eNotes: Workers’ Compensation – May 2019

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

Crozer Chester Medical Center v. Bureau of Workers’ Compensation Fee Review Hearing Office (Laundry Owners Mut. Liability Ins.), No. 648 C.D. 2018 (April 3, 2019)

Pennsylvania Commonwealth Court, Unpublished

By: Ryan C. Blazure, Esquire

The Commonwealth Court of Pennsylvania examines the trauma center exception to medical fee caps under the cost containment provisions of the Workers’ Compensation Act, finding that to fall under this exception, treatment must be rendered for immediately life-threatening or urgent injuries.

Background:

In January 2016, the Claimant, Mr. Parker, suffered a work-related injury when he started a farm tractor which was in gear. The tractor lurched forward, pushing him to the ground and running over his right foot. The chief complaint was a right foot fracture which wasnoted to have a good pulse and motor sensation. Right arm pain was also complained of; yet, at the same time, Claimant denied head, neck or back pain. He remained alert and did not lose consciousness and also gave verbal consent for transport. His cardiovascular, neurological and mental status assessments were all normal and, further, Claimant’s pelvis was stable to flexion/compression and his head, neck and chest were unremarkable. He was transported without lights or sirens from the accident scene to the provider here, Crozer Chester Medical Center, where emergency surgery was performed in the nature of an open reduction/internal fixation of a Lisfranc fracture/dislocation and second metatarsal fracture. While there was also a pubic ramus fracture, this did not require surgical intervention.

The provider charged $84,659.54, yet the carrier reimbursed at the rate of $12,402.46 stating that the trauma center exception to medical fee caps did not apply. The provider filed an Application for Fee Review, which was granted, with the Bureau determining that the insurer owed provider the full amount of the bill, as provider was entitled to be reimbursed at 100% of its usual and customary charges/rates in that the trauma center exception had been met.

The insurer filed an Appeal in the form of a Request for Hearing to Contest Fee Review Determination. In support of this, numerous records were submitted, as were physician reports and an independent medical examination. Testimony was taken from each physician. In ultimately holding that the exception was not met, the hearing officer relied upon the insurer’s evidence, including EMS records, which concluded that the Claimant did not need to be taken to a trauma facility, he did not meet the triage guidelines for a trauma center referral from the field and there was no indication that he needed to be taken to a trauma facility. There was nothing within the ER intake records indicating Claimant faced an immediately life-threatening or urgent injury based upon the triage guidelines. While, certainly, there were concerns about more grave injuries, including neurovascular skin compromise, none of this came to fruition. The matter was appealed to the Commonwealth Court by the provider.

Legal Analysis:

The Commonwealth Court upheld the decision of the hearing officer. In support of its holding, the court appeared to make strong comment about some of the divergence of views before it. While, certainly, the Court held that it was irrelevant whether the record contained evidence to support findings other than those made by the hearing officer, the critical inquiry was whether there was evidence to support the findings actually made. Further, the court noted that a decision by EMS personnel that an injury is immediately life-threatening or urgent shall be presumptive of the reasonableness and necessity of the transport to a trauma center. However, this information is to be based upon the information available at the time of the initial assessment of the patient.

In examining the evidence before it, the Court noted that the provider seemed to be indicating that the entire right side of Claimant’s body had been injured in the incident wherein no records truly supported this assertion. Rather, the injury was largely in the form of a right foot fracture. Further, the hearing officer, as found by the Court, correctly noted that the evidence did not support a conclusion that EMS personnel transported Claimant to the provider, which happened to be a trauma center, because they deemed his injuries to be urgent or life-threatening. Rather, the EMS records indicated transport was accomplished with no lights or sirens, and that EMS had diagnosed Claimant’s initial patient acuity on the lower end of that scale. Accordingly, the decision of the hearing officer was affirmed.

Takeaway:

When considering a medical provider’s request for 100% reimbursement under the trauma center exception to medical fee caps, be sure to examine closely the records surrounding the event itself, the Claimant’s transport to the provider and, of course, the treatment rendered by the provider. Just because the provider may be a “trauma center,” does not automatically trigger the exception!

Any questions concerning this case can be directed to Ryan C. Blazure, Esquire, at 570.820.0240 or rblazure@tthlaw.com

SIGNIFICANT NEW JERSEY CASE SUMMARIES

Liberty Mutual Insurance o/b/o Sabert Corp. v. Jose R. Rodriguez, A-0112-17T4 (App. Div. April 2, 2019)

By: Deborah B. Richman, Esquire

The Superior Court clarified the controlling case law involving reimbursement of workers’ compensation carriers’ subrogation liens in favor of the carriers when there is a high third party settlement.

