May 2007 Email Newsletter
The BSH Email Newsletter
When am I "On Comp?"
What is Considered "Permanent?"
Is Loss of Teeth a Permanent Disfigurement?
Does an Injured Worker Have to Release Medical Records?
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.
When am I "On Comp?"
Most people know when they get hurt at work, although there are those injuries that are harder to distinguish- i.e. injuries that occur over time or as a result of continued and repetitive trauma. Assuming a regular run of the mill injury-let’s say a back strain, for example, that occurs as the result of lifting at work with a definite onset and report of the injury-when does that worker’s claim for compensation "start"?
Under the Workers’ Compensation Act, an injured worker must give the employer notice of the injury within 120 days of the incident. Therefore, the claim technically does not and cannot start until the individual provides notice to an appropriate representative of the employer. After that, the employer is to notify its workers’ compensation carrier or third party administrator within 21 days that the worker has been injured, and is to complete the "Employer’s Report of Injury or Occupational Illness," a Bureau of Workers’ Compensation Form, which is then to be filed with the Bureau of Workers’ Compensation. As a practical matter, many employers or insurers do not file this form unless and until they determine whether the injured worker will actually miss time from work as a result of the injury. If the claim is initially for medical treatment only, most employers do not report the incident. Under these circumstances, while an individual has been injured, in the eyes of the Bureau-and maybe even the insurance carrier/third party administrator, if the employer has not reported the claim-that worker is not considered to be "on comp" or to have a claim.
When an injured worker reports his/her injury, the employer is to immediately notify the individual of the need to obtain treatment with a panel medical provider if that company has a list of doctors. That acknowledgement is to be provided to the worker in writing at the time of the injury, and the employee is to sign it. At that point, the injured worker is under a requirement to treat with the panel physician for 90 days. The first day of medical treatment for that injury is considered to be Day One of the 90 day treatment period. Please note that if the injured worker does not see one of the company providers for a week or ten days, those days do not count toward the 90 day requirement. Therefore, it is essential for the injured worker to get to see the panel provider who can give the earliest appointment, so that the 90 day clock for treatment with the panel doctors starts running.
It would seem that the minute an injured worker starts to treat with the panel provider that the individual is considered to be "on comp" or to have an open claim. That is not correct. Payment of medical bills does not mean that a worker has an open claim or accepted work injury. While the insurance carrier likely has a "claim number" for that injured worker, and the bills are being sent to the insurance carrier, it is important for employees to know that this does not mean that the injured worker has an open and accepted workers’ compensation claim. It just means that, for the time being, the compensation carrier is paying the bills.
Also, while the insurance carrier may make payment of the injured worker’s bills for treatment, if the worker is not "off work" by prescription of the company doctor, they are not really "on" workers’ compensation benefits because there is no time lost. "Disability" benefits do not begin under the Pennsylvania Workers’ Compensation Act until an injured worker actually misses time from work. Under the law, an injured worker must be off for seven days before benefits are payable. On the eighth day, benefits become payable, but only for that day until the injured worker reaches fourteen days off from work. The injured employee does not get paid for the first seven days of disability until that worker has been off for fourteen days.
Please understand that if the injured worker does not receive Bureau documents accepting the injury as work related-those forms being a Notice of Compensation Payable or an Agreement for Compensation-the injured employee is not considered to be "on comp." There may be bills being paid, but the insurer can choose which to pay and which not to pay without a binding agreement accepting a specific work injury. Additionally, some insurance carriers will provisionally accept the claim by TEMPORARY Notice of Compensation Payable, which means that the carrier can pay disability benefits and medical for a period up to 90 days from the date of injury. However, this does not truly mean that the injured worker has an open claim, because the carrier can withdraw that notice within the 90 day period, and even though the worker never has to pay back the compensation, nor are the doctors’ payments withdrawn, it is like the injury never existed. A Temporary NCP is only good to an injured worker if it converts to a regular Notice of Compensation Payable and the injury is considered to be accepted by the carrier.
What this should make clear is that an injured worker is not considered to be "on comp" until there is a Bureau document stating that the injury has been accepted, and outlining what the injury is. Payments MAY be made, and doctor bills MAY be covered, but without some written verification, the insurance carrier can stop these benefits at any time, and litigation will be the only recourse for the injured employee. While it would seem that an injured worker is on comp from the minute that an injury happens, that is not the reality of the workers’ compensation system. Do not assume an injury has been accepted. In the absence of a specific Bureau document specifically recognizing the injury, it is best for a worker to presume that his/her claim has NOT been accepted, and that he/she is not "on comp." If the injured worker cannot get the insurance carrier to issue a Bureau document, he/she needs to consult an attorney.
