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One of the most common work injuries we see in PA is to the back, whether it is a herniated or bulging lumbar disc, an aggravation of degenerative disc disease, or a soft tissue injury, such as a strain or sprain. These injuries run from a minor strain, which can be cured by rest and medication, to a herniated disc encroaching on a lumbar nerve root, which can require injections and surgery.

When an injured worker has suffered a herniated lumbar disc, and is having pain or numbness down one or both legs (“radicular symptoms” or “lumbar radiculopathy”), surgery may be discussed. One of the more common procedures to relieve the pressure of a herniated lumbar disc pressing on a nerve root is called a discectomy, where the disc material is simply removed.

A recent article published in the Journal of Bone & Joint Surgery examined some previous studies regarding the timing and effectiveness of lumbar discectomies. One of the more interesting findings was that pain relief occurs first after a lumbar discectomy, followed by recovery of motor function (strength), then improvement in sensation. In other words, it is not unusual for the injured worker to continue to have abnormal sensation after surgery. This is an important thing to keep in mind after surgery, so that the injured worker does not feel as if his or her recovery is not going well.

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In Erisco Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), decided by the Commonwealth Court of Pennsylvania on September 3, 2008, an employer unsuccessfully tried to defend a Claim Petition by saying Claimant failed a drug test and that the drug use led to the work injury. Under the PA Workers’ Compensation Act, intoxication of the injured worker can be an “affirmative defense” by the workers’ compensation insurance company. This means that the burden is on the workers’ comp insurance carrier to prove not only that the injured worker was intoxicated (by drug or alcohol), but that the intoxication caused the injury.

When Mr. Luvine filed his Claim Petition, the workers’ compensation insurance company tried to submit the results of a drug test that they alleged was positive for an illegal substance. Part of the evidence required by the workers’ comp insurance company is to show “chain of custody” regarding the drug test; basically, they must show the sample was properly collected, authenticated and controlled throughout the testing process. This is primarily applicable when the laboratory which tests the sample is not the party who obtained the sample. The Workers’ Compensation Judge (WCJ) rejected the drug test results because the workers’ compensation insurance carrier failed to prove chain of custody, and the WCJ granted the Claim Petition.

Eventually, Mr. Luvine was released back to work, but his employer refused to offer him a job, since he had (in their eyes) failed the drug test. The workers’ comp insurance carrier filed a Petition to Suspend the workers’ compensation benefits, because they said the reason the injured worker was having wage loss now was that he failed a drug test (and no longer was due to the work injury).

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In a developing situation we have discussed here back in May 2008, and then again in July 2008, the Philadelphia Workers’ Compensation Hearing Office will be moving to a new location. In our July 2008 blog entry, we told you of the new address of the Philadelphia Workers’ Comp Hearing Office (110 North 8th Street, Philadelphia, PA 19107). We have now been advised of the date this relocation is scheduled to take place.

We have been told that the move to the new Philadelphia Workers’ Compensation Hearing Office will take place the week of November 17, 2008. Hearings will not be held from November 17, 2008, through November 30, 2008. The new office is then scheduled to open for business on December 1, 2008. We are told that any hearings currently scheduled for the Philadelphia Workers’ Comp Hearing Office from November 17, 2008 through November 30, 2008, will be cancelled and rescheduled.

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One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

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Under the PA Workers’ Comp Act, generally speaking, a worker is not eligible for Pennsylvania workers’ compensation benefits when he or she is commuting to work. Under the law, the worker is not “in the scope of employment” at that time. One exception to this rule is for “traveling employees,” who are usually in the scope and course of their employment while moving from place to place. Obviously, it is advantageous for an injured worker who is hurt commuting to work to be found to be a “traveling employee.”

In a recent case, Jamison v. WCAB (Gallagher Home Health), the Commonwealth Court of Pennsylvania held that a home health nurse, who was hurt commuting to her assignment, was a traveling employee, despite the fact she worked for three different employers (sometimes all on the same day). The Workers’ Compensation Judge (WCJ) had found that Claimant was not a traveling employee, because she could be working for any of her three employers on any given day. As such, the WCJ denied the Claim Petition.

