Pennsylvania Workers’ Compensation Lawyer Blog

To have a workers’ compensation case in Pennsylvania, one must suffer an injury while in the scope and course of employment. That phrase, “scope and course,” is not specifically stated in the Pennsylvania Workers’ Compensation Act, but is a creation of courts, over the years, interpreting the Act. We have dealt with these issues many times, often with an injury which occurs while commuting to or from work. But, what if the injury happens after someone is no longer even employed?

The Commonwealth Court of Pennsylvania addressed this issue recently in Marazas v. Workers’ Compensation Appeal Board (Vitas Healthcare Corporation). Here, the injured worker quit his job after a dispute with his manager regarding an assignment. The injured worker handed over his keys and phone, and the manager told the injured worker he had to remove his personal belongings from the employer’s truck. According to employer’s policy, the manager escorted Claimant to the truck. While in this process, the injured worker tripped over a pallet jack and fell, hurting his left ankle, left knee, and upper, middle and lower back.

Believing he was not employed at that point, the injured worker filed a civil suit against the employer for his injuries. The employer defended the civil suit by arguing, in formal court pleadings, that the injured worker was in the scope of employment at the time of his injury, and therefore, workers’ compensation was his exclusive remedy. Based on this pleading, the injured worker withdrew his civil action and filed a Claim Petition in the workers’ compensation system.

Several years ago, injured workers in PA were benefited by the decision of the Supreme Court of Pennsylvania in the case of Lewis v. Workers’ Compensation Appeal Board. This case held that a workers’ comp insurance carrier in PA had to prove there was a change of condition of the injured worker, after the insurance company had lost a Petition for Termination, before the insurance carrier could be successful on another Petition for Termination. This was designed to curb the malicious practice in the insurance industry of filing petitions one after the other, without any real basis.

This issue was recently addressed by the Commonwealth Court of Pennsylvania, but here it was a Petition for Modification which followed the Petition for Termination. In Simmons v. Workers’ Compensation Appeal Board (Powertrack International), the injured worker suffered a closed head injury resulting in post-concussion syndrome, in 2001. Two Petitions for Termination were denied by Workers’ Compensation Judges (WCJs) in the ensuing years.

Trying a different strategy, the workers’ comp insurance carrier filed a Petition for Modification, based on a Labor Market Survey (LMS). [We have discussed the LMS process previously, and relayed our dissatisfaction with using representative, hypothetical jobs to stop or reduce the very real money received by injured workers in PA]. This time the insurance company was successful, and the WCJ found the experts offered by the insurance carrier (medical and vocational) more credible than those offered by the injured worker. As a result, the WCJ granted the Petition for Modification, and ordered the workers’ compensation benefits modified, based on the highest paying job in the LMS. This was affirmed by the Workers’ Compensation Appeal Board (WCAB) on appeal.

As we have discussed in the past, Workers’ Compensation Judges (WCJs) in PA have the ultimate say on which witnesses are credible and which are not. Upon appeal, these determinations cannot be challenged. Instead, appellate courts in Pennsylvania can only review whether there has been an error of law, or whether the WCJ made a “reasoned decision.”

What constitutes a “reasoned decision” is difficult to put into an exact definition (I am reminded of the old definition of pornography as stated by Supreme Court Justice, Potter Stewart, “I know it when I see it”). Generally, it appears a “reasoned decision” is one which provides enough information for an appellate review. While most arguments challenging whether a WCJ’s decision is a “reasoned” one fail, some do succeed.

Recently, the Commonwealth Court of Pennsylvania issued a decision in one of these cases, Cucchi v. Workers’ Compensation Appeal Board (Robert Cucchi Painting, Inc.). Here, the injured worker suffered severe trauma, including lumbar, thoracic, and rib fractures, lung pneumothorax, and liver lacerations. After some period of time, the injured worker settled the wage loss (called the “indemnity”) aspect of the case, but left the case open for medical treatment. As so often happens, the workers’ comp insurance carrier then challenged future treatment by filing for Utilization Review.

