Articles Posted in Case Law Update

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.

We have discussed the concept of providing notice of a work injury to one’s employer before on this blog.  As a basic rule, notice of a work injury in Pennsylvania must be provided within 120 days of the injury.  This can get a bit tricky when we are dealing with “cumulative trauma” (when an injured worker may not even realize his or her condition is related to the work duties until being so advised by a doctor; in these cases, the 120 days does not begin until the injured worker obtains this knowledge [called the “discovery rule”]).

Today, Commonwealth Court of Pennsylvania issued a decision in the case of Gahring v. Workers’ Compensation Appeal Board (R and R Builders and Stoudt’s Brewing Company).  This decision required the Court to consider what constituted sufficient notice.  Here, the injured worker hurt his low back in 1997 for Employer A.  This was accepted as herniated discs at L3-4 and L4-5, and chronic low back pain.  Low back surgery was performed.  The case was settled in 2002.

In 2010, the injured worker starting as a line cook for Employer B.  When another worker left, causing an increase in hours, the injured worker told his Employer that he was having increased back pain.  This worsened until he needed another back surgery on November 17, 2010.

It is not uncommon for an injured worker to move from the Commonwealth of Pennsylvania to another State for a variety of reasons.  Depending on the situation, such a move may have varying degrees of impact on a workers’ compensation case.  Recently, the Commonwealth Court of Pennsylvania thankfully held that merely relocating from the Commonwealth of Pennsylvania is not a “voluntary withdrawal from the labor market,” sufficient to stop workers’ comp benefits on its own.

In the case of Chesik v. Workers’ Compensation Appeal Board (Department of Military and Veterans’ Affairs), the injured worker suffered a cervical sprain/strain injury in July of 2009.  Upon learning that the injured worker had moved to Nevada, in 2013, the workers’ compensation insurance carrier filed a Petition to Suspend, alleging that “Claimant has moved to Nevada and has voluntarily removed herself from the workforce….”

The injured worker admitted in her testimony before the Workers’ Compensation Judge (WCJ) that she primarily moved for a drier and warmer climate, due to her having lupus and fibromyalgia (neither of which were said to be work-related).  These conditions had been present years before the work injury.  Her move to Nevada admittedly had nothing to do with her work-related injury.  Also, of note, the injured worker agreed she “retired” (a bad word to ever use in a workers’ comp situation) from her Employer in October 2012, and applied for a disability pension in December 2012.

As our loyal readers know by now, an injury in Pennsylvania is covered by the PA Workers’ Compensation Act (Act) if the injury is suffered “in the furtherance of the employer’s business or affairs, regardless of whether the injury occurred on the employer’s premises” [presuming the employee is not subject to a different workers’ compensation scheme, such as the Federal Employees’ Compensation Act (FECA), Federal Employers’ Liability Act (FELA), or The Longshore and Harbor Workers’ Compensation Act (LHWCA), just to name a few].

We have also seen situations when a work injury is covered by the Act, even if the injured worker is not actually furthering the employer’s business or affairs, if other criteria are met.  More specifically, the injured worker in such a situation must be: “(1) injured on premises occupied or under the control of the employer, (2) required by the nature of his employment to be present on the premises; and (3) sustained injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.”

A recent decision by the Supreme Court of Pennsylvania, O’Rourke v. Workers’ Compensation Appeal Board (Gartland), dealt with this issue, though in a very bizarre fact pattern.  The injured worker was employed, nominally, by her 33 year-old son, through a state-funded program under the Department of Public Welfare (DPW), to provide attendant care, necessitated by his long-term drug use.  The son (as Employer) was to receive 64 hours of care each week (note that he did not qualify to receive nighttime or 24-hour care).  The mother (Claimant/Employee) allowed her son to live with her, though this was not required by the DPW arrangement.  One night, after she went to bed, her son viciously stabbed her.

In 2004, the Pennsylvania Bureau of Workers’ Compensation created the medical-only Notice of Compensation Payable (NCP).  This addressed a long-standing practice in the insurance industry of using a Notice of Denial (NCD) to accept a claim solely for medical benefits.  For years, we have questioned the procedure an injured worker would use to allege a wage loss after the issuance of a medical-only NCP.  To be safe, many of us filed both a Claim Petition and a Petition for Reinstatement in such a situation.  This issue has now been clarified by the Commonwealth Court of Pennsylvania.

