Pennsylvania Workers’ Compensation Lawyer Blog

The primary intention of the Pennsylvania Workers’ Compensation Act, back when it was enacted in 1915, was to create an income maintenance program. It was designed to achieve a humanitarian purpose, to benefit the injured worker in PA. Sometimes, the amount or frequency of workers’ comp benefits is called into question, and it is these basic ideas that must be considered in such a situation.

In Fields v. Workers’ Compensation Appeal Board (City of Philadelphia), the injured worker, a prison guard, suffered a very severe injury to her left shoulder, arm,

wrist and hand while restraining an inmate. Through litigation of a Review Petition, the injury was expanded to include a partial tear of the left rotator cuff, a left brachial plexus traction injury and reflex sympathetic dystrophy [RSD] (now known as Complex Regional Pain Syndrome [CRPS] of the left upper extremity.

We often see cases addressing whether a work injury in Pennsylvania was suffered while the injured worker was in the “scope and course” of his or her job. Usually, this situation falls into one of two categories – either whether it is part of the commute to or from work, or whether it is taking a break during the work day. Each of these situations has been addressed by the PA appellate courts, and by this blog, on many occasions. One thing all of these cases have in common is how specific each case, and each decision, is to the facts of the individual case.

A nice example of how the cases are so specific to the facts of each injury can be seen in 1912 Hoover House Restaurant v. Workers’ Compensation Appeal Board (Soverns). Here, a cook was taking a “smoke break.” The employer had put an ashtray outside the restaurant for these smoke breaks, and the injured worker was within a few feet of that ashtray when he was hurt. The employer allowed these breaks, and had no specific policy regarding the details. When taking his break, the father of a co-employee brought his dog over. The injured worker carefully offered his hand to the dog, and then petted the dog. Unfortunately, the dog proceeded to bite the injured worker’s face, causing permanent facial injury.

After a Claim Petition was litigated, the Workers’ Compensation Judge (WCJ) granted the Petition, finding that the injured worker was in the scope and course of his job at the time of the injury. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB) [after being first sent back to the WCJ for a clarification on the wages earned by the injured worker].

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).