March 2006 Email Newsletter
The BSH Email Newsletter
Witnesses and Workers’ Compensation
A Change in Workers’ Compensation Carriers
"Timely" IRE’s
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.
Witnesses and Workers’ Compensation
Part of an attorney’s role in a workers’ compensation case is to determine who to use as witnesses on behalf of our client, the injured worker. Many injured workers come armed with lists of witnesses. These lists include co-workers, supervisors, and people who knew them before and after the injury. Who should be used as witnesses? In most cases, none of these potential witnesses are necessary, and taking their testimony may actually do more harm than good.
The key witness in a workers’ compensation case is the injured employee. Testimony about the occurrence of the injury, what he or she was doing at the time, the notice provided to the employer’s representatives, the time off from work and the fact of the medical treatment—“I went to the hospital; I had therapy; they requested an MRI” is sufficient to meet the burden of proof in a claim petition. When might another witness be necessary for a claimant’s burden of proof? When an employer claims an accident or notice did not occur. In that situation, a co-worker who is willing to admit that he/she saw the accident, or a union representative who will testify that he/she went with the claimant when the supervisor was notified, will help the claimant. This testimony would be presented by the employee’s attorney, as corroborative of claimant’s testimony. However, this testimony would only be necessary where the employer contests notice or the fact of the injury.
Many injured workers hope that a co-worker will testify on his/her behalf because it is the “right thing to do.” These employees often ask the lawyer to request a subpoena for this individual, assuming—HOPING?—that this person will tell things advantageous to the injured employee at a hearing if compelled by subpoena to do so. Please understand that a subpoena can compel a witness to show up at the hearing but, unfortunately, cannot compel that witness to be helpful to the injured worker who has requested the subpoena. Most claimant counsel will not subpoena and rely on a witness who is, even in part, unwilling to testify. The risk is that the individual will say things in a way not flattering to the claimant’s case, or may even lie because he/she is afraid of termination. Most claimant lawyers will not take that risk, particularly if the injured employee’s own testimony was strong. It is also important to remember that the company has control over and access to the individuals who may serve as witnesses. If the potential witness is a supervisor, an injured worker’s attorney cannot even contact that witness because he/she is technically represented by the counsel for the company. The company signs the paychecks, and in most instances, no amount of pleading or begging on the injured worker’s part —even with the “threat” of a subpoena—can convince these individuals to be helpful to an injured employee.
Some injured workers would also like to present testimony from family or friends about the difference in their condition and lives following the injury. Again, this testimony is not necessary if the claimant himself/herself presents a strong picture of the changes the work injury has made. Most defense lawyers would object to such testimony as cumulative and irrelevant, and for the most part, they would be correct. The injured employee’s own testimony, strongly corroborated by the testimony of medical care providers, is really the best evidence in this regard. Testimony from family and friends may be of some limited use in a case where the injured worker has been “caught” on surveillance performing activities that would seem to be inconsistent with the pain or limitations he/she described. For example, suppose an injured employee is seen changing a flat tire, an activity inconsistent with a back injury. If the claimant’s wife testifies, however, that they do not have AAA, and that she called her husband crying and in a panic, and that he took two pain pills before he changed it and then was in bed for two days afterward due to pain, that testimony may be offered by a claimant’s lawyer in an attempt to make the videotape appear less harmful to the claimant’s case. [Please understand that this does not always work—many Workers’ Compensation Judges believe a picture is worth a thousand words, and testimony trying to “explain it away” is not always believed.]
While many injured workers believe that presenting as many witnesses as possible will help a case, such overkill often does not convince a Workers’ Compensation Judge and, as noted above, may backfire. The witness the claimant needs to be most concerned about is himself or herself; the injured worker must sit down and thoroughly explain the facts to his/her lawyer, leaving in all parts of the case—the good as well as the damaging. This way, the injured worker’s lawyer can be adequately prepared, and present the claimant’s case in the most favorable light possible.
Identifying witnesses for your attorney and advising what information they may be able to present is part of helping prepare your case. However, your lawyer must be allowed to make the final decision as to whether those witnesses will be beneficial. You must allow your lawyer to exercise his or her legal skills, experience, and training in evaluating this evidence.
