Articles Posted in Case Law Update

When either party to a PA workers’ compensation case wants an opinion on whether medical treatment is reasonable and necessary (and this is usually requested by the workers’ comp insurance carrier, rather than the injured worker), the procedure is to file a Request for Utilization Review (UR).

The Pennsylvania Bureau of Workers’ Compensation then assigns a Utilization Review Organization (URO) randomly from a list. Following submission of records, and frequently a personal statement from the injured worker, the URO issues a Utilization Review Determination. The party against whom the URO finds has the right to appeal, by filing a Petition for Review of Utilization Review Determination.

This Petition will be assigned to a Workers’ Compensation Judge (WCJ). The litigation of a Petition for Review of Utilization Review Determination is called a “de novo” proceeding. That translates to, roughly, “from the start.” In this situation, it means the parties are not limited to the evidence before the URO; instead, the parties can submit whatever evidence to the WCJ that they desire.

The impact of pensions and “retirement” on PA workers’ compensation cases seems to be a frequent issue visited by the Commonwealth Court of Pennsylvania. Just last month, we told you about the decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) [Where the Court found that a “disability” pension does not create a presumption that an injured worker has voluntarily left the work force, while a “retirement” pension does].

Now, the Commonwealth Court of Pennsylvania has decided the Day v. Workers’ Compensation Appeal Board (City of Pittsburgh) case and further complicated the matter. A basic reading of the case could be consistent with the decision in the Robinson case. In Day, the Court found the injured worker took a “regular” pension from the employer, and applied for (and received) Social Security benefits. Further, the Court found that the injured worker testified he was capable of some kind of work, but he was not looking for work. In this case, unlike in Robinson, the Court found the injured worker did retire (and, as such, his workers’ compensation benefits should be suspended).

The problem is what does not appear in the case (and we only know this from the workers’ compensation attorney who litigated the case before the Commonwealth Court of Pennsylvania). The Social Security “benefits” being received by the injured worker were DISABILITY benefits, not RETIREMENT benefits, as the Court made it sound. Also, the pension at issue was not a regular (old age) pension, but a DISABILITY pension. Based on the true facts of the case (which, again, do not appear in the written opinion), one would think the same result should have been reached as in Robinson, denying the Petition for Suspension.

Back in October, 2009, we noted that the Supreme Court of Pennsylvania accepted the appeal (or, as formally said, “accepted allocatur”) in the matter of Diehl v. Workers’ Compensation Appeal Board (I.A. Construction).

This is the case where the Commonwealth Court of Pennsylvania first found that a PA workers’ compensation insurance carrier had to show job availability if a change of disability status is requested (changing from total disability to partial) as a result of an Impairment Rating Evaluation (IRE), if the IRE is not requested within 60 days of the expiration of 104 weeks of total disability benefits. An “en banc” (all of the Judges on the Court, rather than just the usual panel of three) decision by the Commonwealth Court reversed the Court’s initial decision, and found that no job availability need be shown in this situation.

The Supreme Court of PA recently affirmed the en banc decision of the Commonwealth Court of Pennsylvania. According to the PA Supreme Court, the crucial element is that “impairment” and “disability” are two very different things. Since the PA Workers’ Compensation Act refers only to the “impairment rating” (in this Section of the Act), and does not mention disability, the Court concluded that the Legislature did not intend to make the earning power of an injured worker an issue in IRE cases; instead, the issue in an IRE case is simply the injured worker’s degree of impairment. As such, there is no need for the PA workers’ compensation insurance company to present evidence on job availability to get a modification of workers’ comp benefits as a result of an IRE.

**Update – On April 4, 2011, The Supreme Court of Pennsylvania accepted appeal in the Robinson case. Therefore, what we have written here about the status of the law in Pennsylvania may change. Stay tuned for more details!**

In this blog, we have addressed the consequences of “retirement,” as it affects PA workers’ compensation cases, on several occasions. As far as we could tell, taking a pension from an employer led to a finding that an injured worker had “retired,” triggering the draconian consequences of placing the Pennsylvania workers’ comp benefits in jeopardy. Specifically, we addressed the Hensal case, which seemed to suggest the act of simply taking a pension created a presumption that an injured worker had “retired,” or, in PA workers’ comp language, had voluntarily withdrawn from the labor market.

