Pennsylvania Workers’ Compensation Lawyer Blog

Once workers’ compensation benefits are suspended in Pennsylvania, for example when an injured worker goes back some type of gainful employment, the general rule is that workers’ comp benefits can be reinstated by simply proving his or her earning power is again adversely affected by the injury, and that the new disability is related to the original injury. As a general rule, the injured worker need not demonstrate that there has been a change in his or her condition.

This gets a bit more complicated when there is another condition impacting the employability of an injured worker. For instance, take the matter of Upper Darby Township v. Workers’ Compensation Appeal Board (Nicastro), decided by the Commonwealth Court of PA. Here, the claimant injured his low back at work in 2002 dumping a can into the garbage truck. A Notice of Temporary Compensation Payable (TNCP) was issued, accepting a low back strain. The TNCP subsequently converted to a regular Notice of Compensation Payable (NCP).

The claimant returned to his regular duties in March, 2004, and workers’ comp benefits were suspended. On June 8, 2004, claimant again injured his low back lifting a trash can. A Petition was filed, but before there could be a decision by a Workers’ Compensation Judge (WCJ), the parties resolved the case by Stipulation. Specifically, in the Stipulation the parties agreed that claimant was disabled by the work injury from June 8, 2004 until October 7, 2004, that claimant was able to go back to his regular job as of October 7, 2004 and that claimant left the employ of the company in December, 2004, because of “injuries unrelated to his back.”

Under the Pennsylvania Workers’ Compensation Act, mental injuries caused by a psychic, or mental, incident, require an injured worker to prove that the psychic, or mental, onset was an “abnormal working condition.” We have discussed psychological injuries under PA workers’ comp previously. We call these types of cases “mental/mental” cases.

But, what about a mental, or emotional, onset that leads to a physical injury (what we call a “mental/physical” case)? Back in 1981, the Supreme Court of Pennsylvania decided Krawchuk v. Philadelphia Electric Company, wherein the Court granted workers’ comp benefits to an employee who suffered a heart attack at home, after having a great deal of stress at work. This was followed, however, by the Court’s decision in Davis v. Workmen’s Compensation Appeal Board (Swarthmore Borough) in 2000, finding that abnormal working conditions were required in a case with an emotional or mental onset. Finally, the Court clarified things in 2005 in the case of Pankyo v. Worker’s Compensation Appeal Board (U.S. Airways) (Pankyo).

In the Pankyo case, the Court found that the holding in Davis was limited. Specifically, the Court noted, “given the facts in Davis, that case only stands for the proposition that where a claimant suffers a psychic injury with attendant physical symptoms, the claimant must meet the abnormal working relations test.” On the other hand, where the injury itself is physical (again, such as a heart attack), the “abnormal working conditions” requirement does not apply (even though the onset was a mental incident).

Under Section 312 of the Pennsylvania Workers’ Compensation Act, an injured worker must provide notice to his or her employer that he or she “received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.” This notice, under Section 311, must be given within 120 days of the injury, or the claim may be precluded. In reality, giving notice to an employer may not be so simple.

Take, for example, the facts in Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), a decision recently rendered by the Supreme Court of Pennsylvania. The injured worker toiled on an assembly line for many years, repetitively using her hands. Eventually, she began to have pain and swelling in her hands, and her fingers would become “stuck.”

Finally, on January 17, 2005, Ms. Morack told her boss that her hands were hurting so bad, she did not know what to do. The injured worker saw a doctor that same day and got a note keeping her out of work. According to the company policy, Ms. Morack called her employer every day for the first five days she was out, advising the employer each day that she could not work because of the swelling in her hands. She did not specifically tell the employer that the swelling was from her work duties, because she was not sure what caused the problem. A short-term disability application was made, indicating the condition was the result of “sickness” rather than “injury,” since, at that time, Ms. Morack believed her condition was related to pre-existing fibromyalgia, not her work duties.

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.