Case Law Update

September 3, 2008

Reinstating in PA Workers’ Comp After Benefits are Terminated

One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

August 25, 2008

Injured Worker in PA Can Be a “Traveling Employee” Even if Worker Has Multiple Employers

by Glenn Neiman

Under the PA Workers’ Comp Act, generally speaking, a worker is not eligible for Pennsylvania workers’ compensation benefits when he or she is commuting to work. Under the law, the worker is not “in the scope of employment” at that time. One exception to this rule is for “traveling employees,” who are usually in the scope and course of their employment while moving from place to place. Obviously, it is advantageous for an injured worker who is hurt commuting to work to be found to be a “traveling employee.”

In a recent case, Jamison v. WCAB (Gallagher Home Health), the Commonwealth Court of Pennsylvania held that a home health nurse, who was hurt commuting to her assignment, was a traveling employee, despite the fact she worked for three different employers (sometimes all on the same day). The Workers’ Compensation Judge (WCJ) had found that Claimant was not a traveling employee, because she could be working for any of her three employers on any given day. As such, the WCJ denied the Claim Petition.

In reversing the WCJ, the Court found that claimant was a traveling employee with regard to her home health nurse job (the issue of multiple employers was essentially irrelevant). Once found to be a traveling employee, claimant was entitled to a presumption that she was working for her employer at the time she was driving from her home to the patient’s house. To prevail and defeat the claim, the workers’ compensation insurance company would have to prove the claimant abandoned her duties for the employer (for instance, by proving that claimant was actually on her way to work at one of her other jobs). Since the workers’ comp insurance carrier failed to prove this, the WCJ erred in denying workers’ compensation benefits to claimant.

August 20, 2008

IRE in PA Workers’ Comp Cannot be Done Until Injured Worker Reaches MMI

by Glenn Neiman

Under the most recent amendments to the Pennsylvania Workers’ Compensation Act, passed in 1996, once an injured worker in PA has received total disability benefits for 104 weeks, the workers’ comp insurance company can obtain an Impairment Rating Evaluation (IRE). If the work-related injury results in a whole body impairment rating of less than 50% (as almost all injuries do – this is an impossibly high standard), the PA Workers’ Compensation Act says the injured worker is changed from “total” disability status to “partial” disability status.

While this change from total to partial disability status does not change the amount of workers’ compensation benefits the injured worker receives, it does start the clock running regarding how long the benefits can be received. Partial disability benefits in PA are payable for a maximum of 500 weeks.

I go through this background, so that you understand the significance of a recent case decided by the Commonwealth Court of Pennsylvania, Combine v. WCAB (National Fuel Gas Dist. Co.). In this case, the Court held that a PA workers’ compensation insurance company cannot get an impairment rating until the IRE doctor first determines that a claimant has reached “maximal medical improvement” (MMI). Any obstacle in the path of the insurance carrier is certainly a benefit to claimants.

August 8, 2008

Expert Medical Evidence Necessary to Prove Disability in PA Workers’ Comp

by Glenn Neiman

A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

August 7, 2008

PA Court Addresses Notice Requirement for Work-Related Hearing Loss

by Glenn Neiman

Under the PA Workers’ Compensation Act, an injured worker must give his or her employer notice of the injury within 120 days of the injury. If notice is not given within 120 days of the work injury, a workers’ comp claim for the injury will be barred. This issue becomes somewhat more complicated when the injury is one which occurs over a period of years, such as a noise-induced hearing loss.

A recent case decided by the Commonwealth Court of Pennsylvania, Crompton Corp. v. W.C.A.B. (King), found that the requirement of giving notice is triggered only when an injured worker is told by a doctor that he or she has suffered a loss of hearing as a result of exposure to noise at work. Until an injured worker is advised of this, there is no requirement that notice be given. The fact the injured employee may suspect, or even believe, that he has a work-related hearing loss is not enough to trigger the start of the 120 day notice period.

August 4, 2008

Psychological Injury Can Result From Work-Related Physical Injury

by Glenn Neiman

Many times in Pennsylvania workers’ comp cases we see an injured worker devastated by a physical injury. Once a provider for his or her family, the injured worker may find themselves home, unable to work, do any chores around the house or take part in hobbies or pleasurable activities. Frequently, this can lead to emotional strain in the household. This dramatic change in an injured worker’s life often leads to psychological symptoms, such as depression and anxiety. When the depression and anxiety results from a work-related injury, in PA, the new psychological condition can be added to the workers’ compensation case.

While case law has changed over the years, as to how long an injured worker has to add more injuries or diagnoses to a workers’ compensation case in Pennsylvania, a recent case from the Commonwealth Court of Pennsylvania has confirmed that a workers’ comp claimant in PA can file a Petition to add a psychological condition to an accepted physical injury any time within three years of the latest payment of PA workers’ compensation benefits.

