Posts Tagged ‘claimant’

The Pennsylvania Commonwealth Court has ruled that a detoxification program was “reasonable medical treatment” and upheld an Order granting a suspension of wage loss benefits. Under the Pennsylvania Workers’ Compensation Act, if an injured employee (the “claimant”) refuses reasonable treatment, the employee shall forfeit all rights to compensation for any increase in incapacity resulting from such refusal. Treatment has been deemed “reasonable” if it is highly probable that the treatment will cure the health problem and enhance the claimant’s prospects for gainful and fulfilling employment. In the case of Bereznicki v. W.C.A.B. (Eat “N Park Hospitality Group), the employer offered the claimant entry into a detox program and claimant refused the offer. The employer filed a suspension petition, alleging that the claimant refused reasonable medical treatment.

In support of their Petition, the employer offered expert medical testimony which indicated that the claimant was taking various medications (Methadone, Oxycodone, Neurontin, Alprazolam, Zanaflex, Effexor, Wellbutrin, Depakote and Etodolac) and that a chronic pain management program would allow claimant to return to normal neurologic function by decreasing the toxic doses of the medications. The employer’s medical expert also noted that any program that would decrease the toxic dose of the opioids would be in claimant’s best medical interest, that a supervised detox program entails very little risk and that although such a program would not help her return to her pre-injury job, it would make it possible for her to function with activities of daily living.

The WCJ ruled that, while the detox program would not guarantee that the claimant could return to her pre-injury job, an improvement of functioning would make it possible for claimant to work. Thus, the WCJ decided that the claimant refused reasonable medical treatment that would improve her ability to function and return to work.

The Commonwealth Court has upheld the WCJ’s decision in stating that a detox program would wean the claimant from toxic doses of medication, curing that health problem, and would allow the claimant to return to normal functioning and enhancing her prospects for gainful and fulfilling employment. Although the detox program would not return the claimant to her pre-injury job, her refusal of such treatment certainly increased her incapacity.

The Pennsylvania Workers’ Compensation Act requires that a Notice of Ability to Return to Work form must be issued to an injured worker (the “claimant”) in a “prompt” fashion in order for an employer to pursue a modification or suspension of the claimant’s wage loss benefits based on an earning power assessment. However, the Act does not define what constitutes “prompt” written notice. Pennsylvania courts have held that the purpose of this statutory requirement is to provide notice to an injured worker that (1) there is medical evidence that the claimant can perform some work, (2) that benefits could be affected, and (3) that the claimant has an obligation to look for work. A claimant must have notice that her benefits could be affected before the employer attempts to modify benefits by showing earning power which is typically done by expert vocational testimony showing open and available work that falls within the claimant’s work-related restrictions and is within the claimant’s geographical area. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of work. The appellate courts have thus determined that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received within a reasonable time after its receipt lest the report itself becomes stale. It also requires an employer to give notice to the claimant a reasonable time before the employer acts upon the information. This necessarily requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice.

In Sexton v. WCAB (Forest Park Health Center), the Pennsylvania Commonwealth Court has held that a utilization review organization (URO) had no choice but to deem injections received by a claimant for pain relief due to her work-related back injury unreasonable and unnecessary as the claimant’s medical records were not properly submitted to URO due to lack of required verification form signed by the claimant’s medical provider who’s treatment was being reviewed. The Court held that the submission of a signed verification form from provider was mandatory and the failure to provide the signed verification form to the URO was same thing as providing no medical records. Thus, without such a form, the URO could not say with certainty that the records were accurate.

The Pennsylvania Commonwealth Court recently issued a decision in a case involving an Impairment Rating Evalaution (IRE) that was not requested within the statutory time frame, i.e. within 60 days of the claimant’s receipt of 104 weeks of temporary total disability (TTD) wage loss benefits. This issue had previously been discussed by the Pennsylvania Supreme Court in the case of Gardner v. WCAB (Genesis Health Ventures). In Gardner, the Court held that an employer may request a claimant to submit to an IRE more than 60 days after the date the claimant comes into possession of 104 weeks of TTD benefits. Gardner also held that to modify the claimant’s benefit status from total to partial, the employer must seek a change in status via “the traditional administrative process”. Since the Gardner decision was issued in 2005, the question has been “what is meant by the traditional administrative process”?
In Diehl v. IA Construction, the Commomwealth Court addressed this issue. THe Court ruled that the defendant’s actions in securing an IRE under 50% (in the Diehl case, 28%), filing a Petition to Modify Benefit Status, and the presentation of the IRE findings into evidence was sufficient to meet the defendant’s burden of proof. Accordingly, the Diehl Court modified the claimant’s benefits status from total to partial and wage loss benefit entitlement was capped at 500 weeks.

