On June 20, 2017 the Pennsylvania Supreme Court issued its long awaited Decision in the case of Protz v. WCAB (Derry Area School District).
Unfortunately, the Pennsylvania Supreme Court held that Section 306 (a.2), which gave Employers and Carriers the right to request an Impairment Rating Evaluation, was unconstitutional, and struck this provision from the Pennsylvania Workers' Compensation Act. The Court’s ruling in this case will have a detrimental effect on any cases in Pennsylvania which utilized the Impairment Rating Evaluation (IRE).
By way of background, in 1996, the State Legislature enacted Section 306 (a.2), which permitted Employers to schedule an IRE. If the IRE yielded an impairment rating of less than 50 percent, the Claimant's disability status could be modified from total to partial disability without having to litigate any type of petition. When the law was enacted, the Fourth Edition of the American Medical Association (AMA) Guidelines was the most recent edition. The AMA was revised in 2001 and again in 2008.
In Protz, the Claimant injured her knee in 2007. In 2011, the Employer requested an IRE. The IRE physician assigned her a 10 percent impairment rating based upon the Sixth Edition of the AMA. The Employer filed a Modification Petition seeking to convert the Claimant's disability status from total to partial disability. The Workers' Compensation Judge (WCJ) ruled that the impairment was less than 50 percent and granted the Modification Petition. The Claimant appealed to the Workers' Compensation Appeal Board (WCAB) challenging whether the legislature "unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment." The WCAB affirmed the Judge, and the Claimant appealed to the Commonwealth Court. The Commonwealth Court reversed the WCAB and declared the law unconstitutional only "insofar as it proactively approved versions of the AMA Guides beyond the Fourth Edition without review." The Court remanded the case back to the WCJ with specific instructions to apply the Fourth Edition of the Guidelines, the version that was in existence when the law was enacted in 1996.
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NAULTY, SCARICAMAZZA & McDEVITT, LLC
NAULTY SCARICAMAZZA & McDEVITT, LLC
In the past few months, Naulty attorney Robert Dillon has obtained five (5) defense verdicts on behalf of healthcare providers.
In May of 2017, Mr. Dillon successfully defended a surgeon in a case held in Dauphin County. The plaintiff alleged that the surgeon negligently performed two (2) colonoscopies that failed to detect a cancerous tumor that eventually spread and caused the death of the patient. The Jury returned a verdict in favor of the defendant surgeon who had performed the colonoscopies.
In April of 2017, Mr. Dillon successfully defended a urologist in a case involving an allegation that the surgeon was responsible for improper surgery in order to correct a varicocele that resulted in the lost function of a testicle, decreased testosterone and sexual dysfunction of a forty (40) year old male. The Jury returned a verdict in favor of the urological surgeon.
In February of 2017, Mr. Dillon successfully defended two (2) podiatrists in a two and a half (2 1/2) week trial involving allegations that both podiatrists participated in a surgical procedure that resulted in the plaintiff developing nerve damage to her foot. The Jury returned a verdict in favor of both podiatric surgeons.
In November of 2016, Mr. Dillon successfully defended a podiatrist in Montgomery County concerning allegations that the defendant podiatrist misdiagnosed and improperly treated a patient who had developed an infection in the heel, which in turn caused years of disability, several surgeries and significant pain and discomfort. The Jury returned a verdict in favor of the defendant podiatrist.
In October of 2016, Mr. Dillon represented a podiatrist in Chester County in which it was alleged that the podiatrist mismanaged an infectious process that was developing in the patient’s foot, which in turn caused hospitalization, bone infection, surgery and a partial foot amputation. The Jury returned a verdict in favor of the defendant podiatrist.
Naulty partner Angelo L. Scaricamazza won a directed verdict on behalf of his client - a regional public transit carrier. The case was tried in the Philadelphia County Court of Common Pleas before the Honorable Marlene Lachman from Wednesday, April 27, 2016 through Friday, April 29, 2016. The case concerned allegations that the train operator failed to brake in time to avoid a collision with a vehicle partially stopped on the tracks.
During the course of the trial, Angelo presented a safety inspector who testified that the train operator would not have been able to see the vehicle until it was within 638 feet of the train. He also testified that sand from the brakes - indicating the moment when braking began - was found 618 feet from site of the collision; nevertheless, the train came to a stop 200 feet past the vehicle. Subsequently, the train operator testified that the dark and rainy conditions made it more difficult than usual to see the vehicle. Angelo argued that the train operator acted properly and there was no way to stop the train in time to avoid the collision.
At the conclusion of the defense case, Angelo made a motion for a directed verdict; he argued that the plaintiff had not presented enough evidence for a jury to reasonably conclude that the plaintiff had met the burden of proof. Judge Lachman then ruled that despite plaintiff's counsel's claims that the train operator was traveling too quickly and had not kept an assured clear distance, there was insufficient evidence to support these allegations.
In 2014, the Supreme Court of New Jersey reversed the earlier decisions of both the original Judge of Compensation and the Superior Court in the matter of Renner v. AT&T. The Supreme Court decided in a unanimous vote of 5-0 supporting the Opinion of Judge Ariel A. Rodriquez, which denied workers' compensation benefits to the claimant for an embolism suffered by his late wife while working at home for AT&T.
