Often, workers’ compensation cases that are litigated through Pennsylvania’s appellate courts have multiple issues. We bloggers always appreciate when the courts address multiple issues in a single decision. It lets us discuss more than one issue in a blog entry, making a more efficient experience for our loyal readers. A recent decision from the Commonwealth Court of Pennsylvania touched on both loss of use of a body part (known as a “specific loss”) and credit against workers’ compensation benefits for Social Security Retirement benefits.
In January, 2010, a decision was issued in Pocono Mountain School District v. Workers’ Compensation Appeal Board (Easterling). Here, the injured worker slipped and fell on ice, and struck his head, left shoulder and arm at work. The workers’ compensation insurance carrier only accepted “left shoulder and lumbosacral spine sprains.” Since the injury was more extensive than that legally recognized, the injured worker filed a Petition to Review, to expand the injury to include a head injury, complex regional pain syndrome (CRPS, formerly known also as “reflex sympathetic dystrophy” or RSD)) of the upper left extremity, left upper extremity cubital tunnel syndrome and loss of use of his left hand.
Prior to the injury, he had applied for Social Security Retirement (SSR, otherwise known, though never by us, as “old age”) benefits. The first check for the SSR benefits came after the injury. This distinction is important, since the workers’ comp insurance company is entitled to a credit of 50% of the SSR benefits received by an injured worker, UNLESS the receipt of benefits predated the work injury (in which case there is no credit at all). Seeking this credit, the workers’ compensation insurer filed a Petition for Modification.
The Workers’ Compensation Judge (WCJ) reviewed the evidence and granted the Petition to Review (for the most part). Relevant to this decision, the WCJ found a specific loss of the left hand. As to the Petition for Modification, the WCJ denied the request, finding that the insurer “failed to meet its burden of proving its entitlement to credit for Claimant’s receipt of Social Security benefits.” On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Petition to Review, but reversed the denial of the Petition for Modification, finding that the insurer was in fact entitled to the credit for the SSR benefits. Both sides appealed to the Commonwealth Court of Pennsylvania.
Defendant’s appeal alleged that the WCJ allowed medical testimony concerning “left upper extremity” to substitute for the hand, that the WCJ failed to find the specific loss was permanent, and that there was no evidence the left hand condition was separate and apart from the rest of the condition (a prerequisite to obtaining both disability and specific loss benefits).
In affirming the award of specific loss benefits, the Court noted that a specific loss need not be a complete literal loss of the body part, but just have that there is a loss of use “for all practical intents and purposes.” Here, said the Court, both the injured worker and his medical expert testified that there was virtually a complete loss of use of the left hand (not just upper extremity), and both were found credible by the WCJ. The medical expert credibly testified that he did not anticipate any improvement (hence the damage was permanent). And, lastly, there were body parts other than the hand which disabled the injured worker, so the loss of the hand was separate and apart from the remainder of the injury. Based on these things, the Court affirmed the granting of the Petition for Review.
However, the injured worker’s appeal of the Petition for Modification was more successful. The Court reversed the WCAB, reinstating the conclusion of the WCJ. The workers’ compensation insurance carrier was not entitled to a credit for the SSR benefits, even though the PAYMENT of SSR benefits did not begin until after the injury, because the injured worker became ENTITLED to SSR benefits on his 62nd birthday, which took place 18 days before the injury. It is immaterial when the payment is received, said the Court, the key is the date on which the injured worker becomes entitled to the SSR benefits.