Articles Posted in Case Law Update

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.

There have been several entries on our blog dealing with Impairment Rating Evaluations (IREs). Some deal with the procedure used by workers’ comp insurance carriers to turn the IRE into a change in status, from total disability to partial. Others deal with the magic 50% level that an injured worker must reach to avoid this change. A recent case, however, dealt with Maximum Medical Improvement (MMI), a finding that is required before the insurance carrier can even get an IRE.

A basic place to start this conversation would be the meaning of MMI. According to the American Medical Association “Guides to the Evaluation of Permanent Impairment,” the book we use for the IRE process, MMI is defined as:

“a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change . . .”

We have discussed psychological injuries many times in this blog, and bemoaned the additional requirement in Pennsylvania that the injury be caused by “abnormal working conditions” unlike a physical injury. For years, the appellate courts in Pennsylvania have been very strict against finding these “abnormal working conditions.” Often, as in a case we personally litigated, the Workers’ Compensation Judge (WCJ) found these conditions, only to have the Workers’ Compensation Appeal Board (WCAB) and/or Commonwealth Court of Pennsylvania reverse.

The good news is that the tide seems to now be turning the other way. First, the Payes case showed that even a police officer can be faced with “abnormal working conditions.” Now, the Commonwealth Court of Pennsylvania has rendered a decision in the Kochanowicz case, further clarifying what is required to prove a psychological injury in PA workers’ compensation.

As some of our loyal readers may recall, in the original Kochanowicz decision, the WCJ granted the Claim Petition, only to have the WCAB reverse and the Commonwealth Court of Pennsylvania affirm that reversal. The Supreme Court of Pennsylvania then decided the Payes case. Based on the decision in the Payes case, the Supreme Court then remanded the Kochanowicz case back to the Commonwealth Court for a new decision, in light of the Payes case.

When an injured worker in Pennsylvania goes back to work, but, due to the injury, suffers a continuing wage loss, the injured worker is entitled to partial disability benefits. Often, the question in these cases revolves around the reason for the wage loss. A recent decision rendered by the Commonwealth Court of Pennsylvania was no exception. Specifically, the Court answered the riddle of, “When is a job not a job.”

The case of Keller v. Workers’ Compensation Appeal Board (UPMC Presbyterian Shadyside) began when Ms. Keller slipped and fell on November 24, 2006, badly fracturing her right wrist while in the scope and course of her job as Primary Nurse Care Coordinator for UPMC Presbyterian Shadyside (UPMC). At the time of the injury, the injured worker was also working for the University of Pittsburgh (Pitt) as a part time clinical instructor, and for Mon Valley Hospital (Mon) as a staff nurse in the emergency room. The wages earned working for Pitt and Mon were added into the Average Weekly Wage, since they were considered “concurrent employment.”

Eventually, the injured worker was able to return to modified work at UPMC, but remained physically incapable of resuming either of her other positions. Subsequently, the injured worker quit her job at UPMC and started working for Carlow University (Carlow) at a lower wage. Litigation ensued as to the calculation of the partial disability benefit due to the injured worker.

We have discussed the concept of “Statutory Employer” on this blog in the past. This is something that happens when the direct employer of an injured worker lacks insurance. Most often this is seen in the construction world, where a subcontractor failed to carry insurance, so the general contractor (who more often has workers’ compensation insurance) is seen as the statutory employer, to obtain insurance coverage for the work injury. Though the use of the concept is probably lesser now, given the existence of the Uninsured Employers’ Guaranty Fund (UEGF), this is still an area of law we see somewhat regularly.

An interesting twist in such a case was seen in the recent decision from the Commonwealth Court of Pennsylvania in Mark Zwick v. Workers’ Compensation Appeal Board (Popchocoj). Here, the issue was more whether the “statutory employer” was an employer at all.

The injured worker was a general laborer, who suffered amputations of his right pinky finger and right thumb, and a laceration of his right hand, when an electric saw kicked back suddenly at a house renovation site. It was a man named Adarlan Rodrigues who hired the injured worker, set his pay and hours and directed his activities at the job site. Unfortunately, Mr. Rodrigues did not have workers’ compensation insurance.