Pennsylvania Workers’ Compensation Lawyer Blog

As a general rule, when an injured worker in PA loses a light duty job, through no fault of his or her own, temporary total disability benefits are to be reinstated. Like any general rule, of course, there are exceptions. One of the major exceptions involves the time period at issue.

We have previously discussed that reinstatement from partial to total disability benefits under the Pennsylvania Workers’ Compensation Act can usually be accomplished at any time during the 500-week maximum entitlement period for partial disability benefits. During those 500 weeks, the injured worker need only demonstrate that employment is no longer available within his or her physical capabilities (through no fault of the injured worker).

As the Commonwealth Court of Pennsylvania recently addressed in Sladisky v. Workers’ Compensation Appeal Board (Allegheny Ludlum Corp.), the situation is much different after the 500-week period expires. While a Petition for Reinstatement is not time-barred if filed within three years of the date of last payment of workers’ compensation benefits (after the 500-week period expires), the burden of proof is much different, and much more difficult for the injured worker.

An injured worker in Pennsylvania is generally entitled to workers’ compensation benefits when the injured worker is disabled from his or her job as a result of the work injury, unless the loss in earnings is due to the injured worker’s own bad conduct. In these types of cases, the analysis focuses on the reason the injured worker now has a loss in wages.

In BJ’s Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), the Commonwealth Court of Pennsylvania addressed the issue of whether wage loss was related to a work injury, and whether workers’ comp benefits should be awarded. A Claim Petition was litigated before a Workers’ Compensation Judge (WCJ), who found that the injured worker did hurt her left foot and was disabled from her pre-injury position. The injured worker was then given a light duty job, from which she was fired due to being intoxicated at work. The WCJ nonetheless awarded workers’ compensation benefits to the injured worker since she had not shown any signs of intoxication, and since her pain medications for the work injury may have impacted the blood alcohol test.

The Commonwealth Court of Pennsylvania reversed the decision of the WCJ. While acknowledging that the WCJ is the ultimate finder of fact, the Court decided that benefits could not be awarded on the facts as found by the WCJ. Whether the injured worker showed signs of intoxication was irrelevant – the blood alcohol test, as found credible by the WCJ, showed that the injured worker was indeed intoxicated (and that the employer had a policy enabling termination for such an offense). Meanwhile, testimony that pain medications “may have” impacted the blood alcohol testing was equivocal and unable to support a finding of fact. To properly support a finding of fact, medical evidence must be given to a reasonable degree of medical certainty; that something “could have been” or “may have been” will not rise to this level.

The Supreme Court of Pennsylvania recently weighed in on the case of Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber-Brown). As our loyal readers may recall, back in 2009, the Commonwealth Court of Pennsylvania granted “specific loss” benefits for the loss of an eye in 2007, despite the onset around 1980, and used the injured worker’s wages in 2007 (with a different employer) on which to base the Average Weekly Wage (AWW).

On appeal to the Supreme Court, the Employer did not argue whether the date of injury was properly in 2007 (when the injured worker was told she had lost her eye for all practical intents and purposes) rather than 1980 (when the injured worker was exposed to herpes simplex virus). Instead, the main thrust of the Employer’s argument was that the AWW should be based on her wages with Employer (whom the injured worker was last employed by in 1985), rather than based on her wages for a different employer in 2007.

The Supreme Court affirmed the decision by the Commonwealth Court of Pennsylvania, holding that the AWW was properly based on the wages earned by the injured worker in 2007, regardless of the fact the injured worker was no longer working for Employer. The Court first noted that the PA Workers’ Compensation Act is “intended to benefit the injured employee, and, therefore, must be construed liberally in the employee’s favor in order to effectuate the Act’s humanitarian objectives,” the Court then added, “As such, borderline interpretations are to be decided in favor of the claimant.”

We have addressed the effect a layoff has on an injured worker in Pennsylvania before. Under the 2005 Supreme Court of Pennsylvania decision in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), an injured worker who had been laid off for periods of time before his or her injury receives a zero for wages earned during the period of lay off. This, of course, causes an injured worker to have an artificially low Average Weekly Wage (AWW), meaning a similarly reduced workers’ compensation rate.

