workers' compensation law

- April 2004 -

Legislature and Supreme Court Agree Vocational Expert Need Not be Preapproved By Bureau
 

Commonwealth Court handed down its decision in Westinghouse Electric Corporation/CBS v. WCAB (Burger) in October of 2003. This decision interprets and distinguishes Jeanes Hospital v. WCAB (Hass), which concerns the proper method of amending a Notice of Compensation Payable (NCP). In Westinghouse Electric Corp./CBS, the court found that a Petition for Review was appropriate under the facts presented to amend the NCP, whereas in Jeanes Hospital, the court found that a claim petition was the proper means by which the claimant should have sought amendment of the NCP.

In many instances, the type of petition by which a claimant seeks relief is immaterial. It is well established that the form of a workers’ compensation petition is not controlling where the facts warrant relief for the claimant. If a claimant is entitled to relief under any section of the Act, the petition filed will be considered under that section.

However, when the statute of limitations is a potential defense, whether a claim petition or review petition should be filed can be determinative of whether employer can successfully resist efforts to amend the NCP. If an NCP can be amended by means of a review petition, claimant has an extended statute of limitations of three years from the last payment of compensation under Section 413(a) of the Act. A claim petition, on the other hand, must be filed within three years of the date of injury under Section 315 of the Act in order to be timely.

In Westinghouse Electric Corporation/CBS, claimant’s date of injury was August 5, 1992. On September 30, 1999, claimant filed a petition to review medical treatment and/or billing and a petition to review compensation benefits. Claimant requested that the NCP and a Supplemental Agreement be amended to include psychological injuries that arose from his 1992 work-related injury. Employer contended in accord with Jeanes Hospital that claimant should have filed a claim petition rather than a review petition. Employer further argued that since the review petition was filed seven years after the date of injury, it was well past the time for filing a claim petition and the petition should not have been considered.

The Westinghouse Electric Corporation/CBS court examined the Supreme Court’s 1999 decision in Commercial Credit Claims v. WCAB (Lancaster), which the court in Jeanes Hospital had not discussed. Commercial Credit Claims involved a termination petition. The NCP set forth physical injuries only. Claimant attempted to resist the termination petition, contending he still suffered from psychological injuries that were the result of his work injury. The Supreme Court reversed Commonwealth Court and held that the termination petition should have been granted, holding that it was not employer’s burden to disprove a relationship between the alleged psychiatric injury and the accepted work injury. The court noted that since claimant had not sought to modify the NCP to include the psychological injury in accordance with Section 413(a) of the Act, he was bound by of the existing NCP and termination was proper. The court stated that an NCP can be modified in accordance with Section 413(a) if it is proved that the original notice "was in any material respect incorrect" or upon proof "that the disability of the injured employee has increased, decreased … pursuant to a petition filed by either party with the department." Nonetheless, the court opened a window for claimant stating that claimant could still file a review petition and amend the original NCP. The court stated that if claimant met his burden of proof to establish the causal connection between the work injury and the alleged psychological injury, he could resurrect his claim.

Rather than discussing Commercial Credit Claims, the court in Jeanes Hospital relied on its own 1998 opinion in AT&T v. WCAB (Hernandez). In Hernandez, claimant was receiving benefits pursuant to an NCP that recognized the injury as a back strain/sprain. Employer filed a termination petition seeking to terminate claimant’s benefits. Claimant filed a review petition requesting that the NCP be amended because it did not "properly reflect the traumatic injury to his hips and his bilateral aseptic necrosis." By footnote, the court in Hernandez cautioned practitioners regarding using a review petition rather than a claim petition to amend an NCP. The court noted that since there was no objection to the form of petition and that the record supported the relief requested that the review petition would be treated as a claim petition. In Hernandez the court distinguished Campbell v. WCAB (Antietam Valley Animal Hospital). In Campbell, claimant filed a review petition seeking to amend the NCP to include an injury that was claimed to be a "natural consequence" of the accepted work injury. The court noted in Hernandez that the hip injuries were not a natural consequence of the accepted back injury but were in fact distinct injuries. Therefore, according to the court in Hernandez, a review petition was not appropriate. The Hernandez court stated that even under the facts present in Campbell, a claim petition should have been filed.

In Jeanes Hospital, claimant was receiving benefits pursuant to an NCP that recognized a back injury. Employer filed a termination petition with respect to the back injury. Claimant filed a review petition seeking to amend the NCP to include work-related shoulder injuries, fibromyalgia, thoracic outlet syndrome and depression. The court held that the review petition was not the proper means to amend the NCP and that a claim petition should have been filed instead.

