Pennsylvania Workers’ Compensation Lawyer Blog

We have written volumes about the Impairment Rating Evaluation (IRE) process.  It would now appear all of those words just became moot with the decision rendered by the Supreme Court of Pennsylvania, which ruled the entire IRE provision to be unconstitutional.

Back in September of 2015, we talked about the decision rendered by the Commonwealth Court of PA in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  In that decision, the Court found that the IRE provision within the Pennsylvania Workers’ Compensation Act (Act) was unconstitutional in that the impairment rating was to be determined by the latest version of the American Medical Association (AMA) Guide to Disability.  The Court believed this to be an impermissible delegation of power.  While this delegation of power was struck down by the Court, the case was remanded (sent back) to the Workers’ Compensation Judge (WCJ), to perform the IRE using the 4^th edition (this was the edition which existed when the IRE provision was added to the Act).

The Supreme Court of Pennsylvania has now ruled that the Commonwealth Court was only correct in part.  Yes, said the highest court in the State, the delegation of power was indeed unconstitutional.  But, the Act does not contain any mention of using the 4^th Edition of the AMA Guides.  A Court cannot rewrite a law.  Therefore, without a version of the AMA Guides to use, to measure an impairment rating, the entire IRE provision must be struck from the Act.

On this blog we often discuss the beginning and ending of a workers’ compensation case in Pennsylvania.  This is a natural, and obvious, area of litigation.  However, there is also potential for dispute, and thus, litigation, when an injured worker goes back to work.  This is especially true where the injured worker remains under limitations, and there may or may not be partial disability benefits due.  Recently, the Commonwealth Court of Pennsylvania issued a decision is this area.

In Holy Redeemer Health System v. Workers’ Compensation Appeal Board (Lux), a nurse (Claimant) suffered a back injury in the nature of lumbar sprain, facet arthropathy, and radiculitis while bending to care for a patient.  She was disabled from her pre-injury position (as a telemetry nurse) by this injury.  Since her employer had modified-duty work available within that department, the Claimant continued to work (with restrictions) and suffered no loss in wages.  The workers’ compensation insurance carrier accepted the claim on a medical-only basis.

While the injured worker continued to perform the modified-duty work, at no loss in wages, her employer created a permanent, available position in a different department and offered it to Claimant.  The employer did not force or require Claimant to leave her original modified-duty position.  This new position actually led to Claimant earning less money than in her modified-duty job in the other department.

Since the Pennsylvania Workers’ Compensation Act covers “employees,” but not “independent contractors,” the relationship between these two terms is something we have previously discussed on our blog.  A recent case from the Commonwealth Court of Pennsylvania on this topic featured an added twist of a late answer.

In Hawbaker v. Workers’ Compensation Appeal Board (Kriner’s Quality Roofing Services and Uninsured Employer Guaranty Fund), the injured worker was employed as a roofer, when he fell.  The injury was denied by the workers’ compensation insurance carrier, who alleged the injured worker (the “Claimant”) was actually an independent contractor, and not entitled to benefits under the Pennsylvania Workers’ Compensation Act.

Claimant filed a Claim Petition, and the insurance carrier did not file a timely Answer.  Under the law, all factual allegations made by the Claimant are deemed admitted if there is no timely Answer denying the allegations (Known as a “Yellow Freight” situation, for the case which first addressed it).  Claimant included in the allegations that he was an employee of the employer.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) found the Claimant to have been an independent contractor, and denied the Claim Petition.  This was affirmed on appeal to the Workers’ Compensation Appeal Board (WCAB).

When one thinks of an “injury,” typically one is imagining a sudden physical incident.  Maybe a roofer falls from a ladder.  A nurse pulls her back positioning a patient.  A machine operator catches a hand in a device.  While these are certainly injuries we see in PA workers’ compensation, not all work injuries are like these.  Some are physical, some are mental.  Also, some fall more into the category of “disease” than “injury.”  Yet, as a recent case from Commonwealth Court of Pennsylvania reminds us, all are compensable under the Pennsylvania Workers’ Compensation Act.

In Kimberly Clark Corporation  v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician in his employer’s plant.  He was diagnosed with metastatic bladder cancer in the Summer of 2005, and sadly passed away on June 23, 2006.  His widow (the “Claimant”) filed a Fatal Claim Petition.

In litigation before a Workers’ Compensation Judge (WCJ), Claimant presented the testimony of two coworkers of her late husband.  Both testified that the late husband had been exposed to various chemicals and substances which are known to cause cancer while doing the duties of his job.  The witnesses listed the names of many of the materials.  Claimant also presented the testimony of an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens.

This seems to be the month for Average Weekly Wage (AWW) cases.  If you have not been keeping up with our blog (first, shame on you! 😉 ), AWW is the calculation of an injured worker’s wages, which is used to determine the amount of workers’ compensation benefits the injured worker will receive.  Last week, we discussed the Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney) case, which dealt with a situation where the worker did not earn a regular set amount each week.  This week we will look at a case with set weekly earnings.

In Lidey v. Workers’ Compensation Appeal Board (Tropical Amusements, Inc.), the injured worker was employed as manager/fabricator of company who provides amusement park and carnival rides.  While doing his job, the employee suffered a severe injury to his right arm, in which the arm was fractured and crushed, requiring multiple surgical procedures.  At the time of the injury, he was paid $2,000.00 per week.  In the year prior to his injury, his wages increased from $1,000.00 per week to $2,000.00 per week, at least temporarily.  There was no discussion whether this rate would continue indefinitely.

Though workers’ compensation benefits were paid voluntarily, they were based on an AWW of $640.00 (yielding a weekly compensation rate of $458.50).  Believing he should have compensation based on the AWW of $2,000.00, the injured worker filed a Petition to Review.  After evaluating the evidence (primarily testimony from both sides), the Workers’ Compensation Judge (WCJ) granted the Petition for Review, finding that the AWW indeed should be $2,000.00, for a resulting workers’ compensation rate of $917.00 (the maximum rate for 2013, the year of the injury).