Prior to June 20, 2017, a powerful tool was available to employers and workers’ compensation carriers to cap exposure on long term workers’ compensation claims.  That tool, provided by the Act 44 amendments in 1996, was called an impairment rating evaluation (IRE) and generally worked like this: once a claimant had received 104 weeks of total disability benefits and had reached maximum medical improvement, the employer could request an IRE.  A doctor was assigned to perform the evaluation and was required by statute to consult the most recent version of the American Medical Association’s guidelines.  If, under those guidelines, the IRE doctor determined that the claimant’s injury caused less than 50% whole body impairment, the employee’s workers’ compensation benefits could be modified from total to partial disability status, with a corresponding time limitation on future indemnity benefits.  The process was helpful in resolving serious injury cases, where the employee was too disabled to work but had reached a medical plateau.

Pennsylvania workers’ compensation law places no cap on the length of time in which a claimant can receive total disability benefits.  Partial disability benefits, however, are capped at 500 weeks.  Thus, via the IRE process, it was possible to prevent a claimant from receiving total disability benefits indefinitely by modifying their status to a maximum of 500 weeks of partial disability benefits.

On June 20, 2017, the Pennsylvania Supreme Court changed all of this with its decision in Protz v. Workers’ Compensation Appeal Board.  In that case, the Court held that the IRE process was unconstitutional because the legislature is not permitted to delegate its authority to issue impairment rating guidelines to a non-legislative body (i.e. the American Medical Association).  Since the IRE provisions are legislated to be applied under the most current version of the American Medical Association guidelines (which are frequently updated), the Supreme Court struck down the IRE provisions of Pennsylvania’s Workers’ Compensation Act as an unconstitutional delegation of legislative authority.

The immediate impact of Protz on future claims is clear – unless the Pennsylvania Supreme Court reconsiders and reverses its decision, the IRE process is no longer available to employers and workers’ compensation insurance carriers.  This means that it will be considerably more difficult to cap exposure on workers’ compensation claims where an employee has received 104 weeks of temporary total disability benefits and has reached maximum medical improvement.  Indeed, a reversion to the use of vocational experts to establish job availability is likely, where light duty work at the time-of-injury employer is not available.  For claims where the IRE process was used prior to the court’s decision in Protz, outcomes are less clear.

Employers who are litigating a modification of benefits based on an IRE would do well to withdraw the modification petition.  Now that the IRE process has been deemed unconstitutional by the Pennsylvania Supreme Court, an IRE can no longer serve as a valid basis for future modification of benefits.  Without a valid basis to litigate a modification petition, employers who continue to rely on an IRE in litigation are exposed to penalties and unreasonable contest fees.

Likewise, employers who are actively seeking to obtain an IRE should refrain from doing so.  Again, the evaluation cannot provide a valid basis for modification of benefits, and the Bureau of Workers’ Compensation has also indicated that it will no longer assign IRE physicians in the wake of Protz.

So what about claims where benefits have been modified or a claimant’s status has been changed as the result of a past IRE where the claimant failed to appeal?  Employers likely have no affirmative obligation to restore the pre-IRE, pre-modification status quo, but claimants may file petitions seeking to do just that.  While Pennsylvania law typically prevents the retroactive application of judicial decisions to matters that have been fully and finally determined, it is unclear how workers’ compensation judges, the Appeal Board, and Pennsylvania Courts will approach the issue. In cases where an employer obtained a modification of benefits because of an IRE and the claimant did not appeal, the doctrine of res judicata may serve to prevent re-litigation of the case.

We will continue to monitor the status and impact of Protz; additional developments will be reported here on our blog.

Employers often shy away from discharging employees for disciplinary reasons when those employees are receiving workers’ compensation benefits, such as in instances where the employee is working a modified duty assignment.  However, such employees can and should be held to the same standards as other employees, including compliance with applicable policies and procedures.  Additionally, so long as the discharge is found to be related to the disciplinary violation, any subsequent loss of earnings will be deemed to be unrelated to the work injury, thus rendering the discharged employee ineligible for reinstatement of workers’ compensation wage loss benefits.

