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October 2007 Email Newsletter

The BSH Email Newsletter
A View of Act 147
Billing for Medical Treatment
Modification of Benefits after Return to Work with a Different Employer
Reinstatement of Benefits After Termination from Subsequent Employer
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.

A View of Act 147

On November 9, 2006, Governor Ed Rendell signed Act 147 of 2006 making several changes and additions to the Pennsylvania Workers’ Compensation Act. We have now been operating under these amendments for several months and felt it appropriate to review the effect of these changes.

Section 401 was added with the primary goal of enhancing the efficiency of the workers’ compensation system and litigation of cases. For example, mediation is now required in all new cases, with an eye toward resolving cases earlier in the litigation process, rather than incurring the time, effort, and cost of litigating cases to near conclusion. Judges are now also charged with setting, at the first hearing in the case, the schedule for the entirety of the litigation and shall "strictly enforce" their schedules.

At first, Section 401 did not work well at all. The Judges were scheduling mediations almost immediately, when neither side was comfortable enough in its case to know what was a good settlement. Now, the Judges have become more flexible in the scheduling of mediations, seeking input of counsel as to when mediation might be appropriate, and allowing some of the "discovery" in the case to be accomplished-i.e. obtaining medical records, getting the claimant examined by a defense doctor if it is a Claim Petition, etc.-before the mediation is scheduled. This puts the parties on better footing to see and analyze their cases. Some are settled even before mediation. Where cases are not going to be settled, the parties can advise the Judge that mediation would be "futile" and the case will proceed to decision. This section has allowed the parties to be more proactive in settling cases, depending on the Judge assigned to the case, and has allowed cases to be resolved which would have taken a year or more to litigate. This change has been effective, now that the Judges have not been applying it blindly. Please understand that, while mediation is mandatory, settlement is not. This section does not mandate settlement.

The amendments also recognized the fact that some cases are settled while not in on-going litigation, and that the parties would like to have these matters disposed of promptly. The Act created a "resolution hearing procedure" in order to expedite settlement hearings. These settlement hearings are to be held within 14 business days of notice that the case has been filed, and the Judges are to issue their approvals or rejections of the settlement within 5 days of the hearing. There has been limited experience with this part of the Act here in the western part of our state, but the Easterners have been having "settlement courts" where there are Judges who set aside a day or more a month just for settlements. The idea behind this amendment is clearly a good one. Why have to go through all the channels-filing a Petition, getting an assignment several weeks later, getting a hearing several weeks after that-when the case is resolved and the parties are ready to proceed? Where an injured worker is represented by counsel, and has had the opportunity to discuss the settlement with counsel and have it explained, such expeditious hearings are a great idea. It moves the case into and out of the compensation system quickly and the injured worker gets the lump sum settlement that was agreed upon through negotiation.

The hazard with this procedure is for the unrepresented claimant who "needs money" and who may be pushed into a settlement that is not beneficial because of the lure of how quickly it can be accomplished. Also, there is the concern under these circumstances that support liens will not be properly preserved. Pennsylvania has, in recent months, put greater emphasis on the protection of its children by making parents who have support obligations and are receiving workers’ compensation pay their fair share out of the disability benefits as well. Settlements must provide for support liens and, in some cases, future support obligations. It is essential for the Judges under these circumstances to be sure that the injured worker knows and understands what he/she is doing (getting and giving up) in settling the case. The coverage for medical, the review of the case for Social Security and Medicare concerns, and the protection of support liens must be carefully considered even in these expedited proceedings.

Perhaps one of the best parts of this Act was the creation of the Uninsured Employers Guaranty Fund. This account will be funded by a one-time deposit of $1,000,000 from the General Administration Fund, as well as assessments against insurance carriers and self-insureds who do business in the Commonwealth. This Fund will be available to make payments of compensation to injured employees whose employers fail or refuse to have workers’ compensation covering their employees, and will cover individuals who are injured after the effective date of the Act. There have not been many filings under this new section of the law, so it may take another year or more before the "nuts and bolts" of proceeding under this section are clear. Plainly, the rationale behind this amendment is clear-those who are injured in the course and scope of employment should not suffer because of the employer’s refusal to provide workers’ compensation. The creation of this Fund will allow many individuals, who clearly suffered injuries and are disabled, to have the chance of getting paid, as opposed to having to litigate an entire case and then possibly get paid, or have to execute on the employer’s assets to be paid.

Overall, these amendments will work to favor injured workers, so long as the Judges apply the time guidelines fairly, and the parties can get their medical witnesses to comply with the time constraints the Judges require. Often the parties want to move matters quickly, but doctors give deposition dates six months or a year away; that is not the "fault" of either party but does impact the litigation process.

