Pennsylvania Workers’ Compensation Lawyer Blog

One of the ways a workers’ compensation insurance carrier in PA can be relieved of paying workers’ comp benefits to an injured worker in Pennsylvania is by showing that employment is “available” to the injured worker, as described previously in our blog.

Prior decisions by both the Supreme Court of Pennsylvania, and the Commonwealth Court of Pennsylvania, make clear that if an injured worker would not reasonably be aware of the duties involved with a modified job offer, the job offer is not sufficient. Typically, if the injured worker has not previously worked in the position to which he is being offered, “the employer must provide information related to the job duties and classification so that the claimant can make an informed decision regarding whether the position offered is within (his or) her capabilities.” [Quoting language in the decision of Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Mem’l Hospital) from the PA Supreme Court].

This brings us to the recent decision by the Commonwealth Court of Pennsylvania in Vaughn v. Workers’ Compensation Appeal Board (Carrara Steel Erectors). Here, Mr. Vaughn was a union ironworker, who injured his back while performing heavy duty work. Some time after the injury an “Independent” (Which we know is anything but) Medical Examination (IME), released Mr. Vaughn to light duty work.

Under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is disabled from his or her job due to a work injury, the injured worker is entitled to workers’ compensation wage loss benefits. This rate is based on the earnings the injured worker had prior to the injury. Those earnings are called the Average Weekly Wage (AWW).

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 each of the four 13-week quarters immediately before the injury. The lowest quarter is disregarded and an average is taken of the remaining three quarters. The resulting number is the AWW. The workers’ compensation rate is typically two-thirds of the AWW (if the AWW is very low, the rate could be as high as 90%, if the AWW is very high, the rate is capped at a certain level each year).

Sometimes, these calculations result in a terrible injustice. The most egregious example was fixed by the Supreme Court of Pennsylvania in their decision in Hannaberry HVAC v. Workers’ Compensation Appeal Board (Snyder Jr.) in 2003. There, the injured worker was a part-time employee for most of the year preceding the injury. Shortly before the accident, the injured worker had graduated school and become a full-time employee, earning a wage four times what he had been earning. The accident (in which he was pinned under a forklift) left the injured worker a quadriplegic.

When a PA workers’ compensation claim is denied by the insurance carrier, it is up to the injured worker to file a Claim Petition. In litigating a Claim Petition before a Workers’ Compensation Judge (WCJ), the injured worker bears the burden to prove that he or she suffered an injury, which was related to his or her job, and was rendered disabled by such injury.

It is the WCJ who makes the critical determination of who is credible in this litigation. Neither the Workers’ Compensation Appeal Board (WCAB), nor the Pennsylvania system of Courts, can substitute their opinions on credibility of witnesses. However, the testimony of the credited witness must be “unequivocal.”

This area was highlighted recently by the Commonwealth Court of Pennsylvania in Potere v. Workers’ Compensation Appeal Board (KEMCORP). Here, the WCJ found the Independent Medical Examiner (IME; in reality, a Defense Medical Examiner [DME]) credible, and denied the Claim Petition filed by the injured worker. The WCAB affirmed.

Cases dealing with benefits stopping in PA workers’ compensation, due an alleged “retirement” of the injured worker, are frequent on our blog. Usually, Pennsylvania Courts are reading the PA Workers’ Compensation Act ever more strictly. A recent case, however, gives hope to the injured worker in Pennsylvania.

In Keene v. Workers’ Compensation Appeal Board (Ogden Corp.), the Commonwealth Court of Pennsylvania reversed the Workers’ Compensation Appeal Board (WCAB), who in turn had reversed the Workers’ Compensation Judge (WCJ), when the WCJ denied a Petition for Suspension (for an alleged voluntary withdrawal from the labor market).

The WCJ found that the injured worker, who had hurt her knee at work in 1989, had not voluntarily withdrawn from the labor market, and denied the workers’ comp insurance carrier’s Petition for Suspension. The injured worker said she had looked for work for a long time and the failure to find any work had depressed her, so she stopped even looking. The WCAB reversed, finding that the injured worker failed to look for a job for a two-year period, showing that she had withdrawn from the labor market.

In Pennsylvania workers’ compensation matters, a workers’ comp insurance carrier can only get a “Termination” of benefits when the injured worker is “fully recovered” from his or her injury. This sounds like, and should be, a difficult standard for the insurance carrier to meet. Unfortunately, as happens too often in law, the appearance is deceiving.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Schmidt v. Workers’ Compensation Appeal Board (IATSE Local 3). Mr. Schmidt suffered a herniated disc in his low back and a lumbar strain in an accident at work. For this injury, the injured worker had extensive surgery, which the Court related as:

“L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation system.”