Recently, however, the Supreme Court of Pennsylvania distinguished Reifsnyder, relaxing this strict rule. In Hostler v. Workers’ Compensation Appeal Board (Miller Wagman, Inc.), the Court found that the injured worker did NOT “maintain a continuous employment relationship with Employer, as petitioner did not ‘retain[ ] significant rights/accoutrements of employment’ with Employer” during the periods he was laid off. As such, the AWW did not include the periods of layoff (thus, the AWW was not artificially reduced).

The Court distinguished the situation in Reifsnyder, where the injured worker “pursuant to (his) collective bargaining agreement, retained significant rights/accoutrements of employment, such as plant seniority, healthcare and sick leave benefits, and employer contributions to (his) retirement accounts.” In Hostler, the injured worker did not receive any benefit from his employer during the time he was laid off, and he was not assured of any recall from the layoff. The Court noted that such a finding was necessary “to accurately capture economic reality when calculating claimant’s average weekly wage,” and that this calculation “advances the humanitarian purpose of the Workers’ Compensation Act.”

In PA Workers’ Compensation, almost everything has a specific amount of benefit, for a specific period of time. A workers’ comp rate is determined by starting with the Average Weekly Wage (AWW) and using a precise formula. If an injured worker in PA loses a finger, toe, hand, foot, arm or leg in the work injury, he or she is entitled to a certain number of weeks of compensation (depending on which appendage is involved). An injured worker determined to be less than 50% impaired after receiving total disability benefits for 104 weeks is entitled to a maximum of 500 additional weeks of workers’ compensation benefits. These schedules regarding the amount of benefits payable to an injured worker can be found on the website of the Pennsylvania Bureau of Workers’ Compensation, in Section 306.

There is, of course, an exception to every rule. In PA, facial disfigurement is compensable by a payment of up to 275 weeks of benefits, at the discretion of the Workers’ Compensation Judge (WCJ). The disfigurement must be both permanent and “unsightly.” The Commonwealth Court of Pennsylvania recently addressed this issue in the case of Walker v. Workers’ Compensation Appeal Board (Health Consultants), where the Court decided a crooked nose was not “unsightly” and not worthy of any compensation.

In the Walker case, the injured worker fell down steps and broke her nose. The injury to the nose was accepted and she received workers’ comp benefits until she went back to work. Subsequently, she filed a Petition for Reinstatement (treated by the WCJ and the Court, correctly, as to also include a Petition to Review the Notice of Compensation Payable [to add low back to her work injury], since it was the unaccepted injury which allegedly now caused her disability. In this litigation, Claimant also sought facial disfigurement benefits for her nose, which now had small scars and was slightly crooked.

Not very long ago, this blog expressed our disappointment with the decision rendered by the Commonwealth Court of Pennsylvania in Glaze v. Workers’ Compensation Appeal Board (City of Pittsburgh), where the Court remanded to the Workers’ Compensation Judge (WCJ) for the WCJ to find some amount of a credit for pension payments, despite the employer’s failure to present credible evidence to the WCJ initially. As we expressed in our blog entry, a party who fails to sustain its burden of proof in a PA workers’ compensation case should not prevail.

We are now happy, though a bit confused, to report what appears to be a contradictory decision by the Commonwealth Court of Pennsylvania in the case of United Airlines v. Workers’ Compensation Appeal Board (Gane). Here, the claimant suffered a severe injury described as “pain disorder, dysthemic disorder, herniated discs at C3-4 and C4-5, rotator cuff impingement on the left side with aggravation and protruding disc at C5-6.”

After the work injury, the claimant began to receive a pension from his employer, which was entirely funded by the employer. As we have previously discussed in this blog, this resulted in a credit for the entire amount of the pension the injured worker received, under Section 204(a) of the Pennsylvania Workers’ Compensation Act. Subsequently, the employer here went bankrupt and the pension was terminated by the government, and taken over by the United States Federal Pension Benefit Guarantee Corporation (PBGC).