We watched with great interest as the Pennsylvania Supreme Court reviewed the case of Cruz v. Workers’ Compensation Appeal Board (Kennett Square Specialties). This case is very important to those who practice, or are involved, in the Pennsylvania workers’ comp system.

For those who do not recall, this case involves an injured worker who refused to answer questions regarding his United States’ citizenship status, invoking his Fifth Amendment right against self-incrimination. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but then suspended benefits, based solely on a negative inference, from the injured worker’s refusal to answer the questions. The Workers’ Compensation Appeal Board (WCAB) reversed the suspension, saying that the negative inference, by itself, was insufficient to support a suspension of benefits. Upon appeal, the Commonwealth Court of Pennsylvania agreed, and affirmed the decision rendered by the WCAB.

The Supreme Court of Pennsylvania has now rendered its decision, affirming the opinion of the Commonwealth Court. Rejecting the argument that part of an injured worker’s burden of proof is to show eligibility to work in the United States, the Court found that citizenship status is instead a defense offered by the workers’ comp insurance carrier. In a Claim Petition, according to the Court, the burden faced by the injured worker is to simply prove two things: “(1) he or she was injured while in the course of employment, and (2) the injury resulted in a loss of earning power.” As such, the insurance carrier is the party bearing the burden of proof on whether the injured worker can legally work in the United States.

Utilization Review is the process through which either party, though usually the workers’ compensation insurance carrier, can challenge whether medical treatment is reasonable and necessary. We have addressed this topic on several occasions. When a Utilization Review Determination is received, the party who lost can appeal (by filing a Petition for Review of Utilization Review Determination), and then the matter is heard before a Workers’ Compensation Judge (WCJ).

What if, though, neither Claimant nor Claimant’s attorney are even aware of the Utilization Review Determination? Certainly the insurance carrier cannot use the Determination to not pay for treatment, despite not providing a copy, right? Apparently they can, says Commonwealth Court of Pennsylvania.

In Marek v. Workers’ Compensation Appeal Board (Logistics Express, Inc.), Claimant and Claimant’s attorney only became aware of the Utilization Review Determination when payment for medications was allegedly denied based on a Utilization Review Determination. Claimant’s attorney then even obtained records from the Bureau of Workers’ Compensation, and no Utilization Review Determination was on file. Having no other alternative, Claimant’s attorney filed a Petition for Penalties, for the non-payment of the medications.

We have talked before about the fact that a work injury in PA generally cannot take place during the commute to or from work to be compensable under the Pennsylvania Workers’ Compensation Act. One area where this issue is frequently tested is when an employee is injured in a parking lot. In this kind of case, one must prove that the injured worker is on the premises occupied or under the control of the employer (or upon which the employer’s business or affairs are being carried on), that he or she is required by

the nature of the employment to be present on the employer’s premises, and that he or she sustains an injury caused by the condition of the premises or by operation of the employer’s business or affairs thereon.

For example, the Commonwealth Court of Pennsylvania recently issued a decision in PPL v. Workers’ Compensation Appeal Board (Kloss). Here, the employer offered its employees cheaper parking at one of two parking lots, or offered a similar subsidy for using public transportation. The employer did not own either of the two parking lots, and neither parking lot was restricted to the use of PPL’s employees. The employees of PPL were offered these subsidies, but were not required to accept them, or park in any particular place. Note, however, that PPL did construct a skyway to walk from one of the parking garages to PPL’s building.

Sometimes the dispute in the litigation of a Claim Petition in Pennsylvania is a medical one – whether the injury was caused by the work duties (often seen in a repetitive trauma case, like carpal tunnel syndrome, in a heart attack case, or when degenerative changes are aggravated by work). Other times, though the dispute is whether the injury took place within the “scope and course” of employment. Interestingly, though this is occasionally a threshold issue in a workers’ comp case in PA, the words “scope and course” do not even appear in the Pennsylvania Workers’ Compensation Act – the entire concept of “scope and course” is derived from decisions by the appellate courts in PA.

