Pennsylvania Workers' Compensation Lawyer Blog

When a work injury in Pennsylvania is not obvious, the injured worker must present expert medical testimony to explain how the work duties caused the work injury. This gets even more complicated when the condition at issue is caused by a combination of the work duties and pre-existing pathology, such as in the case of a heart attack (in that situation, the injured worker (known as the “Claimant”) must prove that the work-related cause is a substantial contributing factor to the disability).

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Bemis v. Workers’ Compensation Appeal Board (Perkiomen Grille Corp.). Here, the injured worker, a chef and manager, suffered a heart attack when he was moving kegs of beer and when he was lifting a heavy pot of chili. A Claim Petition was filed and the case was litigated before a Workers’ Compensation Judge (WCJ). The WCJ noted that Claimant’s medical expert said the work duties “certainly could have” and “probably” caused the heart attack. The WCJ found this opinion “equivocal” and denied the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) affirmed.

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed this decision. The Court observed that the WCJ erred by taking some statements by the doctor out of context. The mere fact an expert witness says “could have” or “probably” does not render an opinion equivocal. The entire testimony must be reviewed. When this is done, said the Court, it is clear the doctor found the heart attack was related to, and caused by, the work duties. Again, in this situation, the work duties do not have to be the sole cause, only a “substantial contributing factor.” As such, the Court felt the Claim Petition should have been granted, and remanded (sent the case back) to the WCJ, to grant the Claim Petition.

As attorneys who limit their practice to representing the injured worker in PA workers’ comp cases, we are thrilled by the recent announcement that the Supreme Court of Pennsylvania has approved the process of creating a “certified workers’ compensation attorney” in Pennsylvania (or, in other words, a workers’ compensation specialist).

We have seen the damage done to cases when an injured worker trusts a general practitioner to handle a Pennsylvania workers’ comp case. The Pennsylvania Workers’ Compensation Act is a complicated piece of legislation. As loyal readers of our blog know, this is a frequent topic of cases decided by the appellate courts in PA. Trusting a workers’ compensation case to an attorney not experienced in that area of law is akin to having an orthopedist handle your coronary artery bypass surgery. Just not a good idea.

A work-related injury can cause tremendous disruption, and loss, to both the injured worker and his and her family; we are thrilled that in the near future, that injured worker can have the confidence that he or she is selecting a “certified workers’ compensation attorney.” We, of course, look forward to becoming “certified workers’ compensation attorneys” as soon as the process for the testing and certification is completed.

It is well-settled law in PA that an aggravation of a pre-existing condition is compensable under the Pennsylvania Workers’ Compensation Act. However, depending on the condition at issue, the work injury may be seen to end when the worker returns to his or her baseline condition (or, in other words, when the “aggravation” ends and the injured worker is left with the same pre-existing condition).

This concept was explored by the Commonwealth Court of Pennsylvania in City of Philadelphia v. Workers' Compensation Appeal Board (Whaley-Campbell). Here, the injured worker had a long history of allergies and respiratory symptoms for years. The air pollution at work aggravated her conditions and led to chronic conjunctivitis.

The workers’ comp insurance carrier filed a Petition for Termination, saying the work injury had resolved and that the injured worker had returned to baseline. The Workers’ Compensation Judge (WCJ) denied the Petition. Upon further appeal, the workers’ comp insurance company argued the condition is a related to the pre-existing allergies and that a Termination of workers’ comp benefits is warranted.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCJ, finding that a Termination is not warranted. The Court distinguished this case from the general rule, finding that, though the injured worker had allergies and respiratory problems for years, she never had conjunctivitis before the work-related injury. Since the injured worker continued to demonstrate the effects of the conjunctivitis, she was not fully recovered.

Under the Pennsylvania Workers’ Compensation Act, and throughout legal process generally, once a matter has been decided, the parties cannot try the matter again. This is called the concept of Res Judicata.

Often, for any of a number of reasons, an attorney representing an injured worker asks a Workers’ Compensation Judge (WCJ) to mark a pending Claim Petition “withdrawn, without prejudice.” This allows the injured worker to continue his fight another day. If a Claim Petition is dismissed “with prejudice,” it cannot be refiled. Obviously, this is a critical distinction.

In Boyertown Foundry and ESIS Wilmington WC v. Workers' Compensation Appeal
Board (Martinez), the Commonwealth Court of Pennsylvania dealt directly with this distinction. Here, the injured worker litigated a Claim Petition before a WCJ. Upon reviewing the evidence (both parties had presented evidence to the WCJ), the WCJ “denied and dismissed” the Claim Petition “with prejudice.”