In a recent unreported Commonwealth court case, (Waugh v. WCAB, No. 702 C.D. 2016), the Claimant was employed as a certified nursing assistant (CNA) at a medical center.  She had sustained an accepted work injury to her right arm, when a patient grabbed and twisted her arm in the course and scope of her employment.  She underwent two surgeries and eventually returned to work in a modified duty capacity.

While working modified duty, Claimant was reprimanded for acting outside the scope of her employment for administering medication to a patient.  Several months later, there was a similar incident, in which Claimant applied a tourniquet to a patient while assisting a phlebotomist, who was attempting to draw blood.  Employer’s policy in the event a phlebotomist cannot locate a vein, is to call a specialized IV team to insert the needle and draw blood.  Claimant was terminated for this second instance of acting outside the scope of her employment.  Despite her protests that she was “only trying to help,” the termination was held to be proper, as was the workers’ compensation determination denying reinstatement of benefits.

The Court reaffirmed the longstanding rule that a lack of “good faith” on the part of the claimant, is sufficient to deny reinstatement of workers’ compensation wage loss benefits.  This is so, even where unemployment benefits are awarded, on the basis that the employer had not established a case of willful misconduct under the Pennsylvania Unemployment Compensation Act.

The determination of good faith or bad faith is obviously “fact sensitive,” but in situations where the employer would discharge the employee absent a workers’ compensation backdrop, this factor alone should not discourage the employer from taking the appropriate disciplinary action, including discharge.

For further information, on this subject, please feel free to contact Denise Elliott, Micah Saul or Paul Clouser, in our Lancaster office.

As a general rule, an employee who is injured while commuting to or from work is not entitled to workers’ compensation benefits, as the injuries are not deemed to be “in the course and scope of employment” by virtue of the longstanding “going and coming rule.”  There are exceptions to the rule, including: (1) situations where there is no fixed place of employment and the employee is therefore deemed to be a “traveling,” as opposed to “stationary” employee; (2) the employee is on a special assignment for the employer; (3) the employment contract includes transportation to and from work; or (4) special circumstances exist, such that the employee was furthering the interests of the employer when injured.

In an interesting recent case, the Commonwealth Court awarded compensation under the special circumstances exception, despite the fact that Claimant was commuting to work at the time of his motor vehicle accident.

The employee, Miller, was a salaried director of maintenance services, exempt from the overtime requirements of the Fair Labor Standards Act. His regular work hours were from 7:00 a.m. to 3:30 p.m., Monday through Friday.  The employer maintained a four building campus as a facility for senior residents.  The campus had a system of security cameras, whose maintenance was an important priority for the employer.

Miller testified that in addition to his regular hours, he would be called in while off-site two to three times monthly.  In such instances, he received “comp time,” in lieu of additional pay.  The comp time accrued from the time he answered the phone, until he arrived back at home.  On the morning in question, Miller was “feeling very poor and weak.”  He stayed home past his usual 7:00 a.m. start time, with the intention of taking a sick day.  However, the employer called and requested that he stop in to reset the security cameras, after which he could return home for the rest of the day.  En route to the facility, Miller became nauseous and veered off the road, hitting a telephone pole.  He sustained multiple injuries, including a broken eye socket, broken pelvis, ruptured bladder and multiple scars and disfigurements.

The key issue before the WC Judge was whether Miller was commuting to a fixed place of employment, such that the “going and coming rule” barred his claim, or whether special circumstances existed, such that an exception to the rule applied.

Since “but for” the security camera emergency, Miller would not have made the trip to work, the Judge, and subsequently the Commonwealth Court, concluded that this factor brought the case within the “special circumstances” exception to the going and coming rule, and awarded benefits.

The key takeaway is that commuting cases are often fact sensitive and need to be analyzed carefully, to determine whether workers’ compensation benefits are appropriate.  For example, construction workers who might at first glance appear to be “traveling” as opposed to “stationary” employees, are frequently deemed to be “stationary,” if they are working at only one job site at a time.  As such, the “going and coming” rule might preclude compensation in such cases, absent special circumstances.

