January 2008 Email Newsletter
The BSH Email Newsletter
Social Security Backlog Update
Massage Therapy Not "Medical Treatment"
First Case Considering 90 Day Period Under a TNCP
What is Personal Animus?
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.
Social Security Backlog Update
The New York Times reported in December that Social Security’s backlog has increased so much that, in some cases, applicants for benefits wait up to three years for a decision concerning benefits. Here, in Pittsburgh, the hearing offices (now split into two locations) advise that a year to eighteen months is the normal waiting period for a hearing, once the file has been transferred to the Office of Disability Adjudication and Review (ODAR) from the Social Security District Office (where the initial application is completed and the initial determination made).
Part of the problem with Social Security is that there has not been enough money appropriated to allow the hiring of the additional judges needed to help cut down the backlog throughout the country. There are currently 1,025 Administrative Law Judges responsible for Social Security hearings, and an additional 150 Judges had been proposed but the funding for these positions does not currently exist in the budget, nor was it requested by the President. At the present time, the wait for a hearing averages 500 days (one year and 135 days, which is just about the eighteen months currently noted by the Pittsburgh office). Since no new Judges have been hired, Social Security anticipates that the wait will be even longer. Additionally, the backlog of cases awaiting hearing on appeal has more than doubled to 755,000 from 311,000 in 2000.
Statistics show that approximately 2.5 million disability applications are filed each year. Of those, almost two-thirds are denied at the initial district office review. A majority of individuals give up their claims at that time, rather than endure the appeals process. However, more than 575,000 do file appeals; of those individuals, almost two-thirds are successful, which means that they do obtain benefits. However, the wait is long for this consideration, and many have lost their homes, cars and other possessions while waiting for the hearing and decision.
What can an individual do under these circumstances? The best thing to do, studies have shown, is get an attorney familiar with the Social Security hearing process to assist in obtaining the evidence needed to proceed. Those with an attorney are far more likely to obtain benefits than those who "go it alone," once they have been denied at the initial level.
We are pleased and proud to represent individuals in the Social Security disability process. Although we acknowledge the delays inherent in the process, we believe that our assistance can, in some cases, cut down on the waiting time. Social Security has tried to streamline the process, by allowing for more decisions on the record and allowing for video hearings. However, it is not enough simply to ask for those accommodations. The disabled individual must have the medical support needed to move forward at an early stage to try to get a decision without need of a hearing. We pride ourselves on helping individuals in that way, by writing for the appropriate medical evidence, and streamlining our requests so that the doctors who are treating the disability applicant know exactly what we are looking for and the type of information that will be of benefit. Additionally, by requesting Social Security’s exhibits file as soon as the case is docketed, we are familiar with the medical that is already of record, and do not duplicate effort by asking for documents Social Security has already reviewed. We take what is there, build on it, look specifically for the information that Social Security needs, and work with the disabled individuals to move their cases forward as quickly as possible.
Not every case can have an expedited hearing, nor achieve a decision on the record. In those cases, we continue to work with our clients to update the medical evidence of record, so that the exhibits are "fresh" when we get to the hearing, not out of date. We stay in close contact with our clients to learn more about their conditions as time goes on, and keep up-to-date with the providers they are seeing. This is a great benefit for our clients, in that we are then able to continue to document their conditions as we approach the hearing date. It also allows us to meet with our clients and discuss their status, so that testimony is reviewed in advance of the hearing, and the individual knows what to expect on the hearing day.
For a great many Social Security disability applicants, the wait goes on, and the length of time that an individual is expected to wait will increase in the foreseeable future. We feel it is our role to do all that we can to work with the Administration to lessen the wait where possible. We believe that by keeping in close contact with our clients, and updating their medical status frequently, we can take every possible step toward a decision on the record or an expedited hearing, and be prepared to proceed earlier in the consideration process than an individual who does not have the benefit of our experience.
If you know someone who has applied for Social Security disability benefits, and has not retained the services of a lawyer or does not believe they need one to navigate through Social Security, please share this article and information with them. We believe an individual is best served in the system when represented by knowledgeable counsel. We want to be that counsel.
Massage Therapy Not "Medical Treatment"
If an Injured Employee is Prescribed Massage Therapy as Part of Treatment, is the Workers’ Compensation Carrier Responsible for Payment?
Facts: In Boleratz v. WCAB (Airgas, Inc.) the claimant’s medical provider prescribed massage therapy to assist in recovery from his back injury. The treatment was provided by a massage therapist, who was not licensed in the Commonwealth of Pennsylvania because Pennsylvania does not have a licensing procedure for massage therapy. Mr. Boleratz filed a Review Petition, arguing that payment should be made for the therapy because his doctor, a licensed provider in the Commonwealth, had written the prescription as a part of the care and treatment he was providing.
