TTH eNotes: Workers’ Compensation – October 2018
October 03, 2018
A Replay of Thomas Thomas & Hafer’s 16th Annual Workers’ Compensation Conference : “The Opioid Crisis in Pennsylvania: What it is, How it Affects Your Claims and Suggested Strategies for Successful Claims Management”
Medical Marijuana and the Workers’ Compensation Act
Attorney Justin D. Beck addresses the latest development and strategies in the handling of medical marijuana in Pennsylvania worker’s compensation matters.
SIGNIFICANT PENNSYLVANIA CASE SUMMARY
County of Berks v. WCAB (LePosa), No. 238 C.D. 2018 (June 22, 2018)
By: Joseph J. Shields, Esquire
The Commonwealth Court reversed the decision of the WCAB, holding that Employer provided Claimant “prompt written notice” of Claimant’s ability to return to work because Claimant was not prejudiced when she received a Notice of Ability to Return to Work and return to work job offer at the same time.
On January 12, 2014, Claimant sustained a work injury described as a “left foot/ankle & right thumb”. An IME was performed on August 11, 2015, which found that Claimant could return to full duty work. A Notice of Ability to Return to Work was prepared indicating a “Date of Notice” of August 31, 2015. By letter dated September 29, 2015, Employer sent the Notice of Ability to Return to Work along with a job offer requiring Claimant to return to her pre-injury job on October 2, 2015. On November 12, 2015, Employer filed a Suspension Petition based upon Claimant not returning to her pre-injury job. Between September 29, 2015 and November 12, 2015, Claimant consulted her attorney who sent her to a doctor who opined that she was unable to return to work. Claimant also took and passed a tuberculosis test during that time period, which was required to return to work. Claimant ultimately did not return to work because she feared for her safety and that of her patients. The WCJ granted the Suspension Petition, finding Employer’s medical expert more credible than Claimant and her medical expert. The WCJ found that Claimant received the September 29, 2015, job offer letter. The WCJ made no finding as to whether Claimant received the Notice prior to Employer’s job offer. Claimant appealed to the Board, arguing that the WCJ erred in granting the Suspension Petition because it was based upon a “defective job offer.” Claimant argued that there was no record of evidence showing that she received the Notice prior to the job offer. The WCAB agreed, reversing the WCJ. The WCAB stated the Employer needed to show, as a threshold issue, that Claimant received “prompt written notice” of her ability to return to work. The WCAB found that this did not occur in this case because the Notice was not served upon Claimant prior to the job offer, as required by case law. Employer appealed to the Commonwealth Court, arguing, inter alia, that Claimant was not prejudiced by receiving the Notice and job offer at the same time.
The Commonwealth Court reversed the WCAB. The Court noted that the purpose a Notice of Ability to Return to Work is to provide prompt written notice to a claimant that medical evidence has been received which returns her to work and to give the claimant a reasonable amount of time before the employer acts upon that information. With regard to the latter point, the employer must give notice reasonably in advance of the date on which the employer seeks to modify benefits so that the claimant has time to search for employment or take other legal action. The Court rejected a dispositive “number of days” test regarding when Notice is provided followed by a job offer. Instead, the Court found that the crucial factor is prejudice to a claimant. With that in mind, the WCAB found that Claimant was not prejudiced in this case. Claimant had a reasonable amount of time, more than a month, to consult with her attorney and undergo a medical examination so as to obtain evidence contrary to that of Employer’s evidence before Employer filed the Suspension Petition. Accordingly, the Court reversed the WCAB and found that the Notice was promptly provided to Claimant.
Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at firstname.lastname@example.org.
SIGNIFICANT NEW JERSEY WORKERS’ COMPENSATION LAW AMENDMENT
New Jersey Respondents No Longer to Receive a Counsel Fee Reduction on Bona Fide Voluntary Tenders
By: Deborah B. Richman, Esquire
Under the New Jersey Workers’ Compensation Act, a bona fide voluntary tender (VT) has been a vehicle to allow respondents to offset a portion of an attorney’s fee associated with a permanency award by issuing a voluntary payment of permanency to an injured worker. N.J.S.A. 34:15-64 allowed for an employer/insurer/third party administrator to offer a VT to an injured worker and not have to pay an attorney’s fee on that amount if: 1) the offer was made in good faith; and, 2) the VT was made within a reasonable amount of time — within twenty-six (26) weeks from the date of notification of the work injury to the employer, within 26 weeks of the date of Maximum Medical Improvement, or within 26 weeks of the date the petitioner returned to work. The VT was meant to be a win-win for respondents and petitioners in that the money would tide a petitioner over while his or her workers’ compensation case was pending and would save the respondent the attorney’s fee on the amount of the VT.
On August 24, 2018, New Jersey Governor Phil Murphy signed a new bill into law which removed the benefit of not having to pay an attorney’s fee on a VT once a petitioner is represented. Currently, while respondents may still issue a VT to an injured worker and receive a credit against permanency, they will no longer receive the counsel fee reduction once the injured worker has signed an agreement for representation with counsel. An injured worker is under no obligation to disclose whether he or she has signed an agreement with counsel, so in some circumstances the respondent may not know if the VT will be subject to an attorney’s fee. Some petitioners’ counsel complained that VTs were being used as a sword against counsel as opposed to a carrot for the benefit of petitioners. Nonetheless, the potential for creating hardship for petitioners is real as respondents will be far less likely to issue VT without the additional benefit.
Any questions regarding this development can be directed to Deborah B. Richman at 215-564-2928 x 8502 or at email@example.com.