Please contact Paul Clouser, Denise Elliott or Micah Saul, if you have questions about situations in which your employees may or may not be deemed to be “in the course and scope” of their employment, pursuant to the Pennsylvania Workers’ Compensation Act.

The use of temporary employees provided by agencies that supply laborers, secretaries, nurses or other skilled or unskilled workers to the public and private sector is increasing. Employers who use these temporary agency workers’ must be wary of the relationships created by the use of the temporary agency workers. Are the temporary workers “employed” by the agency, the borrowing employer, or both, for purposes of the Pennsylvania Workers’ Compensation Act (the “Act”)?  The answer will determine which entity or entities may claim immunity from a common law action, under the exclusive remedy provisions of the Act.

The critical test for determining whether a worker furnished by one entity to another is “employed” by the latter, is whether the worker is under the latter’s right of control with respect to both the work performed and the manner in which the work is performed.  For example, suppose a municipal township needs a temporary worker to ride on the back of a municipal trash truck.  After receiving only minimal instruction, the worker falls from the moving truck on his first day of work and dies ten (10) months later.  Suppose the agency, Labor Ready, pays $770,000 in workers’ compensation benefits.  A civil suit is then initiated by the decedent’s estate against both Labor Ready and the Township.  Does the decedent’s estate have a viable civil claim against either entity? Under this fact pattern, the trial judge dismissed, on summary judgment, both Labor Ready and Rye Township, finding that both entities were “employers” entitled to protection under the immunity provisions of the Act.  The ruling was affirmed by the Commonwealth Court on appeal.  Nagle v. Labor Ready and Rye Township (Pa. Cmwlth. 2016).  Similar results have been reached in volunteer fire fighter liability cases, where both the volunteer fire company and the sponsoring township enjoy immunity.  Indeed the “borrowed employee” doctrine provides broad immunity in both the public and private sectors, at least where the borrowing employer exerts the requisite degree of control over the borrowed employee, (See, e.g., Hendershot v. Emmeci Northampton County 2016). A temporary agency supplied a machine operator to its manufacturing client and the agency employee sustained serious injuries while cleaning the machine.

Nevertheless, despite broad interpretation on the “borrowed employee” doctrine, employers have been found to be liable for damages beyond workers’ compensation, in circumstances where: (a) the requisite degree of control does not exist (i.e. a company leases a piece of equipment with an operator and the operator is then injured on the company’s premises) or (b) the borrowing employer forfeits its immunity by filing an Answer to the workers’ compensation claim petition denying that it is the employer, and alleging that the temporary agency is solely responsible.  Black v. Labor Ready (Pa. Super. 2010).

Employers should be sensitive to the range of potential outcomes when staffing positions with “borrowed employees,” and should review any temporary agency agreements to insure the broadest possible immunity from suit, along with proper indemnification language, with respect to agency employees who are hired into temporary positions or assignments.

Please contact a member of our Labor and Employment Group for specific legal analysis of temporary employment arrangements at your facility.

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) finalized a recordkeeping and reporting rule that will require covered employers to take the additional step of electronically submitting to OSHA, injury and illness information that is required to be maintained under existing OSHA regulations.  The rule becomes effective January 1, 2017.

The new electronic submission requirement applies to: (a) employers with 250 or more employers who are currently required to keep OSHA injury and illness records (i.e. OSHA forms 300, 300A and 301) and (b) employers with 20-249 employees in certain industries with historically high rates of occupational industries and illnesses.  The electronic submission requirements do not alter the employer’s obligation to complete and retain injury and illness records, as before.  For illnesses and injuries occurring in 2017, the electronic submission deadline is July 1, 2017.

