Case Law Update

January 17, 2013

Injured PA worker Denied Benefits Due to Not Having Transportation

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.

January 2, 2013

Pain Medication Denied to Injured PA Worker

by Glenn Neiman

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.

December 18, 2012

Worker Injured During Sex Entitled to Workers’ Comp Benefits

by Glenn Neiman

Granted, the decision is not from a Court in Pennsylvania, but, instead, one in Australia. At the same time though, a Court finding that a worker injured while having sex is entitled to workers’ compensation benefits, is one which cries out to be explored. And, the result is not as bizarre as one might think.

As we have previously addressed, employees in PA are either “stationary” or “travelling,” depending on whether they have a fixed place of employment. A travelling employee, one who is without a fixed place of employment, has greater latitude for a finding that an injury is within the scope and course of his or her employment.

In the Australian case, according to the article, the unidentified female employee was on a business trip in 2007. While engaged in sexual relations in her hotel room, “a glass light fitting was torn from its mount above the bed and landed on her face.” The injury resulted in her being disabled from performing her job.

December 11, 2012

Rights of Illegal Alien to PA Workers’ Comp Heard by PA Supreme Court

by Glenn Neiman

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.

December 7, 2012

Burden of Proof Less for Physical/Mental Case in PA Workers’ Comp

by Glenn Neiman

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.

October 18, 2012

PA Court Condones Blatant Violation of Pennsylvania Workers’ Compensation Act

by Glenn Neiman

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.

October 5, 2012

Notice of Ability to RTW Not Necessary Where Claimant Has Knowledge

by Glenn Neiman

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.

October 1, 2012

PA Unemployment Compensation Benefits Allowed Despite Use of “Moron”

by Glenn Neiman

While we limit our practice to representing injured workers in Pennsylvania workers’ compensation cases, We could not help but notice a recent PA unemployment compensation case decided by the Commonwealth Court of Pennsylvania.

Unemployment compensation benefits are generally available in Pennsylvania when an employee involuntarily loses his or her job, provided there was no “willful misconduct.” What constitutes “willful misconduct,” as is so often in the law, varies from case to case.

In the case of Brown v. Unemployment Compensation Board of Review, the employee was a battery machine operator. When he placed a sign on a defective battery stating “do not use,” the sign had been ignored. He then put signs on defective batteries, stating, “To the moron who can’t read do not use this,” “do not use this battery” and “Not charging you moron.” The employee was promptly terminated for his use of the word “moron.”

September 19, 2012

PA Workers Comp Settlement Cannot be Reopened For Medical Bill

by Glenn Neiman

Settling a workers’ compensation case in PA, generally referred to as a “Compromise & Release,” is a big decision. There are many factors which go into not only the value of the case, but whether settlement is even advisable. The advice of an attorney who is experienced with PA workers’ comp cases can be very valuable. This goes for the settlement itself, as well as the documents carrying out the settlement.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Hoang v. Workers’ Compensation Appeal Board (Howmet Aluminum Casting, Inc.). In this case, the injured worker settled his case (by executing a Compromise & Release Agreement). Sometime after the settlement, the injured worker learned that his treating doctor had an outstanding bill for over $37,000.00.

An appeal of the Compromise & Release Agreement could not be filed (since one only has 20 days to file such an appeal), so the injured worker filed Review and Penalty Petitions, seeking payment of this medical bill. The Workers’ Compensation Judge (WCJ) noted that the Compromise & Release Agreement failed to state that the workers’ compensation insurance carrier would be responsible for any medical bills. Since this is a somewhat common statement in a PA workers’ comp settlement, the WCJ called this “telling.” The injured worker argued there was a “mutual mistake of fact,” so the settlement should be reopened. Ultimately, the WCJ denied the Petitions, finding that the workers’ compensation insurance carrier did not violate the Pennsylvania Workers’ Compensation Act because the Compromise & Release Agreement did not require payment of this bill. No mutual mistake of fact was seen by the WCJ. The decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

September 5, 2012

Workers’ Comp Fatal Claim Benefits Granted While Employee at Lunch

by Glenn Neiman

Ordinarily, to be compensable as a work injury in Pennsylvania, an injury must take place while the injured worker is in the “scope and course” of his or her employment. Interestingly, the phrase “scope and course” is not even mentioned in the Pennsylvania Workers’ Compensation Act, though the concept, derived from case law, has great importance.

An injured worker with a fixed place of employment (“stationary employee”) is generally covered for an injury away from the fixed place of employment only if he or she is actually furthering the affairs of the employer. In contrast, a travelling employee (one with no fixed place of employment), has a greater latitude of when he or she is within the scope of employment.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Rabin, Deceased), finding that the injured worker, a stationary employee, was still within the scope and course of his work when he was injured at the salad bar at a nearby restaurant.