The injured worker filed an appeal with the Workers' Compensation Appeal
Board (WCAB), who affirmed the decision of the WCJ denying the Claim Petition, but modified the decision so that the Claim Petition was dismissed “without prejudice.”

An appeal was then filed by the PA workers’ comp insurance carrier to the Commonwealth Court of Pennsylvania. The Court found that the WCAB had erred, and reversed that portion of the WCAB decision. The Claim Petition was properly dismissed “with prejudice,” said The Court, because the matter was decided on its merits and cannot be refiled or relitigated at a later date. The Court then went on to note that a dismissal “without prejudice” can only come where a decision on the merits has not yet been reached. In that case, a Claim Petition can again be filed at a later date.

One aspect of the Pennsylvania Workers’ Compensation system we (thankfully) do not often address is what is known as a “fatal claim,” where the employee is killed in the work accident. This can, of course, occur in the injury itself, or it can occur as a consequence of the original injury.

The Commonwealth Court of PA recently dealt with this latter issue in J.D. Landscaping v. Workers’ Compensation Appeal Board (Heffernan). Here, the employee injured his low back (specifically, he suffered a herniated disc at L4-5, and a lumbar strain and sprain). As a consequence of the work injury, he was taking copious amounts of medications. Unfortunately, the injured worker died as a result of “multiple drug intoxication.”

What makes this case even more interesting, is that, before the death of the injured worker, a Utilization Review (UR) determined that the ongoing use of medications was neither reasonable nor necessary. The last prescription which was filled was prescribed by a different doctor, though a member of the same practice as the doctor subject to the UR (and, remember, a UR only binds the specific doctor against whom it was filed).

The Workers’ Compensation Judge (WCJ) granted the Fatal Claim Petition, finding that the medications which led to the death of the injured worker were prescribed for the work injury, so the death was related to the work injury. As to the effect of the UR, the WCJ found that the doctor who prescribed the last medications was not the same as the doctor against whom the UR was filed, so the UR was not binding on that new doctor (despite being at the same practice). This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The workers’ comp insurance carrier appealed to the Commonwealth Court of PA, arguing the Fatal Claim Petition was granted in error because the medications leading to the death were found unreasonable and unnecessary by UR. The insurance company argued, though a UR is typically provider-specific, in this case it should not be, because the prescriptions were the same as those of the provider under review and the prescriptions were done with the knowledge and approval of the provider under review.

The Court concluded that the question of whether the doctor writing the last prescription was subject to the UR is irrelevant. By law, a UR may address only whether treatment is reasonable or necessary, not whether it is related to a work injury. In this case, the only question of relevance for the Fatal Claim Petition is whether the prescription was related to the work injury. This fact was not disputed. As such, said The Court, the Fatal Claim Petition was properly granted.

We at Brilliant & Neiman LLC are proud to announce that Dina Brilliant, a partner at our firm, has been elected Co-Chair of the Bucks County Bar Association’s Workers’ Compensation Section. Ms. Brilliant will be taking the reins from the previous Co-Chair of the Section, Glenn Neiman, also a partner at Brilliant & Neiman LLC. As is customary for the Section, the other Co-Chair comes from the defense/insurance carrier side. Elected to this position was Diane Ingbritsen, an associate at the defense firm of Hill Wallack LLP. Each of these Co-Chairs will serve a two-year term.

The Workers’ Compensation Section meets throughout the year to discuss developments in the field of PA workers’ compensation, and to provide a connection between the attorneys practicing in the area of workers’ comp and the Workers’ Compensation Judges, who hear such cases. The Section also periodically produces Continuing Legal Education seminars, given to both practitioners in the area of PA workers’ compensation and the entire bar of attorneys in Pennsylvania.

We have previously tackled the issue of reinstating benefits under the PA Workers’ Compensation Act. Then, though, we were focusing on how an injured worker can get his or her benefits reinstated. A recent case from the Commonwealth Court of Pennsylvania addresses an even stickier issue – whether the injured worker has a burden to demonstrate continuing disability after the reinstatement. As you have probably learned by now, the answer is not black and white.

In Brian Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes Engineering Associates), the Court affirmed the decision of a Workers’ Compensation Judge (WCJ), which reinstated benefits for a period of time, before ordering such benefits suspended. Here, the injured worker returned to gainful employment after a 2005 work injury, causing his benefits to be suspended. When he had a recurrence of his symptoms, again rendering him disabled, he filed a Petition for Reinstatement, as of November 1, 2006.