Believe it or not, OSHA plans to post the injury and illness data it collects on its public website (www.osha.gov).  OSHA has indicated that it will remove any personally identifiable information (“PII”) before making the data available to the public.  States that operate their own job safety and health programs (i.e. OSHA state plans) must adopt requirements that are substantially identical to the new rule within six (6) months.

The new requirements introduce a public watchdog role.  Apparently, this role is being added in response to the near doubling of the number of workplaces in the U.S. from 1981 to the present, and the corresponding decrease in the ratio of OSHA inspectors, to one per 4300 workplaces (according to a study by the Center for Effective Government).

The rule also bars employers from retaliating against workers for reporting workplace injuries and incidents, thereby creating a supplemental avenue for disgruntled workers who are inclined to pursue a wrongful discharge cause of action, in addition to more traditional workers’ compensation claims, for alleged workplace injuries.

The net effect of the rule may be to spur additional employment lawsuits, by making it easier for plaintiff lawyers to mine for accident information.

We will keep you apprised as to further developments, but in the interim, please feel free to contact any member of our Labor and Employment Group, with questions or concerns.

In Part 1 of this post, we explored the three types of work related mental injury claims addressed by the Pennsylvania Workers’ Compensation Act. In Part 2, we discussed how courts are increasingly easing the burden of proving abnormal working conditions. Now, we will discuss practical steps you can take to ensure you are not faced with a workers’ compensation claim for a mental condition completely unrelated to the workplace.

There are, of course, many reasons why people experience unhappiness or depression or feelings of insecurity or imbalance completely unrelated to their work environment:

Family Situations

  • a parent and a child do not talk to each other;
  • a spouse has left a marriage;
  • a wife is physically incapable of having a child;
  • a spouse is abusive, physically or emotionally;
  • a spouse is drug dependent or alcohol dependent;
  • a spouse has had an extramarital affair;
  • a parent suffers from Alzheimer’s or Dementia requiring the son or daughter to institutionalize him or her;
  • an adult experiences for the first time memories of abuse inflicted years earlier by a parent or other family member;
  • a parent’s child is killed or physically harmed;
  • a parent’s child suffers from a dysfunctional condition such as Attention Deficit Disorder or Schizophrenia or becomes drug dependent or has encounters with law enforcement

 Self-Induced Depression

  • the individual experiences anger/frustration over his or her lack of achievement, e.g. failing to land a job promotion or having never attended college;
  • the individual is inherently self-driven due to family expectations or unrealistic self-expectations;
  • an individual experiences frustration/anger over his or her confrontation with middle age;
  • the individual experiences delusions of grandeur causing profound employee dissatisfaction with job;

Other Causes

  • seemingly unrelated non-work related psychiatric conditions such as “histrionic personality syndrome” resulting indirectly in the filing of a workers’ compensation claim;
  • a false claim filed for purposes of secondary gain or monetary reward

What many lawyers fail to consider and investigate, are the circumstances surrounding, and leading up to, the occurrence of the mental injury at issue.  The lawyer who explores and analyzes those circumstances has a distinct advantage over the lawyer who does nothing more than respond to the basic allegations of the claim.

Employers, adjusters and nurse case managers can greatly assist their lawyers by conducting a thorough investigation after notice of a “stress claim.”  Some investigation best practices are as follows:

  • Conduct a thorough interview of the employee, ask questions about history of mental health treatment or diagnoses and ask about any other potential contributing factors.
  • Review employee’s attendance record for a history/pattern of absences that may be related to a stress or mental health reasons.
  • Obtain a HIPAA  and mental health release allowing the release of mental health information by the employee’s treating doctors and then obtain such records; also look for increased blood pressure, sleep disorders and cardiovascular disease, which may be related to non work stressors.
  • Speak to supervisors and co-workers to determine if the employee has mentioned any stress related issues in the past.
  • Investigate the working condition the employee alleges is abnormal or that led to the mental injury claim. Is it truly abnormal? Did the employee’s job recently change? Were there any reports of problems, issues or concerns prior to receiving notice of the claim? Have similar incidents occurred with other employees and is there any training provided to employees regarding such situations, etc?

