Articles Posted in Case Law Update

Back in February, 2015, we posted a blog entry expressing our disappointment in the decision rendered by the Commonwealth Court of Pennsylvania in the matter of IA Construction Corporation v. Workers’ Compensation Appeal Board (Rhodes).  We are now delighted to relate that the Supreme Court of Pennsylvania, the top appellate court in PA, has now reversed the decision of the Commonwealth Court, and reinstated the decision reached by the Workers’ Compensation Judge (WCJ) [and affirmed by the Workers’ Compensation Appeal Board (WCAB)].

This case involved an Impairment Rating Evaluation (IRE).  As we discuss on our website, if a workers’ compensation insurance carrier obtains a whole body impairment rating of an injured worker of less than 50%, more than 60 days after the injured worker receives 104 weeks of total disability benefits, the insurance carrier cannot automatically change the status of disability from “total” to “partial.”  Instead, the insurance company must file a Petition for Modification to have a WCJ order such a change.

In this matter, the workers’ comp insurance carrier took the deposition of the IRE physician.  The injured worker offered no evidence, but argued that the testimony of the IRE physician was not credible (and that, thus, the Petition for Modification should be denied).  Finding the IRE physician not credible, the WCJ did deny the Petition.  The WCAB affirmed the decision.

Every employer in Pennsylvania must carry PA workers’ compensation insurance (unless exempted for some reason, such as qualifying to insure itself).  The failure to carry workers’ comp insurance is a criminal act, one punishable by a fine and/or incarceration.  Unfortunately, not all employers in PA obey the law.  As we have discussed over the years, PA has a fund for injured workers when no insurance is present, called the Uninsured Employers Guaranty Fund (UEGF).

To initiate a case against the UEGF, an injured worker must notify the UEGF within 45 days of learning that his or her employer failed to carry workers’ compensation insurance.  The Commonwealth Court of Pennsylvania recently had to address when compensation becomes payable, and whether “compensation” in this context, when notice is provided to the UEGF after the 45 days, includes payment of medical expenses.

In this matter, Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Kendrick and Timberline Tree & Landscaping LLC), the employee suffered an orbital fracture, traumatic brain injury and postconcussion syndrome on November 7, 2011.  A Claim Petition was filed against the employer.  In that litigation, at a hearing on December 21, 2011, the injured worker was advised that the employer had no workers’ compensation insurance in PA.  A Notice of Claim was not filed against the UEGF until February 8, 2012 (more than 45 days after the injured worker knew there was no insurance).  All of these facts were stipulated between the parties.  A Claim Petition against the UEGF was filed; the only issue for the Workers’ Compensation Judge (WCJ) to decide was when the compensation was to start (the date of the injury, or the date the UEGF was notified).

Once an injured worker in Pennsylvania begins to receive workers’ compensation benefits, an insurance carrier can only stop making those payments under certain circumstances.  If the benefits are being paid under a Notice of Temporary Compensation Payable (NTCP), then the insurance carrier can simply withdraw the NTCP, issue a Notice of Denial (NCD) and stop paying unilaterally [As opposed to a Notice of Compensation Payable (NCP), which cannot be withdrawn].  However, in most other circumstances, approval must be obtained either from the injured worker (typically by the execution of a “Supplemental Agreement”) or from a Workers’ Compensation Judge (WCJ).

As with many rules, there are exceptions.  If the injured worker returns to work, the workers’ compensation insurance carrier can file a Notification of Modification (if partial disability payments will continue) or a Notification of Suspension (if payments will stop totally).  The injured worker has a chance to “challenge” either of these documents if he or she disagrees with the return to work (or the amount of wages in the return to work).  If either of these documents is not challenged within the given time period, the document is treated as if the injured worker signed in agreement.

This challenge process was one of the issues in a recent decision from the Commonwealth of Pennsylvania in Dixon v. Workers’ Compensation Appeal Board (Medrad, Inc.).  The matter began when the employee suffered a neck injury, which was accepted as a cervical sprain (interesting enough, the description of injury was not expanded, yet disfigurement benefits were awarded for scarring from cervical surgery [a procedure one would not have for a mere “sprain]).

In many situations in life, things make sense.  This is not always true in law.  For example, a reasonable person may conclude that a “Notice of Denial” would be issued when a claim is “denied.”  How silly that person would feel to know that Pennsylvania Courts find it perfectly acceptable for a “Notice of Denial” to be used to accept a claim, even though the form itself specifically prohibits such a use.

Church v. Workers’ Compensation Appeal Board (Cook Landscaping) involved a worker who suffered a herniated disk in his lumbar spine while performing his job in 2004.  A Notice of Temporary Compensation Payable (NTCP) was issued accepting the injury as as a “herniated disc.”  An average weekly wage of $973.81 and a compensation rate of $649.21 was listed.  Subsequently, a second NTCP was issued, marked “corrected,” and adjusted the average weekly wage and compensation rate.  Temporary total disability benefits were paid for approximately 10 weeks under the two NTCPs.

