TT&H eNotes: Workers’ Compensation – March 2018
March 01, 2018
Legislative Updates
Drug formulary
Senate Bill 936 passed in the State Senate on October 25, 2017
In the fall of 2017, an article was published in the Philadelphia Daily News which revealed how some workers’ compensation firms representing claimants have purchased their own pharmacies, creating what has been referred to as an “unholy” alliance between the attorneys and the doctors with whom they have referral agreements. This apart from the ethical considerations, this practice has reportedly lead to increased prescriptions of opioids and expensive, unproven pain creams.
As a result, the State Senate has passed S.B. 936 which would require the Pennsylvania Department of Labor and Industry to adopt a nationally recognized, evidence-based prescription drug formulary for the Pennsylvania Workers’ Compensation Program, appropriate for resolving issues related to drugs prescribed for or related to the treatment of work-related injuries, including, but not limited to, the type, dosage, and duration of prescriptions. Such formularies are commonly used in many private and public insurance plans. The Pennsylvania Department of Labor & Industry would be able to request a Utilization Review at random when questioning the reasonableness or necessity of treatment by a health care provider. The bill would also require Utilization Review Organizations to be nationally accredited or certified. S.B. 936 deadlocked in the House during a vote on February 6, 2018. It could come up for another vote in the House shortly.
The State House had a similar bill, H.B. 18, which was referred to the Rules Committee in June, 2017.
Impairment Rating Evaluations-“Protz Workers Compensation Legislative Fix”
House Bill 1840
The Pennsylvania Supreme Court struck down the state’s impairment rating evaluation (IRE) process as unconstitutional, ruling that the General Assembly unconstitutionally delegated to the American Medical Association (AMA) the authority to establish criteria for evaluating permanent impairment, in Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017). As a result of the ruling the Pennsylvania Compensation Ratings Bureau filed a loss cost increase of 6.06%. The State House responded by drafting HB 1840. The bill would reinstate the 104 weeks permanent disability marker for when an insurer can request an IRE and would assign the latest draft of the AMA Guide to the Evaluation of Permanent Impairment, the 6th edition, as the prescribed guide. Similar to the prior IRE legislation, ifthe claimant were to have a 50% or greater impairment, the employee would be presumed to be totally disabled. If less than 50% impaired, the claimant’s benefits would be changed to partial. The bill was referred to the Labor and Industry Committee in October, 2017.
Any questions regarding this legislation can be directed to Deborah B. Richman at 215-564- 2928 or at drichman@tthlaw.com.
Thomas Rahuba v. University of Pittsburgh, DSP-3305172-4 (Feb. 12, 2018).
William Van Fossen v. General Motors, LLC., DSP-2787283-2 (Feb. 12, 2018).
By: Justin D. Beck
- Protz
- Reinstatement Petitions
- Retroactivity
Background: In two nearly-identical Decisions, circulated February 12, 2018, a Pittsburgh-based WCJ addressed the retroactivity of Protz as it applied to claimants who had previously failed to either appeal their conversion of benefits or preserve any constitutional challenge in the litigation prior.
In both cases, the claimants had been modified from total to partial disability by prior adjudications, pursuant to IRE determinations which had found their permanent impairments to be less than 50%. These conversions were effective as of 2008. In August and October 2017, respectively, the claimants filed Petitions to Reinst at e. Both had argued that Protz rendered their conversion from total to partial invalid, and posited that Section 306(a.2) of the Act was now void ab initio.
Legal Analysis: The WCJ denied the claimants’ Petitions, holding that the same were barred by the legal doctrine of res judicata. The Judge reasoned, “This is so because a subsequent change in judicial view of the law has no effect on a valid, prior, non-appealed adjudication.” The Judge thus rejected the claimant s’ arguments, finding that, to reinstate benefits would treat the prior non-appealed adjudication as a mere “scrap of paper.”
Takeaway: These Decisions, rendered by a prominent and learned judge, are exemplary of the continued inconsistency amongst adjudicators as to the handling of reinstatement petitions in the aftermath of Protz. In this respect, absent formal guidance by either the Supreme Court or Commonwealth Court, WCJs may – and are – utilizing competing arguments in the context of retroactivity, leading to disparate results in the adjudication of claims.