The Pennsylvania Commonwealth Court has recently determined that the doctrine of res judicata precludes the filing of a second review petition to expand the description of the work related injury when the parties previously entered into a stipulation that expanded the description of injury.
In Weney v. WCAB (Mac Sprinkler Systems, Inc.), the claimant was injured on October 21, 2005 when he fell from a ladder and sustained a left shoulder strain. As a result of that injury, Weney was unable to work. Hie employer acknowledged the work injury via a Notice of Temporary Compensation Payable (NTCP), which was later converted into the NCP. On March 27, 2006, claimant filed the first Petition to Review Compensation Benefits (Review Petition I), which sought to amend the NCP to include a left shoulder injury in the nature of a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis. The parties then entered into a Stipulation of Facts (Stipulation) wherein they agreed that the NCP should be amended to include the additional shoulder injuries as asserted by claimant in Review Petition I. On May 19, 2006, the Workers’ Compensation Judge issued a decision and order adopting the Stipulation and granting claimant’s Review Petition I. Neither party appealed this decision and order. On May 30, 2006, Weney filed a second Review Petition (Review Petition II) which sought to further amend the NCP to include four herniated discs at the C2-3, C3-4, C4-5, and C5-6 levels, which he allegedly sustained as a result of the October 21, 2005 work incident. The employer filed an Answer denying the allegations set forth in Claimant’s Review Petition II and asserting the affirmative defense that Review Petition II was barred by the doctrines of technical res judicata and/or collateral estoppel. The WCJ held two hearings at which the parties were given the opportunity to present evidence regarding Claimant’s Review Petition II.
The WCJ granted Claimant’s Review Petition II and amended the NCP to include Claimant’s herniated discs. The WCJ did not address Employer’s allegation that Claimant’s Review Petition II was barred by the doctrines of technical res judicata and/or collateral estoppel. Employer appealed and the WCAB reversed the WCJ’s decision and order. Claimant then appealed to the Commonwealth Court.
The Commonwealth Court agreed with the WCAB and concluded that technical res judicata applies and that Claimant’s Review Petition II was barred. The Court noted that the subject matter of both the Review Petition I and Review Petition II proceedings was the nature and extent of the injuries that Claimant sustained as a result of the October 21, 2005 work incident. Thus, the ultimate issue in both proceedings was whether the NCP accurately reflected the nature and extent of Claimant’s injuries.

In Maxim Crane Works v. W.C.A.B. (Solano),931 A.2d 816 (Pa.Cmwlth.2007), the Court addressed the applicability of a retroactive offset of the Claimant’s workers’ compensation wage loss benefits based upon his concurrent receipt of Social Security “old age” benefits. Section 204(a) of the Pennsylvania Workers’ Compensation Act (“the Act”), 77 P.S. § 71(a), provides that fifty percent of the benefits commonly characterized as “old age” benefits under the Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.) shall be credited against the amount of the workers’ compensation payments provided that the Social Security benefits were received after the compensable injury. The offset shall not apply if old age Social Security benefits were received prior to the compensable injury per the provisions of Section 204(a) of the Act.
The Claimant, Solano, was injured on October 10, 2000. On June 6, 2005, Claimant received Form LIBC-756 “Employee’s Report of Benefits for Offsets” from the employer. Claimant completed the form and confirmed his receipt of old age Social Security benefits. On August 3, 2005, Claimant received Form LIBC-761 “Notice of Workers’ Compensation Benefit Offset”, notifying him that the employer was taking a credit that would offset his weekly workers’ compensation benefits, and that a credit from 14 months of prior old age Social Security benefits would also be recouped, reducing his weekly workers’ compensation benefits to zero for a period of 25.75 weeks. On August 16, 2005, Claimant filed the Petition to Review alleging that the offset was calculated in error.
In deciding the case, the Commonwealth Court has held that while the Claimant owed a duty to report receipt of old age Social Security benefits, the regulations placed the initial duty upon the employer or insurer to notify claimant of the reporting requirements and to provide the Claimant with the proper forms. Therefore, the employer was only entitled to an offset for old age Social Security benefits as of the date that claimant received the form notifying him of his duty to report his Social Security benefits. The Court further noted that the equitable doctrine of laches applied so as to disallow a retrospective offset for workers’ compensation claimant’s receipt of old age Social Security benefits. The employer had an obligation to notify claimant of claimant’s reporting requirements under the Workers’ Compensation Act in order for employer to secure an offset. However, the employer did not notify claimant of the reporting requirements until nearly five years after Claimant’s work injury and over two years after Claimant had begun receiving workers’ compensation benefits. In essence, the Court held that the employer could not sit on their rights and expect to recoup a retroactive overpayment.

