Pennsylvania Workers' Compensation Lawyer Blog

As discussed in previous blog entries, for several years now, the Courts in PA have caused decisions by Pennsylvania’s injured workers to have drastic consequences beyond what an injured worker could reasonably expect.

Because of the decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Hensal), rendered by the Commonwealth Court of Pennsylvania in 2008, the simple act of filing for a pension can easily lead to a loss of workers’ comp benefits for an injured worker.

Well, don’t look now, but Commonwealth Court has struck again. Now, an injured worker who testified credibly that he is NOT retired, that he had NOT filed for a retirement pension from his employer (even though one was available), that he would go back to work if a job was available within his physical restrictions and that he filed for Social Security Retirement benefits only after the workers’ comp insurance carrier refused to reinstate his benefits, has been found by the Court to have voluntarily removed himself from the labor market, ending his entitlement to PA workers’ compensation indemnity (wage loss) benefits.

In this decision, Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), the injured worker suffered an injury to his knee in March, 2003. He eventually went back to work, at a modified duty job, until January 27, 2007, when he stopped working due to a worsening of his condition (and had a total knee replacement performed on January 31, 2007).

The workers’ compensation insurance carrier, in their infinite wisdom, denied a request to reinstate workers’ comp benefits. Having no other source of income at that point, and being totally disabled, on the advice of his attorney, Claimant applied for Social Security Retirement (SSR) benefits. Claimant also filed a Petition to Reinstate his workers’ comp benefits, as of January 27, 2007, when he again became totally disabled by the work injury.

In litigating the Petition for Reinstatement, Claimant presented evidence from not only his own treating doctor, but also from the Independent Medical Examiner retained by the workers’ comp insurance carrier. Both doctors agreed the work injury aggravated a pre-existing condition in the knee, resulting in the need for the total knee replacement. The workers’ compensation insurance company presented no evidence.

The Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement, and also awarded unreasonable contest attorney fees against the insurance carrier. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed, agreeing with the WCJ that the workers’ comp insurance carrier failed to prove the injured worker voluntarily removed himself from the labor market, and that no reasonable contest was shown. Logic and justice prevailed . . . for awhile.

Upon further appeal, the Commonwealth Court reversed. The scope of appeal essentially is whether the WCJ, and/or the WCAB, committed an error of law (The WCJ is the ultimate Finder of Fact, and such findings, if supported by sufficient evidence, should not be disturbed upon appeal). Regardless, the Court found that Mr. Zuhosky voluntarily withdrew from the labor market, so the granting of the Reinstatement Petition was in error.

The Court based its decision on the fact Claimant testified that he would “like to retire” (Who wouldn’t?). Claimant did NOT testify that he has retired. Mr. Zuhosky did file for SSR benefits, and did take a pension from his union (but not his employer). The Court found that the actions of Mr. Zuhosky triggered the switch of burdens of proof, as noted in the Hensal case. To win, then, Mr. Zuhosky had to demonstrate that he was actively seeking employment or that he was disabled from all employment by his injury. Since he failed to prove either, the Court found the Petition for Reinstatement could not be granted. Having conducted a seminar on this very issue, I can safely say this is a difficult standard to meet.

A strong dissent, authored by Senior Judge Friedman, was written both logically and clearly, observing that SSR was only taken after reinstatement was refused, that there was no evidence when the union pension was taken, that Mr. Zuhosky did not take a pension from his employer (and that he testified credibly that he would return to work if possible), and that Mr. Zuhosky actually did try to go back to work briefly after the surgery. Based on all of this, Judge Friedman felt the “voluntary” withdrawal from the labor market was anything but “voluntary.”

In my view, the opinion of Judge Friedman, while not the majority, certainly reflects the truth and reality of the world in today’s economy. The majority’s view would allow the injured worker to choose between starving his or her family or having workers’ compensation benefits. The law in Pennsylvania was never intended to present an injured worker with such a cruel choice.

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This being a free Country, a workers’ compensation insurance company in PA cannot “force” an injured worker to get any medical treatment. However, the Pennsylvania Workers’ Compensation Act permits the suspension of workers’ comp benefits if an injured worker refuses “reasonable” medical treatment (Known as a “Forfeiture” Petition). Often in those cases, the issue is whether the treatment at issue (anything from carpal tunnel release, to lumbar fusion, to total knee replacement, to epidural steroid injections) is actually “reasonable” in any particular case.

An interesting aspect of this issue was recently examined by the Commonwealth Court of Pennsylvania in Bereznicki v. Workers’ Compensation Appeal Board (Eat ‘N Park Hospitality Group). In that case, the question was whether the proposed treatment had to actually be intended to return the injured worker to gainful employment. In a decision surprising to many, the Court held that the treatment did NOT have to be designed to return the injured worker to gainful employment to lead to a suspension of benefits.

