Pennsylvania workers’ comp unfairly treats mental or psychological injuries differently than physical ones.  Our system is a “no-fault” structure.  What does that mean?  Put simply, if an employee is doing his or her job, and suffers a disabling physical injury, he or she is generally entitled to PA workers’ compensation benefits.

It usually does not matter why the injured worker was hurt, though the injured worker had to be engaged in an activity less foolish than swinging a sledgehammer at a bowling ball, or recreationally leaping down a flight of stairs.  Mental or psychological injuries, however, are treated by a different standard.  As a general rule, mental or psychological injuries have to be suffered as a result of “abnormal working conditions.”

There is an entire string of cases, as you might imagine, addressing what constitutes “abnormal working conditions.”  This varies by the job one is doing, so first responders, such as police officers, fire fighters and EMTs, had a very high burden to prove something they encounter on the job is “abnormal.”  Establishing Post-Traumatic Stress Disorder (PTSD) for a first responder was a difficult battle.

One of the bigger “victories” by the PA workers’ compensation insurance industry against the injured workers in Pennsylvania is the Impairment Rating Evaluation (IRE) process. Under this process, after an injured worker has received 104 weeks of temporary total disability benefits, the insurance company can initiate an IRE, which can limit the period of time an injured worker can receive workers’ compensation benefits. The IRE process is covered in great detail on our website.

If the examining physician finds that the injured worker has less than a 35% “whole body impairment” due to the work injury, the benefits can shift from “total” in character to “partial.” This does not change the amount of the benefits the injured worker receives, but it limits the duration for which the injured worker can receive those benefits.

One of the questions in the IRE process is which conditions or diagnoses need to be considered by the IRE physician in calculating the “whole body impairment.” There was a school of thought, championed by the insurance industry, that the IRE could only consider those conditions or diagnoses actually accepted as work-related. Thankfully, the Commonwealth Court of Pennsylvania has provided some clarification, establishing that the IRE physician must consider all conditions or diagnoses “due to” the work injury, whether accepted or not.

As attorneys who represent injured workers across the great State of Pennsylvania, we are all too aware that our clients who rely on the US Postal Service for the delivery of their workers’ compensation checks can occasionally find their checks lost or delayed in transit.  Since mortgage companies, landlords, car financers, grocery stores and other lenders do not want to hear about delays in the mail, injured workers too often have to deal with the stress of a late check on top of the stress they already feel from the work injury.

Fortunately, those times may be changing!  We just learned that Senate Bill 1232 passed the PA House unanimously, and will now move to the Senate for consideration.  Should this Bill become law, injured workers all across Pennsylvania would be able to have their workers’ compensation benefits delivered by direct deposit.

This will not stop the occasional “computer issue” which for some reason causes an injured worker to “fall off the system,” but at least it can stop the annoyance of not knowing whether the check was actually mailed or not.  We will also be aware of the issue sooner and can move to have it quickly resolved.

Knee injuries are common in Pennsylvania workers’ compensation.  Over the years, we have had many clients with a torn meniscus in his or her knee.  This is generally regarded as a minor injury by the insurance industry, a perception we have never understood.

Recently, Minnesota Vikings Quarterback J.J. McCarthy injured his knee.  Further testing revealed a torn meniscus.  Note that the referenced article describes the meniscus as a “tendon,” though it is not.  The meniscus is a piece of cartilage in the knee.  Essentially, the meniscus functions as a cushion between the “tibia” (shin bone) and the “femur” (thigh bone).

Surgery is often required to address a meniscus tear, though it is not usually the first avenue to try (that said, Mr. McCarthy had the surgery immediately and will miss the entire 2024 season while recovering).  Typically, in our experience, an injured worker will receive conservative treatment initially, in an effort to avoid surgery.  If surgery is eventually required, this obviously extends the total period the injured worker may be out of work.

The Pennsylvania Workers’ Compensation Act (“Act”) has several “offsets,” which provide a workers’ comp insurer with a credit for other types of benefits received by an injured worker, such as unemployment compensation, Social Security Retirement (“SSR”), severance and pension benefits. These offsets were created to avoid a perceived “double dipping” by an injured worker, getting paid (in theory) twice for one injury.

These offsets are set forth in Section 204(a) of the Act. Each of the benefits is treated differently. For example, with SSR, the workers’ compensation insurer is entitled to a credit of fifty percent of the SSR benefit, “Provided, however, [t]hat the Social Security offset shall not apply if old age Social Security benefits were received prior to the compensable injury.” On the other hand, “benefits from a pension plan to the extent funded by the employer directly liable for the payment of compensation which are received by an employe shall also be credited against the amount of the award.” Notably, there is no mention of a difference whether the pension benefits were received prior to the work injury. So, what happens if an individual retires, starts getting a pension and then is injured?

This situation was recently addressed by the Commonwealth Court of Pennsylvania in the case of Bradford County and PCOMP v. Pasko (Workers’ Compensation Appeal Board). Here, the injured worker (“Claimant”) was employed by Bradford County for 25 years, when he retired in 1993. Upon his retirement, Claimant began to receive an employer-funded pension.

When we litigate cases in the Pennsylvania workers’ compensation system, we often resolve such matters through a Stipulation of Facts.  This agreement of the parties is then approved by a Workers’ Compensation Judge (WCJ) and has the same effect as any other decision of a WCJ.  This kind of resolution often can resolve disputes quickly and easily, saving the parties the time and effort of unnecessary litigation.

