eNotes Workers’ Compensation: February 2021

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE LAW UPDATE

Daisy A. Rodriguez, M.D. v. W.C.A.B. (Adecco Group of North America)
2021 Pa. Commw. Unpub. LEXIS 5; 2021 WL 49966
Pennsylvania Commonwealth Court, January 6, 2021

In  An Accepted Claim, the Employer May Legitimately Deny Medical Bills if the Treatment Reflected by Those Bills Concerns Body Parts/Medical Conditions Which Have Not Been Part of the Acceptance. The Court Also Holds That Fee Review is the Proper Procedure for a Medical Provider’s Addressing of Issues with Medical Bill Payment.

Background:

The original Claimant, Mr. Irons, was a warehouse worker who, on January 6, 2015, was injured in the course and scope of his employment after a slip and fall involving snow on the employer’s premises. The claim was accepted by virtue of an NTCP and was ultimately resolved with a medical only NCP issued thereafter. By virtue of this NCP, the employer only accepted liability for medical bills concerning a sprain/strain of the low back and left knee but, of course, not wage loss benefits. Subsequently, the employer filed a termination petition which was granted effective April 8, 2015. Thereafter, a medical provider, Daisy A. Rodriguez, M.D., filed a penalty petition alleging that the employer failed to pay medical bills for treatment identified within the NCP. The employer responded to this petition denying that it violated the Act and further responding that Dr. Rodriguez was seeking payments for treatment not causally related to the work injury. The reviewing Workers’ Compensation Judge ultimately decided to not assess a penalty, but did order a payment of just over $39,000 in medical expenses as well as the reimbursement of Dr. Rodriguez’ litigation costs. The Workers’ Compensation Appeal Board reversed, noting that an employer would only be responsible for medical expenses which are causally related to the recognized work injury and, further, that a medical provider’s sole recourse to dispute the amount and timing of such payments shall be in the form of an application for a fee review. Dr. Rodriguez appealed to the Commonwealth Court.

Holding:

In an unpublished opinion, the Commonwealth Court held that the Bureau and its hearing examiners have jurisdiction over fee disputes, not workers’ compensation judges. The Court further noted that if a provider, such as Dr. Rodriguez here, were able to settle a fee dispute through the use of a penalty petition, such procedure would render the fee review provisions of the Act meaningless. The Court noted its prior decision, Hough v. W.C.A.B. (AC&T Companies), 928 A.2d 1173 (Pa. Cmwlth. 2007), which stood for the proposition that a penalty petition may be filed upon a fee review proceeding. However, the Court distinguished Hough in that the Act does not require a provider to seek fee review before a Claimant can file a penalty petition for unpaid medical bills. Here, Dr. Rodriguez was the party filing the penalty petition and had failed to avail herself of the fee review process provided for in the Act. Therefore, the Court felt that the underlying workers’ compensation judge could not properly dispose of the fee dispute by virtue of the penalty petition filed and, therefore, that the WCAB Order would be affirmed.

Takeaway:

Fee Review procedures under the Workers’ Compensation Act are the sole province by which a medical provider may seek to address the amount or timeliness of medical bill payments. A penalty petition, while certainly novel, is not the correct vehicle for such a dispute. Further, this decision generally stands for the proposition that medical bills may simply be denied if treatment reflected by the bills concerns body parts and/or conditions which have not been accepted pursuant to the Act.

Any questions regarding this case can be addressed to Ryan C. Blazure, Esquire, at rblazure@tthlaw.com or (570) 825-3867.

Holy Redeemer Health Systems v. WCAB (Figueroa)
No. 372 C.D. 2020
December 31, 2020

Background:

Claimant worked as an ER nurse. While at work on July 25, 2015, she experienced pain in her leg and was unable to walk by the end of the shift. Claimant called off work the next day and saw her doctor the following day. Claimant’s doctor took her off work. On November 23, 2015, claimant notified the employer that she had sustained a work injury on July 25, 2015. The employer issued a Notice of Temporary Compensation Payable on December 7, 2015, but issued a Notice of Denial and Notice Stopping Temporary Compensation on January 5, 2016. Claimant filed a Claim Petition on August 11, 2016 alleging that she had suffered a work injury in the nature of an aggravation of degenerative disc disease of the lumbar spine.

