The Consequences
of Post-Injury Layoffs Depend on the Job Claimant was Performing
This claimant suffered a work injury, received medical treatment, and his
treating physician placed restrictions on his physical activity. The claimant was nevertheless able to work
at his pre-injury job until he was laid off.
Although the claimant was awarded wc medical benefits, the Judge denied
claimant’s wc wage benefits. The Commonwealth Court agreed, as a claimant must
prove that an injury renders him incapable of performing his time of injury
job. This claimant’s own testimony
established that he continued working at his time of injury job until the date
of the lay-off. Accordingly, he failed
to meet his burden.
The Court distinguished this case from one in which an injured claimant
continues to work, but in a modified duty position. In that case, a loss of earning capacity is established and the claimant
is entitled to the presumption that his disability/wage loss is related to the
work injury.
Further, although this claimant was subject to medical restrictions prior
to the lay-off, medical restrictions are only relevant if they require a
modification of claimant’s job duties.
Here they did not, and the claimant worked his regular job.
Accordingly, as the claimant failed to prove that his physical
restrictions, rather than the lay-off, caused his wage loss, the denial of wage
loss benefits was upheld.
Klarich v. WCAB (Rac’s Association) 2002 WL 32063781 (Pa. Cmwlth. 2003)
Signed
Agreement Set Aside in WC
Employers at times secure a wc claimant’s signature on a Final Receipt or
Supplemental Agreement at the same time the claimant is given his last wc wage
benefit check. This case illustrates
the danger of that practice.
The employer here coerced the claimant into signing a Final Receipt in
exchange for his compensation benefit check.
Claimant was not fully recovered when he signed the Final Receipt. In fact, claimant’s foot ultimately had to
be partially amputated, and more than three years after signing the Final
Receipt, he filed a Reinstatement Petition.
The statute of limitations for Final Receipts is normally three
years. Before the three-year limit has
elapsed, a Final Receipt will be set aside if claimant was not fully recovered
when it was signed. The Final Receipt
may be set aside after the three year mark, however, if there was
also improper conduct by the Employer, such as fraud or deception.
This Employer’s coercing claimant to sign a Final Receipt in order to
receive his check was deemed such improper conduct. Accordingly, the Final Receipt here was set aside and benefits
were reinstated.
Johnson v. WCAB (Abington Memorial Hospital) 2002 WL 31996176 (Pa. Cmwlth. 2003)
Compromise
of WC Lien Scuttles Supersedeas Fund Reimbursement
Courts have long held that a wc employer’s compromise of its lien over a
claimant’s third party action recovery (“Lien”) will preclude that employer
from then seeking supersedeas fund reimbursement (“SFR”) on a successfully
litigated wc petition. A recent case, Optimax[1],
held that a wc employer’s settlement of a wc petition itself will not
necessarily preclude the employer from SFR.
The Decision of the court was based on the strong public
policy of minimizing needless litigation and favoring settlement of disputes.
Here, the employer tried to apply the Optimax reasoning to the
settlement of its Lien. The
Commonwealth Court did not allow the employer to accept less than it was owed
on its Lien and then recoup the rest from the Supersedeas Fund. It held that an insurer/employer must seek
subrogation for the full amount of the Lien.
If “[an employer] voluntarily chooses to compromise the lien amount it
is entitled to receive by way of statutory subrogation, it cannot then recoup
the compromised amount through the Fund.”
Pep Boys, Inc. v. WCAB (Young), 2003 WL 1039032 (Pa. Cmwlth. 2003).
NCP Required Even on
“Medical Only” WC Claims
The Employer here argued that the Act does
not require the filing of a Notice of Denial (“Denial”) or a Notice of
Compensation Payable (“NCP”) in “medical only” cases – where the claimant has
no disability/wage loss. The
Commonwealth Court noted that this issue had been decided in the Lemansky
case, which held that an Employer has an affirmative obligation to accept or
deny any injury as work-related within 21 days of receiving notice of the alleged
injury, regardless of whether there is alleged disability/wage loss.
The price of the employer’s non-compliance
here was an award of claimant’s attorney’s fees against the employer for
unreasonable contest. The Court found
that the employer knew the claimant’s injury was work related, and it’s failure
to issue a “medical only” NCP forced the claimant to hire an attorney and file
a Petition to have the injury accepted legally as work-related. Accordingly, it was appropriate to have the
employer pay for the claimant’s attorney’s fees. It is yet to be seen whether courts in the future will also impose
the more substantial penalty of 50% of the benefits awarded for an employer’s
failure to issue an NCP on a medical only claim.
Waldameer Park, Inc. v. WCAB (Morrison) 2002 WL 32060425
(Pa. Cmwlth. 2003)
Delayed
Investigation of Coverage Issue Precludes WC Carrier from Later Challenging Same
The State Workers’ Compensation Insurance Fund (“SWIF”) litigated a wc
claim for 18 months, during which time SWIF’s defense counsel stated on the
record that SWIF was the wc carrier for the employer. Testimony later revealed that SWIF was not in fact the carrier
for the wc employer who had employed the claimant.
Despite that evidence, the Judge held SWIF liable, finding that SWIF was
estopped from denying coverage, because of its representations as the
responsible carrier and the prejudice that
the delay would have on the claimant.
The Commonwealth Court on appeal upheld the Judge’s determination, because
SWIF litigated the case actively for 18 months, while holding itself out as the
responsible insurer. This was held to be an admission against SWIF, precluding
it from litigating the issue of coverage.
Overhead Door Company of Lewistown, Inc. v. WCAB (Gill) 2003 WL 1391543 (Pa. Cmwlth. 2003)
Medical
Expert’s Opinion Restricted to the Date of the Examination
The IME physician here examined claimant on February 3 and opined that claimant
could return to light duty immediately, and that claimant would be fully
recovered as of February 21, at which time he could resume his regular
duties. Based on this conclusion,
Employer filed a Termination Petition.
The Commonwealth Court held that such medical testimony is speculative,
because the “’expectations’ [of the employer's medical expert] are based on an
assumed course of events of which he could have no knowledge.”
The Court implied that the result might have been different if the expert
had testified that claimant was able to return to work as of the date of the
examination, and that any delay in returning to full duty was solely for the
claimant to take some time to re-acclimate himself to working.
Careers Express and State Workers’ Ins. Fund v. WCAB (Goodman) 2003 WL 1614712 (Pa. Cmwlth. 2003)