TT&H eNotes: Workers’ Compensation – February 2018

February 01, 2018

Laurie Valenta v. W.C.A.B. (Abington Manor Nursing Home and Rehab),

No. 1302 C.D. 2016 (Pa. Cmwlth. December 7, 2017)

By: Anthony J. Gabriel, Esquire

Labor Market Survey
Open and Available positions
Employer’s Burden of Proof

Background: Claimant had been receiving total disability benefits for a work-related cervical spine and left shoulder injuries. Employer filed a Modification Petition seeking to reduce Claimant’s compensation rate based upon a Labor Market Survey and Earning Power Assessment which had identified six positions which were medically and vocationally appropriate for Claimant. Claimant testified, in relevant part, that she attempted to apply to five of the six positions but no job offers were made. The Workers’ Compensation Judge found Employer’s Vocational and Medical Experts to be more credible than Claimant’s Vocational and Medical Experts. Consequently, the Workers’ Compensation Judge granted Employer’s Modification Petition and reduced Claimant’s weekly compensation rate. Claimant appealed to the Board and argued that the positions identified could not be considered actually open and available if she attempted to apply but was unsuccessful. The Board rejected Claimant’s argument and affirmed the Judge’s Decision.

Legal Analysis: On appeal, the Commonwealth Court noted that employer bears the initial burden of proving that claimant’s disability is partial in character and that no specific job vacancy within the claimant’s physical capabilities exists with the date-of-injury employer. The employer must then establish claimant’s “earning power,” including the continued availability of medically and vocationally appropriate positions and that the claimant had a reasonable opportunity to apply. Claimant can then submit responsive evidence that he or she pursued the position(s) but failed to obtain gainful employment with the employers identified by the vocational expert or that an identified position was not open or available. The Court noted that such evidence is relevant but not dispositive of the earning power inquiry. The Court reasoned that the record established that Claimant was able to contact three of the identified employers and, of those three, was able to apply for two of the identified positions. Accordingly, there was sufficient evidence to establish that certain positions identified by the labor market survey remained open and available and that claimant was provided with a reasonable opportunity to apply.

Take Away: The Commonwealth Court held that an employer maintains an ongoing burden to show that jobs identified in a labor market survey remain open and available and the claimant can present evidence to the contrary. However, the fact that a claimant does not secure a position with one of the potential employers does not warrant a dismissal of a Modification Petition so long as the positions are found to be within the claimant’s capabilities and were open and available.

Any questions regarding this case can be directed to Anthony J. Gabriel, Esquire at 717-441-3957 or at agabriel@tthlaw.com.

Schriver v. WCAB(Commonwealth of PA, Dept. of Transportation),

No. 289 C.D. 2017 (December 28, 2017)

By: Carrie E. Hyams, Esquire

This case provides a discussion as to whether a massage therapist needs to be licensed in order for treatment rendered to be compensable.

Background: Claimant suffered a work injury to his low back on May 1, 1978. Claimant continues to receive medical treatment for his injury from his family physician and at Chambersburg Chiropractic with Chiropractor Fiss. Chiropractor Fiss referred Claimant to a licensed massage therapist in his office to provide therapy to his lower back and hips. Claimant received massage therapy treatments every three weeks and paid the therapist $60.00 per hour out of his own pocket. The Employer did not reimburse the Claimant for these treatments after he submitted the receipts. Claimant filed a Review Petition and a Penalty Petition and the WCJ found in favor of the Claimant and awarded Claimant penalties as well as reimbursement for the massage therapy. The Employer appealed to the Board who reversed the WCJ’s decision resulting in an appeal to the Commonwealth Court by Claimant. Ultimately, the Commonwealth Court held that an employer is liable for the services rendered by a massage therapist (regardless of licensure), if they are supervised by or have an employment relationship with a licensed health care provider such as a physician or chiropractor.

Legal Analysis: The Employer correctly argued Section 17 of the Massage Therapy Law makes it clear that licensure of a massage therapist does not automatically render their services compensable. Section 306(f.1)(1)(i) of the Act requires Employers to pay for reasonable services rendered by health care providers, which Section 109 of the Act defines (health care providers) to include physicians/chiropractors and their employe[es] or agent[s] acting in the course and scope of their employment related to health care services. Claimant admitted that while the massage therapy took place at Chiropractor Fiss’ office, Chiropractor Fiss was not present during the sessions and he had no idea if the massage therapist and Chiropractor Fiss discussed the treatment. The Commonwealth Court held that the WCJ was correct in finding that the massage therapist was working under the direction and control of Chiropractor Fiss and therefore, the Employer was required to reimburse Claimant for the massage therapy pursuant to Section 306(f.1)(1)(i) of the Act. Ultimately, it was not the license that this massage therapist had acquired that obligated payment, but rather the substantial evidence showing that she was employed by and directed by a chiropractor as it related to the services she was rendering to Claimant.

