Articles Posted in Case Law Update

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?

In PA workers’ comp, when an injured worker returns to employment, there is a change in the workers’ compensation benefits he or she receives. If the injured worker is again earning the wages he or she earned before the work injury, then workers’ comp benefits are stopped completely (“suspended”). If the injured worker is earning less than before the injury, as a result of the injury, then workers’ comp benefits may only be “modified” to a lower rate.

Often the key to whether modified workers’ compensation benefits continue, in the case of an ongoing loss in wages, is whether the ongoing loss in wages is actually a result of the injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Trevdan Building Supply v. Workers’ Compensation Appeal Board (Pope). In this case, the employee ruptured his biceps tendon while unloading building material. Eventually, the injured worker was released to resume his regular duty employment, without any specific restriction, though his doctor noted that he may require some assistance with heavy lifting (which was also the case, on occasion, prior to the injury).

As noted in the previous blog posting, the PA Workers’ Compensation Act mandates that an Impairment Rating Evaluation (IRE) must be performed using the “most recent edition” of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The most recent edition is the Sixth Edition, published around January 2008.

The Pennsylvania Bureau of Workers’ Compensation, in early 2008, stated that it would accept an IRE performed under the Fifth or Sixth Editions until September 1, 2008, to give IRE physicians a chance to become certified under the new edition.

Whether this pronouncement by the PA Bureau of Workers’ Compensation was consistent with the Pennsylvania Workers’ Compensation Act was addressed by the Commonwealth Court of Pennsylvania in Stanish v. Workers Compensation Appeal Board (James J. Anderson Construction Co.).

It is funny how, after relatively few PA workers’ compensation hearing loss cases were decided by the Commonwealth Court of Pennsylvania, now, all of a sudden, it seems like every case decided by the Court is on this issue.

In our previous blog post, we mentioned that an injured worker in PA must have at least a 10% “binaural” (both ears) hearing impairment to receive any workers’ compensation benefits for a work-related loss of hearing. Since the statute clearly states that the loss of hearing is to be evaluated by looking at the effect on both ears, what happens if the loss is just in one ear? Recently, the Court addressed this very issue in Duncannon Borough v. Workers’ Compensation Appeal Board (Bruno).

Here, the injured worker, a police officer, was in a motor vehicle accident while in the scope and course of his employment. As a result of this accident, in addition to other injuries, he suffered a 31.88% hearing impairment to his right ear. Calculated “binaurally,” the hearing impairment was below the 10% threshold. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the injury to the single ear did not need to be calculated binaurally. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).