Articles Posted in Case Law Update

Sometimes the issue is a workers’ compensation case in Pennsylvania is a very straightforward one. For example, is interest on past due workers’ compensation benefits in PA to be calculated using simple interest or compound interest?

This was the issue faced by the Commonwealth Court of Pennsylvania in Tobler v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, Inc.). Here, the injured worker won a petition to reinstate workers’ comp benefits for damage to her hand. This involved a complicated litigation, so by the time the injured worker prevailed, she was owed several years of benefits.

As background, Section 406.1(a) of the Pennsylvania Workers’ Compensation Act (Act) says, “Interest shall accrue on all due and unpaid compensation at the rate of ten percentum per annum.” The Act does not specify whether that interest is simple or compound. In the past, the Pennsylvania Bureau of Workers’ Compensation had an interest calculator on their website, so the “correct” interest could be calculated by either party, removing most disputes. Since there is now no “official” method, this issue was inevitable.

One of the more common areas of the Pennsylvania Workers’ Compensation Act (Act) seen in appellate cases is the issue of whether an injured worker was in the scope and course of his or her employment at the time of the injury. This is often a very fact-specific inquiry. Recently, the Commonwealth Court of Pennsylvania addressed whether an injured worker abandoned his work duties at the time of the injury.

The facts of the case in Pipeline Systems, Inc. and Continental Western Insurance Company v. Workers’ Compensation Appeal Board (Pounds) are not in dispute. The injured worker was doing his job installing pipeline when he heard cries of help from a pit about 30 feet away. He rushed over to the pit where an employee of a different company had fallen. In an attempt to rescue the fallen employee, the injured worker descended into the pit. As the injured worker was climbing a ladder out of the pit, he was overcome by methane fumes and fell, hurting his left leg, knee, foot, ribs, back and lungs.

The workers’ comp insurance carrier denied the claim, alleging that the injured worker had removed himself from the scope and course of his employment, by undertaking the rescue effort (a real class act, the insurance industry). In litigating the Claim Petition, the Workers’ Compensation Judge (WCJ) granted the Petition, despite finding that “Claimant was not required to be at, in or near the pit into which he fell, and that the person he assisted was not a co-worker, and that [Employer] was not responsible for the pit or work being done in the pit on the day Claimant was injured.” The granting of the Claim Petition was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Once PA workers’ compensation benefits are modified or suspended, such as by the injured worker resuming gainful employment, the injured worker has at least 500 weeks within which he or she can reinstate total disability benefits (if the disability related to the injury recurs). If the benefits had been modified (ie: not suspended), and partial disability payments continue to the end of the 500 week period, the time within which the injured worker can reinstate is extended to three years after the date of the last payment within those 500 weeks. But, like every rule, odd facts can create an exception.

The Commonwealth Court of Pennsylvania recently dealt with such a situation in Kane v. Workers’ Compensation Appeal Board (Glenshaw Glass). As so often happens in these cases, we are dealing with multiple injuries. We have a 1991 injury to the right shoulder, for which benefits were suspended. In 1995, the injured worker hurt his left shoulder, had two operations, and ultimately went back to modified duty work. In 1999, the injured worker suffered another injury to his right shoulder, and this was found by the Workers’ Compensation Judge (WCJ) to be an “aggravation,” not a “recurrence,” so it was found to be a new injury. Benefits were suspended August 2, 1999, since he went back to modified duty work after two surgeries on that shoulder. He then continued to work at that modified duty job until the employer went out of business in November, 2004.

The workers’ comp insurance carrier reinstated total disability benefits for the 1995 left shoulder injury at that point. This continued until 2010, when a settlement (“Compromise & Release”) was reached with regard to the 1995 work injury. Following the settlement, the injured worker filed a Petition to Reinstate, based on the 1999 right shoulder injury. Notably, a Petition for Reinstatement for the 1999 injury was denied prior to the 1995 injury being settled, since total disability benefits were already being paid based on the 1995 injury.

******************REVERSED BY SUPREME COURT OF PENNSYLVANIA – SEE BLOG ENTRY 1/20/17********************

One of the big changes to the Pennsylvania Workers’ Compensation Act in the overhaul of 1996 was the introduction of the Impairment Rating Evaluation (IRE). This has become such a significant part of the Act that our website has an entire section devoted to the IRE process. In essence, an IRE allows the workers’ comp insurance carrier to change the status of an injured worker from “total” disability (for which there is no time limit) to “partial” disability (for which there is a maximum of 500 weeks). But what if the IRE fails to include the entire work injury? A troubling recent decision by the Commonwealth Court of Pennsylvania holds that the IRE remains valid, even though it failed to consider the entire work injury.

In the matter of Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.), the employee suffered electrical burns and nerve injury to both of his hands. After he received 104 weeks of total disability benefits, the workers’ compensation insurance carrier filed for an IRE. The resulting evaluation concluded there was a 6% whole body impairment. Since the IRE was performed within 60 days of the expiration of that 104 weeks, the change to partial disability status was automatic. The injured worker, however, filed a challenge to this change, a Petition to Review Compensation Benefit Offset, alleging that his work injury included more than just that to his hands.

