Case Law Update

August 4, 2008

Psychological Injury Can Result From Work-Related Physical Injury

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.

June 26, 2008

Workers Compensation Decision on IRE Vacated by Commonwealth Court

by Glenn Neiman

In a previous blog entry, I mentioned the April 28, 2008 decision by the Commonwealth Court of Pennsylvania in Diehl v. WCAB, which greatly limited what a workers’ compensation insurance carrier in Pennsylvania can do with an Impairment Rating Evaluation (IRE). This decision was very favorable to the injured worker. Unfortunately, on June 24, 2008, the Commonwealth Court of Pennsylvania issued an order, and granted the workers’ compensation insurance company’s application for reargument, and vacated the prior decision. This means that, for now, the law returns as it had been before the Diehl decision was issued (meaning the workers’ comp insurance company does NOT have to show job availability when trying to have benefits changed to partial based on an IRE).

Though there will be reargument on this case, and a new decision will be issued, many of us Pennsylvania workers’ compensation attorneys doubt that the new decision will be as favorable as the one which has been vacated. We will, of course, post about the new decision when it is made.

June 4, 2008

PA Injured Worker Can Lose Workers’ Comp Benefits When Receiving a Notice

by Glenn Neiman

Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

June 2, 2008

Supreme Court of PA accepts Appeal on Amending Description of Injury on NCP

by Glenn Neiman

In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

May 23, 2008

Bankruptcy of Workers’ Compensation Insurer in Pennsylvania Does Not Preclude Claim

by Glenn Neiman

A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

May 21, 2008

Pension Causes PA Workers’ Comp Benefits to Stop

by Glenn Neiman

As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said: