Once again, we are reporting on the Pennsylvania Court System addressing the issue of retirement, and voluntary withdrawal from the labor market, in the context of a PA workers’ compensation case.

In Department of Public Welfare/Norristown State Hospital v.Workers’ Compensation Appeal Board (Roberts), the Commonwealth Court of Pennsylvania reversed the decision of the Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ordered that the injured worker’s benefits be suspended because he had retired and voluntarily withdrew from the labor market.

The claimant in this case hurt his neck and back. After his injury, the injured worker took a retirement pension, which, as previously discussed here, may or may not be indicative of retirement. The injured worker also filed for what the Court called a “Social Security Disability Pension,” though I am not sure what that means (Social Security Retirement, akin to pension, is, of course, different than Social Security Disability). In his testimony before the WCJ, the injured worker said he did not feel physically capable of working and has not looked for work. The doctor testifying for the insurance carrier (the Independent Medical Examiner, IME, who typically is somewhat less than independent) felt the injured worker was capable of sedentary duty work.

Once again, we are honored and excited to report that our blog has been selected by LexisNexis as one of the Top 25 Blogs for Workers’ Compensation and Workplace Issues for 2011. We recognize all of the wonderful blogs out there covering not only Pennsylvania workers’ comp issues, but also blogs covering workers’ comp across the entire Country. It is for this reason that we are so humbled at again being recognized. We are especially proud, since this is our third such recognition in the past four years.

We again thank LexisNexis, and our loyal readers, for this providing us the opportunity to serve. We will make every effort over the ensuing months, and years, to show that we are worthy of this recognition.

The calculation of the Average Weekly Wage (AWW) under the Pennsylvania Workers’ Compensation Act has been explained previously on this blog. Generally, assuming the injured worker had been working for his or her employer for more than a year before the work injury, the AWW is calculated by taking the average earnings of the injured worker for the highest three quarters in the year immediately before the injury.

Occasionally, we have a question regarding whether the injured worker has been “employed” for more than a year before the injury, perhaps due to layoffs. The Supreme Court of Pennsylvania Courts told us in 2005, in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), that despite periods of layoff, the term of “employment” continued. In that matter, Mr. Reifsnyder was considered to have zero earnings for the weeks he was laid off, for the purposes of calculating his AWW.

Also in 2005, the Supreme Court of Pennsylvania told us, in Colpetzer v. Workers’ Compensation Appeal Board (Standard Steel), that when an injured worker is disabled by a work injury in the one year period prior to another work injury, the AWW for the subsequent injury should include the AWW from the previous injury for any periods the worker was disabled by the previous injury.

Over the years, we have had blog entries on many different topics of interest to the injured worker in PA. One theme we have never dealt with, however, is the emotionally-charged area of politics. While we generally try to avoid politics, we would be remiss if we did not comment about one of the candidates for Judge on the Commonwealth Court of Pennsylvania.

As loyal readers of our blog know, the Commonwealth Court of Pennsylvania is the next appellate level, above the Workers’ Compensation Appeal Board (WCAB). This Court must address many issues directly impacting the lives of injured workers in PA. Judges on this Court are elected in the general election. We believe it is important for voters to be informed, allowing them to make the best decisions possible.

One of the candidates for Commonwealth Court Judge in the election coming up on November 8 is Kathryn Boockvar. Back in June of this year, we attended the 10th Annual Workers’ Compensation Conference in Hershey, PA, which is presented by The Pennsylvania Bureau of Workers’ Compensation. In addition to the many attorneys who practice in the area of PA workers’ comp, we noticed Ms. Boockvar in attendance. We were both impressed and encouraged that Ms. Boockvar was interested enough in the PA workers’ compensation system to attend such an event. In addition to her obvious interest in workers’ compensation, her resume shows that she spent much of her career representing disabled individuals.

The most damaging petition a workers’ compensation insurance carrier can file against an injured worker in Pennsylvania is a Petition to Terminate. If granted, a Petition to Terminate ends the injured worker’s rights to all PA workers’ compensation benefits for his or her injury, whether wage loss replacement (known as “indemnity”) or medical.

Because the consequences of a Petition to Terminate are so great, the standard for a Workers’ Compensation Judge (WCJ) to grant such a petition is supposed to be high. Specifically, the workers’ comp insurance company must prove that the work-related injury has fully resolved.

Though a doctor need not utter any magic words to show an injured worker has fully recovered from his or her injury, the opinion must be clear and unequivocal. Merely being released back to unrestricted work, by itself, is not proof the work injury has fully resolved (this does not even entitle the insurance carrier to a Suspension, let alone a Termination).

Impairment Rating Evaluations (IREs), under the Pennsylvania Workers’ Compensation Act, have been discussed in this blog before. Basically, the IRE process enables the workers’ comp insurance carrier to switch an injured workers’ disability status to partial if there is a whole body impairment of less than 50% (a ridiculously high standard). [This does not impact the amount of the benefits being received or the access the medical treatment for the work injury].