The court also determined that since it had been more than three years since the date of injury, the review petition could not be treated as a claim petition and the description of injury set forth in the NCP could not be amended.

In Jeanes Hospital, the court stated that a WCJ’s authority to amend an NCP is limited. A WCJ may amend an NCP "when a material mistake of law or fact has occurred …," however the "mistake must relate back to a fact or condition that existed … when the NCP was executed." The court specifically stated that if the injuries claimant seeks to add to the NCP are related to the accepted work-related injury but do not arise until a later date, a petition for review is not appropriate and a claim petition should be filed. According to the court in Jeanes Hospital, a review petition is appropriate for amendment of an NCP if the disability arose as a "natural consequence" of the work-related injury, relying on Campbell.

Working upon this precedential base, the court in Westinghouse Electric Corporation/CBS found that a petition to review the NCP was appropriate and on the facts presented found that amendment of the NCP to include additional injuries alleged by claimant, proper. The court specifically stated that there is no blanket rule that requires an NCP be amended within 3 years of the date of injury. Rather, as long as there is a causal relationship between the psychological injury that claimant sought to add to the NCP and the physical injury that was accepted, he could proceed by a review petition and was not bound by the 3-year time limit for bringing a claim petition set forth in Section 315 of the Act. The court did not overrule Jeanes Hospital or Hernandez. Rather, the court noted that in Jeanes

Hospital employer was presented with an injury that was distinct from the accepted injury more than 3 years after the date of injury, and in Hernandez claimant never asserted that the new injuries were the "natural consequence" of the original accepted injury. The court determined that Section 413(a) applies "to those situations where the parties have previously agreed upon of the compensation payable but a dispute arises as to the nature of the injury accepted or the continued disability of the claimant." The court held that the time limit for filing a petition under Section 413(a), 3 years after the last payment of compensation, was applicable, as opposed to the time limit for filing a claim petition pursuant to Section 315, 3 years from the date of injury. Therefore, the review petition was the proper means for claimant to assert that the accepted physical injuries had psychological consequences and the filing of the petition was timely. In Westinghouse/CBS, the court also states that any petition filed within 3 years of the injury that seeks to amend the NCP will be considered on its merits since the petition would be timely under either Section 315 or Section 413(a).

Therefore, if there is a causal relationship between the accepted injury and the injury that claimant seeks to add to the NCP, whether it is an additional physical injury (Campbell) or a psychological consequence of the accepted physical injury (Commercial Credit Claims and Westinghouse Corp./CBS), claimant can add the new injuries to the NCP by means of a petition to review filed more than 3 years from the date of injury so long as it is filed within 3 years of the last payment of compensation to the claimant. The focus is on whether the evidence establishes a causal relationship. It does not appear that claimant must show that the injuries that claimant seeks to add are a "natural consequence" of the accepted injury. On the other hand, employer can still argue, based on Jeanes Hospital as interpreted in Westinghouse Corp./CBS, that claimant must file some petition within 3 years of the date of injury if claimant seeks to add to the NCP injuries that are separate and apart and not causally related to the originally accepted injury. Any review petition filed by an employee more than 3 years after the date of injury attempting to add to the NCP injuries separate and apart from and not causally related to the injuries accepted in the NCP should be met with a vigorous statute of limitations defense and an objection to the form of the petition.

Further resolution of this issue must await the decision of Pennsylvania Supreme Court in Jeanes Hospital. The Supreme Court granted the Petition for Allowance of Appeal in that case to decide "whether filing a Review Petition is an appropriate procedure by which to seek amendment of a Notice of Compensation Payable, even if filed more than 3 years from the date of the workplace injury, in order to add to the description of the covered injury(ies) such consequential medical and psychiatric conditions which are alleged and found to have resulted from the workplace incident or injury identified in the Notice of Compensation Payable, but were not in existence at the time the Notice of Compensation Payable was executed." Of interest will be any guidance the court provides for those cases in which the employee seeks to expand the NCP by adding injuries that are not causally related to the accepted injury but arise from the work incident.

Stephen Greecher is a shareholder in the firm’s Workers’ Compensation Practice Group and practices in the firm’s Harrisburg office. For more information on this topic, please contact Steve at 717.234.4121 or via e-mail at sgreecher@tuckerlaw.com.

