TTH eNotes: Workers’ Compensation – May 2018
May 01, 2018
Legislative Update
Drug formulary bill passed in Senate: vetoed by Governor Wolf.
S.B. 936 would have required the Pennsylvania Department of Labor and Industry to adopt a nationally recognized, evidence-based prescription drug formulary for the Pennsylvania Workers’ Compensation Program, appropriate for resolving issues related to drugs prescribed for or related to the treatment of work-related injuries, including, but not limited to, the type, dosage, and duration of prescriptions.
S.B. 936 passed in the Senate (IO1-92) on April 17, 2018, and was presented to the governor the following day. On April 27, 2018, Governor Wolf vetoed the bill.
Governor Wolf noted that he is taking executive action to curb overprescribing of opioids in workers’ compensation by: creating a Task Force among the departments of Health, Drug & Alcohol Programs and Labor & Industry to create prescribing guidelines for workers’ compensation, providing additional awareness training to workers’ compensation judges and providers regarding opioids and including information on the recognition and dangers of overprescribing opioids, supporting legislative action on Senate Bill 655 (calling for regulatory action for statewide prescribing guidelines) and Senate Bill 472 (which would limit opioid prescriptions to no more than 7 days except for patients with chronic or unique pain scenarios), and calling for a review on all opioid prescriptions within the State Workers’ Insurance Fund.
Governor Wolf noted that he is taking executive action to curb costly topical opioid compound prescriptions by ordering the Department of Labor & Industry to propose regulations for opioid compound prescriptions by requiring them to be billed at the ingredient level.
Governor Wolf vowed to continue the existing interventions of monitoring opioid prescriptions with departmental review of the Pennsylvania Department of Health Prescription Drug Monitoring Program database, pursuing efforts to identify medical fee review applications that may indicate overprescribing of opioids, and providing a 5% premium discount for employers that participate in the PA Certified Workplace Safety Committee Program.
Any questions regarding this legislation can be directed to Deborah B. Richman at 215-564- 2928 or at drichman@tthlaw.com.
Frankiewicz v. WCAB (Kinder Morgan, Inc.), No. 20 C.D. 2017 (Pa. Cmwlth. Nov. 14, 2017)
By: Justin D. Beck
- Physical-mental injuries
- Mental-mental injuries
- Burden of Proof
Background: Claimant filed a Claim Petition, alleging injuries in the nature of dizziness, headaches, shortness of breath, and a sinus infection as a result of exposure to a diesel leak while in the course of employment as a chemical operator. Claimant also alleged experiencing panic attacks, anxiety, and depression, all attributable to the work injury.
Claimant’s medical expert opined that all of Claimant’s maladies were related to exposure of fuel vapors over a 15-year career with Employer; he diagnosed Claimant with PTSD, pulmonary problems, and sleep issues as a result of the work injury. Conversely, Employer’s medical expert opined that no work-related condition could be identified, indicating that no specific medical treatment was even required as a result of Claimant’s exposure; he noted that Claimant seemed to have complaints in excess of what could be objectively demonstrated. Finally, the WCJ appointed an independent medical examiner to issue an impartial report. That report found that Claimant’s complaints were consistent with anxiety and depression in the context of symptom magnification, as well as insomnia and somatic complaints.
The WCJ determined that Claimant’s alleged injury was non-obvious and thus required proof of causation by expert medical evidence. The WCJ found that Claimant had not meet this burden, and concluded that Claimant did not suffer a physical work injury as a result of his exposure to diesel fumes. Significantly, however, the WCJ found that claimant appeared to have suffered a psychological injury as a result of the incident. However, because Claimant had not proven any physical injury, the WCJ applied the mental-mental injury standard, which required Claimant to prove the existence of abnormal working conditions in order to establish compensability. The WCJ found that Claimant had proven this element, and, accordingly, concluded that Claimant did not sustain a work-related mental injury. Claimant appealed, arguing that the WCJ improperly applied the mental-mental burden, whereas the injury should have been characterized as physical-mental. The WCAB affirmed and Claimant appealed to Commonwealth Court.
