Pennsylvania Workers’ Compensation Lawyer Blog

Previously, we have discussed when the Commonwealth Court of Pennsylvania has addressed whether an employee was in the “scope and course” of his or her job at the time of the work injury. This issue has once again risen on appeal.

In the case of Trigon Holdings, Inc. v. Workers’ Compensation Appeal Board (Griffith), the injured worker was a supervisor in a machine shop. After he made sure his guys were set up, and the machines were all running properly, he told them he would be in another room for a few minutes. Five minutes later, his left thumb was caught in a machine while he was polishing a part for his child’s go-cart, severely injuring the thumb. As a result of the thumb injury, the injured worker was disabled from his job.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). The injured worker, and witnesses he offered, testified that employees at the machine shop were permitted to work on personal things at the shop, and this was something done on a frequent basis. The general manager of the company testified that this action was never permitted and was totally unacceptable. In granting the Claim Petition, the WCJ found the testimony of the injured worker, and his witnesses, more credible than of the general manager. Specifically, the WCJ found that “a small temporary departure from work does not break the course of employment[,] and that an incident necessary to constitute a break in the course of employment must be of a pronounced character.'” On appeal, this decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

While an injured worker in Pennsylvania generally cannot sue his or her employer for causing a work injury (since Pennsylvania workers’ compensation is an “exclusive remedy”), the injured worker is able to sue a third party for causing a work injury. We see this situation with car accidents, slip and fall cases and products liability cases.

When an injured worker in PA does sue another party for causing his or her work injury (called a “third party”), and is awarded money, the workers’ compensation insurance carrier is entitled to be repaid money that it paid in medical expenses and wage loss benefits (this is called “subrogation”). Ultimately, unless the attorney negotiates something better (which is what happens normally), the injured worker ends up with no money from this third party case.

Not every law suit involving a work injury creates a right to subrogation, however. For example, a PA workers’ compensation insurance carrier is not entitled to subrogation in a medical malpractice award, if the work injury was not aggravated by the malpractice. The key is whether the award in the third party case is a direct result of what caused the disability.

Say you are coming home from work and you are injured; are you entitled to workers’ compensation benefits in Pennsylvania? As we have mentioned previously, generally, an employee is not eligible for injuries suffered in the commute to or from work (known as the “Going and Coming Rule”). Recently, the Commonwealth Court of Pennsylvania addressed this issue again in Mansfield Brothers Painting and Selective Insurance Company of America v. Workers’ Compensation Appeal Board (WCAB).

A union painter was assigned to work full-time for his employer at the University of Pennsylvania. While on his way home from the job one day, the painter fell near the train station, and hurt his left shoulder, neck and back. A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ).

The facts were not in dispute. The painter was hired to work at a specific building on the Penn campus, which only had a single entrance. He elected to commute to work by train. On the walk to the train station, about 150 feet from the exit of the building in which he worked, the painter fell on an uneven slate walkway and suffered these injuries. The fall took place while the painter was still on Penn’s campus.

Once an injured worker in Pennsylvania has an accepted work injury (whether by decision of a Workers’ Compensation Judge (WCJ), or the issuance of a Notice of Compensation Payable or Agreement for Compensation), such benefits can only be suspended for a limited number of reasons. A return to gainful employment, with no loss of wages, is obviously the most desirable reason. Other reasons can include incarceration after a conviction and proof of available employment at the pre-injury wages.

An additional reason, though rarely seen, is an intervening injury, not related to work, which renders the injured worker totally disabled. The case that first established this principle was Schneider, Inc. v. Workers’ Compensation Appeal Board (WCAB), decided by the Pennsylvania Supreme Court in 2000. This case involved a unique set of facts, and it was hoped the principle would be limited to facts so extreme.

The injured worker in the Schneider case was receiving benefits for a work injury involving his head and neck. He was then involved in a serious non-work-related incident which left him with severe brain damage and paralysis. A Petition for Suspension was granted, stopping the workers’ compensation benefits, without any requirement that the workers’ compensation insurance carrier show any jobs were available within the restrictions of the work injury. The WCJ found the opinion of the insurance carrier’s medical expert credible, that the injured worker was capable of some type of work (from the standpoint of the work-related injuries), though totally (and permanently) disabled by the non-work-related incident. The Court reasoned that it would be an “exercise in futility” to require the insurance company to show job availability, since the injured worker was totally disabled by a non-work-related cause.

The term “collateral estoppel” essentially means that once an issue is fully litigated, it cannot be litigated again. The primary example of this concept, as it applies to PA workers’ compensation, is the Weney case. Whenever we have seen the use of “collateral estoppel” in Pennsylvania workers’ comp, however, we have seen it used to the detriment of the injured worker. For once, however, the Commonwealth Court of Pennsylvania used this concept to benefit the injured worker.

In Channellock, Inc. v. Workers’ Compensation Appeal Board (WCAB), the Claimant suffered an annular tear and a herniated disk at the L5-S1 level at work in 2001. The injured worker was offered a “no work” job at the employer, which he accepted (a “no work” job is literally a job where the injured worker reports to the employer to do nothing; this is a frequent tool used by devious employers, as was attempted here, to subvert the workers’ comp process). Due to his pain medications, and the inactivity inherent in a “no work” job, Claimant fell asleep and was promptly terminated.

Litigation ensued before a Workers’ Compensation Judge (WCJ). A decision was rendered by the WCJ, denying a Petition for Termination (since the injured worker was not found to be fully recovered) and granting a Petition for Reinstatement (finding that “the no duty position was not within Claimant’s capabilities because Claimant had difficulty staying awake due to his prescribed medication”).

As a general rule, an injured worker is entitled to benefits under the Pennsylvania Workers’ Compensation Act when he or she is disabled as the result of a work injury. A spouse or dependent of an injured worker is usually entitled to death benefits (which vary, depending on the relationships of the dependents who exist) when the injured worker dies as a result of the work injury. There are, of course, exceptions to this rule. One of those exceptions is the time involved between the work injury and the injured worker’s death. In this situation, we can see a terribly unfair result.

Recently, there was an example of this situation, and its inequitable results. In Whitesell v. Workers’ Compensation Appeal Board (WCAB), the injured worker suffered a back injury at work in 2003. Initially, the injury was accepted by the workers’ compensation insurance carrier by Notice of Compensation Payable (NCP), which described the injury as a lumbar strain and sprain. In 2006, there was litigation in which the description of injury was amended to include “lumbar disc disruption L4-L5, resulting in total disc arthroplasty at L4-L5 level.” Tragically, the injured worker died in 2011, as a result of “mixed drug toxicity,” from the medications she was taking for the work injury.

Since the death was related to the work injury, one would presume that death, or fatal claim, benefits would be available to the surviving spouse/dependents. One would be wrong. The Pennsylvania Workers’ Compensation Act, states, in Section 301(c)(1), ” . . . wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury.” Since the death here did not take place within 300 weeks of the original injury, death benefits were denied by the Workers’ Compensation Judge (WCJ). This was affirmed by the WCAB.