Background:

Petitioner incurred a work-related injury in 2012. The workers’ compensation carrier paid $148,590.40 in medical and temporary disability benefits. Petitioner brought a third party case against the tortfeasor and settled the suit for $1,200,000.00. Petitioner’s counsel sent the workers’ compensation carrier a check for two thirds of what it spent minus $750.00 for costs. Liberty Mutual rejected the offer, filing an order to show cause and verified complaint, claiming that its lien should be calculated based upon the actual fee paid by Petitioner to his third party attorney (30.56% of the third party settlement); therefore, its lien should be 69.44% rather than the generic 66.67%. The trial court agreed and the Appellate Division affirmed.

Legal Analysis:

Caputo v. Best Foods, Inc., 17 N.J. 259 (1955), favored the carrier’s position of the higher lien while a more recent case, McMullen v. Maryland Casualty Company, 127 N.J. Super. 231 (App. Div. 1974), favored Petitioner’s position of the two-thirds lien. Both cases involved the Court’s interpretation of N.J.S.A. 34:15-40(b) (Section 40), which states that when the third party recovery is higher than the workers’ compensation carrier’s lien, the reimbursement shall be the lien less expenses and attorney’s fees for the third party case. Caputo was a Supreme Court decision while McMullen was a Superior Court decision. The Court in this matter was not bound by its earlier decision in McMullen because it was not sitting en banc. Because the Superior Court is an intermediate court, it is bound by Supreme Court decisions and therefore the Court determined that it was bound by Caputo, despite its later decision in McMullen.

Take Away:

When there is a high third party settlement the workers’ compensation carrier’s lien is either two-thirds or the amount spent by the carrier minus the actual percentage of attorney’s fees in the third party case, whichever provides the greater reimbursement.

Questions regarding this case can be directed to Deborah B. Richman at 215.564.2928 x8502 or at drichman@tthlaw.com

SIGNIFICANT WEST VIRGINIA CASE SUMMARIES

Throughout 2018 and 2019, to date, the Supreme Court of Appeals of West Virginia has released a significant number of workers’ compensation-related opinions. Herein, a handful of these cases, which address common and critical issues often faced by interested stakeholders, have been selected and summarized for their informative value.

By: Evan J. Jenkins, Esquire and Justin D. Beck, Esquire

Reed v. Exel Logistics, Inc., No. 17-0864 (W.Va. June 6, 2018)

In Reed, the employer paid temporary total disability (TTD) benefits to the claimant for almost two-and-a-half years while the claimant was undergoing medical and physical rehabilitation. Months later, the employer discovered it had paid the claimant benefits for an extra 156 days beyond the date statutorily required. The employer then declared those 156 days an “overpayment” and sought to recover the benefits from the claimant.

The Board of Review held that the employer could reclaim the benefits. However, the Supreme Court of Appeals reversed, holding that, pursuant to W. Va. Code § 23-4-1c(h), in order to recover an overpayment, an employer is required to (1) give the claimant notice and clearly move to modify or terminate TTD benefits on a specific date; (2) be initially unsuccessful in the modification or termination; and then (3) receive a successful ruling on the modification or termination in an adversarial proceeding. Only then may an employer recover the benefits overpaid between the date of the motion and the date of the successful ruling.

Murray American Energy, Inc. v. Vinesky, No. 18-0056 (W.Va. May 21, 2018)(memorandum decision)

In Vinesky, the claimant sustained an injury to the left knee in April 2015 after stepping on a rock in a mine. The claims administrator held the claim compensable for a sprain of an unspecified site of the knee and leg. The claimant subsequently underwent a left knee arthroscopic partial medial meniscectomy and was released to return to work at full duty.

The Claimant worked for only one day before seeking additional treatment for the left knee due to stepping on a pile of loose coal. Additional surgery was thereafter performed in December 2015. A Functional Capacity Evaluation was performed in April 2016, which showed that the claimant was capable of performing light physical demand level jobs. A vocational evaluation was performed in July 2016, which concluded that the claimant needed to explore his ability to return to sedentary work. A period of concurrent job retention and vocational exploration was recommended during which the claimant could find jobs in the local labor market. The vocational expert advised the claimant that he would be required to participate eight hours per day in vocational rehabilitation activities, as he had been released to return to work for eight hours per day.

