Pennsylvania Workers’ Compensation Lawyer Blog

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.

We were appalled when the Commonwealth Court of Pennsylvania recently found armed robbery to be a “normal” part of the job as a clerk working for the Pennsylvania Liquor Control Board. Accordingly, we are seeking to take our battle to the top.

When a party loses a workers’ compensation case in Pennsylvania, the decision of the Workers’ Compensation Judge (WCJ) can be appealed to the Workers’ Compensation Appeal Board (WCAB). A party then has the right to file an appeal with the Commonwealth Court of Pennsylvania. That is the end for a party having the automatic right to appeal a workers’ compensation case in PA. Beyond that is at the discretion of the Pennsylvania Supreme Court, the highest Court in the State.

Once a party loses at the level of the Commonwealth Court of Pennsylvania, and wants to take the case to the PA Supreme Court, the party must request “allocatur” by filing a Petition for Allowance of Appeal. The High Court then has the discretion whether to accept the appeal (grant allocatur) or not. Very few appeals are accepted by the Supreme Court.

We have expressed our displeasure for how the Pennsylvania Workers’ Compensation Act treats mental/emotional injuries. As long as the cause of the injury is purely mental/emotional, any resulting disability is only compensable if the cause represents an “abnormal working condition.” The standard for this test varies according to the job in question; a police office, firefighter or other first responder would have a greater burden of proof than an accountant, chef or automobile mechanic, simply because their job tends to expose them to more shocking events.

This issue is dear in our hearts, since we have a case we have discussed on our blog previously, highlighting this ridiculous standard. For those who do not recall, we represent a liquor store clerk who was the victim of an armed robbery. Understandably, the clerk was then disabled by post-traumatic stress disorder. The Pennsylvania Liquor Control Board had the gall to deny the claim, saying that armed robbery at one of their stores was not “abnormal.” (It offends us as taxpayers, and citizens, that the agency openly embraces such incompetence by knowingly exposing their employees to danger, rather than make any effort at a solution).

The case was litigated, with both medical experts agreeing that the clerk had post-traumatic stress disorder, and that he was unable to return to that employment. In defense, the Pennsylvania Liquor Control Board (LCB) showed their training process, which included how to handle an armed robbery, the location and function of panic buttons, and the “open safe” key. All of the training materials, however, stated that the occurrence of armed robbery in a liquor store was “rare,” and that this was an “unlikely event.” Neither the clerk, nor any of the four witnesses presented by the LCB, was ever the victim of an armed robbery. Indeed, the manager of the store at which the clerk worked was not even aware of the procedure following a robbery. The store had panic buttons installed, but did not have any guards.