Case Law Update

November 15, 2023

CBD Oil is Payable Under PA Workers’ Compensation

We often have issues regarding whether a particular medical expense is payable by the workers’ compensation insurance carrier. The issue could be whether it is a “medical” treatment at all, whether it is related to the work injury, or whether it is “reasonable or necessary.” A recent case from the Commonwealth Court of Pennsylvania examined a few of these issues.

In M.R. Schmidt v. Schmidt, Kirifides and Rassias, PC (Workers Compensation Appeal Board), the injured worker (Claimant) suffered an “aggravation of a preexisting degenerative disc disease at the levels of L4-5 and L5- S1 with radiculopathy” while he was loading files into a bag. The injured worker litigated, and won, a Claim Petition to have this injury accepted as compensable. Despite his injury, Claimant continued to work with the assistance of pain management. In an effort to avoid increasing the amount of Oxycodone and/or OxyContin he was taking, the pain management physician prescribed cannabinoid (CBD) oil. Since the dosages of the opioids has not been increased again, and Claimant has been able to avoid surgery, the use of CBD oil appears to have been successful.

The Pennsylvania Workers’ Compensation Act (Act) requires that the insurance carrier pay for all reasonable and necessary medical treatment related to the work injury. As such, Claimant provided the insurance carrier with the prescription for the CBD oil, as well as his out-of-pocket receipts. The insurance carrier refused to reimburse these expenses, alleging that CBD oil is not a “pharmaceutical drug.” As a result, Claimant filed a Petition for Penalties.

November 7, 2023

Three Year Statute of Limitations Applies in PA Workers’ Comp With Medical-Only Notice of Compensation Payable

by Glenn Neiman

We are often asked why an injured worker in Pennsylvania needs an attorney. “They know I got hurt on the job,” the injured worker might say, “Why would I need a lawyer?” Well, the Commonwealth Court of Pennsylvania recently issued a decision that demonstrates why every injured worker in PA should have an attorney protecting his or her rights.

In Keffer v. Colfax Corporation and Phoenix Insurance Company (Workers’ Compensation Appeal Board) it appears the injured worker did everything his employer and the insurance carrier asked. And, he lost all of his rights in the process. This case is a very important lesson for every injured worker in Pennsylvania.

The injured worker in this case hurt his low back lifting a box of metal rods on December 18, 2014. The insurance carrier issued a Notice of Temporary Compensation Payable (NTCP), accepting the injury as a “low back strain,” and the payment of workers’ compensation benefits began. These benefits continued until the injured worker returned to full-duty work on March 9, 2015. The insurance carrier then issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP) on March 12, 2015.

October 20, 2023

PA Employee Hurt at Work Getting into Work Truck, After Work Day, Not Entitled to Workers’ Comp Benefits

by Glenn Neiman

There are two situations when an employee hurt at work in Pennsylvania is entitled to workers’ compensation benefits. The first, which encompasses the vast majority of cases, is when the employee is “actually engaged in the furtherance of the [employer’s] business or affairs . . . .” This is true whether the injury takes place on or off the premises of the employer. On the other hand, the second is when the employee is not actually engaged in the furtherance of the employer’s business or affairs. In that situation, the analysis is one based on a 1977 Pennsylvania Commonwealth Court case called Workmen’s Comp. Appeal Bd. (Slaugenhaupt) v. United States Steel Corp (and generally known as the “Slaugenhaupt test”).

Under the Slaugenhaupt test, the injured worker must prove that he or she “(1) is on a premises under the control of the employer; (2) is required by the nature of his employment to be on such premises; and (3) sustains an injury or injuries due to a condition of the premises or operation of the business.” All three of these requirements must be met. Parking lot cases (so, before or after work) are always fact-specific, given this analysis.

A recent case decided by the Commonwealth Court of PA addressed this issue. In Lewis v. Lehigh Asphalt Paving & Construction Co. (Workers’ Compensation Appeal Board), the employee felt some pain and weakness in his left calf and ankle while working. He finished his shift and clocked out. About 15 minutes after clocking out, he got into his work truck to go home. As he pushed off his left foot to get into the truck, he felt a pop in his lower leg (which was the Achilles tendon tearing). He sought medical care, and provided notice to his employer, that same day.

September 22, 2023

Injured Worker in PA Must Prove Nonexistence of a Job at Employer

by Glenn Neiman

Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits. We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.

A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA. In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer. Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.

Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced. The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer. The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.

August 8, 2023

Injured Worker in Pennsylvania Must Give Notice of Work Injury Within 120 Days

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer. If notice is not given within this time, a Claim Petition may be barred. The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker (“The Discovery Rule”).

Recently, in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), the Commonwealth Court of Pennsylvania looked at what constitutes sufficient “notice” to meet the legal requirement. Here, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital. Subsequently, the injured worker sent an e-mail to his employer that he had emergency foot surgery. A below-the-knee amputation was performed on the right leg. The e-mail did not mention any relation to work.

On December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.”

August 2, 2023

Description of Work Injury in Claim Petition Matters in PA Workers’ Comp

by Glenn Neiman

When a person is injured at work in Pennsylvania, and the injury is not accepted by the workers’ compensation insurance carrier, the injured worker must file a Claim Petition to seek benefits. Once the Claim Petition is filed, the insurance carrier has 20 days to file an Answer, responding to the allegations of the Claim Petition. If the workers’ comp insurance company does not file an Answer within those 20 days, the injured worker can file what is (informally) called a “Yellow Freight Motion.”

