To Apply or Not Apply? Recent Developments in Labor Market Surveys

By: Douglas A. Williams

In Pennsylvania, when an injured worker receives workers’ compensation benefits, the insurance carrier may require the injured worker to meet with a vocational “expert.” After the meeting, the vocational expert will prepare a “labor market survey.” The insurance carrier may then use that document to try to reduce or stop the injured worker’s benefits.

A recent decision by the Pennsylvania Commonwealth Court, Smith v. WCAB (Supervalu Holdings Pa, LLC), A.3d, No. 796 C. D. 2016 (Pa. Cmwlth. 2018), addressed the parties’ rights and obligations when an insurance company files a petition based on a labor market survey. In that case, the Commonwealth Court held that “a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as the claimant (injured worker) is afforded a reasonable opportunity to apply for them.” Furthermore, the Court held that the employer, and not the injured worker, bears the burden of proving all elements of the modification petition, including whether or not jobs remain available for a reasonable time after being identified by a vocational expert. Nonetheless, the Court further concluded that, “if a claimant offers evidence about his or her experience in pursuing the jobs identified in the labor market survey, that evidence can be considered on the issue.”

Furthermore, the Court explained that evidence that the injured worker submitted an application – regardless of whether such evidence is submitted by the injured worker or the employer – does not establish that a prospective job was open and available at the time that the injured worker applied. However, the Court also held, “testimony of an in person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding (that a job was open and available).” Applying that rule of law to the Smith case, the Court concluded that the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) had mistakenly held that it was the injured worker’s burden to prove that all five jobs identified in the labor market survey were not open. Likewise, the Court held that the WCJ erred in concluding that the three jobs for which the injured worker had applied, but had not been interviewed, were open and available. No evidence existed to support that conclusion. However, the Court further determined that the WCJ had properly determined that the positions with AM Guard Security – for which the injured worker had applied and been interviewed– were properly utilized by the WCJ to modify the injured worker’s benefits. The Court stated that the fact that the employee had been interviewed supported the conclusion that the jobs were open and available. Thus, it was proper to modify the injured worker’s benefits based on an earning capacity calculated on the two, AM Guard Security jobs.

Prior to Smith, most attorneys who represent injured workers would advise their clients to promptly apply for all jobs identified in a Labor Market Survey. This may still be the best course of action, but doing so may now incur additional risk. If an injured worker applies for a job and is interviewed for that job, but is not hired, the mere fact of his interview can be used to satisfy the employer’s burden of proof. Without such evidence, the employer might not have been able to satisfy its burden of proof. To receive advice on the best course of action in your case, feel free to contact our firm.

 

First Post Protz IRE Decision is Helpful

By: Thomas C. Baumann

The Commonwealth Court had offered its first interpretation of Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II) in Thompson v. WCAB (Exelon Corporation) No. 1227 C.D. 2016. This decision is helpful to individuals representing claimants.

Debra Thompson underwent an Impairment Rating Evaluation in October of 2005. The examining physician found an impairment rating of 23%. Thompson then received a Notice of Change of Workers’ Compensation Disability Status changing her compensation from total disability to partial.

Litigation commenced between the parties in 2010 with the filing of a Modification and Suspension Petition by Employer. In 2011, the Claimant filed a Review Petition seeking to review the IRE determination because she had not reached maximum medical improvement. The Judge consolidated the petitions and found that the employer was entitled to modify the Claimant’s benefits from total disability to partial disability. However, the Judge changed the effective date of the Modification Petition to a later date than that noted in the Notice of Change of Status.

Both sides appealed to the Workers’ Compensation Appeal Board. The Appeal Board addressed only the issue of whether the claimant was time-barred from challenging her disability status. The Board felt that she was time-barred, as she had not filed her appeal within the 60 day period following her receipt of the Notice of Change of Status.

Claimant appealed to the Commonwealth Court, but did not raise any of the constitutional issues associated with the Protz decision. Instead, one of the main issues was whether or not the Claimant was deprived of due process through the use of the Notice of Change of Status. In Thompson I, the court held that the Claimant was deprived of her due process right due to the inadequacy of the language in the Notice of Change of Status. The Commonwealth Court remanded to the Appeal Board at that point. In a decision dated July 18, 2016, the Appeal Board determined that an automatic modification of the Claimant’s benefits under Section 306 (a.2) of the Workers’ Compensation Act was appropriate and ordered the benefits to be modified from total to partial disability, effective August 30, 2005. The Claimant had received severance benefits after the cessation of employment in lieu of workers’ compensation benefits. The appeal board determined that this period of benefits did not count toward the receipt of total disability. Therefore, the employer’s requests for an Impairment Rating Examination was timely.