The WCJ, crediting the testimony of the claimant and her medical expert, found that claimant had suffered a work injury. The Judge further found, however, that claimant’s notice to the employer on November 23, 2015 was one day late under Section 311 of the Act, which provides that no compensation shall be due unless notice is given within 120 days after the occurrence of the injury. The Judge denied claimant’s petition on the basis that notice was not given until 121 days after the occurrence of the injury.

Claimant filed an appeal and the Appeal Board reversed the Judge’s Decision. The Board reasoned that because the last day of the 120 day period of time established under Section 311 fell on a Sunday, claimant had been required to give notice of the work injury by Monday, November 23, 2015 and claimant had done so. The Board relied upon Section 1908 of the Statutory Construction Act of 1972 which provided that whenever “any period of time is referred to in any statute, ” with certain exceptions, and the last day of any such period falls on a Saturday or Sunday or any day made a legal holiday, that day shall be omitted from computation. The Board remanded the matter to the Judge for calculation of the amount of benefits to be awarded to the claimant.

On remand, the Judge determined that claimant’s disability began on November 23, 2015 and that the employer had established a reasonable basis for contest. The employer filed an appeal from the remand decision. On appeal, the Board rejected employer’s argument that it had improperly extended the statutory 120 period by one day. The Board relied on Section 1908 of the Statutory Construction Act of 1972, and found that this section applies to any period of time referred to in any statute, and this included the Workers’ Compensation Act. The employer filed an appeal to the Commonwealth Court, arguing that the Board erred in finding that the claimant had given timely notice of her work injury.

Legal Analysis:

On appeal to the Commonwealth Court, the employer argued that there was no impediment to the claimant providing notice of her work injury on a Sunday, as she worked in a hospital which is always open. The employer noted that claimant, as an ER nurse, worked on weekends and had, in fact, been injured on a Saturday and initially contacted the employer on a Sunday to call off work. The employer further noted that, while claimant initially contacted the employer on a Sunday to call off work, she did not notify the employer at that time that she had suffered a work related injury. The employer maintained that claimant could have reported her work injury on Sunday, November 22, 2015 (the 120th day after the reported work injury) and claimant offered no evidence to the contrary. Based on these points, the employer maintained that the Board had erred in applying Section 1908 of the Statutory Construction Act of 1972 to the notice section of the Act. Claimant maintained that the Board was correct, in that Section 1908 applied to all statues that included a period of time within their terms.

The Commonwealth Court reviewed both Section 311 of the Workers’ Compensation Act and Section 1908 of the Statutory Construction Act of 1972. With respect to the notice requirement of the Worker’s Compensation Act, the Court noted that the Act and Regulations were silent on how to calculate the 120 day time period in which the claimant must give notice. The Court could find no support for the employer’s argument that Section 1908 should not be applied to Section 311. The Court rejected all of the arguments raised by the employer regarding the circumstances of the claimant’s work as a nurse in an ER, finding the “lack of any language in Section 311 to support Employer’s position that the 120-day notice period is determined by the type of business in which the employer is engaged.” The Court ultimately held that Section 1908 of the Statutory Construction Act of 1972 required the omission of a Saturday or Sunday when calculating the 120 day notice period set forth in Section 311 of the Act.

Takeaway:

The Court’s holding comes as no surprise, in consideration that the 120th day fell on a Sunday. The Court does not go into any further detail as to why the claimant did not provide notice of her work injury when she called into work the very day after her work injury to call off work—or why she did not give notice of the July 25, 2015 work injury until November 2015. The Court’s decision focuses very much on the statutory language of both the notice provisions of the Workers’ Compensation Act and Section 1908 of the Statutory Construction Act of 1972. Moreover, some “sympathy factor” may have been at play, given that the claimant was a nurse, and had missed the statutory window by only one day.

Any questions regarding this case can be addressed to Lee Ann Rhodes, Esquire, at lrhodes@tthlaw.com.

NEW JERSEY CASE LAW UPDATE

Kim Goulding v. NJ Friendship House, Inc.
New Jersey Supreme Court
No. A-48-19, ___ N.J. ____
Decided: February 8, 2021

In this workers’ compensation case, the New Jersey Supreme Court ruled that a cook who volunteered to prepare meals at an off-hours party sponsored by her employer, and who suffered an injury at the event, does qualify for compensation benefits, despite that it was not a typical work event, but rather a social thank you/community interest type of event, at which the petitioner was not required to attend or work.