Thomas P. Cummings, Esq.
Dougherty, Leventhal & Price
75 Glenmaura National Blvd.
Moosic, PA 18507
(570) 347-1011
[email protected]

The Pennsylvania Commonwealth Court has ruled that a claimant was entitled to benefits, despite fact that he was injured while violating a positive work order prohibiting horseplay. In Sysco Food Services of Philadelphia v. W.C.A.B. (Sebastiano), the facts indicated that the claimant was employed as an order selector. On the date of injury he was retrieving some shrink wrap. when he was grabbed from behind by a co-worker who shouted “Let’s get him.” Anothe co-worker grabbed the claimant from the front, hugging his arms so he could not move, and attempted to trip him. This individual pulled claimant across the floor. Claimant asked him to stop. At that time, someone came by on a pallet jack, beeped the horn at them, and told them to get out of the way. Claimant asserted that he was let go and as he was turning around to walk away he felt someone collide into him. As he fell to the ground, he looked up and a co-worker was on top of him. He heard a loud crack as he was falling. Claimant was taken to the hospital. Claimant acknowledged that horseplay was prohibited by his employer and that it is a punishable offense. Claimant’s contentionwas that he was not a participant in the horseplay, but rather a victim of it.
The claimant, Sebastiano, filed a claim for workers’ compensation benefits. In reponse, the employer raised the affirmative defense that claimant’s actions violated a positive work order and, therefore, his injuries were sustained outside the course and scope of his employment. To properly sustain this defense, the employer must prove: (1) that the injury was in fact caused by the violation of the work rule, (2) that the employee actually knew of the order or rule, and (3) that the rule implicated an activity not connected with the employee’s work duties.
The Commonwealth Court ruled that the claimant was entitled to benefits and granted claimant’s petition. The Court reasoned that, despite fact that the claimant was injured while violating a positive work order prohibiting horseplay, claimant was the victim of horseplay and was not an active participant in it. As the claimant did not choose to engage in the horseplay, it could not be said that he violated the rules of his employer. Further, the Court noted other factors supporting a compensable claim including the fact that the claimant was in an area he was required to be at the time he sustained his injuries, the incident in question was mere horseplay, and that there was joking around with no intent to harm or injure.

If you have been injured at work and have questions about your claim, please call me for a free consultation.
Thomas P. Cummings, Esq.
75 Glenmaura National Blvd.
Moosic, PA 18507
[email protected]

In Tannenbaum v. Nationwide Insurance Company, 919 A.2d. 267 (Pa.Super. 2007), the Pennsylvania Superior Court ruled that an insurer is not entitled to a credit for private disability benefits received by an insured against an award of underinsured (UIM) motorist benefits to the insured.  The Court held that benefits derived from self-paid disability coverage do not duplicate benefits payable under a UIM insurance policy.

Prior to the arbitration hearing in Tannenbaum, the insurance company submitted a motion in limine seeking to preclude the Claimant from introducing evidence relating to amounts paid or payable from two personal disability policies subscribed to Claimant, and one group policy supplied by his employer under an earned employee incentive program, all three of which were issued by the same company, UNUM. The motion was granted, and after a hearing the arbitrators credited and/or set off $984,432.52 against their award of $1,875,000.00, leaving a net amount of $890,567.48.  The Claimant’s petition to vacate the arbitrators’ decision was granted after a hearing, and the insurance company appealed to the Pennsylvania Superior Court.

The motion in limine was based on the theory that because Claimant had already received disability benefits in the form of payments from UNUM, receipt of UIM payments without set-off would constitute duplicate recovery, or “double dipping,” a practice the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1722, was specifically designed to prevent. That section provides:

§ 1722. Preclusion of recovering required benefits

In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.

On appeal the insurance company assigned error to the trial court’s determinations that: 1) that § 1722 does not prevent Claimant’s receipt of benefits from both his UIM coverage and his disability policies; and 2) that Claimant should be able to plead and prove the amount of benefits paid or payable from his personal policies where a dispute still existed as to whether the group policy was paid for by Claimant or his employer.

