Articles Posted in Case Law Update

This being a free Country, a workers’ compensation insurance company in PA cannot “force” an injured worker to get any medical treatment. However, the Pennsylvania Workers’ Compensation Act permits the suspension of workers’ comp benefits if an injured worker refuses “reasonable” medical treatment (Known as a “Forfeiture” Petition). Often in those cases, the issue is whether the treatment at issue (anything from carpal tunnel release, to lumbar fusion, to total knee replacement, to epidural steroid injections) is actually “reasonable” in any particular case.

An interesting aspect of this issue was recently examined by the Commonwealth Court of Pennsylvania in Bereznicki v. Workers’ Compensation Appeal Board (Eat ‘N Park Hospitality Group). In that case, the question was whether the proposed treatment had to actually be intended to return the injured worker to gainful employment. In a decision surprising to many, the Court held that the treatment did NOT have to be designed to return the injured worker to gainful employment to lead to a suspension of benefits.

The concept of a “Forfeiture Petition” makes sense; it is designed to keep an injured worker from refusing treatment which would put the injured worker back on the job (in reality, however, I doubt many folks would truly refuse treatment that would make them better, but the insurance industry seems to disagree with me). But, to me, that is the point – the fact the injured worker could return to work.

Under the Pennsylvania Workers’ Compensation Act, an insurance carrier cannot just stop, or even change, payments of workers’ comp benefits. Any change made by the workers’ compensation insurance carrier in PA, without permission of the injured worker, or a Workers’ Compensation Judge (WCJ), may be met with an assessment of penalties. This leads us into an examination of how an insurance carrier can try to reduce such benefits.

When a workers’ comp insurance carrier receives evidence that the medical condition of an injured worker has changed, the carrier must file a Notice of Ability to Return to Work. The law tells us that this document must be filed before the workers’ compensation carrier can file a Petition to Modify or Suspend (workers’ comp benefits), based on some wage-earning capacity.

In the case of an injured worker actually going back to work, the insurance carrier has a period of time to file a Notification of Modification or Suspension. This document sets forth the allegations regarding the wages now being earned by the injured worker. If this document is not challenged in court by the injured worker, the effect is the same as if the injured worker agreed to the terms recited within the document (as if the injured worker had agreed to those terms in a “Supplemental Agreement.”). If the workers’ compensation insurance carrier does not file the Notification of Modification or Suspension in a timely fashion, then the insurance carrier must file a Modification, or Suspension, Petition and litigate the matter before a WCJ.

Typically, in Pennsylvania, a workers’ compensation claim has two important time constraints – a period within which the injured worker must provide notice of the work injury to his or her employer (within 120 days), and a period within which a Claim Petition must be filed with the Bureau of Workers Compensation (within three years). Though this is the rule, there are, of course, exceptions.

In Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber-Brown), the Commonwealth Court of PA was faced with a situation where the eye of an injured worker was exposed to herpes simplex virus around 1980. The injured worker gave notice to her employer at that time, but the claim was never formally accepted. In 1985, the injured worker left that job. Through the years, the eye had occasional episodes of infection.

In 2007, the treatments for an infection failed to work, and the injured worker underwent a cornea transplant. At that point, the injured worker was legally blind in that eye, and there was a loss of use of the eye under the Pennsylvania Workers’ Compensation Act (called a “Specific Loss”).

When a violation of the Pennsylvania Workers’ Compensation Act takes place, the proper avenue of relief is to file a Petition for Penalties. This Petition allows a Workers’ Compensation Judge (WCJ) to assess a penalty of up to 50% of the benefits at issue. Typically, this is filed by an injured worker against the workers’ comp insurance carrier. Common violations include a delayed payment of wage loss benefits, or a refusal to pay for medical treatment related to the work injury.

Until recently, there was no clear answer as to whether a Petition for Penalties could be filed BY a workers’ compensation insurance carrier AGAINST an injured worker. The Commonwealth Court of Pennsylvania has now answered this question in Yespelkis v. Workers’ Compensation Appeal Board (Pulmonology Associates Inc.). The answer is simply, yes, a Penalty Petition can be filed against a claimant in a workers’ comp case.

However, importantly, while a WCJ can assess a penalty against a workers’ compensation insurance carrier of up to 50% of the benefits at issue, the WCJ is limited to assessing a penalty of a forfeiture of interest against an injured worker. This, the Court said, is consistent with the language of the PA Workers’ Compensation Act.

The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance carrier to obtain an “Independent Medical Examination” (IME) [Which, of course, is usually anything but “Independent”] at “reasonable” intervals. If an injured worker refuses to attend an ordered IME, a Workers’ Compensation Judge (WCJ) can suspend the injured worker’s benefits under Section 314(a). This was usually interpreted to mean “indemnity” or wage loss benefits, as opposed to medical benefits. Whether medical benefits could be suspended was an open question.

In Giant Eagle v. Workers’ Compensation Appeal Board (Givner), decided by the Commonwealth Court of Pennsylvania recently, this issue was addressed. The workers’ compensation insurance carrier asked the WCJ to suspend compensation benefits of an injured worker who refused to attend a court-ordered IME. The WCJ issued a decision, granting the request of the insurance carrier, that “compensation benefits” be suspended until the injured worker attends the IME. The Workers’ Compensation Appeal Board (WCAB) agreed and affirmed the decision.

