August 2006 Email Newsletter
The BSH Email Newsletter
Good Questions in Workers’ Compensation
Third Party Alternatives
Mental Stress Injuries
Vocational Expert Interviews
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.
Good Questions in Workers’ Compensation
Not all injured workers have contentious relationships with their employers, and not all compensation carriers deny every workers’ compensation claim that is filed. Some workers whose claims are accepted may think they are being "paranoid" worrying about any portion of their claim when everything seems to be going well. What is worth worrying about-and what should an injured worker always question?
(1) Do not take a carrier’s/employer’s figures for granted. It would seem to be foolish to question a Statement of Wages, which computes what was earned in the year prior to an injury, or a Supplemental Agreement that indicates what current wages are (and therefore what partial is owed), or a Notification of Suspension/Modification that says an employee is back to his/her "pre injury average weekly wage." However, numbers can be wrong, particularly where shift differential or overtime are involved. A quick review of paycheck stubs along with the calculations made on the employer’s/carrier’s documents is always advised. For example, if an injured worker earns $8 per hour, and returns to work at an $8 per hour job, the carrier will issue a Notification of Suspension/Modification seeking to suspend the employee’s benefits on the basis that he/she is earning the pre-injury average weekly wage. But if there was overtime that the employee worked when injured, and that employee has restrictions of no overtime, it is not a simple hourly wage rate comparison. Review the numbers!
(2) Make sure the accident report is accurate. Some injured workers do not worry about what is on the accident report because of the fact that they are in pain and just want to get the claim acknowledged. The immediacy of the concern about the injury is understandable, but the assumption that mistakes on the accident report are irrelevant or unimportant is not. If the employee does not have a chance to review the accident report the day of the injury, they should request a copy and review it later, and point out any errors to a supervisor or someone in human relations-whomever one discusses these issues with for the employer. If the appropriate individual will not review the accident report, then the employee should make some written notations, provide them to the company, the union comp committee and keep a copy!!! This is particularly important when an individual sustains injuries to more than one body part at the time of the accident. Later, when the back injury that was acknowledged is healed, but the shoulder injury that was not on the accident report is needing surgery, the company will contest the claim on the failure of notice, and contend that the information is not in the accident report. Sometimes the employee does not mention the injury at the time, but sometimes the injured worker does mention more than one body part, and the employer only records “what hurts worst.” With review and consideration of the report of injury, an employee can try to minimize the chance of denials on the basis of notice occurring later on, when the injury was timely reported.
(3) It’s okay to second guess the company doctor. Please understand that not every panel doctor was last in the class in medical school, and some actually are concerned with the employee’s welfare, not just the employer’s checkbook. However, there is nothing wrong with questioning treatment recommendations, particularly when these recommendations involve NOT doing something, such as, NOT getting an MRI even though the back injury results in pain down the leg, or NOT scheduling an employee for physical therapy, just recommending that the worker "get back to the plant and get therapy through your work activities." Some of these recommendations have a pure cost-saving tone, and do not seem to concern the employee’s well-being and improvement. Remember that a PROPER panel has more than one physician, and the employer cannot require an injured worker to see a specific panel doctor to start out the treatment for the work injury. Shop around. See more than one of the doctors. There is always the opportunity for an employee to consult with his/her family (primary care) physician, but that will be out of the employee’s own pocket for the first 90 days. Asking that doctor for advice or recommendations may help the employee discuss his/her case with the company’s doctor and ask pointed questions about diagnostic tests and other possible forms of treatment that would be of benefit in the healing process.
(4) Sometimes people are interested in your business for an ulterior motive. Injured workers on compensation often find themselves the target of very prying questions. Compensation nurses call and ask for all kinds of information about medical issues that are (or seem to be) completely irrelevant to the worker’s injury. Why would someone care if an injured worker home collecting disability benefits helps her elderly mom do her grocery shopping? Why would individuals an injured worker has never met before-or worse, co-workers-ask whether the injured worker is still able to do that car detailing he used to do before the injury? Once an injured worker is collecting comp, it is often the sole goal of the compensation carrier to get that employee off compensation. Carriers will try to do this by "proving" that the injured worker is not as disabled as he/she claims to be. So if the comp nurse or a co-worker knows that an injured worker is partaking in activity that may seem to be something an individual with a disability could not do, there may be a push to "catch them" in the act-particularly with surveillance-in an effort to assist the insurance carrier in arguing against continued compensation for that individual. If an offer for work "under the table" or a little extra "bonus" for an injured worker seems suspiciously too good to be true-it may be. Be careful!
