Pennsylvania Workers’ Compensation Lawyer Blog

We have discussed the concept of “Statutory Employer” on this blog in the past. This is something that happens when the direct employer of an injured worker lacks insurance. Most often this is seen in the construction world, where a subcontractor failed to carry insurance, so the general contractor (who more often has workers’ compensation insurance) is seen as the statutory employer, to obtain insurance coverage for the work injury. Though the use of the concept is probably lesser now, given the existence of the Uninsured Employers’ Guaranty Fund (UEGF), this is still an area of law we see somewhat regularly.

An interesting twist in such a case was seen in the recent decision from the Commonwealth Court of Pennsylvania in Mark Zwick v. Workers’ Compensation Appeal Board (Popchocoj). Here, the issue was more whether the “statutory employer” was an employer at all.

The injured worker was a general laborer, who suffered amputations of his right pinky finger and right thumb, and a laceration of his right hand, when an electric saw kicked back suddenly at a house renovation site. It was a man named Adarlan Rodrigues who hired the injured worker, set his pay and hours and directed his activities at the job site. Unfortunately, Mr. Rodrigues did not have workers’ compensation insurance.

We have previously discussed that a mental injury (resulting from a non-physical situation) in Pennsylvania must be the result of “abnormal working conditions” to create an entitlement to workers’ compensation benefits. The aspect typically on appeal is whether working conditions were actually “abnormal.” In a recent decision by the Commonwealth Court of Pennsylvania, however, the issue was actually whether the injured worker had presented sufficient evidence to prove the medical aspect of the case.

In the matter of Frog, Switch & Manufacturing Company v. Workers’ Compensation Appeal Board (Johnson), the injured worker was victimized by racial and gender harassment (for which a complaint was filed with the Pennsylvania Human Relations Commission [PHRC]). From this harassment, she developed depression. The injured worker filed a Claim Petition, alleging a psychological injury from abnormal working conditions.

The injured worker testified, and also presented the testimony of a co-worker. No testimony was taken from any medical providers. Instead, the injured worker presented a few treatment notes from her treating doctors. After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

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.