"The entry of an employer into the home to conduct business there places a heavy burden upon the intruder to show that there is adequate space within which to conduct the business without invading the privacy of either the claimant or others in the family," according to Commonwealth Court in Allegheny Power v. WCAB (Barry), decided in January 2004. In Allegheny Power, the court affirmed WCAB’s reversal of a WCJ’s order modifying benefits. The WCJ modified claimant’s compensation based upon an offer of home-based employment that claimant failed to pursue after an interview. The court’s opinion may ultimately eliminate the ability of employers to successfully refer home-based employment to claimants who are limited to sedentary work and have few outside vocational options.

Claimant injured his low back while performing his job as a lineman. In December 1999 employer filed a Petition to Modify Benefits, alleging that a job with Smart Telecommunications as a phone survey worker was available to claimant. Claimant was required to take tele-phone surveys and fill out paperwork while using a separate phone line in his residence.

Claimant testified that, after he interviewed with Smart, he agreed to try the job provided he did not have to work at home. He was not able to accept the position in his home because his wife "would not permit the home to be used as a worksite . . ." Claimant lived in small mobile home that he owns jointly with his wife. Based upon testimony of a vocational expert as well as employer’s physician, the WCJ modified claimant’s benefits, and claimant appealed to the Board. WCAB reversed, concluding the position was not "available" to claimant. The Board applied Commonwealth Court’s 2001 opinion in Bussa v. WCAB (Giles & Ransome, Inc.), where a totality of the circumstances test was used to determine that a referred position was not actually available to a claimant who lived in a small apartment with his wife. The Board reasoned that there was no dedicated work space for necessary computer equipment, and claimant would not be able to work if his wife was sick or bedridden. Employer appealed to Commonwealth Court, which affirmed.

Commonwealth Court relied on the 1987 landmark Supreme Court opinion in Kachinski v. WCAB (Vepco Construction Co.), and reasoned, "In determining whether an offered job is actually available, we must consider whether it can be performed by the claimant, taking into consideration his physical limitations and restrictions, age, intellectual capacity, education, previous work experience and relevant considerations. ‘Other relevant considerations have included non-medical factors such as the claimant’s place of residence, the distance and duration of the claimant’s commute, and the length of the workday.’"

The court stated that because claimant lived in a "small mobile home with his wife and adult son," and because the wife was present for the majority of the day leaving claimant alone for less than forty (40) hours per week, there is substantial evidence that the offered job was not actually available. The court quoted Kachinski, stating that a job may be "unacceptable for some reason unrelated to [a claimant’s] physical abilities. . ."

The most damaging part of the court’s Opinion is contained in the last two paragraphs where the court sweepingly states, "[A]lthough Employer met its burden here by proving that claimant can physically perform the proffered job, it failed to meet the additional burden which would permit it to enter Claimant’s home involuntarily because it did not prove that it provided adequate time and space within which to work the job as described. The job as offered is not actually available under conditions at Claimant’s home and is disruptive to the family."

Vocational experts considering the referral of work at home must be cautioned to inquire whether there is adequate private space to work at home. A claimant who does not live alone need only have his family testify that working from his/her home will be "disruptive to the family."

"Section 306(a.2)(1) of the Pennsylvania Workers’ Compensation Act plainly states [that] the sixty-day time period for requesting an IRE does not begin to run until the claimant/employee ‘has received’ total disability benefits for a period of 104 weeks," according to Commonwealth Court in Wal-Mart Stores, Inc. v. WCAB (Rider). Claimant’s actual receipt of benefits may occur after the 104 week period of disability in some cases. If so, an impairment rating evaluation (IRE) promptly requested within 60 days of actual payment of the past-due benefits is timely.

Claimant was employed as a truck driver when he suffered a neck injury on July 31, 1998. He was referred to a chiropractor and experienced short lived improvement. On October 21, 1998, claimant ceased working due to neck pain. He was diagnosed with multiple disc ruptures and underwent surgery. In November 1998, claimant filed a Claim Petition alleging his work injury rendered him totally disabled as of October 21, 1998. The case proceeded with medical testimony and hearings before a workers’ compensation judge (WCJ), who issued a decision on December 16, 1999, granting the Claim Petition and ordering payment of total disability benefits retroactive to October 21, 1998, continuing indefinitely.

Employer appealed to the WCAB, which granted a supersedeas, then vacated and remanded the case to the WCJ for further findings. On remand, the Judge reached the same conclusions and again granted the Claim Petition. Employer did not appeal this Decision, which was circulated on November 21, 2001, about three years after the disability commenced. Instead, employer paid past due compensation, and filed a Request for Designation of a Physician to Perform an Impairment Rating Evaluation. The IRE took place on January 8, 2002, and by Notice dated January 11, 2002, the physician found claimant’s percentage of impairment to be 26%. On January 17, 2002, employer issued Form LIBC-764, notifying claimant of a change of a disability status from total to partial, as provided by Section 306(a.2)(1) of the Act.