(5) When the employer/carrier is paying medical and the employee is still working, "trusting" that the bills will continue to be paid is not the best course. If there is no Bureau document-Notice of Compensation Payable (regular or Medical Only) or Agreement for Compensation-which memorializes the acceptance of the injury, there is nothing that requires the compensation carrier to continue making payment of the bills for treatment. The payments could stop without warning-and often do. At that point, there are creditors looking for payment, doctors annoyed about the fact that there are outstanding bills, and an injured worker that cannot be certain that medical care and treatment will continue. If the injury is not properly acknowledged-in written form-the employee must take action to be certain that a Bureau document is issued which indicated that the injury has been accepted by the workers’ compensation carrier. Continued assurances that bills will be paid-even in a written letter-may not be sufficient for statute of limitations purposes (3 years from date of injury). Sometimes litigation has to be filed to get the appropriate Bureau documents, but it is essential for the employee’s future protection.
An employee with eyes open and a healthy skepticism about what is being done about his/her compensation case is the employee best prepared to handle these situations. Ignoring problems does not make them go away. There is nothing wrong with questioning the way a claim is handled, and the instructions given. Remember- the attorneys in our office are always available to answer questions at no cost.
Third Party Alternatives
Some work injuries result from equipment malfunction in the workplace, or as a result of a car accident in the course of the individual’s employment, such as delivering parts or going from job site to job site inspecting. If someone else’s negligence is the cause of a worker’s injury and disability, how does that coincide with workers’ compensation?
Please understand first that the fact that these other factors--equipment malfunction or an auto accident--cause an individual’s injury or disability does not mean that there is no workers’ compensation claim. The employer cannot escape liability on the basis that the press malfunctioned or the employee was rear-ended by an underage driver. To the contrary, workers’ compensation benefits should be started immediately, because workers’ compensation does not depend on negligence or fault; so long as the injury occurred in the course and scope of the employee’s job, that injury is compensable, even if there is the possibility of another "pocket" for payment as a result of the injury.
The other claim that the employee might pursue would be a "third party" claim; this means that a third party’s action or negligence caused the injury the employee suffered while working. That lawsuit would have a shorter statute of limitations, usually two years, and would go through the court system, not the administrative system used for workers’ compensation. These claims are no "sure thing," though, and are as lengthy, or even lengthier a process as workers’ compensation. Again, even the filing of this type of third party case does not absolve the workers’ compensation carrier from liability for benefits. What the filing of the claim does is create a fund from which the workers’ compensation carrier might be subrogated, that is, paid back the money the carrier spent for the injured workers’ disability benefits and medical treatment.
How do these two types of claims interact? Let’s use an equipment malfunction as an example. Suppose an individual works in a restaurant, and is injured while using a large commercial slicer to cut meats and cheeses for the deli trays on the Saturday football game buffet. Since the injury occurred in the course of that individual’s employment, they are entitled to workers’ compensation disability benefits, and to have medical bills paid by the workers’ compensation carrier. The injured worker will then explore, with an attorney who understands these types of cases, whether there is a claim for the malfunction of the slicer. To that end, the attorney will do an investigation, an accident re-creation perhaps, and find out some important facts about the slicer-who manufactured it, when was it installed, who services it, and if changes been made to it by the employer. This last is quite important, because an injured worker’s employer cannot be sued for negligence-workers’ compensation is the only remedy available. Therefore, if the manufacturer of the slicer can convince the jury that it made a safe product, and that there were safety features, such as automatic shutoff, or a lock, or some other mechanism in place, and that the employer changed the slicer, by altering the safety mechanisms for example, then the manufacturer’s liability will be discharged, and there will be no "other pocket" for payment to the employee.
This is the most frequent problem plaintiff’s lawyers face in trying to bring a third party action for a work-related injury against the manufacturer. In this day and age, most equipment is manufactured with some kind of safety mechanism in place (primarily because of lawsuits and large verdicts costing the manufacturers money). However, these safety mechanisms can, at times, impede the operation of the machine itself, or can cut down on production. Therefore, employers will sometimes alter the equipment after it leaves the factory, taking off these safety devices. In the slicer example, if the manufacturer does install such precautions, and the restaurant manager removed them to cut meat faster, the slicer manufacturer would be "off the hook," and the restaurant and manager could not be sued under workers’ compensation. Therefore, there would be no additional recovery for the injured worker. It is also important to remember that the injured worker’s actions also come into play in a third party case, where they are not a defense to or in fact relevant (in most cases) in the workers’ compensation case. If the worker himself or herself took off the safety device to get the work done more quickly, or had been warned about using certain precautions and did not do so, then the "contributory negligence" of the employee can cause a decrease in the award.
