Wednesday, August 20, 2014

Cocktail Party Conversation

Yesterday I wrote about Recognizing Good. It's no mystery that much of what we "talk" about in workers' compensation has negative attributes: late payments, penalties, delayed or denied treatment, increasing rates, fraud, etc.

I'm certainly not going to deny that The Media contributes to this with daily news on these topics.

We all have opinions on what's wrong with workers' compensation. I get email, comments to blog posts and other communications, from injured workers and professionals alike, that decry all the various negative attributes of the system.

While many of these pessimistic observations have some validity, and while folks will disagree with each other on many of these points, the one thing that keeps coming back to me, regardless of where one stands on any particular issue, is that the vast majority of people working within, or serving, the workers' compensation industry really do care about "the system" and want to ensure it works as well as it can given the constrictions and limitations we face.

Most of us do not have the power or ability to make the radical, dynamic changes we think should be implemented.

Most of us don't understand the implications of change - how one small element in the law can affect many other elements up or down stream, or the unintended consequences that may follow.
"How about that Padgett case?"

Some at least do have the power to shape the conversation though - and the recent opinion by Florida Circuit Judge Cuneo in the Padgett case is doing that.

Legally the Padgett case is inconsequential - it is not binding on anyone other than the parties to that case, in particular the State of Florida.

And the likelihood of the Florida State Attorney General, who represents the state, appealing the ruling is very, very low - why invite appellate review unnecessarily and potentially disrupt the status quo?

After all, messing with the workers' compensation system is really a legislative function.

But, as was observed by many at this week’s Workers’ Compensation Institute Educational Conference in Orlando, FL, the fact that this ruling came out has opened up a big discussion, and not just in Florida but around the nation.

The top headline when I Google "Padgett unconstitutional workers' compensation" is the Miami Herald proclaiming, "Injured employees cheated by workers’ comp law, Miami-Dade judge says."

One legal journalist says that the Padgett case "outlines exactly how workers in the State of Florida have been slowly boiled to death."

Those are pretty incendiary words.

But that's okay because workers' compensation is getting attention by the public.

People out in the "real" world frankly don't give a rat's arse about workers' compensation until it affects them, and then it's too late - they become subject to the system and they either learn to get through it, or they have a difficult time and become scarred (not necessarily physically) for life.

The Padgett case, and a rumor that there are up to four other such cases pending in other circuit courts in Florida, is drawing public attention to our industry and we have the ability to use that attention to show what workers' compensation is about.

You know, and I know, but much of the public doesn't know, that workers' compensation does work for most people most of the time. That's why, in general, 20 percent of all cases generate 80 percent of all expense - because most of the time the system works.

And for those 20 percenters, some are "big" cases where really bad things happened and others are just situations where the system doesn't work very well. 

In some cases the law isn't flexible enough to "bend" to conform to those fact patterns. Some cases involve victims of bad things happening while in the system. And there are some who frankly bring it upon themselves.

But through it all, the vast majority of people that work in the system, that try to make things happen for the betterment of society and mankind, do so with the conviction that they are contributing to the bigger picture and doing the "right thing."

Sometimes I succumb to the negative pressure and frankly get down on myself for being a part of "the system." Sometimes it's difficult to rise above the bad noise and see that in the grand scheme of life we really do try to make things better.

So much of a workers' compensation cases outcome is dependent on personal factors: with the injured worker, with the employer, the claim adjuster, attorney, doctor and whomever else may touch that case.

When I talk to my colleagues, while we may disagree on how to accomplish the goal of ensuring work comp DOES work, the pervasive sentiment is all about "doing the right thing."

I still believe that workers' compensation is vitally important to an overall healthy economy. Sometimes it fails and we have discussions on why, who, what, how, etc.

Now the Padgett case gives US the opportunity to have conversations with the public about workers' compensation, and what it means.

Maybe Padgett isn't that important legally, but I think it carries a lot of conversational weight in and outside the industry and we should not discount that. The case empowers all of us to debate, to converse, to talk and listen.

