Pennsylvania Workers’ Compensation Lawyer Blog

We have discussed the Uninsured Employers Guaranty Fund (UEGF) on this blog before. This is the Fund that was created in 2007 to provide benefits to injured workers when an employer fails to carry Pennsylvania workers’ compensation insurance (in direct violation of PA law). Though the UEGF has now been around for more than eight years, there have been some unanswered questions about actions against the UEGF; with a recent decision from the Commonwealth Court of Pennsylvania, however, two of these questions have now been answered.

In the matter of Jose Osorio Lozado v. Workers’ Compensation Appeal Board (Dependable Concrete Work and Uninsured Employers Guaranty Fund), the Commonwealth Court of PA had to address whether filing a civil action for damages, or providing late notice to the UEGF, constituted a complete bar to recovery against the UEGF. In a well-reasoned and logical decision, the Court held neither of these things would bar the injured worker from receiving the benefits he needed.

Once the injured worker in this matter determined that his employer failed to carry Pennsylvania workers’ compensation insurance, he (through his attorneys) knew that he had the choice of whether to proceed through the PA workers’ compensation system or sue his employer for negligence in the State Court System (this is not typically a choice for an injured worker – the protection employers ordinarily receive from civil liability is lost by the failure to carry insurance). Since the injured worker was unsure whether he would be able to receive benefits in the PA workers’ comp system (given that the UEGF contests every claim), civil suit was filed merely to protect the “statute of limitations.” The attorney for the injured worker specifically asked the civil court to hold the suit pending the outcome for the workers’ comp case.

One of the basic concepts of a workers’ compensation case in Pennsylvania, is that the injured worker actually be an employee. A person truly working as an “independent contractor” is not covered by the Pennsylvania Workers’ Compensation Act (Act). How someone becomes an “independent contractor,” at least for PA workers’ compensation purposes in the construction industry, was clarified a few years ago by the Pennsylvania Legislature.

As you may recall from our blog posting back in 2011, the Construction Workplace Misclassification Act (CWMA) sets requirements which must be met for an injured worker to be seen as an “independent contractor” and be excluded from coverage by the Act. These requirements are pretty strict, to make certain that only those individuals who should actually lose protection under the Act are those who should correctly do so.

Recently, the Commonwealth Court of PA addressed how strictly these requirements under the CWMA will be read. The answer? Pretty darn strict. The case at issue is Scott Lee Staron, d/b/a Lee’s Metal Roof Coatings & Painting v. Workers’ Compensation Appeal Board (Farrier).

Since coming into the Pennsylvania Workers’ Compensation Act (Act) in the 1996 amendments, the Impairment Rating Evaluation (IRE) is here to stay. This is an important tool available to the workers’ comp insurance carriers in PA, and can be used to contain exposure on a file. An entire page devoted just to the IRE process is on the website of Brilliant & Neiman LLC.

Recently, the Commonwealth Court of PA addressed the method to select a doctor to perform an IRE in Logue v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania). The Act states, in relevant part of Section 306(a.2)(1), that the doctor to implement an IRE is to be ” . . . chosen by agreement of the parties, or as designated by the department . . . ” The Court was called upon to determine whether the workers’ compensation insurance carrier has the choice between those two options.

The injured worker sustained a strain of his wrist. After he had received workers’ compensation total disability benefits for more than 104 weeks, the workers’ comp insurance carrier filed a Request for Designation of IRE Physician with the Bureau of Workers’ Compensation. The injured worker refused to attend the IRE, believing that the statute cited above meant that the insurance carrier must first seek agreement from the injured worker on an IRE physician, before requesting that the Bureau designate the physician.

As a general rule, once workers’ compensation benefits are awarded to an injured worker in Pennsylvania, the insurance carrier cannot stop paying those benefits without permission from either the injured worker (signing a document such as a Supplemental Agreement or a Final Receipt) or from a Workers’ Compensation Judge (WCJ). Though there are of course exceptions, these are few and far between . . . we think.

A recent decision from the Commonwealth Court of Pennsylvania in Gelvin v. Workers’ Compensation Appeal Board (Pennsylvania State Police) has us wondering a bit. Here, the injured worker, a former trooper for the Pennsylvania State Police, was receiving workers’ compensation benefits for post-traumatic stress disorder as of 2006 (though benefits did not begin until a few years later, due to litigation of the entitlement to benefits). While receiving the workers’ comp benefits, she began also receiving a disability pension benefit from the Pennsylvania State Employees’ Retirement System (SERS) on February 29, 2012. The disability pension was retroactive to February 2011. (Both benefits can be received at the same time, the issue is whether there is a credit for the receipt of the pension benefits against the workers’ compensation benefits).

The Defendant Employer sent “verification forms,” including Employee Report of Benefits Form (LIBC-756) in December of 2010, December of 2011, and March of 2012. The injured worker declared the pension benefits on the form in March, 2012, since that is the first LIBC-756 she received after the receipt of pension benefits began. In response the Defendant Employer issued a Notice of Workers’ Compensation Benefit Offset on March 27, 2012, which purported to suspend her workers’ comp benefits from April 21, 2012 until March 5, 2013, to recoup the credit the carrier was due for the retroactive pension benefits.

Sometimes the issue is a workers’ compensation case in Pennsylvania is a very straightforward one. For example, is interest on past due workers’ compensation benefits in PA to be calculated using simple interest or compound interest?

This was the issue faced by the Commonwealth Court of Pennsylvania in Tobler v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, Inc.). Here, the injured worker won a petition to reinstate workers’ comp benefits for damage to her hand. This involved a complicated litigation, so by the time the injured worker prevailed, she was owed several years of benefits.