Initial Ruling: The Workers’ Compensation Judge granted the Review Petition and ordered payment for the services. While the Judge did not consider the massage therapist to be a health care provider as defined by the Act, he found that the failure was the Commonwealth’s for not having a licensing program. Further, the Judge found that because claimant’s doctor had written prescriptions for him to receive the treatment from the massage therapist, the employer was responsible for the bill.
Appeal Board Ruling: The Board reversed the Judge’s award. It held that, in order for payment to be made under the Workers’ Compensation Act, services must be "rendered by a duly licensed medical practitioner." Since the massage therapist in this matter was not licensed in Pennsylvania-regardless of the reason-the bills were not payable by the compensation carrier.
Court Rationale: The Commonwealth Court affirmed the Board’s decision, noting that it was undisputed that the massage therapist "is not licensed or otherwise authorized by the Commonwealth to provide health care services." Therefore, under the language of the Act, she cannot be a health care provider whose bills are reimbursable. The Court then considered whether the undisputed fact that the doctor had prescribed the treatment-and he was a licensed medical provider-brought the massage therapy under the umbrella of reimbursable medical care.
The Court discussed Petrilla v. WCAB (People’s Natural Gas), long-standing precedent that held that services provided by someone not licensed are only recoverable where provided under the supervision of, or at the referral of, a licensed practitioner. The Court held that a doctor’s prescription does not bring the services within the definition of medical services, where the individual providing the services is not licensed in the Commonwealth of Pennsylvania. The Court specifically overruled any prior precedent that could be read as holding that massage therapy is reimbursable: "we now hold that services of a massage therapist, who is not licensed or otherwise authorized by the Commonwealth...are not reimbursable... ."
The dissenting Judge argued that because the massage therapist was licensed nationally, although not in Pennsylvania, her services should be paid. In that Judge’s opinion, the services did fall within the definition of the types of treatment that should be paid by the employer/compensation carrier. Judge Smith-Ribner explained that there are other types of treatment, such as psychotherapy, that can be paid when provided under the supervision of a licensed provider, or at the prescription of a licensed provider. The Judge further urged that, even if massage therapy is not a "medical service," it would fall within "non-medical services" which are incidental to medical services because the treatment was causally related to and incident to the work injury. The Judge provided examples of cases where treatment such as the installation of hand controls and remodeling of homes, not performed by licensed medical providers, were paid by the compensation carrier as incidental to the actual treatment required.
The holding is this case is quite disheartening, as massage therapy and other such adjuncts to treatment often are quite beneficial to injured workers, and are actually less expensive alternatives than going through a licensed physical therapy to obtain the same services. This case has caused most insurance carriers to review their files and look for billing of such services and immediately suspend payment without need of any inquiry into a Utilization Review procedure, or a petition, or without any notice. The holding of Boleratz and the language of the majority is seemingly supportive of such action. Where a Court expressly holds that a specific service is not recoverable, as it did in this case, it would benefit injured workers to find other alternatives than massage therapy from an unlicensed provider, even if the treatment is more expensive for the compensation carrier.
First Case Considering 90 Day Period Under a TNCP
When an Injured Worker Receives Benefits Under a Temporary Notice of Compensation Payable, the 90 Day Period Starts to Run on the First Day of Disability, Not the Date Payments Started.
Facts: In Galizia v. WCAB (Woodloch Pines, Inc.), the worker was injured on November 30, 2002, hurting his right knee. He continued working until January 6, 2003. On February 6, 2003, a Notice of Temporary Compensation was issued, noting that payments began on January 31, 2003, further noting that "medical documentation supports disability" as of January 31st. A Notice Stopping Temporary Compensation was filed and mailed as of April 28, 2003, disputing Mr. Galizia’s right to compensation. The Notice of Denial, which also must be issued, indicated that the treating physician had failed to give an opinion tying the work injury to the treatment. The injured worker filed Petitions for penalties and to reinstate compensation, arguing that his benefits were improperly stopped. Among other things, the employee argued that the Temporary NCP converted to an NCP by operation of law on April 6, 2003, and the Notice Stopping was therefore out of time.
Initial Ruling: At the initial hearing, claimant argued that his benefits were paid back to his initial date of disability, or January 6, 2003; therefore, the 90 days were counted from that date. The employer argued that the 90 days is counted from the date of the Temporary Notice, which was a month later on February 6, 2003. The Judge found as fact and concluded as law that the Temporary Notice indicated that payments began as of January 31st, which meant the 90 day period expired on April 30th, and that the Notice Stopping and Denial were therefore timely.
Appeal Board Ruling: The Board affirmed the Judge’s denial of the injured worker’s Petitions. The employee appealed, and on the first presentation to the Commonwealth Court, the Court vacated the Board’s decision and remanded the case, that is, sent it back to the Board, with instructions to send it back to the Judge to find out specifically when Mr. Galizia’s benefits began, that is, as of January 6th or January 31st.