Don't be threatened, and don't start celebrating, but do start talking. There's nothing wrong with outsiders hearing about workers' compensation. If nothing more, Padgett makes work comp great cocktail party conversation.

Tuesday, August 19, 2014

Recognizing Good

Scott Hudson gave one of the key note speeches at the Workers’ Compensation Institute’s annual educational conference Monday.

Hudson is the CEO and president of third party administrator Gallagher Bassett.

He surprised the audience in the Grand Ballroom, I think, by talking about something that is rather taboo in our industry - us old farts are dying and no one is coming into the industry willingly to pick up the slack and as a consequence our industry loses out talent to other industries such as banking, finance, technology and perhaps beer making.

And Hudson, in my opinion, is absolutely correct about the dearth of talent targeting workers' compensation as a career path.

Think about it - how any of you graduated from college and said to yourselves that workers' compensation is a cool industry that does great stuff for people and you want to make a career out of it so you can do good things for the world?

Right - not a one of you!

Why is that? Why is workers' compensation so off the radar screen for the next generation? Why can't we attract top talent into our industry? Why can't we have the big thinkers, people that go outside of the box to solve our problems, to bring good things to life?

Workers' compensation is, after all, as much of a people business as any industry and if you've been in the comp world for more than just a few months you absolutely know that it's all about relationships.

People make things happen in workers' compensation because the industry is all about taking care of people. This industry starts with people and ends with people.

We are as much about humanity as any other industry - we are charged with solving a huge social problem: doing as much as we can using the tools we are given to help people recover from bad things in life and carry on.

Hudson talked about rebranding the industry and that starts with the way we talk about our selves. And I will admit that I'm probably just as much to blame as anyone else.

It's easy to publish bad news and it's easy to criticize what's wrong in the industry. It's much, much harder to talk about the good things because we get so consumed with what's wrong.

But we do make a difference and we do very, very important work.

I guess that last part gets lost in the conversation too often. When we're at a cocktail party and mention to some guest that we're in the workers' compensation business we often do so shamefully.

Like we're embarrassed that we help manage the largest privatized social benefit system in the world.

Or that we help people get back to work, help business manage safe practices, help the economy by spreading potentially catastrophic risk and keeping payroll tax dollars flowing.

"The way you define me is not how I see myself," Hudson said, and it's so true.

Get down to the basics: Our job is to provide comfort to injured workers, to get them healthy, to get them working again because work in the most primal way defines our existence (and this has been proven time and again through psychological studies).

WE DO GOOD THINGS.

There, I said it - we really do good things.

The trend in our favor is that the millennial generation is looking for meaning and social importance in their lives and careers, and that is what comp is all about.

But people don't know that. Even people in our own industry don't know that.

If we are going to attract top talent into this industry we need change the perception of work comp and the mindset of the public.

We need to be ambassadors of our industry and we need to share our stories of success, of helping that injured worker, of assisting that beleaguered employer, of making things right in this world within our own special way.

We are a caring industry and we should celebrate all that is right with workers' compensation.

In that vein I have urged my staff and colleagues to create something wonderful, something that celebrates the good in workers' compensation and recognizes the deep care and understanding that incredible PEOPLE bring to the lives of others.

I hope you will join me and WorkCompCentral to nominate recipients for the WorkCompCentral Comp Laude(tm) Awards.

Though nominees are limited to the State of California at this time, anyone involved in the workers' compensation system, inside or outside California, can nominate an individual or a company in one of eight categories.

We are going to be recognizing injured workers and their employers, case managers, claims adjusters and managers, risk managers and Third-Party Administrators (TPAs), doctors, attorneys, educators and others who have demonstrated to their nominators, and the industry, a high degree of integrity, understanding, education and commitment to doing good things for people via the work comp industry.

Start nominating qualified people and organizations now by selecting one of the categories listed at https://ww3.workcompcentral.com/events/nominations. You can also just call (805) 484-0333 and a WorkCompCentral account representative can take your nomination.

Nominations are due by October 12, 2014. Awards will be presented on Saturday, December 6 at the 3rd Annual Comp Laude Awards & Gala at the Sheraton Gateway Los Angeles Hotel. I hope you can join us to celebrate the good we do.