Some injured workers will have the opportunity to be reimbursed from two pockets for an injury. However, the employer cannot use the possibility of a third party action to deny workers’ compensation benefits. While the workers’ compensation carrier can benefit from such a lawsuit, it is not an excuse for denying workers’ compensation liability. If it is a work injury, the first step is payment through the workers’ compensation system. Any other options are for the injured worker to consider, and his/her employer cannot require recourse to other legal proceedings for benefits.
Mental Stress Injuries
Can an Unusual Defense Result in Dismissal of an Employee’s Claim Petition for Mental Stress Injuries?
Facts: In Lamont Taylor v. WCAB (Greyhound, Inc.) and Kevin Kennelty v. WCAB (Schwan’s Home Service, Inc.), the employees petitioned for benefits as a result of mental stress claims, as both gentlemen suffered from post traumatic stress disorder as a result of incidents in the workplace. However, the results were quite different.
In Taylor, the claimant bus driver was in New York City on September 11, 2001, and had just discharged his passengers and parked in the lot where buses were to go when another driver told him about the first plane hitting the World Trade Center. From his vantage point, Mr. Taylor saw the second plane hit the World Trade Center. Mr. Taylor and the other drivers were put in a dormitory for several days, and were not permitted out until it was "deemed safe." Once that occurred, the claimant was instructed to go pick up passengers at a location. He did not, instead returning to the Greyhound garage in Philadelphia, where he parked his bus and told his supervisor he "could not do it." Subsequently, he filed a claim for post traumatic stress disorder.
In Kennelty, the employee delivered food products as a route manager/driver, and was robbed at gunpoint in the Garfield section of Pittsburgh. He never returned to work at Schwan’s and filed a Claim Petition alleging mental conditions, including post-traumatic stress disorder, following this, his fourth incident on his route.
Initial Ruling: The Workers’ Compensation Judge in each case denied the employee’s Petitions. The Judge in Taylor found that Mr. Taylor was not in the course and scope of his employment when viewing the tragedy of September 11th, and that viewing what happened there was not a working condition. The WCJ in Kennelty found that being robbed at gunpoint was not an abnormal working condition for an individual such as the claimant, such that he could not meet his heightened burden of proving that his condition resulted from abnormal working conditions, as required by the case law construing the Act in mental stress cases.
Appeal Board Ruling: The Appeal Board affirmed the WCJ’s denial of benefits in both instances. In Mr. Kennelty’s case, the Board noted that the claimant had not submitted sufficient medical evidence to prove that he suffered from a compensable mental condition.
Court Rationale: On appeal, Mr. Taylor argued that his pre-existing post traumatic stress disorder was aggravated by an abnormal working condition, that is, observing a plane crash into the World Trade Center. The Court held that Taylor was not actually in the furtherance of his employer’s affairs, transporting passengers, when the attack occurred. He had already discharged his passengers and the Court did not consider there to be any evidence that Mr. Taylor was still "on duty" at the time that the crash occurred. The Court also considered whether Mr. Taylor was on his employer’s premises at the time of the incident, and found that he was not. The parking area for the buses was in midtown Manhattan, and the crash occurred downtown, and Mr. Taylor had not been required to drive to the actual Tower location. Hence, the Court affirmed the denial of benefits.
In Kennelty, the Court noted that other employees of Schwan had been robbed, and that Mr. Kennelty had been advised of the possibility of robbery by his employer before he took the job itself. After finding that Mr. Kennelty’s medical evidence was sufficient as a matter of fact, and legally sufficient because as a whole it was supported by the facts of record, the Court turned to the argument that Mr. Kennelty could not be a victim of "abnormal working conditions" because of the number of robberies suffered by Schwan’s drivers. The Court noted that whether conditions are abnormal or not is to be judged "in the context of the specific employment." While the Court noted that there are highly stressful jobs where abnormal working conditions are rarely if ever found, such as a police officer, or a correctional facility, the Court was not willing to extend that assessment to Mr. Kennelty’s occupation: "This Court is unprepared to accept that our society has deteriorated to the point where a holdup at gunpoint does not constitute an ‘abnormal working condition’ for a food delivery person."
