Pennsylvania Workers’ Compensation Lawyer Blog

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).

Since there is no payment for pain and suffering available in PA workers’ compensation cases, the amount an injured worker receives for wage loss benefits is critical. These wage loss benefits are set by the “Average Weekly Wage” (AWW), which is calculated based on formulas found in the Pennsylvania Workers’ Compensation Act (Act).

There is no minimum time an employee must be employed to qualify for workers’ comp benefits in PA, and we have seen unlucky folks injured on their very first day of work. When an injured worker has been with his or her employer for less than 13 weeks (less than a calendar quarter), and the wages of the person are not fixed by the week, there are special rules for determining the AWW. Typically, according to the Act, this would be “the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.” But what if this formula did not fit?

Recently, the Commonwealth Court of Pennsylvania faced such an issue in the matter of Anderson v. Workers’ Compensation Appeal Board (F.O. Transport and Uninsured Employer Guaranty Fund). Here, the injured worker was a truck driver, paid by the load, not by the hour. The employer testified before the Workers’ Compensation Judge (WCJ) that the injured worker would earn $1100 to $1200 per week. The first week, the driver had no runs to make. It was on the third run of the following week that he was injured (a bimalleolar fracture to his ankle). The wages earned appear to have been $270.00 for each of the three loads.

Under Pennsylvania workers’ compensation law, there are three types of mental injuries. The burden of proof is different depending upon which of these types is involved. A mental injury, resulting from a mental incident, known as a “mental/mental claim,” is the one which generates the most litigation. In this type of case, the mental injury must be the result of an “abnormal working condition,” in order to be compensable. If there is a physical aspect of the injury, which then leads to a mental injury, there is less of a burden of proof than in a mental/mental claim.

Recently, in Murphy v. Workers’ Compensation Appeal Board (Ace Check Cashing Inc.), the Commonwealth Court of Pennsylvania dealt with two aspects of mental injuries, including how much of a physical injury is necessary to separate a mental/mental claim from a physical/mental claim.

Here, the injured worker was a general manager for a check cashing company, Upon arriving at work one day, the injured worker was first forced, at gunpoint, to open a safe, then she was hogtied. Her husband was handcuffed by the assailant and left outside. There were security procedures in place, and there had been a few previous robberies over the years. The injured worker had mild bruising from being tied up, and alleged other injuries, including to her neck, shoulders, thoracic spine, wrists, and ankles. An allegation of post-traumatic stress disorder (PTSD) was also made.

****REVERSED BY SUPREME COURT OF PENNSYLVANIA ON MAY 25, 2016 – SEE UPDATED BLOG ENTRY*****

We have addressed the topic of Impairment Rating Evaluations (IREs) many times in this blog; in addition, we have recently created a page on our website explaining the IRE process in greater detail. As we have seen, both the Pennsylvania Workers’ Compensation Act, and the appellate courts, tell us that an insurance carrier who seeks a modification due to an IRE, outside the 60-day window, must prevail in the “traditional administrative process.” As the Supreme Court of Pennsylvania found (in the case of Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures) back in 2005):

” . . . the IRE becomes an item of evidence just as would the results of any medical examination the claimant submitted to at the request of his employer. It is entitled to no more or less weight than the results of any other examination. The physician who performed the IRE is subject to cross-examination, and the WCJ must make appropriate credibility findings related to the IRE and the performing physician.”

When an employee in Pennsylvania suffers a work injury, he or she is entitled to workers’ compensation benefits as long as the wages of the injured worker are reduced due to the effects of the work injury. That certainly sounds like a simple matter, and a reasonable rule, but, as with many things in law, the matter is never as simple as it seems. For example, when is a wage loss “related to the work injury“?

The Commonwealth Court of Pennsylvania recently dealt with this issue in Donahay v. Workers’ Compensation Appeal Board (Skills of Central PA, Inc.). Here, the injured worker was employed as a team leader and a residential services assistant at a group home for mentally challenged adults. In performing her job, she suffered a ruptured right biceps when a resident hung on her arm. Subsequent to the injury, she went back to work, first in a limited role, and then back to her previous duties (though she continued to have physical restrictions, these did not affect her ability to do her job).

After she had gone back to work, her hourly wage was higher than it had been when she was injured. However, due to a reduction in available overtime, her overall earnings were less than her Average Weekly Wage (AWW) when she was injured. She testified that her treating physician had limited her to working a maximum of 45 hours per week. This differed from the testimony of her medical expert, who said that he did not limit the hours she could work in a week. Testimony from fact witnesses presented by the insurance carrier explained that the reduction in overtime was based on budget issues, and applied to all employees.

There have been several entries on our blog dealing with Impairment Rating Evaluations (IREs). Some deal with the procedure used by workers’ comp insurance carriers to turn the IRE into a change in status, from total disability to partial. Others deal with the magic 50% level that an injured worker must reach to avoid this change. A recent case, however, dealt with Maximum Medical Improvement (MMI), a finding that is required before the insurance carrier can even get an IRE.

A basic place to start this conversation would be the meaning of MMI. According to the American Medical Association “Guides to the Evaluation of Permanent Impairment,” the book we use for the IRE process, MMI is defined as:

“a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change . . .”