The rehabilitation plan which was developed included thirty days of vocational exploration, job retention, and rehabilitation temporary total disability. At the end of the thirty-day plan, the vocational expert reported that the claimant had applied for positions which he was qualified for or were not within his restrictions. The expert recommended no further services. In February 2017, the claims administrator closed the claim for vocational rehabilitation benefits.

The Office of Judges found the closure of the claim was not appropriate, as no evidence had been submitted to indicate that the claimant was not cooperating, participating, or failing to make satisfactory progress toward the completion of his plan. The closure was said to penalize a “cooperating and compliant” claimant who was seeking employment and had failed to find the same. The Board of Review affirmed.

The Supreme Court of Appeals reversed, holding that the Office of Judges’ reasoning that rehabilitation services should be continued was made without any finding of fact in relation to the claimant’s placement on the hierarchy provided for by West Virginia Code of State Rules § 85-15-4. Notably, the Court seemingly sanctioned the employer’s premise for closing the claim, to wit, that no evidence had been received to substantiate the continuation of benefits and no further vocational rehabilitation had been recommended. Nevertheless, the evidence of record lacked any indication as to the claimant’s placement on the aforementioned hierarchy, and thus, the matter was remanded with instructions that the Office of Judges determine whether the claimant was entitled to additional vocational rehabilitation using the seven-step hierarchy.

Silveti v. Ohio Valley Nursing Home, Inc., No. 17-0746 (W.Va. April 11, 2018)

In Silveti, the claimant was ordered by his claims administrator to attend a medical examination that was one-hundred miles away from his home. The claimant spent six hours traveling to, attending, and returning from the medical examination, during which time he ate one meal. He sought reimbursement from the claims administrator for the meal expense he incurred while attending his medical examination.

The claims administrator denied the request for reimbursement on the ground that his travel did not require overnight lodging.

West Virginia Code § 23-4-8(c) – (e) provides that a party who orders a workers’ compensation claimant to attend a medical examination “shall reimburse the claimant for … reasonable traveling expenses[,]” which includes, “at a minimum, reimbursement for meals[.]”

Relying upon this statutory language, the Supreme Court of Appeals held that the claims administrator had no discretion to deny the claimant’s reimbursement for his meal expense on the ground that his travel did not include overnight lodging. The Court stated, “we hold that … a workers’ compensation claimant who is ordered by the Insurance Commissioner, private carrier, or self-insured employer to attend a medical examination shall be reimbursed for his or her reasonable travel expenses incurred in connection with attending the ordered medical examination. These travel expenses include, at a minimum, reasonable expenses for meals, lodging, and mileage.”

Notably, in a footnote, the Court cautioned, “[t]his case should not be read to require a party who orders a medical examination of a workers’ compensation claimant to reimburse the claimant for ‘traveling’ expenses when the claimant did not travel outside the area in which he or she resides to attend the medical examination.” The Court suggested that the Insurance Commissioner could curtail a claimant’s reasonable (i.e., reimbursable) travel expenses by requiring claims administrators to comply with W.Va. Code St. R. § 85-1-15.6, which provides: “The responsible party shall arrange for examination as near as practicable to the claimant’s residence.”

Glover v. Raleigh County Board of Education, No. 17-0861 (W.Va. Feb. 23, 2018)(memorandum decision)

In Glover, the claimant worked as a cook for Raleigh County Board of Education. In December 2015, while walking through the cafeteria, she suffered an asthma attack. She attributed this attack to fumes and dust from vinyl tile that was being removed at the time. While her inhaler helped, the claimant sought treatment in the emergency room of Raleigh General Hospital. There, she was diagnosed with bronchitis.

In January 2016, the claimant suffered a second asthma attack while putting food in the kitchen. She again attributed this attack to fumes caused by the removal of the vinyl tile. She was once again treated at the emergency room and diagnosed with an acute exacerbation of asthma. She was prescribed Albuterol and Prednisone.

That same month, an Indoor Environmental Assessment report was completed based on samples collected in December 2015. The testing detected three refrigerants, all of which were well below the OSHA Permissible Exposure Limits. The claims administrator rejected the claim, based upon the premise that the claimant’s asthma was preexisting.

The Office of Judges affirmed the claims administrator’s denial, noting the claimant’s preexisting diagnosis of asthma. Further, the claimant was said to have submitted “ambiguous evidence” regarding causation.

