March 2005 Email Newsletter
The BSH Email Newsletter
What is a "SPECIFIC LOSS" anyway?
Terminated Employees and Workers' Compensation Benefits
Workers' Compensation Terms
A "Bad Choice" in Workers' Compensation
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.
If you have any specific topics or questions that you would like us to address in our newsletter, please email us at bsh@bshlaw.net or call us at the above listed number. Our goal is to be your resource for questions about workers' compensation and disability, so please contact us at any time.
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Since 1981, Blaufeld Schiller & Holmes, LLP has represented the working men and women of western and central Pennsylvania. We are passionate about our work, and value our friends and clients. We hope you find this newsletter helpful. We look forward to working with you!
What is a "SPECIFIC LOSS" anyway?
Specific losses are permanent injuries to a specific part of an employee's body. The injuries often do not result in any period of "disability" as Pennsylvania defines that term. In other words, the injured worker does not miss any time from work or have a wage loss as a result of the injury. How are injuries like this, called "specific losses," compensated?
The Workers' Compensation Act provides for compensation for a loss of, or loss of use of, a particular member according to a chart that indicates the amount of compensation payable for the loss of any specific part of the employee's body. For example, the loss of a thumb results in payment of 100 weeks of benefits at that injured worker's compensation rate, which is based on the employee's average weekly wage at the date of injury. The worker who loses his/her thumb is entitled to 100 weeks of benefits for that loss, even if they are not off work for 100 weeks. However, any disability benefits they received for that injury, that is, any compensation they were paid for actually being off work, is deducted from that specific loss award. For example, if a grocery store employee cuts off his first, or "pointer" finger, compensation is paid for 56 weeks, plus a 6 week healing period. If he is disabled for twelve weeks as a result of that injury, he will not be entitled to a lump sum payment for the entire compensable period of loss and the healing period; rather, he will be entitled to a specific loss payment of 62 weeks minus the twelve weeks of disability paid, for a total payment of fifty weeks of benefits.
Please note that an individual does not have to actually lose the extremity for compensation to be paid. For example, an individual's work-related leg injury can be so severe that the leg does not bend at the knee joint, and he or she may drag the leg behind when walking. If a doctor will provide an opinion that this individual has "lost the use of the leg for all practical intents and purposes," that individual may be entitled to payment for that specific loss even if the worker continues at regular duty. Payment for loss of a leg-or in this example, loss of use of a leg--is 410 weeks of benefits at the total disability rate.
Employers and insurance carriers do not always accept that an individual's injury has resolved into a loss of use, and if a specific loss petition is filed, may fight that petition with medical evidence. The amputation questions are, of course, easier-if the thumb is missing, it is lost. However, the loss of use questions are more difficult, because one doctor may provide the opinion that an individual has lost the use of a finger, where another will disagree, testifying that the individual is still able to do many of the things nature intended with that finger. The Commonwealth Court has held that it is insufficient to show a loss of use if a person can only do 50 percent of the things with the injured finger that someone with a non-injured finger could do. The Judge is the ultimate fact-finder as to whether an individual has sustained a specific loss if the insurance carrier and injured worker cannot agree.
Hearing loss, loss of sight, and scars are also specific losses. With respect to hearing loss, a doctor must provide the opinion that the hearing loss is due to noise exposure at work. Also, the hearing loss must be greater than ten (10%) percent when calculated according to a particular formula. Scars must be permanent and disfiguring, and located on the head, neck (including the back of the neck) or face of the claimant. Compensation is also available for surgical scars on the face or neck if the surgery was work related. Again, these types of injuries are compensable even if the individual does not miss any time from work.
Specific loss is unlike total or partial disability in one other significant respect. If the claimant has suffered the loss of, or loss of the use of, any of the enumerated parts of the body, and the claimant dies prior to receiving the benefits, the claim survives the claimant so long as there is a dependent spouse or child. Therefore, the claimant's dependents can receive the total amount of these benefits even if the claimant does not survive. Total and partial disability benefits are payable only until the death of the claimant. However, if an employee is receiving benefits for a specific loss and dies before all those benefits are paid, the benefits continue for the term of the specific loss to the employee's dependents.
If an individual sustains an injury but is fortunate enough to return to work thereafter, a specific loss may work to an injured employee's benefit. The injured or amputated body part will never be replaced, but the worker can be compensated for that loss. If an injured worker suffers such a loss, it is essential to talk to an attorney right away in order to maximize potential benefits and avoid pitfalls.
Terminated Employees and Workers' Compensation Benefits
Generally, one of the first questions an injured worker asks when returning to work, particularly at a modified job, is "what happens if I get fired?" While to some this must seem like extreme paranoia, it is not unusual for an employer to return an individual to work only to find "problems" with that individual's performance and terminate the employment. The question then becomes, is the terminated individual entitled to reinstatement of their total disability workers' compensation benefits?