Once a Stipulation of Facts is approved by a WCJ, and the appeal period passes, it can no longer be disturbed.  Maybe. A recent decision by the Commonwealth Court of Pennsylvania addressed a situation where it was necessary to set aside a Stipulation of Facts after it was approved by a WCJ.

In VNA of St. Luke’s Home Health/Hospice, Inc. v. Elizabeth Ortiz (Workers’ Compensation Appeal Board), the injured worker hurt her left shoulder at work in 2017.  The workers’ comp insurer accepted the injury as a “left shoulder strain.”  Believing her injury was more significant than that accepted, the injured worker filed a Claim Petition (though it seems more in the nature of a Petition for Review), alleging additional diagnoses.  Based largely on the testimony of the injured worker, that there were no issues with the left shoulder before the 2017 work injury, and the medical records stating the same, a Stipulation of Facts was reached, expanding the work injury to include “a left rotator cuff tear and biceps tendon injury.”  The Stipulation of Facts was approved by a WCJ in 2019.

No matter what kind of company one works for, as long as one is an “employee,” as defined in the Pennsylvania Workers’ Compensation Act (and not otherwise excluded by other laws, such as federal employees, military personnel, maritime workers and railroad workers), one is entitled to workers’ compensation benefits if an injury is suffered while at work. This is true whether one works for a sole proprietor, small corporation or a major international conglomerate.

When a work injury takes place in PA, notice is required to be given to the “employer” within 120 days of the injury. Failure to do so can result in the injured worker being barred from receiving any workers’ compensation benefits for the injury. This can get more complicated when we are dealing with a sole proprietorship or a small corporation, where the owner is the injured worker. To whom must this notice be provided?

The Commonwealth Court of Pennsylvania recently addressed this issue in Erie Insurance Property & Casualty Company v. Heater (Workers’ Compensation Appeal Board). In this case, the injured worker was the owner of a sole proprietorship. By definition, the “employer” had notice of the work injury as soon as the injured worker had the injury, since they are the same entity.

On May 30, 2024 and May 31, 2024, the annual Pennsylvania Bureau of Workers’ Compensation “Workers’ Compensation Conference” will take place in Hershey, PA.  Here, attorneys, Workers’ Compensation Judges (WCJs), employer representatives, adjusters, risk management/safety employees and others who work in the world of workers’ comp across the entire State of PA, gather to discuss and learn changes and trends of which they should be aware.

As we do each year, our attorneys will attend the conference this year.  The majority of the attorney attendees at this seminar work for the insurance carriers.  This places us in the minority, but out attendance at this seminar is critical to our ability to properly represent our clients.

By listening while the insurance industry representatives are told about the state of the workers’ compensation laws, and impact of recent cases, we are getting insight into how the insurers will treat different situations.  This helps us understand and anticipate steps and strategies the workers’ compensation insurance carriers may take.  We are also able to have informal conversations with WCJs and defense attorneys, building relationships that may improve communication in future dealings.  We are also learning about any new developments or trends that may have escaped our notice.

The standard fee agreement in Pennsylvania workers’ compensation is 20% of the benefits obtained or awarded to an injured worker.  PA Courts have found this amount to be reasonable, and it remains the standard charged.  Historically, this pertained just to wage loss, or what we call “indemnity” benefits.

This was somewhat changed by a 2020 decision by the Commonwealth Court of Pennsylvania in the case of Neves v. Workers’ Compensation Appeal Board (American Airlines).  Here, the Court found that an attorney for the injured worker could obtain 20% of the medical bills, as well as 20% of the wage loss benefits.  While some attorneys immediately started using this ability, others, our firm among them, hesitated to do so.  We were unsure how that 20% fee would be dealt with by the healthcare provider.  More specifically, we were concerned that our client could potentially be liable for the 20% we would be taking as a fee.  This, of course, was a risk we would never place on our clients.

However, the Commonwealth Court of Pennsylvania has now clarified that risk in the recent case of Williams v. City of Philadelphia (Workers’ Compensation Appeal Board).  In that case, the Workers’ Compensation Judge (WCJ) refused to grant a 20% fee on the medical benefits, despite it being requested by the attorney and agreed upon by the injured worker.  While the Workers’ Compensation Appeal Board (WCAB) affirmed, the Commonwealth Court reversed, finding that the 20% fee on the medical benefits should have been granted.

The Pennsylvania appellate courts have consistently determined that a Workers’ Compensation Judge (WCJ) is the final arbiter of credibility in a PA workers’ compensation case.  Short of finding that a credibility determination by the WCJ is “arbitrary and capricious,” these determinations are to be accepted by the courts.  This makes sense, since it is the WCJ who actually sees and evaluates the witnesses and the evidence directly.

Every once in a while, though, a WCJ’s credibility determinations are challenged on appeal, often by casting the attack in a different light.  Recently, the Commonwealth Court of Pennsylvania stopped such an effort by the Workers’ Compensation Appeal Board (WCAB) in the case of Lawry v. County of Butler (Workers’ Compensation Appeal Board).

In Lawry, the WCJ heard the testimony of the injured worker and reviewed the medical evidence, and largely denied the insurance carrier’s Petition to Terminate benefits.  To be specific, the WCJ found that the injured worker had fully recovered from “right thumb strain/sprain and right ulnar collateral ligament tear.”  Importantly, though, the WCJ also “determined that Employer failed to meet its burden of proving that Claimant fully recovered from her RSD/CRPS.”

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