Articles Posted in Case Law Update

In Pennsylvania workers’ compensation matters, a workers’ comp insurance carrier can only get a “Termination” of benefits when the injured worker is “fully recovered” from his or her injury. This sounds like, and should be, a difficult standard for the insurance carrier to meet. Unfortunately, as happens too often in law, the appearance is deceiving.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Schmidt v. Workers’ Compensation Appeal Board (IATSE Local 3). Mr. Schmidt suffered a herniated disc in his low back and a lumbar strain in an accident at work. For this injury, the injured worker had extensive surgery, which the Court related as:

“L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation system.”

Utilization Review is the proper course of action when either party in a PA workers’ compensation case questions whether medical treatment is reasonable and necessary. We have discussed this process in a previous blog entry.

Since the Pennsylvania Workers’ Compensation Act is remedial legislation, intended by its creators to provide the injured worker with the benefit of the doubt, what is considered “reasonable and necessary” does not have to cure a condition. As PA Courts have previously stated, “Treatment may still be reasonable and necessary ‘even when it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition.'”

A recent case, Gary v. Workers’ Compensation Appeal Board (Philadelphia School District), decided by the Commonwealth Court of Pennsylvania seems to certainly blur this line. In 2001, Ms. Gary injured her neck and back while working. Then, in 2003, a Utilization Review Determination found the treatment of a chiropractor to be reasonable and necessary.

The issue of “retirement” and “voluntary withdrawal from the labor market” is one we see often in Pennsylvania workers’ compensation. We have had blog entries on how applying for Social Security Retirement benefits can impact the receipt of PA workers’ comp benefits, and how receipt of pension benefits can have such effect. In fact, I have given a seminar on this very topic in the past.

So, when the Commonwealth Court of Pennsylvania tackles this issue, we certainly take note. Recently, the Court rendered a decision in the matter of City of Pittsburgh v. Workers’ Compensation Appeal Board (Leonard). Here, the Workers’ Compensation Judge (WCJ) granted a suspension of benefits for a “voluntary withdrawal from the labor market,” but did so at a later date than the workers’ compensation insurance carrier wished, and reinstated benefits thereafter when the injured worker “re-entered the labor market.”

If you are a follower of our blog [and thanks for following us!], you can probably guess that this case turns on the facts. The injured worker here was a police officer who suffered a work injury to his forearm and knee. On April 1, 2006, Claimant received a disability pension, though an Independent Medical Examination (IME) [I chuckle every time I actually write “independent” in that context] found that he was able to work at a light to medium duty level.

Under the Pennsylvania Workers’ Compensation Act, PA workers’ comp benefits can be suspended by a Workers’ Compensation Judge (WCJ) when an injured worker’s loss of earnings is no longer due to the work injury, but is instead due to reasons other than the work injury.

This issue was recently handed by the Commonwealth Court of Pennsylvania in University of Pennsylvania v. Workers’ Compensation Appeal Board (Hicks).

Here, the injured worker was a police officer for the University of Pennsylvania. While performing his job, he injured his neck and low back in a motor vehicle accident, and became disabled from his job. Subsequent to his injury, Claimant was convicted of a crime which made him ineligible to be certified as a police officer.

When a workers’ compensation insurance carrier in PA does not believe the medical treatment rendered to an injured worker is reasonable and necessary, the appropriate course of action is for the insurance carrier to file for Utilization Review (UR). This was discussed in a previous blog entry. In this process, the PA Bureau of Workers’ Compensation will randomly assign a Utilization Review Organization (URO) to determine whether the treatment at issue is reasonable and necessary. The URO cannot address whether the treatment is related to the work injury.

This distinction became critical for the Commonwealth Court of Pennsylvania in Securitas Security Services v. Workers’ Compensation Appeal Board (Schuh). The injured worker fell off a chair and suffered a low back strain. Subsequently, the injured worker began to receive psychological treatment for depression. When the workers’ comp insurance carrier received bills for the psychological treatment, the carrier filed for UR.

A UR Determination was rendered by the URO, finding the treatment reasonable and necessary. The workers’ comp insurance carrier elected not to appeal this UR Determination.

As discussed in previous blog entries, Commonwealth Court of Pennsylvania has held that a Notice of Denial (NCD) can be used to properly “accept” a work-related injury. This continues to disappoint, and confuse, at least some of us who spend our careers protecting the rights of the injured worker. Logically, how can one use a Notice of DENIAL to accept an injury, and, if that is the proper method to do so, why did the PA Bureau of Workers’ Compensation go to the trouble of creating the Medical-Only Notice of Compensation Payable (NCP)?

Recently, this concept was confirmed by the Commonwealth Court of PA in Morrison v. Workers’ Compensation Appeal Board (Rothman Institute). Here, an NCD was issued over a year after the work injury (as noted in a previous blog entry, a PA workers’ comp insurance carrier has 21 days to issue documentation accepting or denying a claim). On the NCD, Box 4 was checked, acknowledging that an injury took place, but disputing that the injured worker was disabled as a result of the injury.

The Workers’ Compensation Judge (WCJ) rejected the testimony of Claimant, and the evidence from Claimant’s medical experts, and denied the Claim Petition. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of Pennsylvania also affirmed.

Under the Pennsylvania Workers’ Compensation Act, a worker who gets injured while doing his or her job is entitled to PA workers’ comp benefits when the injury “arises in the course of his (or her) employment and related thereto.” (Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act).

What does that mean? Generally speaking, an injury happens in the “course of employment” when the worker is “actually engaged in furtherance of the employer’s business or affairs,” whether the injury takes place on or off the employer’s premises. An injury can also be in the “course of employment” even when the worker is not engaged in furtherance of the employer’s business, if certain conditions are met.

As you can imagine, this determination varies from case to case, highly depending on the facts in each situation. Recently, the Commonwealth Court of PA addressed this area in Pennsylvania State University v. Workers’ Compensation Appeal Board (Smith). Here, the claimant, on a half-hour lunch break, intentionally jumped down a flight of stairs, suffering significant injuries to both legs (distal right tibia fracture and talar dome fractures of the right ankle and a fracture of the distal tibia and the talus of the left ankle).

Once a work injury in Pennsylvania is accepted by Notice of Compensation Payable (NCP), there is a process to add to, or change, the description of the accepted injury or condition. Sometimes, this is critical, to make the workers’ comp insurance carrier pay for treatment for the injury or condition at issue.

As discussed in a previous blog entry, the process differs slightly, depending on whether the injury or condition was present on the day of the injury (called a “corrective amendment”), or occurred thereafter (called a “subsequently-arising” or “consequential” condition). While both types have the same time limitations to be raised (within three years of the date of last payment), the difference between the two can be the difference between winning and losing.

For example, look at the recent decision of the Commonwealth Court of Pennsylvania in the case of Pizza Hut, Inc. v. Workers’ Compensation Appeal Board (Mahalick). Here, the claimant’s injury was accepted by NCP as a low back strain or sprain. Her workers’ compensation benefits were suspended as of March 26, 2003. On December 26, 2006, claimant filed a Petition to Review, to amend the description of injury to include bulging discs and facet arthropathy in her lumbar spine.