Articles Posted in Case Law Update

Generally speaking, when an employee in Pennsylvania is injured while performing the duties of his or her job, the employee is entitled to PA workers’ compensation benefits. One of the exceptions to this rule, however, is when “the injury or death would not have occurred but for the employe’s intoxication.” This is one of the “affirmative defenses” available to a PA workers’ comp insurance carrier. The defendant bears the burden to prove that the intoxication caused the injury.

Recently, the Commonwealth Court of Pennsylvania dealt with whether the defendant’s medical expert had to actually state that the injury would not have occurred “but for” the intoxication. In Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board (Braun), the employee fell off a steel beam, six to eight inches wide, and suffered very serious injuries, including severe head trauma.

A Notice of Temporary Compensation Payable (TNCP) was issued, and workers’ comp benefits were started. However, when lab results showed that the injured worker had a blood alcohol level of around .28 at the hospital (Far beyond the .08 level which constitutes drunken driving in PA), the claim was then denied by issuance of a Notice of Denial (NCD).

There is a process in PA when a workers’ comp insurance carrier wants to modify or suspend the workers’ compensation benefits of an injured worker. First, there must be evidence of a change in condition. Then, the insurance carrier must serve a form called Notice of Ability to Return to Work on the injured worker (with documentation regarding what type of employment the injured worker can do). Only then can the workers’ comp insurance carrier file a Petition to Modify or Suspend benefits and go before a Workers’ Compensation Judge (WCJ).

But, what if the injured worker is not capable of working at all, due to something other than the work injury? The Supreme Court of Pennsylvania faced this issue in 2000, in Schneider, Inc. v. Workers’ Compensation Appeal Board (Bey). In that case, the worker suffered an injury to his head and neck. While he was receiving workers’ comp benefits, he was stabbed in the head in a bar fight and was rendered paraplegic and brain damaged. The Court held that the workers’ comp insurance carrier did not have to show any job availability, because it would be “fruitless.” In that situation, the injured worker was completely and permanently disabled by the non-work-related injury.

More recently, the Commonwealth Court of Pennsylvania was invited to expand this theory in Wells v. Workers Compensation Appeal Board (Skinner); thankfully, the Court declined. Mr. Skinner injured his back at work, and began to receive PA workers’ compensation benefits. Since Mr. Skinner also suffered with diabetes, cardiac problems and other related health issues, the workers’ comp insurance carrier filed a Petition to Suspend benefits, under the theory of Schneider.

Generally speaking, a Workers’ Compensation Judge (WCJ) is the sole determiner of credibility in PA workers’ comp matters. Testimony of any witness can be accepted, in whole or in part. Determinations of credibility by a WCJ cannot generally be overturned on appeal.

This issue was addressed by the Commonwealth Court of Pennsylvania in Stancell v. Workers Compensation Appeal Board (LKI Group, LLC). In this case, the workers’ comp insurance carrier sent the injured worker for an Independent Medical Examination (IME; more realistically referred to as a “Defense Medical Exam,” as there is usually nothing “independent” about it). That doctor pronounced the injured worker fully recovered.

Based on this opinion, the workers’ comp insurance carrier filed a Petition for Termination. To win such a Petition, the carrier must prove that the injured worker has fully recovered from the entire work injury. In that litigation, the IME doctor admitted he did not examine one of the body parts which were injured (the lower right arm). Regardless, the IME doctor testified that the injured worker had fully recovered from the entire injury (he was asked, hypothetically, if she injured her lower right arm, whether that, too, was recovered). The WCJ found this testimony credible and granted the Petition for Termination.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, an employer/insurance carrier has 21 days to investigate a workers’ compensation claim and issue appropriate documentation, either accepting (by Notice of Compensation Payable (NCP) or Agreement for Compensation) or denying (Notice of Denial (NCD)) the claim. If the employer/insurance carrier is unsure whether the claim is compensable, a Notice of Temporary Compensation Payable (TNCP) can be issued. This document can then be revoked, within 90 days, if the employer/insurance carrier wishes to deny the claim.

If an employer/insurance carrier wishes to revoke a TNCP, and deny liability, there are certain procedures which must be followed. If the procedures are not followed exactly, the TNCP can simply convert to an NCP (which cannot be revoked). One of the requirements is that a TNCP can only be revoked if the revocation is made within five days of the last workers’ compensation check.

Using magic powers which would be the envy of Merlin, the Commonwealth Court of Pennsylvania recently made this “requirement” disappear, allowing a TNCP to be revoked despite a clear violation of this provision. In Barrett v. Workers’ Compensation Appeal Board (Vision Quest National), the injured worker suffered a fractured ankle while doing her job. The workers’ comp insurance carrier issued a TNCP, along with the first check for workers’ compensation benefits.

When a PA workers’ compensation insurance carrier wants to “terminate” the workers’ comp benefits of an injured worker, the insurance company must prove that the injured worker has fully recovered from his or her work injury. What constitutes the “work injury” is usually what is described on the Notice of Compensation Payable (NCP)[the document used by the insurance carrier to accept a claim]. While this is the rule, there are always exceptions.