The concept of a “Forfeiture Petition” makes sense; it is designed to keep an injured worker from refusing treatment which would put the injured worker back on the job (in reality, however, I doubt many folks would truly refuse treatment that would make them better, but the insurance industry seems to disagree with me). But, to me, that is the point – the fact the injured worker could return to work.

The treatment at issue in Bereznicki was a detox program for prescription medications. There was no evidence the detox program would enable the injured worker to become employable (which makes sense, since the program would provide no treatment for the disabling injury itself).

In holding that the Workers’ Compensation Judge correctly granted the Forfeiture Petition and suspended workers’ comp benefits, the Court stated, “Although such a program would not return Claimant to her pre-injury job, her refusal of such treatment certainly increases her incapacity.”

Personally, I find that to be an odd standard to use, in what amounts to forcing a person into medical treatment. If the treatment is designed simply to cure a problem and improve function and quality of life, why is that the role of the workers’ comp insurance carrier? Should that not be the decision of the injured worker, and his or her treating doctors? Once a person is “totally” disabled, I am not aware of any math that would allow the person to become more disabled.

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Under the Pennsylvania Workers’ Compensation Act, an insurance carrier cannot just stop, or even change, payments of workers’ comp benefits. Any change made by the workers’ compensation insurance carrier in PA, without permission of the injured worker, or a Workers’ Compensation Judge (WCJ), may be met with an assessment of penalties. This leads us into an examination of how an insurance carrier can try to reduce such benefits.

When a workers’ comp insurance carrier receives evidence that the medical condition of an injured worker has changed, the carrier must file a Notice of Ability to Return to Work. The law tells us that this document must be filed before the workers’ compensation carrier can file a Petition to Modify or Suspend (workers’ comp benefits), based on some wage-earning capacity.

In the case of an injured worker actually going back to work, the insurance carrier has a period of time to file a Notification of Modification or Suspension. This document sets forth the allegations regarding the wages now being earned by the injured worker. If this document is not challenged in court by the injured worker, the effect is the same as if the injured worker agreed to the terms recited within the document (as if the injured worker had agreed to those terms in a “Supplemental Agreement.”). If the workers’ compensation insurance carrier does not file the Notification of Modification or Suspension in a timely fashion, then the insurance carrier must file a Modification, or Suspension, Petition and litigate the matter before a WCJ.

A question which was unclear was whether a Notice of Ability to Return to Work had to be filed in the case when the injured worker actually does go back to work. Recently, the Commonwealth Court of Pennsylvania decided this issue in Carolyn Ashman v. Workers’ Compensation Appeal Board (Help Mates, Inc.).

The Court held, simply, that the Notice of Ability to Return to Work is not necessary if the injured worker has actually gone back to work. The Court reasoned that the purpose of this Notice is to make sure the injured worker is aware he or she has been released to some type of work; if that person has actually gone back to work, obviously the person was aware of such release. The Court also added that no new Notice is required every time changes are made to the injured worker’s capabilities.

So, for now, it appears the issuance of a Notice of Ability to Return to Work must be issued in any case where the injured worker has not actually returned to employment. If no Notice was issued, then a subsequent Petition to Modify or Suspend (based on assumed earnings) should fail.

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From our blog, and our presence in the community, we receive many questions regarding workers’ compensation in Pennsylvania. Just recently, someone sent us an e-mail asking, “Is it a good idea to settle a case?”

Like many aspects of law, there is no easy answer to this question. Settling a workers’ compensation case in PA is a complicated issue. Frequently, there are good reasons to settle a case, and good reasons to wait. Only a discussion of the injured worker’s exact situation provides an answer in each person’s case. Facts in every case are different, as are the injured workers involved.

Even once an injured worker decides that settling the workers’ comp case is the way to go, questions remain. How much is the case worth? Will the medical treatment stay open, even for a short period of time? Will a resignation or release be necessary? Is a Workers’ Compensation Medicare Set-Aside (WCMSA) needed? These and other questions must be addressed as the parties negotiate a settlement.

On our website, a page is dedicated to just discussing the aspects of workers’ compensation settlements in PA. Settlements are also mentioned on our FAQ web page.

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Typically, in Pennsylvania, a workers’ compensation claim has two important time constraints – a period within which the injured worker must provide notice of the work injury to his or her employer (within 120 days), and a period within which a Claim Petition must be filed with the Bureau of Workers Compensation (within three years). Though this is the rule, there are, of course, exceptions.

In Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber-Brown), the Commonwealth Court of PA was faced with a situation where the eye of an injured worker was exposed to herpes simplex virus around 1980. The injured worker gave notice to her employer at that time, but the claim was never formally accepted. In 1985, the injured worker left that job. Through the years, the eye had occasional episodes of infection.

In 2007, the treatments for an infection failed to work, and the injured worker underwent a cornea transplant. At that point, the injured worker was legally blind in that eye, and there was a loss of use of the eye under the Pennsylvania Workers’ Compensation Act (called a “Specific Loss”).

A Claim Petition was filed and benefits were awarded by a Workers’ Compensation Judge (WCJ). The Workers’ Compensation Appeal Board (WCAB) affirmed the decision. The WCJ found that the initial exposure was in 1980, but the actual date of injury was May 16, 2007 (the date the doctor told the injured worker that the damage to the eye required the cornea transplant).

The Commonwealth Court also affirmed. The three year statute of limitations was not lost, because the date of exposure was irrelevant. It is the date of INJURY, said the Court, that matters. Since the eye was not “lost” until May 16, 2007, that was the date the “injury” occurred.

Another interesting aspect of this case is the wage the injured worker was earning at the time of the injury [upon which workers’ comp benefits are based] (known as the “Average Weekly Wage” or AWW). The WCJ used Claimant earnings in 2007 (for her new employer). As a practical matter, the injured worker had not worked for the time-of-injury employer since 1985. The workers’ compensation insurance carrier had argued the AWW should either be what the injured worker earned in 1980 (when she was exposed) or 0, since she had no earnings from that employer in 2007. The Court again denied the arguments of the insurance carrier, noting that the date of INJURY was May 16, 2007, so the AWW was properly based on her actual earnings at that time.

As you can see, there are many complicated issues in the world of PA workers’ comp. That is why our firm limits its practice to just representing injured workers in Pennsylvania workers’ compensation cases. You can learn more about the Pennsylvania Workers’ Compensation Act by visiting the FAQ page of our website.

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When a violation of the Pennsylvania Workers’ Compensation Act takes place, the proper avenue of relief is to file a Petition for Penalties. This Petition allows a Workers’ Compensation Judge (WCJ) to assess a penalty of up to 50% of the benefits at issue. Typically, this is filed by an injured worker against the workers’ comp insurance carrier. Common violations include a delayed payment of wage loss benefits, or a refusal to pay for medical treatment related to the work injury.

Until recently, there was no clear answer as to whether a Petition for Penalties could be filed BY a workers’ compensation insurance carrier AGAINST an injured worker. The Commonwealth Court of Pennsylvania has now answered this question in Yespelkis v. Workers’ Compensation Appeal Board (Pulmonology Associates Inc.). The answer is simply, yes, a Penalty Petition can be filed against a claimant in a workers’ comp case.

However, importantly, while a WCJ can assess a penalty against a workers’ compensation insurance carrier of up to 50% of the benefits at issue, the WCJ is limited to assessing a penalty of a forfeiture of interest against an injured worker. This, the Court said, is consistent with the language of the PA Workers’ Compensation Act.

Interestingly, the Court reversed the decision of the Workers’ Compensation Appeal Board (WCAB) and remanded the case to the WCJ, to determine whether unreasonable contest attorney fees should be assessed against the workers’ comp insurance carrier. Though filing a Petition for Penalties against a claimant is not unreasonable as a matter of law, as with any petition filed by the carrier, if there was not a sufficient basis upon which to file the petition, counsel fees are to be assessed.

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According to the PhillyBurbs.com, Rothman Institute, a highly respected medical practice based in Philadelphia, PA, has now opened a private hospital in Bensalem, PA. The hospital, the first opened by Rothman Institute, will handle only orthopedic conditions. There are 24 beds in the facility, which also contains medical offices.

More information can be found on the website dedicated to the new hospital, known as The Bucks County Specialty Hospital. While this facility is the first hospital opened by Rothman Institute, the practice does have ten offices throughout the Philadelphia area. The headquarters is located at Thomas Jefferson University Hospital in Center City Philadelphia.

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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.”

Note though, in the “dicta” (a finding of a court which is not relevant to the “holding” of a case), the Court states that the ability to suspend both indemnity benefits AND medical benefits is within the “sound discretion of the WCJ” and will be upheld unless abuse of discretion is shown. This, the Court said, allows the WCJ to uphold the purpose of the PA Workers’ Compensation Act, which could be frustrated by an injured worker, with benefits already suspended, continuing to receive medical benefits while evading a court-ordered IME.

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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.”

The Workers’ Compensation Judge (WCJ) agreed that the collective bargaining agreement provided travel expense to Mr. Walker for his commute to Pennsylvania, and that, therefore, Mr. Walker was in the scope and course of his employment at the time of the injury. As such, the WCJ granted the Claim Petition and awarded workers’ comp benefits. The Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ, though the WCAB said the reason was because Mr. Walker benefited his employer by accepting the unpopular run, not because of the travel expenses.

