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DELVACCA presents. LIMITING EXPOSURE IN WORKERS’ COMPENSATION June 3, 2010. DELVACCA thanks BWH for their sponsorship of this event. LIMITING EXPOSURE IN WORKERS’ COMPENSATION. Introduction: Thomas C. Kelly, Esquire Burns White & Hickton - PowerPoint PPT PresentationTRANSCRIPT
DELVACCA presentsLIMITING EXPOSURE IN WORKERS’
COMPENSATION
June 3, 2010
DELVACCA thanks BWH for their sponsorship of this event
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Introduction:
Thomas C. Kelly, Esquire
Burns White & Hickton
At Burns, White & Hickton, we are committed to representing our clients with excellence. In fact, it was the pursuit of excellence that prompted us to establish our firm in 1987, focusing on transportation, litigation, and business law. Our ideal was and still is to abolish old-school thinking and to apply creative solutions to enhance their bottom-line results.
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Not WC 101
Focus on what we as lawyers can do to avoid litigation and to limit exposure once a case is in litigation.
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Issuance of initial bureau documents
Notice of Temporary Compensation Payable (NTCP)
Medical Only NTCP
Notice of Compensation Payable (NCP)
Notice of Workers’ Compensation Denial
Statement of Wages
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Notice of Temporary Compensation Payable (NTCP) and Medical Only NTCP (LIBC 501)
Allows employer 90 days to conduct investigation
Automatically converts after 90 days
Usually used if possible factual issue or degree of medical issue is involved
Good tool if claim is likely compensable (but be careful)
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Notice of Compensation Payable (NCP)(LIBC 495)
Claim is accepted as compensable
Once this is issued the employer/carrier cannot stop payment until either an agreement of the parties or judge’s order
One exception – Notice of Suspension or Modification (LIBC 751)
Description of injury and compensation rate generally dictate overall value of claim
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
NCP continued
Description of injury / Medical benefits
May also invite litigation
Indemnity benefits
Calculation of average weekly wage (AWW) and corresponding compensation rate.
Concurrent employment.
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Notice of Workers’ Compensation Denial (Denial) (LIBC 496)
Usually invites litigation
If there is an injury, even if not severe, it must be recognized
Penalty Petition for failing to recognize injuries (LIBC 686)
Factual contests easier to defend than medical ones
Initial investigation crucial
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Claim Petition (LIBC 362)
Claim now in litigation
Claimant’s burden
Remedial Act
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
“Yellow Freight” (Yellow Freight Sys., Inc. v. WCAB (Madara), 423 A.2d 1125 (Pa.Comwlth. 1981))
Untimely Answer to Claim Petition (more than 20 days)
Factual allegations deemed admitted
Claimant must still prove degree of disability
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Limiting exposure
Termination Petition
Suspension Petition
Modification Petition
Notification of Suspension or Modification
Supplemental Agreement
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Termination Petition (LIBC 398 (Multiple Use))
Legal standard (Employer’s burden)
Must prove that disability has ceased (change in medical condition) or that any present disability is not related to work injury (Daniels v. (WCAB Tristate Transport, (753 A.2d 293 (Pa.Cmwlth. 2000))
Purely medical issue
Judges are very claimant oriented (Remedial Act)
Medical questions almost always lose
Costs involved with Termination Petition must be considered
Litigations cost awarded if Employer looses
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Suspension Petition (LIBC 398 (Multiple Use)
Legal standard (Employer’s burden)
Return to work (RTW) at wages greater than or equal to pre-injury wage (Ede v. Ruhe Motor Corp., 136 A.2d 151 (Pa.Super. 1957))
Claimant needs to be released to RTW in Some capacity
Less difficult to obtain
Judges are more open to cutting off indemnity benefits if medical can remain open
Best if used in conjunction with termination petition
Judges more prone to grant lesser relief
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Modification Petition (LIBC 398 (Multiple Use)
Legal standard (Employer’s burden)
RTW with a wage loss
Employer responsible for 2/3 of difference (medical benefits remain open)
Least difficult to obtain (again, best if used with another petition - lesser relief)
Job offer with pre-injury employer (work availability)
Problem is that claimant may just show up.
Labor Market Survey (work generally available) (“Kachinski”)
Practically difficult
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Modification Petition Continued
Labor Market Survey
Kachinski v. WCAB (Vepco Const. Co., 532 A.2d 374 (Pa. 1987)
Four prongs
Employer must produce medical evidence of change in condition (ability to work)
Employer must then produce referrals to then open jobs (within geographical areas, physical and educational limits)
Employee must prove good faith effort to apply for jobs If no job results benefits continue
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Notification of Suspension or Modification (LIBC 751)
Unilateral tool
Good tool if claimant back to work, is a good employee, and is expected to remain
Claim is in suspended status (Medical still open)
Burden is on Claimant to come back and show wage loss
Reinstatement Petition
Employee Challenge
Special Supersedeas hearing
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Supplemental Agreement (LIBC 337)
By agreement of parties
Can be difficult to administer if repeated agreement necessary
Can be helpful in determining value of a claim for settlement
Burden on Claimant to show a recurrent loss of wage
Reinstatement Petition
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Supersedeas Fund
Termination / Suspension / Modification Petitions
Always request
Application for reimbursement (LIBC 662)
LIMITING EXPOSURE IN WORKERS’ COMPENSATION Settlement (Compromise and Release) (LIBC 755)
Typically between three and four years
Comp rate of $500 per week equals $26,000 annually
$78,000.00 – $104,000.00
Max Comp rate for 2010 is $845
Three years of benefits at the max comp rate in 2010 is $131,820
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Impairment Rating Evaluation (IRE) Limits exposure to 500 weeks if less than 50%
impaired. Entitled to an IRE after 104 weeks (No burden of
proof needs to be met) Small window of opportunity (? Weeks) After that the case must be tried and Claimant
is given the opportunity to rebut findings. If impairment rating is over 50% Claimant is
entitled to ongoing benefits (unless you can reduce rate by way of another petition)
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Rationale: Assuming an IRE comes back with a rating of less
than 50%, the employer is still on the hook for another 9.5 years worth of benefits, settlement at even four years of indemnity benefits greatly lowers that exposure
Settlement will usually absolve the employer from future medical treatment as well.
More than one way to skin a cat It is possible to leave medical benefits open
for a period of time arrived at during settlement negotiations.
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Medicare considerations
Can be cost prohibitive (but we can help)
Open Medical benefits can circumvent this
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Cost of a fully litigated claim
Typically about $5,000
Cost of an open claim
Can be into the hundreds of thousands
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Unreasonable contest
Claimant’s counsel can seek “reasonable attorney’s fees if Employer prosecutes petition with insufficient evidence
Penalties
Claimant can seek up to 50% of back owed benefits or medical costs if penalty assessed
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
Mediations
Not really good for employers
Nature of the Act is remedial
Judges are mostly claimant oriented
Basically two against one
Once a judge puts a number on a case the Claimant will never come off of it
LIMITING EXPOSURE IN WORKERS’ COMPENSATION
The bottom line is that once a claim is accepted as compensable we need to make every effort to obtain an opinion that the claimant can work in some capacity and offer them a position
Employers’ best chance of truly limiting exposure is to get the indemnity portion of the claim reduced by way of a job offer and subsequent suspension or modification petition
Once a favorable determination is obtained the value of the case is greatly diminished and claimants’ counsel will usually settle the case for a fraction of what it would be worth without a reduction