As background, Section 406.1(a) of the Pennsylvania Workers’ Compensation Act (Act) says, “Interest shall accrue on all due and unpaid compensation at the rate of ten percentum per annum.” The Act does not specify whether that interest is simple or compound. In the past, the Pennsylvania Bureau of Workers’ Compensation had an interest calculator on their website, so the “correct” interest could be calculated by either party, removing most disputes. Since there is now no “official” method, this issue was inevitable.

One of the more common areas of the Pennsylvania Workers’ Compensation Act (Act) seen in appellate cases is the issue of whether an injured worker was in the scope and course of his or her employment at the time of the injury. This is often a very fact-specific inquiry. Recently, the Commonwealth Court of Pennsylvania addressed whether an injured worker abandoned his work duties at the time of the injury.

The facts of the case in Pipeline Systems, Inc. and Continental Western Insurance Company v. Workers’ Compensation Appeal Board (Pounds) are not in dispute. The injured worker was doing his job installing pipeline when he heard cries of help from a pit about 30 feet away. He rushed over to the pit where an employee of a different company had fallen. In an attempt to rescue the fallen employee, the injured worker descended into the pit. As the injured worker was climbing a ladder out of the pit, he was overcome by methane fumes and fell, hurting his left leg, knee, foot, ribs, back and lungs.

The workers’ comp insurance carrier denied the claim, alleging that the injured worker had removed himself from the scope and course of his employment, by undertaking the rescue effort (a real class act, the insurance industry). In litigating the Claim Petition, the Workers’ Compensation Judge (WCJ) granted the Petition, despite finding that “Claimant was not required to be at, in or near the pit into which he fell, and that the person he assisted was not a co-worker, and that [Employer] was not responsible for the pit or work being done in the pit on the day Claimant was injured.” The granting of the Claim Petition was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Once PA workers’ compensation benefits are modified or suspended, such as by the injured worker resuming gainful employment, the injured worker has at least 500 weeks within which he or she can reinstate total disability benefits (if the disability related to the injury recurs). If the benefits had been modified (ie: not suspended), and partial disability payments continue to the end of the 500 week period, the time within which the injured worker can reinstate is extended to three years after the date of the last payment within those 500 weeks. But, like every rule, odd facts can create an exception.

The Commonwealth Court of Pennsylvania recently dealt with such a situation in Kane v. Workers’ Compensation Appeal Board (Glenshaw Glass). As so often happens in these cases, we are dealing with multiple injuries. We have a 1991 injury to the right shoulder, for which benefits were suspended. In 1995, the injured worker hurt his left shoulder, had two operations, and ultimately went back to modified duty work. In 1999, the injured worker suffered another injury to his right shoulder, and this was found by the Workers’ Compensation Judge (WCJ) to be an “aggravation,” not a “recurrence,” so it was found to be a new injury. Benefits were suspended August 2, 1999, since he went back to modified duty work after two surgeries on that shoulder. He then continued to work at that modified duty job until the employer went out of business in November, 2004.

The workers’ comp insurance carrier reinstated total disability benefits for the 1995 left shoulder injury at that point. This continued until 2010, when a settlement (“Compromise & Release”) was reached with regard to the 1995 work injury. Following the settlement, the injured worker filed a Petition to Reinstate, based on the 1999 right shoulder injury. Notably, a Petition for Reinstatement for the 1999 injury was denied prior to the 1995 injury being settled, since total disability benefits were already being paid based on the 1995 injury.

******************REVERSED BY SUPREME COURT OF PENNSYLVANIA – SEE BLOG ENTRY 1/20/17********************

One of the big changes to the Pennsylvania Workers’ Compensation Act in the overhaul of 1996 was the introduction of the Impairment Rating Evaluation (IRE). This has become such a significant part of the Act that our website has an entire section devoted to the IRE process. In essence, an IRE allows the workers’ comp insurance carrier to change the status of an injured worker from “total” disability (for which there is no time limit) to “partial” disability (for which there is a maximum of 500 weeks). But what if the IRE fails to include the entire work injury? A troubling recent decision by the Commonwealth Court of Pennsylvania holds that the IRE remains valid, even though it failed to consider the entire work injury.

In the matter of Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.), the employee suffered electrical burns and nerve injury to both of his hands. After he received 104 weeks of total disability benefits, the workers’ compensation insurance carrier filed for an IRE. The resulting evaluation concluded there was a 6% whole body impairment. Since the IRE was performed within 60 days of the expiration of that 104 weeks, the change to partial disability status was automatic. The injured worker, however, filed a challenge to this change, a Petition to Review Compensation Benefit Offset, alleging that his work injury included more than just that to his hands.

We rarely discuss Pennsylvania appellate cases other than those directly involving workers’ compensation. However, a recent unemployment compensation case touches on the workers’ compensation process, and may be of interest to our readers.

The case is Paolucci v. Unemployment Compensation Board of Review, recently decided by the Commonwealth Court of Pennsylvania. To understand the case, and its impact on the workers’ compensation system, some background is necessary. In July, 2010, the injured worker suffered a concussion while working for Wal-Mart. The injury was accepted by Notice of Compensation Payable, and workers’ compensation benefits began. An Independent Medical Examination (IME; to the extent one considers these “independent”) found the injured worker able to go back to work; the treating physicians disagreed. The attorney for the injured worker told Wal-Mart that all communication with the injured worker was to be through the attorney’s office. Some type of job offer was apparently made, but the injured worker did not go back to work. The workers’ comp case then settled.

After the settlement, the injured worker filed for unemployment compensation benefits (interestingly, it is common practice for the employer/insurance carrier to require a voluntary resignation as part of a workers’ compensation resolution; that was not done in this case). An unemployment compensation referee awarded unemployment compensation benefits.