Pennsylvania Workers’ Compensation Lawyer Blog

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).

As long time readers of our blog know, Utilization Review is the process either party can use to address whether medical treatment for a PA work injury is reasonable or necessary. Though the Courts in Pennsylvania have made it clear that treatment can be reasonable and necessary while merely “palliative” (relieves symptoms though not curing the condition), we have seen the Commonwealth Court of Pennsylvania find treatment unreasonable and unnecessary because it did not significantly improve the condition.

This concept was again tested by the Commonwealth Court of Pennsylvania in Leca v. Workers’ Compensation Appeal Board (Philadelphia School District). Here, the injured worker hurt his low back and received chiropractic treatment for a period of years. The workers’ comp insurance carrier filed for Utilization Review. A Utilization Review Determination found the chiropractic treatment reasonable and necessary.

The workers’ compensation insurer filed a Petition for Review of Utilization Review Determination. In the litigation before a Workers’ Compensation Judge (WCJ), the insurer presented deposition testimony of the injured worker’s treating orthopedic surgeon, and its Independent Medical Examining (“Independent” being used loosely in this context) orthopedic surgeon. Both of these physicians testified the chiropractic treatment was not reasonable or necessary because, though it may have provided temporary relief, the chiropractic treatment did not improve the condition of the injured worker. No evidence from a chiropractor was offered. In response, the injured worker only offered the Utilization Review Determination (the injured worker did not even testify on his own behalf).

Previously, we discussed the case of Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Commonwealth Court of Pennsylvania held that a Petition to Review, to expand a description of injury, must be filed within three years of the last payment of workers’ compensation benefits.

This issue again came before the Commonwealth Court of Pennsylvania, in Dillinger v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County), and the results were similar. On November 15, 2003, the injured worker was assaulted while driving a bus. As a result, she suffered a left shoulder strain. Workers’ compensation benefits were then suspended as of February 20, 2004. On March 22, 2007, the injured worker filed a Petition to Review, alleging that she also suffered post-traumatic stress disorder (PTSD) as a result of her injury. The injured worker also filed a Petition for Reinstatement and a Claim Petition.

A Workers’ Compensation Judge (WCJ) granted the Petition to Review and dismissed the Claim Petition, as moot. The WCJ found that the PTSD should have been accepted as part of the work injury and should be listed on the Notice of Compensation Payable (NCP). Upon appeal, this was reversed by the Workers’ Compensation Appeal Board (WCAB), based upon the Fitzgibbons decision.