Court Holds Workers Compensation Employer May Enter Judgment In Common Pleas Court

Below is a link to the Superior Court decision from July 8, 2008 where the court holds 2-1 in United Parcel Service v. Hohider (Klein dissenting) that an employer is allowed to enter a judgment in the court of common pleas based upon a Workers Compensation Judge's order that a certain amount of a workers compensation lien had not been paid back.

The trial court struck the request to enter the judgment because it held that Section 428 of the Pennsylvania Workers Compensation act only provides the right to enter an automatic judgment to the employee and not the employer.

The Superior Court decision by Judge Bender recognizes that Section 428 only provides the right to enter a judgment to the employee but also notes that there is an absolute right under section 319 of the Act for the employer to be reimbursed. Thus, it finds that disallowing an employer to enter a judgment in the common pleas court would render the workers compensation judge order a nullity so it allows the judgment.

Judge Klein dissents and indicates that there may be valid reasons to challenge the order that should be litigated and since the legislature has not given the employer the right then the court should not allow it.

This decision basically turns Section 428 on its head. Another case where an appellate judge reads something in a statute that is not there merely to support the ultimate decision that is desired. Hopefully the Supreme Court will take care of this one.

See the full decision here.

What happens at Pennsylvania Workers' Compensation hearings?

Many clients often ask and wonder what a Pennsylvania workers' compensation hearing is like...what happens, etc. There are general rules the Judges must follow, but those rules are non-specific. Each Judge can handle their hearings a little differently.

To help claimants and attorneys, the Pennsylvania Workers' Compensation Bureau has compiled a resource that details what each Judge expects at hearings, what rules attorneys should follow, etc. The resource is set up by answering a list of questions that are provided below:

1. What will occur at the first meeting with the judge?
2. Is a pre-hearing memorandum required at the first meeting with the judge?
3. Is a pre-hearing stipulation required at the first meeting with the judge?
4. Do you require counsel to provide bureau documents relating to the claim?
5. Do you use a one-day/one-hearing format or a serial hearing?
6. What are your rules regarding the taking of testimony?
7. What procedure do you follow if a party fails to appear at the first hearing?
8. What are your procedures for supersedeas hearings?
9. What is your procedure regarding the order of testimony with respect to submission of medical evidence, particularly when cross petitions are filed?
10. What is your procedure regarding continuances, changes in hearing times and extensions?
11. To what extent do you follow the time limits in the special rules?
12. What is your procedure for handling discovery disputes, e.g., do you employ telephone conferences, do you prefer to attend certain depositions, etc.?
13. Under what circumstances will you permit a party or witness (including an expert witness) to testify by deposition or by phone, rather than appear at the
hearing?
14. Are you willing to allow counsel to participate in hearings by telephone?
15. Do you require that counsel pre-mark or provide lists of exhibits?
16. Must counsel bring copies to the hearing or may they be made at the judge's office?
17. Are you willing to close a case by mail or is a final hearing required?
18. Do you accept faxes and e-mails from the parties?
19. What are your procedural rules regarding the review of Compromise and Release Agreements?
20. Do you have any special procedures for trial of psychological injury cases?
21. What procedures should the parties follow regarding motions for recusal?
22. What is the latest date as of which the parties may file written preservations of deposition objections?
23. What are the time requirements for the submission of briefs and other post-hearing submissions?
24. Please describe your preferences for the format and content of post-trial submissions.

Each Judge's answer to these questions can be found here. All you need to do is search by the Judge's individual name. This is an excellent resource for attorneys who handle Pennsylvania Workers' Compensation cases as well as injured workers who want to educate themselves on what actually happens at a workers' compensation hearing.

Why can't you get your mileage paid for when you see your doctor for a work related treatment?

During these times when gas prices are so high, the question of getting paid for mileage for travelling to treatment is often brought up. The general rule is that when you have to see the defense medical expert (DME or IME), then the insurance company must either provide transportation for you or, at the very least, pay you the IRS mileage rate which is currently $.50.5 cents/mile.

So, what do you do when you have to travel quite a distance just to see your treating doctors? You normally don't receive mileage payments for this.

