Articles Posted in Case Law Update

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.

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).