If the injured employee returns to a light duty position and is discharged for conduct that occurred before the work-related injury, and before the payment of workers' compensation benefits, then that employee's wage loss is considered to result from the work injury, and benefits should be reinstated. In reaching this decision, the Commonwealth Court held that allowing an employer/insurer to refuse benefits under this situation "would create too much potential for abuse." In the case in which this decision was made, the employee who worked for UPS broke the company's work rules before the work injury, and the violation was known when it occurred. However, the employer did not raise the issue of misconduct at any time until after the employee had been paid workers' compensation benefits, and returned to work at light duty. In this case, total disability benefits were reinstated. However, an employer's termination of an individual might be upheld and benefits not reinstated if, for example, the employer can show that its carrier paid benefits while the injured employee's conduct was being reviewed to determine if the offense was worthy of termination.
Under other circumstances, an individual's termination from employment will not result in a resumption of total disability benefits, even if that injured employee is terminated from modified duty work. In those cases, where the misconduct that results in termination arises after the return to modified duty work, courts have held that the wage loss is not, in fact, due to the injury, but due to the conduct of the injured employee. Therefore, total benefits are not payable, but the employee is entitled to continue receiving the partial disability benefit they were receiving at the time of the discharge. Individuals who are discharged for willful misconduct or are discharged for some other reason and are not reinstated through union grievance and/or arbitration proceedings will not be entitled to total disability benefits in most, if not all, cases. There are some cases where we may be able to show that the termination resulted from "trumped up" charges created by the employer to get rid of the injured worker. However, these cases are difficult to prove and fact specific. There are also cases where an individual is terminated for not meeting a quota. If the quota is not able to be met due to some limitation caused by the work injury, then reinstatement is a possibility.
Please note that an individual fired for willful misconduct is not necessarily limited to partial, or prohibited from reinstating benefits, forever. If a worker can show that his/her condition deteriorates to the point that they are totally disabled again, benefits can be reinstated. Additionally, if that employee can show that the work injury results in a need for greater restrictions on the ability to work, then that employee may be entitled to a reinstatement of total disability benefits. This is important to remember because many injured employees who continue to treat after termination from employment never ask the treating provider for on-going restrictions and limitations if they are currently out of work. These individuals might be entitled to resume total disability benefits if the medical provider can outline how the employee's medical condition has deteriorated following the termination. It is important to remember that this worsening of condition must be due only to the work injury, not a subsequent injury, or the individual's making the condition worse in other employment or at home.
Termination from employment after a work injury may not necessarily mean that workers' compensation benefits are out of the picture. There are circumstances under which termination will not operate as a bar to benefits. It is essential for any injured employee who is terminated from post-injury employment to discuss the availability of workers' compensation benefits with an attorney who is well-acquainted with the law in this area.
Workers' Compensation Terms
Those of us who work within the workers' compensation system sometimes use terminology that has a specific meaning in workers' compensation, based on the law itself, or the cases that interpret the law. From time to time in this newsletter, we will review some of these terms and what they mean. This month, we write with respect to some of the words and phrases that come up in the medical evaluation context.
When an employee is receiving workers' compensation, or the compensation claim is being evaluated but has not yet been accepted, that injured employee is often scheduled by the insurance carrier for an IME. Those three letters supposedly stand for INDEPENDENT MEDICAL EXAMINATION. However, since the insurance carrier is scheduling and paying for the evaluations, we often refer to this exam as an INSURANCE MEDICAL EVALUATION, as it is not really what we would consider to be "independent." The insurance carrier can request these examinations two times per year, and they can be with the same or with different physicians. The insurance carrier pays the cost of the evaluation with the physician, and any mileage and parking charges that the employee incurs with respect to this evaluation.
There is also another type of examination contained in the Act following the changes made in 1996. That evaluation must be requested within 60 days of the date an individual has received 104 weeks of total benefits and is termed an IRE, which means IMPAIRMENT RATING EVALUATION. This examination is to be performed only by a physician who is specified on a list of doctors approved by the Commonwealth for such evaluations, or who is agreed to by the parties. The Guide to the Evaluation of Permanent Impairment published by the American Medical Association takes specific injuries, such as a knee or shoulder injury, and based on the results of testing performed (range of motion, findings on diagnostic testing and the like) assigns a percentage of impairment. This rating is first an evaluation of the percentage of impairment of that body part, then is translated to WHOLE PERSON IMPAIRMENT. That second percentage is the one that the insurance carrier and Bureau consider as to whether the individual is considered to be totally or partially disabled within the meaning of the Act.
This second evaluation is only to be held when an individual has reached MAXIMUM MEDICAL IMPROVEMENT, also known in medical terminology as MMI. This means that, at least in theory and on the basis of the advances in medical treatment to date, there is no additional improvement in that individual's condition expected. This does not necessarily mean that an individual does not require continued treatment, such as time to time visits with a monitoring physician, additional medications for pain, or a trip to the chiropractor on a limited basis. What it means is that there is no surgery or other treatment that is expected to improve that individual's condition to the point that the injured employee will gain additional function, or be able to return to a higher level of employability.
