Articles Posted in Case Law Update

In 1996, major changes were made to the Pennsylvania Workers’ Compensation Act. One of them was providing a credit to the workers’ compensation insurance carrier for unemployment compensation benefits, “old age” (their words, not ours!) Social Security benefits, and pension and severance benefits (to the extent funded by the employer directly responsible for the payment of the workers’ compensation benefits). We occasionally see litigation on when an offset can be taken, and in what amount.

A previous decision by the Commonwealth Court of Pennsylvania in 2007, called Maxim Crane Works v. Workers’ Compensation Appeal Board (Solano), denied a workers’ compensation insurance carrier a retroactive credit for Social Security retirement benefits. This was because the insurance carrier failed to send a form to the injured worker called “Employee’s Report of Benefits for Offsets.” By not sending this form to the injured worker every six months, the Court reasoned, the delay in knowing of the existence of the Social Security retirement benefits was the fault of the insurance carrier. An ongoing credit was permitted, but retroactive was not.

Recently, there was another issue with the application of a retroactive credit, this time regarding a pension plan. In City of Pittsburgh v. Workers’ Compensation Appeal Board (Wright), the injured worker was a firefighter who hurt his right knee fighting a blaze. When the knee did not heal, the injured worker filed for a disability pension from his employer, the City of Pittsburgh. Oddly, because the injured worker first received “Heart and Lung benefits” (a program for police, fire and related professions), the Notice of Compensation Payable was issued about two weeks AFTER the disability pension was requested.

Often in a PA workers’ compensation case, the burden of proof is a critical issue. For example, the burden of proof faced by an injured worker in litigation of a Claim Petition is very different from that in a Reinstatement Petition. Unfortunately, however, there are times when an injured worker can win the battle (and have an appellate court agree an incorrect burden was placed) but lose the war (the appellate court then finding the injured worker still loses).

Such was the situation in Furnari v. Workers’ Compensation Appeal Board (Temple Inland). Here, the injured worker tore a tendon in his knee while doing his job, and required surgery on the knee. The workers’ compensation insurance carrier issued a medical-only Notice of Compensation Payable [NCP] (accepting the injury, but not disability), but the employer continued to pay the injured worker his regular salary (salary continuation). The injured worker then went back to a modified duty job for about five months before resigning.

Subsequently, the injured worker filed a Petition for Reinstatement, seeking ongoing workers’ compensation benefits. This was amended by the injured worker during the litigation to include a Claim Petition. The Workers’ Compensation Judge (WCJ) found that the combination of the medical-only NCP and the payment of salary continuation acted as if there was a full NCP, so the proper burden of proof was only that of a Petition for Reinstatement. The injured worker need only show that his loss in earnings was related to his injury. Unfortunately for the injured worker, the WCJ ultimately concluded that the injured worker failed to show that his injury worsened or that he was not capable of the modified duty job that remained available to him. As such, the Reinstatement Petition was denied.

We have previously discussed the Pennsylvania Uninsured Employers Guaranty Fund (UEGF) and how that fund fills in when an employee is injured while working for an employer who failed to carry PA workers’ compensation insurance coverage. The UEGF is certainly an improvement over the way things used to be (when being injured working for an uninsured employer often resulted in no benefits at all), though there is a long way to go before the UEGF could be said to mirror the “remedial” nature of the Pennsylvania Workers’ Compensation Act, which is designed to benefit the injured worker. A recent decision of the Commonweal Court of Pennsylvania does take a step in the right direction.

One of the problems with the UEGF, as it currently functions, is that it operates, in some ways, above the law. For example, a workers’ compensation insurance carrier in PA can be assessed penalties if it violates the Pennsylvania Workers’ Compensation Act; the UEGF is not subject to penalties for any reason. A regular insurance company can be assessed counsel fees if it presents an “unreasonable contest;” again, the UEGF is immune to this risk. We have wondered where the lines would be drawn to hold the UEGF to any responsibility.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal

We have previously discussed the concept of an Impairment Rating Evaluation (IRE) in Pennsylvania Workers’ Compensation. By now, our readers know that the IRE is a tool the workers’ comp insurance carrier can use to limit benefits in most cases to a maximum of around 11 and a half years. While the IRE is not designed to lead to a high burden for the insurance company, their success is not guaranteed.

Take, for example, the recent case of Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), decided by the Commonwealth Court of Pennsylvania. Here, the claimant hurt his neck and back in a work-related car accident, and began receiving workers’ compensation benefits.

After the injured worker received two years of total disability benefits, the comp insurance carrier obtained an IRE, which found that he had reached maximum medical improvement (MMI) and had a whole person impairment rating of 16%. Since this is lower than the ridiculously high standard of 50%, the insurance company filed a Petition to Modify benefits, changing the status from “total” to “partial,” and starting the clock on the entitlement to 500 weeks of partial disability benefits (the amount of the benefit does not change, just the duration). This IRE was performed by a physician approved by, and selected by, the PA Bureau of Workers’ Compensation (not the insurance carrier).

As a practical matter, a doctor is rarely present the instant a person gets injured at work. Similarly, the way litigation is done, a doctor has to testify while the injured worker is still disabled from work. Yet, despite these limitations, doctors routinely testify that the work injury led to the disability, and that the disability continues. But, of course, there are limits on how distant a doctor can be from the time at issue.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald), the Commonwealth Court of Pennsylvania dealt with this issue. Here, a laborer fell from a roof while tearing off materials and suffered a skull fracture and an injury to his left eye. Since the employer had no Pennsylvania workers’ compensation insurance, a Claim Petition was filed against the PA Uninsured Employers Guaranty Fund (UEGF).

