eNotes: Workers’ Compensation – November 2024 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Perry v. Mid Atlantic Hose Center, LLC (WCAB)
No. 850 C.D. 2023
Commonwealth Court of Pennsylvania

Decided: Sept. 17, 2024

The failure to list all treating physicians in a UR request does not necessarily invalidate the UR process.

Background

On June 17, 2021, Employer requested a utilization review (UR) of treatment given to Claimant by multiple providers for his 2007 work injury. The report indicated that some treatment was reasonable and necessary, and some was not. Claimant filed a Penalty Petition for unpaid bills. Both the Claimant and the Employer filed a Petition for Review of the UR Determination. The WCJ found Employer’s witnesses credible and concluded that Employer met its burden of proving that none of the treatment from any provider was reasonable or necessary. Claimant appealed the WCJ’s Decision, which the Board affirmed.

Holding

The Commonwealth Court affirmed the Decision of the WCAB because there were no deficiencies in the UR process, Employer presented competent evidence, the WCJ issued a reasoned decision, and Claimant’s Penalty Petition was properly denied. The Court held that the failure to list all treating physicians in a UR request does not invalidate the UR process. Therefore, this did not rise to the level of a deficiency in the UR process. The Court held that Employer presented competent evidence because Dr. Epstein did not deny that Claimant ever was injured, but rather opined that upon examination, Claimant did not present with objective abnormalities. Dr. Epstein was also of the opinion that Claimant did not need further treatment. Finally, a subpoena was issued pursuant to Claimant’s Penalty Petition, and Employer failed to respond. In a penalty petition, the Claimant bears the burden of establishing a violation of the Act. The record does not reflect that Claimant took any steps to have Employer comply with the subpoena; rather, Claimant skipped the procedures set forth in Section 436 of the Act and sought to have the WCJ draw an adverse inference. Due to Claimant’s failure to diligently seek compliance with the subpoena, the Court held the WCJ’s failure to address the request for adverse inference was a harmless error.

Takeaway

This Opinion emphasizes the importance of complying with the procedural requirements of the UR process. Things such as failure to list all treating physicians in a UR request or the employer not producing evidence regarding the qualification of the URO do not necessarily rise to the level of a defective UR. This case also shows that the Act provides the exclusive remedy for punishing an individual for failure to obey a subpoena issued by a WCJ, and this remedy will not be substituted.

Questions about this case can be directed to Gabrielle Martin at 610-332-7003 or gmartin@tthlaw.com.

Kevin Benedict v. Hard Chrome Specialists, Inc. (WCAB)
No. 746 C.D. 2023
Commonwealth Court of Pennsylvania

Decided: September 20, 2024

Despite letters of medical necessity from Claimant’s provider, medical treatment for arthritic injuries merely located in the same area as the accepted work injury does not meet Claimant’s burden of causal relation to the accepted work injury.

Background

Claimant sustained a work injury on October 22, 2013, which a WCJ determined to be a herniated nucleus pulposus (HNP) at L4-L5. On November 9, 2021, Claimant filed a Penalty Petition alleging the Employer failed to pay for certain medications. The WCJ denied and dismissed the Penalty Petition, concluding that the medications were not causally related to the work injury. On appeal, Claimant argued that the WCAB erred by not reversing the WCJ’s findings because she did not properly credit the letters of medical necessity that characterized the medications as related to the work injury.

Holding

Here, the letters referenced spinal stenosis L4-5 and arthritis at L4-5 HNP. However, according to the office notes, the medications were associated only with lumbago, sciatica and other chronic pain. There was no indication that arthritis or spinal stenosis were part of the work injury. Therefore, the WCJ found that Claimant’s prescribed medications were not causally related to the adjudicated work injury. The Commonwealth Court held that because the WCJ determined that the medications were not causally related to the work injury, Claimant was not entitled to penalties under the Act.

Takeaway

In a case where the medical evidence supporting causal relationship does not match the accepted injuries, the WCJ can deny a penalty petition since causal relationship is not established.

Questions about this case can be directed Taryn Vender at 570-825-4794 or tvender@tthlaw.com.

American General Life Ins. Co. v. Grosso (WCAB)
No. 860 C.D. 2022
Commonwealth Court of Pennsylvania

Decided: September 26, 2024

Absent an express waiver, an employer preserves subrogation rights in a compromise and release agreement.