Take Away: Cases that involve questions as to the compensability of massage therapy do not necessarily turn on whether the massage therapist is licensed. You will need to perform an independent investigation into whether the massage therapist is employed by or being supervised by a physician/chiropractor or physical therapist as it pertains to the massage therapy being provided. If the massage therapist is not employed or supervised as discussed above there may be a legitimate challenge to paying for the services being rendered.

Any questions regarding this case can be directed to Carrie E. Hyams at 717-441-7068 or chyams@tthlaw.com.

Holy Redeemer Health System v. WCAB (Lux),

No. 768 C.D. 2016 (May 1, 2017)

By: Joseph J. Shields, Esquire

The Commonwealth Court affirmed the decisions of the WCJ and WCAB, both of which found that Claimant was entitled to partial disability benefits when employer offered a lower paying, modified job to Claimant which Claimant accepted.

Background: On October 11, 2011, Claimant suffered a work-related soft tissue injury to her lumbar spine which was accepted by a medical-only Notice of Compensation Payable. On September 18, 2014, Claimant filed a claim petition, seeking to expand the description of injury and also seeking partial disability benefits. On September 26, 2014, employer filed a termination petition. Testimony revealed that claimant was employed as a telemetry R.N. at the time of injury. She was paid $38-$39 per hour for twenty-four hours per week. After her injury, claimant was released to light-duty restrictions. Claimant continued performing her telemetry R.N. position, which was modified, and continued earning her pre-injury wages. Toward the end of 2012, claimant assisted employer by working in the care management department. In February 2013, employer offered claimant the opportunity to move to the care management position full-time, which was a lighter duty job. Employer did not force or require claimant to accept the position, but claimant did accept the job. The care management position paid $30 per hour for twenty hours per week. In September 2014, claimant contacted employer’s human resources department to try to return to her position as a telemetry R.N. The employer stated that claimant could not apply for an R.N. position while she was still on light duty. The WCJ issued a decision granting Claimant’s claim petition and finding that she was due partial disability benefits from February 2013 and onwards. Employer appealed to the WCAB who affirmed the decision of the WCJ. The employer further appealed to the Commonwealth Court.

Legal Analysis: The Commonwealth Court affirmed the decisions of the WCJ and WCAB. In its appeal, the employer relied upon the Commonwealth Court’s decision in Shenango, which held that an employer was not responsible for partial disability benefits when a claimant voluntarily bids out of his pre-injury department where he had been working in a modified capacity with no loss of earnings. Here, the Commonwealth Court disagreed, and found that Shenango was not controlling because claimant did not voluntarily seek another lower paying position with employer. The Court found it compelling that employer offered a lower paying position to claimant and distinguished the facts of Shenango from the case at bar. The Court further stated that it could not permit employer to evade the payment of pre-injury wages or partial disability benefits by creating and offering permanent, lower-paying positions to claimants that are within the restrictions flowing from their work injuries. Accordingly, the Court affirmed the decisions of the WCJ and WCAB.

Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at jshields@tthlaw.com.

Haslam v. WCAB (London Grove Commun.),

No. 1655 C.D. 2016 (September 1, 2017)

By: Deborah B. Richman, Esquire

This case provides a detailed discussion as to who bears the burden of showing relatedness of treatment in a Utilization Review proceeding.

Background: On February 16, 1998, Claimant was injured in the course and scope of employment when he fell off a building and shattered his right ankle, tibia and fibula and suffered a left calcaneus fracture as well as injuries to the neck and back. In 2008, the parties entered into an indemnity-only C&R Agreement. Thereafter, Employer filed a UR Request seeking review of any and all compound medication provided by Evan D. Frank, M.D. from January 6, 2014, and ongoing. Reviewer Michael J. Drass, M.D., found the treatment to be reasonable and necessary. Subsequently, Employer filed a UR Review Petition, challenging that the condition for which Claimant was being treated by Dr. Frank, Complex Regional Pain Syndrome (CRPS), was not expressly accepted by Employer in the C&R Agreement. Therefore, Employer asserted that Dr. Drass’ UR determination was in error. Around the same time, Claimant filed a Petition to Review alleging an incorrect description of injury and a worsening of his condition. Employer submitted the UR determination of Dr. Drass and Claimant submitted the narrative report of Dr. Frank. The WCJ denied Employer’s UR Review Petition and granted Claimant’s Review Petition finding that the treatment was within the scope of the C&R Agreement. The Board reversed, determining that the C&R Agreement was final and precluded Claimant from expanding the description of injury to include CRPS. The Commonwealth Court found that the Board erred in reversing the WCJ.