This Supreme Court of New Jersey decision is clearly favorable to the employer and shows a reluctance of the Supreme Court to give the benefit of the doubt in favor of the petitioner merely in sympathy or as part of a greater remedial purpose of the Act. At first glance, it may appear that this holding may be of use to employers in "occupational" cases where petitioners claim that their ordinary work activities have precipitated a wide array of orthopedic repetitive stress injuries or pulmonary conditions. However, the decision in this case may be of limited scope; the unique facts and cardiovascular claims may not be applicable to occupational injury claims or occupational claims under N.J.S.A. 34:15-31.
To briefly review the facts: the decedent was working from home on the night and morning prior to her death from a pulmonary embolism purportedly caused from a blood clot in the leg due to deep vein thrombosis (DVT). She had spent the night at home working until at least 12:26 a.m., and possibly throughout the entire night, as her son saw her working at home at 7:00 a.m. She worked until she completed the project at issue at 10:30 a.m. While working, she performed activities including: sending e-mails, reading, making phone calls, and participating in conferences. About an hour after she completed her last e-mail, the decedent called for an ambulance, and upon the arrival of EMS, resuscitative measures were not successful.
The Workers' Compensation Judge below found in favor of the petitioner-widow. The judge adopted the petitioner's expert's testimony that the work effort of sitting at her desk for the extended period of time contributed in a material degree to the DVT and her death. The sedentary nature of the job was found to be the precipitant in the pulmonary embolism.
The employer appealed on the basis that there was no evidence that the deceased’s work activities exceeded the wear and tear caused by her normal non-work activities and there was insufficient evidence that the work activities caused the embolism.
The Supreme Court's decision focused on the fact that this was a cardiovascular or cerebral vascular case, and was thus governed specifically by N.J.S.A. 34:15-7.2. In 1979, the legislature enacted this provision specifically to address cardiovascular or cerebral vascular cases to ensure that employers would not be responsible for cardiac incidents that as a matter of circumstance happen at work. The provision was founded upon a presumption that heart attacks are caused by natural causes, and it required more reliable proof of the connection between the work effort and the cardiac event - particularly, that the work effort or strain was in excess of the wear and tear of the petitioner’s daily living.
The Supreme Court held that the act of the extended sitting while the decedent conducted her professional responsibilities at home did not constitute a work effort or strain to support a compensable cardiovascular claim, as Section 7.2 required. It appears that the Court also found against the petitioner on a factual basis of whether it was even believable that she was engaged in sedentary sitting in the first place. The Court noted that since she was working from home, she was not confined to a particular space, she could take breaks, she had control over her body position, and she could move about and exercise. Therefore, the court held that prolonged sitting was not compelled by her job.
The applicability of the decision in this case to other cases may be limited by the unique facts of the work at home situation, where the alleged exertion itself was prolonged inactivity. The Court did not even get to the step in the analysis in measuring the intensity of the work effort against the petitioner’s normal activities, as the Court found no work effort or strain in the first place. However, it should be noted that the employer’s expert opined that the deceased’s daily life was obviously sedentary at home and in her daily activities outside work.
In summary, the reaching implication of the Court’s decision may be limited only to cardio or cerebral vascular cases under 34:15-7.2. Also, the facts here likely made the case unique with the alleged work effort or stress being only an implication of prolonged sitting, with the twist that the decedent was working from home.
Case #1: I successfully defeated a claim for ongoing benefits in Pennsylvania. The background facts are that the Claimant did suffer a compensable injury and was being paid benefits under New Jersey law. Claimant then filed a Pennsylvania claim alleging that he remained totally disabled and would be entitled to Pennsylvania benefits. Claimant’s accident happened in Pennsylvania while he was working for a New Jersey company so there was concurrent jurisdiction. Claimant actually filed his petition while he was receiving New Jersey benefits.
We were able, through testimony from the Employer, to show that a job had been offered to Claimant, after he was cleared to return to work by the treating physician. In addition, Claimant lied about prior injury/treatment to the injured body part. The Judge suspended Claimant’s benefits based upon the evidence we offered and found Claimant’s testimony incredible. Claimant appealed to the Workers’ Compensation Appeal Board and then to the Commonwealth Court. Both the Appeal Board and the Commonwealth Court affirmed the Judge’s decision.
Case #2: Claimant filed a Pennsylvania Claim Petition alleging multiple injuries due to an allegedly work related motor vehicle accident.
The Employer denied the claim because Claimant alleged that immediately after the accident she called to Employer to tell them the accident occurred. Claimant was using a cell phone provided by the Employer and a search done on the numbers Claimant called the day of the accident did not show any calls to the Employer. This fact was submitted into evidence, along with expert witness testimony that, even if Claimant had suffered injuries, she was fully recovered. This case went to mandatory mediation and the settlement demand was over $200,000. We fully litigated the case. The Judge awarded benefits from the date of accident to the date Claimant was examined by our IME doctor, which was approximately 18 weeks of benefits, then terminated Claimant’s benefits. The overall award was approximately one tenth of what Claimant was seeking at the mediation. Had the Claimant been awarded open ended benefits, the case likely would have cost the Employer/Insurer over $250,000.
NAULTY, SCARICAMAZZA & McDEVITT, LLC
PADC’s first ever law school event was held on the evening of Feb. 19, 2019. It was a fun event and I wanted to thank: Andre J. Webb of German, Gallagher & Murtagh, P.C, Rachel A. Kelley of Sweeney & Sheehan, P.C., Holly Kendorski of Naulty, Scaricamazza & McDevitt, LLC, Lauren Steins of Deasey, Mahoney & Valentini, Ltd. and Jim Scott, of Bodell Bove LLC for helping to make the night a success.