Once the facts have been investigated, it is the responsibility of the attorney to present the facts to the workers’ compensation judge from the proper perspective.  Proper development of the facts, including the events leading up to the claim, ultimately allows defense counsel to provide the workers’ compensation judge with the full flavor of the dispute.

If you have questions regarding an alleged work-related stress or mental injury claim, please contact Paul Clouser or Denise Elliott in the Lancaster office.

In Part 1 of this blog post, we explored the three legal classifications of potentially work related mental injury claims addressed under the Pennsylvania Workers’ Compensation Act: physical/mental, mental/physical, and mental/mental. In this part, we will take a closer look at the rapidly developing area of mental/mental cases. We will also provide practical advice on how you can protect your company from mental stress claims in Part 3 of this post.

As you will recall from Part 1, to succeed in establishing a Workers’ Compensation claim for a mental/mental injury (mental stimulus/mental injury), the employee must demonstrate that the injury resulted from an abnormal working condition. Historically, this has been a difficult burden for employees to meet. Consider, for example, the convenience store hold-up cases, where a convenience store clerk is held-up at gun point, is not physically touched or harmed, but suffers from anxiety, panic attacks and PTSD thereafter. In such cases, the employee cannot meet his/her burden of proving an abnormal working condition because, hold-ups are common in the industry, clerks are told as such, and clerks are trained regarding what to expect and how to handle a hold-up.

Recently, however, the courts have begun to ease the burden of proving abnormal working conditions.

In Payes v. WCAB (2013), the Pennsylvania Supreme Court notably eased the burden of proof in mental/mental cases, by holding that mental injury cases are highly fact-sensitive and that the Workers’ Compensation Judge (“WCJ”), as fact finder, must be given broad latitude in determining whether or not “abnormal working conditions” exist, given the specific facts of each individual case. In Payes, a State Trooper sustained PTSD after striking and killing a pedestrian who ran in front of his patrol car while he was traveling to the barracks. The WCJ awarded benefits, but the Appeal Board ruled in favor of the employer, finding that there was no abnormal working condition.  The Commonwealth Court affirmed, holding that a police officer can be expected to witness horrible tragedy and that “it is not beyond the realm of possibility for an officer to have to take someone’s life.” Further, the Court found it was normal for a police officer to administer first aid, including CPR, to a crash victim and that not all first aid attempts are successful.

The Supreme Court reversed, finding that the trooper was entitled to an award of benefits caused by “a singular extraordinary event occurring during [the claimant’s] work shift.” An abnormal working condition was found to exist, even though state troopers are routinely exposed to vehicle accidents, mayhem, bodily injury, death, murder and violent acts, in the normal course of their duties.  In this case, the death was found to be a “suicide by cop” situation, in which the responding officer was also placed in the zone of danger due to oncoming traffic, while attempting to revive the decedent, prior to the arrival of emergency personnel. The Supreme Court held that a State Trooper is not normally exposed to a mentally disturbed individual running in front of his vehicle, thus requiring the Trooper to perform CPR on such individual on a busy interstate highway. The lesson from Payes is that deference will be given to the fact finder, the WCJ, in these cases, to decide whether or not an abnormal working condition exists.

Recently, the Commonwealth Court followed the Supreme Court’s lead in Payes, by vacating and remanding a mental/mental case to the WCJ, for further consideration as to whether an armed robbery of the general manager of a check cashing business involved an “abnormal working condition.” The manager and her husband were abducted at gunpoint while opening the store. The husband was handcuffed and forced into the backseat of the gunman’s car, while the Claimant was led into the office at gunpoint, shoved to the ground and hog-tied. A panic button she had been given by her employer was inoperable, although she was eventually able to free herself and call 911. Following the assault, Claimant had regular nightmares, panic attacks, bouts of crying, and difficulty getting dressed or bathed.  She was diagnosed with PTSD as a direct result of the armed robbery. Noting that Claimant had been trained on how to respond in the event of a robbery and that a robbery was foreseeable and more than just a remote possibility, the WCJ nevertheless found no abnormal working condition. On remand, however, the Court held that the Judge is obligated to consider the facts surrounding this specific robbery, in deciding whether abnormal working conditions were present. Murphy v. WCAB (Pa. Cmwlth. Ct. 2015).