Legal Analysis: The Commonwealth Court repeated already established case law that the UR process is not the proper method to determine the causation of an injury or condition. It agreed with the Board that once a valid C&R Agreement is approved it cannot be set aside except upon a clear showing of fraud, deception, duress, mutual mistake or unilateral mistake caused by fault of the opposing party. However, the Court found that the WCJ did not modify the description of injury. Rather, the WCJ found that the medical treatment for CRPS was within the scope of the C&R Agreement. The Court noted that the C&R Agreement described Claimant’s injuries as, “[v]arious injuries and bodily parts including but not necessary limited to fractured right and left feet.” Further, the Court determined that the burden of proof as to whether or not medical bills are payable as related to the work-related injury turns upon whether the connection between the injury and the symptoms is obvious. If the new symptoms and the work injury are obviously related, a claimant will benefit from the presumption that the new symptoms are related to the work injury and the burden will be on the employer to prove otherwise.

Take Away: It is important to establish a precise and clear description of injury in an indemnity-only C&R Agreement to avoid any ambiguity concerning future medical liability. Furthermore, IMEs are important. The Court pointed out that Employer merely argued that CRPS was not specifically acknowledged in the C&R Agreement without providing any supporting medical evidence that the CRPS was not related to the work injury. Had the Employer provided medical evidence of such, the outcome might have been different.

Any questions regarding this case can be directed to Deborah B. Richman at 215-564-2928 or at drichman@tthlaw.com.

Rana v. WCAB (Asha Corp.), No. 1401 C.D. 2016:

Discussion of Traveling Employees and Course and Scope of Employment

By: Caroline E. Gentilcore, Esquire

At issue in this litigation, is a fatal claim petition where the Pennsylvania Commonwealth Court provides a detailed discussion as to the test for a traveling employee and what constitutes an injury occurring within the course and scope of employment.

Background: Employer in this matter is a franchise owner with multiple locations throughout Pennsylvania. Decedent was hired and assigned as a manager to work at three different locations of the franchise. Decedent’s job duties would include responding to operational issues at other locations within Pennsylvania, including delivering products and covering for sick employees. Decedent was contacted by Employer and asked to investigate an employee at another location who had fallen ill prior to said employee’s shift being completed. Decedent was traveling to investigate the sick employee when he was involved in a fatal car accident. Claimants filed the Fatal Claim Petition for compensation as dependents of Decedent. In the underlying litigation. the WCJ held that Decedent was furthering Employer’s business and was on a “special assignment” for Employer at the time of the accident. Employer appealed the WCJ’s Decision on the grounds that Decedent was performing his regular job duties, and was not on a “special assignment.” The WCAB found in favor of Employer, and reversed the underlying decision. Claimants appealed to the Commonwealth Court.
Before the Commonwealth Court, Claimants argued that the WCAB erred in reversing, because Decedent has no fixed place of employment and must therefore be considered a traveling employee, so he did not need to fall under the special assignment exception. Employer maintained that Decedent regularly worked at any one of three locations, and this constituted a fixed place of employment. Additionally, returning to stores after hours was a regular part of Decedent’s job duties as a manager.

Legal Analysis: The Commonwealth Court looked to the “going and coming rule,” which states that injuries sustained by an employee while traveling to or from work do not occur in the course and scope of employment. However, a traveling employee is an exception to the “going and coming rule.” The determination of a traveling employee is made on a case-by-case basis, but Court should look to factors such as whether the employee’s job duties include travel, whether the employee works on Employer’s premises or whether the employee has no fixed place of work. Citing Holler v. WCAB (Tri Wire Engineering Solutions, Inc.), 104 A.3d 68, 71 (Pa. Cmwlth. 2014). In addressing whether Decedent had a fixed place of employment, the Commonwealth Court looked to Employer’s testimony that Decedent would work at these other locations if needed, and Employer also admitted that there was no formal “on call” policy for managers. The Commonwealth Court found a lack of evidence to conclude that Decedent had one fixed place of employment, and found Decedent to be a traveling employee. A traveling employee is entitled to a presumption that injuries occurred while traveling are compensable. This presumption can only be rebutted with evidence that Decedent’s actions were “so foreign to and removed from” his usual employment that those actions constituted an abandonment of employment.

Take Away: The take away in this matter is that if an employee is assigned to multiple different locations, he will most likely be considered a traveling employee. The test as to what constitutes a traveling employee has been broadened, and it appears that an employee does not need to be compensated for his travel time to be considered a traveling employee. Further, being required to travel on occasion, or on an “if needed” basis was enough in this instance to establish Decedent was a traveling employee. Once an employee is found to be a traveling employee, said employee is entitled to a presumption that an injury occurring during traveling is within the course and scope of employment. To rebut this presumption, Employer has the high burden to prove that the employee’s actions were “so foreign and removed from” the usual employment that the injury cannot be deemed compensable. Of note, is that the Commonwealth Court seems to allow an exception injuries sustained when a traveling employee is returning from his job duties. When dealing with cases where there is a potential traveling employee, make sure to obtain as much information as possible surrounding the circumstances of the accident, as well as look into the Employer’s specific policies.

Any questions regarding this case can be directed to Caroline E. Gentilcore at 215- 564-2928 or at cgentilcore@tthlaw.com.