Legal Analysis: Reviewing the various types of mental injuries compensable under the Pennsylvania Workers’ Compensation Act, Commonwealth Court differentiated between (1) mental-mental; (2) mental-physical; and (3) physical-mental. To prevail under the mental-mental standard, a claimant must prove the added element of abnormal working conditions. Where, as here, a claimant asserts a claim under the physical-mental standard, the claimant must instead establish that the mental injury resulted from “a triggering physical stimulus,” defined as “a physical injury that requires medical treatment, even if that physical injury is not disabling under the Act.” In other words, a claimant must prove that a physical work injury, requiring medical treatment, caused a psychological injury. Although that physical injury, itself, is not required to be disabling under the Act, its presence – or lack thereof- and relationship to the mental injury, is determinative to whether the physical-mental burden is met.
Applying the foregoing analysis, the Court held that Claimant did not establish that his mental injury resulted from a work-related, triggering physical stimulus. The Court noted that, although Claimant experienced some symptoms immediately following his exposure, these symptoms were insufficient to support an application of the physical-mental standard. Instead, the symptoms experienced were characterized as “transient,” and quickly resolved even before leaving the emergency room. Further, although Claimant reported a host of other, more persistent, ailments following the incident, Claimant failed to prove that the same were work-related. Indeed, the WCJ had rejected Claimant’s medical evidence attributing his numerous physical symptoms and conditions to the work-related exposure.
Notably, the Court stated that, even assuming Claimant met his burden of proving a work-related physical injury, he did not prove that his physical injury was the cause of his mental injury; instead, the Court characterized Claimant’s injury as appearing to be related to the actual experience of the perceived fuel exposure itself, rather than having any relation to the physical injury allegedly suffered because of that exposure. Accordingly, Commonwealth Court held that the WCJ did not err in concluding that the physical-mental standard did not apply.
Takeaway: In claims where a physical-mental injury is alleged, claimants bear the burden of first establishing the occurrence of a “triggering physical stimulus.” That physical stimulus must at least rise to the level of requiring medical treatment, even where no ensuing disability occurs. Absent such an event, no corresponding mental injury will be recognized. Moreover, the physical stimulus must be established as work-related by competent, and, ultimately, credited medical proofs. Finally, where a physical injury is indeed proven, the resulting mental injury must be causally related to the physical injury itself, rather than the work event (otherwise, the injury would be of the mental-mental variety).
Burch v. WCAB (Graham Packaging)
No. 575 C.D. 2016 (March 1, 2018)
By: Deborah B. Richman, Esquire
Although Claimant established that she incurred a work-related injury and ongoing disability, the Court affirmed the WCJ’s denial of benefits because Claimant did not give timely notice to Employer: within 120 days of the work injury.
Background: On June 3, 2013, Claimant, a quality assurance technician in Employer’s bottle manufacturing plant, filed a Claim Petition alleging that on January 28, 2013, she hit her head on a low hanging vent causing a neck injury and surgery. Employer denied liability, alleging that it was not notified that her neck injury was work-related until June 4, 2013, which was untimely. The day of the incident, she told three of her co-workers/friends about the work-related injury. She did not tell her supervisor because Employer had a large clock at the plant that kept a running tally of how long the plant had gone without an accident. A full accident-free year entitled each employee to $150.00. Claimant did not want to cause her co-workers to go without the bonus. Claimant told her supervisor, her family doctor and her orthopedic surgeon that she ran into a tree branch while chasing her dog in her yard at home. When the plant manager specifically asked if she had hurt herself at work in February, 2013, she specifically denied it. In March, 2013, one of her co-workers/friends (Knaub) texted her and said he had a feeling that the plant manager “knows the truth” and “has a feeling” about the incident. Knaub testified that he was not a supervisor, that the statement that the plant manager “knows the truth” was not about the incident but about Claimant’s need to be more careful, and that the text that the plant manager “has a feeling” about the incident stemmed from the plant manager asking Knaub and others if they knew anything about what happened to Claimant. On March 21, 2013, Claimant underwent a cervical discectomy fusion at C5-6 and C6-7. On June 3, 2013, she told her surgeon that she actually hit her head at work. The surgeon testified that regardless of where she hit her head she continued need treatment and he did not release her to return to work. Employer’s medical expert testified that Claimant continued to have left-sided neck, shoulder and arm pain and numbness in her fingers. He questioned whether the injury was work-related as the medical records stated that the incident happened in her backyard.