In the case of Ingrassia v. Workers’ Compensation Appeal Board (Universal Health Services, Inc.), the injured worker was involved in a motor vehicle accident while performing his work duties.  A medical-only NCP was issued, accepting a neck and back strain.  The injured worker believed his injuries were more significant, and that the work injury caused him to be disabled from performing his job.  A Claim Petition was filed, then amended by the injured worker to operate as a Petition for Reinstatement (the burden of proof is much less for a Petition for Reinstatement, so that would be the desired petition for an injured worker to use in this situation).

After hearing the evidence, the Workers’ Compensation Judge (WCJ) concluded that the work injury was more extensive than already accepted (so the diagnosis of left ulnar neuropathy was added), but that the injured worker failed to prove that he was disabled by the injuries.  Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

From time to time in a Pennsylvania workers’ compensation case, the entity who is actually the “employer” for workers’ comp purposes is not clear. This is frequently due to the direct employer lacking PA workers’ compensation insurance coverage (which is against the law). When we face such a situation, often we are looking to see if there is a “statutory employer,” which is when a party other than the direct employer is responsible for the payment of workers’ comp benefits (this is most often seen in the construction arena, with subcontractor and general contractor). Almost always, the Uninsured Employers Guaranty Fund (UEGF) is involved in such a case (since the direct employer failed to carry workers’ comp insurance).

Recently, the Commonwealth Court of Pennsylvania was called upon to determine an interesting issue in this area – is a franchisor a “statutory employer” for an employee of a franchisee, if the franchisee fails to carry workers’ compensation insurance? In a word, the answer is no. The case is Saladworks, LLC and Wesco Ins. Co. v. WCAB (Gaudioso and UEGF).

This case revolves around an employee (“Claimant”) who worked at a Saladworks restaurant which was owned and operated by G21, LLC. Claimant twisted both knees when he slipped on water, and was rendered disabled by the incident. Seeking workers’ compensation benefits, Claimant filed Claim Petitions against both G21, LLC and the UEGF. In turn, UEGF filed a Joinder Petition against Saladworks, alleging that Saladworks (the franchisor) was the statutory employer in this case.

An injured worker in Pennsylvania generally has three years after the date of the injury to file a Claim Petition to seek workers’ compensation benefits for the injury. On the other hand, once an injury is accepted by the issuance of a Notice of Compensation Payable (NCP), and then wage loss benefits are suspended, the injured worker generally has 500 weeks, or three years from the date of last payment, whichever is later, to file for a reinstatement to such benefits. Where, then, does the issuance of a “medical-only” NCP leave an injured worker? This issue was recently addressed by the Commonwealth Court of Pennsylvania.

A “medical-only” NCP is a fairly recent document created under the PA Workers’ Compensation Act. This document allows the workers’ comp insurance carrier to accept responsibility for an injury, and to acknowledge the payment of medical treatment for such injury, but to deny any wage loss (“Disability”) has taken place. As discussed below, it is one of the most misused and abused documents in the entire Act.

The Commonwealth Court of Pennsylvania recently decided the case of Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital of Philadelphia). Here, the injured worker was a nurse who suffered an injury to her right elbow, diagnosed as lateral epicondylitis, in 2004. This injury was accepted by NCP and wage loss benefits began. Eventually, she went back to work, on a light duty basis. In 2006, she suffered another work injury, this one to her right elbow and also to her right knee. This time a medical-only NCP was issued. She continued to work, still on light duty, until 2007, when she went out of work to have a total knee replacement performed on the right knee. She never was able to go back to work.

We have discussed Impairment Rating Evaluations (IRE) many times on this blog. Indeed, IREs are so prevalent in the Pennsylvania’s workers’ compensation system, we even have a page devoted to the IRE process on our website. However, a decision by the Commonwealth Court of Pennsylvania may change IREs in PA in a significant way.

Today, the case of M.A. Protz v. Workers’ Compensation Appeal Board (Derry Area SD) was decided by the Commonwealth Court of Pennsylvania. In this decision, the Court declared that Section 306(a.2), which states that IREs are to be performed “pursuant to the most recent edition of the American Medical Association (AMA) ‘Guides to the Evaluation of Permanent Impairment,'” is unconstitutional. Essentially, the Court found that the legislature cannot delegate legislative authority to the AMA (since the legislature would not be reviewing or approving each new edition of the AMA Guide). When the IRE process was instituted, as part of Act 57, the AMA Guide was in its Fourth Edition (it is currently in its Sixth Edition).

The Court remanded the case back to the Workers’ Compensation Judge (WCJ), for the WCJ to consider the IRE under the Fourth Edition (according to the Court, this would be the most recent edition actually reviewed by the legislature).