eNotes: Workers’ Compensation – June 2022 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

PA CASE SUMMARIES

Brian Temme Tree Serv. v. Ecott
Commonwealth Court of Pennsylvania
No. 601 C.D. 2021, LEXIS 197

Decided: March 10, 2022

A WCJ may not opine on what constitutes an adequate IRE if no evidence is submitting addressing the IRE.

Background

Employer sought to alter the disability status of Claimant pursuant to Section 306(a.3) of the Act, which authorizes employers to conduct—after an injured worker has received total disability benefits for 104 weeks or more—an Impairment Rating Evaluation (IRE) to assess the degree of a claimant’s impairment attributable to a compensable injury.

Employer relied on the medical examination performed by a board-certified family physician, who opined that Claimant’s condition resulted in an overall whole-body impairment rating of 15%. Under the Act, an “IRE finding of less than 35% whole-body impairment will automatically change the employee’s disability status to ‘partial’ disability.” In response to Employer’s documentary medical evidence, Claimant “did not submit any evidence addressing [physician’s] IRE.” Instead, Claimant provided three evaluation reports that predated the IRE for “historical” purposes only.

The WCJ rejected the IRE results, reasoning that she was “not convinced that the aggregate effect of the pain associated with [Claimant’s] conditions may not be significantly more.” Moreover, she “criticized [physician] for not performing ‘range of motion testing’ and not questioning Claimant about certain subjects relating to his chronic pain . . . .”

The Workers’ Compensation Appeal Board affirmed, writing that “the WCJ is permitted to reject uncontroverted evidence if she adequately explains the reasons for her rejection.”

Holding

The Pennsylvania Commonwealth Court reversed the Board, explaining that “[w]ithout evidentiary support of some kind, a WCJ is simply not qualified to opine on what constitutes an ‘adequate’ evaluation of chronic pain.” Judge Wallace noted that previous holdings support the assertion that a “WCJ cannot support her conclusions by simply interjecting her own lay opinion on medical subjects.”

In a footnote, Judge Wallace clarified that WCJs must not always provide specific evidence when discrediting a medical expert’s credibility. Such permissible grounds may include an “incongruity between the witness’s medical specialty and the conclusions he reaches, or a finding that the witness has rendered an ‘underdeveloped opinion.”

However, when the WCJ disagrees with the witness’s conclusion and recommends alternative medical procedures, then “those findings must be supported by substantial evidence of record.” In this context, substantial evidence means “such relevant evidence which a reasonable mind might accept as adequate to support a finding.”

Takeaway

This case illustrates the burden of proof for Claimants, and prevents Judges from stepping outside the bounds of the record to counter an otherwise-uncontroverted IRE.

Questions about this case can be directed to Paul A. Pauciulo at 267-861-7588 or ppauciulo@tthlaw.com.

Brown v. Unemployment Compensation Board of Review
Commonwealth Court of PA
No. 1306 C.D. 2018

Decided: December 3, 2021

The Court affirmed the decision of the Referee that Claimant was not entitled to unemployment compensation benefits because she had been discharged for willful misconduct after refusing to obtain a flu vaccination.

Background

Claimant worked for The Children’s Hospital of Philadelphia (Employer). At the time of her discharge, Claimant worked part time as a Senior Nursing Assistant. The Employer implemented a policy in 2012 requiring all employees to receive the annual flu vaccine, unless they had a medical or religious exemption. Claimant complied with the policy through 2016, but in 2017 notified the Employer that she did not want the vaccine. She did not provide a medical or religious exemption. Claimant was subsequently suspended and given until December 5, 2017 to either receive the vaccine or submit a medical or religious exemption. Claimant submitted a one page document, which she had printed from a website and proclaimed that she did not give consent to be vaccinated. (Claimant submitted an “Advance Vaccine Directive” that she printed from the Natural Solutions Foundation website.) The Employer discharged Claimant for refusing to receive the mandatory flu vaccine. Claimant filed a claim for UC benefits, which was denied by the local UC Service Center. Claimant appealed to a Referee, and a hearing was held. The Referee concluded that Claimant had the common law right to refuse the vaccine, and her refusal alone was not willful misconduct, but under the circumstances of the case her refusal was a refusal to meet a reasonable condition of future employer. The Referee concluded that Claimant was ineligible for UC benefits. Claimant appealed to the Board, which affirmed the Referee’s decision.

