Pennsylvania Workers’ Compensation Lawyer Blog

An often litigated provision within the Pennsylvania Workers’ Compensation Act (Act) is the 1996 addition, which provides workers’ comp insurance carriers with an ability to change “total” disability status to that of “partial” disability. This is known as the Impairment Rating Evaluation (IRE) process. The significance of such a change is dramatic – while there is no limit on the duration an injured worker can receive “total” disability benefits in PA, “partial” disability benefits can be received for a maximum of 500 weeks. Since this is such a frequent topic we see in the Courts, and in practice, we have a page on our website dedicated entirely to the IRE process. This area is also a frequent topic of our blog posts.

If the IRE is requested within 60 days of the injured worker reaching 104 weeks of total disability, the workers’ compensation insurance company can change the status of benefits automatically, simply by filing a form (provided, as discussed on our website, the whole body impairment rating is less than 50%). If the insurance carrier files the request before the 104 weeks expire, a resulting IRE is not valid. This can, and has, made for some very technical litigated cases.

As an example, the Commonwealth Court of Pennsylvania recently addressed what “requested” means in this context, in the case of The Village at Palmerton Assisted Living v. Workers’ Compensation Appeal Board (Kilgallon). Given the complex nature of the case, a careful review of the facts is necessary.

We have been following the case of School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton) through the Commonwealth Court of Pennsylvania decision, and into the Supreme Court of PA. As you might recall, this case deals with whether a Notice of Ability to Return to Work must be issued in the context of a Claim Petition. Pennsylvania’s Supreme Court has now issued a decision in this matter, clarifying the status.

For background, to recap things, this case featured a teacher who injured her vocal cord and aggravated her preexisting lupus (remember that an aggravation of a preexisting injury is a “new injury” under PA workers’ comp, and is completely compensable). After the injury, but before she filed a Claim Petition, a job was offered in a class/school where she would not be exposed to the same stress level (which had led to her injuries). She did not go back to work, and a few months later filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended benefits as of the date the new job was offered. The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the WCJ, finding that benefits should not have been suspended. Commonwealth Court of Pennsylvania then reversed the WCAB, and said the WCJ was correct in suspending the benefits.

As we have discussed in the past, an injured worker in Pennsylvania is not eligible for workers’ compensation wage loss benefits if he or she is “incarcerated after a conviction.” That same phrase also appears in the Unemployment Compensation Law, for folks who lose their jobs through no fault of their own (having nothing to do with work injuries).

This begs the question of what is meant by “incarceration.” For instance, is “house arrest” incarceration? Though it would seem not, since the injured worker is available to work, the Commonwealth Court of Pennsylvania has held that “house arrest” is indeed “incarceration” to make an injured worker ineligible for workers’ compensation wage loss benefits. This exact issue has not been addressed by the Supreme Court of Pennsylvania.

Interestingly enough, however, the Supreme Court of Pennsylvania recently addressed this issue as it arose under the Unemployment Compensation Law, in the matter of Chamberlain v. Unemployment Compensation Board of Review. In this decision, the Court found that “house arrest” is NOT the same thing as “incarceration,” and allowed the claimant in that case to receive unemployment compensation benefits. Specifically, the Court stated:

Often, workers’ compensation cases that are litigated through Pennsylvania’s appellate courts have multiple issues. We bloggers always appreciate when the courts address multiple issues in a single decision. It lets us discuss more than one issue in a blog entry, making a more efficient experience for our loyal readers. A recent decision from the Commonwealth Court of Pennsylvania touched on both loss of use of a body part (known as a “specific loss”) and credit against workers’ compensation benefits for Social Security Retirement benefits.

In January, 2010, a decision was issued in Pocono Mountain School District v. Workers’ Compensation Appeal Board (Easterling). Here, the injured worker slipped and fell on ice, and struck his head, left shoulder and arm at work. The workers’ compensation insurance carrier only accepted “left shoulder and lumbosacral spine sprains.” Since the injury was more extensive than that legally recognized, the injured worker filed a Petition to Review, to expand the injury to include a head injury, complex regional pain syndrome (CRPS, formerly known also as “reflex sympathetic dystrophy” or RSD)) of the upper left extremity, left upper extremity cubital tunnel syndrome and loss of use of his left hand.

Prior to the injury, he had applied for Social Security Retirement (SSR, otherwise known, though never by us, as “old age”) benefits. The first check for the SSR benefits came after the injury. This distinction is important, since the workers’ comp insurance company is entitled to a credit of 50% of the SSR benefits received by an injured worker, UNLESS the receipt of benefits predated the work injury (in which case there is no credit at all). Seeking this credit, the workers’ compensation insurer filed a Petition for Modification.

There is no question that an aggravation of a pre-existing condition is considered a new injury in Pennsylvania, and can be the basis for an award of workers’ comp benefits. However, a dispute which can arise in these kinds of cases is whether ongoing effects or limitations are from the pre-existing condition alone, or from the consequences of the work injury.

In 1998, the Supreme Court of Pennsylvania issued a decision in the matter of Bethlehem Steel Corporation v. Workmen’s Compensation Appeal Board (Baxter). Here, the injured worker had been previously diagnosed with asthma. Then, while exposed to paint fumes at work, he had an aggravation of the asthma. Once he was away from the paint fumes, his lung functions returned to normal and he had no restriction or limitation.

The injured worker was awarded benefits, but only until he had returned to his “baseline” medical condition (as he had been before the work-related aggravation). At that point, said the Court, he became ineligible for workers’ compensation benefits (even though he remained unable to go back to that workplace).