Some insurance carriers consider treatment at that point, that is, where it is not expected to restore function or return an individual to greater employability, to be PALLIATIVE in nature, meaning that it is easing symptoms, but not necessarily treating, healing or repairing an underlying physical deformity. It is important to know, however, for individuals who receive such care, that the Workers' Compensation Act and cases construing that Act, consider such treatment, primarily to address pain, to be REASONABLE AND NECESSARY TREATMENT. This is particularly so if the injured employee receiving this treatment remains working at modified or full duty. Reasonableness and necessity certainly have different meanings in workers' compensation, as there are treatments which might seem appropriate to regular folks that the insurance carrier would not consider "reasonable and necessary." Insurance carriers can request a review of this treatment through UTILIZATION REVIEW, a specific procedure under the Act where a third party organization designated by the Bureau reviews the specified treatment. This review is accomplished by the Organization's requesting the provider's records, and perhaps having a conversation with that provider. The affected employee can also submit a statement about the treatment and how that treatment assists him or her in achieving function in work activities or the activities of daily living, and how detrimental it would be to have the treatment denied.
Many reviewing organizations or insurance carriers believe that an individual has received MAXIMUM MEDICAL BENEFIT from a certain treatment after a set number of sessions, and to consider that person to have achieved MMI at that time. For example, some guidelines set out that 15 physical therapy sessions are all an individual needs for a back injury that does not involve a herniated disc. Three epidural injections may be the limit some workers' compensation carriers consider appropriate for payment to be made before questioning the continued use of this treatment. It seems that MMI and MAXIMUM MEDICAL BENEFIT are used somewhat interchangeably, although a person could have received MAXIMUM MEDICAL BENEFIT from a certain type of treatment but not have reached the level of MAXIMUM MEDICAL IMPROVEMENT.
A "Bad Choice" in Workers' Compensation
Is an Injured Employee Entitled to Reinstatement of Benefits when the Judge found He Chose not to Work Overtime?
Facts: In Bailey v. WCAB (USAirways), the claimant suffered a left knee injury and was paid workers' compensation benefits. The employer filed a Petition to Terminate claimant's benefits, but the claimant prevailed. In the course of that litigation, claimant returned to work for his employer in a different position. Claimant subsequently filed a Reinstatement Petition alleging that he had routinely worked overtime prior to his injury, but could no longer do so because of left knee pain. His treating physician testified that the claimant would always need work restrictions as a result of his injury, and that he had restricted claimant to forty hours of work per week. Defendant's evaluating physician opined that claimant was not in need of restrictions or limitations on his work duties, although he did acknowledge that the claimant's knee pain would progress throughout the day.
Initial Ruling: The Workers' Compensation Judge dismissed the Reinstatement Petition on the basis of claimant's testimony, in the prior proceeding, that he had stopped working overtime "to save some of his knee for his own personal activities." The Judge also found that there was no medical evidence supporting a worsening of claimant's condition after the earlier Judge's decision, since Claimant's physician did not identify any change in claimant's condition after the prior decision was rendered.
Appeal Board Ruling: The Board affirmed the Judge's dismissal of benefits, and found it proper for the Judge to rely on the prior Judge's decision. The Board determined, as a matter of law, that the claimant's condition had not changed for the worse since the prior decision as there was no medical evidence supporting a worsening of his condition.
Court Rationale: The Commonwealth Court affirmed the decision to deny the reinstatement, holding that to obtain a reinstatement of benefits, a claimant must prove that a wage loss occurs "through no fault of his own" and that the disability, as a result of the work injury, continued. The Court held that the claimant, through his own prior testimony, admitted that he was not working overtime due to his own personal choice, and found that there was no medical evidence that showed a change, that is, that claimant was NOW not working because his condition had worsened.
The dissenting Judge argued that the Court erred in interpreting the claimant's prior statement as to why he could not work overtime. In that Judge's opinion, this claimant was being held to a higher burden of proof because a change in medical condition, after a return to work with a suspension of benefits, is not required because a continuing relationship between the injury and the disability is presumed.
This case should persuade claimants that they cannot make choices with respect to hours of work or whether to work at all based upon their own interpretations of their physical capabilities and conditions. Rather, claimants considering a change in work status and hours must consult a medical provider and have medical support for that decision.
Upcoming Seminars
Consultations:
| When | Where |
|---|---|
| April 12, 2005 from 1:30-4:00pm | Meadville USW Office 287 ½ Chestnut Street, Second Floor Meadville, PA 16335 |
Workers' Compensation:
| What | When | Where |
|---|---|---|
| IBEW Seminar | March 14, 2005 at 5:30pm | 185 Pennbriar Road, Erie |
| IBEW Seminar | March 17, 2005 at 5:30pm | 408 Broad Street. Johnstown |
| IBEW Seminar | April 5, 2005 from 7:00-9:00pm | United Way Office, Erie |
Hearing Test Van:
| When | Where |
|---|---|
| April 6, 2005 from 10:00-4:00pm | USW- 703 French Street, Erie |
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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