Articles Posted in Case Law Update

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.

As we have noted on several occasions, our firm represents a clerk who worked at a PA Liquor Store, operated by the Pennsylvania Liquor Control Board (PLCB). The store, which had no guard on duty (whether armed or not), was robbed and a handgun was pointed at our client’s head. As a result, our client suffered post-traumatic stress disorder (PTSD).

The PLCB denied workers’ compensation benefits to our client. Oh, the PLCB did not dispute the robbery took place. Nor did the PLCB deny that our client was disabled from work as a result of the PTSD (the medical expert retained by the PLCB agreed that our client could no longer perform the duties required of a clerk at that store). No, the sole basis of the denial was that an armed robbery of a PLCB store was not “abnormal.” As we have discussed in previous blog entries, a psychological injury, such as PTSD, requires abnormal working conditions.

When we litigated the Claim Petition before a Workers’ Compensation Judge (WCJ), we were successful and the Claim was granted. The WCJ found that all of the training materials used by the PLCB said that armed robberies were “infrequent” and “unlikely.” The fact that the manager of the PLCB store was not even aware of the “high alert” process was found by the WCJ to further show armed robbery at this store was “abnormal.” Finally, the WCJ noted that the PLCB did not feel that a guard, even unarmed, was necessary. Finding that this armed robbery was abnormal, the WCJ granted the Claim Petition.

Nobody wants to get hurt at work. Suffer from the pain and physical limitations? Not a good time. Aside from medical treatment for the work injury, the injured worker in PA generally receives about two-thirds of his or her salary. No pain and suffering is ever received, contrary to other types of personal injury matters. But, gosh, if there is a suggestion that an injured worker in Pennsylvania has received “unjust enrichment,” the PA workers’ compensation insurance industry is up in arms.

The Commonwealth Court of Pennsylvania recently addressed the issue of whether the workers’ comp insurance carrier can obtain recoupment of an overpayment in Commonwealth of PA DOT v. Workers’ Compensation Appeal Board (Noll). Here, the injured worker hurt his left shoulder in 1995.

After the injury, there were periods in which the injured worker was back at work, and periods in which he was out. After one of these periods, the injured worker filed a Petition alleging the workers’ comp insurance carrier paid him less than he was due. The Workers’ Compensation Judge (WCJ) granted the Petition, agreeing the insurance carrier did not pay correctly. In addition, the WCJ found that the workers’ comp insurance carrier did not have a “reasonable basis” to contest to this Petition, and ordered that they pay “quantum meruit [QM](fees paid to an attorney based on the time the attorney spent and the character of the work required) fees of 20% ‘of all past due and owing benefits directly to Claimant’s counsel not [to be deducted] from Claimant’s proceeds.”

One of our frequent topics on this blog concerns how psychological injuries are handled (or, more appropriately, mishandled) under the Pennsylvania Workers’ Compensation Act. Indeed, we personally have a case in which we have requested appeal to the Supreme Court of Pennsylvania addressing the burden of proof in such a case. As we have previously described, to obtain workers’ comp benefits in PA for a mental injury, from a mental stimulus, the injured worker must prove there were “abnormal” working conditions present, and that this standard varied by the occupation of the injured worker.

Cases in the Pennsylvania appellate courts have made it clear that certain occupations, such as firefighters, police officers, and other first responders, have an extremely difficult burden to prove something is “abnormal,” given how much extreme stress and shock are associated with those types of jobs. Recently, though, the Supreme Court of Pennsylvania reversed the lower tribunals, and found that a police officer was exposed to abnormal working conditions.

In the case of Payes v. Workers’ Compensation Appeal Board (Commonwealth of PA State Police), the injured worker, a state police officer, struck and killed a woman with his patrol car. The woman was apparently attempting to commit suicide by this act. As a result of this incident, the injured worker developed post-traumatic stress disorder (PTSD), and was no longer able to function as a police officer.

There are some injuries in Pennsylvania’s workers’ compensation laws for which no showing of disability is necessary to obtain an award of benefits. These cases, called “specific losses,” include facial disfigurement and loss of use of a body part. One of the types of cases in this category is a claim for loss of hearing, as a result of excessive noise exposure at work.

Generally, the injured worker need only prove that he or she suffers from a permanent hearing loss of at least 10 percent, and that the hearing loss was caused by the long-term exposure to hazardous occupational noise at work. Whether the occupational noise was “hazardous” is not part of the burden faced by the injured worker; instead, that would be an affirmative defense the workers’ compensation insurance carrier could offer. A previous Pennsylvania Supreme Court case from 2000, LTV Steel Co. v. Workers’ Compensation Appeal Board, established that no deduction can be made from the hearing impairment for the normal aging process.

Recently, the Commonwealth Court of Pennsylvania faced some of these issues in McCool v. Workers’ Compensation Appeal Board (Sunoco, Inc.). Here, the injured worker was employed as a firefighter for the City of Philadelphia from 1983 to 1998, then as a refinery operator for Sunoco from 2003 to 2008. In 2001, the injured worker had an audiogram done, which showed less than a 10% hearing impairment. Nearly annual audiograms then, starting in 2002, showed, according to the case, “pre-existing hearing loss that continued to accelerate across all frequencies.”