The Judge’s Second Consideration: The Judge conducted a hearing and a stipulation was provided which indicated that the first compensation check paid for the period beginning January 31st, and that a later compensation check paid from January 6-30, 2003. The Judge issued a decision finding that even though payments were ultimately retroactive to January 6th, the trigger date for the payment of compensation was January 31, 2003, the date when the first payment was issued. Again, the Judge dismissed all of the Petitions filed by the employee, and the Appeal Board affirmed.
Court Rationale: The Commonwealth Court reversed, and in a case of first impression-which means that the Court had never considered the specific issue before-held that the first date of disability is the date which triggers the running of the 90 day period under the Act.
In its decision, the Court set out the specific language of Section 406.1(d) of the Act, which allows for the payment of benefits under a Temporary Notice and read that section in conjunction with 406.1(a), which discusses an employer’s responsibility to investigate an injury following its receipt of notice from an injured worker than an injury has occurred. The Court noted that the first installment of compensation is due to a disabled worker "not later than the twenty-first day after the employer has notice or knowledge of the employee’s disability." Mr. Galizia argued, and the Court agreed, that an injured worker has the right to compensation from the first day of disability if he gives timely notice, and payments are made retroactively to that date. The Court reasoned that the Act specifically requires the employer to contest the TNCP "within the ninety day period during which compensation is paid or payable," and that compensation is payable from the first day of disability, regardless of when the compensation carrier starts the payments. The Court held that the statute was unambiguous; since the employer has 90 days from the date when compensation is paid or payable to contest the appropriateness of the benefits, the date when disability begins-when compensation is payable-starts the running of that period, even if, as in Mr. Galizia’s case, the compensation is paid in a lump sum at a later time.
The employer argued that the date of payment is the date that starts the 90 days running, and that, at times, an employer could effectively have almost no time to evaluate and contest the claim if the payment starts as of disability, not when the carrier decides to pay. The Court held that this interpretation could allow for the payment of more than 90 days of temporary compensation, if benefits were paid retroactively but the 90 days started on the date of the payment; the Court held that the law specifically does not allow for payment of more than 90 days of benefits under a Temporary Notice of Compensation Payable.
The Court again remanded the case to the WCJ for a determination as to an amount of penalties which would be appropriate, because the defendant had withdrawn the Temporary Notice well beyond the 90th day from the date that benefits began.
As a practical matter, this case is both good and bad for injured workers, the "negativity" being purely from a financial standpoint. To the bad point first: if the 90 day period were allowed to run from the first day of payment, then an individual could get more than 90 days of temporary compensation under the TNCP; for example, if there are three weeks of retroactive benefits, the injured worker could possibly get 111 days of benefits at a time when the money would surely come in handy, and where the employer/carrier are going to contest the continued payment of benefits, requiring litigation. However, the positives do outweigh the negatives here. The requirement that the 90 days run from the date of disability should force carriers/employers to expedite the consideration of the case and decide whether to pay benefits, because they know that they only have 90 days from the date of disability to withdraw the TNCP. If the carrier spends the first 30 days of the disability "deciding" if comp is to be paid, the period within which to actually evaluate the case and withdraw the TNCP has been cut by a third. Therefore, the sooner the employer/carrier determines whether they are going to accept the claim, and move forward, the more time they have to decide whether they ultimately plan to contest liability. This is, in many ways, actually good for the injured worker, because that means that the disability benefits begin closer in time to when the wages stop due to going off from work.
Any injured worker who is collecting compensation under a TNCP should be careful as to the period of time benefits are paid, and pay close attention to when the 90 day period will stop, regardless of the date the employer/carrier chooses. If a TNCP is not timely withdrawn, it becomes a regular Notice of Compensation Payable by operation of law, without any additional action of any kind required by the employee.
What is Personal Animus?
Can Benefits Be Denied Because the Employee Was Killed for Personal Reasons?
Facts: In LeDonne v. WCAB (Graciano Corporation), the deceased employee’s son filed a Fatal Claim Petition, arguing that he was entitled to benefits under the Workers’ Compensation Act because of his father’s death, which occurred while his father was working at a construction job site in New York City. Mr. LeDonne was from Pennsylvania. He and a co-worker stayed at a hotel near the construction site. At some time during the night of March 2, 1993, Mr. LeDonne and the other employee were shot and killed in the motel room. The minor claimant in this case, who brought the case through a personal representative, was born one month after his dad’s murder. Why didn’t his mother bring the case on his behalf? Read on.
The Judge indicated initially that the claimant would be entitled to a presumption that his father’s death occurred in the course of his employment, because he was a traveling employee. The employer raised two defenses: that Mr. LeDonne was killed for "reasons personal," and therefore benefits were not payable to his son and/or he was not in the course of his employment at the time of his death because he was not "furthering the interests of the employer" when he died.
Evidence revealed that the late Mr. LeDonne’s wife was having an affair with a gentleman named Frank McDonough. She began living with Mr. McDonough shortly after the murder of her husband and the receipt of a large life insurance benefit check. Mr. McDonough was present at the hospital when the claimant was born, and Mrs. LeDonne and Mr. McDonough were considered by many observers as "quite friendly in a relationship sort of way." Mr. McDonough was ultimately tried and convicted for the murder of Mr. LeDonne and his co-employee, and Mrs. LeDonne was given a lesser sentence for her testimony against him as part of plea bargain. Testimony from the police, as well as a number of other witnesses, was proffered during the workers’ compensation proceedings.
Initial Ruling: The Workers’ Compensation Judge dismissed the Fatal Claim Petition filed by the LeDonne child, through his representative, in that his father was murdered for personal reasons that had nothing to do with the late Mr. LeDonne’s employment. The Judge found that the criminal convictions were not the only basis for this determination but that there was substantial testimonial evidence from which the Judge could "reasonably infer" that the decedent’s wife and boyfriend had a personal relationship and that this relationship and their financial interest in his death-that is, the insurance proceeds-were the actual cause of Mr. LeDonne’s demise. Further, the Judge concluded that Mr. LeDonne was not in the course of his employment when he was killed, in that he was not in the furtherance of his employer’s affairs at the time that he was killed, as he had left the construction site and completed his job duties for the day. This evidence, the Judge held, rebutted the initial presumption to which the claimant was entitled, that is, that because his father was a traveling employee, his death would be presumed to have occurred in the Court of his employment.
Appeal Board Ruling: The Board affirmed, discussing the appropriateness of the evidence from the criminal case, that is, the certified copies of the guilty plea and verdict as proof of personal animus toward the late Mr. LeDonne.
Court Rationale: On appeal, the claimant urged that the personal animus defense had not been proven, arguing that the conviction was inadmissible hearsay and should not have been permitted into the record, and that the conviction did not have collateral estoppel effect in the workers’ compensation proceeding, that is, the Judge was not required to accept it as proof of those facts. The Court discussed at length what "personal animus" means as a defense to a claim. The Act itself states that an injury "caused by a third person intended to injure the employe because of reasons personal to him and not directed against him as an employe or because of his employment" is not covered by the Workers’ Compensation Act. The employer has the burden of proof on this defense. In this case, the Court reasoned, the submission of certified documents from the New Jersey trial and from the guilty plea were properly admitted by the WCJ under the "more relaxed" rules of evidence which govern workers’ compensation. The Court accepted the Board’s rationale that to refuse to admit the documents would be to require the employer to effectively re-try an out of state murder case.
The Court held that, at bottom, the employer was required to prove that Mr. LeDonne was killed for reasons unrelated to his work, not necessarily that Mr. McDonough was the killer. The Court held that the testimony from the several police officers who had investigated the case, the personnel at the hospital who had observed Mrs. LeDonne and Mr. McDonough when the minor claimant was born, and the decedent’s mother were all convincing to show that Mr. LeDonne was murdered for reasons personal and not for anything to do with his workplace. Because of this disposition of the case, the Court did not discuss the second alleged error, that is, whether Mr. LeDonne, as a traveling employee, was in the "course and scope" of his employment at the time of his death, which the Judge had found he was not.
This case illustrates that employers have a heavy burden in showing reasons personal or any other defense to the payment of workers’ compensation benefits where there is a presumption in favor of the claimant. The facts of this case are somewhat egregious-tragic the Commonwealth Court called them-but they do illustrate that there are barriers to the receipt of compensation. If two co-workers argue over issues that are work-related, and one is injured, that is within course and scope; if their argument is because of a bad debt or another woman, then the reasons personal defense may be appropriate.
It does seem, however, that if the Court would have had to address the Judge’s decision that Mr. LeDonne was not in the course and scope of his employment at the time of his murder, and that was the only defense, the outcome could have been different. Traveling employees, particularly those who must be away from home in order to conduct their employer’s business, are given much more "leeway" in what is considered to be in furtherance of the employer’s business. Because Mr. LeDonne would not have been in that hotel save for his employment, had the reasons personal defense failed the employer, compensation might have been awarded. However, the facts in this case would just not allow that to occur.
Upcoming Seminars
| What | When | Where |
|---|---|---|
| Workers’ Compensation Seminars | February 5, 2008 at 3:30pm | Local UE 625 East Huntingdon Vol. Fire Dept. Mt. Pleasant, PA |
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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