June 2005 Email Newsletter
The BSH Email Newsletter
BSH Announcements
New Injury vs. Recurrence
Carpal Tunnel
Federal Court Invokes "Exclusivity Doctrine"
What is Considered to be "Retirement?"
Upcoming Seminars
The BSH Email Newsletter
The Blaufeld Schiller & Holmes, LLP Email Newsletter is our effort to better educate our union friends and clients about Workers' Compensation and Social Security Disability issues. Each newsletter will include articles about a specific aspect of workers' compensation or social security, as well as information on recent court decisions. The newsletter will also list upcoming seminars and dates when our attorneys will be in your area for consultation. Please note that if you, or one of your members, need to speak with our attorneys, we are always on hand at (800) 343-9384. Call anytime, as we would be more than happy to assist you. Local appointments are available.
BSH Announcements
Blaufeld Schiller & Holmes, LLP would like to announce that Amanda L. Sinton, Esq. gave birth to a son, Nathan, on March 17, 2005.
New Injury vs. Recurrence
Many individuals who return to work following a work injury continue to suffer symptoms related to their injury. From time to time, due to increased symptoms from the duties of their job--whether full or modified duty--or a subsequent injury to the previously injured area, those employees may lose time from work. When this occurs, the claim will either be filed as a new injury, or attached to the old claim as a recurrence of the old injury.
There are several advantages for the employer/carrier if the claim is filed as a new injury. First, if there is list of doctors provided by the employer, the injured worker must treat with a listed provider for 90 days. This will allow the employer/carrier to guide and control the employee's treatment. With a recurrence, the injured worker can simply go directly to the treating physician used in the past, without the obligatory 90 day "company doctor period." Second, the employee is not entitled to workers' compensation for the first 7 days with a new injury, unless they are off for 14. With a recurrence, there is no need to be off work 7 days. A new injury also gives the employer the opportunity to pay some treatment bills without accepting the claim itself, then later deny the claim or fail to issue any Bureau documents officially accepting responsibility for the work injury. While this is far more difficult now with the Bureau providing for the acceptance of a claim as medical only on a Notice of Compensation Payable, some wily carriers may choose to do this.
The injured employee's average weekly wage will also be determined by whether it is a new or recurrent claim. In the "good old days," when wages always escalated, injured workers preferred a new claim rather than a recurrence, because the wage increase from the date of the old injury would make a newer calculation more advantageous. Now, however, with the cutback of business, less overtime for most people, and wages that are often frozen or with just slight cost of living adjustments, the benefit of a new injury for compensation rate purposes is not always obvious. If the employer "suggests" one or the other for the employee, it would be to that individual's benefit to review the old wage rate and determine what is really the best alternative.
Many employees will be able to tell if their symptoms are "just the same old thing flaring up again" or a lot worse and different. However, it is essential to remember that the designation of the injury as an aggravation or recurrence is ultimately decided by the treating doctor and at times, the Workers' Compensation Judge. If there is a change in the worker's underlying physical condition as a result of the incident (a tear, a herniated disc, etc. that was not present on prior films), there is a substantial possibility that it will be a "new injury." If there is no such change, and the symptoms, findings and treatment are the same as before, a recurrence will likely be the determination.
Plainly, when symptoms occur and a worker has been hurt before, whether the best alternative is a recurrence or an aggravation may be different in every case. It is not a choice the injured worker should allow the employer to make without considering all of the above alternatives, as well as others that may come to mind (sometimes S&A is paid for only 26 weeks per occurrence--a new injury that is in litigation would mean an additional 26 weeks of those benefits.) It is also essential to consider what the employee said when reporting the claim--if only the old injury was mentioned, an employee who is advised that there was a new injury could be out of time on notice, having failed to specifically inform the defendant about the potential of a new injury. Employees should not pre-determine what the course of the process will be, that is, aggravation or new injury--when reporting the incident. Instead, they should mention both the prior problem and the specific circumstances where the new injury arose in the course of their work duties. Consulting an attorney who specializes in workers' compensation is essential when there is a recurrence/aggravation issue.