The next generation will join us if they see an industry of care. Let's show them we do.

Monday, August 18, 2014

Form (Literally) Over Substance

Shirley Hilton worked as a second-grade teacher for the School District of Philadelphia at Frances D. Pastorius Elementary School, overseeing a class of students with behavioral problems.

On March 3, 2009, Hilton went to see Dr. Wilfreta Baugh, complaining of heart palpitations, headaches, dizziness and nausea after a particularly difficult day with her challenging classroom.

The doctor's office then telephoned the school and informed the school that Hilton would not be returning to work due to the overly stressful environment.

In June 2009, the school district assigned Hilton to teach at the Jay Cooke Elementary School starting that September, but she did not report for duty as she was still undergoing treatment for her job-related stress from the Pastorius assignment.

Hilton filed a claim petition in October 2009, alleging that due to stress from an abnormal working environment at Pastorius, she was totally disabled.

She specifically alleged that she had sustained a vocal cord injury and had aggravated her pre-existing lupus and heart murmur in March 2009. Hilton requested payment for medical bills and the loss of wages from March 3, 2009, to May 21, 2009, and from May 28, 2009, into the future.

A workers' compensation judge granted Hilton's claim petition as to the period from March 3, 2009, until Sept. 30, 2009, which was the day the teaching job at Cooke would have become available.

The Workers' Compensation Appeal Board affirmed the WCJ's award of benefits, but reversed the part of the decision suspending benefits as of Sept. 30, 2009.

The school district then sought judicial review, and the Commonwealth Court in January ruled that the WCJ was correct in cutting off Hilton's benefits.

The court reasoned that Hilton was not disabled from working as a teacher “as long as she did not work somewhere like Pastorius school,” so she was not entitled to benefits after September 2009, when she could have begun working at the less stressful Cooke school.

The court also said that the school district did not need to issue Hilton a notice that it perceived her as being able to work at this new assignment since the reassignment had not been based on a change in her medical condition, and she was not yet receiving benefits at the time the district offered her the position.

Hilton appealed to the Supreme Court, arguing that she was entitled to get a Notice of Ability to Return to Work before her benefits could be suspended, and that the medical evidence did not establish that she was able to return to work as of Sept. 30, 2009.

The Supreme Court granted review of Hilton's case last Wednesday.

At issue is a conflict in the law.

The Commonwealth Court previously held that an employer must provide a worker with an LIBC Form 757 as a prerequisite to suspending benefits.

The form, called a Notice of Ability to Return to Work, informs the worker that her employer considers her able to resume some form of employment and advises her that she has an obligation to look for work if she is able to work, otherwise benefits may be lost.

Section 306(b)(3) of the Workers' Compensation Act requires an insurance carrier to issue a notice to an injured worker any time it receives medical evidence indicating that the worker is able to resume any form of employment. But it does not predicate an employer’s ability to suspend a worker's benefits based on her ability to return to work.

By contrast, Section 413(a.1) expressly says that a carrier must provide notice to a worker, on the form designated by the Department of Labor & Industry, before seeking a suspension of benefits based on the worker's return to work at her prior or increased earnings.

This is all very good and well from a technical legal aspect, but the case glosses over the fact that Hilton didn't go back to work in any capacity. And reading between the lines it doesn't seem there is any intention to do so.

The Supreme Court will review and decide a procedural matter, but the substance of the case - that a teacher did not go back to work even though medically there was a qualifying job - is ignored.

The story is in WorkCompCentral this morning (payment/subscription required).

Friday, August 15, 2014

And I'm On The Employer's Side

A LinkedIn member wrote to me the other day in response to a blog post about rewarding positive behavior.

He said in part, "David - This is a daily fight for employers who are trying to help their injured workers so they don’t hire an attorney... Who we kidding UR is a profit center for the carriers and Sandhagen [the California case that declared UR is "mandatory" but which also said that the "mandatory" nature of UR can be fulfilled simply by the claims adjuster making a treatment authorization decision him or her self] is the excuse that keeps on giving. Funny thing is I am on the Employers’ side having to fight for simple treatments even post surgery – what a joke!"