Holding

On appeal, the Court found that the Claimant’s refusal to get the flu vaccine was “willful misconduct” and Claimant was not entitled to UC benefits. The Court first looked to determine if the policy at issue was reasonable and whether the Claimant had good cause for violating this policy. Given that the Employer was a Children’s Hospital and the flu vaccination policy was to prevent the spread of flu to patients and staff, the Court found that the Employer’s directive was reasonable. Claimant argued that because the Employer permitted other employees to claim religious or medical exemptions from the vaccine requirement, the Employer should have accepted what she had printed off the internet as an exemption. The Court rejected this argument, noting the Claimant had submitted to the Employer “only a one page printout from a website purporting to explain the doctrine of informed consent to medical treatment.” The Court further rejected Claimant’s informed consent argument as Claimant was not a patient of the Employer, but rather she was an employee and obligated to comply with the Employer’s “reasonable directives related to its business interests.” The Court noted that Claimant had actually complied with the policy for a number of years, and she was notified and aware that under the policy if she chose not to be vaccinated her employment would be terminated. The Court concluded that because Claimant failed to establish a valid justification for refusing to comply with the Employer’s reasonable directive, she was ineligible for UC benefits.

Justice McCullough wrote a lengthy dissent to the majority opinion. The Judge felt that the denial of UC benefits under these circumstances was “indefensible.” The Judge maintained throughout his dissent that the decision to get a flu shot is a “personal health choice” protected in the Commonwealth of PA, and is a legally protected right. The Judge discussed at length the common law right of self-determination and maintained that the majority decision’s violated this right of the Claimant. The Judge did, however, indicate in a footnote that whether the Employer wrongfully terminated the Claimant for failing to comply with its policy was a separate issue. The Judge maintained that an employee may be fired for completely proper reasons yet remain eligible for UC benefits.

Takeaway

The Court’s decision in this case seemed to hinge upon the fact that the Claimant did not submit the proper documentation regarding her decision to decline the flu vaccine- and the fact that Claimant had been compliant with this policy for a number of years and was well aware of the terms of the policy. It is also important to note that the Employer in this case was a hospital, and its reason for the flu vaccine policy was found to be reasonable. In light of the COVID-19 pandemic and vaccine policies implemented by employers with respect to same, I would anticipate that we will see more cases with issues similar to those raised in the instant matter.

Questions about this case can be directed to Lee Ann Rhodes, at (412) 926-1453 or lrhodes@tthlaw.com.

Rotegliano v. Clinton Hospital Corp. (WCAB)
Commonwealth Court of Pennsylvania
No. 616 C.D. 2021

Decided May 12, 2022

The Court sanctioned future monitoring/testing for opioid usage under facts of case, but did not address whether Judge could order such monitoring/testing on all claims

Background

The claimant suffered a compensable neck injury. The WCJ issued a Decision and Order granting employer’s Petition for Physical Examination, ordering the claimant to undergo an independent medical evaluation. The claimant failed to appear at the evaluation and a Suspension Petition was filed. Importantly, there was a Utilization Review Petition filed concerning the claimant’s treatment (the use of narcotic medications) with her longtime treating physician. There was also a Suspension Petition asserting refusal of reasonable medical treatment (an inpatient treatment for opioid dependency) and a Petition to Review Medical Treatment for inpatient rehabilitation and opioid dependency.

The Judge granted the employer’s Suspension Petition based upon the claimant’s failure to attend the IME. The Judge further granted the employer’s Utilization Review Petition concerning the medical care, finding that opioid treatment was not reasonable or necessary, particularly as to Hydrocodone liquid, Percocet, Valium, and office visits every 20 days for prescription refills and injections. Finally, the Judge sua sponte ordered the claimant to undergo drug testing for opioids every 60 days and, if a positive test resulted, the employer could ask that the claimant enroll in an inpatient rehabilitation program run by Johns Hopkins at employer’s expense. The Judge further concluded that if the claimant refuses to attend the inpatient rehabilitation, the employer may seek an immediate suspension of the claimant’s workers’ compensation benefits.