Claimant filed a Petition to Reinstate his total disability status contending that employer’s failure to request an IRE within sixty days of the expiration of 104 weeks of disability precluded any subsequent IRE to change his disability status. A WCJ granted the Petition, concluding, "Employer had until December 20, 2000, to file its IRE request…" The WCJ ruled that the fact that claimant’s case was on appeal to the Board was irrelevant in computing the time for requesting an IRE. Employer appealed to the Board, which affirmed the WCJ’s decision in favor of claimant.

Employer appealed further to Commonwealth Court, which reversed. The court discussed its prior opinion in Gardner v. WCAB (Genesis Health Ventures), where it held "that an employer’s failure to request an IRE within sixty days of the expiration of claimant’s 104 weeks of total disability benefits precluded the employer from seeking [an IRE]." (See, "Commonwealth Court Limits IRE’s," Tucker Arensberg, P.C. Workers’ Compensation Newsletter, Winter 2003). But the court distinguished these cases by observing that in Wal-Mart Stores, because employer was granted a supersedeas in connection with its appeal of the Judge’s first Decision, claimant did not actually receive benefits for disability until after employer decided not to appeal the remand decision. Hence, while employer paid more than three years of past benefits in a lump sum, claimant did not receive any benefits until November 22, 2001. "Approximately twenty days later, on December 10, 2001, Employer filed a request with the Bureau for designation of a physician to perform an IRE. We cannot agree with the WCJ and the Board that such a request was untimely," the court concluded.

Commonwealth Court’s opinion in this case is an important clarification of Gardner and the 104 week rule at Section 306(a.2) of the Act, and means that an employer defending a Claim Petition is not necessarily confronted with the irreconcilable choices of appealing a Decision it believes lacks merit at the risk of losing its statutory right to an IRE.

Kenneth Scholtz is an attorney in the firm’s Workers’ Compensation Practice Group. For more information on this topic, please contact Ken at 412.594.3903 or via e-mail at kscholtz@tuckerlaw.com.

Supreme Court: IME May Include Diagnostic Testing

" Diagnostic testing falls under the definition of a ‘physical examination’ in Section [314 of the Workers’ Compensation Act] when sought to evaluate the extent of claimant’s injuries, provided employer demonstrates the tests are necessary, involve no more than minimal risk, and are not unreasonably intrusive," according to the Pennsylvania Supreme Court in Coleman v. WCAB (Indiana Hospital and Phico Services Company). Claimant in Coleman injured her right shoulder in 1995 while working as a nurse. She had two subsequent surgeries and "voluntarily submitted to an MRI and triphasic bone scan in 1996, with no complications aside from redness, swelling, and bruising at the injection site for four to five days." She complained of persistent pain in her right shoulder and arm which was not relieved by nerve blocks, physical therapy, psychological therapy, medications, or TENS unit thereafter.

In March 2000, claimant underwent an IME. To complete his evaluation, the physician requested another triphasic bone scan and MRI. Claimant refused, so employer filed a Petition to Compel the examination.

Claimant offered a report from her own orthopedic surgeon purporting to define the phrase "physical examination" for medical purposes as "the detection of physical injury or disease by trained uses of the senses to personally look, listen, touch, etc. Use of sense-extenders such as blood pressure cuffs, stethoscopes, ophthalmoscopes, tongue blades, reflex hammers, and so on are part of the physical examination." Claimant’s expert stated that, in his opinion, imaging studies of all kinds "are separate and distinct from the physical examination [and] are not part of the physical examination."

The WCJ, relying upon the IME doctor’s statement that the requested tests would be "most helpful" in formulating his opinion, ordered claimant to submit to the testing. The Judge noted that the record contained "no medical evidence suggesting the tests would not have diagnostic value or [would] place claimant at additional risk." The WCJ rejected the definition of "physical examination" offered by claimant’s expert as "meaningful in the medical profession…", but irrelevant to the purpose of Section 314 in workers’ compensation cases. Claimant appealed, but WCAB dismissed her appeal as moot since she had already undergone the required test at the time of oral argument.