Listen, I don't know for a fact that utilization review is a "profit center for the carriers." I don't have any data or evidence of that, though I do suspect that many UR companies are financially tied to either carriers or claims administrators.

But the sad part of the commentary is that the employer, the one paying the premiums, the one that should be able to have some direction and control over the direction any particular claim takes, gets left at the sidelines once the kickoff to the carrier occurs.

One of the biggest selling points to Oklahoma opt out is that the employer, not the insurance carrier, has so much greater control over claims administration.

If you're big enough as an employer you're going to self insure because of the greater control you have over claim management.
Bowzer just wants to get back to work...
Self insureds routinely demonstrate that their claims management experience is vastly superior to the rest of the claims world with greater reduction in claims frequency, claims duration and ultimately the business cost of a claim, than the insured market.

Insured employers generally have brokers through which they purchase their insurance and the competitive broker market should provide that claims oversight - but while that's a great service, the monthly file review (or whatever time table is generally set for reviews) is insufficient because claims decisions are made daily.

Waiting 30 days to find out that some generally accepted, low cost medical treatment procedure was denied for whatever reason is 30 days too long.
The vast majority of employers in the United States are small businesses without the resources to have someone dedicated to overseeing their insurance company, let alone conduct a claim review every 30 days.

And that's a problem.

The consumer of insurance, in this case the employer, is the customer. If the customer doesn't dispute a claim, doesn't dispute a treatment modality, wants the employee out of the system and back on the payroll, then the employer should have the luxury of making that desire an instruction to the insurance company.

Too often, however, there either is no delegation of that authority or that desire is simply not an option.

I have been in claims review meetings in my past life as a defense attorney, principally representing an employer who was not happy with the claims management of their carrier.

The lack of authority that an employer has over the claims experience was quite apparent in many of these reviews - the carrier's representatives would basically, in so many words, tell the employer that they have no say, that once a claim comes into the carrier's arms it's their business and butt out.

In some states there are "employer rights" laws, but the fact is that small and medium sized businesses don't have the time or resources to avail the remedies in those statutes, and by the time the remedies are accessed it's too late for the injured worker - damage done...

It comes down to accountability. When all is said and done, who's responsible? Who can the finger be pointed at for results? And what are the consequences?

Sure there are administrative penalties based on performance numbers that are far removed from the actual day to day handling of human lives - they are neither deterrent nor incentive.

Insurance companies market to what sells - premium cost. When was the last time you saw an advertisement for an insurance company in any line of the industry proclaim superior claims handling?

Exactly....

Employers need to demand what they pay for - top quality claims management with input authority from the employer. If employers would shop for that, rather than the lowest price, the claims industry would "get it."

Risk managers shouldn't have to fight for treatment for their employer's workers.

Thursday, August 14, 2014

Padgett is About Bigger Issues

Starting this Sunday thousands of people from the workers' compensation industry descend upon Orlando, FL. for the bacchanal otherwise known as the 69th Workers' Compensation Educational Conference.

I am on several panels at this event, but I suspect that, since the event is Florida based, one of the hottest topics is going to be yesterday's ruling by Miami-Dade Circuit Judge Jorge Cueto in Padgett vs. State of Florida, that the exclusive remedy provision of Section 440.11 is facially unconstitutional.

That a trial level judge would take the time and energy to write a 20 page opinion denigrating an entire legal operating system and throwing the door wide open for challenges is extraordinary. The fact that Judge Cueto even took an interest in workers' compensation is beyond extraordinary.

And knowing that the only resolution of such a conflicting issue is an appeal to the Third Circuit or directly to the FL Supreme Court is pure judicial chutzpah.

The basis for Judge Cueto's ruling is that over the years the Florida workers' compensation act's original grant of benefits for permanent disability, which was part of the "Grand Bargain," has been so eroded as to no longer serve as an adequate remedy.

Citing the original constitutional test of the exclusive remedy of workers' compensation in the United States Supreme Court case of New York Central Railroad v. White, 243 US 188 (1917), a case in which ironically the business community sought to declare compulsory workers' compensation laws unconstitutional, Cueto quotes one of the more powerful passages in that case:
Bowzer asks, "what is it?"

