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Back in November, 2023, we discussed the case of M.R. Schmidt v. Schmidt, Kirifides and Rassias, PC (Workers Compensation Appeal Board).  As you may recall, this case addressed an issue regarding payment for CBD oil used in conjunction with treatment for a work-related injury.  The Workers’ Compensation Judge (WCJ) ordered such bills paid, though the Workers’ Compensation Appeal Board (WCAB) reversed that decision.  The Commonwealth Court of Pennsylvania then reversed the WCAB, determining that the initial decision authored by the WCJ was correct.

Since that time, the matter was appealed to the highest Court in the State, the Supreme Court of Pennsylvania.  Recently, that Court issued an opinion which affirmed the decision of the Commonwealth Court of PA (saying the WCJ was correct in requiring coverage for the CBD oil).

The Court was very specific in its opinion, stating, “we hold that any item that is part of a health care provider’s treatment plan for a claimant’s work-related injury falls within the purview of the broad-encompassing phrase ‘medicines and supplies’ as provided in Section 306(f.1)(1)(i). We further hold that, in such circumstances, the cost containment provisions of the (Pennsylvania Workers’ Compensation Act) and the attendant Pennsylvania Department of Labor regulations, both of which apply to a health care provider, do not apply to a claimant.”

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While we do not typically discuss “unreported” decisions of the Commonwealth Court of Pennsylvania (see this blog post on the difference between reported and unreported decisions), a recent such decision touches on an important topic – the concept of a voluntary withdrawal from the labor market, or, in normal language, retirement.

Once an injured worker proves an entitlement to PA workers’ compensation benefits, those benefits generally continue until something changes.  That change could be the injured worker returning back to work, or an intervening decision from a Workers’ Compensation Judge (WCJ) regarding the full recovery of the injured worker, or the availability of work within the restrictions of the injured worker (among other things that can impact the continued receipt of benefits).

One other concept which can impact the continued receipt of benefits is a “voluntary withdrawal from the labor market,” which was the subject of the unreported decision by the Commonwealth Court of PA in Ogden Corporation (Broadspire) v. Workers’ Compensation Appeal Board (Keene).  Essentially, if the workers’ compensation insurance carrier can establish that the injured worker has retired, then the injured worker may no longer be entitled to wage loss (what we call “indemnity” benefits – the right to medical benefits would not be disturbed).  The concept of “voluntary withdrawal from the labor market” is basically proving the injured worker “retired.”

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Workers’ compensation benefits in Pennsylvania consist of three types (aside from fatal claim benefits, which are not really relevant for this discussion).  These are described in detail on our website.  There are wage loss benefits (also known as “indemnity”), medical benefits and “specific loss” benefits.  Specific loss benefits are paid for permanent loss of use of a body part and/or disfigurement claims (usually scarring, either from the injury or resultant surgery).  The rate paid to an injured worker in wage loss benefits and specific loss benefits, for many years, has been calculated using the same formula.  A recent decision by the Supreme Court of Pennsylvania has now overruled existing case law, changing the formula in specific loss cases.

Under Section 306(a) of the Pennsylvania Workers’ Compensation Act (Act), the rate for temporary total disability (TTD) benefits is calculated using the Average Weekly Wage (AWW) of the injured worker.  The benefit rate is two-thirds of the AWW, up to the statutory maximum (which is set every year).  If the benefit rate as calculated is less than half of the maximum rate, then the appropriate benefit rate is the lesser of 1) One half of the maximum rate; or, 2) 90% of the AWW.  Note that the AWW and benefit rate are often miscalculated by the workers’ comp insurance carrier and should always be reviewed by an experienced workers’ compensation attorney.  Under old case law, the same benefit rate paid for TTD was used for specific loss.

That all changed when the Supreme Court of Pennsylvania issued a decision in the case of Jackiw v. Soft Pretzel Franchise (Workers’’ Compensation Appeal Board).  The language in the Act for specific loss benefits, in Section 306(c), says that the benefit rate for specific loss, “ . . .    shall not be more than the maximum compensation payable nor less than fifty per centum of the maximum compensation payable per week for total disability as provided in subsection (a) of this section, but in no event more than the Statewide average weekly wage.”  The reference there to Section 306(a) is what created the prior case law, saying the rate was the same for each type of benefit.

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It is a time of change at the Pennsylvania Bureau of Workers’ Compensation!  As we addressed in a recent post, the former Judge Manager for the Southeastern District, Judge Holly San Angelo, has taken over the top spot as the Director of Adjudication at the Bureau.  This, of course, left a hole for the Judge Manager spot for her District.

The Bureau has now announced that Judge Todd Seelig, a longtime member of the bench hearing cases at the Philadelphia Workers’ Compensation Hearing Office, will be taking over as Judge Manager for the Southeastern District of PA.  This role for Judge Seelig covers hearing locations in Philadelphia and Springfield.  We wish the best of luck to Judge Seelig in his new gig!

For clarity, the other Judge Managers in Pennsylvania are Judge Jeffrey Russell for the Western District (Altoona, Brookville, Clearfield, Erie, Greensburg, Johnstown, New Castle, Pittsburgh, Uniontown, and Washington), Judge Robert Goduto for the Central District (Harrisburg, Pottsville, Scranton, Wilkes-Barre, and Williamsport), and Judge Karen Wertheimer for the Eastern District (Allentown, Bristol, Lancaster, Malvern, and Reading).