Claimant filed a further appeal to Commonwealth Court "contending the issue fell within an exception of the mootness doctrine because it was capable of repetition and likely to escape judicial review." The court agreed and, in a long analysis of the meaning of the phrase "physical examination," concluded that "strict medical definitions for undefined terms in the context of workers’ compensation" must be rejected. The court explained, "A physician’s examination [under Section 314 is] a method of fact-finding to determine the extent of a claimant’s disability for purposes of the right to benefits." Citing its 1999 opinion in Pancoast v. WCAB (City of Philadelphia), the court stated, "An independent medical examination, unlike a Petition for Termination, is a non-adversarial fact-finding procedure." According to the court, "The purpose of an examination is to assess the extent and severity of a claimant’s injury. Consistent with this purpose, we interpret the term ‘physical examination’ to include all reasonable medical procedures and tests necessary to permit a provider to determine the extent of the claimant’s disability."

However, this broad definition must, the court cautioned, "be tempered with respect to a claimant’s right to be free of unwarranted contact by others…" In the purview of a medical examination, the invasiveness of a needle is not unreason-ably intrusive; the collection of blood samples is so routinely performed in a physician’s office, the event has become almost commonplace. Nor is the introduction of a foreign substance into the body unreasonably intrusive, per se. Here, claimant was injected with a substance so an imaging device could provide a more accurate assessment of her condition. However, the result is no more intrusive than as she was required to ingest a contracting agent before a CAT scan, a non-invasive imaging procedure… Whether the substance administered is reasonable depends upon the risk analysis. The fact that immunizations and vaccinations are sometimes performed in non-clinical environments, such as the work place or schools, suggests injections are not unreasonably intrusive."

The court concedes it is possible, in proceeding along a continuum from wholly non-invasive to invasive procedures, to reach a point where an individual’s "bodily integrity" is so invaded that the testing or procedure becomes unreasonable. As a touchstone, the court cited its 1987 opinion in Muse v. WCAB (William P. Fichtorn). That case involved forfeiture of benefits under Section 306(f) of the Act where a claimant refused reasonable medical services which involved invasive surgery to repair an inguinal hernia. "Before benefits could be forfeited, the Employer had the burden of proving the services involved only a minimal risk and offered a high probability of success…. We believe a similar risk standard is applicable to physical examinations…" Most diagnostic tools requested for IME’s are imaging studies or electrodiagnostic studies, and the court’s analysis clearly allows such tests.

For the vast majority of cases, therefore, Coleman establishes that defendants are entitled to the diagnostic tools their independent medical examiners require.

In Villanova University v. WCAB (McElaney), a Commonwealth Court decision rendered in January 2004, the court spoke again regarding its view as to when a Review Petition or a Claim Petition is appropriate for a claimant seeking to amend the description of injury in a Notice of Compensation Payable. Claimant injured his shoulder, and took a non-steroidal anti-inflammatory medication for the injury. As a result of the medication, he developed kidney problems. Claimant filed Reinstatement and Review Petitions more than 3 years from the date of the original injury, seeking to add the kidney condition to the accepted injuries under the NCP. Commonwealth Court ruled in claimant’s favor, reasoning that since the kidney condition developed as a result of taking medication for the accepted work injury, a Review Petition was appropriate. If the kidney condition had occurred "independently from the injury acknowledged in the NCP and Claimant wished to also have this injury acknowledged, then it would be proper to file a Claim Petition." Because the court permitted claimant to file a Review Petition, adding the kidney condition to the NCP was permitted. Whereas, if a Claim Petition had been necessary, claimant’s attempt to add the kidney condition to the NCP would have been time barred. The court viewed the complication that Claimant developed as a result of taking medication for the accepted work injury as a consequence of the injury. Therefore, it was proper for Claimant to file a Review Petition.

Stephen M. Greecher

Stephen M. Greecher, a shareholder of the firm, practices in the Harrisburg office. Mr. Greecher concentrates his practice in workers’ compensation defense and civil litigation.

Mr. Greecher has been practicing law since 1982. He has an AV rating in Martindale Hubble Law Directory, which is the highest rating for legal ability and ethical standards awarded by this national directory of lawyers.

In 1973, Mr. Greecher received his B.A., with high distinction, from the Pennsylvania State University. In 1974, Mr. Greecher was awarded a Master’s Degree in Public Administration by Penn State. In 1982, Mr. Greecher graduated from the Dickinson School of Law Magna Cum Laude.

Mr. Greecher is a member of the Dauphin County Bar Association, the Pennsylvania Bar Association, the Association of Trial Lawyers of America, the Federal Bar Association and the National Organization of Social Security Claimants’ Representatives. He is also a member of the Pennsylvania Trial Lawyers Association, serving on its Board of Governors and Executive Committee.