"One of the grounds of its concern (the workers' compensation act in question) with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime."

For years attorneys representing injured workers throughout the nation have been saying that the compensation bargain has been eroded and one need only visit all of the various injured worker "forums" on the Internet to see that this particular demographic feels pushed into pauperism as a consequence of industrial injury.

Cueto is basically saying that if the remedy provided by the Florida Act is mandatory and exclusive, then it doesn't meet constitutional muster because there isn't enough money to keep injured workers from diving into pauperism, which harms all of society and places excessive burdens on other systems such as Social Security or Medicare (or what we like to call in our sanitized jargon "cost shifting").

Cueto teed up the ball and drove it way down the fairway with his analysis. He said that while the exclusive remedy provision has been part of Florida's Workers' Compensation Act since 1935, it wasn't exactly "exclusive" until 1970, when lawmakers eliminated the ability of employers to "opt-out" of participating in the comp system.

At that time, Cueto said, the "benefits provided by the act should have increased substantially to account for the change in the value of the trade; i.e., allegedly fast, sure and adequate payments in exchange for the tort remedy that was cumbersome, slow, costly and under which it had been legally difficult for injured workers to prevail."

Lawmakers again tinkered with the act in 2003, to eliminate the payment of any compensation for a permanent loss of wage-earning capacity that is not total in character, Cueto noted. And even if the loss is total, the act cuts off benefits once the worker hits 75 or after receiving benefits for five years.

The amended version of the act also apportioned medical care expenses for workers between an employer and the worker, and if the worker can't afford his share of the cost, then the worker can't get treated, Cueto said.

Cueto reasoned that if the Act would "provide full medical care and some compensation for total or partial disability, it remains constitutional." But as it now stands, Cueto said, "it is inadequate as an exclusive replacement remedy for all injured workers."

Chief Workers' Compensation Judge David Langham in his blog post this morning asks, "What IS IT?" In other words, what does this court decision mean to the rest of the workers' compensation world?

While there will be plenty of debate about procedure, where the appeal is going to be first heard, and how the various special interests are going to line up, this is what I take out of Cueto's ruling: the adequacy of benefits in workers' compensation is getting the attention of the judicial system from coast to coast.

In California the constitutionality of the state's system is being picked at piece by piece with the Angelotti case challenging changes to the lien system, and other cases taking on SB 863 provisions.

Last year the Texas Office of Injured Employees Counsel released a couple of reports suggesting the dispute resolution system lacked constitutional protections for injured workers.

There are other states where workers' compensation laws are being questioned as conforming to the original bargain in one form or another.

Plenty of speculation will be circulating this coming week and surely this case will be the center of debate at next week's conference.

Cueto's ruling opens the debate full fledged however and is the boldest trial level attack on the system I can ever remember. Even Florida's Westphal case about attorney fee caps lacks the sheer boldness of Padgett.

What's really going on around the country, with Oklahoma opt out, constitutional attacks, complaints about costs and inadequate benefits is a debate that I've been having for quite some time: Is workers' compensation even relevant any longer?

It seems to me this debate is getting louder and, as work comp is a microcosm of society, points to larger issues facing society - a huge discord between the minority of "haves" versus the vast majority of "have nots."

Cueto in the Padgett case is really opening up a debate about whether society is taking care of its own any longer.

The Padgett case is about social unrest. We are, indeed, meandering into challenging times where the nation's soul is being examined.

Wednesday, August 13, 2014

Listening and Touching

My daughter forwarded me this TED talk that was given several years ago, and I'm sure some of you may have already seen it.

The speaker is Dr. Abraham Verghese, a practicing infectious disease physician, writer and teacher at Stanford University.

It's about medicine losing the human touch and how important psychologically to the patient a simple physical examination is.

"We're losing a ritual that is at the heart of the relationship," he says, referring to the ritual of the physical examination.

It is RITUAL , i.e. routine, that makes us good at what we do and that's why it's called "practice" as in the practice of medicine or the practice of law or any other professional "practice."