A recent decision rendered by the Commonwealth Court of Pennsylvania, Julio Paz Y Mino v. Workers’ Compensation Appeal Board (Crime Prevention Association), dealt with the exception to the rule. After Mr. Mino was injured, an NCP was issued, describing the injury as lumbar sprain and strain. A Petition to Terminate was filed by the workers’ comp insurance carrier. The Workers’ Compensation Judge (WCJ) denied this Petition, finding the testimony of the injured worker’s doctor more credible than the doctor who performed the Independent Medical Examination (IME) for the insurance company. Though the WCJ did not formally state he was amending the NCP (nor was a Petition to Review, the Petition used to amend an NCP, filed), he noted the diagnosis rendered by the injured worker’s doctor, specifically, an aggravation of pre-existing lumbar stenosis and a lumbar radiculopathy.

The workers’ compensation insurance carrier then filed a second Petition to Terminate (Persistent little devils, eh?). Since the first WCJ did not formally amend the NCP, the second WCJ did not include the entire diagnosis found by the first WCJ. In so doing, the second WCJ found that Claimant had fully recovered and granted the Petition to Terminate.

In PA Workers’ Compensation, when the workers’ comp insurance carrier feels the treatment rendered to an injured worker is no longer “reasonable” or “necessary,” the relief is for the insurance company to file for Utilization Review (UR). When a UR is requested, the PA Bureau of Workers’ Compensation randomly assigns a Utilization Review Organization (URO) to review the treatment and decide if it is “reasonable and necessary.” Once a UR is requested, until treatment is found to be reasonable and necessary, the workers’ comp insurance carrier does not have to pay for the treatment under review.

When a UR is requested, the workers’ comp insurance carrier must specifically state both the provider under review and the treatment being challenged. A UR only pertains to the provider named, and the treatment as issue. In other words, if a UR finds treatment with a specific orthopedic surgeon not reasonable or necessary, the workers’ comp insurance carrier no longer is responsible for the treatment of that doctor; however, that does not mean the workers’ comp insurance carrier is not responsible for treatment with a different orthopedic surgeon. The workers’ comp insurance carrier would have the obligation to file another UR request, and the process would start all over.

But, what if the provider is not a physician at all, but a physical therapist working under the direction of a physician at the same facility? This was the issue presented to the Commonwealth Court of Pennsylvania in MTV Transportation v. Workers’ Compensation Appeal Board (Harrington).

Generally speaking, employees in Pennsylvania are not entitled to workers’ compensation benefits when the employee is injured commuting to work (known as the “Coming and Going” rule).

There are four notable exceptions to this rule. They are that the injured worker: (1) has an employment agreement which includes commuting to and from work; (2) has no fixed place of employment; (3) is hurt while on a “special assignment” for employer; or, (4) is furthering the business of the employer.

The Supreme Court of Pennsylvania, in Peterson v. Workmen’s Compensation Appeal Board (PRN Nursing Agency), decided in 1991, has already told us that an employee of a temporary agency has no fixed place of employment. In that case, the Supreme Court said, “[a] temporary employee, who is employed by an agency, never has a fixed place of work.” The Supreme Court then concluded, “when [an] agency employee travels to an assigned workplace, the employee is furthering the business of the agency. Therefore, . . . as a matter of law, [Peterson] had no fixed place of work . . . and her injury occurred while she was in furtherance of her employer’s business.”

As discussed in previous blog entries, back in the old days (before the 1996 changes to the Pennsylvania Workers’ Compensation Act), if a workers’ comp insurance carrier wanted to cut a claimant’s worker’s compensation benefits, the carrier had to refer the person to an actual job lead. If the job lead did not result in employment, workers’ compensation benefits continued.

In 1996, the system was changed to one more like that used for Social Security Disability. Rather than sending the injured worker to an actual job opening, at an actual employer, a vocational specialist, hired by the insurance carrier, gathers theoretical information and compiles an Earning Power Assessment (EPA, also known as “Labor Market Survey,” (LMS)).

The workers’ comp insurance carrier then can take this EPA/LMS to a Workers’ Compensation Judge (WCJ), and ask that the injured worker’s compensation benefits be modified, based on the jobs shown to be “available” in the general geographic area in which the injured worker resides.

We have seen in recent decisions rendered by the Commonwealth Court of Pennsylvania a trend toward punishing injured workers in PA who take any type of disability or retirement package, almost, seemingly, without regard for the reasons.

In fact, earlier this month we posted a blog entry regarding Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), where the Court followed this very trend. So, the decision rendered by the Court recently in Polis v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, Inc.), was received as a pleasant surprise.

Here, Mr. Polis had injured his knee (and had surgery for the knee). Eventually, Mr. Polis went back to work, at a light duty job. After some period of time, the employer discontinued the light duty work, leaving Mr. Polis without a position within his physical restrictions. As we commonly see in these situations, Mr. Polis investigated what options were available to put food on his family’s table.

As discussed in previous blog entries, for several years now, the Courts in PA have caused decisions by Pennsylvania’s injured workers to have drastic consequences beyond what an injured worker could reasonably expect.

Because of the decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Hensal), rendered by the Commonwealth Court of Pennsylvania in 2008, the simple act of filing for a pension can easily lead to a loss of workers’ comp benefits for an injured worker.

Well, don’t look now, but Commonwealth Court has struck again. Now, an injured worker who testified credibly that he is NOT retired, that he had NOT filed for a retirement pension from his employer (even though one was available), that he would go back to work if a job was available within his physical restrictions and that he filed for Social Security Retirement benefits only after the workers’ comp insurance carrier refused to reinstate his benefits, has been found by the Court to have voluntarily removed himself from the labor market, ending his entitlement to PA workers’ compensation indemnity (wage loss) benefits.