Pennsylvania Workers’ Compensation Lawyer Blog

We have previously discussed Impairment Rating Evaluations (IREs), the tool insurance carriers use to change the status of injured workers in PA from total to partial disability. Unless strict time periods are obeyed, the insurance carrier has the burden to file a Petition for Modification, and prove the injured worker has a whole body impairment (WBI) of less than 50%, to get this change of status.

Recently, the Commonwealth Court of Pennsylvania addressed the issue of how an injured worker can defend such a petition. In Commonwealth of Pennsylvania/DPW – Loysville Youth Center v. Workers’ Compensation Appeal Board (Slessler), the IRE physician found a WBI of 8%. The injured worker took the deposition of his psychologist, since part of the injury was emotional. This psychologist was licensed, but not licensed to practice in Pennsylvania. Also, the psychologist admitted he did not meet the requirements issued by the Bureau of Workers’ Compensation for a physician certified to perform IREs in PA.

After hearing the testimony and reviewing the evidence, the Workers’ Compensation Judge (WCJ) denied the Petition for Modification. The WCJ found the psychologist credible, and also found him competent, despite his inability to meet the certification requirements. Specifically, the WCJ found this to be an issue regarding the weight, rather than the admissibility, to be given to the opinion. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB). [Other Petitions were also litigated, but none are relevant to the appeal].

On many occasions, we have discussed whether an injury was suffered in the “scope and course” of employment, thus falling under the coverage of the Pennsylvania Workers’ Compensation Act. Ordinarily, the commute to or from the workplace is not within the scope and course of the job (known as the “coming and going rule”). Like any good rule, however, there are exceptions. Recently, the Commonwealth Court of Pennsylvania addressed one of these exceptions to the rule.

In Simko v. Workers’ Compensation Appeal Board (United States Steel Corporation-Edgar Thomson Works), the injured worker was coming to a monthly safety meeting when he was involved in a serious car accident (talk about irony). As a result of the car accident, he sustained a brain injury. The issue in the case was whether this was merely on his commute to work, and not eligible for workers’ compensation benefits, or whether this was a “special mission,” one of the exceptions to the coming and going rule.

As we have discussed before, the Workers’ Compensation Judge (WCJ) is the ultimate Finder of Fact. Here, the WCJ found that attending the safety meeting was a special mission, and furthering the affairs of the employer, and that, then, the injured worker was entitled to workers’ comp benefits. The Claim Petition was granted. This was appealed to the Workers’ Compensation Appeal Board (WCAB), who reversed, finding that this was merely the injured worker commuting to work.

When an injured worker in Pennsylvania goes back to work, at least with restrictions, he or she has some protection if the work comes to an end. An issue recently addressed by the Commonwealth Court of PA is whether the job one looks at (to determine whether there are physical restrictions) is the job one held at the time of the injury, or the one held when the job is lost.

In Dougherty v. Workers’ Compensation Appeal Board (QVC, Inc.), the injured worker was employed as a video producer who suffered a tear of his Achilles tendon. After the injury, he was unable to physically do the regular duties of a video producer, but his employer took him back on a restricted basis, then reassigned him to a writer-producer position (which had much less physical demand). Unfortunately, the injured worker did not have the requisite skills to do the work of a writer-producer, and he was terminated for unsatisfactory work performance.

The injured worker filed a Petition for Reinstatement, which was litigated before a Workers’ Compensation Judge (WCJ). After hearing the evidence, the WCJ denied the Reinstatement Petition. Though the WCJ found that Claimant remained physically incapable of performing the pre-injury job (video producer), the WCJ determined that he was physically able to do the writer-producer job, and the reason he was again losing wages was not due to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

We have often discussed the right of an injured worker in Pennsylvania to have medical treatment for his or her work injury. The general rule is that medical treatment is covered by the Pennsylvania Workers’ Compensation Act if such treatment is not only reasonable and necessary, but is also related to the work injury. Sometimes, this comes down to who prescribed or provided the treatment, rather than the treatment itself.

For example, the Commonwealth Court of Pennsylvania recently issued a decision in the matter of Babu v. Workers’ Compensation Appeal Board (Temple Continuing Care Center). Here, a licensed Pennsylvania nurse hurt her neck and shoulders. She obtained some “Ayurvedic” treatment in her native India (the Court described this as a form of holistic alternative medicine traditional in India). The case was settled, expect for whether the bills for this treatment should be paid.

After hearing the evidence, the Workers’ Compensation Judge (WCJ), citing the case of Boleratz v. Workers’ Compensation Appeal Board (Airgas Inc.), determined the Ayurvedic treatment in this case was not compensable. Specifically, the WCJ found that the injured worker failed to prove the treatment was rendered, prescribed or supervised by a licensed practitioner. Additionally, the records offered by the injured worker did not show what treatment was provided, or to what part of the body the treatment was given (making it impossible to see if the treatment was actually even related to the injury). This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

A frequent topic on our blog is whether a work injury has been suffered in Pennsylvania while the injured worker is in the “scope and course” of his or her employment. These issues often involve an injury taking place on the commute to or from work.

As a general rule, an injury taking place during the commute to or from work is not within the scope and course of employment, and, again generally, workers’ compensation benefits are not available in that situation. However, as with many rules, there are exceptions. These exceptions were at the heart of the case in Holler v. Workers’ Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.)

In this case, the injured worker was a cable technician. He had a company vehicle, which was limited to company usage. The normal routine would be for him to check in at the main office each morning, get his assignments and equipment, and then spend the vast majority of his day on the road. On the fateful day, on his way in to the office, the injured worker was involved in a motor vehicle accident and was badly hurt.