Pennsylvania Workers’ Compensation Lawyer Blog

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.

As we discussed in a previous blog entry, the Supreme Court of Pennsylvania accepted review of the Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill) case. This case dealt with how one can change or amend a Notice of Compensation Payable (NCP) under the PA Workers’ Compensation Act. Yesterday, the Supreme Court issued a decision, affirming the decision of the Commonwealth Court of PA.

The Supreme Court decided that there are two types of changes one can make to a NCP: The change is either a “corrective amendment” (meaning the diagnosis or injury was one present when the work injury took place) or it is a “subsequently-arising” or “consequential” condition (something which happened after the date of injury, such as depression from chronic pain, Complex Regional Pain Syndrome (CRPS)/Reflex Sympathetic Dystrophy (RSD), fibromyalgia, overuse syndrome, just for examples).

A Workers’ Compensation Judge (WCJ) can order a change to the NCP in the “corrective amendment” situation, regardless of what type of litigation is pending. However, if the situation is one involving a subsequent or consequential condition, then the claimant must file a Petition to Review. This distinction drawn by the PA Supreme Court represents a change from what was believed to be existing law (Specifically, the cases of Jeanes Hospital v. Workers’ Compensation Appeal Board (Hess) and Commercial Credit Claims v. Workers’ Compensation Appeal Board (Lancaster), both previously decided by the Supreme Court of PA).