Carpal Tunnel
A recent case from the Supreme Court of Pennsylvania regarding notice in carpal tunnel cases reminds us that this type of condition is one where specific attention must be paid to what a doctor says about an individual's complaints, symptoms, physical condition and test results when suffering from this injury. Because of the unique and peculiar nature of carpal tunnel claims, an employee who has been diagnosed with this condition should seek legal guidance immediately.
A little medical background may be of benefit with respect to carpal tunnel, just to show why this condition can be problematic. Please remember that the author of this piece is by no means licensed to practice medicine in the Commonwealth. Generally speaking, however, carpal tunnel can be diagnosed--or at least presumed--with provocative tests on an individual's wrist/hand/palm area. However, it is generally confirmed prior to surgery with diagnostic testing called EMG's and NCV's, which require the use of needles and electric current to determine what signals an individual's nerves in the wrist areas are receiving. Carpal tunnel occurs when the median nerve, which passes through the carpal tunnel (the channel made by the bones of the wrist), is compressed. The majority of physicians believe that carpal tunnel can arise from repetitive use of the hands and upper extremities, in such positions as typing or computer keyboarding, and also through the repetitive use of tools such as pneumatic drills and hammers.
The difficulty with carpal tunnel, from a workers' compensation perspective, is when the requirement to give notice arises. Notice must be given within 120 days of the diagnosis of a work-related condition where it is not an "obvious" injury. Since an employee may not know that those tingly sensations are related to carpal tunnel, the time to give notice generally is considered to run from the date that the condition is diagnosed as being work-related carpal tunnel. Therefore, as soon as an employee is told that he/she suffers from carpal tunnel caused by work duties, notice should be provided to the employer, particularly where the doctor opines that the injured worker requires surgery. By recommending surgery, a doctor seems to feel that the condition requires the most extreme form of treatment, that is, surgical intervention, as opposed to conservative treatment such as medications, wrist splints or modification of the work station. However, there are times when a doctor does not make a surgical recommendation, nor put work restrictions on the employee, and the worker continues with his/her regular activity. Under those circumstances, an employee who failed to give notice when carpal tunnel was originally diagnosed may not be out of time on a claim for benefits. What matters most is whether the doctor testifies or opines that the claimant's condition continued to worsen from the time initially diagnosed to the point notice was provided.
In City of Philadelphia v. WCAB (Williams), the employee was a clerk typist/ word processor for the City. In December 1995 she began to experience pain and numbness in her hands and wrists during the day. In January 1996 she told her supervisor she was going to have her condition evaluated, and her physician diagnosed carpal tunnel based on an EMG. Ms. Williams continued to work, however, and her condition grew progressively worse until March 17, 1997, her last day of work, when her hands "went totally numb" and she was unable to finish the letter she was typing. She reported her injury as work-related on March 17, 1997.
The employer contended that the claimant was out of time for notice, since her condition had been diagnosed in January 1996, and she did not report a work-related injury until March 17, 1997. The claimant contended that each day of work was an aggravation of her condition, and her doctor testified that her condition was "a progressively deteriorating process, and continued actions that lead up to the problem will result in increasing the problem." Even the employer's doctor agreed that Ms. Williams' condition had worsened between the two EMG's, but opined that carpal tunnel is not a disabling condition.
The Judge awarded benefits, finding that while the claimant knew her condition was work-related in January 1996, the medical evidence supported a daily aggravation of her condition to the point of her disability; therefore, notice given on March 17, 1997, her last day of work, was timely. The Appeal Board affirmed, as did Commonwealth Court, even in the face of that Court's own cases which hold that failure to given notice within 120 days of being told that a condition is work-related bars a future claim for benefits. In holding that Ms. Williams' notice was timely, even though it was given over a year from the date that she was first apprised of her work-related condition, the Commonwealth Court noted that the prior cases did not involve "disabilities that, according to the credited medical evidence, resulted from an aggravation/cumulative trauma injury."
