Pennsylvania Workers’ Compensation Lawyer Blog

The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance carrier to obtain an “Independent Medical Examination” (IME) [Which, of course, is usually anything but “Independent”] at “reasonable” intervals. If an injured worker refuses to attend an ordered IME, a Workers’ Compensation Judge (WCJ) can suspend the injured worker’s benefits under Section 314(a). This was usually interpreted to mean “indemnity” or wage loss benefits, as opposed to medical benefits. Whether medical benefits could be suspended was an open question.

In Giant Eagle v. Workers’ Compensation Appeal Board (Givner), decided by the Commonwealth Court of Pennsylvania recently, this issue was addressed. The workers’ compensation insurance carrier asked the WCJ to suspend compensation benefits of an injured worker who refused to attend a court-ordered IME. The WCJ issued a decision, granting the request of the insurance carrier, that “compensation benefits” be suspended until the injured worker attends the IME. The Workers’ Compensation Appeal Board (WCAB) agreed and affirmed the decision.

On appeal, the workers’ comp insurance carrier asked that medical benefits be suspended along with the indemnity benefits. The insurance carrier argued that the injured worker should be deprived of all compensation for failing to attend the ordered IME. This position was rejected by the Court, which held that medical benefits are separate from indemnity benefits, and are not included in the term “compensation.” The Court found that, in this case, medical benefits are not suspended because the decision of the WCJ cited only “compensation.”

Ordinarily, when an employee is commuting to, or from, work in Pennsylvania, he or she is not in the course of employment. This is known in the PA workers’ comp community as “The Going and Coming Rule.” Thus, if the employee is injured while commuting, usually the injured worker is not entitled to PA workers’ compensation benefits. Like every rule, however, there are exceptions.

Recently, in Leisure Line v. Workers’ Compensation Appeal Board (Walker), the Commonwealth Court of Pennsylvania addressed some of these exceptions. While working as a bus driver for Leisure Line, Mr. Walker commuted from his Delaware home to the bus depot in Coatesville, PA. From the depot, Mr. Walker would drive the bus to and from Atlantic City, NJ. On his way from his home to Coatesville one day, Mr. Walker was injured in a motor vehicle accident.

In asserting that his commute was an exception to the usual rule, and that he was eligible for benefits under the PA Workers’ Compensation Act, Claimant had two main assertions – that he was paid for his travel to Coatesville; and, that his willingness to accept the “Coatesville Run,” an unpopular job assignment, was a “special circumstance” which “furthered his employer’s business.”

When an injured worker in Pennsylvania is physically unable to perform his or her time-of-injury job, due to a work injury, the burden falls to the employer to prove the existence of a job that is “available” to the injured worker. For a job to be “available,” it must be within the injured worker’s physical capabilities, as well as be suitable with regard to other “relevant considerations” (which may include vocational suitability, job location, and other factors).

A previous decision of the Commonwealth Court of Pennsylvania had told us that a modified job being offered must specifically state the duties which would be expected. The Supreme Court had already told us that a job which is for only a finite period can only lead to a modification or suspension for that period the job is available.

Recently, however, the Commonwealth Court of Pennsylvania decided Presby Homes and Services v. Workers’ Compensation Appeal Board (Quiah), which calls both of these prior decisions into question.

In PA, an injured employee is entitled to workers’ compensation benefits only when the injury takes place while the employee is in the scope and course of his or her employment. Often, this is something obvious, as when the employee is actually injured while on the employer’s premises, performing the usual and customary duties of his or her job. There are times, though, when the injured worker is either not on the employer’s premises, or not engaged in the job duties, at the time of the accident. These situations can be dependent on the precise facts in each case.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Graves v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), decided by the Court on October 23, 2009. In this case, the Claimant, Mr. Graves, was a Philadelphia Housing Authority patrol officer. He was shot while off-duty, confronting an armed man outside a tavern in South Philadelphia. The claim was denied by the workers’ compensation insurance carrier, who said Claimant was not in the scope and course of his employment at the time of the shooting.

