Pennsylvania Workers’ Compensation Lawyer Blog

Often in a PA workers’ compensation case, the burden of proof is a critical issue. For example, the burden of proof faced by an injured worker in litigation of a Claim Petition is very different from that in a Reinstatement Petition. Unfortunately, however, there are times when an injured worker can win the battle (and have an appellate court agree an incorrect burden was placed) but lose the war (the appellate court then finding the injured worker still loses).

Such was the situation in Furnari v. Workers’ Compensation Appeal Board (Temple Inland). Here, the injured worker tore a tendon in his knee while doing his job, and required surgery on the knee. The workers’ compensation insurance carrier issued a medical-only Notice of Compensation Payable [NCP] (accepting the injury, but not disability), but the employer continued to pay the injured worker his regular salary (salary continuation). The injured worker then went back to a modified duty job for about five months before resigning.

Subsequently, the injured worker filed a Petition for Reinstatement, seeking ongoing workers’ compensation benefits. This was amended by the injured worker during the litigation to include a Claim Petition. The Workers’ Compensation Judge (WCJ) found that the combination of the medical-only NCP and the payment of salary continuation acted as if there was a full NCP, so the proper burden of proof was only that of a Petition for Reinstatement. The injured worker need only show that his loss in earnings was related to his injury. Unfortunately for the injured worker, the WCJ ultimately concluded that the injured worker failed to show that his injury worsened or that he was not capable of the modified duty job that remained available to him. As such, the Reinstatement Petition was denied.

We have previously discussed the Pennsylvania Uninsured Employers Guaranty Fund (UEGF) and how that fund fills in when an employee is injured while working for an employer who failed to carry PA workers’ compensation insurance coverage. The UEGF is certainly an improvement over the way things used to be (when being injured working for an uninsured employer often resulted in no benefits at all), though there is a long way to go before the UEGF could be said to mirror the “remedial” nature of the Pennsylvania Workers’ Compensation Act, which is designed to benefit the injured worker. A recent decision of the Commonweal Court of Pennsylvania does take a step in the right direction.

One of the problems with the UEGF, as it currently functions, is that it operates, in some ways, above the law. For example, a workers’ compensation insurance carrier in PA can be assessed penalties if it violates the Pennsylvania Workers’ Compensation Act; the UEGF is not subject to penalties for any reason. A regular insurance company can be assessed counsel fees if it presents an “unreasonable contest;” again, the UEGF is immune to this risk. We have wondered where the lines would be drawn to hold the UEGF to any responsibility.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal

We have previously discussed the concept of an Impairment Rating Evaluation (IRE) in Pennsylvania Workers’ Compensation. By now, our readers know that the IRE is a tool the workers’ comp insurance carrier can use to limit benefits in most cases to a maximum of around 11 and a half years. While the IRE is not designed to lead to a high burden for the insurance company, their success is not guaranteed.

Take, for example, the recent case of Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), decided by the Commonwealth Court of Pennsylvania. Here, the claimant hurt his neck and back in a work-related car accident, and began receiving workers’ compensation benefits.

After the injured worker received two years of total disability benefits, the comp insurance carrier obtained an IRE, which found that he had reached maximum medical improvement (MMI) and had a whole person impairment rating of 16%. Since this is lower than the ridiculously high standard of 50%, the insurance company filed a Petition to Modify benefits, changing the status from “total” to “partial,” and starting the clock on the entitlement to 500 weeks of partial disability benefits (the amount of the benefit does not change, just the duration). This IRE was performed by a physician approved by, and selected by, the PA Bureau of Workers’ Compensation (not the insurance carrier).

As a practical matter, a doctor is rarely present the instant a person gets injured at work. Similarly, the way litigation is done, a doctor has to testify while the injured worker is still disabled from work. Yet, despite these limitations, doctors routinely testify that the work injury led to the disability, and that the disability continues. But, of course, there are limits on how distant a doctor can be from the time at issue.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald), the Commonwealth Court of Pennsylvania dealt with this issue. Here, a laborer fell from a roof while tearing off materials and suffered a skull fracture and an injury to his left eye. Since the employer had no Pennsylvania workers’ compensation insurance, a Claim Petition was filed against the PA Uninsured Employers Guaranty Fund (UEGF).

The injured worker was first seen by his doctor two months after the injury, and was only treated by that doctor for about six months. After that last date, the injured worker failed to appear for any more appointments. At the time of the last appointment, the doctor theorized that the injured worker would continue to improve and may be able to return to work in six weeks, pending confirmation of the improvement. The Workers’ Compensation Judge (WCJ) found the testimony of the injured worker, and his doctor, to be credible, and granted the UEGF Claim Petition, awarding ongoing total disability benefits. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

We have discussed Utilization Review in our Blog on several occasions, many times dealing with whether “palliative” treatment (that treatment which relieves pain, but does not change or cure the condition) is reasonable and necessary. This issue, and the timing within which a Utilization Review Determination must be issued, was recently addressed by the Commonwealth Court of Pennsylvania.

In Womack v. Workers’ Compensation Appeal Board (The School District of Philadelphia), the Commonwealth Court of Pennsylvania affirmed a decision by a Workers’ Compensation Judge (WCJ) finding the chiropractic treatment not reasonable or necessary.

The injured worker suffered herniated discs in the lumbar spine, right medial meniscal