The Supreme Court, which accepts cases in only rare instances, exercised its discretionary review because "the notice issue in cases of aggravation injuries is important" and because both sides had forwarded plausible arguments based on competing authority from the Commonwealth Court. In holding that Ms. Williams' notice was timely, though given a year after her initial diagnosis of work-related carpal tunnel, Mr. Justice Castille, writing for the Supreme Court, noted that "the City views as irrelevant the fact that the condition did not initially disable appellee and that this case involves an aggravation/cumulative trauma injury." The Court further held that notice is required upon "occurrence of the injury" and that the medical evidence in this case established that Ms. Williams suffered from a daily aggravation of her existing carpal tunnel syndrome "each day she worked as a clerk typist and word processor." Under those circumstances, notice of the injury on the last day that Ms. Williams worked, that is, the last day that she aggravated her condition, was timely according to the Court.
This case is important because it shows the importance of medical evidence in allowing an individual to obtain benefits where she could clearly have been found to be out of time on notice. If the doctor whose testimony was accepted had not opined that carpal tunnel was a cumulative trauma injury in her case, and that Ms. Williams' condition actually worsened as a result of her continuing duties, the Court could just as easily have determined that Ms. Williams' claim was time-barred. If Ms. Williams had been recommended surgery at the outset, and no progression had been found in her condition from the initial date of treatment/diagnosis to her last day of work, the continuing aggravation/cumulative trauma theory would not have been accepted by the Courts, and benefits would have been denied on the basis of notice. An individual who is diagnosed with carpal tunnel should give notice of that injury immediately, so as not to find himself/herself before appellate courts arguing about whether the condition actually worsened such that late notice was timely.
Federal Court Invokes "Exclusivity Doctrine"
Who is protected by the "exclusivity doctrine" of Workers' Compensation?
Anthony Barbee v. SEPTA and CompServices, Inc.
Facts: In Barbee, the injured bus driver filed a claim in Federal Court against his former employer and its workers' compensation administrator under the RICO statute (which governs "corrupt organizations" or the combining of two or more parties for a corrupt purpose) and the Workers' Compensation Act, a state statute, for the failure of the parties to provide for his medical treatment as a result of the work injury he sustained in a bus accident. Also alleged was a claim for pain and suffering.
In Federal Court, the defending party, here the employer and administrator, can file a Motion to Dismiss before testimony is taken, on the basis that the plaintiff cannot "state a claim" under the law- that is, there is no legal remedy for the plaintiff, even if the facts of his case are true. In Barbee, that is what CompServices did, contending that there was no legal remedy against the employer's Third Party Administrator outside the provisions of the Pennsylvania workers' compensation litigation system.
The facts that Mr. Barbee alleged, which had to be accepted as true for purposes of the consideration of the motion, were that the insurance carrier, by contract with the employer, tried to control the company's medical costs for injured employers, so that CompServices would therefore continue to get more business and thereby be paid more for its services on behalf of SEPTA. Mr. Barbee alleged that this violated the RICO statute, because this was "racketeering activity," defined by the law as acts or threats to act in violation of the law, or commission of mail or wire fraud, among other actions defined by the statute itself. The plaintiff also alleged a Pennsylvania State Workers' Compensation claim, contending that the Administrator improperly denied him medical care benefits, in violation of Pennsylvania's Workers' Compensation Act by these same actions- that is, failing to make payment of the bills for his medical treatment.
Ruling: The Judge for the Eastern District of Pennsylvania found that both claims brought by the plaintiff against the Third Party Administrator, CompServices, should be dismissed. [While SEPTA filed similar Motions, they were not discussed in the reported opinion.]
Court Rationale: The Judge explained that the Pennsylvania Workers' Compensation Act is the exclusive remedy available to workers against their employers for injuries suffered, or allegedly suffered, in the course of their employment. The Third Circuit Court, the Federal appellate court which has Pennsylvania lower federal courts under its jurisdiction, has explained in prior cases that "common law" litigation-that is, litigation in the Court system outside the mandated administrative procedures in place under the Pennsylvania Workers' Compensation Act-is permitted in only the rarest of occasions. The Judge determined that, because Mr. Barbee's claim was against CompServices in its role as the Third Party Administrator for his employer's workers' compensation program, the exclusive remedy for any wrongs committed (or allegedly committed) by CompServices is through Pennsylvania's Workers' Compensation system.