A Change in Workers’ Compensation Carriers
Insurance is expensive, and employers often change workers’ compensation carriers because a different carrier may offer a better deal, or may allow the employer to have more input into the actual litigation and consideration of workers’ compensation claims. Some employers get “dropped” by the current compensation carrier at the end of a term year because the employer has had too many lost time injuries for which the carrier had to make payment. Whatever the reason for the change, it is important for an injured employee to know how a change in carriers affects his/her rights to workers’ compensation.
First, it is important to note that, like an average weekly wage, an injured employee’s compensation carrier is fixed as of the date of the injury, unless the carrier sells its business to someone else. Therefore, even if the employer changes from Carrier A to Carrier B, the employees whose injuries occurred while coverage was under Carrier A’s policy continue to have their claims administered by Carrier A. A Notice of Compensation Payable, Agreement for Compensation or other document that affixes the date of injury also lists the carrier or third party administrator for the employer, and that party generally remains “on the hook” even if the employer changes carriers. Even though Carrier B is handling the employer’s current workers’ compensation, the employee off from work due to an injury during the prior policy term will receive benefits from Carrier A, and medical bills will be paid by Carrier A.
The situation is complicated if the employee returns to work for the employer after the insurance carrier has changed, particularly if that employee’s compensation benefits are suspended (because he/she is capable of returning to the time of injury job without a wage loss, but is not fully recovered and still requires active medical treatment). What happens if the employee has problems in the same area as the prior injury after the return to work: which carrier is responsible?
For example, if Kathy hurts her back on November 1, 2002, while the Smith Company is insured by Everlast Insurance, her medical bills and workers’ compensation benefits are to be paid by Everlast (provided her claim is accepted as compensable). Kathy returns to work in February 2003, and Smith Company has changed carriers as of January 1, 2003 to Neverpay Insurance. When Kathy returns to work, she signs a Supplemental Agreement that says that her benefits are “suspended,” which means in her case that she is not entitled to the on-going payment of disability benefits, but that she still sees a chiropractor from time to time and has yearly visits with an orthopedic doctor. On July 15th, Kathy begins to have back pain while performing the usual duties of her job. Is it a new injury or a recurrence of the old problem? The new carrier will deny liability on the basis that it is just Kathy’s previous injury coming back or recurring, particularly if there is no specific incident that causes the problem. Everlast, the carrier for her old injury, will claim that Kathy was able to do her regular job and was released to return to that job by her treating physician, so “something” must have happened during Neverpay’s coverage that makes her case Neverpay’s responsibility.
These questions will hinge on what a doctor says about the effect of what happened on July 15th. Does the doctor say it is the new or old injury? Regardless of which alternative the doctor chooses, the insurance carrier the doctor puts “on the hook” will want to contest liability in most cases. What could be a simple case now turns into litigation, because neither insurance carrier wants to pay out benefits if the other insurance carrier could possibly be responsible. Generally, the injured employee will have to get a lawyer to file both a Claim Petition and a Reinstatement Petition to figure out which of the two insurance carriers will have responsibility. In most cases, no one will make payment pending the outcome of the litigation, which means the employee has difficulty getting treatment and, of course, benefits.
Please note that litigation may result even if Kathy reports the July 15th problems as resulting from her old injury. This is because the carrier will do some investigation, and if that investigation points to liability of another carrier, the carrier will deny the claim. It is essential that employees hurt under these circumstances provide notice to both carriers in a timely way, so that the carrier for the new injury does not have a notice defense (if a Judge finds that the claimant suffered a new injury rather than a recurrence of old problems).
It is clear that an employer may shop for a bargain with compensation insurance, and change carriers whenever it suits the employer to do so. However, if a change is made, it is essential for that employee to contact an attorney about these issues as soon as possible, because now two insurance companies—and their lawyers—rather than only one will be trying to deny the injured worker’s entitlement to benefits.
"Timely" IRE’s
What Happens When an IRE is Not Requested “Timely”?