While I don't really agree with his statement that the next big thing to come to medicine in the next "10 years is the power of the human hand to touch, comfort, diagnose and bring about treatment," Verghese in my opinion makes some powerful argument about the ritual, the practice, of medicine and it is particularly applicable to workers' compensation cases.

Workers' compensation, as we all unfortunately know, is all about numbers and volume. It is discount medicine. It is all about economies of scale. The basic economics of workers' compensation almost dictate this reality.

Verghese talks about how technology has come to dominate the "practice" of medicine - how physicians are quick to order tests, MRIs, x-rays and other technologically advanced diagnostic assists, and that we now have two patients: the one on the examining table and the one in the ether world.

The "iPatient" (the patient in the computer) is "getting wonderful care all across the country," Verghese says. But the REAL patient is left wondering "where is everyone? when are they going to come by and explain things to me? and who's in charge?"

Physician rounds used to be held bedside with the lead physician taking a troupe of others to each patient's bed and conducting inquisition and seeking answers, he notes.

Rounds now a days take place in private rooms far away from the patient - everyone looking at computers and data, but the one critical component missing is the patient.

Verghese gives an early practice anecdote about an experience he had with chronic fatigue syndrome.

He said, "they come to you thinking you will be joining the long list of people that are about to disappoint him."

Verghese thought he would do something a little different in the 45 minutes allotted for the initial exam - just listen.

So he invited the patient to tell his entire story and would try not to interrupt ("we know that the average physician interrupts his patient within the first 14 seconds"). He just listened to the patient give his entire life's history and set a return appointment for 2 weeks hence for the actual physical exam.

In the second visit, to Verghese's surprise, the patient continued to tell more of his story and voluntarily provide more of his history. But when Verghese started with the ritual of exam this "very voluble patient began to quiet down."

"And when I was done, the patient said to me with some awe, 'I have never been examined like this before.'" 

Verghese proclaims this a condemnation of the medical system, but really it is recognition that communication is probably one of the most important parts of the physician's role - and not communicating what the doctor knows, but listening to what the patient has to say.

It may not be profound and it may not lead to actually figuring out what is going on physically, but the psychological impact of a caring individual taking the time to HEAR what the patient has to say had remarkably powerful implication.

Verghese said he told the patient, "This is not in your head. This is real. The good news, it's not cancer, it's not tuberculosis, it's not coccidioidomycosis or some obscure fungal infection. The bad news is we don't know exactly what's causing this, but here's what you should do, here's what we should do." 

It was about wellness, about taking responsibility for one's own condition, regardless of the outside influences of illness, disease or injury. The doctor earns the TRUST of the patient by virtue of listening, and then conducting the ritual of the physical examination, which allows the patient to FEEL that there is a caring person in that smock.

Someone gives a damn...

As youngsters we are taught to trust our doctors - they have the gentle hand, know how the body works, have superior intellect.

Most of all, at least when I was growing up (and remember I was on a first name basis with my childhood orthopedist since I was such a frequent visitor!) we could tell the doctor things we would not tell anyone else.

Verghese says that the act of listening deeply first, and then conducting the actual physical examination, laying hands on the patient, palpating, rubbing, feeling, provided a transformative exchange:

"Rituals are terribly important. They're all about transformation. Well I would submit to you that the ritual of one individual coming to another and telling them things that they would not tell their preacher or rabbi, and then, incredibly on top of that, disrobing and allowing touch -- I would submit to you that that is a ritual of exceeding importance. And if you shortchange that ritual by not undressing the patient, by listening with your stethoscope on top of the nightgown, by not doing a complete exam, you have bypassed on the opportunity to seal the patient-physician relationship."

Verghese tells a story about a terminally ill patient who, even in his last hours of life, willing submitted to the ritual of the physical examination, that it was so important to that person.

"And the message, which I didn't fully understand then, even as I delivered it," Verghese says, "and which I understand better now is this: 'I will always, always, always be there. I will see you through this. I will never abandon you. I will be with you through the end.'"

Most of modern medicine misses this important message and certainly in workers' compensation that message is eviscerated.