The trend toward compensability of stress claims is likely to continue in Pennsylvania, based on these developments.  Accordingly, employers would be wise to consider taking steps to reduce potential exposure to such claims.  A thorough investigation of the circumstances surrounding the filing of a claim for workers’ compensation benefits is perhaps the most important initial step to take.  Why?  Because there are so many causes for psychological or psychiatric conditions. We will explore this more in Part 3, tomorrow!

Mental injury claims, often stemming from workplace stressors, are on the rise and can create major headaches for employers. Understanding the relationship between stress in the workplace and resulting mental and physical disorders, such as psychiatric disorders or cardiovascular disease, isn’t easy.  Often there are more questions than answers. Can stress lead to anxiety attacks or depression? Can job induced stress cause your blood pressure to rise? Could it cause a heart attack or cardiac condition? How do we separate work-related from non-work related causes?

A recent estimate from the National Institutes of Health projected that the cost to the American economy of stress related health claims is close to $150 billion per year.  The cost is reflected in decreased productivity, absenteeism and massive increases in medical treatment costs.  Accordingly, it is not uncommon for corporations to spend millions of dollars each year on “stress management” programs.  As claims of stress-related mental illness and cardiovascular injury continue to rise, it becomes increasingly important for companies to be able to distinguish cases of compensable work-related stress from other non-compensable situations.  To do so, the employer must have a good working knowledge of some of the medical concepts associated with stress, and the legal framework within which these concepts will be applied.  To assist employers in this regard, Part 1 of this blog post will provide an overview of the general concepts and part 2 will explore some of the more recent Pennsylvania cases.

Employers familiar with mental injury claims will recall that Pennsylvania law distinguishes between three (3) types of mental injury cases – – physical/mental (a physical stimulus causing mental injury), mental/physical (a mental or emotional experience causing physical consequences), and pure mental/mental cases (mental or emotional stimulus causing purely emotional sequelae).

The above distinctions are important because differing burdens of proof apply depending on the proper categorization of the case.  In physical/mental and mental/physical cases, the Claimant need only establish, by a preponderance of the evidence, that his or her injuries arose in the course and scope of employment.  A higher burden of proof, however, attaches to mental/mental injuries and to prevail in these cases, the Claimant must demonstrate the presence of “abnormal working conditions.”

The best example of a “physical/mental” case involves an amputation or orthopedic injury of sufficient severity to necessitate later psychological counseling or psychiatric treatment for a condition such as depression or PTSD.  The mirror image of the physical/mental case is the so-called “mental/physical” case, which involves a work-related mental stimulus, triggering physical injury or illness.  Sometimes a heart attack or cardiac condition can qualify as a compensable event under this standard. A determination of causal connectedness to work often depends on medical evidence and opinion.  Although employees often file claims for depression and anxiety caused by general workplace stress, these claims usually are not compensable, because these are mental/mental claims and the abnormal work condition requirement is difficult to meet. Although difficult to prove, mental/mental cases, where an alleged abnormal working condition creates a mental stressor that in turn produces a mental or emotional disability, are the most hotly litigated.  These are highly fact specific cases with significant emotional investment by the Claimant. The heightened burden of proof (i.e. presence of an abnormal working condition) is typically found to have been met only where a mental disability is directly caused by a violation of law, such as sex, age, race or disability discrimination, or by some workplace event that is totally unexpected and abnormal with respect to Claimant’s specific employment (i.e. a police officer who witnesses a shooting has not necessarily been exposed to an abnormal working condition, absent additional facts).

