Articles Posted in Case Law Update

****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.

We have previously discussed that a mental injury (resulting from a non-physical situation) in Pennsylvania must be the result of “abnormal working conditions” to create an entitlement to workers’ compensation benefits. The aspect typically on appeal is whether working conditions were actually “abnormal.” In a recent decision by the Commonwealth Court of Pennsylvania, however, the issue was actually whether the injured worker had presented sufficient evidence to prove the medical aspect of the case.

In the matter of Frog, Switch & Manufacturing Company v. Workers’ Compensation Appeal Board (Johnson), the injured worker was victimized by racial and gender harassment (for which a complaint was filed with the Pennsylvania Human Relations Commission [PHRC]). From this harassment, she developed depression. The injured worker filed a Claim Petition, alleging a psychological injury from abnormal working conditions.

The injured worker testified, and also presented the testimony of a co-worker. No testimony was taken from any medical providers. Instead, the injured worker presented a few treatment notes from her treating doctors. After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The primary intention of the Pennsylvania Workers’ Compensation Act, back when it was enacted in 1915, was to create an income maintenance program. It was designed to achieve a humanitarian purpose, to benefit the injured worker in PA. Sometimes, the amount or frequency of workers’ comp benefits is called into question, and it is these basic ideas that must be considered in such a situation.

In Fields v. Workers’ Compensation Appeal Board (City of Philadelphia), the injured worker, a prison guard, suffered a very severe injury to her left shoulder, arm,

wrist and hand while restraining an inmate. Through litigation of a Review Petition, the injury was expanded to include a partial tear of the left rotator cuff, a left brachial plexus traction injury and reflex sympathetic dystrophy [RSD] (now known as Complex Regional Pain Syndrome [CRPS] of the left upper extremity.

We often see cases addressing whether a work injury in Pennsylvania was suffered while the injured worker was in the “scope and course” of his or her job. Usually, this situation falls into one of two categories – either whether it is part of the commute to or from work, or whether it is taking a break during the work day. Each of these situations has been addressed by the PA appellate courts, and by this blog, on many occasions. One thing all of these cases have in common is how specific each case, and each decision, is to the facts of the individual case.

A nice example of how the cases are so specific to the facts of each injury can be seen in 1912 Hoover House Restaurant v. Workers’ Compensation Appeal Board (Soverns). Here, a cook was taking a “smoke break.” The employer had put an ashtray outside the restaurant for these smoke breaks, and the injured worker was within a few feet of that ashtray when he was hurt. The employer allowed these breaks, and had no specific policy regarding the details. When taking his break, the father of a co-employee brought his dog over. The injured worker carefully offered his hand to the dog, and then petted the dog. Unfortunately, the dog proceeded to bite the injured worker’s face, causing permanent facial injury.

After a Claim Petition was litigated, the Workers’ Compensation Judge (WCJ) granted the Petition, finding that the injured worker was in the scope and course of his job at the time of the injury. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB) [after being first sent back to the WCJ for a clarification on the wages earned by the injured worker].

We have previously discussed Impairment Rating Evaluations (IREs), the tool insurance carriers use to change the status of injured workers in PA from total to partial disability. Unless strict time periods are obeyed, the insurance carrier has the burden to file a Petition for Modification, and prove the injured worker has a whole body impairment (WBI) of less than 50%, to get this change of status.

Recently, the Commonwealth Court of Pennsylvania addressed the issue of how an injured worker can defend such a petition. In Commonwealth of Pennsylvania/DPW – Loysville Youth Center v. Workers’ Compensation Appeal Board (Slessler), the IRE physician found a WBI of 8%. The injured worker took the deposition of his psychologist, since part of the injury was emotional. This psychologist was licensed, but not licensed to practice in Pennsylvania. Also, the psychologist admitted he did not meet the requirements issued by the Bureau of Workers’ Compensation for a physician certified to perform IREs in PA.

After hearing the testimony and reviewing the evidence, the Workers’ Compensation Judge (WCJ) denied the Petition for Modification. The WCJ found the psychologist credible, and also found him competent, despite his inability to meet the certification requirements. Specifically, the WCJ found this to be an issue regarding the weight, rather than the admissibility, to be given to the opinion. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB). [Other Petitions were also litigated, but none are relevant to the appeal].