This extreme difference between these two holdings is surprising and highlights that the facts of a case and the panel of the Court that hears the appeal can make all the difference. The holding in the Kennelty case is clearly appropriate, but the Taylor holding is somewhat disconcerting. The entirety of the opinion outlines, however, that the defendant also argued that it should not be required to pay benefits on the basis of a terroristic act, and the WCJ actually premised his denial of benefits, in part, on that defense. The best explanation seems to be that the employer had no control whatsoever over what happened to Mr. Taylor, whereas the employer in Kennelty was aware of the area into which the drivers were going, and allowed that route to be maintained. It also seemed disingenuous for the employer to be arguing that so many people were victims of holdups that it should not be considered stressful, or that benefits should not be payable. These cases make clear that Pennsylvania still does not favor the mental stress claim.
Vocational Expert Interviews
Can the Compensation Carrier Require an Employee to Attend More than One Vocational Evaluation?
Facts: In Paul Linton v. WCAB (Amcast Industrial Corp.), the claimant was receiving workers’ compensation benefits for an April 1998 work injury. The employer requested that he attend a vocational interview, which he did in 2001. After that a Petition for Modification was filed, attempting to cut down Mr. Linton’s compensation. The Judge dismissed the Petition. Several years later, the employee attended another defense medical evaluation and after receipt of that doctor’s report with restrictions for Mr. Linton’s work abilities, the insurance carrier requested that the employee attend a second vocational evaluation. The claimant refused, and the defendant filed a Motion to Compel Mr. Linton’s attendance at that evaluation.
Initial Ruling: The Workers’ Compensation Judge granted the employer’s Petition and required Mr. Linton to attend the examination on the basis that the Act permits more than one evaluation, and it was not unreasonable to reassess the claimant’s earning power three years after the last vocational interview.
Appeal Board Ruling: The Board affirmed the WCJ’s decision, and explained that the Act allowed more than one vocational interview.
Court Rationale: On appeal, the claimant argued that the language of the Act discussing the assessment of earning power references a claimant’s obligation to attend "an interview by an expert," meaning that the Act only envisioned one such vocational interview. The Court explained that the amendment of the Act in 1996 require an employee to submit to "a physical examination or expert interview..." noting that a vocational interview is an expert interview. In addition, the Act, at Section 314, specifically authorizes "further physical examinations or interviews" at any time after the first such interview. The Court held that multiple interviews are appropriate. In response to Mr. Linton’s argument that more than the mere passage of time must be shown for additional vocational expert interviews, the Court held that the only way an employer may be able to show such a change in the employee’s earning power is to have an interview, so to require that there be some change in that employee’s earning power to request such an interview would be unreasonable. The Court further noted that "harassment" of an employee will not result, because a Judge must consider subsequent interviews reasonable and necessary before they will be require.
This case is not truly surprising, because Courts have consistently interpreted the Act to allow employers leeway in the areas of examinations and evaluations. The important note in this case is that subsequent vocational interviews must be deemed reasonable and necessary by a Workers’ Compensation Judge. Therefore, if a claimant undergoes vocational assessment, and the next interview request follows shortly on the heels of a losing employer Petition, it may be of benefit for the employee to refuse, to see whether the Judge will consider there to be a "reasonable and necessary" time interval before the second interview. While an employee’s benefits can be suspended for failure to attend such an interview, this cannot be done without an Order, and so it may be worth going before a WCJ to see whether the request will be ruled appropriate.
Again this will be a factual determination claimant and counsel must make, because a request four years after the first vocational assessment will most likely be deemed reasonable, where one six months later may not be. It is also critical to determine whether other matters have changed-has the employee had surgery that has greatly increased physical abilities? Has the employee completed schooling or other training that would improve that individual’s earning power? Where such a change of circumstances has occurred, a vocational evaluation may be ordered even if a long time interval has not elapsed. Again, before refusing or agreeing to a second interview, an injured worker should consult with counsel to assess the feasibility of that position.
Upcoming Seminars
Workers' Compensation:
| What | When | Where |
|---|---|---|
| Meadville USW Seminar | September 15, 2006 9:00-2:30pm | Meadville USW 287 1/2 Chestnut Street, Second Floor Meadville, PA 16335 |
| Butler USW Seminar | October 27, 2006 | Butler USW Conley Resort 740 Pittsburgh Road (Route 8) Butler, PA 16002 |
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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