Background:

New Jersey’s highest Court overruled both the Workers’ Compensation Court judge’s and the Appellate Division panel’s holdings; and ruled that even where not compelled to attend and/or work at a social function, an employee injured while working at the function on a voluntary basis may still recover compensation benefits, under certain circumstances, such as those presented in this case.

Plaintiff Goulding alleged that, on a Saturday in 2017, Friendship House hosted its first ever “Family Fun Day,” which it planned to hold as an annual event moving forward. The event was designed to provide a safe and fun environment with recreational activities for the clients of Friendship House and their families. Friendship House employees were asked to volunteer to work the event, but there were no consequences for those who did not. Goulding volunteered to work the event as a cook, which was her normal job at Friendship House. While preparing for lunch, she stepped in a pothole and fell down, injuring her ankle. She continued to help prepare lunch, keeping her foot iced and elevated. She then left, and did not participate in any of the games or activities at the event. Goulding filed a workers’ compensation petition. At trial, and initially on appeal, Friendship House successfully argued that Goulding was not entitled to relief, because she was not working for Friendship House, when the injury occurred.

Holding:

The Supreme Court disagreed that Goulding’s voluntary services at Family Fun Day were social or recreational activities. The Court reasoned that if an employer-sponsored event is designed with the purpose of benefitting the employer’s clients, and an employee volunteers to help facilitate the event, the event cannot be deemed a social or recreational activity for that employee. N.J.S.A. 34:15-7 applies to “recreational or social activities” – not “recreational or social events.” The Supreme Court found that it was the nature of Goulding’s activities at the event that determine compensability, just as employee compulsion—not the character of the event—determined compensability in Lozano v. Frank DeLuca Constr. 178 N.J. 513 (2004).

The Court added that Goulding would be entitled to compensation under the N.J.S.A. 34:15- 7 two-prong test, “even if her volunteer work at Family Fun Day could be deemed a recreational or social activity[, because] her injury was sustained during an activity that (1) was a ‘regular incident of employment’ and (2) ‘produce[d] a benefit to the employer beyond improvement in employee health and morale.’”

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

VIRGINIA CASE LAW AND STATISTICAL UPDATE

Samuel Mendoza v. Michael C. Parker DBA Quality Grounds, LLC
VA00001243696, Virginia Workers’ Compensation Commission
Decided January 21, 2021.

In an opinion delivered by Commissioner Newman, the Commission affirmed that the development of diabetes was unrelated to the subject accident, but nevertheless found that the diabetes medication could be awarded as part of other compensable injuries.

Background:

Claimant sustained multiple injuries in a motor vehicle accident, most noteworthy of which was an amputation of the right leg above the knee. He was diagnosed with Type 2 diabetes roughly six months later. The carrier initially voluntarily paid for diabetes medication, and did so for approximately two years after the diagnosis. However, they ceased payment, and argued that the subject accident neither caused nor materially aggravated Claimant’s diabetes.

Claimant provided a statement from his treating physician, Dr. McGowan. Although Dr. McGowan was unable to determine if Claimant’s accident caused him to develop diabetes, he agreed that Claimant needed to continue taking diabetes medication to recover from his compensable injuries. Claimant sought another report from Claire C. Bradman, FNP, who found that Claimant’s accident had, at a minimum, contributed to the development of the disease. The carrier countered with a records review from Dr. Madoff, who has extensive experience with treating diabetic patients with lower-limb amputations.

At hearing, the Deputy Commissioner gave more weight to Dr. Madoff’s defense report than either of Claimant’s reports, and did not find that the diabetes was caused or heavily contributed to by the accident. The Deputy Commissioner also found insufficient evidence to prove that the diabetes medication was necessary treatment of a compensable injury itself. Concluding the diabetes was an intervening and unrelated condition the carrier was not responsible for, the Deputy Commissioner denied Claimant’s request for continued payment of the diabetes medications. Claimant appealed.

Holding/Analysis:

The Full Commission affirmed the first determination that the diabetes was not caused or exacerbated by the accident, relying on Dr. Madoff’s opinion that Claimant could not meet his burden of proof.