The WCJ accepted Claimant’s testimony that she fabricated a story about the injury occurring at home when it actually happened in the course and scope of employment. He found that Claimant established a loss of earnings as of March 21, 2013, (the date of her surgery) and remains unable to work as a result of the work injury. Nonetheless, the WCJ denied her claim for benefits because she did not give Employer timely notice (within 120 days from the date of injury, or from the date that the employee knows the incident is work-related) of her work-related injury under Section 311;77 P.S. §63I. Claimant appealed on the sole issue of whether the WCJ erred in disregarding Claimant’s evidence that she gave timely notice to Employer based upon the text of her co-worker/friend (Knaub) stating that the plant manager “knows the truth” and “has a feeling” about the incident. The Board affirmed, as did the Commonwealth Court.
Legal Analysis: Whether a claimant has given proper notice to his/her employer is a mixed question of law and fact. The WCJ found, as fact, that Claimant’s supervisor and plant manager did not know or receive a report that Claimant’s injury was work-related prior to June 4, 2013. The WCJ’s finding was
based upon credibility determinations that are beyond the Court’s ability to set aside as questions of credibility and evidentiary weight belong to the factfinder.
Take Away: Claimant acted against her own self-interest and in favor of what she thought to be the best interest of her co-workers in not reporting her claim properly. While Employer may have influenced her decision with its bonus clock, there is no escaping the plain language of the Act.
Any questions regarding this case can be directed to Deborah B. Richman at 215-564-2928 or at drichman@tthlaw.com.
Coley v. WCAB {lllusionz of Greenville, LLC and UEGF)
Employer’s Burden for Intoxication Defense
Background
Claimant filed a Claim Petition alleging that on March 16, 2013, he sustained work-related injuries ofa broken right ankle and leg. as the result of a slip and fall at work, following a disagreement with a fellow employee. Claimant worked as a DJ at a bar/nightclub, and was served multiple alcoholic drinks during his shift. The Employer did not have workers’ compensation insurance in effect as of the date of injury, the Uninsured Employer’s Guaranty Fund filed an Answer, denying all material averments, and raising as a defense that the injuries were incurred as a result of intoxication.
Judge Benedict granted the Claim Petition, finding that although there was credible testimony that Claimant was significantly intoxicated at the time of his injury, the proximate cause of the injury was of the Employer providing multiple intoxicating beverages to the Claimant throughout the course of the evening.
The matter went up on appeal to the Workers’ Compensation Appeal Board, which reversed the Judge. The Board found that there was no exception to Section 30 I of the WC Act, which states that no compensation shall be paid if the injwy would not have occurred but for the employee’s intoxication. Claimant appealed to the Commonwealth Court.
The Commonwealth Court placed the burden on the Employer who raised an intoxication defense. The Commonwealth Court characterizes the intoxication defense as an affirmative defense, meaning that the Employer must prove “(a) that the employee was intoxicated, and (b) that the intoxication was the cause and fact of the injury”. Citing Lindstrom Co. v. WCAB (Braun). 992 A.2d 961 (Pa. Cmwlth. 2010). With regard to the first point, whether or not the Claimant was intoxicated, the Commonwealth Court holds that the Employer must provide evidence demonstrating that the Claimant was overwhelmed or overpowered by alcoholic liquor lo the point of losing his or her faculties or sensibilities. Without a blood or breathalyzer test, Employer can establish intoxication only by offering lay testimony as to the Claimant’s actions and behavior. The weight of this testimony presents a question for the fact-finder who can rely on his experience or common sense. The case was remanded by Commonwealth Court, since the Judge made no findings on how he arrived at his determination that the Claimant was intoxicated other than the fact that he was drinking and got into a fight. Commonwealth Court remanded the matter for a new decision to determine intoxication.
The Commonwealth Court provided direction to the Judge that more specific findings of fact needed to be made as to (a) whether or not the Claimant was, in fact, intoxicated in the absence of breathalyzer or blood testing, and then (b) the Judge would then have to make a determination as to whether the intoxication was the but for cause of the injuries. The Commonwealth Court therefore vacates the Board’s Order denying benefits, and remanded the matter to the Judge for a new Decision.