Workers' Compensation

Compromise Agreement Failed to Specify 'Related' Injuries

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Failing to include medical treatments for related injuries in a compromise and release agreement will disqualify an injured worker from receiving payments for treatments allegedly causally related to the work injury, despite having received past payments for treatment of the condition, the Commonwealth Court has ruled.

On Jan. 24, a split three-judge Commonwealth Court panel ruled in Amore Restaurant v. Workers' Compensation Appeal Board that a workers' compensation judge erred by using previous payment of the injured worker's medical bills as persuasive evidence to grant the worker penalties. The court's decision, which was issued as an unreported memorandum, overruled the workers' compensation judge and the Workers' Compensation Board of Appeals, which had supported the judge's decision.

Writing the majority opinion, Judge P. Kevin Brobson said the court's 2013 ruling in DePue v. Workers' Compensation Appeal Board, which determined that previous payments did not indicate approval, was persuasive.

"Claimant elected to forgo the inclusion of any other potentially causally related injuries, whether currently known or not," Brobson said. "Thus, we believe that the [judge] and the board erred by basing their conclusions on the fact that employer here continuously paid the medical bills at issue up until the time of the agreement."

Judge Mary Hannah Leavitt joined Brobson's opinion; Judge Rochelle S. Friedman dissented.

According to Friedman, the case was distinguishable from DePue because the claimant was not seeking to add a new injury or to correct the described injury, but was only seeking to continue payments for treatment of an identified work injury.

"I was on the panel of DePue. I agreed with it then, and I agree with it now. However, this case is not controlled by DePue," Friedman said in a footnote. "The [judge] found that the medical bills, which were coded the same both before and after the agreement, were causally related to claimant's work injury. As such, I would affirm the board."

According to Brobson, in 2006, claimant Carla Hayes sustained a work-related aggravation of a left triangular cartilage complex tear.

Hayes, employer Amore Restaurant and Norguard Insurance Co. signed a compromise and release agreement in 2010.

The agreement, Brobson said, referred to the aggravation of the TFCC tear, and indicated that the agreement includes "any and all injuries incurred by claimant ... or arising therefrom, regardless of what terms are used to describe the injuries."

Under the terms of the agreement, Hayes accepted a lump sum payment for her injury and released Amore and Norguard from its obligation under the Workers' Compensation Act.

Before entering into the agreement, Amore and Norguard paid all the medical bills Hayes submitted. However, once she signed the agreement, Amore and Norguard stopped paying the medical bills that she incurred after the date of the agreement.

Hayes filed for a penalty petition, alleging that Amore and Norguard violated the agreement by not paying the bills.

At a hearing before the workers' compensation judge, Hayes contended that she underwent eight surgical procedures to her left arm and hand area, including a hand fusion, and all were related to the TFCC tear. The fusion, she testified, required her to use her whole arm when lifting items, which caused pain in her neck and shoulder. She further testified that chiropractic treatment relieved her pain and that a pain management specialist had administered pain block injections.

A doctor testified on behalf of Hayes that he had diagnosed her with wrist pain, myalgia, cervical inner signal dysfunction, cervicalgia and shoulder pain. He further testified that the treatments she'd received were related to the work injury and surgeries.

At the hearing, Hayes also admitted she hadn't filed a petition to add shoulder and neck injuries to the injury description in the agreement.

The judge determined that the treatment was for injuries causally related to the work injury and ruled in Hayes' favor, granting her a 25 percent penalty.

Amore and Norguard appealed to the Workers' Compensation Appeals Board, but the board upheld the judge's decision, noting that the coding for the particular bills and procedures was the same before and after the agreement.

Amore and Norguard then appealed to the Commonwealth Court, arguing that the judge had expanded the description of the injury.

Brobson noted that, under DePue, payment of medical bills does not constitute admission of liability, and then he looked to whether the definition of the agreement included the additional injuries.

Brobson held that despite the phrasing, "all injuries ... arising therefrom," the agreement did not encompass a shoulder or neck injury as part of the aggravation. He added that there was no indication that the parties agreed to those injuries.

The portion noting the causally related injuries, Brobson said, should be read in conjunction with another part of the agreement in which Hayes agreed that she had sustained no work-related injuries other than the TFCC.

"In order to anticipate a situation such as this, where a claimant thinks or believes that he or she may have additional injuries arising as a consequence of an initial work-related injury, it is incumbent upon such a claimant to reserve a specific right in the compromise and release agreement to add additional causally related injuries," Brobson said.

Friedman, however, said that in DePue the claimant had specifically waived his right to additional injuries he later claimed, and then he sought to alter the definition of the injury.

"Unlike DePue, claimant is not seeking to add a new injury or to correct the described injury, and the parties did not negotiate the omission of an injury in the agreement," Friedman said. "Rather, this case concerns employer's obligation to continue making medical treatment payments for claimaint's identified work-related injury, which employer previously paid and agreed to continue paying in the agreement."

Hayes' attorney, James J. Conaboy of Abrahamsen, Conaboy & Abrahamsen, did not return a call for comment.

Katherine E. Bavoso of Thomas, Thomas & Hafer, who represented Amore and Norguard, declined to comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 18-page opinion in Amore Restaurant v. Workers' Compensation Appeal Board, PICS No. 14-0150, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •

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