On appeal, the workers’ comp insurance carrier asked that medical benefits be suspended along with the indemnity benefits. The insurance carrier argued that the injured worker should be deprived of all compensation for failing to attend the ordered IME. This position was rejected by the Court, which held that medical benefits are separate from indemnity benefits, and are not included in the term “compensation.” The Court found that, in this case, medical benefits are not suspended because the decision of the WCJ cited only “compensation.”

Ordinarily, when an employee is commuting to, or from, work in Pennsylvania, he or she is not in the course of employment. This is known in the PA workers’ comp community as “The Going and Coming Rule.” Thus, if the employee is injured while commuting, usually the injured worker is not entitled to PA workers’ compensation benefits. Like every rule, however, there are exceptions.

Recently, in Leisure Line v. Workers’ Compensation Appeal Board (Walker), the Commonwealth Court of Pennsylvania addressed some of these exceptions. While working as a bus driver for Leisure Line, Mr. Walker commuted from his Delaware home to the bus depot in Coatesville, PA. From the depot, Mr. Walker would drive the bus to and from Atlantic City, NJ. On his way from his home to Coatesville one day, Mr. Walker was injured in a motor vehicle accident.

In asserting that his commute was an exception to the usual rule, and that he was eligible for benefits under the PA Workers’ Compensation Act, Claimant had two main assertions – that he was paid for his travel to Coatesville; and, that his willingness to accept the “Coatesville Run,” an unpopular job assignment, was a “special circumstance” which “furthered his employer’s business.”

When an injured worker in Pennsylvania is physically unable to perform his or her time-of-injury job, due to a work injury, the burden falls to the employer to prove the existence of a job that is “available” to the injured worker. For a job to be “available,” it must be within the injured worker’s physical capabilities, as well as be suitable with regard to other “relevant considerations” (which may include vocational suitability, job location, and other factors).

A previous decision of the Commonwealth Court of Pennsylvania had told us that a modified job being offered must specifically state the duties which would be expected. The Supreme Court had already told us that a job which is for only a finite period can only lead to a modification or suspension for that period the job is available.

Recently, however, the Commonwealth Court of Pennsylvania decided Presby Homes and Services v. Workers’ Compensation Appeal Board (Quiah), which calls both of these prior decisions into question.

In PA, an injured employee is entitled to workers’ compensation benefits only when the injury takes place while the employee is in the scope and course of his or her employment. Often, this is something obvious, as when the employee is actually injured while on the employer’s premises, performing the usual and customary duties of his or her job. There are times, though, when the injured worker is either not on the employer’s premises, or not engaged in the job duties, at the time of the accident. These situations can be dependent on the precise facts in each case.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Graves v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), decided by the Court on October 23, 2009. In this case, the Claimant, Mr. Graves, was a Philadelphia Housing Authority patrol officer. He was shot while off-duty, confronting an armed man outside a tavern in South Philadelphia. The claim was denied by the workers’ compensation insurance carrier, who said Claimant was not in the scope and course of his employment at the time of the shooting.

The Workers’ Compensation Judge (WCJ) found the employer’s witness, the Assistant Police Chief of the Philadelphia Housing Authority, more credible than Claimant, and denied the Claim Petition. The employer witness had completed a report of his investigation of the incident and testified from this report. Specifically, the employer witness testified that Claimant failed to follow proper police procedure, and was not acting as a police officer when he was shot. Claimant had objected to the use of this report, on the basis of hearsay (an out-of-court statement, used to prove the truth of the matter asserted).

In a case that has been working its way through the Pennsylvania Workers’ Compensation system for some time now, the Supreme Court has accepted appeal in the matter of Diehl v. Workers’ Compensation Appeal Board (WCAB).

As was discussed in a previous blog entry, the Commonwealth Court of Pennsylvania concluded that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within 60 days of the expiration of 104 weeks of total disability. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

The Supreme Court of PA has accepted appeal to determine whether evidence of job availability or earning power is required to change disability status from total to partial as a result of an IRE.

In year’s past, before 1996, when a workers’ compensation insurance carrier wanted to reduce an injured worker’s benefits in PA, the insurance carrier had to refer the injured worker to jobs, which then had to be open and available to the injured worker. This process was set forth not by the Pennsylvania legislature, but by the Supreme Court of PA in Kachinski v. Workers’ Compensation Appeal Board, decided in 1981.

This process changed in 1996, when the PA legislature amended the Pennsylvania Workers’ Compensation Act. No longer does a workers’ comp insurance company have to actually refer an injured worker to a then-open job. Instead, the PA legislature opted for a system more like that used by the Social Security Administration in Social Security Disability cases. All that is required to be proven to modify workers’ compensation benefits is that suitable employment is generally available to the injured worker in the injured worker’s usual employment area.

This involves the use of “Labor Market Surveys (LMS),” also known as “Earning Power Assessments (EPA).” The injured worker is not referred to any specific job at all. The vocational expert retained by the workers’ comp insurance company just gathers data of jobs generally available in the geographic area of the injured worker. The premise is that if the injured worker wanted to look for work, these are the types of jobs the injured worker could find.