Recently, the Commonwealth Court of Pennsylvania faced the question of whether an IRE determination is valid if it provides for no degree of impairment for a diagnosis the injured worker still has, but is at that time asymptomatic (and, whether the IRE is then later void, because that very same diagnosis is again causing symptoms).

In this decision, Westmoreland Regional Hospital v. Workers’ Compensation Appeal Board (Pickford), the injured worker was left out in the cold by the Court. The Court concluded that the IRE only has to consider the injured worker’s condition at the moment of the IRE. Since the injured worker had no objective evidence of her brachial plexopathy or Complex Regional Pain Syndrome (CRPS, formerly known as Reflex Sympathetic Dystrophy or RSD) at the time of the IRE, zero impairment for those conditions was correct. The Court found largely irrelevant that within several months of the IRE, the conditions were again revealing objective evidence of impairment.

While many injured workers with shoulder or neck pain do truly suffer from the initial diagnosis they are given, some have a more rare condition. Sure, a strain or sprain of the shoulder or neck is quite common, and the torn rotator cuff or labral tear in the shoulder, or disc herniation with radicular symptoms in the neck, is seen fairly often, but other conditions are seen on occasion as well.

In the September 2011 issue of the newsletter from Mink Radiologic Imaging, there is discussion of Parsonage-Turner syndrome (PTS), also known as acute brachial plexopathy. Additionally, this article mentions Quadrilateral Space Syndrome (QSS), another condition that could be considered in the presence of shoulder pain. The difficulty in clarifying a diagnosis in such a case is reflected in this article from The American Journal of Roentgenology.

These are things an injured worker, and, of course, his or her physician, should keep in mind if a presumed shoulder strain or sprain is not healing as would be expected. The continued presence of symptoms in the injured shoulder could be an indication of another, undiagnosed, condition.

Under the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier is responsible for all reasonable and necessary medical treatment which is related to the work injury. In very rare circumstances, the cost of wage loss (“indemnity”) benefits and medical expenses can be allocated between more than one insurance carrier. Typically, this would be seen when the injured worker is disabled by more than a single injury, involving multiple insurance companies.

Hearing loss cases, however, are treated differently under the PA Workers’ Compensation Act. When someone losses their hearing due to excessive noise in the workplace, the Act specifically states that, “An employer shall be liable only for the hearing impairment caused by such employer.” (Section 306(c)(8)(iv)).

Recently, the Commonwealth Court of Pennsylvania decided the matter of James McClure, Sr. v. Workers’ Compensation Appeal Board (Cerro Fabricated Products). Here, the injured worker had a documented hearing loss of 18.12% in 1997, while employed by a different employer. He became employed by Cerro in 2000. No Claim Petition was filed until 2004, when he had a hearing loss of 24.69%. The prior employer was dismissed, since more than three years passed since the last date Mr. McClure was exposed to excessive noise in the employ of the previous employer (Some injuries have a “discovery rule,” where the “statute of limitations” can be extended, where the injured worker has no reason to know or suspect the injury; there is no such rule in hearing loss under the Pennsylvania Workers’ Compensation Act).

As followers of our blog are aware, we filed a workers’ compensation case on behalf of a PA liquor store clerk who was the victim of an armed robbery (and suffered post-traumatic stress disorder (PTSD) as a result). We were successful before the Workers’ Compensation Judge (WCJ), and the matter is currently pending before the Workers’ Compensation Appeal Board (WCAB). Though we, of course, follow all PA court decisions in the workers’ comp area, we have a particular interest in those dealing with this issue.

Yesterday, the Commonwealth Court of Pennsylvania issued a decision in the matter of PA Liquor Control Board v. Workers’ Compensation Appeal Board (Kochanowicz). In what can only be described as a staggeringly repulsive decision, the Court reversed both the WCJ and WCAB, who both found that the claimant in that case suffered PTSD as a result of an armed robbery, and that the armed robbery was an “abnormal working condition.” Both the injured worker’s treating doctor, and the Independent Medical Examiner (IME)[Who often is anything but “independent”], found that the injured worker suffered PTSD as a result of the armed robbery.

In its infinite wisdom, the Court found that armed robberies at liquor stores in Pennsylvania are common; perhaps, if we are understanding their logic correctly, an armed robbery at a liquor store these days is akin to taking out the trash. Just another part of a clerk’s daily routine.

Today, I received an e-mail from a Workers’ Compensation Judge (WCJ) in the Philadelphia Workers’ Compensation Hearing Office, indicating the Pennsylvania Bureau of Workers’ Compensation has now announced that certain correspondence can be sent to the WCJ by e-mail, rather than through the U.S. Postal Service. While the correspondence a party can send to a WCJ is limited (primarily routine correspondence, such as requesting a continuance of a hearing), this option is beneficial, not only to attorneys who practice in the area of PA workers’ comp, but also to helping reduce the amount of paper being used unnecessarily in the litigation process.

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