On appeal to the WCAB, the claimant failed to preserve any legal issues from the Judge’s Findings Decision and Order. Consequently, the Board concluded that the claimant waived all legal issues for lack of specificity in the Notice of Appeal but still affirmed the Workers’ Compensation Judge’s opinion in full. The Board concluded that the claimant’s presentation was deficient, but the record was sufficient to allow it to conduct a review limited to whether the Workers’ Compensation Judge’s determinations were supported by substantial evidence of record.

Holding

The Commonwealth Court agreed with the Board. At the outset, the Court agreed with the Board’s statement that the claimant had failed to preserve any legal issues on appeal. Specifically, the Court noted that as the claimant did not specify the nature of her legal issues or why the Conclusions of Law and Order amounted to legal error, the claimant had failed to preserve any legal issues on appeal and that the Court was constrained to only review the matter to determine whether the Judge’s Decision and Order was supported by substantial and competent evidence. The Court went on to conclude that given a number of factors including: the claimant’s in-person testimony that she had likely already undergone withdrawal due to a lack of consistent access to prescriptions; that she had subsequent positive tests which indicated limits to her credibility on the issue of her opioid usage; and the testimony of the employer’s medical witnesses that the claimant needed to be off opioids and go to rehabilitation, the Court concluded that the Judge’s Order provided a “means to accomplish that goal” and was supported by the evidence of record. The Court concluded that the Judge did not abuse his discretion in so finding and the Board did not err in affirming this decision.

It is important to note that the Court was not making a legal conclusion in this case as to whether the Judge had the authority to issue the Orders. The Court did not find that that legal issue had been preserved. They went on to state in a footnote, however, that “The WCJ’s sua sponte ordering of periodic drug testing as a condition of continued benefits is a compromise between the drastic approach of ordering claimant directly into an inpatient rehabilitation program on pain of losing her benefits and the unwelcome option of allowing her to resume her longtime extensive opioid use if she finds a provider willing to do so. In that sense, although the WCJ’s Order is not specifically authorized by the Act, it is equitable remedy of the kind this Court has found may be applied in workers’ compensation matters.”

Takeaway

The scope of the Court’s ruling here is extremely limited. The case does not stand for the proposition that the Judge has the absolute authority to order the claimant to undergo periodic drug testing or inpatient rehabilitation. The Court noted that that issue was not before them as the claimant had not preserved that legal issue. Nevertheless, the language used by the Court certainly indicates that at least this particular panel would likely view such a request favorably. Therefore, where there is strong evidence of a claimant exhibiting opioid abuse or drug seeking behavior it may be appropriate to seek this remedy out before a Workers’ Compensation Judge.

Questions about this case can be directed to Sean B. Epstein, Esquire at 412-926-1451 or sepstein@tthlaw.com.

Skay v. Borjeson & Maizel, LLC (WCAB)
Commonwealth Court of Pennsylvania
No. 999 C.D. 2021

Decided May 10, 2022

Court reestablishes claimant’s burden of proof in establishing a causal connection between medical expenses and a work-related injury.

Background

The Claimant sustained a work-related injury to her low back and subsequently developed Complex Regional Pain Syndrome (CRPS). Utilization Review requests were submitted by the Employer challenging the reasonableness and necessity of prescription medications prescribed by one of the Claimant’s treating physicians. The Utilization Review Determinations concluded that every medication was reasonable and necessary. These Utilization Review Determinations were never challenged by the Employer. When the carrier refused to pay for the prescriptions, the Claimant filed a Penalty Petition alleging that the Employer violated the Workers’ Compensation Act.

The WCJ denied Claimant’s Penalty Petition, finding that the medications at issue were not related to the work injury. The Claimant appealed to the WCAB which affirmed the WCJ, concluding that the Claimant failed to meet her burden of establishing that the prescription drugs at issue were related to the work injury because she relied solely on the prior Utilization Review Determinations. In so finding, the Board pointed out that Utilization Review Determinations only decide the reasonableness and necessity of treatments, not the causal relationship to the work injury. As a result, the Board held that the Claimant could not rely on the prior Utilization Review Determinations to establish a causal relationship to the work injury. The Claimant then appealed to the Commonwealth Court.

Holding

The Commonwealth Court affirmed the WCJ and the WCAB. The Court held that it is within the Employer’s rights to deny payment of medical expenses that are not causally related to the work injury. However, in doing so, the Employer opens itself up to penalties if the WCJ were to conclude that the medications at issue were causally related to the work injury. Because the Claimant relied solely on the prior Utilization Review Determinations and did not present any evidence establishing that the prescription medications were causally related to the work injury, the Claimant did not sustain her burden of proof.

Takeaway

This case confirms long-established precedent that Utilization Review Determinations only address the reasonableness or necessity of the treatment under review, not the causal relationship between the treatment and the work-related injury. While penalty exposure may present, an employer is well within its rights to deny payment of medical expenses if it believes those expenses are not related to the work injury. It would then be up to the Claimant, to establish his or her burden of causation.

Questions about this case can be directed to A. Catherine McLaughlin, Esquire at (412) 926-1421 or cmclaughlin@tthlaw.com.

Ken Walton General Contractor v. Patrick Donahue (WCAB)
Commonwealth Court of Pennsylvania
No. 823 C.D. 2021

Decided: May 23, 2022

An Answer to a Claim Petition may function as a Notice of Compensation Denial, making a penalty inappropriate in a case involving untimely-filed Bureau documents.

Background

On August 8, 2017, the Claimant reported to the personal home of the owner of the employer the day after the two had discussed a potential employment opportunity. Shortly after the Claimant arrived at the house, he injured himself while unloading a children’s playhouse from the back of the owner’s truck. The parties disputed whether the Claimant was an employee in the scope of employment, or merely an applicant undergoing the hiring process assisting with a personal matter. The employer did not report a work-related injury until it received a claim petition in the mail about one month later, and promptly filed an answer and Notice of Compensation Denial disputing the existence of an employment relationship. The claimant filed a Penalty Petition based on the employer failing to issue Bureau documents within 21 days of injury.

The WCJ issued an interlocutory order finding that the claimant was an employee injured in the course and scope of employment based on the WCJ’s “review of Claimant’s testimony and the testimony of [employer’s] fact witness,” with no further explanation. The petitions were later reassigned to a second WCJ, who presided over litigation regarding the extent of disability and the Claimant’s average weekly wage. Although the second WCJ found that the claimant had fully recovered and had a lower average weekly wage than the Claimant alleged, the second WCJ awarded unreasonable contest counsel fees. The second WCJ further upheld the first WCJ’s interlocutory findings regarding an employment relationship. Finally, the second WCJ assessed a 20% penalty against the employer for the untimely filed Bureau documents. On appeal, the Board affirmed. The employer appealed to the Commonwealth Court.

Holding

The Commonwealth Court reversed the imposition of a penalty and unreasonable contest counsel fees, and remanded the remainder of the decision for further proceedings. The court held that the WCJs had not issued a “reasoned decision” as required by the Act because they did not explain the basis for crediting certain testimony over other testimony or the rationale for finding an employment relationship.

The Court held that the penalty was manifestly unreasonable, as the employer’s Answer to the Claim Petition was promptly filed and functioned like a denial. Moreover, there was no prejudice to the claimant, who had already retained an attorney and filed a Claim Petition within one month of the accident. Finally, the Court reversed the assessment of unreasonable contest counsel fees, noting that the second WCJ ruled in the employer’s favor on several contested issues and had invited further contest of the employment relationship despite the prior interlocutory order.

Takeaway

This case provides an illustration of what falls short of the “reasoned decision” standard, as well as what constitutes a reasonable contest. More importantly, this case suggests that an Answer to a Claim Petition may function as a Notice of Compensation Denial. Thomas, Thomas & Hafer argued this case before the Commonwealth Court, and will ask the Court to publish the decision so that it can be relied upon in the future.

Questions about this case can be directed to John T. Morgan, Esq., at (267) 861-7580 x 8502 or jmorgan@tthlaw.com.