Background

The Claimant sustained a work injury, for which the Employer accepted liability. The Claimant pursued a third-party case related to the work injury and received a settlement. The Claimant and the Employer could not agree on the subrogation amount, so the Employer filed a Modification Petition asserting what they believed the correct lien amount to be. While Claimant appealed the Modification Petition, the parties executed a Compromise and Release Agreement. In the Agreement, Employer purported to maintain its subrogation rights and that the Compromise and Release Agreement did not affect the pending litigation of the Modification Petition. After the Compromise and Release Agreement was finalized and approved, Employer then sought a significantly higher lien amount in the Modification Petition proceedings. The Appeal Board found Employer had waived its subrogation rights with respect to the third-party settlement by virtue of the Compromise and Release Agreement because the Employer did not inform the Claimant or the WCJ of its intention to be reimbursed by Claimant after the agreement was finalized. Employer appealed to the Commonwealth Court.

Holding

The Commonwealth Court reversed the Appeal Board’s Decision in an unpublished opinion, holding that Employer had not waived its subrogation rights in the Compromise and Release Agreement. The Appeal Board erred in stating the Employer’s failure to inform the Claimant or the WCJ of its intention to pursue a different lien amount was a waiver of its subrogation rights. On the contrary, subrogation rights are automatic and absolute under Section 319 of the Act, unless explicitly waived.

Takeaway

Subrogation rights are automatic and absolute under Section 319 of the Act, unless explicitly waived. This includes a need for an explicit waiver of subrogation rights in a Compromise and Release Agreement.

Questions about this case can be directed to Shelby A. Bennett at 412-926-1441 or sbennett@tthlaw.com.

Mullarkey v. Geo. Grp. Inc. (WCAB)
Commonwealth Court of Pennsylvania
No. 884 C.D. 2023

Decided October 22, 2024

When a Claimant settles a claim via compromise and release (C&R) agreement, in order to be entitled to benefits for a subsequent and distinct injury, he or she must prove that the later injury is the cause of his or her current loss of earnings.

Background

Claimant sustained work injuries in 2001 while working for Wackenhut. He thereafter sustained work injuries in 2004 while working for Geo Group Inc. (Employer), for which he was awarded medical and indemnity benefits payable “after a cessation of [] Claimant’s receipt of workers’ compensation [(WC)] benefits for the” 2001 injury. Claimant received benefits for the 2001 injury until August 24, 2022, when he entered into a C&R Agreement that resolved all claims related to the 2001 injury or any other work-related injuries Claimant may have sustained while employed by Wackenhut. The C&R Agreement did not limit his rights to any other claims for Workers’ Compensation benefits for any injury date other than the 2001 injury.

On October 6, 2022, Employer filed a Review Petition, arguing that the settlement Claimant received in the C&R Agreement was essentially, an “accelerat[ion] of his disability payments via lump sum.” The WCJ stated that when two injuries are, in and of themselves totally disabling, a Claimant may receive benefits only for one injury. When the second injury occurs, the insurer responsible for the first injury is continually liable. The WCJ held that due to Claimant’s entitlement to benefits for the first injury changing after the C&R, Claimant was automatically entitled to indemnity benefits for the second injury, and pursuant to the C&R, the Employer and AIG “ha[d] no right to an offset for the amounts paid in accordance with the C&R. Thus, the WCJ denied the Review Petition.

Holding

Section 306(b)(1) of the Act states that an injured worker who sustained two injuries is entitled to no more than the maximum amount payable for one injury.

To reinstate disability benefits, a claimant must “prove that his or her earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim.” The Commonwealth Court held that reinstatement was proper here. Although there was a petition before the WCJ, Claimant did not present evidence as to whether his current loss of earnings (disability) was related to the 2004 injury, rather than the 2001 injury. Instead, Claimant relied solely on the C&R Agreement and his reading of the 2008 Decision’s language to argue, essentially, that his right to the immediate reinstatement of the total disability benefits for the 2004 injury was automatic.

Takeaway

In a case with multiple, distinct injuries, claimants must prove that the subsequent injury at issue is the cause of the current loss of earnings.

Questions about this case can be directed to Gabrielle Martin at 610-332-7003 or gmartin@tthlaw.com.

Brooks v. Trustees of the Univ. of Penn. (WCAB)
936 C.D. 2023
Commonwealth Court of Pennsylvania

Decided October 21, 2024

When a vocational expert, who a WCJ found credible, inadvertently includes an expired credential next to his/her signature, there is no error of law for which to appeal.