If this Motion is granted, all well-pled facts in the Claim Petition are deemed admitted. The appellate courts in PA have told us that this Motion is not the same as a default judgement. Ongoing disability can still be challenged by the insurance carrier, and proofs by the injured worker can be required by the WCJ.

A recent case decided by the Commonwealth Court of Pennsylvania, Hollis v. C&R Laundry Services LLC (Workers’ Compensation Appeal Board), addressed what constitutes a “well-pled fact” when it comes to the description of injury. Here, the employee was a truck driver who was involved in a motor vehicle accident while working. When the injury was denied, a Claim Petition was filed. The injury was alleged to be “left rotator cuff pathology/cervical left side radiculopathy, [Cervical, Thoracic, Lumbar] sprain/strain.”

July 25, 2023

The Opinion of a Medical Expert in PA Workers’ Compensation Need Not Have Magic Words

by Glenn Neiman

To prevail in a PA workers’ compensation case, typically the successful party presents the testimony of a medical expert, whose opinion is accepted by a Workers’ Compensation Judge (WCJ). This expert opinion must be “to a reasonable degree of medical certainty.” What is encompassed by those words is a bit of an art.

A recent case from Commonwealth Court of PA, UPMC Pinnacle Hospitals v. Renee Orlandi (Workers’ Compensation Appeal Board) [albeit an unreported case], touched on this issue, which may be of some interest to our readers. When we present the testimony of a medical expert, the opinion of that expert need not be to concrete one-hundred precent certainty. Few things in medicine reach that level, as a practical matter. Instead, the opinions must simply be to a “reasonable degree of medical certainty.”

Pennsylvania courts have specifically found that there are no “magic words” that must be uttered by a medical expert for the opinion of that expert to be competent and be a sufficient foundation for the WCJ to base findings. A reviewing court, such as the Workers’ Compensation Appeal Board (WCAB), or the Commonwealth Court of PA, cannot pick a sentence here or there from a medical deposition, out of context. Instead, the appellate court must see if the testimony, as a whole, contains “a requisite level of certainty necessary to deem it unequivocal.”

June 8, 2023

Specific Loss Benefits Awarded Under PA Workers’ Compensation Not Always Paid

by Glenn Neiman

There are several types of benefits which can be received by an injured worker in Pennsylvania. A comprehensive review of these benefits can be seen here on our website. One of those benefits is called “specific loss,” which contains things like loss of use of a body part and disfigurement of the head, face or neck (though House Bill 930 could expand disfigurement beyond the head, face or neck).

Importantly, specific loss benefits cannot be received while the injured worker is still receiving “temporary total disability” benefits (essentially, what we call total wage loss benefits). Again, at least as far as disfigurement, this could change with House Bill 930.

What if the injured worker dies before the temporary total disability benefits stop? Surely, the specific loss benefits, since already “awarded” would be paid to the estate, right? Nope, wrong. The full answer is that it depends what caused the death of the injured worker.

June 5, 2023

When “Accepted” Means “Denied” – Only in Pennsylvania Workers’ Compensation

by Glenn Neiman

When an employee in Pennsylvania gets injured, the PA Workers’ Compensation Act allots the workers’ compensation insurance carrier 21 days to investigate and accept or deny the claim. If 21 days is not sufficient, the insurance carrier can opt to issue a Notice of Temporary Compensation Payable (NTCP or TNCP), and continue the investigation for up to 90 days more. If the TNCP is not properly revoked within those 90 days, according to the Act, the TNCP becomes a regular Notice of Compensation Payable (NCP), and the injury can no longer be denied. Simple, right?

Not so fast. When a TNCP has been issued (for both wage loss and medical benefits), an insurance carrier can simply file a Medical-Only NCP, accepting liability solely for the medical aspect of the case (thus, denying liability for wage loss), without ever revoking that TNCP or issuing a Notice of Denial (NCD) for wage loss. While this seems contrary to the words, if not the spirit, of the Act, the Commonwealth Court of Pennsylvania says this is perfectly fine.

This happened recently in an unreported case, Moretti v. County of Bucks (Workers’ Compensation Appeal Board), though prior reported decisions of the Commonwealth Court, supporting such a situation, were cited by the Court.

April 3, 2023

The Difficulties in Handling Cases Against the PA Uninsured Employers Guaranty Fund

by Glenn Neiman

What if an injured worker in Pennsylvanian is employed by a company who (in direct violation of PA law) fails to carry workers’ compensation insurance? Back in the old days, the injured worker, through no fault of his or her own, would be stuck with whatever assets the employer had. However, in recognizing the pure unfairness of such a situation, several years ago, the Pennsylvania legislature created the Uninsured Employers’ Guaranty Fund (UEGF), essentially functioning as an insurer for the uninsured employers.

While the UEGF is wonderful in theory, it is less so in practice. Funding for the UEGF comes from other insurance carriers, and it is seemingly consistently underfunded. The law holds that the UEGF is NOT an insurance carrier, so it cannot be penalized for violations of the Pennsylvania Workers’ Compensation Act (Act), including the failure to pay an award as ordered by a Workers’ Compensation Judge (WCJ). This makes collecting an award from the UEGF a delicate and diplomatic process.

In the past several years, to protect the limited funds of the UEGF, the PA legislature has tightened the requirements to obtain an award against the UEGF, and made such litigation much more difficult. Timeframes have been drastically shortened and requirements of proof have been significantly increased.