In reversing the WCJ, the Court found that claimant was a traveling employee with regard to her home health nurse job (the issue of multiple employers was essentially irrelevant). Once found to be a traveling employee, claimant was entitled to a presumption that she was working for her employer at the time she was driving from her home to the patient’s house. To prevail and defeat the claim, the workers’ compensation insurance company would have to prove the claimant abandoned her duties for the employer (for instance, by proving that claimant was actually on her way to work at one of her other jobs). Since the workers’ comp insurance carrier failed to prove this, the WCJ erred in denying workers’ compensation benefits to claimant.

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Under the most recent amendments to the Pennsylvania Workers’ Compensation Act, passed in 1996, once an injured worker in PA has received total disability benefits for 104 weeks, the workers’ comp insurance company can obtain an Impairment Rating Evaluation (IRE). If the work-related injury results in a whole body impairment rating of less than 50% (as almost all injuries do – this is an impossibly high standard), the PA Workers’ Compensation Act says the injured worker is changed from “total” disability status to “partial” disability status.

While this change from total to partial disability status does not change the amount of workers’ compensation benefits the injured worker receives, it does start the clock running regarding how long the benefits can be received. Partial disability benefits in PA are payable for a maximum of 500 weeks.

I go through this background, so that you understand the significance of a recent case decided by the Commonwealth Court of Pennsylvania, Combine v. WCAB (National Fuel Gas Dist. Co.). In this case, the Court held that a PA workers’ compensation insurance company cannot get an impairment rating until the IRE doctor first determines that a claimant has reached “maximal medical improvement” (MMI). Any obstacle in the path of the insurance carrier is certainly a benefit to claimants.

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A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

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Under the PA Workers’ Compensation Act, an injured worker must give his or her employer notice of the injury within 120 days of the injury. If notice is not given within 120 days of the work injury, a workers’ comp claim for the injury will be barred. This issue becomes somewhat more complicated when the injury is one which occurs over a period of years, such as a noise-induced hearing loss.

A recent case decided by the Commonwealth Court of Pennsylvania, Crompton Corp. v. W.C.A.B. (King), found that the requirement of giving notice is triggered only when an injured worker is told by a doctor that he or she has suffered a loss of hearing as a result of exposure to noise at work. Until an injured worker is advised of this, there is no requirement that notice be given. The fact the injured employee may suspect, or even believe, that he has a work-related hearing loss is not enough to trigger the start of the 120 day notice period.

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Many times in Pennsylvania workers’ comp cases we see an injured worker devastated by a physical injury. Once a provider for his or her family, the injured worker may find themselves home, unable to work, do any chores around the house or take part in hobbies or pleasurable activities. Frequently, this can lead to emotional strain in the household. This dramatic change in an injured worker’s life often leads to psychological symptoms, such as depression and anxiety. When the depression and anxiety results from a work-related injury, in PA, the new psychological condition can be added to the workers’ compensation case.

While case law has changed over the years, as to how long an injured worker has to add more injuries or diagnoses to a workers’ compensation case in Pennsylvania, a recent case from the Commonwealth Court of Pennsylvania has confirmed that a workers’ comp claimant in PA can file a Petition to add a psychological condition to an accepted physical injury any time within three years of the latest payment of PA workers’ compensation benefits.

Though the claimant in this recent case, Campbell v. WCAB (Pittsburgh Post Gazette), ultimately lost in his attempt to add a psychological injury to his accepted physical injury, the Court disagreed with the Workers’ Compensation Judge that the claimant waited too long to file his Petition. The Court concluded that the Workers’ Compensation Judge was wrong about the statute of limitations, but the Workers’ Compensation Judge also found the medical evidence submitted by claimant not credible, so claimant still lost.

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Normally, in this blog we give readers the latest workers’ compensation cases from the Pennsylvania Courts, news from the Pennsylvania Bureau of Workers’ Compensation and developments in medical treatment for work injuries. Today, though, is just a cute story.

I was putting on my suit jacket to enter the courtroom at the Allentown Workers’ Compensation Hearing Office the other day, when a jacket from my daughter’s Barbie doll dropped from my suit jacket sleeve onto the floor. There was an awkward silence as we sort of all looked at each other, before bursting into laughter. I then picked up Barbie’s jacket and put it in my pocket for safe keeping (I would be put on the bad list if I lost Barbie’s jacket!).

Times like this remind us to remember the little things in life!

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