Notably, in his Conclusions of Law, the Judge also endorsed the arguments against general retroactivity, as set forth in Blackwell. These same positions were originally espoused by TT&H in our 2017 “Protz Best Practices,” available at https://www.tthlaw.com/assets/attachments/ TTH%20Prot z%20Po 1icies.pdf.
Robert Thomas v. City of Philadelphia, A16-1176 (Pa. Work. Comp’n App. Bd., filed Dec. 19, 2017).
Debra Bruno v. Unique Industries, Inc., A16-0438 (Pa. Work. Comp’n App. Bd., filed Dec. 19, 2017).
By: Justin D. Beck
Protz
Reinstatement Petitions
Retroactivity
Background: In two recent Workers’ Compensation Appeal Board (WCAB) opinions, the Board held that claimants were entitled to reinstatement of total disability benefits as of June 20, 2017, the date the Supreme Court issued its decision in Protz.
In those cases, the claimants underwent Impairment Rating Evaluation (IRE), which resulted in an impairment rating of less than 50%. Defendants subsequently filed Modification Petitions based upon those IRE’s, which the WCJ’s granted, respectively. Accordingly, the claimants’ disability statuses were changed from total to partial. At that time, the claimants did not raise constitutional challenges, nor did they appeal the WCJ Decisions.
Following the release of Protz, Claimants filed Review Petitions, alleging that their impairment ratings were invalid and unconstitutional. In both cases, the WCJ’s denied the claimants’ Petitions, and the claimants thereafter appealed to the WCAB.
On appeal to the WCAB, the claimants argued that their change of status from total to partial disability were based upon a now-unconstitutional provision of the Workers’ Compensation Act (Act), to wit, Section 306(a.2). For this reason, the claimants sought reinstatement dating back to their respective IREs, or, alternatively, to their dates of conversion from total to partial disability.
Legal Analysis: In nearly identical opinions, the Board held that, as a threshold matter, Protz has differing impact on different claimants, depending on the procedural posture of their individual cases. In this respect, the Board held that, “any claimant who timely contested the change of status within 60
days of conversion or opposed a Modification Petition, and raised and preserved an argument before the WCJ, the Board and the appellate courts that the IRE provisions are unconstitutional – in essence a direct appeal – should have their benefit status changed back to total disability retroactive to the original effective date of the status change, as though the change to partial disability status never occurred.” In so finding, the Board relied on Blackwell for the proposition that “a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occurs before the judgment becomes final.” Blackwell v. Commonwealth, State Ethics Commission, 589 A.2d 1094, 1099 (Pa. 1991).
However, the Board cautioned that the same is not true for claimants who did not timely challenge their status change on constitutional grounds; indeed, that was the scenario in the two cases before the Board.
The Board held that such claimants are still entitled to some form of relief, in light of the fact that Protz voided the only legislatively-provided method for changing ones’ disability back to total, from partial, under the Act. The Board reasoned that failing to apply Protz would result in keeping a claimant on partial disability status pursuant to an invalidated section of the Act, thereby producing an “absurd result.”
Notably, the Board exercised restraint on retroactivity, stating, “the fact that the IRE provisions have been declared unconstitutional and stricken from the Act does not mean the change to partial benefit status should be erased as though it never happened.”
The Board, again relying on Blackwell, found that any claimant who did not timely challenge a conversion from total to partial, under the time limits set forth by Section 306(a.2), has no expectation of preserving total disability status back to the original date of status change. However, the Board also found that a claimant who contested the conversion within the original 60-day appeal period following modification, or a claimant who appealed a WCJ’s decision granting modification, now obtains the benefit of restoring his entire 500 weeks of partial disability eligibility.
The Board determined that Protz, filed June 20, 2017, decided the law with respect to claimants who did not timely challenge their status conversion, but who still filed a petition within 500 weeks, seeking to reinstate their total disability in light of Protz. Such claimants, according to the Board, have a right to reinstatement of total disability as of June 20, 2017. However, any weeks of partial disability that were expended prior to June 20, 2017, are now expired.
Takeaway: In the matters pending before the Board, the claimants had not raised constitutional issues in response to their prior Modification Petitions, nor filed direct appeals from the dates of conversion, rendering their changes of status final. However, the claimants both filed their most recent Petitions within 500 weeks after their disability status had been changed. Therefore, the Board granted reinstatement to both, effective June 20, 2017. It is to be expected that the Board will continue to handle similarly-situated cases in the same manner, with Commonwealth Court likely to address the issue as appeals are taken from such decisions.