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As we previously mentioned on our Blog, Senate Bill 1232 was created to require insurance carriers to offer direct deposit of PA workers’ compensation benefits to injured workers across the State of Pennsylvania.  Hopefully, this will allay the difficulties that many injured workers have with receiving their workers’ comp checks by regular mail.  Governor Josh Shapiro signed Act 126 of 2024 (as SB 1232 became) into law on October 29, 2024.

By the terms of Act 126, insurer carriers (and self-insured employers) have one year to offer the payment of workers’ compensation benefits by direct deposit (so, by October 29, 2025).  Failure of the insurer to offer direct deposit beyond that date would likely be considered a violation of the Pennsylvania Workers’ Compensation Act, punishable by an award of penalties.

Act 126 discusses the creation of a form, which would be completed by the injured worker to start, stop or change the direct deposit.  Recently, the Pennsylvania Bureau of Workers’ Compensation released the first version of this form (LIBC-215).

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As we have discussed in this blog previously, changes to an accepted work injury in PA come in two types – “corrective” and “consequential.”  The difference between these two situations can make or break a case, as recently illustrated by the Commonwealth Court of Pennsylvania in their decision in the Grow v. PECO Energy Company (Workers’ Compensation Appeal Board) matter.

A “corrective” amendment is when the condition was present at the time of the work injury.  In this situation, the injured worker need not file a Petition to Review, and the corrective amendment can be made by a Workers’ Compensation Judge (WCJ) in the litigation of any type of petition.  A “consequential” amendment, however, requires the filing of a Petition to Review.  This is used when the new condition is due to the accepted work injury, but takes place after the time of the injury (ie: as a consequence of that injury).  Significantly, a Petition to Review can only be filed within three years of the date of the last payment of workers’ compensation benefits.

Looking at the Grow case, the injured worker hurt his neck while working on November 4, 2013.  The injury was accepted by the workers’ comp insurance carrier, using a Notice of Compensation Payable (NCP), which described the work injury as “contusions and fractures at C3-C4.”  As a result of the work injury, disc fusion surgery was performed.  To his credit, the injured worker went back to work on January 10, 2014, and the workers’ comp benefits were suspended.

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After months of rumor, the Pennsylvania Bureau of Workers’ Compensation has made it official – there is a new Director of Adjudication.  The Honorable Holly San Angelo will take over the position.  Formerly acting as a Workers’ Compensation Judge (WCJ) in the Philadelphia Workers’ Compensation Hearing Office, and then a stint as Southeastern District Judge Manager, Ms. San Angelo brings a great deal of experience to the position.

The previous Director of Adjudication, Joseph DeRita, will go back to his prior position as WCJ in the Malvern (Montgomery County) Workers’ Compensation Hearing Office.  Practitioners on both sides of the aisle owe a huge debt of gratitude to Mr. DeRita for his masterful handling of the PA workers’ comp system during and after COVID wreaked havoc on the entire legal world.

Given his admirable handling of the Pennsylvania workers’ comp system, Mr. DeRita has left big shoes for Ms. San Angelo to fill.  But, knowing Ms. San Angelo as a practicing attorney, sitting Judge, and Judge Manager, we have complete faith in her ability to steer the ship toward continued success.

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Today, we received notice from the Pennsylvania Bureau of Workers’ Compensation stating that the maximum workers’ compensation rate for injuries suffered in 2025 will be $1,347.00.  This number is based upon the Statewide Average Weekly Wage (SAWW).  This figure is an increase from the SAWW of $1,325.00, which represented the maximum workers’ compensation rate for 2024 injuries.

Unfortunately, there is no annual increase for work injuries which have already taken place.  Other benefit programs, such as Social Security Disability, contain cost of living raises annually.  This is not present within the Pennsylvania Workers’ Compensation Act.  The benefit rate in effect at the time of the work injury is the rate which will remain for that case permanently.

The grid to see the calculation of the workers’ compensation rate from the Average Weekly Wage (AWW) can be found on the website of the Bureau of Workers’ Compensation (though, at the time of this blog, the site is not updated for 2025).  While the calculation of the rate from the AWW is purely mathematical, the calculation of the AWW itself is complicated and should always be checked by an attorney experienced in PA workers’ compensation.

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While perhaps not of interest to every injured worker, the subject of PA Department of Human Services’ (DHS) liens is one that appears from time to time in Pennsylvania workers’ compensation cases.  And, while the injured workers may not have a huge interest, the PA workers’ compensation insurance companies surely feel otherwise.  The topic can easily (as in the case we will discuss) feature bills of over $100,000.

In the case we will be addressing (Dura-Bond Coating, Inc. v. R. Marshall & PI&I Motor Express (WCAB)), the injured worker suffered a catastrophic work injury, leading to the amputation of both of his legs.  Given that there was a dispute as to what entity was actually his “employer,” there was considerable litigation following the filing of a Claim Petition.

While the Claim Petition was being litigated, medical bills were not being paid by any workers’ compensation insurance carrier.  This resulted in bills being paid through DHS.  In a situation like this, where DHS pays for treatment that should be borne by another party, DHS has a lien to recover payments it has made.

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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.

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