What is Considered "Permanent?"
Is an Employer/Comp Carrier Foreclosed from Filing a Termination Petition Once an Injured Worker Undergoes an IRE?
Facts: In Schachter v. WCAB (SPS Technologies), the employee suffered a right knee injury and was paid workers’ compensation benefits. At the employer’s request, Mr. Schachter underwent an Impairment Rating Evaluation (IRE) for that injury and the doctor determined that he had a 6% total person permanent impairment as a result of the injury. A Notice of Change of Disability Status was properly filed, converting Mr. Schachter to "partial," based on the IRE. Several months later, Mr. Schachter underwent a defense medical evaluation, as requested by the insurance carrier, and the defendant filed a Petition to Terminate as a result of that doctor’s opinion that Mr. Schachter had "fully recovered" from his work-related knee injury.
Initial Ruling: The Workers’ Compensation Judge dismissed the Termination Petition, accepting the testimony of Mr. Schachter concerning his continuing complaints of pain and difficulties as a result of the knee injury. The Judge also accepted the testimony of the employee’s treating orthopedic surgeon, who testified that Mr. Schachter continued to have complaints and problems as a result of the injury, and corroborated his patient’s complaints with medical findings. The testimony of the defense medical examiner was rejected. Additionally, the Judge granted claimant counsel’s request for imposition of attorney’s fees on the basis that the defendant’s filing of the Petition was unreasonable, in that the employee had been found by the IRE physician to have a permanent injury, and therefore, no Termination Petition should have been filed.
Appeal Board Ruling: The Board affirmed the Judge’s dismissal of the termination, but reversed the award of attorney’s fees, noting that the Judge could have accepted the testimony of defense examiner Dr. Schmidt and granted the requested termination.
Court Rationale: The Commonwealth Court affirmed the dismissal of the Petition to Terminate, but also affirmed the Board’s reversal of the award of attorney’s fees. The Court explained that the finding of a 6% impairment did not preclude the defendant from filing a Petition to Terminate Mr. Schachter’s benefits. The defendant was not estopped from arguing that Mr. Schachter’s condition improved, as a knee injury such as his was not "irreversible" such that the employer could never have him re-evaluated. The Court stated that if this were its holding, employers would be discouraged from using the IRE procedure to have employees evaluated following injuries. The Court further stated that such a finding would be "at odds with the IRE remedies, which are in addition to, not a replacement of, the remedies available to an employer who believes that an employee’s loss of wages is not the result of a work-related injury."
Discussion: This case shows that despite the use of the word "permanent" in the "Evaluation to the Guidelines of Permanent Impairment" which is the way that calculations are to be made for IRE purposes; our Courts do not define that word as most of us would. Rather, it is just another way that the insurance carriers can evaluate a case at the appropriate point in time, that is, at 104 weeks of total disability benefits, to determine an injured worker’s status. While some conditions, like black lung or asbestosis, which are considered to be progressive, might be found to be "permanent," "routine" injuries likely do not fall under that category. Therefore, no employee should take for granted that a finding of "permanent" impairment will foreclose further litigation of continued entitlement to workers’ compensation benefits.
Is Loss of Teeth a Permanent Disfigurement?
Does Wearing a Denture to Replace Lost Teeth Mean That There is No Compensable Disfigurement?
Facts: In Agnello v. WCAB (Owens-Illinois), the employee fell, sustaining injuries to her neck, jaw and teeth. Her injuries were accepted by Notice of Compensation Payable as "chin contusion, cervical strain and a loosening of two of her lower front teeth." Ultimately, it was found that Ms. Agnello’s lower jaw had been broken, and that three teeth needed to be removed. Thereafter, Ms. Agnello had her remaining lower teeth removed, and a complete denture added. (As a side note, she had previously had her upper teeth removed as well, and had an upper denture.) Ten months after the injury, the employee filed a Claim Petition seeking an award for permanent disfigurement as a result of the loss of her three lower teeth.
Initial Ruling: The Workers’ Compensation Judge denied Ms. Agnello’s Petition. In his opinion, and based on his observation, he did not consider Ms. Agnello to have a "serious and permanent" disfigurement which "produced an unsightly appearance" as a result of her work injury. The Judge specifically stated that when the claimant gave a "large toothy grin" both with and without her dental plate, he "was really unable to see any difference with or without her lower teeth." He noted that her upper teeth were also artificial and that she had been missing several lower teeth even before the injury.