We have seen cases on this topic when an employee takes a “break” from his or her actual job duties. Another time the concept of scope and course becomes important is when the employee is injury in the employer’s parking lot, before or after his or her shift. Such a case was recently decided by the Commonwealth Court of Pennsylvania in Ace Wire Spring and Form Company v. Workers’ Compensation Appeal Board

(Walshesky).

Whether one was actually in the scope and course of his or her job at the time of a work injury is not an uncommon reason for litigation. This is an issue we have addressed on our blog in the past.

Recently, the Commonwealth Court of Pennsylvania tackled this issue in Wetzel v. Workers’ Compensation Appeal Board (Parkway Service Station). Here, the worker was a manager at a gas station. He had arrived early for his shift to go over a problem with the cash register. Once that issue was completed, the worker was stocking some shelves until his shift was actually started. During this time, a thief came in and attempted to grab money from the register. The worker chased the thief outside. When the thief got in his car, the worker drew a gun and ordered the thief to stop. Unfortunately, the thief elected to instead run over the worker with his car. The worker suffered very serious injuries, which led to his death several months later.

A Claim Petition was filed on behalf of the worker (not a Fatal Claim Petition, because the worker had no wife, children or eligible dependents). The workers’ comp insurance carrier defended the Claim Petition by alleging that carrying a gun was a violation of a positive work order, and also that the worker was no longer in the scope and course of his employment at the time he was injured. The Claim Petition was granted by the Workers’ Compensation Judge (WCJ), but this decision was reversed by the Workers’ Compensation Appeal Board (WCAB), which concluded that attempting to apprehend the thief was outside the scope and course of the job.

We have previously discussed Impairment Rating Evaluations (IREs) in our blog. An IRE is a tool the PA workers’ comp insurance carrier can use to start the clock ticking on the maximum 500 weeks of partial disability available to an injured worker. While an IRE can change the status of an injured worker, from total to partial disability, the amount of the compensation benefits is not changed. A threshold issue in an IRE is whether the injured worker has reached Maximum Medical Improvement (MMI); until this finding is made, an impairment rating cannot be determined.

Since whether the injured worker has reached MMI is a threshold issue for a workers’ comp insurance carrier litigating an IRE in PA, one would think there cannot be a successful IRE without such a finding. One might be wrong.

In Arvilla Oilfield Services, Inc. v. Workers’ Compensation Appeal Board (Carlson), the injured worker suffered a labral tear in his right hip, and also hurt his low back and right shoulder in the accident at work. There was surgery on the hip, followed by a total hip replacement. In addition to other litigation, the workers’ compensation insurance carrier filed a Petition for Modification to change the disability status of the injured worker, based on an IRE.

We previously discussed the decision in Keene v. Workers’ Compensation Appeal Board (Ogden Corp.). Here, the Commonwealth Court of Pennsylvania reversed the Workers’ Compensation Appeal Board (WCAB), which had reversed the Workers’ Compensation Judge (WCJ). Essentially, the Court had found that the workers’ comp insurance carrier had failed to prove the injured worker had “voluntarily removed herself from the labor market.”

Subsequently, after the Supreme Court of Pennsylvania decided the City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) case in 2013, the Supreme Court vacated the decision of the Commonwealth Court in Keene, and remanded back to the Commonwealth Court to reconsider the decision in light of the Robinson case.

Upon remand, in a recent decision, the Commonwealth Court of Pennsylvania again reversed the WCAB, and again found the workers’ comp insurance carrier had failed to prove the injured worker had “voluntarily removed herself from the labor market.” This result is not surprising when one considers that the decision in Robinson also found that the injured worker had not “retired.” Indeed, it seems a bit odd that the Supreme Court even vacated the decision in Keene to begin with – the previous decision seemed perfectly consistent with Robinson anyway. Regardless, the result is again comforting to injured workers, as it is more difficult for a workers’ comp insurance carrier to stop benefits merely by alleging that an injured worker retired or voluntarily left the labor market.