Notably, and perhaps foreshadowing forthcoming arguments, the Board stated in a footnote, “We distinguish the facts of the instant case from those cases where the claimant’s benefits converted and 500 weeks of partial disability benefits expired. We recognize, but do not determine that issue here.” Thus, the Board’s treatment of post-500-week reinstatement petitions remains unclear
US Airways, Inc. v. W.C.A.B. (Bockelman). No. 471 C.D. 2017 (Pa. Cmwlth. Nov. 28, 2017)
- Course and Scope
- Customary means of ingress and egress
Background
In order to get to work, Claimant, a Philadelphia-based flight attendant, drove her own vehicle to the airport and parked in one of the two designated employee parking lots. Both parking lots are owned, operated, and maintained by the City of Philadelphia/Division of Aviation (“DOA”) for the use of all airport employees, not just those of Employer. After an employee parks, a shuttle bus transports the employee from the employee parking lot to the airport terminal (and vice versa). Employer does not own or exercise control over the shuttle buses and does not require employees to use the airport employee parking lots. Furthermore, Employer gives its employees no directive whatsoever in terms of how they should commute to work.
Claimant sustained an injury when she attempted to lift her suitcase onto a luggage rack on the shuttle bus which was going to take her to the designated parking lot after returning from a flight. The WCJ granted Claimant’s Claim Petition and the Board affirmed.
Analysis
On appeal, Employer argued that the Board erred as a matter of low in concluding that Claimant was in the course and scope of her employment at the time of her injury. Specifically, Employer argued that the injury did not occur on its premises as it did not own, lease or control the shuttle bus and parking lot and they were not integral to Employer’s business. Employer further argued that Claimant’s presence on the shuttle bus was not required due to her employment status because Employer never required Claimant to use the shuttle bus.
The Commonwealth Court disagreed. The Court reasoned that Claimant utilized the shuttle bus as the customary means of ingress and egress and Employer understood that its employees would be transported to and from work on the shuttle bus. Accordingly, the Court concluded that the shuttle bus was such an integral part of Employer’s business as to be part of the premises in addition to being a customary means of ingress and egress. Additionally, the Court concluded that Claimant’s presence on the shuttle bus was a necessary part of her employment because it was the means by which she traveled between her work station (i.e., the terminal) and the parking lot designated for airport employees.
Holding
The Commonwealth Court held that the WCJ did not err in concluding that Claimant’s presence on the shuttle bus was so connected to her employment relationship such that it was required by the nature of her employment. Accordingly, the Commonwealth Court concluded that Claimant’s injury occurred during the course and scope of her employment. While the facts that Employer did not own, lease or control the shuttle bus and did not direct Claimant to utilize the shuttle bus were relevant, they were not dispositive.
For more information regarding this decision, please contact Anthony J. Gabriel, Esquire at (717)441-3957 or agabriel@tthlaw.com
Schrader v. WCAB (Pocono Med. Ctr. & OUAL-LYNX), No. 812 C.D. 2016 (Jannary 30, 2018)
By: Deborah B. Richman, Esquire
This case confirms that when a claimant enters into a stipulation knowing that the description of injury is materially incorrect, the claimant is barred via technical res judicata from later amending the description of injury.
Background: On September 30, 2006, Claimant sustained a work-related injury to her right knee. She subsequently filed a Review Petition requesting an amendment to the description of injury to include a meniscal tear. On January 12, 2009, the Worker’s Compensation Judge adopted a stipulation of the parties acknowledging a right knee meniscal tear. In July, 2014, Employer filed a Termination Petition based upon the full recovery opinion from the !ME physician of the accepted injury, a right knee meniscal tear. In opposition, Claimant presented the testimony of the surgeon who had performed a January 23, 2007 right knee surgery, which revealed significant injury to Claimant’s ACL, but no meniscal tear. He performed an ACL reconstruction. The surgeon diagnosed Claimant’s work-related injury as a significant ACL tear and no meniscal tear. The !ME doctor agreed that Claimant had significant problems with her ACL and opined, based only upon the accepted work injury, that she was fully recovered and could return to work in her full duty capacity. The WCJ granted Employer’s Termination Petition, concluding that Employer satisfied its burden of demonstrating that Claimant had fully recovered from the accepted work injury, the right knee meniscal tear. The Board affirmed, as did the Commonwealth Court.