Though the claimant in this recent case, Campbell v. WCAB (Pittsburgh Post Gazette), ultimately lost in his attempt to add a psychological injury to his accepted physical injury, the Court disagreed with the Workers’ Compensation Judge that the claimant waited too long to file his Petition. The Court concluded that the Workers’ Compensation Judge was wrong about the statute of limitations, but the Workers’ Compensation Judge also found the medical evidence submitted by claimant not credible, so claimant still lost.

July 25, 2008

Total Disability PA Workers’ Compensation Benefits Continue For Injured Man Who Lost Both Arms

by Glenn Neiman

Ordinarily, an injured worker in Pennsylvania cannot receive both workers’ compensation total disability benefits and also wages. Generally speaking, if an injured worker in PA has returned to work, he or she is no longer, by definition, “totally disabled.” The injured worker may be entitled to partial workers’ compensation benefits (if a loss in earnings continues), but would not be entitled to total disability benefits.

A rare exception to this rule was recently addressed by the Commonwealth Court of Pennsylvania on July 22, 2008, when the Allegheny Power Service Corp. v. WCAB (Cockroft) decision was rendered.

Total disability benefits under the Pennsylvania Workers’ Compensation Act are paid under Section 301(a). “Specific loss” benefits (benefits to compensate for the loss of use of a body part) are paid under Section 301(c). These specific loss benefits are paid regardless of whether there is any wage loss or not.

July 22, 2008

Termination of Workers’ Compensation Benefits in PA May Require Change of Condition

by Glenn Neiman

Not that long ago, a Pennsylvania workers’ compensation insurance company could terminate the benefits of an injured worker anytime they found a doctor to say the injured worker had fully recovered from his or her work injury. This encouraged the workers’ compensation insurance carriers to file Termination Petition after Termination Petition, until they found a doctor the Workers’ Compensation Judge believed. Fortunately, this is no longer the case in PA. The case that allowed such a luxury by the workers’ compensation insurance carrier, King v. WCAB, was overruled by the Pennsylvania Supreme Court in Lewis v. WCAB.

The law now, confirmed by the Commonwealth Court of Pennsylvania in Prebish v. WCAB, decided on July 14, 2008, is that the workers’ comp insurance company must have an opinion that the condition of the injured worker has changed since the last termination was adjudicated. This keeps the workers’ compensation insurance carriers from harassing the injured worker by filing an endless stream of Termination Petitions. To learn how to avoid being the victim of continued litigation by the workers’ compensation insurance carriers, contact an experienced Pennsylvania workers’ comp attorney.

July 11, 2008

Workers’ Comp Insurer in PA Has Absolute Right to Subrogation

by Glenn Neiman

While, in Pennsylvania, an injured worker generally cannot sue his or her employer for causing the injury, the injured worker is free to sue a third party. For example, the injured worker could file an action against a manufacturer of a product which caused the injury, or another driver who caused an accident. When an injured worker receives a settlement or a verdict leading to the recovery of money from a third party, Section 319 of the Pennsylvania Workers’ Compensation Act says the workers’ compensation insurance carrier is entitled to be repaid all or part of the benefits the carrier paid to the injured worker.

Though the goals of Section 319 are somewhat logical – to keep a party from receiving a double benefit, the result of this law is often troublesome. In effect, between the repayment made from the recovery, and the credit the workers’ compensation insurance carrier enjoys against future wage and medical benefits, the injured worker often winds up netting absolutely nothing from the third party case. Considering that the Pennsylvania Workers’ Compensation Act does not provide for any compensation for pain and suffering, it seems terribly unjust that the injured worker can recover money in a third party case, intended to compensate for pain and suffering, and yet end up netting nothing.

Recently, the Commonwealth Court of Pennsylvania decided the case of Gorman v. WCAB. Here, the claimant settled his workers’ comp case. At that time, he was not pursuing a third party suit. In the Compromise & Release Agreement (the document used when a workers’ compensation case is settled in PA), the parties stated that there was no lien for any third party case. After the workers’ compensation settlement was done, the claimant successfully pursued a third party case and recovered money.

July 8, 2008

Medical Bills In PA Workers’ Comp May Be Payable Even When Not Submitted On Proper Forms

by Glenn Neiman

As a general rule, the Pennsylvania Workers’ Compensation Act requires medical providers to submit their bills to the workers’ compensation insurance carrier on the correct forms. Again, the usual rule is that the workers’ comp insurance carrier is not required to pay bills until they are submitted on the proper forms (and until supporting documentation is provided).

A recent decision by the Commonwealth Court of Pennsylvania, however, confirms the beliefs of us Pennsylvania workers’ compensation attorneys, who feel this technical step is not always necessary. In Shelton v. WCAB, decided by the Court on June 26, 2008, the workers’ compensation insurance carrier was ordered to pay medical bills even though the bills were not submitted on the proper forms.

In this case, the Court drew a distinction between the situations when the claim has already been accepted as opposed to one where there has never been liability of the workers’ compensation insurance carrier established. When the liability of the workers’ compensation insurance carrier has not yet been established, then bills must be on the proper forms. When we are dealing with an accepted claim, then this technicality may not be necessary.