Township of Bridgewater. In March, 2015, she was injured while slipping on ice responding to a fire in the nature of a broken fibula, several torn ligaments, fractures in her ankle, a meniscal tear and a back injury. She was not earning wages through outside employment at the time of the accident. In October, 2013, she stopped working to assist her ailing father who had since passed away. She returned to volunteer firefighting in July, 2014, but did not return to outside employment. Prior to October, 2013, she worked as a nanny and a certified home health aide.
Petitioner filed a Motion for Medical and Temporary Benefits claiming the maximum disability rate due to her status as a volunteer firefighter under N.J.S.A. 34:15-75. The Judge of Workers’ Compensation acknowledged that N.J.S.A. 34:15-75 awards maximum compensation to volunteer firefighters injured in the course of their volunteer work, but found that temporary benefits were meant as a wage replacement. The Judge thereby denied the Motion for Temporary benefits because she was not receiving wages at the time of her injury. The Appellate Division affirmed. The Supreme Court reversed.
The Supreme Court pointed to the legislature’s expanding protections for volunteer firefighters over the history of the Workers’ Compensation Act and determined that it would be incongruus and inconsistent after years of expanding protections and exemptions for volunteer firefighters, for the Legislature to abruptly limit the class of volunteer firefighters who qualify for temporary disability to only those employed at the time of injury. To require prior outside employment in order to qualify for N.J.S.A 34:15-75’s presumption of entitlement to the maximum compensation would lead to absurd results.
This case could have implications for thousands of volunteer firefighters and potentially other volunteer emergency services personnel throughout the state and potentially increase municipal costs.
Any questions regarding this case can be directed to Deborah B. Richman at 215-564-2928 x 8502 or at email@example.com.