Billing for Medical Treatment

How does your doctor get paid for work-related medical treatment? It would seem obvious that doctors would know how to bill for treatment, so they would be certain to get paid. However, that is not always the case. It should not surprise you to learn that there are specific rules and regulations about billing for medical treatment under the Workers’ Compensation Act. Anyone who is treating for a work-related injury, particularly with a doctor who is not on the employer’s designated panel, should be certain that the doctor is aware of the requirements of the Act for payment of medical bills. We see many cases where workers’ compensation denies payment of a bill simply because it was not submitted properly. The provider will then bill the injured worker’s private insurance carrier, and send a bill for the co-payment to the client. If an injured worker is asked to make a co-payment or pay for an office visit when they have an accepted claim (as verified by a Notice of Compensation Payable Bureau form), this is not appropriate! Under Workers’ Compensation, there are no co-payments for medications, doctor’s visits, therapy, diagnostic tests or other medical treatment.

If the injured worker’s claim has been accepted by the workers’ compensation carrier, the employee should provide the claim number, or the address and telephone number of the compensation carrier, to the provider. If an injured worker does not have an accepted claim, however, such as when the employee is litigating a Claim Petition, the doctor may request the employee’s private insurance carrier information as "back up," because the bills for this medical treatment will likely be denied by the workers’ compensation carrier. Under these circumstances, the injured worker should provide BOTH the workers’ compensation carrier information and the private insurance information; the provider should bill the compensation carrier first and get a denial, then bill the private carrier, so that the employee’s private health insurance will pay. Private insurance carriers generally do not like to make payments if there is another party who is or should be responsible for the bills. However, where a claim is contested and the bills have been denied, the private carrier may make payments and seek reimbursement, if the case is later won, from the workers’ compensation carrier.

When the injured worker is treated for the work-related injury, the medical provider is to prepare a specific form-called a HCFA billing form-that has codes for the treatment provided on that day. Each separate service must be listed and properly coded on this form, along with the provider’s complete address, the employee’s address, birthdate and other necessary identifying information. This form must be accompanied by the notes of treatment for the services/testing/office visit billed. There is absolutely no requirement in the law that the workers’ compensation carrier process the bills for payment until the proper form, with the proper codes, and the records of treatment for that visit, are sent to the carrier. Only when these requirements are met must the compensation carrier take action within thirty days; either the bill must be paid or it can be challenged under the treatment review provisions of the Act.

What happens when the injured worker is treating with his/her family doctor (primary care physician)? As noted above, the doctor needs to follow all the requirements for billing any work-related treatment to the compensation carrier. A problem arises when the claimant is seen for both work-related and non-work-related conditions. It would seem to be the easiest course for the injured worker to simply see the doctor at one visit for both conditions, but that is not necessarily the case because of the Act’s particular billing requirements. The doctor should be able to sort out what treatment was related to the work injury, and submit only the bills for the work-related treatment to the compensation carrier. But what about the office visit itself? There are specific medical billing rules and regulations that prevent double-billing; there may not be any way to "divide" the visit in half and bill each insurance provider one-half of the bill. Also, the records of the treatment need to be provided; if the doctor redacts or whites or blacks out the non-work-related portions of the records, the carrier may refuse to pay the bill until complete records are sent, to see what the other complaints concerned and what other treatment was offered. The bills could be held up or refused because of these issues. In actuality, it is easier under the Worker’s Compensation Act for the individual patient to make two visits to the doctor, or at least schedule two separate, shorter appointments, to address the different medical issues. This will allow for prescriptions for tests to be written on separate sheets, medications to be dispensed separately, and the bills to be kept apart.

An injured worker should "keep an eye on" the medical providers and give specific instructions on what carrier to bill. If the worker receives a bill, he/she should call the provider to find out who was billed and why the bill was denied. Consultation with an attorney may also be required. We deal with these medical billing issues all the time, and would be happy to assist you.

Modification of Benefits after Return to Work with a Different Employer

Can the Employer/Comp Carrier Do a Labor Market Survey Even After the Injured Worker Goes Back to Work With a Different Employer?

Facts: In CRST v. WCAB (Boyles), the employee received a Notice of Ability to Return to Work, releasing him to return to work with restrictions following his wrist injury. He had worked as a trucker in the past, but could not return to that job. He underwent a vocational evaluation, but applied for a number of jobs as a private investigator on his own, a field in which he had additional training and for which he had the appropriate background. He took a full time security job making $7.50 per hour, and then, when he went to work with the Sheriff’s Department making $9.05 per hour, part time, scaled back his work at the security job. It was Mr. Boyles’ understanding that he would be made a full time sheriff at some point in the near future. In the meantime, the results of the vocational assessment were issued in the form of a labor market survey (LMS), in which the vocational specialist found that Mr. Boyles could be earning $10-$13 per hour full time.