The work comp system does not reward patience or communication. We look at numbers, lots of numbers, that we think describe different things to help us try and understand what is going on in this complex world and system.

But we do a miserable job of listening and performing necessary rituals that would gain trust, that would say "we'll be there for you."

Like Dr. Verghese, I submit that if we just listened more we could reduce the amount of unnecessary disability, reduce the expense of workers' compensation, and have a better, more robust, more credible role in the lives of injured workers, their employers and society.

Our challenge is how to reward positive behavior and allow physicians to listen, and injured workers to trust.

Tuesday, August 12, 2014

Employee? Not Employee?

The employment relationship is often defined by timing, and sometimes influenced by the potential dispute resolution forum. A recent Pennsylvania case is illustrative.

Paul Marazas worked for Vitas Healthcare Corp. in Pennsylvania.

After spending a weekend on call, Marazas reported to work and received his daily itinerary. His assigned route for the day included stops in New Jersey, Delaware and Pennsylvania, and was likely to take him until midnight to complete.

Marazas went to his manager's office and asked to have his schedule adjusted because he was still tired after his weekend on call. When his manager refused his request, Marazas stated that he could not continue to work under such conditions and quit.

His manager then told him that he needed to remove his personal belongings from the Vitas truck. Marazas did so, accompanied by his manager. After he had retrieved his effects and began walking back to the Vitas warehouse, Marazas tripped over a pallet jack.

His manager was with him at the time of his accident and saw him fall. She then walked with Marazas to his car, and he drove away.

A few days later, Marazas called Vitas and requested a referral to physician for treatment of his injuries from his fall. Vitas informed him that it only made referrals for its active employees.
Ouch - didn't see that pallet jack on my way out...
Marazas later filed a civil suit against Vitas in the Delaware County Court of Common Pleas, seeking damages for his injuries. He asserted that he had been a business invitee of Vitas at the time of his accident. Vitas countered that he was an employee and in the course of his employment when he fell.

Marazas then withdrew his civil suit and filed a workers' compensation claim petition for his injuries.

A workers' compensation judge found Marazas and his doctors to be credible, and she awarded Marazas benefits from Nov. 7, 2005 through July 9, 2008.

Vitas appealed, arguing that since Marazas had admittedly quit before he fell the accident was outside the scope of the workers' compensation scheme.

The Workers Compensation Appeal Board agreed and vacated the WCJ's award.

On remand, the WCJ again found Marazas had been within the scope of his employment when he fell because Marazas was furthering the interests of his employer at the time of his accident since the retrieval of his personal belongings that his manager had instructed him to perform was a task at the request of the employer.

The judge once more issued Marazas an award of benefits, and Vitas again appealed. The WCAB once again sided with Vitas, finding Marazas' injuries were not compensable.

On appeal to the Commonwealth Court, however, Vitas lost.

The Court said that while it was undisputed that Marazas had announced his decision to end his employment before his accident, this didn't mean that the scope of his employment had ended.

The WCJ had found Marazas was acting pursuant to his manager's directive in retrieving his belongings from the company truck, and he was under his manager's supervision while doing so, ergo Marazas was still under his employer's control when his accident occurred.

Still the case leaves a bad taste the employer first sought to avoid work comp liability until it realized that civil liability could be worse, and then tries again to deny work comp liability.

Seems there was some bad blood between employee and employer.

And though the Court said that judicial estoppel, which means that a party to a case can not in a different jurisdiction argue the opposite, is a bar only if the party has persuaded a judge that the prior position was correct. Since Vitas had obtained no adjudication that Marazas was its employee before Marazas withdrew his civil suit, nothing was stopping Vitas from changing its argument in defense of the workers' compensation claim.

Commentators on the opinion disagreed with the Court's reasoning on estoppel, but the result is the same: employee and employer don't have a good relationship and it spills into a dispute resolution mechanism - in this case both civil and work comp forums.

And while work comp for most employers gets distasteful, potential civil liability tastes worse.

The case is Marazas v. WCAB (Vitas Healthcare), No. 337 C.D. 2014.