As a practical matter this means that almost any redress an injured worker seeks for issues arising from the work injury must be handled within the Pennsylvania Workers' Compensation system. While the facts of Mr. Barbee's case were not outlined in the Judge's decision in this federal court case as they usually are in Commonwealth Court opinions, the question remains as to why Mr. Barbee did not file a claim in the compensation system. Even an individual who is terminated from employment can bring a workers' compensation claim if the evidence supports a work injury and the need for medical treatment or disability as a result of that injury. Penalty provisions are in place in the Workers' Compensation Act for certain action (or inaction) by the employer and its third party administrations.
What is Considered to be "Retirement?"
What is a voluntary removal from the work force, such that compensation is no longer payable?
Facts: In County of Allegheny (Dept. of Public Works) v. WCAB (Weis), the injured worker suffered a left knee injury and was paid workers' compensation benefits. After paying benefits for twenty years, the defendant filed a Suspension Petition, alleging that Mr. Weis had "voluntarily removed himself from the work force," that is, retired, and that the employer was no longer responsible for total disability benefits. Mr. Weis testified that he could no longer perform his heavy equipment operator position at this point, but admitted that he did not know if he could perform a desk job. He had never returned to work and had, in fact, applied for retirement benefits through his employer, stating on his disability retirement application that he retired because he could no longer perform his job. A doctor who testified on behalf of the employer stated that Mr. Weis had end stage arthritis in his left knee, which he did not dispute as work-related, but opined that this gentleman could perform sedentary work.
Initial Ruling: The Workers' Compensation Judge dismissed the Suspension Petition, finding that Mr. Weis remained disabled from his work injury, had retired because of the disability related to his work injury, and that the employer had not proven that it had work available at a sedentary level. Therefore, in the WCJ's opinion, Mr. Weis did not "voluntarily remove himself" from the work force. Additionally, the Judge found that the employer did not have a "reasonable basis" to file the Suspension Petition, and awarded attorney's fees payable by the defendant.
Appeal Board Ruling: The Board affirmed the Judge's decision, finding that the claimant had retired because he could not perform his pre-injury position, and that he was "forced into retirement" by his work injury. The Board reversed the award of attorney's fees, however.
Court Rationale: The defendant appealed to the Commonwealth Court on the basis that Mr. Weis was not "forced to retire" although he was forced to leave his time of injury job as a result of his work injury. The Commonwealth Court held that, as a result of his retirement, Mr. Weis had voluntarily removed himself from the work force, because he never sought any additional employment after leaving the County of Allegheny. The Court held that, in order for total disability benefits to continue, he must affirmatively show that he sought employment after retirement or that he was forced into retirement because of the work injury. The Court did not believe that Mr. Weis proved that he was forced out of all levels of work as a result of his work injury, only his time of injury job. The Court made plain that the test for an injured worker's benefits to continue after retirement are in light of the entire labor market, not just his time of injury job or, it seems, with his time of injury employer.
The dissenting Judge argued that the Court erred in interpreting what removal from the labor market means. Judge Freidman noted that the WCJ believed and accepted Mr. Weis' testimony that but for the work injury, he would have continued to work. Employer awarded him a disability pension, which meant he was no longer able to "engage in a gainful occupation" by the definition of disability in that pension. Finally, the Judge noted that the employer waited 19 years after this gentleman's retirement to file a Petition questioning his ability or disability, which the Judge felt was not "due diligence" in pursuing its remedies.
This case is interesting in that the claimant did not provide any medical testimony on his own behalf. Under these circumstances, even accepting that the dissenting Judge's rationale is all true, and a claimant should not have this type of litigation instituted after 19 years of retirement, it would likely have been in the employee's best interest to find a doctor-even his primary care physician-to testify that he was not able to perform even sedentary work as a result of the work injury. Under those circumstances, if the Workers' Compensation Judge accepted that doctor as credible, the majority would not have been able to reach the medical conclusion that Mr. Weis could do sedentary work. Additionally, some vague references to applications for jobs, or attempts to even try volunteer or other "work" of a sedentary nature, would have allowed Mr. Weis to argue that he was unable to perform in the whole labor market.
Upcoming Seminars
Workers' Compensation:
| What | When | Where |
|---|---|---|
| USW Meadville Seminar | August 9, 2005 from 10:00-3:00pm | Meadville USW Office 287 ½ Chestnut Street, Second Floor Meadville, PA 16335 |
Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.
FREE Seminars for your union or group are also available.
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