Articles Posted in Case Law Update

When an injured worker in Pennsylvania goes back to modified duty work, and then loses that job through no fault of his own, typically the injured worker is entitled to a reinstatement of benefits, back to total disability benefits. Of course, as always, there are exceptions to the rule. One of the exceptions is when an injured worker’s benefits are modified by a finding of “bad faith.”

We saw this issue addressed by the Commonwealth Court of Pennsylvania in Napierski v. Workers’ Compensation Appeal Board (Scobell Company, Inc.). Here, the injured worker, a plumber, hurt his leg. The injury was accepted as compensable by the workers’ comp insurance carrier and total disability benefits were started.

To avoid continued payment of workers’ compensation benefits, the workers’ comp insurance carrier then lowered itself to the use of “funded employment,” a disgraceful, yet perfectly legal, tactic. The employer paid a company (Expediter) to have another company (IDI) hire the injured worker, with the original employer paying the salary (if it sounds a little fishy, well . . . that’s because it is).

Once an injured worker in Pennsylvania establishes that he or she is disabled from work, due to the work injury, typically the workers’ compensation benefits continue (at the “temporary total disability” rate) until either the injured worker goes back to work, fully recovers, settles the case, or, loses litigation which shows that the injured worker has a “wage earning capacity.”

This last situation is often the one leading to the most unfair results. Recently, in North Pittsburgh Drywall Co., Inc. v. Workers’ Compensation Appeal Board (Owen), the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ruled that benefits should be suspended (or at least modified, depending on the earnings), when the injured worker had no transportation to get to a modified job.

The injured worker in this case hurt his right wrist while doing his job in 2001. About a week after the work injury, his car was repossessed (there was no credited allegation that the repossession had anything to do with the injury or the delayed receipt of workers’ compensation benefits). The injury was accepted as work-related by the workers’ comp insurance carrier, who issued a Notice of Compensation Payable (NCP). In 2003, the employer offered the injured worker a modified duty job, the duties of which were approved by his treating physician. The job was located about 90 minutes from the injured worker’s home, about the same as the pre-injury position. Unfortunately, at that point, the injured worker still had no car.

Not long ago, we discussed our belief that the Pennsylvania Chamber of Commerce and PA workers’ comp insurance industry will soon be gearing up to have legislation introduced to curtail the rights of injured workers in PA. As we mentioned, the Utilization Review (UR) process is squarely on their radar for reform. Considering the Commonwealth Court of Pennsylvania recently denied an injured worker’s access to strong pain medication she testified she needed to relieve her intense pain, one must wonder how much more reform they would like.

In Bedford Somerset MHMR v. Workers Compensation Appeal Board (Turner), the injured worker was hurt in 1987 and underwent two surgeries on her lumbar spine as a result of her work injury. She was left with several diagnoses, including arachnoiditis, failed spinal fusion surgery, small fiber neuropathy, chronic pain syndrome, discitis, osteomyelitis and spinal stenosis, any or all of which can account for tremendous pain.

Given her severe pain, the injured worker was understandably taking heavy-duty medications. As has become custom in such situations, the ever-sympathetic insurance carrier filed a UR, alleging the mediations were not reasonable and necessary. The UR reviewer issued a determination finding that Fentanyl patches, and periodic office visits to the prescribing physician, were reasonable and necessary, but that the use of Fentanyl lozenges were not.

As we have previously discussed on this blog, generally speaking, Pennsylvania workers’ compensation benefits are available to every totally disabled injured worker, regardless of whether that injured worker has legal status to work in this Country or not. The issue of legal status does matter, however, when the injured worker retains some ability to perform gainful employment.

Last year, the Commonwealth Court of Pennsylvania decided Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz), finding that the legal status of an injured worker cannot be proven by a workers’ comp insurance carrier solely by having a Workers’ Compensation Judge (WCJ) take a negative inference because the injured worker refuses to answer questions regarding his legal status.

The Supreme Court of Pennsylvania accepted appeal of this case, and recently heard oral arguments from the respective attorneys. As always, we will advise you when a decision is rendered by the Court.

Loyal readers of our blog know that it can be very difficult to have a psychological injury accepted as compensable in Pennsylvania workers’ compensation. However, what you may not realize is that psychological injuries are divided into three classes, and only one of those classes carries this higher burden of proof.

Under PA workers’ comp, a psychological injury is referred to as either mental/physical, physical/mental or mental/mental. The first meaning a mental stimulus causes a physical injury (like stress causing a heart attack), the second meaning a physical injury causes a mental injury (like depression from chronic pain), and the third meaning a psychological stimulus causes a psychological injury.

Only the mental/mental class has that increased burden of proof. As we have discussed in the past, these types of cases require a showing that the mental stimulus comes from an exposure to “abnormal working conditions.” Obviously, then, it would be very beneficial if an injured worker could move his or her case into the physical/mental category. Recently, Commonwealth Court of Pennsylvania addressed the distinction between the two.

Once workers’ compensation benefits in PA are started, usually by issuance of a Notice of Compensation Payable (NCP), under the Pennsylvania Workers’ Compensation Act, generally a workers’ comp insurance carrier cannot stop the payment of such benefits without a Supplemental Agreement, a Notice of Benefits Offset or a judicial order. Typically, if a workers’ comp insurance carrier uses “self help” and stops the payment of benefits in this situation, without proper basis, penalties will be assessed.

In a recent decision by the Commonwealth Court of Pennsylvania, however, the majority of the judges permitted such an unlawful stoppage of benefits with no consequences. The injured worker in Krushauskas v. Workers’ Compensation Appeal Board (General Motors) hurt his shoulder and an NCP was issued. While receiving workers’ compensation benefits, the injured worker accepted a retirement pension. We already know from prior case law that acceptance of a retirement pension can lead to a suspension of workers’ compensation wage loss benefits (a switching of burdens which continues to annoy and confuse us, but that is another blog entry for another day).

Rather than file a Petition for Suspension, which would almost certainly have been successful, the workers’ comp insurance carrier simply stopped paying the workers’ compensation benefits without any legal basis to do so. The injured worker then filed a Petition for Penalties.

The Pennsylvania Workers’ Compensation Act, in Section 306(b)(3), requires that an insurance carrier provide notice (in the form of a “Notice of Ability to Return to Work”) to an injured worker when the carrier receives information that the injured worker is able to work in any capacity. This notice is generally a threshold requirement before the carrier can move to modify or suspend workers’ compensation benefits based on a job offer or a Labor Market Survey.

Therefore, if a Notice of Ability to Return to Work is not issued, typically, the carrier cannot prevail on a Petition to Modify or Suspend workers’ comp benefits. There are exceptions to this rule, including a situation where an injured worker has already returned to gainful employment. Recently, the Commonwealth Court of Pennsylvania dealt with another situation where the injured worker did not receive the Notice of Ability to Return to Work before a job offer was made.

In Smith v. Workers’ Compensation Appeal Board (Caring Companions, Inc.), the injured worker’s attorney received a medical report releasing the injured worker to light duty work. Since there was currently litigation (Claim Petition) pending, the attorney then properly sent a copy of this report to the workers’ comp insurance carrier. A job offer letter was sent to the injured worker after the receipt of this report, but a Notice of Ability to Return to Work was not issued.