Facts: In Gardner v. WCAB (Genesis Health Ventures), consolidated before the Supreme Court with Wal-Mart Stores v. WCAB (Rider), impairment ratings evaluations (IREs) were requested. Impairment Ratings Exams were added to the Act by the Act 57 amendments. Generally speaking, when an injured worker has received total disability benefits for a period of 104 weeks, the carrier can request that the employee submit to an examination to determine the percentage of impairment resulting from that injury. According to the statute, the examination is to be requested within 60 days of the receipt of 104 weeks of total disability benefits. If that evaluation results in a finding of less than fifty (50%) percent disability, the worker’s benefits are transferred to partial status, even though there is no change in the benefit rate of payment. A transfer to partial status puts a time limit on the benefits an injured worker can receive, because the Act only allows 500 weeks of partial benefits.
The Gardner Facts
Barbara Gardner was injured on October 2, 1996 and had received her 104 weeks of total disability benefits by October 2, 1998. The insurance carrier did not request an IRE until June 13, 2001. Ms. Gardner objected to the examination and the defendant filed a Petition to Compel her attendance at the examination.
Initial Ruling: The Workers’ Compensation Judge dismissed the Petition, finding that the Act required the insurance carrier to request the examination within 60 days of Ms. Gardner’s receipt of total disability benefits. Because the examination was not requested within 60 days of October 2, 1998, the Judge determined that Ms. Gardner need not attend the evaluation.
Appeal Board Ruling: The Board reversed, finding that the IRE section of the Act was “ambiguous,” and that what that portion of the statute actually provided was a “window in which the insurer must act” so that any transfer to partial made as a result of the examination would relate back to the expiration of the 104 week period. The Appeal Board then indicated that Ms. Gardner should attend the IRE.
Commonwealth Court Ruling: Ms. Gardner appealed to Commonwealth Court; the Court reversed the Board, and held that the insurance carrier must request the IRE within sixty days of the claimant’s receipt of 104 weeks of benefits as the Act states, or the insurer will be “forever precluded from modifying” these benefits to a partial based on a finding of less than 50% disability based on the IRE examination.
The Rider Facts
Leroy Rider, a truck driver for Wal-Mart, was hurt on July 31, 1998, and originally underwent conservative medical treatment, before being diagnosed with a ruptured disc in his neck. He did not stop working until October 21, 1998, and filed a claim for workers’ compensation benefits on November 1, 1998. Mr. Rider’s original claim was granted by the WCJ on December 16, 1999; this decision was appealed to the Board, which remanded to the WCJ for additional findings. On November 20, 2001, the Judge again made an award in Mr. Rider’s favor, finding that this gentleman was entitled to total disability benefits. Wal-Mart did not appeal.
On December 10, 2001, 163 weeks after the date when Mr. Rider’s disability benefits began, but within 60 days of the Judge’s decision again awarding Mr. Rider’s claim, Wal-Mart requested Mr. Rider to attend an IRE, which he did. That examination resulted in a finding of 26% impairment. Thereafter, by Notice dated January 11, 2002, Mr. Rider was informed that his benefits were being changed to partial. Mr. Rider filed a Petition, challenging that change in status, and arguing that he should be reinstated to total disability status, as he contended that the IRE request was not timely.
Initial Ruling: The Workers’ Compensation Judge granted Mr. Rider’s Reinstatement Petition, finding that Wal-Mart had not requested the examination within 60 days of Mr. Rider’s receipt of 104 weeks of total disability benefits. The Judge held that this period began on October 21, 1998—the date Mr. Rider became disabled, and ended on October 21, 2000. Since the IRE was not requested within sixty days of that date, the Judge considered it to be untimely.
Appeal Board Ruling: The Board affirmed.
Commonwealth Court Ruling: Wal-Mart appealed to Commonwealth Court; the Court, holding that this case was different from Gardner because Wal-Mart disputed Mr. Rider’s entitlement to benefits. Therefore, the Court held, until the Judge found on November 21, 2001 that Mr. Rider was entitled to benefits on remand, Mr. Rider did not “receive” 104 weeks of benefits, and so the IRE as requested in December 2001 was timely.
Supreme Court Rationale: In a decision published December 28, 2005 (over a year after its argument date of December 2, 2004), the Supreme Court addressed both when the insurance carrier must request the IRE and when the 104 week period begins, such that the request must be made within 60 days of its expiration.
The Court first noted that consideration of these cases involves the analysis of the statute itself, which states in part, as follows:
When an employee has received total disability compensation . . . for a period of one hundred four weeks, unless otherwise agreed to, the employee shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. . . .
