Posts Tagged ‘Workers’ Compensation Judge’

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 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 Knechtel v. W.C.A.B. (Marriott Corporation), 934 A.2d 697 (Pa. 2007) the Pennsylvania Supreme Court affirmed an earlier order issued by the Commonwealth Court regarding the issue of whether an injured worker’s health care provider may attend and observe a medical examination scheduled by the defendant employer. Jusice Baer, in his concurring opinion, noted that the Pa. state legislature intended to allow the claimant’s health care provider “a first-hand view of the examination process, through attendance and observation”, but also noted that the legislature did not intend to permit the treating health care provider to engage in any active conduct which might disturb the examining physician and the examination process. Justice Baer went on to state that nothing in the Court’s affirmance of the Commonwealth Court’s opinion, “limiting a healthcare provider to attending and observing an employer’s physician’s examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam”. Justice Baer also indicated that a workers’ compensation judge “retains the discretion to grant a claimant’s reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer’s physician’s ability to conduct an examination”.

The Pennsylvania Commonwealth Court has ruled that an employer is not entitled to recoupment of an overpayment of workers’ compensation benefits under Section 413(a) of the Workers’ Compensation Act absent the existence of an incorrect “agreement” to modify.

The decision in Dollar Tree Stores, Inc. v. WCAB affirms the ruling of the Workers’ Compensation Appeal Board that had reversed a Workers’ Compensation Judge’s decision that allowed the defendant to recoup $112 per week from the plaintiff. The facts of the case indicate that the excess payments were a result of the employer’s miscalculation of plaintiff’s weekly compensation rate. The Court noted that a stipulation of facts signed by the parties did not meet the definition of aan “agreement” under the provisions of the Act.

Thomas P. Cummings, Esq.
[email protected]
570-347-1011