Recently, however, The Commonwealth Court of Pennsylvania issued a decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). While this decision may have made a complicated issue even more convoluted, it also sprinkled in a desperately needed dose of reality and compassion for the injured worker. In essence, this decision guided us on how to determine when an injured worker is “retired.”

Under the Pennsylvania Workers’ Compensation Act, as that set of laws has been interpreted by Courts in Pennsylvania, there has been some confusion regarding when an injured worker can be reinstated to total disability workers’ compensation benefits. For example, an injured worker who returns to light duty work with the pre-injury employer, and is later laid off from the light duty job, is entitled to a reinstatement to total workers’ comp benefits. However, the question remained whether the same injured worker would lose this ability to obtain reinstatement if he or she leaves the pre-injury employer (like for a better or higher paying job).

This situation was faced squarely in Bufford v. Workers’ Compensation Appeal Board (North American Telecom), decided by the Supreme Court of Pennsylvania on August 17, 2010. In this case, the injured worker returned to light duty work with the pre-injury employer. He then left the pre-injury employer for a higher paying, less physical, job with another employer. A few years later, Mr. Bufford was laid off from the new employer.

The Workers’ Compensation Judge (WCJ) denied the Petition to Reinstate Benefits, finding that Mr. Bufford failed to prove there was a change (a worsening) in his condition, and his loss in earnings stemmed solely from economic reasons (rather than related to his disability). The WCJ even recognized the case would be different if the injured worker had remained at work with the pre-injury employer. On appeal, both the Workers’ Compensation Appeal Board (WCAB) and the Commonwealth Court of Pennsylvania affirmed the decision.

A work injury is covered by the Pennsylvania Workers’ Compensation Act when the injury takes place in PA. However, even when a work injury occurs outside Pennsylvania, there are times PA has “jurisdiction” to hear the case.

One of those situations when PA workers’ comp laws can apply to a work injury taking place in another State is when the injured worker’s employment is “principally localized” in PA. Recently, the Commonwealth Court of Pennsylvania addressed what “principally localized” means in John D. Williams v. Workers’ Compensation Appeal Board (POHL Transportation).

In this case, Mr. Williams, who lives in PA, was hired by a trucking company in Ohio. The trucking company had no offices or facilities in Pennsylvania. Mr. Williams’ mileage log showed that 38% of his mileage was within Pennsylvania, 32% was in Ohio and the remaining 30% was spread over 19 different States. The injury took place in Vermont.

Before Labor Market Surveys (LMS)/Earning Power Assessments (EPA), workers’ comp insurance carriers in PA used to actually have to prove a specific job was available to an injured worker in order to modify or suspend workers’ compensation benefits. This changed in the 1996 amendments to the Pennsylvania Workers’ Compensation Act, but any injured worker who was hurt before the amendments took place continues to fall under the “Old Act.”

In those cases, and even in LMS/EPA cases these days, the litigation starts with an Independent Medical Examination (IME), better, and more accurately, known as a “Defense Medical Examination.” Once some doctor releases the injured worker to some kind of work, the workers’ comp insurance carrier can start the vocational process (whether that be LMS/EPA, or the “Old Act” job referrals). But, when is a medical release too old, or stale, to be used?

In Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Guyders), the Commonwealth Court of Pennsylvania addressed this issue. This was an “Old Act” case, so the injured worker was sent on 73 job referrals (yes, you read that right, 73 – apparently, the workers’ comp insurance company does not know the meaning of the word “overkill.”)

In an earlier blog entry, we discussed the 2009 decision by the Supreme Court of Pennsylvania in Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill). This case discussed the procedure for amending a Notice of Compensation Payable (NCP).

The Court, in Cinram, decided that a “corrective amendment” (a condition which was present at the time of the injury and was erroneously left off the NCP) was to be treated differently than a “subsequently-arising” or “consequential” condition (a diagnosis not present at the time of the injury, but rather developed after the date of the injury). In the former, a Workers’ Compensation Judge (WCJ) can amend the NCP at any time any type of Petition is being litigated. On the other hand, in the latter, the injured worker must actually file a Petition to Review to achieve an amendment to the NCP.

An issue left open in Cinram was the appropriate “statute of limitations” in either of these situations. This issue has now been addressed, by the Commonwealth Court of Pennsylvania, in Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Court found there to be no difference between the two situations for statute of limitations purposes.