Case Law Update

June 2, 2008

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

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:

May 15, 2008

Job Referrals Must Be Actually Available to PA Workers’ Compensation Claimant

by Glenn Neiman

Experienced Pennsylvania workers’ compensation attorneys frequently are involved in cases where an injured worker, no longer able to perform his or her pre-injury job, is referred to other jobs in the community by a vocational counselor, at the request of the workers’ compensation insurance carrier. As lawyers who limit our practice to PA workers’ comp, we love to see cases reduce the power of the workers’ compensation insurance carriers to abuse this process.

Recently, on May 12, 2008, the Commonwealth Court of Pennsylvania decided PA Department of Corrections v. WCAB (Zvara). In this case, the claimant, who does not drive, was referred to five jobs, which were said by the workers’ compensation insurance carrier to be within the physical limitations of claimant. Claimant did not apply for any of the jobs (Often, the failure to apply for any of the referred jobs is nearly certain to cause the case to be lost). In this situation, however, the Court found that the workers’ compensation insurance carrier did not meet its burden of proof. Specifically, the workers’ compensation insurance carrier failed to prove public transportation was compatible with the hours of the offered jobs, or that the prospective employers would modify the hours of the jobs to accommodate the schedules of public transportation. The mere fact that the referred jobs were accessible by public transportation, without more, was not enough. Since the workers’ compensation insurance carrier did not meet its burden of showing jobs “available” to the claimant, the burden never shifted to claimant, to prove he or she applied for each job in good faith. As such, the Petition for Modification was denied.

May 13, 2008

Specific Loss Benefits Require Medical Evidence in PA Workers’ Comp

by Glenn Neiman

An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

May 6, 2008

Employer Need Not Show Job Not Available to Injured Worker in PA

by Glenn Neiman

One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

April 29, 2008

Impairment Rating Evaluation (IRE) in PA Workers’ Compensation

by Glenn Neiman

To answer an often asked question, in Pennsylvania, there is no limit to how long an injured worker can receive total disability workers’ compensation benefits. However, as a practical matter, it is difficult to receive total disability benefits in PA for more than two years. After an injured worker in Pennsylvania has received total disability benefits for 104 weeks, the workers’ compensation insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE).

An IRE is somewhat different than an Independent Medical Examination (IME), as the doctor who performs an IRE is selected by the Pennsylvania Bureau of Workers’ Compensation (the workers’ compensation insurance carrier selects the doctor in an IME). The doctor who performs the IRE will examine the injured worker and review records. Subsequently, the doctor will decide what percentage the injured worker is impaired from the work injury. This percentage is determined by guidelines developed by the American Medical Association.

If the injured worker is found to be less than 50% impaired by the work injury, the workers’ compensation insurance carrier may be able to have the status of the disability changed from “total” to “partial.” While this change does not effect the amount of workers’ compensation benefits the injured worker receives, it does put a time limit on how long the benefits can be received. An injured worker in PA can only receive partial disability benefits for a maximum of 500 weeks.

April 24, 2008

Workers Compensation Settlement in Pennsylvania Not Final Until Approved by a Workers’ Compensation Judge

by Glenn Neiman

An injured worker in PA can settle both the wage loss and medical parts of his or her case by entering into a Compromise & Release Agreement. This is something which can only be done when both the injured worker and the workers’ comp insurance company agree to settle the case. Neither side can force the other to settle a case. Once the parties agree to the terms of a settlement, a Compromise & Release Agreement must be prepared, detailing the terms of the settlement. Then, before the settlement is final, a hearing must be held before a Workers’ Compensation Judge, who must be satisfied that the injured worker understands the terms and conditions of the settlement.

Recently, the Commonwealth Court of Pennsylvania decided that a Compromise & Release Agreement could not be approved because the injured worker had died before a hearing to approve the settlement could be accomplished. This case, Miller v. W.C.A.B. (Electrolux), was decided on January 4, 2008.

Understand that settling a workers’ compensation case in Pennsylvania is a very complicated process. It is very important that you have an experienced workers’ compensation lawyer working for you, to make sure that you receive the maximum recovery possible, and that your rights be properly protected.

April 22, 2008

IME: Injured Worker in PA Not Required to Get EEG

by Glenn Neiman

We are often asked by injured workers about things related to Independent Medical Examinations (IME). The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance company to send an injured worker to a doctor of their choosing approximately twice a year. If an injured worker does not attend an IME, the workers’ compensation insurance company can file a petition to suspend workers’ compensation benefits.

Whether the IME is just a visit to be examined by the doctor the insurance company has selected varies by the case, though this does remain the situation in the vast majority of cases. The situation gets more complicated when the IME doctor asks that some additional testing be done on the injured worker. Whether the injured worker has to agree to this additional testing depends on the test at issue and the circumstances in that case.

According to a decision by the Commonwealth Court of Pennsylvania, an IME does include ” . . . all reasonable medical procedures and tests necessary to permit a provider to determine the extent of employee’s disability.” This was in the case of Coleman v. W.C.A.B. (Indian Hosp.), decided in 2004. The Court said the workers’ compensation insurance company must prove the test is necessary, has no more than minimal risk, and is not unreasonably intrusive. In that case, the Court found the injured worker did have to have an MRI done.

April 21, 2008

Injured Worker in PA Jeopardizes Workers’ Compensation Benefits by Taking Pension

by Glenn Neiman

Logic may make you think that if you are permanently disabled from your career as a result of a work injury, you are free to take your pension and continue receiving workers’ compensation benefits. Unfortunately, this is not the case in Pennsylvania, and whether to take a pension in a PA workers’ compensation case is a very important decision, which should only be done after discussing your particular situation with an experienced Pennsylvania workers’ compensation attorney.

When an injured worker starts taking his or her pension in PA, the workers’ compensation insurance company can argue that the injured worker is no longer entitled to workers’ compensation benefits, because the injured worker has “left the workforce.” The injured worker must then show a Workers’ Compensation Judge either that he or she is actually seeking employment or that he or she is not capable of performing any work at all (not just the injured worker’s old job, but any job in the entire labor market) as a result of the work injury. If the injured worker does not prove one of these two things, a Workers’ Compensation Judge can suspend (stop) the injured worker’s wage loss benefits (the weekly or bi-weekly checks). The injured worker’s right to medical treatment for the injury is not affected.

The case I recently saw that brought this situation to mind, Mason v. W.C.A.B. (Joy Mining Machinery), was decided by the Commonwealth Court of Pennsylvania on March 18, 2008.