Background

This case concerned a Modification Petition based upon a labor market survey. The WCJ found the vocational expert’s testimony credible. However, Claimant argued that the vocational expert’s opinion should be deemed non-credible due to the inaccuracy in the vocational expert’s qualifications in his signature. Specifically, the vocational expert had “CDMS” (Certified Disability Management Specialist) after his signature; however, his certification as a CDMS had expired. When he was asked to explain the inaccuracy, the vocational expert admitted that he was unsure why the initials remained and acknowledged that his certification had expired. The WCAB affirmed the WCJ’s Decision in granting the Modification Petition when Claimant appealed. On appeal Claimant argued that Employer’s vocational expert failed to comply with the “Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses” as required under Section 306(b)(2) of the Act. Further, Claimant argued that the Act was not intended to reward Employer and the vocational expert’s non-compliance with its provisions.

Holding

On appeal, the Commonwealth Court acknowledged the criteria currently used to govern the modification of a partially disabled claimant’s benefits. Under Section 306(b)(2) of the Act, an employer that files a petition to modify a claimant’s benefits from total to partial may succeed if the employer establishes that the disabled claimant has “earning power.” The terms by which a vocational expert remains in compliance with the Code of Professional Ethics for Rehabilitation Counselors are set forth in 34 Pa. Code § 123.204(a)-(c): a) the vocational expert shall disclose to the employee in writing the role and limits of the relationship; b) shall generate a written initial report detailing the expert’s conclusion within thirty (30) days of the interview; and c) shall serve copies of the written reports upon employee and counsel. A vocational expert that satisfies these requirements complies with the Code of Professional Ethics.

In its holding, the Commonwealth Court, while agreeing with Claimant that Section 306(b)(2) must be strictly construed, did not agree with Claimant’s contention. Neither Section 306(b)(2) nor 34 Pa. Code § 123.204 calls for disqualification of a vocational expert who inaccurately includes credentials on written correspondence; in fact, neither provision makes the merest mention of the issue. As the expert in this matter satisfied all three requirements under 34 Pa. Code § 123.204(a)-(c) and the WCJ’s findings were supported by substantial evidence, the Commonwealth Court found no legal error and affirmed the Board.

Takeaway

The inclusion of an expired credential next to a vocational expert’s signature does not render the expert non-credible as a matter of law.

Questions about this case can be directed Taryn Vender at 570-825-4794 or tvender@tthlaw.com.

City of Philadelphia v. Lamont Turner Workers’ Comp. Appeal Bd.
Commonwealth Court of Pennsylvania
No. 1190 C.D. 2023

Decided October 17, 2024

A denial of a modification petition was affirmed where the medical expert did not make any causation determinations regarding the subjective conditions the claimant reported during his physical examination.

Background

The Claimant sustained a work injury, for which Employer accepted liability. The Claimant’s accepted ongoing work injury was a low back injury. Employer filed a Modification Petition to reduce Claimant’s benefits from total temporary disability to temporary partial disability based on an Impairment Rating Evaluation (IRE). In the IRE, the physician did not rate the Claimant’s subjective complaints including depression, anxiety, erectile dysfunction, or incontinence. The doctor also did not comment on if they were attributable to the compensable injury. For this reason, the WCJ denied the Modification Petition. Employer appealed to the Appeal Board, which affirmed the WCJ. Employer then appealed to the Commonwealth Court.

Holding

The Commonwealth Court affirmed the Appeal Board’s Decision, holding that Employer had not met its burden to prove that Claimant’s whole-person impairment rating was less than 35% as required by §306(a.3) of the PA Workers Compensation Act. As such, Employer’s modification petition to reduce the Claimant’s benefits from total temporary disability to temporary partial disability was correctly denied. Employer failed to meet its burden because the physician-evaluator did not properly consider or make causal determinations about the subjective conditions of the Claimant. Without fully considering these issues, the IRE was insufficient as a basis to grant the Modification Petition.

Takeaway

The impairment rating must consider the whole body and is not limited to only the accepted injury. Under §306(a.3) of the PA Workers Compensation Act, a physician-evaluator for an IRE must determine whether any impairment is due to the work injury. Failure to do so renders the IRE insufficient as the basis for a modification petition.

Questions about this case can be directed to Shelby A. Bennett at 412-926-1441 or sbennett@tthlaw.com.