We have discussed “Utilization Review” (UR) on this blog many times. This is the tool used by either party (usually the workers’ compensation insurance carrier) to determine whether any particular treatment is “reasonable and necessary.” To start the UR process, the insurance company must agree the treatment is related to the work injury.

The Courts have made clear that treatment need not cure a condition to be “reasonable and necessary,” stating that relieving the symptoms of an injured worker can be enough. The burden to prove treatment is not “reasonable and necessary” remains with the workers’ comp insurance carrier throughout the UR process.

Most often, we see UR in situations involving treatment which is “palliative” (relieving symptoms) rather than “curative.” This could be concerning chiropractic treatment, therapeutic modalities, medications or injections. An interesting facet, discussing massage therapy, was addressed recently by the Commonwealth Court of Pennsylvania in Moran v. Workers’ Compensation Appeal Board (McCarthy Flowers).

Often, a work injury in Pennsylvania is not a sudden occurrence – not a fall, or lifting an item, or a car accident, but instead it is “cumulative trauma,” an injury that takes place over time. Perhaps someone who does data entry or assembly work, doing repetitive motions with their hands, develops carpal tunnel syndrome or ulnar neuropathy. Maybe a construction worker, or factory worker, suffers low back problems from years of heavy lifting. Cumulative trauma injuries can take many forms. The workers’ compensation insurance carriers in PA routinely deny such claims, but, do not be misled, cumulative trauma injuries are every bit as real, and those who suffer them every bit as deserving of benefits, as any other work injury in Pennsylvania.

Which employer is responsible, and the timing of notice are two of the major issues in these cases, and both were present in A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), recently decided by the Commonwealth Court of Pennsylvania. Logic might suggest the responsible employer is simply the last employer, since, with cumulative trauma, every day is a new injury, the date of injury is usually the last day worked. But, as we always see in PA workers’ comp, the easy explanation is not always the correct one.

The injured worker in Verdi was a carpenter. He worked for A & J Builders, Inc. from 2004 to 2007. During this time, he developed right knee pain. By the time he left A & J, the right knee caused him chronic pain. Regardless, he then worked three days in 2008 for another contractor before being laid off. In March, 2009, Claimant saw a new doctor and was diagnosed with “chronic repetitive work-related chondral wear in the patellofemoral joint on his right knee.” This was the first time the injured worker was actually told the problem was related to work. Notice of the work injury was not provided until a Claim Petition was filed in July, 2009 (well over the 120 day period within which notice of a work injury is typically required).

As loyal readers of our blog know, “retirement” is a popular tool being used by the workers’ compensation insurance carriers in Pennsylvania to attack the benefits of injured workers in PA. Indeed, the fact that an injured worker can take such an innocent act as applying for a pension, or Social Security Retirement benefits, and jeopardize their entire workers’ comp case, is a large reason why we encourage all injured workers in Pennsylvania to be represented by experienced workers’ comp attorneys, who, like the attorneys at Brilliant & Neiman LLC, are Certified as Specialists in the Practice of Workers’ Compensation Law.

Today, the Commonwealth Court of Pennsylvania decided the case of Turner v. Workers’ Compensation Appeal Board (City of Pittsburgh), which dealt with this “retirement” issue. Here, the injured worker was a police officer who hurt her neck, left shoulder, back, right wrist, and right knee in a work-related car accident in 1994. The injured worker performed a modified duty job for the City of Pittsburgh until 2003, when the City stopped the modified duty program. At that time, Claimant applied for, and received, a disability pension from the City of Pittsburgh.

The workers’ compensation insurance carrier filed a Petition for Suspension, alleging that the application for this pension meant that the injured worker had voluntarily left the labor market, retired in other words, causing a shift of the burden of proof to the injured worker, to show that she was either disabled from all employment, or that she continued to look for work.

The 1996 amendments to the Pennsylvania Workers Compensation Act (Act 57) were largely a disaster for every worker in PA. Any thought that, as Pennsylvania’s appellate courts like to spout, the PA Workers’ Compensation Act is a piece of “remedial legislation” intended for “humanitarian purposes” and to “benefit the injured worker,” was clearly removed by Act 57.

One of the most ridiculous aspects of Act 57 was the creation of the Impairment Rating Evaluation (IRE). As we have previously noted, once an injured worker has received 104 weeks of temporary total disability benefits, the workers’ compensation insurance carrier can request an IRE. As the Act itself states, in Section 306(a.2)(1), the IRE is used “to determine the degree of impairment due to the compensable injury, if any.” If this permanent impairment rating is less than 50% (a preposterously high standard), the status of the injured worker may be changed to “partial” disability status.

Now, logically, one can only have a permanent impairment rating if the impairment is, well, “permanent.” Our handy dictionary tells us that “permanent” means “lasting or intended to last or remain unchanged indefinitely.” Therefore, again applying logic, if an injured worker has a “permanent” impairment, he or she cannot, at the very same time, be “fully recovered.”