The controlling case law is fairly straight forward and only involves primarily three Commonwealth Court cases. The first, Harbinson-Walker Refractories v. WCAB (Huntsman), 513 A.2d 566 (Pa.Cmwlth. 1986), created various factors to be considered in assessing the reasonableness of travel expenses for medical treatment:

1) whether the employer was aware of the long distance treatments;

2) whether the claimant was specifically referred to the distant location for the treatment;

3) whether the treatment was available at a closer location; and

4) whether the long distance treatment comprised an integral part of the ongoing medical treatment.

In Helen Mining Co. v. WCAB (Tantlinger), 616 A.2d 759 (Pa.Cmwlth. 1992), the court summarized the Harinson-Walker elements into three distinct rules:

1) if treatment is available locally, the claimant is not entitled to reimbursement for travel expenses except in exceptional circumstances;

2) if treatment is available locally and the claimant chooses a physician outside the local area, the claimant is not entitled to reimbursement for travel expenses;

3) if treatment is not available locally, the claimant is entitled to reimbursement for travel expenses as long as the claimant travels to a facility where others are or would be
referred.

Finally, in Holly v. WCAB (Lutheran Home), 735 A.2d 153 (Pa.Cmwlth. 1999), the court addressed the Helen Mining elements and created another distinct rule. In Holly, the court summarized the holdings in the previous cases. The court further stated that the initial inquiry in any case involving reimbursement for travel expenses is whether the treatment sought is available locally. Id. at 155. After an in-depth analysis, the court made the general rule that under Helen Mining, “travel exceeding 100 miles one way for medical treatment is “long distance” travel, not “local” travel” as a matter of law. Id. at 156.

In no way did the court ever state that the general “100 mile” rule is to be applied in every case no matter what the facts. Actually, in reading the Holly decision, you can tell that the court attempted to limit the issue depending on the facts of every case. If the travel was over 100 miles one way, then the general rule would apply. However, if the travel was less than 100 miles one way, then a court would have to filter the facts through the three elements in Helen Mining to make a decision on whether to grant travel expenses.

New case law on when a Pennsylvania Workers' Compensation Judge can change the description of your work injury

In the case of City of Philadelphia v WCAB (Smith) the Pennsylvania Commonwealth Court issued a decision on April 25, 2008, addressing the issue of when a Workers’ Compensation Judge may amend the description of a work injury. The Court held that the Judge can amend a Notice of Compensation Payable if the description of the work injury is “materially incorrect” as long as the evidence supports such a conclusion. The Judge has the power to do this even if the Claimant has not specifically asked for the amendment in a Review Petition. A Judge can do this during any pending litigation.

Therefore, the WCJ did not commit an error of law upon affirming a WCJ’s denial of the employer’s Petition for Termination where the Notice of Compensation Payable recognized the injury of lumbar strain and the WCJ, upon issuing its second determination following a remand, determined that the Notice of Compensation Payable was materially incorrect at the time it was issued and amended the Notice of Compensation Payable to include “posttraumatic lumbar
radiculopathy and two herniated discs at L5-S1” as part of the original injury".

Ok, so why is this important? Many times the insurance company will deny the payment of bills because the treatment was NOT for the accepted work injury. So, if your doctor tells you that herniated disc surgery is necessary on your lumbar spine, the insurance company might refuse to pay the surgery because the accepted work injury was merely a low back strain.

This is where I come in.....

New case law on what constitutes "Reasonable Medical Certainty" by testifying doctors

In the case of Griffin v University of Pittsburgh, which is a May 19, 2008, Superior Court case, the court held that when a physician testifies that there was a 51-49% probability that the negligent act caused the injury, this was legally insufficient to offer an opinion to a “reasonable degree of medical certainty.” Although this is not a workers’ compensation case, most doctors spit out the phrase “to a reasonable degree of medical certainty” without actually defining its meaning.

Therefore, if you have a defense doctor who is a little less sure of the opinion he/she is offering, but also uses the magic language ask him/her to put a percentage on it. You might get lucky! The doctor could give some kind of split percentage as in this case and you can argue that based upon the Griffin case, the opinion is legally insufficient.