Unfortunately for Mr. Walker, the Commonwealth Court of PA disagreed with the reasoning of both the WCJ and the WCAB, and reversed, denying the Claim Petition. As to the travel expenses for getting to the depot in PA, the Court held that since the travel reimbursement was a flat rate (for all drivers), and was not dependent on the time or distance in the commute, and the employer did not control the “means of transportation,” the exception to “The Going and Coming Rule” was not met.

Further, the Court held that accepting an unpopular job location or assignment does not rise to the level of “special circumstances” required for this exception to the rule. The Court felt that having an employee show up at work (even for an unattractive job or at an unappealing job location) is a “universal” circumstance, expected by every employer in Pennsylvania, as opposed to a “special” one.

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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 Quiah, the injured worker was released to light duty work. The employer offered her a light duty job, and in the job offer letter, specifically listed the duties which would be required. The key, though, is that the job offer letter also stated that this position is merely an at-will job, and that the “job duties, tasks, work hours and work requirements may be changed at any time.”

Relying on the existing law, the Workers’ Compensation Judge (WCJ) found the employer witness not credible, because the job carried these two limitations. The WCJ found that the job was not available to the injured worker. The Workers’ Compensation Appeal Board (WCAB) agreed.

The Commonwealth Court of PA reversed the decision of the WCJ, and found the job available as a matter of law. First, the Court found that the WCJ erred in finding the employer witness not credible; placing these limitations on the job offer, the Court said, had no impact on credibility and the WCJ erred in concluding otherwise.

As to the statement that the job was at-will, the Court observed that most jobs in PA are at-will (short of a contract employee or a union), and therefore, this statement means nothing. This can easily be distinguished from the situation where a job is only offered for a finite period of time. Candidly, this conclusion is reasonable, and consistent with precedent.

More troubling for us, as attorneys who represent injured workers in PA, is the Court’s dismissal of the second caveat, that job duties can be changed at any time. The Court flippantly noted that if new duties are inconsistent with the injured worker’s capabilities, the injured worker can simply file a Petition for Reinstatement. This seems a rather naïve view from such a learned body. While the injured worker can discuss the initial job offer letter with his or her lawyer, and doctor, and consider options without duress or pressure, the injured worker has no such luxury when job duties are changed at any moment during a work day. This seems to be a recipe for disaster for an employer to intimidate its employee into doing more than his or her condition would safely allow. Since the Courts are fond of noting that the Pennsylvania Workers’ Compensation Act is remedial legislation, intended to be liberally construed in favor of the injured worker, such a draconian ruling from this Court is quite disappointing.

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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 its decision, the Court found that the testimony of the employer witness was not hearsay. The witness was not testifying from the report (which was arguably hearsay), but instead was giving his opinions based on the testimony of Claimant as to what took place. As a result, the Court affirmed the decision of the WCJ, and the WCAB, in denying the Claim Petition.

Actually, to my review, and that of the dissent, authored by Judge McCloskey, whether the testimony of the employer witness was hearsay or not does not resolve the issue. The dissent pointed out that by making this case turn on whether Claimant followed “appropriate police response” injects a negligence aspect to a workers’ compensation case. Since the PA workers’ comp system is specifically designed to be a no-fault scheme, raising the issue of whether proper procedure was followed sets a dangerous precedent. The dissent suggests, and I agree, that the matter should have been remanded to the WCJ to consider “the factual question of whether claimant, in acting on the belief that he was authorized to make arrests while off-duty, took action with the intent to accomplish an arrest of the person who shot him.”

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When an aggrieved party wants to appeal a decision of a Workers’ Compensation Judge in PA, the first step is to the Pennsylvania Workers’ Compensation Appeal Board (WCAB). Until recently, the WCAB was comprised of a total of 15 commissioners, who would travel throughout the State of Pennsylvania, holding oral arguments in Philadelphia, Pittsburgh, Harrisburg, Scranton, Johnstown and Erie.

Unfortunately, due to budget difficulties faced by PA, the total of 15 commissioners on the WCAB has been drastically reduced. Right now, only five commissioners remain. Apparently, there will be another three commissioners named, when they are approved by the PA Senate.

This reduction in staffing is almost certain to have a negative effect on the speed with which WCAB decisions are issued. While we would love to provide a link for more information, there has been no official word on this development from the PA Bureau of Workers’ Compensation (other than to change the listed commissioners to the current total of five).

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Posted In: PA Workers Compensation Bureau Update , Worker Comp Generally , Workers Comp Appeals , Workers Compensation Litigation

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