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Just because an injured worker had some problems with a body part before a work injury does not preclude a “new injury” in a PA workers’ compensation case.  The concept of “aggravation” of a preexisting condition, a “new injury,” as compared to a “recurrence” of that condition, is central enough to the world of PA workers’ compensation that we devote an entire page of our website to discuss this concept.  It is a concept we often see in PA workers’ compensation litigation.  This issue comes up both at the initial stage of an injury, as well as when there is an allegation that the “aggravation” has ended.

It is with this preface that we discuss a recent unreported decision from the Commonwealth Court of PA, Rodolfo Perez-Martinez v. Dart Container Corporation of Pennsylvania (Workers’ Compensation Appeal Board).  This case deals with how and when an “aggravation of a preexisting condition” ends for the purposes of PA workers’ comp.

As we have previously discussed on this blog, “unreported” decisions from the Commonwealth Court of Pennsylvania are of limited value in PA workers’ compensation cases, since they are not “precedential.”  That’s a fancy way of saying lower courts (including Workers’ Compensation Judges [WCJs]) are not bound by these unreported decisions.  However, unreported decisions are still of some value to us.  These decisions can still be “persuasive” to a WCJ.  Additionally, these decisions offer insights into the thinking of the Commonwealth Court, so as to help us understand how the Court may rule in a future case.

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A work injury in Pennsylvania is generally compensable if the injured worker is hurt while in the scope and course of his or her employment. Simple, right? The hard part comes with understanding the terms. Like, what constitutes “scope and course” of employment?

For starters, you will not find this term in the PA Workers’ Compensation Act. Instead, this is a concept created by the courts over the past many years. Another concept created by the courts is the “personal comfort doctrine,” which says that an employee does not leave the scope and course of employment while making a brief departure from his or her duties to attend to personal needs, whether that be a cigarette break, food, a drink or a visit to the restroom.

Does one leave the “scope and course” of employment when taking a break? That becomes a magic question, and one that is often seen in litigation. Scope and course cases are very fact-specific, making it difficult to provide clear rules for what is, and what is not, covered.

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Recently, the Pennsylvania Bureau of Workers’ Compensation announced that two new Workers’ Compensation Judges (WCJs) have been added to the bench, and will be hearing cases in the Philadelphia hearing office located at 801 Arch Street.  The new WCJs are Jennifer Etkin, Esquire and Jenifer Kaufman, Esquire.

The Philadelphia hearing office is, along with Delaware County, in the Southeastern District under the PA Bureau’s alignment.  Cases in Delaware County are handled by the hearing office located at 760 West Sproul Road in Springfield.

Pennsylvania is divided into four districts by the PA Bureau of Workers’ Compensation.  In addition to the Southeastern District, there is the Eastern District, the Central District and the Western District.

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Capital Health is planning to build a “micro-hospital” in Langhorne, next to Oxford Valley Mall. In 2019, Capital Health purchased the property, which had been a bariatric surgery center. The plan was stymied by the pandemic, though it is now said to be moving forward, according to an article in Philadelphia Business Journal.

The “micro-hospital,” also known as a “neighborhood hospital,” will be a fully licensed medical center. Patients will have access to the general services of a traditional hospital in a more local, and convenient, setting.

Though specific details have not yet been provided, these types of facilities generally have 10 to 15 inpatient beds (for short stays), and an emergency room which will be open around the clock.

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There is a common misconception that the workers’ compensation insurance carrier controls medical treatment whenever a worker is injured in Pennsylvania.  This is addressed in broad strokes on our website.  The truth is, a workers’ compensation insurer in PA may control medical treatment for the first 90 days of an injury, only if certain requirements are met (and very often, they are not).  Even then, there are situations where the injured worker is not bound by the insurer’s desired healthcare providers.  As with many aspects in the complex world of PA workers’ comp, it pays for an injured worker to know his or her rights.

An employer may post a “panel” of healthcare providers for an injured worker to use in the case of a work injury.  For a panel posting to be valid, it must include at least six healthcare providers (at least three of which must be physicians).  No more than four of the healthcare providers can be part of a coordinated care organization.  Though it may seem obvious, the providers must be geographically accessible for the injured worker.  The panel listing must contain the name and specialty of each provider, the address and phone number, and any ownership relationship.

Those requirements are just pertaining to the content of the panel posting.  For a panel posting to be valid and binding, more is required.  The panel must be “conspicuously” posted in an employee-accessible area (such as a breakroom, locker room, first aid station or time clock area).  Additionally, employees must receive a written copy of the panel at the time he or she is hired, as well as either immediately after, or as soon as possible after, an injury.