The insurance company argued essentially that § 1722 must be construed to regard any benefit payments other than those received pursuant to UIM coverage as, by definition, duplicative. In so arguing, the insurer confused double recovery, which the Act does not permit, with recovery of excess benefits, for which the Act makes provision. See 75 Pa.C.S.A. § 1719(a).^FN2

FN2. 75 Pa.C.S.A. § 1719. Coordination of benefits

(a) General rule.-Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712(1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers’ compensation.

The crux of the insurer’s argument was that “ § 1722 does not exempt plans because of the source of the payment and to adopt such an approach would defeat the very purpose of the MVFRL.” (Appellant’s Brief at 24). Specifically, the insurer insisted that Claimant having himself paid for his personal disability policies does not entitle him to benefits under both that coverage and his UIM policy, since such recovery would undermine the intent of the statute to prevent duplicate benefits. The Court noted however that it was not persuaded, as a review of case authority in the area revealed a clear intent to acknowledge the legitimacy of excess benefits.^FN3

FN3. The insurer’s challenge to the order was based almost entirely on Austin v. Dionne, 909 F.Supp. 271 (E.D.Pa.1995), which, as a Federal District Court decision, is both non-binding on this Court, and prior in time to the controlling authorities discussed herein.

The Court noted that preliminarily the disability policies at issue on their face stated, as § 1719(a) requires, that they were in excess of first party benefits available under the MVFRL. Excess clauses have long been understood to “provide protection to the insured in addition to other coverage which might be available to him.” Connecticut Indemnity Company v. Cordasco, 369 Pa.Super. 439, 535 A.2d 631, 633 (1985) (citation omitted). Our Supreme Court in Panichelli v. Liberty Mutual Insurance Group, 543 Pa. 114, 669 A.2d 930, 932 (1996), addressed the question of whether sick pay and social security benefits were deductible in calculating actual loss of income under the MVFRL. The Court made clear that benefits for which an employee has paid, either “in the form of lower wages for the sick leave benefits and in the form of payroll deductions for the social security benefits,” id., are not duplicative, since “the reference in § 1719(a) to § 1712(2) ^{FN4 shows an intent on the part of the Legislature to allow excess recovery of wage benefits payable under any program, group contract, or other arrangement.” Id. (emphasis added).FN4. § 1712. Availability of benefits}

^{An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title … shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:}

^{(2) Income loss benefit.-Includes the following:}

^{(i) Eighty percent of actual loss of gross income.}

^{(ii) Reasonable expenses actually incurred for hiring a substitute to perform self-employment services thereby mitigating loss of gross income or for hiring special help thereby enabling a person to work and mitigate loss of gross income.}

^{Similarly, in Browne v. Nationwide Mutual Insurance Company, 449 Pa.Super. 661, 674 A.2d 1127 (1996), appeal denied, 545 Pa. 674, 682 A.2d 306 (1996), the Supreme Court found that payment under the MVFRL was not subject to offset for social security disability benefits because the source of the latter is the claimant himself. Id. at 1129. The Court noted as critical appellant’s having paid for the coverage out of his own pocket, and found that fact rendered the benefits recovered in excess of his UIM benefits, not in duplication.}

^{In Carroll v. Kephart, 717 A.2d 554 (Pa.Super.1998), the Supreme Court again concluded, after reviewing Panichelli and Browne, that sick pay, because of which the Claimant received lower wages, was not a reprise of wage loss benefits under the MVFRL: “benefits [] which a plaintiff has *271 paid for or earned through his employment are not within the purview of § 1722 and the receipt of those benefits do not constitute a double recovery.” Id. at 558.}

^{This view is further developed in Ricks v. Nationwide Insurance Company, 879 A.2d 796 (Pa.Super.2005), appeal denied, 587 Pa. 698, 897 A.2d 459 (2006). There the question involved whether the claimant’s recovery of uninsured motorist (UM) benefits under his own policy was duplicative of benefits received under his employer’s workers’ compensation coverage. The Court found that it was not, as the statute prohibits subrogation by a workers’ compensation carrier against a claimant’s personal UM insurance policy. Id. at 801 n. 8.}

^{In Standish v. American Manufacturers Mutual Insurance Company, 698 A.2d 599 (Pa.Super.1997), the Court considered the situation of a worker injured in the course of his employment while driving his personal vehicle. Because the automobile insurance premiums had been paid exclusively by the Claimant, the Court found that his receipt of benefits pursuant to his own automobile policy was not duplicative of workers compensation benefits, and therefore not subject to subrogation. Id. at 601.}