After the 10 or so weeks, the injured worker returned to his job.  The workers’ compensation insurance carrier filed a Notice Stopping Temporary Compensation (NSTC) and a Notice of Workers’ Compensation Denial (NCD), indicating that, although an injury took place, Claimant was not disabled as a result of the injury and further indicating that all medical treatment related to the work injury would be reviewed for payment.  Having no medical insurance, the injured worker went several years without treatment for his low back, though he continued to have pain.

As we have addressed in the past, the Pennsylvania Workers’ Compensation Act applies to most “employees” in the State of Pennsylvania.  It does not, however, apply to “independent contractors.”  Often the line of demarcation between the two classes is blurry.  It becomes even more blurry when the findings of a Workers’ Compensation Judge (WCJ) are disregarded by appellate courts.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of Edwards v. Workers’ Compensation Appeal Board (Epicure Home Care, Inc.).  Here, the injured worker was a home health aide, who was hurt when she fell down the steps at the residence of one of her clients.  The defense to the Claim Petition filed by the injured worker was not a medical one, but, instead, was simply that the injured worker was an “independent contractor,” and not an “employee.”

In litigating the Claim Petition, the issue of the employee/employer relationship was “bifurcated” (litigated separately prior to litigating all of the aspects of the case).  The testimony of the injured worker, and a representative of the employer, was considered by the WCJ on the bifurcated issue.  The WCJ concluded that the injured worker was, in fact, an employee, and made the following findings of fact:

Back in June, 2015, we discussed the case of Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.).  Here, the Commonwealth Court of Pennsylvania found an Impairment Rating Evaluation (IRE) still valid, even though not all accepted injuries were included.  An IRE, as you can read on our website, changes the disability status of an injured worker from total to partial.

We are happy to report that the Supreme Court of Pennsylvania has accepted appeal in this matter.  Specifically, the Court will be addressing the issue:

“Did the Commonwealth Court err in concluding that an Impairment Rating Evaluation (IRE), which is designed to rate the percentage of disability two years out from a work injury, was valid where the IRE only considered the injuries listed on the notice of compensation payable issued at the time of injury, and did not consider additional injuries that subsequently arose and were known at the time of the IRE but not yet formally added to the description of injury?”

To win a Claim Petition in Pennsylvania, an injured worker must prove that the alleged work injury was caused by the work activities.  This is usually done through the testimony of the injured worker.  However, what about in the situation where the work injury is fatal, leaving nobody with direct and personal knowledge to testify?  Commonwealth Court of Pennsylvania recently addressed this very issue.

In the case of Dietz v. Workers’ Compensation Appeal Board (Lower Bucks County Joint Municipal Authority), the injured worker performed a physical job “that included jackhammering to dig up the road, repairing water main breaks and cutting tree roots out of the sewer system.”  This was according to the testimony of the widow, and this testimony was not disputed.  The widow added that this was the job every day (in other words, there were no days of desk work involved).  On November 7, 2007, the injured worker suffered a fatal heart attack at work after a long day on the job.

Since the Employer and the workers’ comp insurance carrier denied fatal claim benefits to the widow and surviving child (bless their little hearts, eh?), the widow filed a Fatal Claim Petition.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) found the widow generally credible, but denied the claim because it was not proven that the injured worker had a more strenuous than usual day on the day of his death.  However, this decision was reversed by the Workers’ Compensation Appeal Board (WCAB) and the case remanded back to the WCJ.  The WCAB noted that there was no requirement of proving a more strenuous day; “a claimant need only prove a connection between the decedent’s employment and his death; showing a greater than normal exertion is unnecessary,” said the WCAB.

Unless a PA workers’ compensation claim is litigated, an injury is typically accepted by the workers’ compensation insurance carrier via a Notice of Compensation Payable (NCP) or Notice of Temporary Compensation Payable (TNCP).  If an NCP, or a TNCP, is issued by the insurance company, they have the ability to unilaterally describe the nature of the injury.  Unless challenged by the injured worker, this is the only condition for which the insurance carrier need pay medical bills.  As you might imagine, this is a frequent area of litigation.

Litigation to amend the description of injury comes in two different types, which have previously been discussed on this blog.  A “corrective amendment” is for a condition which existed at the time of the original work injury; a “consequential condition” is one which developed after the date of the injury.  The method of litigation, time limitations and relative burdens may vary between the two.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Walter v. Workers’ Compensation Appeal Board (Evangelical Community Hospital).  Here, the injured worker (Claimant) worked as an emergency medical technician.  She injured her left shoulder lifting a patient on May 20, 2007.  An NCP was issued, accepting “left shoulder strain.”  Claimant underwent shoulder surgery later in 2007.