• Carrier Required to Reimburse Medical Expenses in Excess of Capped Rates Under Act 44
  • May 6, 2003
  • Law Firm: Harvey, Pennington, Cabot, Griffith & Renneisen, Ltd. - Philadelphia Office
  • In Furnival State Machinery v. W.C.A.B., No. 2674 C.D. 1999 dec'd on August 10, 2000. The claimant suffered an injury to her ankle on February 7, 1992 which ultimately led to ankle replacement surgery. The workers' compensation carrier denied coverage for the surgery contending that the operation was not related to the work injury. The health and accident carrier then paid $34,869.41 for medical services relating to the surgery. The workers' compensation carrier subsequently acknowledged its responsibility but tendered only $14,435.34 which represented the amount that he would have had to pay had it processed the bills for payment under Act 44 when initially presented. The health carrier pursued its right to the differential. The WCJ sided with the workers' compensation carrier and held that the Act 44 amendments limited the carrier's responsibility to the capped rate. The Commonwealth Court disagreed and held that Section 319 of the Act, which pertains to subrogation rights, entitles the employer or insurance company who made payments on the basis that the injury was not compensable, were entitled to the amount paid. In a foot note the Court cautioned that its holding did not give medical providers a license to "coverage shop." The rule under Section 319 applies only where the provider must submit the charges to the third party payor because the workers' compensation carrier has denied.

    Sufficiency of Medical Evidence

    In Moore v. W.C.A.B., No. 433 C.D. 2000, dec'd on August 9, 2000, the WCJ granted the employer's petition to terminate based on medical testimony that the claimant had fully recovered. However, when testifying on a subsequent occasion, the doctor recanted after looking at additional records. Since the WCJ based his finding of full recovery on this doctor's opinion, the Commonwealth Court held that his decision was not supported by competent evidence. This was true even though the testimony of another doctor was unequivocal. However, the WCJ had rejected the testimony of the other doctor.

    In Saville v. W.C.A.B., No. 1973 C.D. 1999, dec'd on August 7, 2000, the Court also considered the sufficiency of medical testimony. In this case, the defendant's doctor had testified that the claimant was fully recovered from his work injury but remained restricted and symptomatic based on degenerative changes which were not related to the injury and which were not aggravated by the work injury. On appeal, the claimant argued that the doctor's testimony was equivocal as the doctor had restricted the claimant's activities based, in part, on the claimant's subjective complaints. The claimant argued that under Udvari, the seminal case on point, the doctor's testimony fails the sufficiency test when he acknowledges the claimant's subjective complaints and restricts his work activities. The Court specifically rejected this argument. This Rule is not applicable to a case where the doctor specifically states that the claimant is fully recovered and that the restrictions are not related to the work injury.

    In Bucci v. W.C.A.B., No. 411 C.D. 2000, dec'd on August 23, 2000, the claimant's petition for hearing loss benefits was rejected based on medical evidence presented by the employer. The claimant appealed arguing that the testimony of defendant's medical expert was insufficient as the defendant's doctor merely attributed the claimant's condition to presbycusis. The Court acknowledged that deduction from the claimant's entitlement on the basis of presbycusis was impermissible under a recent decision of the Supreme Court but the WCJ did not find that the claimant's hearing loss was at least in part caused by his employment and then reduce the award by a standard allowance for presbycusis (degeneration due to the natural aging process). On the contrary, the WCJ accepted the defense doctor's opinion that the claimant's hearing loss was not caused by occupational noise but was more likely due to other causes including presbycusis.

    Suspension Based on Failure to Complete Form 760

    In Galloway v. W.C.A.B., No. 427 C.D. 2000, dec'd on August 4, 2000, the employer suspended the claimant's benefits for failure to return a properly completed LIBC-760 form (Employees' Verification of Employment, Self- Employment or Change in Physical Condition). However, the employee had actually returned the form but failed to reveal her residential address. The claimant then filed a penalty petition contending that the employer had unilaterally terminated her benefits. The WCJ ruled that the claimant's benefits should remain sustained until she supplied her residential address noting that the employer/carrier had a right to such information and the claimant could not circumvent this by authorizing alternative delivery of her checks to her attorney and refusing to complete the form. On appeal, the Commonwealth Court held that the WCJ was in error in suspending the claimant's benefits but sustained the WCJ's refusal to award penalties under the circumstances. However, the Court cautioned that, in the future, the award of penalties may not be within the discretion of the WCJ because of this decision.

    Psychiatric Disability

    In Daneker v. W.C.A.B., No. 1411 C.D. 1999, dec'd on August 3, 2000, the claimant became disabled due to a major depression including symptoms of agitation, nausea, abdominal pain and vomiting which she related to stress on the job which included a change in her employment duties and disciplinary proceedings against her. The WCJ concluded that the claimant had failed to prove abnormal working conditions and the claimant appealed on the basis that she was not required to do that because her claim was a mental/ physical claim. The Court dismissed this argument under the recent Supreme Court's decision in Davis holding that when the claim involves a psychic injury, abnormal working conditions must be proven, regardless of whether it is manifested through psychic symptoms alone or physical symptoms as well. Therefore, the WCJ was correct in dismissing the claimant's petition as she had clearly failed to prove abnormal working conditions.