^{All of these cases involved types of personally paid insurance different than that of the Claimant in Tannenbaum, and the insurer insisted that the holdings in each were limited to the specific type of excess insurance considered. However, the Court was not persuaded, as the overarching principle remains constant: where the personal policies resorted to are both separate from UIM, or UM, coverage, and paid for exclusively by the claimant either directly, or through payroll deductions which result in lower wages, payments received from these coverages do not duplicate benefits under the MVFRL as they are fundamentally different from those benefits.}

^{The insurer also contended that the trial court erred in finding that Claimant should be allowed to plead and prove the amounts paid or payable from his disability policies. The error lies, the insurer insisted, because the information on these matters was not submitted to the arbitration panel which therefore did not resolve the question of whether the disability policy Claimant received through his employment was paid for by him or his employer. Again, the Court was not convinced.  The absent information was not provided to the arbitrators because they had, in granting insurer’s motion in limine, refused to receive it. As already noted, in so doing they erred. Given this circumstance, the argument that the trial court erred in ordering that Claimant “is permitted” to produce this evidence is one most charitably described as circular.}

^{In Ricks, supra, a panel of arbitrators was found by the Pennsylvania Superior Court to have prohibited the appellant improperly from “pleading proving and recovering” from his UM carrier the amount of worker’s compensation he had received, an amount deducted from his UM coverage. We determined that because the two payment streams were not duplicative under § 1722, “the arbitrators ‘had refused to hear evidence material to the controversy,’ such that their award should be vacated. 42 Pa.C.S.A. § 7314(a)(iv).” Id. at 801. The Court noted the arbitrators in this case made the same mistake.}

^{If you have any questions about UM or UIM coverage, or a UM or UIM claim, please contact DLP for a free consultation.}

^{John P. Finnerty, Esquire}

In Lewis v. W.C.A.B. (Giles & Ransome, Inc.), 919 A.2d 922 (2007), the Pennsylvania Supreme Court issued an opinion detailing the high burden of proof employers face in attempting to terminate an injured employee’s workers’ compensation benefits.  In general, a workers’ compensation judge may modify or terminate a claimant’s benefits when it has been demonstrated that the claimant’s disability (loss or earnings power) has changed.   

In Lewis, the employer had unsuccessfully attempted to terminate the Claimant’s benefits on three prior occasions.  The employer subsequently filed another Termination Petition.  In support of its fourth Termination Petition, the employer presented expert testimony from a medical witness who acknowledged that Claimant was suffering from the same condition and the same disorders which had previously been diagnosed.  The employer’s medical expert merely attempted to recharacterize the cause of Claimant’s condition. 

Where there have been prior petitions to modify or terminate workers’ compensation benefits, the employer seeking modification or termination of benefits must demonstrate a change in physical condition since the last disability determination.  Because the employer did not produce evidence that Claimant’s medical condition had improved,the Lewis  Court held that the employer’s Termination Petition was barred by issue preclusion. 

The Lewis decision precludes an employer from re-litigating the cause of a claimant’s condition or symptoms.  Once it has been determined that a claimant is disabled due to a particular condition or symptoms, the only way an employer can subsequently terminate or modify the claimant’s benefits is to produce expert medical testimony establishing an improvement in claimant’s physical condition which results in an increase in Claimant’s earnings power.

John P. Finnerty, Esquire  

The Pennsylvania Supreme Court has ruled that an offer of a job to an injured worker who moved out of state for family reasons is insufficient grounds to suspend her workers’ compensation benefits. In Motor Coils Mfg. v. WCAB (Bish), (decided December 27,2006) the Court affirmed the prior decision of the Commonwealth Court denying an employer’s suspension petition for failure to accept a job offer at the employer’s Pennsylvania plant.
In Bish, the claimant suffered a work injury in July of 1997. After surgery, she returned to work with her employer at a modified position in June of 1998. In the summer of 2000, the employer laid off 126 employees including the claimant and her husband. Claimant’s wage loss benefits were reinstated effective the date of the layoff.
In November of 2000, claimant’s husband accepted a job offer in Oklahoma. Claimant relocated to Oklahoma with her husband. She sought employment but was unable to locate any jobs within her capabilities. In March of 2001, the employer offered claimant the modified job she was performing when she was laid of. The position was at the Pennsylvania plant where the claimant had worked. Claimant refused the job offer as she was living in Oklahoma. The employer filed a petition to suspend wage loss benefits alleging the claimant, Mrs. Bish, did not act in good faith when she refused the job offer.
The Commonwelth Court and the Pa. Supreme Court disagreed noting that the claimant’s actions in relocating to Oklahoma were in good faith. The Court specifically stated that the job in Pennsylvania was not actually available to the claimant as it was not within reach of her current residence.

Thomas P. Cummings, Esq.