The Board of Review adopted the findings of fact and conclusion of law of the Office of Judges, relying on Newsome v. H. William Mattingly Corp., No. 13-0723 (W.Va. Oct. 7, 2014)(memorandum decision) and Bannister v. State Workmen’s Compensation Commissioner, 154 W.Va. 172, 174 S.E.2d 605 (1970), in finding that an aggravation of preexisting asthma is not sufficient to constitute an occupational disease. In keeping with Newsome, it determined that, while the claimant’s asthma may have been aggravated by the construction in her workplace, it was not caused by her work as required by West Virginia Code § 23-4-1(f).

The Supreme Court of Appeals affirmed, holding that the claimant experienced exacerbations of her preexisting asthma in December 2015 and January 2016, from which she had fully recovered. According to her own testimony, she no longer utilized medications attributable to the exacerbations, and she was able to fully perform her work duties. Thus, the claimant had failed to prove that either or both exacerbations constituted an occupational injury or occupational disease.

Rotenberry v. Welch Emergency Hospital, No. 17-0673 (W.Va. Jan 25, 2018) (memorandum decision)

In Rotenberry, the claimant sustained alleged occupational injuries to his wrists, fingers, hands, and arms due to installing commercial water heaters and plumbing copper pipe and valve frames. The claim was held compensable for bilateral carpal tunnel syndrome in November 2013. The claimant underwent bilateral carpal tunnel releases in the summer of 2014 and successfully returned to work by September 2014.

The claimant subsequently underwent an Independent Medical Evaluation by Dr. Prasadarao Mukkamala in August 2015. The doctor assessed a 3.5% whole person impairment for each hand for a total of 7% whole person impairment. The claims administrator thus granted the claimant an award of 7% permanent partial disability (PPD).

Thereafter, the claimant underwent a second Independent Medical Evaluation by Dr. Bruce Guberman in March 2016. Dr. Guberman diagnosed bilateral carpal tunnel syndrome, status post carpal tunnel release, and assessed 9% whole person impairment for the left wrist and 6% whole person impairment for the right wrist for a total of 14% whole person impairment.

Dr. Mukkamala prepared a supplemental report in September 2016, which suggested that Dr. Guberman erred when he attributed the symptoms described by the claimant to the bilateral carpal tunnel syndrome, in consideration of his diabetes and obesity. The 14% impairment rating assessed by Dr. Guberman was said to be based on exaggerated symptoms.

In October 2016, the claimant underwent a third Independent Medical Evaluation by Dr. Marsha Bailey, who assessed 7% impairment for bilateral carpal tunnel syndrome and apportioned 6% to the claimant’s uncontrolled diabetes and morbid obesity. She also opined that Dr. Guberman’s failure to apply West Virginia Code of State Rules § 85-20 rendered his report invalid.

The Office of Judges reversed the claims administrator’s award of 7% PPD and granted a 12% PPD award. It determined that the evidence showed that no apportionment between occupational and non-occupational impairment should be made based upon the claimant’s 31-year employment and his job duties. Moreover, the claim had been held compensable for carpal tunnel syndrome. The Office of Judges then found the impairment assessed by Dr. Guberman to be the most persuasive. It reduced the 9% impairment for the left wrist to 6% based on West Virginia Code of State Rules § 85-20. The Office of Judges then determined that the claimant was entitled to 12% whole person impairment for the bilateral carpal tunnel syndrome.

The Board of Review reversed and vacated the Office of Judges’ Order and reinstated the 7% permanent partial disability award. It found that the Office of Judges’ award of 12% permanent partial disability was not recommended by any of the physicians of record. It also determined “the Commissioner is to make permanent partial disability awards solely on the basis of the doctor’s impairment evaluation.” Repass v. Workers’ Comp. Div., 212 W. Va. 86, 569 S.E.2d 162 (2002).

The Supreme Court of Appeals affirmed the Board of Review, holding that West Virginia Code of State Rules § 85-20-64.5 provides that “an injured worker who can otherwise show entitlement to a permanent partial disability award for carpal tunnel syndrome shall be eligible to receive a permanent partial disability award of 0%-6% in each affected hand.” The Court noted that Dr. Guberman assessed 9% impairment for the right hand. However, he failed to reduce the impairment to comply with the West Virginia Code of State Rules.

The Court indicated that Dr. Guberman’s failure to reduce the impairment he assessed to comply with the West Virginia Code of State Rules could not be remedied by the Office of Judges. Because Dr. Guberman’s assessment of impairment did not comply with West Virginia Code of State Rules § 85-20, it was not reliable. Therefore, the Office of Judges erred where it relied on Dr. Guberman’s opinion to award permanent partial disability benefits.