Appeal Board Ruling: The Board affirmed the Judge without even viewing the claimant (which the Board has the power and is in fact supposed to do), holding that because Ms. Agnello had a lower denture, "the absence of the three teeth at issue is not noticeable."
Court Rationale: The Commonwealth Court reversed the WCJ’s decision and remanded the case to the Judge "to make an appropriate award." In reaching this conclusion, the Court reviewed its prior holding and explained that the use of a dental plate "does not eliminate the claimant’s disfigurement altogether. Instead, it diminishes the effect." The Court specifically held that dentures should not be considered when determining whether there was a disfigurement because "they do not resolve the disfigurement, only mask it." The Court found that the WCJ abused his discretion in failing to make an award, and stated further that because Ms. Agnello had no teeth when she removed her denture, "she proved that her disfigurement was serious and permanent and resulted in an unsightly appearance."
Discussion: While there is certainly no dispute that Ms. Agnello should have received an award in this matter, the case becomes complicated because she had all of her teeth removed to have the bridge made before the Petition was filed. Because we must wait at least six months for a disfigurement to be considered to be permanent, generally speaking, and the defense can always argue that there are remedies-like the dental bridge, here-to lessen the impact of the injury, if the employee could have waited to have the bridge made, there might have been an easier road for her to an award. The important thing to note, however, is that an injury such as this almost seems to take for granted that there is a disfigurement, the question is "how much?" When a worker sustains such an injury, he/she need to consider all the ramifications before moving forward with "corrective" action.
Does an Injured Worker Have to Release Medical Records?
Part of Undergoing a Defense Medical Exam Means Allowing the Evaluating Doctor to Review Medical Records.
Facts: In Central Dauphin School District et al. v. WCAB (Siler), the employee was injured in the course of her duties as a janitor, hitting her knee, hip, elbow, arm and face when she fell on a floor being stripped of wax. She ultimately went off work, and filed a Claim Petition, which was granted by the WCJ, for injuries including fibromyalgia and neurological problems, as well as psychological components of her injury such as attention deficit and seizures. After the award, as part of its continuing evaluation of the case, the employer requested Ms. Siler undergo two defense evaluations, one by a neurologist and one by a psychiatrist. Ms. Siler attended both. During the psychiatric exam, she told the examiner that she had undergone psychiatric treatment in the past. The defense doctor advised the defendant that she could not issue an opinion as to Ms. Siler’s condition without reviewing those prior records. A release for those records was sent to Ms. Siler, but she refused to sign it. The defendant filed a Petition to Compel a Physical Examination under the Act, requesting the Judge to require the employee to release these records or have her benefits suspended until she did so.
Initial Ruling: The Workers’ Compensation Judge denied the Petition, stating nothing more than that "the parties are bound by the provisions of the Workers’ Compensation Act."
Appeal Board Ruling: The Board affirmed the Judge, holding that because Ms. Siler had established a work-related psychological condition in the course of the initial litigation on the Claim Petition, the records should have been requested then.
Court Rationale: The Commonwealth Court reversed the Board’s affirmance of the Judge’s decision, premising the approach as whether the Judge had the authority to compel Ms. Siler to release these medical records. In so doing, the Court noted that, if the employee can be compelled to undergo additional diagnostic tests as part of a defense medical examination, the claimant can be required to release medical records and results that preceded an examination properly requested within the confines of the Act. The Court rationalized that "a medical opinion...rendered by a medical professional who has not reviewed the claimant’s medical history and records can render the proffered opinion incompetent." The case was sent back to the Judge to determine the question as to whether those records were relevant.
Discussion: The trend in cases concerning evaluations is recent years has been to expand the rights of the employer and insurance carrier to obtain as much information as possible about injured employees. The Court is moving in the direction of greatly diminishing the employee’s right to privacy in records or in their own bodies, by allowing testing and release of records so long as it is considered to be relevant to consideration of the issues at hand. It seems, based on these cases, that Judges will now more likely err in favor of the employer, because they know that if they do not allow the records to be obtained, there will only be appeals and the cases will be sent back down to them. If they require employees to release information in the furtherance of continued receipt of compensation, then it is almost a "no harm, no foul" mentality, that is, the records "cannot" hurt the claimant’s receipt of benefits. That seems unlikely, as there could be information contained in records-even remote ones-that injured workers do not want to have made "public" which may result in an injured worker foregoing benefits or treatment.
Upcoming Seminars
Workers' Compensation:
| What | When | Where |
|---|---|---|
| Meadville USW Seminar | June 12, 2007 9:00-2:30pm | Meadville USW 287 ½ Chestnut Street, Second Floor Meadville, PA 16335 |
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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