The injured worker was first seen by his doctor two months after the injury, and was only treated by that doctor for about six months. After that last date, the injured worker failed to appear for any more appointments. At the time of the last appointment, the doctor theorized that the injured worker would continue to improve and may be able to return to work in six weeks, pending confirmation of the improvement. The Workers’ Compensation Judge (WCJ) found the testimony of the injured worker, and his doctor, to be credible, and granted the UEGF Claim Petition, awarding ongoing total disability benefits. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

We have discussed Utilization Review in our Blog on several occasions, many times dealing with whether “palliative” treatment (that treatment which relieves pain, but does not change or cure the condition) is reasonable and necessary. This issue, and the timing within which a Utilization Review Determination must be issued, was recently addressed by the Commonwealth Court of Pennsylvania.

In Womack v. Workers’ Compensation Appeal Board (The School District of Philadelphia), the Commonwealth Court of Pennsylvania affirmed a decision by a Workers’ Compensation Judge (WCJ) finding the chiropractic treatment not reasonable or necessary.

The injured worker suffered herniated discs in the lumbar spine, right medial meniscal

We have dealt before with the Notice of Ability to Return to Work, and when such a document needs to be issued. The general rule is that the document must be issued by the PA workers’ compensation insurance carrier before the benefits can be modified or suspended. As with any rule, there are exceptions, such as when the injured worker already has knowledge of the work capabilities.

Recently, in School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), the Commonwealth Court of Pennsylvania addressed whether a Notice of Ability to Return to Work is necessary during the litigation of a Claim Petition.

This case concerned a teacher whose stressful environment caused injury to her vocal cord, and also aggravated her pre-existing lupus (remember that stress can lead to a work injury, without proving “abnormal working conditions,” when the stress results in a physical manifestation). A Notice of Denial (NCD) was issued by the workers’ comp insurance carrier. A few months later, the injured worker was offered a job at a less stressful school, but she declined. Shortly after that, the injured worker filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

Sometimes, we will meet with an injured worker who is already receiving PA workers’ compensation benefits. The injured worker may ask, “Why do I need to have an attorney if I am already receiving benefits?” The answer is that the rights of the injured worker in Pennsylvania can be impacted by inaction as much as by action. That paper which is disregarded can come back to haunt an injured worker for years.

An example of this situation came in Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy). Here, the employee injured his back in 2002. The injury was accepted as a “low back strain.” The injured worker continued to work until May 5, 2003, when he had lumbar surgery (it is amazing that workers’ comp is the only area where a person needs surgery for a “strain” – unless, perhaps, the workers’ comp insurance carrier accepted the injury as something less than it really was, of course).

In 2005, after the injured worker received total disability workers’ compensation benefits for 104 weeks (two years), an Impairment Rating Evaluation (IRE) was performed and a “whole body impairment rating” of 11% was found. As we have previously discussed, an IRE resulting in an impairment rating of less than 50% may result in a shifting of benefits from total to partial status. That is what happened here; the IRE was not challenged.

Workers’ Compensation Judges (WCJs) in Pennsylvania have great latitude and authority vested in them to perform their jobs. They are the ultimate finders of fact, and determiners of credibility. In running their courtrooms, WCJs may extend or shorten deadlines for the submission of evidence, depending on the circumstances. However, the authority granted to a WCJ does have its limits.

In Wagner v. Workers’ Compensation Appeal Board (Ty Construction Co., Inc.), the Commonwealth Court of Pennsylvania reversed the decision of a WCJ to dismiss a Claim Petition because the injured worker’s attorney failed to meet the deadline for obtaining its medical evidence.

The case was a complicated one, involving lung cancer allegedly stemming from an exposure to paint chemicals. After the Claim Petition was filed, and a hearing took place, the attorney for the injured worker learned that the cancer specialist was refusing to be involved in any type of litigation. This meant the attorney had to locate another expert witness, and get a deposition scheduled. Eventually, another expert was obtained and a deposition was scheduled. This deposition was then cancelled at the request of the insurance carrier’s attorney, so they could get a report from their medical expert in advance of the deposition. When the attorneys appeared back in from of the WCJ, upon motion of the insurance carrier’s attorney, the WCJ dismissed the case because the injured worker’s attorney did not have his deposition done in time. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

One thing common to every work injury in Pennsylvania is that the injured worker needs medical treatment. The importance of being able to get this treatment, and having it paid for by the workers’ comp insurance carrier, is obviously on the mind of any injured worker. This explains why Utilization Review (UR), the process of determining whether treatment is reasonable and necessary (and, as a result, whether the workers’ compensation insurance carrier has to pay for such treatment), is such a frequent topic on this blog.

Though either side can start the UR process, it is typically filed by the workers’ comp insurance carrier, alleging that treatment to the injured worker is not reasonable or necessary. Once the Pennsylvania Bureau of Workers’ Compensation assigns a Utilization Review Organization (URO) to review the file, the healthcare provider whose treatment is at issue is sent a request from the URO for its records.

We already know from cases decided by the Commonwealth Court of Pennsylvania that the injured worker is sunk if a provider fails to give his records to the URO. In this situation, a UR is not actually performed, so the injured worker cannot appeal a negative result. Considering a UR could theoretically be successful solely on the testimony of the injured worker, we find these cases to be terribly unfair and illogical.