Initial Ruling: The Workers’ Compensation Judge dismissed the Modification Petition, accepting the testimony of both witnesses, but finding that the employer was not entitled to a modification of benefits based on the supposedly available jobs, because Mr. Boyles was actually working and had found suitable employment on his own. The Appeal Board initially affirmed, but remanded to the Workers’ Compensation Judge for specific findings as to the claimant’s actual earnings and earning power.

On remand, the Judge held three hearings to determine actual wages and earning power for Mr. Boyles. She found that claimant’s earning power should be based on one of the full-time positions found by the vocational specialist which was consistent with the claimant’s interest in law enforcement. That position paid $11.39 per hour. While the Judge found that Mr. Boyles was not earning more than that in the two positions that he held with the Sheriff’s Department and the private security firm, she still denied the modification of his benefits on the basis of the LMS job, finding that Mr. Boyles had done what the Act had asked him to do, that is, "seeking and securing employment on his own which resulted in a modification of his benefits."

Appeal Board Ruling: The Board affirmed the Judge’s dismissal of the Petition, stating further that, once the claimant secures employment after receipt of the Notice of Ability to Return to Work, it "precludes [employer] from establishing that he had a greater earning power by way of a labor market survey." The Board found this to be both reasonable and more in line with the humanitarian purposes of the Workers’ Compensation Act.

Court Rationale: The Commonwealth Court reversed and remanded the decision of the Workers’ Compensation Appeal Board. The Court considered the employer’s argument to be that there is an entirely new concept of "earning power," which is separate and distinct from the old law which required specific job offers. The claimant’s argument was that he should not be punished for securing jobs that paid less before he was aware of the results of the labor market survey, and that he should not have to abandon the work that he had found in order to accept one of the jobs that was contained in the LMS. The claimant argued further that he had secured additional training, and then obtained employment. To allow an additional modification based on "supposed" jobs would be contrary to public policy, which encourages the injured worker to rehabilitate himself/herself and get back into the work force.

In reaching its decision, the Court noted that case law having to do with specific job offers is not applicable to the cases which deal with earning power and labor market surveys. The Court also noted that there is no time limit by which employers must utilize the earning power assessments they obtain. Therefore, the Court believed that the employer was not out of time to argue that there were jobs available which would allow Mr. Boyles’ benefits to be further modified. Where, as here, the Judge accepted the vocational specialist’s evidence as credible, the fact that the claimant was earning less than a job that the Judge decided was available to him and indicative of what he could be earning required a modification of benefits, because Mr. Boyles was not earning what the Judge had found would be an appropriate earning power, based on the jobs presented in the LMS.

Discussion: This case is an example of what seems to happen when a Judge tries to allow both sides to "win" a portion of the case. Once the Judge decided that Mr. Boyles had earning power based on one of the jobs the vocational specialist found, the law required-or at least the Commonwealth Court considered the law to require-that his benefits be modified based on that earning power. It would not have been a problem had his two jobs been paying him more, but they were not. The Judge made a mistake in this decision by finding that the LMS was credible as to the claimant’s earning power, particularly where the Judge did not want Mr. Boyles benefits modified any further than his actual wages would allow.

Cases such as this, where employees have returned to work, will need to be carefully presented, particularly if the LMS shows jobs of greater wages than the injured worker has actually found. Arguments will have to be made about why those jobs are not appropriate. Also, it is essential to this argument that the claimant find his jobs before the LMS is issued. If not, the employer/carrier will have the argument that the injured worker did not act "in good faith" in trying to find work that was close in wage rate to the jobs found by the vocational specialist.

This case seems to be wrong because an individual’s earning power should be what he/she is actually making. However, earning power is a concept of what "could" be, not necessarily what "is." This case should persuade injured workers that modification of benefits based on these surveys does happen, and a half-hearted attempt to work to stop such a modification will not be persuasive to a Judge. In this case, the employee made a heartfelt effort to do all that he could to work, and was in fact working two jobs, and still had his benefits modified based on the LMS, not his actual wages.

Reinstatement of Benefits After Termination from Subsequent Employer

Is an Injured Employee Entitled to Reinstatement of Benefits If Terminated From A Subsequent Employer for Reasons That Do Not Appear to be Related to the Work Injury?