The Claimant then appealed to the Commonwealth Court. For the first time, she raised the issue of whether the Workers’ Compensation Judge erred in modifying the claimant’s benefits based on that IRE performed under the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment. At the time of filing the appeal to the Commonwealth Court in Thompson II, Protz I had been decided by the Commonwealth Court. The Employer did not argue that the use of the Fifth Edition of the guides was not unconstitutional. It argued that Thompson failed to timely raise the constitutional issue. In other words, this is the waiver issue put forth by the defense bar. Footnote Four of the decision is confusing, yet instructive. It notes there, “Because this matter began before Protz I and Protz II were decided and this appeal implicates the validity of Section 306 (a.2)(1) of the Act, Claimant raised this issue at the first opportunity to do so. See Pa. R.A.P. 1551(a). Thus, Claimant is not precluded from raising the issue of the improper use of the Fifth Edition of the AMA guides on appeal.”

This decision potentially represents a mortal blow to the waiver issues being raised and/or contemplated by the defense bar. While the reasoning of the court is not especially developed in the above-mentioned language, this is a case all practitioners must use in dealing with the Protz case and waiver issues.

A Workers’ Late Notice of the Employer’s Uninsured Status Limits Both Medical and Wage Loss Benefits

By: Sandra Weigel Kokal

In a recent Commonwealth Court Case, the Court held that if an injured worker fails to notify the Uninsured Employers Guaranty Fund (Fund) within 45 days after the injured worker knows that the employer does not have workerscompensation insurance, the Fund is NOT obligated to provide compensationfrom the date of the injury, but rather from the date the Fund received notice of the claim. The Court stated that compensationincludes both wage loss benefits and medical benefits.

In this recent case, the WorkersCompensation Judge (WCJ) had granted the injured workers Claim Petition against the Fund for both wage loss and medical benefits from the date of the worker’s injury. The employer appealed the WCJs decision to the WorkersCompensation Appeal Board (WCAB). The WCAB agreed with the WCJs decision to grant medical benefits from the time of the workers injury, but it limited the workers receipt of wage loss benefits to the date that the worker had notified the Fund of the employers lack of workerscompensation insurance.

The Commonwealth Court reversed both the WCJ and WCAB decisions. The Commonwealth Court stated, in accordance with a recent PA Supreme Court decision, because the injured worker did not give notice pursuant to the WorkersCompensation Act within 45 days after he knew the employer was uninsured, he could only receive workerscompensation benefits for wage loss AND medical expenses incurred after the date notice was given to the Fund. In other words, because the workers notification to the Fund was late, the Fund was NOT required to pay for medical or wage loss benefits prior to receiving formal notice of the claim.

As this case demonstrates, you should consult with an experienced workers’ compensation attorney so you do not miss any important notice requirements and forfeit your workerscompensation benefits.

Who Decides if a Doctor is Lying?

By: Thomas C. Baumann

Recently, Abes Baumann argued a case before the Pennsylvania Supreme Court regarding credibility determinations for physicians who perform Impairment Rating Evaluations. In the case of Rhodes vs.WCAB, Tom Baumann argued that the Workers’ Compensation Judge was correct in refusing to convert the claimant’s disability benefits from total disability to partial disability. Under the Worker’s Compensation act, an employer or insurance company can require an injured worker to undergo an impairment rating evaluation after receiving 104 weeks of total disability benefits. If the examination is requested within 60 days of the receipt of 104 weeks of benefits, the claimant’s compensation automatically converts from total disability benefits to partial disability benefits if the impairment rating evaluation finds a whole body impairment of less than 50%. If the examination is not requested within that timeframe, the insurance carrier has to litigate the conversion from total disability to partial disability. This means that the physician who performs the rating exam is subject to cross-examination and can be disbelieved by the workers compensation judge.