We rarely discuss Pennsylvania appellate cases other than those directly involving workers’ compensation. However, a recent unemployment compensation case touches on the workers’ compensation process, and may be of interest to our readers.

The case is Paolucci v. Unemployment Compensation Board of Review, recently decided by the Commonwealth Court of Pennsylvania. To understand the case, and its impact on the workers’ compensation system, some background is necessary. In July, 2010, the injured worker suffered a concussion while working for Wal-Mart. The injury was accepted by Notice of Compensation Payable, and workers’ compensation benefits began. An Independent Medical Examination (IME; to the extent one considers these “independent”) found the injured worker able to go back to work; the treating physicians disagreed. The attorney for the injured worker told Wal-Mart that all communication with the injured worker was to be through the attorney’s office. Some type of job offer was apparently made, but the injured worker did not go back to work. The workers’ comp case then settled.

After the settlement, the injured worker filed for unemployment compensation benefits (interestingly, it is common practice for the employer/insurance carrier to require a voluntary resignation as part of a workers’ compensation resolution; that was not done in this case). An unemployment compensation referee awarded unemployment compensation benefits.

An often litigated provision within the Pennsylvania Workers’ Compensation Act (Act) is the 1996 addition, which provides workers’ comp insurance carriers with an ability to change “total” disability status to that of “partial” disability. This is known as the Impairment Rating Evaluation (IRE) process. The significance of such a change is dramatic – while there is no limit on the duration an injured worker can receive “total” disability benefits in PA, “partial” disability benefits can be received for a maximum of 500 weeks. Since this is such a frequent topic we see in the Courts, and in practice, we have a page on our website dedicated entirely to the IRE process. This area is also a frequent topic of our blog posts.

If the IRE is requested within 60 days of the injured worker reaching 104 weeks of total disability, the workers’ compensation insurance company can change the status of benefits automatically, simply by filing a form (provided, as discussed on our website, the whole body impairment rating is less than 50%). If the insurance carrier files the request before the 104 weeks expire, a resulting IRE is not valid. This can, and has, made for some very technical litigated cases.

As an example, the Commonwealth Court of Pennsylvania recently addressed what “requested” means in this context, in the case of The Village at Palmerton Assisted Living v. Workers’ Compensation Appeal Board (Kilgallon). Given the complex nature of the case, a careful review of the facts is necessary.

We have been following the case of School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton) through the Commonwealth Court of Pennsylvania decision, and into the Supreme Court of PA. As you might recall, this case deals with whether a Notice of Ability to Return to Work must be issued in the context of a Claim Petition. Pennsylvania’s Supreme Court has now issued a decision in this matter, clarifying the status.

For background, to recap things, this case featured a teacher who injured her vocal cord and aggravated her preexisting lupus (remember that an aggravation of a preexisting injury is a “new injury” under PA workers’ comp, and is completely compensable). After the injury, but before she filed a Claim Petition, a job was offered in a class/school where she would not be exposed to the same stress level (which had led to her injuries). She did not go back to work, and a few months later filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended benefits as of the date the new job was offered. The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the WCJ, finding that benefits should not have been suspended. Commonwealth Court of Pennsylvania then reversed the WCAB, and said the WCJ was correct in suspending the benefits.

As we have discussed in the past, an injured worker in Pennsylvania is not eligible for workers’ compensation wage loss benefits if he or she is “incarcerated after a conviction.” That same phrase also appears in the Unemployment Compensation Law, for folks who lose their jobs through no fault of their own (having nothing to do with work injuries).

This begs the question of what is meant by “incarceration.” For instance, is “house arrest” incarceration? Though it would seem not, since the injured worker is available to work, the Commonwealth Court of Pennsylvania has held that “house arrest” is indeed “incarceration” to make an injured worker ineligible for workers’ compensation wage loss benefits. This exact issue has not been addressed by the Supreme Court of Pennsylvania.

Interestingly enough, however, the Supreme Court of Pennsylvania recently addressed this issue as it arose under the Unemployment Compensation Law, in the matter of Chamberlain v. Unemployment Compensation Board of Review. In this decision, the Court found that “house arrest” is NOT the same thing as “incarceration,” and allowed the claimant in that case to receive unemployment compensation benefits. Specifically, the Court stated:

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.

There is no question that an aggravation of a pre-existing condition is considered a new injury in Pennsylvania, and can be the basis for an award of workers’ comp benefits. However, a dispute which can arise in these kinds of cases is whether ongoing effects or limitations are from the pre-existing condition alone, or from the consequences of the work injury.

In 1998, the Supreme Court of Pennsylvania issued a decision in the matter of Bethlehem Steel Corporation v. Workmen’s Compensation Appeal Board (Baxter). Here, the injured worker had been previously diagnosed with asthma. Then, while exposed to paint fumes at work, he had an aggravation of the asthma. Once he was away from the paint fumes, his lung functions returned to normal and he had no restriction or limitation.

The injured worker was awarded benefits, but only until he had returned to his “baseline” medical condition (as he had been before the work-related aggravation). At that point, said the Court, he became ineligible for workers’ compensation benefits (even though he remained unable to go back to that workplace).