Articles Posted in Case Law Update

One frequently litigated part of PA workers’ compensation law is whether an injured worker is within the “scope and course” of his or her employment at the time of the injury.  Often, this question is dealing with a situation where an employee is injured just before or after his or her work day.  Since these cases are very limited by the exact facts, we like to see how the courts address each and every instance.  Recently, the Commonwealth Court of Pennsylvania issued a decision on this issue, though it is “unreported.”

We have previously discussed that not all Pennsylvania appellate cases, including ones that address PA workers’ compensation issues, are created equal.  Only “reported” appellate cases can be used as precedent.  However, “unreported” cases can still be cited by the parties, as persuasive, though such decisions are not binding on a Workers’ Compensation Judge (WCJ).  For these reasons, we obviously prefer to use reported cases, but we never ignore the unreported ones.

The recent case is Lombardi v. Workers’ Compensation Appeal Board (UPMC Health Plan, Inc.).  Here, the injured work arrived for her shift about 30 minutes early.  Her work takes place in an office building, not owned by her employer.  The injured worker went to the food court on the ground floor, intending to purchase breakfast to take to her cubicle.  While doing so, she tripped and fell, fracturing her right forearm and wrist.

Most employees in PA are covered by the Pennsylvania Workers’ Compensation Act.  This is a topic that has been mentioned previously in this blog.  However, that thought begs the question – who is actually an “employee”?  This can be a complicated topic and analysis, where one must differentiate the “employee” from the “independent contractor” (the latter not covered by the PA Workers’ Compensation Act).  Ultimately, this is a determination based upon the facts in each specific case.  A recent decision from the Commonwealth Court of PA does remind us of the significant factors.

Suppose you go to work for a company.  You sign an agreement, which says that you are an independent contractor.  You agree that taxes will not be withheld.  You are paid by the job, not by your time.  You have the right to decline job assignments.  You are not required to wear your employer’s uniform at work.  Your boss is not even on location when you are doing your job.  So, are you an employee?  Well, that would depend!  Though these are some of the factors to be examined, there are certainly others.

In Berkebile Towing and Recovery v. Workers’ Compensation Appeal Board  (Harr, State Workers’ Insurance Fund and Uninsured Employers Guaranty Fund), the answer was yes.  Some other facts, as found by the Workers’ Compensation Judge (WCJ), would be helpful to understanding the decision:

As we have discussed in the past, the assessment of unreasonable contest attorney fees is a rare finding in PA workers’ compensation.  This is when the workers’ comp insurance carrier is ordered to pay the fees of the injured worker’s attorney.  Even on those unusual occasions when a Workers’ Compensation Judge (WCJ) orders the payment of unreasonable contest attorney fees, often this is reversed by the appellate courts.  Which is why a recent decision of the Commonwealth Court of Pennsylvania was so refreshing.

In Gabriel v. Workers’ Compensation Appeal Board (Procter and Gamble Products Company), the injured worker suffered a puncture injury to his arm.  Notice was given to the employer by the injured worker within 120 days, as required under the Pennsylvania Workers’ Compensation Act (Act).  The injured worker received medical treatment, and the workers’ comp insurance company paid for such treatment.  However, the insurance carrier failed to issue any document, such as a medical-only Notice of Compensation Payable (MONCP), as would be required by the Act (the Act provides that the insurance carrier accept or deny an injury, issuing the appropriate form, within 21 days).

The injured worker filed a Claim Petition, to which the insurance carrier filed an Answer, denying all of the allegations in the Claim Petition. The matter was fully litigated before a WCJ.  After the final hearing before the WCJ, the insurance carrier finally issued a MONCP (this around two years after the occurrence of the injury).

Back in 2017, we shared the exciting news (hey, we attorneys have a unique sense of excitement!) that the entire Impairment Rating Evaluation (IRE) section of the Pennsylvania Workers’ Compensation Act (Act) was declared unconstitutional by the Supreme Court of PA (The Protz case) and stricken from the Act.  This, of course, stopped attempts by the insurance industry to get an IRE at all.

Not able to live with themselves in a world without IREs (oh, the horror), the Pennsylvania legislature passed Act 111.  This brought back the IRE process, albeit with a specific identification of which version of the Guides to the Evaluation of Permanent Impairment, put forth by the American Medical Association, need be used (the failure to so identify was largely the reason the prior IRE law was stricken).  Act 111 also lowered the threshold for continued total disability from 50% to 35% whole body impairment (for a better explanation of the IRE process, see our website).

Recently, the Commonwealth Court of PA addressed to what extent Act 111, which was enacted on   October 24, 2018, would be retroactive.  The case of Rose Corporation v. Workers’ Compensation Appeal Board (Espada) involved a work injury of September 6, 2006.  On May 22, 2013, the insurance carrier had obtained an IRE under the old (stricken) IRE law.  The IRE used the correct edition of the AMA Guides, and found a whole body impairment rating of less than 35%.  As a result, the insurance carrier wanted to use the 2013 IRE to obtain a change of benefit status, from total to partial, under Act 111.

Once an injured worker in Pennsylvania establishes an entitlement to workers’ compensation benefits (when out of work, the benefits are known as “temporary total disability benefits” or TTD), the workers’ comp insurance carrier cannot just stop paying the benefits at its discretion.  This is one of the advantages of the workers’ compensation system in PA.