The Pennsylvania Supreme Court held benefits were proper in a mental/mental case involving a coal miner with a pre-existing post-traumatic stress disorder.  The pre-existing condition, of which the employer was aware, had been caused by unwelcome homosexual propositions from his commanding officer, while initially serving in the U.S. Army in Vietnam.  The worker successfully argued that his underlying condition was materially aggravated by a series of three incidents over eight (8) days, during which his boss made comments in the presence of other workers, implying that he wanted to have sex with Claimant.  The employer offered testimony to establish that the comments were no different from the regular crude banter that often takes place between coal miners, and therefore did not constitute abnormal working conditions.  The Pennsylvania Supreme Court disagreed, noting that there had been sufficient evidence of a “course of conduct on the part of a supervisory employee, clearly calculated to cause severe emotional distress.”  Accordingly, the claimant met his burden of showing that he suffered from a mental injury, which involved more than a mere subjective reaction to normal working conditions.  RAG & (Cyprus) Emerald Resources v. WCAB (PA Supreme Court 2007).

With the foregoing legal framework in mind, in Part 2 of this blog post, we will explore more recent developments in the mental/mental line of cases and provide some practical insights as to how you can protect your company from work-related stress claims.

There are many opportunities to reduce workers’ compensation liability exposure both before and after litigation commences.  Indeed, one of the best strategies for reducing costs is to develop a culture of “safety” in the workplace, and to actively assess and implement engineering and ergonomic changes to minimize injuries.  It is equally important to implement a list of workers’ compensation panel physicians, who are familiar with your business and who have exhibited a proactive “return to work” philosophy.  The focus of this article is on steps that should be taken from the defense attorney perspective.  Employers who take an active role in their litigated cases consistently experience lower workers’ compensation costs and fewer long term cases.

Accident Investigation

Although very basic, this step is sometimes overlooked by experienced safety and claims professionals.  The basics include:

  • Visiting the accident site to obtain a detailed understanding of how the alleged injury occurred. The investigation should be supplemented by a detailed incident report, wherein the employee must explain, in detail, how the injury occurred. Also, make sure the injured employee has been given a copy of the ”Notification of Rights and Duties” form, along with a copy of the posted panel physician list, even if these documents were provided during orientation or at a safety meeting.  Failure to provide these forms negate any obligation the employee has to treat with a panel physician for the first 90 days.
  • Interview witnesses to the incident, co-employees familiar with the allegations being made by claimant and claimant’s immediate supervisor:
    • Was there any evidence of pre-existing complaints or problems?
    • Was the claimant disciplined recently or are there other factors that make the allegation of a work-related injury suspect?
  • Review the personnel file and dispensary log for “credibility clues” (i.e., recent hire, disciplinary probation, recent demotion or change in shift or hours of work, personality conflicts or issues with supervisor, etc.).
  • Obtain HIPAA compliant authorization to gain access to family doctor records.
    • This is the single most important (yet often overlooked) step employers can take.
    • Remember that a “block 6” denial of a claim “pending further medical investigation,” is often the best move to make in a questionable case, where previous records might disclose a pre­ existing and non-work related medical condition.
  • If possible, request an IDEX search to disclose prior claims against other employers.

Be Your Own Advocate

Too often, employers feel obligated to continue to employ an injured employee because the employer relies on the advice of its insurance carrier’s attorney or claims representative. Very often, however, the insurance company’s advice is motivated by its desire to limit their own exposure, rather than by the employer’s operational needs or policies.  If you don’t know your rights as an employer and do not exercise those rights, it is far more likely that you will continue to employ an unproductive employee for a very long time, or that you will violate your own leave policies.  For example, by continuing to provide modified duty work, you may inadvertently be setting a precedent for “permanent” light duty assignments for disabled workers.  This benefits neither the employer who is paying for the unproductive employee, nor the injured employee, who is denied the training and opportunity to find a position where he or she can be productive.file5601297827370

Vendor Selection

The firms and individuals you select to represent your company in workers’ compensation matters will have a major impact on the results you achieve and your overall workers’ compensation exposure. The major players need to function well as a team; they need to respect the employers’ policies and rights as a “customer” and they should have a proven track record with regard to employment litigation.

