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.

 

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.

Impairment Rating Evaluations (Insurance Company Cutting Your Benefits)

Even if you win your case, Workers’ Compensation Benefits are not a lifetime guarantee. The insurance company may try to limit your benefits with the Impairment Rating Evaluation (IRE). An IRE is a physical examination. A doctor determines your level of disability on a scale from 0 to 100. After receiving 104 weeks of benefits, the law requires an injured worker to submit to an IRE.

A doctor will examine you under the guidelines of the latest edition of the American Medical Association’s Guidelines for Permanent Impairment. The doctor must be licensed in Pennsylvania; in active practice at least 20 hours per week; and approved by the Licensing Board. While you can only be required to submit to two IRE’s in a 12 month period, there is no requirement that your condition change prior to an exam. The insurance company can use the exam to see if your condition has changed.

If the doctor finds that the worker’s impairment is over 50%, the worker will continue to receive total disability benefits, but if the doctor finds the impairment is less than 50%, the worker’s status will change from total disability to partial disability. Partial disability means your benefits will be limited to 500 weeks, as opposed to possible lifetime benefits for total disability.

One defense to an unfavorable IRE is that the injured worker was not at maximum medical improvement (MMI) at the time of the IRE. MMI means that the injury/impairment is permanent, stabilized, and unlikely to change in the next year. If surgery or some form of treatment within a year might help the worker, then the worker is not at MMI.

As with most aspects of Workers’ Compensation claims, an Insurance Company may use an IRE to limit your benefits. The best way to protect yourself is to call an attorney.

Abes Baumann Attorney Argues to Commonwealth Court

Recently, the law firm of Abes Baumann participated in an en banc argument before the Commonwealth Court involving a challenge to the constitutionality of a portion of the Pennsylvania Workers’ Compensation Act. In the case of Protz vs. WCAB, Tom Baumann argued that the use of the American Medical Association Guides to the Evaluation of Permanent Impairment to determine whether or not an injured worker converts from total disability to partial disability of Workers’ Compensation benefits constituted an unconstitutional delegation of authority by the Pennsylvania State Legislature.

If an injured worker received 104 weeks of total disability benefits, the employer/insurance carrier can compel the injured worker to submit to a rating examination. The injured workers’ whole body impairment is evaluated under the AMA Guides. If the whole body impairment comes out as less than 50%, compensation can be converted from total disability to partial disability merely by sending a form to the Claimant if the examination is requested within a certain time frame. The AMA Guidelines change over time, being reissued approximately every seven (7) years. When the State Legislature amended the Workers’ Compensation Act in 1996 to mandate use of the Guides, the 4th Edition of the Guides was in effect. The language of the law stated that when an examination is performed, it shall be done under the most recent version of the Guides. Commonwealth Court has interpreted that to mean that the examining physician should use the Guides that are in effect at the time of the evaluation not at the time the law was originally passed. Since the Guides change without any input from anyone affected by the Guides, including injured workers and employers and insurance companies, Abes Baumann argued that this was unconstitutional as the legislature could not adopt the future work product of the AMA sight unseen.

The Commonwealth Court has taken significant interest in the argument as it scheduled an en banc argument meaning 7 of the 13 Judges sitting on the Court participated in oral argument. No matter what happens, the issue is likely to end up at the Pennsylvania Supreme Court. Interested readers may watch the video of the oral argument here.

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