Lacy v. Lightning Contract Services, Inc., No. 18-0472 (W.Va. Nov. 2, 2018)(memorandum decision)

In Lacy, the claimant submitted an Employee and Physician’s Report of Occupational Hearing Loss in April 2017. At the time of the application, the Claimant was working as a truck driver for All American Fabrication. He had previously labored as a truck driver for four prior employers dating back to 2006, in addition to positions as a coal miner. Specifically, he had worked as a truck driver for Beckley Garbage from August 1, 2016 through November 24, 2016; West Virginia Parkways Authority from March 28, 2016 through July 28, 2016; Lightning Contract Services, Inc. from December 15, 2014 through February 14, 2016; and Pocahontas Coal Company from November 26, 2006 through March 12, 2014. The claimant was a garbage truck driver for Beckley Garbage, a tandem truck driver for the West Virginia Parkways Authority, a coal miner for Lightning Contract Services, Inc., and a coal miner for Pocahontas Coal Company.

Attached to the claimant’s application for benefits was a report by Dr. Paine. According to Dr. Paine, the claimant had a history of noise exposure to noise greater on the left due to operating heavy equipment in a coal mine. The claimant first noticed hearing loss a few years earlier. Dr. Paine noted that the claimant also complained of intermittent dizziness and imbalance. Dr. Paine concluded that the claimant presented with bilateral sensorineural hearing loss directly attributable or perceptibly aggravated by industrial noise exposure with a recommended percentage impairment of 13.016%.

The claims administrator denied the claim, noting that liability falls with the employer of last exposure; since the claimant’s application, he had worked for three additional employers.

The Office of Judges affirmed the claims administrator’s order rejecting the claim. The Office of Judges determined that a preponderance of the evidence indicated that the claimant was exposed to occupational noise while working in the coal industry. However, because liability for workers’ compensation hearing loss claims is no longer allocated among employers, his last subsequent employment with Beckley Garbage was his last employment where he was exposed to occupational noise. The Office of Judges concluded that Beckley Garbage was liable for the entirety of the claimant’s hearing loss claim. The Board of Review affirmed.

The Supreme Court of Appeals also affirmed, holding that it was not an arbitrary conclusion by the Office of Judges to determine that the claimant had enough noise exposure to charge a subsequent employer. The claimant worked for Beckley Garbage and was exposed to occupational noise after his employment with Lightning Contract Services, Inc. Because liability for workers’ compensation hearing loss claims is no longer allocated among employers, the Court held that the last employment where the claimant was exposed to noise was liable for the entirety of the claimant’s hearing loss.

Ryan v. West Virginia Office of Insurance Commissioner and Centre Foundry & Machine, No. 18-0376 (W.Va. Nov. 2, 2018)(memorandum decision)

In Ryan, the claimant developed occupational pneumoconiosis in the course of his employment. The claims administrator granted a 20% PPD award, but it deducted the entirety of the award due to an overpayment in a prior claim arising from a separate compensable injury.

The Office of Judges affirmed the decision granting the 20% PPD award and crediting the entire amount toward the overpayment. It noted that West Virginia Code §23-4-1c(h) provides that, where a claimant has been found to not be entitled to previously-paid temporary total disability benefits or expenses, a credit shall be granted to the employer’s account with the amount of overpayment. The employer may then recover the amount of overpaid benefits or expenses by withholding future disability benefit payments to the individual in the same or other claims until the overpayment is repaid in full.

The Office of Judges determined that it was too late for the claimant to argue that he was not overpaid in his prior claim. A preponderance of the evidence showed that he was awarded $42,861.17 in overpayments. Though the overpayment Order was not appealable, a May 9, 2002 Board of Review decision that it was based upon was. Therefore, if the claimant wished to challenge the decision, he was required to have filed an appeal to the Board of Review decision.

The Supreme Court of Appeals affirmed, holding that the claimant had an outstanding overpayment, and that West Virginia Code §23-4-1-c(h) provides that future disability payments may be withheld until the overpayment is repaid in full. It was therefore proper that his 20% PPD award be credited toward the overpayment.

Questions related to the above may be directed to Evan J. Jenkins, Esq. at 412.926. 1419 or EJenkins@tthlaw.com or Justin D. Beck, Esq. at 412.926.1441 or JBeck@tthlaw.com.