Pennsylvania Workers’ Compensation Lawyer Blog

We have discussed “Utilization Review” (UR) on this blog many times. This is the tool used by either party (usually the workers’ compensation insurance carrier) to determine whether any particular treatment is “reasonable and necessary.” To start the UR process, the insurance company must agree the treatment is related to the work injury.

The Courts have made clear that treatment need not cure a condition to be “reasonable and necessary,” stating that relieving the symptoms of an injured worker can be enough. The burden to prove treatment is not “reasonable and necessary” remains with the workers’ comp insurance carrier throughout the UR process.

Most often, we see UR in situations involving treatment which is “palliative” (relieving symptoms) rather than “curative.” This could be concerning chiropractic treatment, therapeutic modalities, medications or injections. An interesting facet, discussing massage therapy, was addressed recently by the Commonwealth Court of Pennsylvania in Moran v. Workers’ Compensation Appeal Board (McCarthy Flowers).

Often, a work injury in Pennsylvania is not a sudden occurrence – not a fall, or lifting an item, or a car accident, but instead it is “cumulative trauma,” an injury that takes place over time. Perhaps someone who does data entry or assembly work, doing repetitive motions with their hands, develops carpal tunnel syndrome or ulnar neuropathy. Maybe a construction worker, or factory worker, suffers low back problems from years of heavy lifting. Cumulative trauma injuries can take many forms. The workers’ compensation insurance carriers in PA routinely deny such claims, but, do not be misled, cumulative trauma injuries are every bit as real, and those who suffer them every bit as deserving of benefits, as any other work injury in Pennsylvania.

Which employer is responsible, and the timing of notice are two of the major issues in these cases, and both were present in A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), recently decided by the Commonwealth Court of Pennsylvania. Logic might suggest the responsible employer is simply the last employer, since, with cumulative trauma, every day is a new injury, the date of injury is usually the last day worked. But, as we always see in PA workers’ comp, the easy explanation is not always the correct one.

The injured worker in Verdi was a carpenter. He worked for A & J Builders, Inc. from 2004 to 2007. During this time, he developed right knee pain. By the time he left A & J, the right knee caused him chronic pain. Regardless, he then worked three days in 2008 for another contractor before being laid off. In March, 2009, Claimant saw a new doctor and was diagnosed with “chronic repetitive work-related chondral wear in the patellofemoral joint on his right knee.” This was the first time the injured worker was actually told the problem was related to work. Notice of the work injury was not provided until a Claim Petition was filed in July, 2009 (well over the 120 day period within which notice of a work injury is typically required).

As loyal readers of our blog know, “retirement” is a popular tool being used by the workers’ compensation insurance carriers in Pennsylvania to attack the benefits of injured workers in PA. Indeed, the fact that an injured worker can take such an innocent act as applying for a pension, or Social Security Retirement benefits, and jeopardize their entire workers’ comp case, is a large reason why we encourage all injured workers in Pennsylvania to be represented by experienced workers’ comp attorneys, who, like the attorneys at Brilliant & Neiman LLC, are Certified as Specialists in the Practice of Workers’ Compensation Law.

Today, the Commonwealth Court of Pennsylvania decided the case of Turner v. Workers’ Compensation Appeal Board (City of Pittsburgh), which dealt with this “retirement” issue. Here, the injured worker was a police officer who hurt her neck, left shoulder, back, right wrist, and right knee in a work-related car accident in 1994. The injured worker performed a modified duty job for the City of Pittsburgh until 2003, when the City stopped the modified duty program. At that time, Claimant applied for, and received, a disability pension from the City of Pittsburgh.

The workers’ compensation insurance carrier filed a Petition for Suspension, alleging that the application for this pension meant that the injured worker had voluntarily left the labor market, retired in other words, causing a shift of the burden of proof to the injured worker, to show that she was either disabled from all employment, or that she continued to look for work.

The 1996 amendments to the Pennsylvania Workers Compensation Act (Act 57) were largely a disaster for every worker in PA. Any thought that, as Pennsylvania’s appellate courts like to spout, the PA Workers’ Compensation Act is a piece of “remedial legislation” intended for “humanitarian purposes” and to “benefit the injured worker,” was clearly removed by Act 57.

One of the most ridiculous aspects of Act 57 was the creation of the Impairment Rating Evaluation (IRE). As we have previously noted, once an injured worker has received 104 weeks of temporary total disability benefits, the workers’ compensation insurance carrier can request an IRE. As the Act itself states, in Section 306(a.2)(1), the IRE is used “to determine the degree of impairment due to the compensable injury, if any.” If this permanent impairment rating is less than 50% (a preposterously high standard), the status of the injured worker may be changed to “partial” disability status.

Now, logically, one can only have a permanent impairment rating if the impairment is, well, “permanent.” Our handy dictionary tells us that “permanent” means “lasting or intended to last or remain unchanged indefinitely.” Therefore, again applying logic, if an injured worker has a “permanent” impairment, he or she cannot, at the very same time, be “fully recovered.”

When an employee in Pennsylvania is injured on the job, and disabled from work as a result of the injury, workers’ compensation benefits should start. These benefits usually stop either when the injured worker is fully recovered or goes back to work (they can be stopped for other reasons, such as incarceration or refusal to undergo reasonable and necessary medical treatment, but that’s for another blog entry).

An injured worker who goes back to work has a period during which he or she may file to reinstate workers’ comp total disability benefits, if the disability recurs. The Pennsylvania Workers’ Compensation Act was a bit unclear on whether this period was three years from the date of the most recent payment of compensation, or 500 weeks from the date of the reduction or stoppage of benefits. Recently, the Supreme Court of Pennsylvania clarified this answer for us all, in the decision of Cozzone v. Workers’ Compensation Appeal Board (East Goshen Township).

In this case, Mr. Cozzone, the injured worker (claimant), suffered a serious injury to his back in 1989. Despite the severity of his injury, claimant went back to work in 1989 and his benefits were stopped. Claimant then continued to work, with no loss of wages, for over 13 years. In 2003, claimant and the workers’ comp insurance carrier entered into a Supplemental Agreement, reinstating total disability benefits (Additional Supplemental Agreements were also entered into between the parties, reinstating benefits again, in 2005 and 2007).

Sadly, we see many catastrophic injuries which occur on the job. While all such tragic situations are devastating to the family of an injured worker, the most devastating must be the cases where the worker is actually killed by the work injury. Though justice is important in every case, somehow it just seems that much more important when the injured worker is not here to fight for him or herself.

When a worker has a fatal injury, the key question is whether the incident at work was a “substantial contributing factor” in causing the death. Sometimes, the issue gets a bit confusing when some other medical condition, having nothing to do with work, also plays some role in the situation. Recently, in Manitowoc Co., Inc. and Sentry Insurance v. Workers’ Compensation Appeal Board (Cowan), the Commonwealth Court of Pennsylvania was confronted with such a case.

Here, the worker was killed when he fell about six feet from a crane platform. A witness described that the worker was on the platform and, while crouching, his eyes rolled back, and he fell off the platform striking his head on the floor. The worker initially had a pulse, but then stopped breathing. He was then resuscitated and transported to the hospital, where he passed away. An autopsy concluded that the cause of death was “cardiac dysrhythmia due to mitral valve prolapse.”