The Court then noted the next section of the Act, which states that disability more than fifty percent means that total disability continues. However, “should the outcome of the evaluation yield an impairment rating of less than fifty percent, the claimant’s total disability benefits, upon sixty days’ notice, are reduced automatically to partial disability benefits.”
In Mr. Rider’s case, the Supreme Court found that the injured worker’s contentions about when he had “received” 104 weeks of total disability benefits was correct: he had received them as of October 21, 2000, and so the insurance carrier had requested his IRE out of time. The Supreme Court held that Wal-Mart’s argument that the receipt of the benefits was not “final” until the Judge’s decision in November 2001 was at odds with the statutory language, and could not be upheld. The Court explained, in a footnote, that even though Wal-Mart had appealed the original ruling by the Judge requiring that benefits had to be paid, Mr. Rider continued “receiving” those benefits while the case was on appeal. Therefore, the Court reversed the Commonwealth Court’s decision in Rider, holding that the 60 days within which the IRE is requested begins “once the employee has received, that is acquired or come into possession of 104 weeks of total disability benefits.”
In Ms. Gardner’s factual situation, the Court considered the meaning of the work “shall,” as in does “shall” mean that an action is mandatory. The Court refused to consider Genesis’ arguments that “shall” is not mandatory, and held, rather, that in order for the insurance carrier to be able to take advantage of the automatic transfer of benefits to partial, the request for an IRE must be made within 60 days of the receipt of total disability benefits by the injured worker.
However, the Court did also hold that the insurance carrier’s failure to request the IRE within the sixty days after the employee’s receipt of 104 weeks of benefits does not preclude the insurance carrier from requesting the evaluation at all. Rather, the Court held that the insurance carrier is still entitled to have an IRE, it just cannot “automatically” change the injured worker’s benefits from total to partial disability after that examination, simply by sending a notice that the result was disability less than fifty (50%) percent. Rather, the workers’ compensation carrier will have to file a Petition to Modify the worker’s benefits on the basis of the IRE. The Court indicated that the request to transfer the individual’s benefits to partial will therefore be subject to “a traditional administrative process.”
The Supreme Court’s decision in these cases is helpful to an extent to injured workers, but not as helpful as we would have liked them to be. The Court did NOT say that failure to timely request an IRE precludes the insurance carrier from ever requesting one. It was essential that the Court clarify what it meant to “receive” benefits; while most would understand what that would mean, the Court’s decision clarifies that insurance carriers/employers cannot prolong litigation with appeals and also take advantage of that time to extend the period within which these examinations can be requested. Received is received, and if the injured worker’s award from the Judge results in payment of 104 weeks of benefits in a lump sum, the clock on the 60 day period is started.
Additionally, the Court’s decision makes plain that the insurance carrier’s failure to obey the time limits as set forth in the Act will penalize them to the extent that they cannot “automatically” change an individual’s benefits to partial disability status. This is important, because many workers simply received notification of the change in their benefits after the examination, without more, and did not have any medical evidence that showed they were greater than fifty (50%) percent disabled. Even if they do, it is the employee’s burden under those circumstances to litigate a Petition to Reinstate total disability benefits. However, exactly what litigation will be required when an insurance carrier fails to timely request the examination is not yet known, and what the injured worker’s burden will be under those circumstances also remains open for consideration. The Court has indicated that “traditional” litigation will be required, but did not set out any guidance as to burdens of proof in these types of Petitions.
It does appear that injured workers should continue to keep current with a doctor of their own choosing, so that, when an IRE is scheduled, those individuals can discuss with their own physicians—who know them and their conditions—what arguments can be made and positions advanced with respect to the evaluation of their “permanent impairment.”
Upcoming Seminars
Workers' Compensation:
| What | When | Where |
|---|---|---|
| USW | March 11, 2006 11:00-12:30am | Memorial Park 201 South Walnut Street Martinsburg, PA |
| United Food and Commercial Workers- Local 1 | April 5, 2006 10:15-11:50am | Buffalo, NY |
| Security Police & Fire Association of America | April 7, 2006 10-11:30am | Courtyard Marriott 401 West Waterfront Drive West Homestead, PA 15120 |
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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