In a seemingly paradoxical decision, however, the Full Commission reversed on the second issue, finding that the carrier was still responsible to pay for Claimant’s diabetes medication. The record indicated that diabetes medication was needed to promote healing, prevent skin breakdowns, prevent interference with the prosthetic limb, and avoid other potential complications. They took this position even in spite of Dr. Madoff’s opinion that there was no definitive data demonstrating that blood sugar control reduces the above issues.

Commissioner Marshall issued a dissent, arguing that the evidence supported a finding that the accident was a contributing cause of Claimant’s diabetes. He relied on Claimant’s two reports as well as the two causes rule, determining that the accident, at a minimum, contributed to Claimant’s diabetes.

Takeaway:

Type 2 Diabetes is always tricky, usually in its interplay with other conditions. This situation is most emblematic of that; even when the diabetes itself was not awarded, the diabetes medication was. Most of all, this case shows the importance of a good IME/records review. In an overwhelming majority of cases, the Commission will side against a defense IME in favor of the treating physician’s opinion. Here, the Commission departed from that tradition. This was likely due to how narrow the opinion was, and the specialized experience possessed by Dr. Madoff. As evidenced by this case, it is important to tailor your IME as specifically as possible to maximize the possibility that it is given weight.

Rose Ferguson v. Richmond City Schools
VA00001581615, Virginia Workers’ Compensation Commission
Decided December 10, 2020

In an opinion delivered by Commissioner Rapaport, the Commission found that a fall caused by mental stress induced by a claimant’s employment does not alone meet the burden of “arising out of” the accident.

Background:

Claimant, an elementary school principal, suffered multiple injuries after she fell down a set of stairs. The employer defended primarily on the basis that her fall did not arise out of the Claimant’s employment, as she was having a work conversation at the time of the accident.

At the evidentiary hearing, Claimant testified that she was having a discussion with a co-teacher who was requesting to leave campus early. Distracted by the conversation, Claimant missed a step and fell down the stairs. It was undisputed that there were no defects in the stairs themselves. However, the co-teacher provided contradictory testimony, testifying that the conversation concluded before they reached stairs.

At hearing, Claimant relied on Marion Correctional Treatment Center v. Henderson, 20 Va. App. 477 (1995). In Marion, a correctional officer was required to look at the guard tower to wave at a co-worker and confirm his wave was acknowledged. Benefits were awarded because of the critical link between the job requirement and the fall. Claimant also cited to Woodson v. Central Va. Training Ctr., VWC File No. 209-08-46 (March 1, 2004), where benefits were awarded due to a claimant rushing to catch a fellow employee on her supervisor’s direction.

The Chief Deputy Commissioner held that the fall did not result from a condition of her employment. He denied the claim on grounds that there was contradictory testimony as to whether the conversation happened before the two individuals reached the staircase.

Holding/Analysis:

The Full Commission affirmed the denial. However, the Commission did not address the inconsistent statements as to whether the conversation occurred at the staircase. Instead, the Full Commission focused on mental concerns created by Claimant’s occupational duties. The Commission accepted that at the time of the fall, Claimant’s thoughts were fully occupied by work-related issues, but found that this mental status did not make Claimant’s injury arise out of her accident.

Takeaway:

What is interesting here is not the holding itself, but the analysis in how the Commission got there. The Commission seemed to go out of its way to mention that stress and mental statuses induced by employment are insufficient to meet the arising out of employment threshold. It could have easily focused on the inconsistent testimony to hold that the Claimant did not meet her burden of proof, but instead chose to focus on the Claimant’s cognitive state.

Over the last two decades, the trend has been towards accepting more and more slips and falls as being compensable, but perhaps that trend may be reversing.

COVID-19 Statistics from Virginia Workers’ Compensation Commission
(updated December 2020)

The Commission has issued statistics regarding COVID-19 cases reported to the Commission, indicating that of the 9,504 cases reported to the Commission, over 2,000 have resulted in denials, and fewer than 200 have resulted in awards.

Virginia has still not issued legislation altering the burden of proving COVID-19 was contracted on the job, and in Virginia, proving an ordinary disease of life presents an incredibly high burden for claimants. So far, only 2% of reported COVID-19 cases have resulted in an award.

Questions about the Virginia cases can be directed to Mike Bliley at (571) 464-0435 or mbliley@tthlaw.com.