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While many folks know what happens when an Employer violates Pennsylvania law and fails to carry PA workers’ compensation insurance (this is governed by the Uninsured Employers’ Guaranty Fund [UEGF]), few know what happens when a PA workers’ compensation insurance carrier goes bankrupt or ceases to exist.  This is where the Security Fund (Fund) steps in and pays the appropriate compensation.

Much like the UEGF, it is well settled that the Fund is not an “insurance company,” and therefore immune from penalties for a violation of the Act.  The Fund also cannot be assessed counsel fees for maintaining an unreasonable contest.  But, the Fund, like the UEGF, is responsible for paying for wage loss and medical treatment related to a work injury, and for the reimbursement of reasonable costs of litigation incurred by the injured worker in procuring such benefits.

On this blog, we discussed the landmark Lorino case, where the Supreme Court of Pennsylvania held that a Workers’ Compensation Judge (WCJ) can order a payment to an injured worker’s attorney of a counsel fee, even in there was a reasonable contest, and that such a fee is considered a litigation cost.

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Just recently, we discussed a case which addressed mental/mental work injuries in Pennsylvania.  This type of injury occurs when a mental stimulus creates a psychic injury.  As we reviewed in that posting, these mental/mental injuries have a higher burden in the PA workers’ compensation system – to be compensable, such injuries must result from “abnormal working conditions.”

But, mental/mental is only one of three types of mental injuries we see in PA workers’ comp.  We also see physical/mental (where a physical cause leads to a mental injury) and mental/physical (where a mental stimulus causes a physical reaction).

Recently, the Commonwealth Court of PA dealt with both the physical/mental and mental/mental situations in the matter of Russo v. Upper Darby Township (Workers’ Compensation Appeal Board).

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As we have discussed previously on this blog, physical injuries in Pennsylvania are treated differently than mental ones.  Provided that a physical injury was suffered in the scope and course of the job, benefits should be payable.  Mental injuries, though, have a different and additional requirement – the injury must have resulted from “abnormal working conditions.”

There should not be much surprise, then, that many cases have dealt with whether a particular fact pattern reaches the standard of “abnormal working conditions.”  This determination is very dependent on the exact facts of each case.  And, of course, what would be expected in that particular job.  What a police office, fire fighter or EMT might expect on a normal day at work is very different from that of an accountant, warehouse worker or a secretary.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Ganley v. Upper Darby Township (Workers’ Compensation Appeal Board).  Here, the injured worker was a firefighter/EMT, who was forced to perform CPR on infants twice in less than two years (with neither infant surviving).  As a result of those events, the injured worker suffered post-traumatic stress disorder (PTSD).

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The Pennsylvania Workers’ Compensation Act (Act) is very specific – a workers’ comp insurance carrier is responsible for the payment of all reasonable and necessary medical expenses, which are related to a work injury.  As always, the devil is in the details.  For example, is the payment of medical bills something which can only be addressed by Fee Review and not by a Workers’ Compensation Judge (WCJ)?

As the Commonwealth Court of Pennsylvania indicated in the recent case of Day-Timers, Inc. v. Rhonda Horton (Workers’ Compensation Appeal Board), a WCJ does, indeed, have jurisdiction to address the nonpayment of medical bills.  But, initially, let’s examine the confusion.

Under the Act, a PA workers’ compensation insurer has 30 days to either pay a medical bill related to a work injury, or file for Utilization Review (UR), which challenges whether such treatment was reasonable and necessary.  If a healthcare provider is not satisfied with the timing or amount of the payment for medical treatment, the provider has the ability to file for Fee Review.  This statutory scheme could lead an insurance carrier to argue that an injured worker cannot file a Petition for Penalties, for the nonpayment of a medical bill, since that is a subject solely for Fee Review.

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Back in 2008, we discussed the decision of the Commonwealth Court of Pennsylvania in the matter of Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.) [Note that the formatting, with the WCAB listed as the party and the Employer in parentheses, has been reversed since this decision].  This decision terrified attorneys who represent injured workers in Pennsylvania.

Essentially, Weney stood for the proposition that if a work injury is in litigation, and there is an aspect of the injury that was either raised, or should have been raised, the injured worker is barred from trying to bring it up in a subsequent litigation (what the court calls “technical res judicata”).  The consequence of barring a condition from being added in the future, even if it was never even litigated in the past, is both a great fear and a terrible injustice to us in the workers’ comp Claimant bar.

However, the Commonwealth Court of Pennsylvania does recognize limits to this concept.  This was addressed by the Court in the recent case of Michael N. Lewis, Sr. v. City of Philadelphia (Workers’ Compensation Appeal Board).  The injured worker here was a police officer, who in 2017, sustained injuries to his hand/wrist, low back, chest wall, and thoracic spine while attempting to subdue a burglary suspect.  The injury was properly accepted by issuance of a Notice of Compensation Payable (NCP).

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