Legal Analysis: Because both experts testified that Claimant did not have knee complications due the accepted work injury, a tom meniscus, the WCJ determined that Claimant had recovered completely from the accepted work injury. Claimant appealed to the Board and requested that the description of injury be amended to include an ACL tear. Claimant argued that under Section 413(a) of the Act, a WCJ can amend a Notice of Compensation Payable or Supplemental Agreement that is materially incorrect, even without a Review Petition pending. Employer correctly argued that under Weney v WCAB {Mac Sprinkler Systems. Inc.). 960 A.2d 949 (Pa. Cmwlth. 2008), because Claimant was aware of the ACL injury at the time of the 2009 stipulation, she was barred via technical res judicata from challenging the description of the work injury during the proceedings on the Termination Petition. Employer argued that Claimant could have reserved the right in the stipulation to later challenge the description of injury, but failed to do so.
Take Away: The Court determined that Claimant was barred by the doctrine of technical res judicata from amending the description of injury when she knew it was materially incorrect at the time she entered into the prior stipulation. The Court did not address if her reserving her right to later amend the description of injury in the prior stipulation would have changed the outcome. Arguably, even if Claimant reserved the right to later challenge the description of injury, technical res judicata would bar the challenge due to Claimant’s knowledge of the additional injury at the time she entered into the stipulation.
Any questions regarding this case can be directed to Deborah B. Richman at 215-564-2928 or at drichman@tthlaw.com.
Williams v. Raymours Furniture. Co., Inc.• 159 A.3d 903 (NJ App. Div. 2017}
New Jersey will extend jurisdiction to cases where the injury occurred in another state, but the contract for hire was made in New Jersey with a New Jersey resident.
By: Caroline E. Gentilcore
Facts: Petitioner is a New Jersey Resident who filed an online application for employment at Respondent’s facility in New York. Petitioner attended an interview in New York, and ultimately was offered, and accepted the position during a phone call, which he took in his home in New Jersey. Petitioner only worked at the New York location. He ultimately sustained a work injury when he tripped over a hand truck at the New York location. Petitioner filed a Claim Petition in New Jersey. The underlying Court found that New Jersey lacked jurisdiction, and dismissed the Claim Petition, because “[e]verything took place basically in New York except for the residency of [Petitioner].” Petitioner appealed on the grounds that residency and the formation of the contract in New Jersey is sufficient to confer New Jersey jurisdiction.
Legal Analysis: The Appellate Court agreed with the Petitioner and reversed opining that residency and formation of contract in New Jersey is enough for New Jersey to extend jurisdiction. It is well recognized in case law that there are six grounds for asserting applicability of New Jersey’s Workers’ Compensation Act: (1) Place where the injury occurred; (2) Place of making the contract; (3) Place where employment relationship exists; (4) Place where the industry is localized; (5) Place of employee’s residency; or, (6) Place whose statute is adopted by contract. Citing Larson’s Workers’ Compensation Law§ 142.01. New Jersey will generally extend jurisdiction in matters where New Jersey has a substantial interest. This case marks a shift in the weight of interest given to residency and place of making contract. This case does not change the holding of numerous prior cases where the courts have held residency of the worker alone is not enough for New Jersey to extend jurisdiction.
Take Away: The issue of when and where New Jersey will extend extraterritorial jurisdiction has always been taken on a very case-by-case basis. However, this is the first case on Appeal where the Court has determined that the forming of a contract for hire over the telephone in New Jersey, is enough to establish New Jersey jurisdiction. This is a break from the prior trend where Petitioner would have to show some other type of interaction with New Jersey in order for New Jersey jurisdiction to apply. It is now established that New Jersey residency with a contract for hire made in New Jersey is enough for extraterritorial jurisdiction to be asserted. Employers are not left without remedy. This decision does not eliminate the case-by-case analysis of jurisdiction, and the test still is to consider a weight of all factors. What this decision does bring to light is that Courts will put more weight than they have previously towards residency and contract formation. Whereas place of injury and industry were more heavily favored previously.
If you have any questions, please contact Caroline E. Gentilcore at (215) 564-2928 (ext. 8518) or via email, cgentilcore@tthlaw.com. Thank you.