Facts: In Shop Vac Corporation v. WCAB (Thomas), the claimant suffered a neck injury while working at Shop Vac. Prior to that injury, she had worked at White Deer, a drug and alcohol rehabilitation center. She returned to work at full duty with Shop Vac and continued at White Deer. Ms. Thomas was terminated by Shop Vac for excessive absenteeism, which she testified resulted from her work injury due to pain and medical treatment. A company representative testified about the absenteeism policy and how it was applied at Shop Vac. However, the last instance, for which the firing took place, was not related to her work injury. She then assumed full time employment at White Deer. Almost a year later, she was terminated by White Deer following verbal confrontations with a fellow employee and a patient. As a result, she filed a Reinstatement Petition, alleging that she had a decrease in her earning power as a result of the loss of this job, and requested that her benefits be reinstated. She also requested some other remedies, including the revision of the description of her injury to include a herniated cervical disc.

Initial Ruling: The Workers’ Compensation Judge amended the description of injury based on the agreement of the parties to include a herniated disc and further modified the average weekly wage, as requested, to include the concurrent earnings at White Deer which Ms. Thomas had enjoyed before her injury. He granted the Reinstatement Petition, finding first that Ms. Thomas’ poor work performance for which she had been terminated by Shop Vac was "mostly the result of difficulties arising from her work-related injury." The Judge also found that Ms. Thomas’ termination by Shop Vac was not a result of "bad faith conduct" and reinstated partial disability benefits, although not total disability benefits. Both parties appealed.

Appeal Board Ruling: The Board affirmed the Judge’s decision in all particulars. Only the Employer appealed to Commonwealth Court, continuing the challenge to the reinstatement of benefits and award of ongoing partial disability benefits.

Court Rationale: The Commonwealth Court affirmed the decision to reinstate Ms. Thomas’ benefits on the basis that the claimant had proven that her work injury was the cause of her decreased earning power. The employee’s burden under these conditions is that she is again suffering a wage loss "through no fault of her own." The employer argued that it had a written absenteeism policy and that absences had to be documented; therefore, regardless of whether Ms. Thomas’ absences related to her work injury, she was terminated for failure to adhere to the policy of documenting her absences. The Court explained that the standards involved in workers’ compensation cases are not the same "willful misconduct" standards that are utilized in unemployment compensation. However, the Court did note that, if the employer can prove willful misconduct, then it has presented sufficient evidence to preclude a reinstatement of an injured worker’s benefits. The Court noted that "bad faith is not established when an employee attempts to perform her job duties but is unable to satisfactorily perform them due to her work injury." Where, as in this case, the employee shows up and works "if she could," that is not going to be sufficient to show bad faith. In this case, where there was an absenteeism policy, the employer must present "conclusive evidence" that the employee violated that policy to rebut Ms. Thomas’ contention that her wage loss was "through no fault of her own."

The Court was quick to point out that excessive absenteeism, in and of itself, can be willful misconduct. However, here, because Ms. Thomas had used all of her sick days, any absence after that would be unexcused, and she was terminated for those unexcused absences. When looking at the employer’s testimony to determine whether the Judge had properly found Ms. Thomas had not engaged in willful misconduct, the Court held that the testimony presented by the employer "did not exclude the policy that at least some of the unexcused absences that led to her termination" were the result of her calling off due to her work injury when she had no sick time left. Where the Judge credited Ms. Thomas’ testimony as to the reasons for her calling off, that was sufficient for an award of benefits.

Discussion: This case shows that all is not lost if an individual is terminated by the time of injury employer for absences upon a return to work if there can be verification that the absences are related to the work injury. Many employers have different sick/absence policies when the call-offs are due to a workers’ compensation injury, but some employers treat all absences the same across the board, so an individual missing time for work-related injuries could put his/her job at jeopardy. The important thing is to do everything possible to verify and support the reason for the absence. The Judge here believed the injured worker, and so benefits were reinstated. However, it is not always the case that the Judge will have that "tendency." When an injured employee returns to work and needs to miss work from time to time due to work-related complaints, the worker should document things as much as possible with off work slips, doctor’s excuses and other verification, made contemporaneously with the absence, which supports the work-related reasons for the time off. What is important to note here was that Ms. Thomas’ benefits were reinstated, at least in part, after she was terminated by a subsequent employer, NOT the time of injury employer. Under any complicated factual circumstances such as these, it is essential that the injured worker discuss all the factors with counsel who is well-versed in workers’ compensation law, because someone without such background may have failed to note that benefits could be reinstated against the original, time of injury employer.

Upcoming Seminars

Workers' Compensation:

What When Where
USW Seminar October 5, 2007 8:30am - 3:00pm Tonidale Restaurant- Route 22
Oakdale, PA
UAW Seminar October 15, 2007 4:00pm - 5:00pm American Legion
Corry
USW Linden Hall October 30, 2007 9:00am - 12:00pm 432 Linden Hall Road
Dawson, PA 15428

Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.

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Representing the working men and women of Pennsylvania since 1981