Articles Posted in Case Law Update

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).

Since there is no payment for pain and suffering available in PA workers’ compensation cases, the amount an injured worker receives for wage loss benefits is critical. These wage loss benefits are set by the “Average Weekly Wage” (AWW), which is calculated based on formulas found in the Pennsylvania Workers’ Compensation Act (Act).

There is no minimum time an employee must be employed to qualify for workers’ comp benefits in PA, and we have seen unlucky folks injured on their very first day of work. When an injured worker has been with his or her employer for less than 13 weeks (less than a calendar quarter), and the wages of the person are not fixed by the week, there are special rules for determining the AWW. Typically, according to the Act, this would be “the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.” But what if this formula did not fit?

Recently, the Commonwealth Court of Pennsylvania faced such an issue in the matter of Anderson v. Workers’ Compensation Appeal Board (F.O. Transport and Uninsured Employer Guaranty Fund). Here, the injured worker was a truck driver, paid by the load, not by the hour. The employer testified before the Workers’ Compensation Judge (WCJ) that the injured worker would earn $1100 to $1200 per week. The first week, the driver had no runs to make. It was on the third run of the following week that he was injured (a bimalleolar fracture to his ankle). The wages earned appear to have been $270.00 for each of the three loads.

Under Pennsylvania workers’ compensation law, there are three types of mental injuries. The burden of proof is different depending upon which of these types is involved. A mental injury, resulting from a mental incident, known as a “mental/mental claim,” is the one which generates the most litigation. In this type of case, the mental injury must be the result of an “abnormal working condition,” in order to be compensable. If there is a physical aspect of the injury, which then leads to a mental injury, there is less of a burden of proof than in a mental/mental claim.

Recently, in Murphy v. Workers’ Compensation Appeal Board (Ace Check Cashing Inc.), the Commonwealth Court of Pennsylvania dealt with two aspects of mental injuries, including how much of a physical injury is necessary to separate a mental/mental claim from a physical/mental claim.

Here, the injured worker was a general manager for a check cashing company, Upon arriving at work one day, the injured worker was first forced, at gunpoint, to open a safe, then she was hogtied. Her husband was handcuffed by the assailant and left outside. There were security procedures in place, and there had been a few previous robberies over the years. The injured worker had mild bruising from being tied up, and alleged other injuries, including to her neck, shoulders, thoracic spine, wrists, and ankles. An allegation of post-traumatic stress disorder (PTSD) was also made.

****REVERSED BY SUPREME COURT OF PENNSYLVANIA ON MAY 25, 2016 – SEE UPDATED BLOG ENTRY*****

We have addressed the topic of Impairment Rating Evaluations (IREs) many times in this blog; in addition, we have recently created a page on our website explaining the IRE process in greater detail. As we have seen, both the Pennsylvania Workers’ Compensation Act, and the appellate courts, tell us that an insurance carrier who seeks a modification due to an IRE, outside the 60-day window, must prevail in the “traditional administrative process.” As the Supreme Court of Pennsylvania found (in the case of Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures) back in 2005):

” . . . the IRE becomes an item of evidence just as would the results of any medical examination the claimant submitted to at the request of his employer. It is entitled to no more or less weight than the results of any other examination. The physician who performed the IRE is subject to cross-examination, and the WCJ must make appropriate credibility findings related to the IRE and the performing physician.”

When an employee in Pennsylvania suffers a work injury, he or she is entitled to workers’ compensation benefits as long as the wages of the injured worker are reduced due to the effects of the work injury. That certainly sounds like a simple matter, and a reasonable rule, but, as with many things in law, the matter is never as simple as it seems. For example, when is a wage loss “related to the work injury“?

The Commonwealth Court of Pennsylvania recently dealt with this issue in Donahay v. Workers’ Compensation Appeal Board (Skills of Central PA, Inc.). Here, the injured worker was employed as a team leader and a residential services assistant at a group home for mentally challenged adults. In performing her job, she suffered a ruptured right biceps when a resident hung on her arm. Subsequent to the injury, she went back to work, first in a limited role, and then back to her previous duties (though she continued to have physical restrictions, these did not affect her ability to do her job).

After she had gone back to work, her hourly wage was higher than it had been when she was injured. However, due to a reduction in available overtime, her overall earnings were less than her Average Weekly Wage (AWW) when she was injured. She testified that her treating physician had limited her to working a maximum of 45 hours per week. This differed from the testimony of her medical expert, who said that he did not limit the hours she could work in a week. Testimony from fact witnesses presented by the insurance carrier explained that the reduction in overtime was based on budget issues, and applied to all employees.