Pennsylvania Workers’ Compensation Lawyer Blog

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.

In PA workers’ compensation, there is no limit to how long an injured worker can receive total disability benefits. Once an injured worker receives total disability benefits for a period of 104 weeks, however, the workers’ comp insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE). Similar to an Independent Medical Examination (IME, more practically known as a Defense Medical Examination, DME), a physician conducting an IRE will examine the injured worker.

Based on that examination, the IRE physician will calculate the whole body impairment rating. The rating is to include only the effects of the work injury. If the whole body impairment rating is found to be less than 50%, then benefits are changed from total to partial (though the amount of benefits received should not change). We have discussed the IRE process in previous blog entries.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Johnson v. WCAB (Workers’ Compensation Appeal Board). This decision deals with what can be challenged in an impairment rating, once the status is changed from total to partial.

Who better than the injured worker to know the pain that person is feeling? At this point in medical science, we do not have a “pain meter.” Doctors can examine a person, and obtain diagnostic testing, such as x-ray, MRI and CT scan, but, ultimately, doctors can only tell us whether they can find an objective basis for a person’s pain. No doctor could credibly state whether a person has pain.

This becomes an issue in PA workers’ compensation cases. A Workers’ Compensation Judge (WCJ) must decide whether to believe an injured worker, when he or she testifies regarding the symptoms they suffer. At least, that is how a reasonable person could assume the system works.

In reality, in PA, according to a recent decision by the Commonwealth Court of Pennsylvania, the testimony of the injured worker, without matching testimony from a physician, cannot defeat a petition filed by the workers’ compensation insurance carrier to modify or suspend the injured claimant’s workers’ compensation benefits. In World Kitchen, Inc. v. WCAB (Workers’ Compensation Appeal Board), the Independent Medical Examiner (IME, otherwise known as Defense Medical Examiner (DME)), released the injured worker to full time work.

Injured workers in Pennsylvania are entitled to payment of wage loss benefits, as well as payment for medical treatment related to the work injury. The term “medical treatment” in PA is defined broadly. It includes obvious items, such as an MRI or x-ray, medications, doctor visits and surgery, but it also can include items you might not immediately consider, such as prosthetic devices and home modifications.

Regarding home modifications, Pennsylvania Courts have previously held that a workers’ comp insurance carrier only has to modify an injured worker’s home one time. While the workers’ compensation insurance company is required to replace medical equipment that wears out, such as wheelchairs, braces and orthotics, the law was unclear whether revisions to a home modification had to be paid for by the workers’ comp insurance carrier.

Recently, the Commonwealth Court of Pennsylvania decided the case of Equitable Resources v. WCAB (Workers’ Compensation Appeal Board). In that case, the injured worker was paralyzed in the work injury. The workers’ compensation insurance carrier paid for modifications to the home. Unfortunately, some time later, it was discovered the modifications were done poorly, and considerable expense was required to fix the mistakes made by the original contractor (who, by the way, was selected by the employer). The workers’ comp insurance carrier refused to pay for the subsequent repairs, believing they had paid for the initial home modification, and that was the extent of their responsibility.