  • Claims Administrator – – This person should be familiar with the complexities of Pennsylvania law, proper reserving practices, the employer’s return-to-work program and policies, and any industry-specific safety issues. Quarterly claims review meetings, to review both litigated and “medical only” claims should be offered.
  • Rehab Nurse – – Perhaps the most important member of the team, if used correctly, the nurse should offer advice on establishing and maintaining the physician panel list, attend physician appointments on lost time cases, make recommendations for Independent Medical Exams (“IME” and fitness-­for-duty examinations and attend claims review meetings. While telephonic nurse case management may save on vendor costs, there is no substitute for an aggressive “hands on” approach, to reducing wage loss exposure.
  • Panel Physicians – -At least 6 providers or provider groups, covering the range of expected injuries in your particular workplace. All providers need to be “screened” with respect to return to work attitudes and willingness to provide critical causation opinions. The “gate keeper” provider should be familiar with the employer’s operation and the range of modified duty positions that are available for injured workers.

Counsel Selection

Employers should not be shy about making their preferences for legal representation known to the carrier or third party administrator.  The attorney’s primary practice should be in workers’ compensation and employer references should be readily available. Your attorney should have a good working knowledge of ADA, FMLA, Unemployment Compensation, PHRC, OSHA and wrongful discharge, since workers’ compensation cases often involve other related issues. Often times, large carriers and Third Party Administrators (“TPAs”) use “captive firms” to handle all their cases at a reduced rate or “flat fee.”  Although there may be a short-term cost savings in terms of reduced fees, the lawyers handling these cases typically have extremely large case loads and lack the time to effectively manage tough cases and lack the training and expertise to advise the employers on ancillary matters, including discrimination, termination, and FMLA issues, which may involve an even higher exposure to the employer than the workers’ compensation case. Most carriers and TPAs are willing to make exceptions and offer a recommended “non-panel” lawyer to handle a workers’ compensation case, but only if the employer specifically asks for the assignment. Likewise, many carriers and TPAs offer “telephone nurse case management,” which does save on vendor costs in the short term, but is largely ineffective when direct face-to-­face meetings with treating physicians are required.

When You Must Go to Court

If your testimony is required in a given case:

  • Know the file – – Review the personnel records, dispensary file, claimant’s testimony, and all other available documentation. This will allow you to address any unanticipated issues that may arise on cross-examination.  It will also give you confidence that will, in turn, make your testimony more credible and believable. Make sure the “right” witnesses are available to testify to avoid “hearsay” objections.
  • Review your testimony with counsel – -Do not hesitate to ask for a separate meeting, in advance of the hearing, to find out what specific questions you will be asked on direct examination and what questions might be asked on cross. You need to know how the hearing will be conducted by the WCJ and what the goal of your testimony will be.  Although the testimony should not seem “rehearsed,” you should be confident in your ability to effectively handle tough questions under pressure.
  • On the witness stand, answer the question directly– -Focus on the question and try to start with a direct response first, such as “yes” or “no,” followed by an explanation. However, do not speculate or guess at answers–do not be afraid to say “I don’t remember” or “I don’t know,” or “could you repeat the question,” if you need clarification.
  • Don’t be afraid to “take on” opposing counsel— If you have prepared in the manner suggested above, the chances are excellent that you are much better prepared than your adversary. Rather than letting the attorney “bully” you by mischaracterizing your testimony, feel free to point out that he/she may have “misunderstood” your previous answer and offer to “clarify” things for them.  Keep in mind that your attorney will also have a chance to “rehabilitate” any damage done on cross-examination, by allowing you to elaborate on your prior answers during redirect examination.

Be Creative

Make your case “stand out.”

  • These are the direct comments of a Lancaster WC Judge.
  • Plant visits, job videos/photos, unusual exhibits, diagrams/maps, accident reconstruction, etc. are often useful ways to supplement employer testimony.

If you have questions about a pending workers’ compensation matter, please contact Paul Clouser or Denise Elliott.