In the Rhodes case, the Workers Compensation Judge did not believe the IRE physician. The judge refused to convert disability from total to partial, which would have limited how much longer the claimant could receive benefits. The carrier appealed to the Worker’s Compensation Appeal Board which upheld the Judge’s decision that the doctor was not credible. The carrier appealed to the Commonwealth Court which reversed the judge and the Board. The Commonwealth Court found that there was not sufficient evidence of record to allow the Workers Compensation Judge to disbelieve the IRE physician.

The Supreme Court accepted the appeal. There, the claimant argued that the burden of proof and burden of persuasion was held by the insurance company. He argued that the Workers Compensation Judge properly exercised her discretion in finding that she was not persuaded by the IRE physician. Both sides have filed briefs, and a decision will be rendered by the Court sometime later this year.

 

Impairment Rating Evaluations (Will Supreme Court Rule on their Fairness)

By: Thomas C. Baumann

As noted in my last blog entry, many injured workers in Pennsylvania receiving Worker’s Compensation benefits are obligated to undergo an impairment rating evaluation after they have received 104 weeks of total disability benefits. When the Pennsylvania state legislature passed the changes to the Worker’s Compensation act (in 1996), it required such evaluations to be done under the “most recent” version of the AMA Guides to the Evaluation of Permanent Impairment. Recently, Abes Baumann attorneys have attacked the constitutionality of the use of the AMA Guides in a case known as Protz v. WCAB. Abes Baumann argued that the use of the Guides constituted an unconstitutional delegation of authority by the state legislature to the American Medical Association. In Protz the Commonwealth Court determined (in a four – three decision) that the use of the fifth and sixth editions of the Guides for impairment rating evaluations was not constitutional. The court concluded that ratings could still be done using the fourth edition of the AMA Guides, which was in effect at the time the Worker’s Compensation act was amended in 1996.

Both Abes Baumann and the attorneys for the employer in the Protz case have requested that the Pennsylvania Supreme Court accept an appeal on the issues in the case. The Pennsylvania Supreme Court is not a court which must accept any and all appeals. It determines itself which cases to accept and not to accept.

The Abes Baumann firm maintains that use of the AMA guides in any manner is not constitutional. If this were to be upheld by the Supreme Court, many injured workers in the state of Pennsylvania would benefit from such a decision. The parties are not likely to hear from the Supreme Court as to whether it will accept the appeal until late winter.

Abnormal Working Conditions

In a recent Commonwealth Court case (PA Liquor Control Board v. WCAB (Kochanowicz), the Commonwealth Court held that experiencing an armed robbery while working in a liquor store was not a normal working condition, and the Claimant is entitled to workers’ compensation benefits for post traumatic stress disorder (PTSD). 

In this case, the Claimant had worked for the Employer for over 30 years.  He was the general manager in the Employer’s retail liquor store.  Near closing time at the store, a masked gunman held Claimant and a clerk at gunpoint while he took the store’s money.  When Claimant showed anxiety, the gunman prodded Claimant with the gun to his head and asked Claimant if he was impatient.  The gunman then duct taped the Claimant and clerk to chairs, warning them not to call police for at least 20 minutes as he might return. 

After this incident, Claimant was unable to return to work.  Claimant testified that he continued to fear for his life and feared that another robbery would occur.   Medical evidence confirmed that Claimant was suffering from PTSD. 

Employer had argued that an armed robbery in a liquor store was not an abnormal working condition as they had provided training on workplace violence, including pamphlets and educational tools on the handling of a robbery.  Employer also argued that there had been other armed robberies in nearby stores in the area.  Originally, the Commonwealth Court agreed and stated that Claimant could have anticipated being robbed at gunpoint, so this was a normal working condition for his retail liquor store employment.  Claimant appealed to the Supreme Court.  The Supreme Court remanded back to the Commonwealth Court finding that mental injury cases are highly fact sensitive; therefore, the Court should give deference to the fact finding of the Workers’ Compensation Judge.   

The Workers’ Compensation Judge in this case had found that robbery at gunpoint is an abnormal working condition.  He stated that the fact that Employer acknowledges that workplace violence occurs does not place workplace violence into the realm of a normal working condition.  A gun being held to the back of the head is neither a normal societal occurrence, nor a normal working condition.  The Judge also found that, in 30 years of employment there, Claimant had never a gun pointed to his head.  Therefore, Claimant had shown that the specific armed robbery here was not a normal working condition.  Claimant was properly granted his workers’ compensation benefits.

No two cases are the same. To protect your rights, contact an Abes Baumann, P.C. Attorney today.

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