Pennsylvania Workers’ Compensation Lawyer Blog

The standard fee agreement in Pennsylvania workers’ compensation is 20% of the benefits obtained or awarded to an injured worker.  PA Courts have found this amount to be reasonable, and it remains the standard charged.  Historically, this pertained just to wage loss, or what we call “indemnity” benefits.

This was somewhat changed by a 2020 decision by the Commonwealth Court of Pennsylvania in the case of Neves v. Workers’ Compensation Appeal Board (American Airlines).  Here, the Court found that an attorney for the injured worker could obtain 20% of the medical bills, as well as 20% of the wage loss benefits.  While some attorneys immediately started using this ability, others, our firm among them, hesitated to do so.  We were unsure how that 20% fee would be dealt with by the healthcare provider.  More specifically, we were concerned that our client could potentially be liable for the 20% we would be taking as a fee.  This, of course, was a risk we would never place on our clients.

However, the Commonwealth Court of Pennsylvania has now clarified that risk in the recent case of Williams v. City of Philadelphia (Workers’ Compensation Appeal Board).  In that case, the Workers’ Compensation Judge (WCJ) refused to grant a 20% fee on the medical benefits, despite it being requested by the attorney and agreed upon by the injured worker.  While the Workers’ Compensation Appeal Board (WCAB) affirmed, the Commonwealth Court reversed, finding that the 20% fee on the medical benefits should have been granted.

The Pennsylvania appellate courts have consistently determined that a Workers’ Compensation Judge (WCJ) is the final arbiter of credibility in a PA workers’ compensation case.  Short of finding that a credibility determination by the WCJ is “arbitrary and capricious,” these determinations are to be accepted by the courts.  This makes sense, since it is the WCJ who actually sees and evaluates the witnesses and the evidence directly.

Every once in a while, though, a WCJ’s credibility determinations are challenged on appeal, often by casting the attack in a different light.  Recently, the Commonwealth Court of Pennsylvania stopped such an effort by the Workers’ Compensation Appeal Board (WCAB) in the case of Lawry v. County of Butler (Workers’ Compensation Appeal Board).

In Lawry, the WCJ heard the testimony of the injured worker and reviewed the medical evidence, and largely denied the insurance carrier’s Petition to Terminate benefits.  To be specific, the WCJ found that the injured worker had fully recovered from “right thumb strain/sprain and right ulnar collateral ligament tear.”  Importantly, though, the WCJ also “determined that Employer failed to meet its burden of proving that Claimant fully recovered from her RSD/CRPS.”

One of the most important determinations in any PA workers’ compensation case is the Average Weekly Wages (AWW).  As we have explained in prior blog posts, if an injured worker has been employed for over a year, and is not paid a fixed amount each pay period, the AWW is determined by dividing the year prior to the date of injury into four quarters.  The top three of those quarters are then averaged.  This is the AWW.  The compensation rate is calculated from this figure.

For years, the Pennsylvania appellate courts have held that periods of lay off count within this calculation.  The Courts have said that the “employment relationship” continues through the lay off.  This often leads to a deflated AWW for an injured worker unfortunate enough to have undergone periods of lay off in the year before the injury (since those periods of lay off would be a zero for each pay period). Recently, a PA workers’ compensation insurance carrier tried to use this sword as a shield.

In Resources for Human Development, Inc. and Gallagher Bassett Services v. Sherry Dixon (Workers’ Compensation Appeal Board), the injured worker was employed by Resources for Human Development, Inc., as a home health aide.  The injured worker suffered a “strain or tear” to her “multiple trunk” (their word usage, not ours) when a patient fell on her.  Since the injured worker also was employed by Public Partnerships, LLP, she filed a Review Petition alleging that she had concurrent employment (so the AWW would be based on earnings from both of those jobs).

In Pennsylvania workers’ compensation, physical and mental injuries are treated very differently.  Is that fair?  Probably not, but that is the law with which we are left.

A physical injury, like a herniated disc in the neck or back, a rotator cuff tear in the shoulder or a ligament tear in a knee, are compensable under the PA Workers’ Compensation Act (Act), as long as the injured worker was within the scope and course of his or her employment at the time of the injury.  A mental injury, like post-traumatic stress disorder (PTSD), anxiety or depression, on the other hand, must be due to “abnormal working conditions” to be compensable (unless resulting from a physical injury).

It is the interpretation of this phrase, “abnormal working conditions,” upon which such a case turns.  As the court decisions have taught us, that phrase is very fact specific.