Unless the injured worker settles the case, or agrees that he or she has returned to gainful employment at (or above) the pre-injury earnings, there are very few situations an insurance company can stop the TTD benefits without an order of a Workers’ Compensation Judge (WCJ).  Indeed, even an order of a WCJ can only be obtained in certain circumstances, such as when the insurance carrier proves the injured worker has fully recovered from the work injury, or that work is available to the injured worker within his or her physical capabilities.

Given the difficulties workers’ comp insurance carriers face in PA trying to stop the payment of TTD benefits, the companies are always searching for new ways to accomplish this goal.  One of the relatively recent ways to attack the payment of benefits is by alleging an injured worker has voluntarily removed him or herself from the labor market.  Proving such an allegation allows the stoppage of TTD payments without having to demonstrate any job availability.

This blog does not address Coronavirus (COVID-19) and how it relates to PA workers’ compensation.  Which is good, because I think we are all tired of seeing the words “Coronavirus” or “COVID-19.”

Instead, we are looking at a recent decision from the Commonwealth Court of Pennsylvania, wherein the Court looked at the effect of a workers’ compensation insurance carrier issuing a Notice Stopping Temporary Compensation (NSTC) more than five days after the last payment of workers’ comp benefits under a Notice of Temporary Compensation Payable (NTCP).  The short answer is there is not much consequence to the insurance company.

When a workers’ comp insurance carrier is not sure whether a work injury claim in PA is compensable, the insurer has the option of issuing an NTCP, which allows the payment of workers’ compensation of benefits to start, while still allowing the insurer to complete its investigation and still have the option to deny the claim.  In theory, the NTCP is a win-win proposition.  In theory.

Usually, if the testimony of an injured worker, and that of the medical expert offered by the injured worker, is not found credible by the Workers’ Compensation Judge (WCJ), there is no way to win the case.  This highlights just how important it is to have a “presumption” under the law, such as that available to firefighters.  As a recent decision of the Commonwealth Court of Pennsylvania shows, having the “presumption” can be the difference between winning and losing a workers’ comp case in PA.

We have previously discussed the presumption that cancer suffered by a firefighter is related to his or her work duties and work exposure.  We have addressed the different types of cancer implicated in this presumption, as well as who can use the presumption.  What we have not addressed is how important it is to actually have this presumption.  And that is what is clearly seen in Deloatch v. Workers’ Compensation Appeal Board (City of Philadelphia), decided recently by the Commonwealth Court of Pennsylvania.

The injured worker here was a firefighter who was diagnosed with lung cancer.  He filed a Claim Petition, which was litigated before a WCJ.  The injured worker testified that he was exposed to diesel fumes and smoke from fires throughout his years of service with the Fire Department. Though he stopped smoking years before, the injured worker agreed he had a 30 to 35-year-long history of smoking cigarettes.  The medical evidence presented by the injured worker connected the lung cancer to his occupational exposure as a firefighter.  Medical evidence offered by the workers’ compensation insurance company showed that the lung cancer was not due to his work as a firefighter, but was “most likely” from personal factors (primarily smoking).

One of the important aspects to the Pennsylvania Workers’ Compensation Act (“Act”) is Section 309, which deals with the calculation of the Average Weekly Wage (AWW), controlling the amount of benefits an injured worker in PA will receive.  We have discussed these calculations in previous blog posts.  Additionally, the concept of a “seasonal employee” has been addressed here.  Recently, the Commonwealth Court of PA has again touched on the meaning of “seasonal employee.”

Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board (Trucks) deals with a shoulder injury suffered by a player for the Pittsburgh Steelers.  The compensability of the work injury was not in dispute; in fact, the only issue to be decided was whether the National Football League (NFL) player was a “seasonal employee” for the purposes of determining the AWW (Note that highly paid professional athletes have a special section of Act, for calculating the AWW; the player in this case did not rise to that level).

After hearing the evidence, the first Workers’ Compensation Judge (WCJ) granted the Claim Petition and set the AWW at $3,846.15 (concluding that the player was NOT a “seasonal employee” and that the AWW was determined by dividing the yearly salary by 52 weeks (this was appealed and remanded for unrelated reasons, which I will not bother addressing).  The Workers’ Compensation Appeal Board (WCAB) affirmed.

When we litigate a Claim Petition, to obtain PA workers’ compensation benefits for one who is injured at work, we must prove that the person was hurt while in the scope and course of his or her job, and that such injury renders the person disabled.  Almost always, this requires the testimony of a medical expert (usually the treating doctor).  The opinion the doctor provides must be to a “reasonable degree of medical certainty.”  What does that phrase mean?  Commonwealth Court of Pennsylvania recently examined that very thing.

In PetSmart, Inc. v. Workers’ Compensation Appeal Board (Sauter), the injured worker alleged that he had hurt his low back while doing his job.  A Claim Petition was filed, and the matter was litigated before a Workers’ Compensation Judge (WCJ).  In support of the Claim Petition, the injured worker presented expert medical testimony, from his treating physician, that “he had discogenetic [sic] low back pain, as well as nerve symptomatology of indeterminate etiology” and that it was his “presumption” that it was related to work.  Finding the injured worker, and his medical expert, credible, the WCJ granted the Claim Petition.  This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ.  While the Court was quick to point out that there are no “magic words” that need to be used by a medical expert, and that an appellate court is “not permitted to pick one or two sentences out of context,” the Court concluded that the testimony of the injured worker’s medical expert did not rise to the level of “reasonable degree of medical certainty,” and could not support the granting of the Claim Petition.