Articles Posted in Case Law Update

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.

Recently, we posted a blog entry on the case of City of Philadelphia v. Workers’ Compensation Appeal Board (Butler), decided by the Commonwealth Court of Pennsylvania on December 16, 2010. In this opinion, the Court allowed a suspension or termination of workers’ compensation benefits to take place on a date before the issuance of a Notice of Compensation Payable (NCP). This appeared in conflict with existing case law from the Supreme Court of Pennsylvania.

We were notified by the attorney who litigated this case that the Commonwealth Court of PA granted a motion for en banc review of the case (most opinions of the Court are decided by a panel of Judges; an “en banc” review involves all of the Judges of the Court). Further, this Order of the Court, issued on February 24, 2011, vacated the decision which had been issued on December 16, 2010. The Court, after the en banc review, will issue a new opinion.

As attorneys who limit their practice to representing people who have been injured at work in PA, we often have the misfortune to see a potential new client who has already lost his or her case with another attorney.

Previously, in a blog entry, we have discussed the appeals process in Pennsylvania workers’ compensation. As discussed in that blog entry, often there is nothing we can do to help the injured worker at that point. The Workers’ Compensation Appeal Board (WCAB) can usually only disturb the opinion of a Workers’ Compensation Judge (WCJ) if the WCJ committed an error of law. Simply disagreeing with the WCJ is not sufficient.

This principle was tested somewhat recently in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Wilson), decided by the Commonwealth Court of Pennsylvania. Here, the injured worker was hurt and the Notice of Compensation Payable (NCP) described the injury as “thoracic strain.” The injured worker sought to amend the description of the injury to include a cervical strain, an aggravation of her pre-existing cervical degenerative disc disease and a rotator cuff tear. The workers’ compensation insurance carrier agreed to accept the cervical strain, but refused to accept the other conditions.

Since our entire practice is limited to representing injured workers in PA workers’ compensation cases, we occasionally get a call from an injured worker who has already lost their case with another attorney, and wanting us to handle an appeal. Unfortunately, frequently, there is nothing we can do to help at that point.

Once a Workers’ Compensation Judge (WCJ) renders a decision, provided it is a “reasoned decision” (generally that is defined as a decision which is capable of appellate review), only an “error of law” can be properly appealed. The determinations of credibility, and findings of fact, rendered by the WCJ are not usually subject to appeal.

This concept was recently reinforced by the Commonwealth Court of Pennsylvania in Shannopin Mining Company v. Workers’ Compensation Appeal Board (Sereg). Essentially, when a WCJ makes findings of fact, and explains the basis for determinations of credibility, an appellate Court, whether the Workers’ Compensation Appeal Board (WCAB) or the Pennsylvania Court System, cannot “second guess” those determinations of credibility, or substitute their own determinations of credibility. Even if the appellate body feels they would have decided the case differently, the determinations of the WCJ are final and binding. This, of course, highlights the importance of litigating the case before the WCJ.

We have discussed psychological injuries in the Pennsylvania workers’ compensation system in previous blog entries. We have even discussed our own cases in this area. The theme throughout this aspect of the Pennsylvania Workers’ Compensation Act is the requirement that the psychological injury be caused by “abnormal working conditions.”

Whether the injured worker was exposed to “abnormal working conditions” depends on the type of job the injured worker performs. What may be common and expected in one field, may be abnormal to another.

As you may expect, police officers, firemen, rescue workers and other first responders are held to a higher standard, since they can be expected to face conditions far more traumatic or upsetting than an accountant or a secretary, for example.

**Update – This opinion was vacated (withdrawn) by the Commonwealth Court of Pennsylvania on February 24, 2011. The en banc (all of the Judges) Court will review the case and issue a new decision**

Under the Pennsylvania Workers’ Compensation Act, an employer or, more likely, workers’ compensation insurance carrier, has 21 days to accept or deny a workers’ comp claim in PA. An acceptance can be accomplished by issuing a Notice of Compensation Payable (NCP), Notice of Temporary Compensation Payable (TNCP) or an Agreement for Compensation. A rejection of a claim requires that a Notice of Denial (NCD) be filed (there are, of course, nuances and exceptions, but this is generally the case).

The Supreme Court of Pennsylvania held back in 1983 (Beissel v. Workers’ Compensation Appeal Board (John Wanamaker, Inc.)) that, to obtain a termination of workers’ comp benefits, the workers’ compensation insurance carrier must prove there was a change of condition after the NCP was issued. But, what if an injured worker recovers before an NCP can be issued?