Pennsylvania Workers’ Compensation Lawyer Blog

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.

We have discussed Section 204(a), part of the 1996 amendments to the Pennsylvania Workers’ Compensation Act, previously on our blog. This Section gives the workers’ comp insurance carrier a right to a credit, or offset, on other types of benefits, including Social Security Retirement, unemployment compensation, severance and pension benefits.

The offset regarding a pension is available to an employer only “to the extent funded by the employer directly liable for the payment of compensation.” In many situations, this can be a complicated calculation. There are generally two types of pension plans – “defined contribution” and “defined benefit.” In a defined contribution plan, the employee contributes a specific percentage of his earnings to the plan, as does the employer. In those cases, calculations are generally less confusing. The problem comes more with defined benefit plans, where the employee is paid a set amount from a pool of money.

Since payments in defined benefit plans are made from a pool of money, rather than individual accounts, it is virtually impossible for an employer to identify how much it contributed to any one individual’s pension. The Courts have addressed this issue and made clear that “an employer can meet its burden of proving the extent of its contribution to a claimant’s defined-benefit pension by credible actuarial evidence; it need not identify actual contributions to the claimant’s pension.”

Whether an injured worker in PA has “voluntarily withdrawn from the labor market” has been a frequent topic on this blog. There has been a great deal of litigation on this issue in the appellate courts over the past several years. We are seeing that the details and facts in each case really have great meaning for which way the courts may decide.

In City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack), we saw some additional clarification of the relative burdens of proof in this situation. Here, the injured worker, a firefighter, suffered a rotator cuff tear in his shoulder, an aggravation of degenerative disc disease in his lumbar spine, and anxiety and depression. The injured worker filed for a disability pension, but was ineligible because he was terminated for cause.

The workers’ comp insurance carrier filed a Petition for Suspension, alleging that the fact the injured worker filed for a disability pension meant that he was voluntarily leaving the labor market. In such a case, the workers’ comp insurance carrier would not be required to prove job availability to obtain relief. The Workers’ Compensation Judge (WCJ) agreed that Claimant had voluntarily left the labor market. Further, the WCJ found that the injured worker did not prove he was looking for work, so the WCJ granted the Suspension Petition.

On many occasions, we have explored the evolution of the Pennsylvania Workers’ Compensation Act as it pertains to whether an injured worker has “voluntarily left the labor market.” Typically, we see this situation when the injured worker has filed for a retirement pension, or given some other indicia of “retirement.” Until now, we have not seen the Pennsylvania Courts punish an injured worker for merely taking Social Security Disability benefits.

Unfortunately, that ended with Burks v. Workers’ Compensation Appeal Board (City of Pittsburgh), where the Commonwealth Court of Pennsylvania upheld the suspended of workers’ comp benefits merely because the injured worker was receiving Social Security Disability benefits.

In that case, the injured worker had both a work-related injury (knee sprain) and non-work-related conditions (many, primarily involving her hip and low back). The Court found that the injured worker was capable of light duty work with regard to the work injury, but that she was totally disabled with the addition of the non-work-related conditions. As such, the Court concluded:

Generally speaking, the goal is to return an injured worker in Pennsylvania to gainful employment. Along those lines, under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is not able to keep working, due to the effects of the work injury, workers’ comp benefits should be reinstated.

The key element to whether benefits will be reinstated is often whether the loss of earnings is truly related to the work injury. A good example of this concept came recently in the case of Verity v. Workers’ Compensation Appeal Board (The Malvern School), decided by the Commonwealth Court of Pennsylvania.

Here, Ms. Verity (Claimant) suffered a strain to her left hip and low back. After being released to modified duty, Claimant returned to work under those restrictions. Subsequent to her going back to work, Claimant had additional restrictions placed upon her by her physician, which included “no going up/down stairs.” The employer said they had nothing within those restrictions, and Claimant filed a Petition for Reinstatement.