The Workers’ Compensation Judge (WCJ) found the employer’s witness, the Assistant Police Chief of the Philadelphia Housing Authority, more credible than Claimant, and denied the Claim Petition. The employer witness had completed a report of his investigation of the incident and testified from this report. Specifically, the employer witness testified that Claimant failed to follow proper police procedure, and was not acting as a police officer when he was shot. Claimant had objected to the use of this report, on the basis of hearsay (an out-of-court statement, used to prove the truth of the matter asserted).

In a case that has been working its way through the Pennsylvania Workers’ Compensation system for some time now, the Supreme Court has accepted appeal in the matter of Diehl v. Workers’ Compensation Appeal Board (WCAB).

As was discussed in a previous blog entry, the Commonwealth Court of Pennsylvania concluded that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within 60 days of the expiration of 104 weeks of total disability. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

The Supreme Court of PA has accepted appeal to determine whether evidence of job availability or earning power is required to change disability status from total to partial as a result of an IRE.

In year’s past, before 1996, when a workers’ compensation insurance carrier wanted to reduce an injured worker’s benefits in PA, the insurance carrier had to refer the injured worker to jobs, which then had to be open and available to the injured worker. This process was set forth not by the Pennsylvania legislature, but by the Supreme Court of PA in Kachinski v. Workers’ Compensation Appeal Board, decided in 1981.

This process changed in 1996, when the PA legislature amended the Pennsylvania Workers’ Compensation Act. No longer does a workers’ comp insurance company have to actually refer an injured worker to a then-open job. Instead, the PA legislature opted for a system more like that used by the Social Security Administration in Social Security Disability cases. All that is required to be proven to modify workers’ compensation benefits is that suitable employment is generally available to the injured worker in the injured worker’s usual employment area.

This involves the use of “Labor Market Surveys (LMS),” also known as “Earning Power Assessments (EPA).” The injured worker is not referred to any specific job at all. The vocational expert retained by the workers’ comp insurance company just gathers data of jobs generally available in the geographic area of the injured worker. The premise is that if the injured worker wanted to look for work, these are the types of jobs the injured worker could find.

When a worker is injured in Pennsylvania, he or she is generally entitled to workers’ compensation benefits when wages are lost due to the injury. Whether this loss in wages is actually due to the injury is a point often litigated. The issue can be particularly difficult when the injured worker is terminated from his or her job, allegedly for reasons unrelated to the work injury.

This issue comes up on occasion when an injured worker is receiving total disability benefits, and the workers’ compensation insurance carrier wants to reduce or stop those benefits. The continued receipt of total disability benefits may hinge on whether the injured worker was terminated for reasons unrelated to the work injury. The case law had suggested that if an injured employee is terminated after a work injury, for actions that took place before the work injury, the termination is considered related to the work injury.

The Commonwealth Court of Pennsylvania recently addressed this issue in Harvey v. Workers’ Compensation Appeal Board (WCAB). In that case, Ms. Harvey, a registered nurse, suffered a fracture in her neck, requiring a cervical fusion, in a work-related motor vehicle accident on July 4, 2001, and began to receive total disability benefits.

While there is no limit to the period of time an injured worker in Pennsylvania can receive workers’ compensation benefits for total disability, the same is not true for partial disability. In PA, an injured worker can receive a maximum of 500 weeks of partial disability. After that time, even if a loss in earnings remains, as a result of the work injury, the workers’ comp insurance carrier is relieved of payment of the workers’ compensation benefits for partial disability.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Reutzel v. Workers’ Compensation Appeal Board (WCAB), addressing whether this 500 week period of partial disability benefits can be “stacked” if there is more than one injury.

In September, 1996, Ms. Reutzel injured her right shoulder at work. As a result of this injury, Claimant was limited to working reduced hours and began to lose wages. Workers’ compensation benefits for partial disability began. In May, 1997, Ms. Reutzel suffered another injury at work, this time to her lumbar spine. Again, she quickly went back to work, although she remained at the same restrictions as before. Partial disability benefits continued, as they had before the 1997 injury.