Articles Posted in Case Law Update

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.

When an injured worker in PA is receiving, or attempting to receive, workers’ compensation wage loss benefits, the insurance carrier can send “verification forms” every six months. These forms require the injured worker to certify whether he or she is working, along with a few other questions. If the injured worker does not complete and return the forms, the insurance carrier may suspend payment until the forms are returned.

In McCafferty v. Workers’ Compensation Appeal Board (Trial Technologies, Inc.), the Commonwealth Court of Pennsylvania dealt with two issues regarding the completion and return of these verification forms. First, there was a question whether the forms could be returned by fax. Second, if a form is returned filled out and signed, but not dated, has the form been “returned?”

As to the first question, the Court found that, given today’s level of technology, submission of the verification forms by fax is acceptable. However, with regard to the second issue, the Court was more strict. The form is not “completed” unless it is dated. The date established by the faxed transmission is not necessarily the date the form was filled out. Since the forms can be required only every six months, the insurance carrier is entitled to know when the information was correct. As such, the Court found the verification form must be filled out, signed and dated to discharge the obligation of the injured worker.

Back in 2010, we discussed the case of Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). In this decision, the Commonwealth Court of Pennsylvania found that jobs listed in a Labor Market Survey (LMS) did not have to actually be available, since they were merely examples of jobs existing in the community. Therefore, the Court found the fact the injured worker applied for all of the jobs and was not offered employment by any was irrelevant. Upon further appeal, however, the Supreme Court of Pennsylvania, with the help of the Pennsylvania Association for Justice, has now reversed this decision.

As you may recall, a LMS containing five jobs was prepared in this case. The injured worker testified that she applied for each position listed in the LMS and received no offers of employment. When the matter was litigated before a Workers’ Compensation Judge (WCJ), this testimony was found credible. Therefore, the WCJ denied the Petition for Modification filed by the workers’ comp insurance carrier. Since the jobs were not offered to the injured worker here, they were found not to be available to her. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Commonwealth Court of Pennsylvania, however, reversed, holding that the availability of these exact positions was irrelevant. As long as the jobs were open and generally available when the vocational expert located them, the LMS was sufficient, said the Court. Whether the injured worker actually was able to apply for, and get, those jobs was of no importance.

In 1996, the Pennsylvania Workers’ Compensation Act was amended, in a piece of legislation known as Act 57. In many ways, the law became much less friendly for the injured worker in PA. One of the changes was the creation of the “Labor Market Survey (LMS),” also known as an “Earning Power Assessment (EPA).”

While the old law had required the insurance carrier to show the existence of an actual job which would be available to the injured worker in order to reduce or suspend an injured worker’s benefits, Act 57 allows the insurers to use general, hypothetical listings instead (somewhat like they do for Social Security Disability). While this certainly smacks of unfairness, the legislation also required an employer to first offer a job to the injured worker, if available, before the insurer could resort to the LMS process. This made sense, of course, since a return to the Employer would be most beneficial to all.

Exactly how hollow a requirement this is has now been fully explained by the Commonwealth Court of Pennsylvania in Reichert v. Workers’ Compensation Appeal Board (Dollar Tree Stores). After the injury, the injured worker had a LMS performed. A Petition for Suspension shortly followed.