In the ensuing litigation before the WCJ, the injured worker testified three different times, the last of which was on April 24, 2008. At that time, he testified that he had trouble standing or walking, and he required the use of a cane. The workers’ compensation insurance carrier subsequently offered a surveillance tape of the injured worker, taken on that very day he testified on April 24, 2008. Here, the injured worker was seen limping and using a cane as he entered the hearing office. Later that day, though, he was seen walking freely, without the need for a cane, bending, twisting and otherwise acting in direct contrast to his presentation to the WCJ.

The WCJ granted the Petition for Reinstatement as of November 1, 2006, since the injured worker proved his symptoms recurred. However, the WCJ then ordered the benefits suspended as of April 24, 2008, based solely on the surveillance tape. The WCJ found the testimony of the injured worker not credible as to his condition after that date.

Claimant filed an appeal with the Workers’ Compensation Appeal Board (WCAB), arguing first that his workers’ compensation benefits could not be suspended solely on the basis of surveillance evidence, and second that once he proved a right to a reinstatement of benefits, the burden for suspension fell to the workers’ comp insurance carrier. The WCAB was unmoved by the injured worker’s arguments and affirmed the decision of the WCJ. Further appeal was then filed with the Commonwealth Court of PA.

There, the Court addressed when surveillance evidence could support a suspension of benefits:

“In sum, where an employer files a petition to reduce a claimant’s benefits from total to partial disability, the employer has the burden of proof. In that situation, a video is inadequate evidence standing alone. Rather, the video must be examined by a physician or vocational specialist who can offer evidence of what kind of jobs the claimant can do, other than his pre-injury job. Likewise, where the employer has filed a termination or suspension petition, a video will not be sufficient to satisfy the employer’s burden of proof.”

When, as here, the injured worker bears the burden of proof, the role of surveillance evidence depends on the basis for the reinstatement. Because the claimant here alleged a reinstatement based on a recurrence of his symptoms, the claimant retained the burden to prove continuing disability. Thus, the WCJ correctly, based on his findings of fact, suspended the benefits based on the surveillance.

The Court distinguished a Petition for Reinstatement based on the injured worker’s loss of a light duty job; in that case, the workers’ comp insurance carrier bears the burden and surveillance evidence alone cannot support a suspension of benefits.

As we get ready to move our Trevose office to another building in the Neshaminy Interplex, we at Brilliant & Neiman LLC are changing our telephone number at this office from (215) 244-8101 to (215) 638-7500. For those unfamiliar with the Trevose area, Neshaminy Interplex is located on Route One/Roosevelt Boulevard at Old Lincoln Highway.

The Neshaminy Interplex is just South on Route One from Morrisville, Yardley, and Langhorne/Oxford Valley, in the Bensalem area. We are just South of the Philadelphia Exit off the Pennsylvania Turnpike, and just South on Route One from the I-95 Interchange. We are just North of Northeast Philadelphia (just after Roosevelt Boulevard becomes Route One). Truly a location convenient to almost all of Philadelphia, Montgomery and Bucks Counties.

Our other telephone numbers will remain the same, (610) 740-1002 for our Allentown office, and (888) WORK HELP for our toll-free line. We also continue to have meeting locations available throughout Southeastern and Central Pennsylvania, for the convenience of all of our clients.

Generally speaking, the PA workers’ compensation system is a “no fault” system. It usually doesn’t matter why an employee gets hurt, as long as he or she was doing his or her job at the time. As with most rules, of course, there are exceptions. One exception to this rule is when a work injury is suffered through the violation of a positive work order.

One common thread in cases which discuss the “violation of a positive work order” defense is an incredibly stupid action on the part of an injured worker. A recent decision by the Commonwealth Court of Pennsylvania, in Habib v. Workers’ Compensation Appeal Board (John Roth Paving Pavemasters), did not deviate far from this thread.

In this case, the employee, a laborer, was awaiting a delivery of asphalt. To pass the time, he elected to see if he could break a bowling ball with a sledgehammer. The employee struck the bowling ball once, and it cracked. The foreman then told him to “knock it off.” Undaunted, the employee smashed the ball again, causing a piece of the ball to strike the employee in the eye (leading to a loss of his eye).

The injured worker filed a Claim Petition, seeking compensation for the loss of his eye, and the case was litigated before a Workers’ Compensation Judge (WCJ). The WCJ granted the Claim Petition, finding that there was no violation of a positive work order. The WCJ found the injured worker was merely careless, and that the words from the foreman did not come sufficiently in advance to rise to the level of a positive work order.

The Workers’ Compensation Appeal Board (WCAB) reversed this decision on appeal, finding that the communication from the foreman was sufficient under the Pennsylvania Workers’ Compensation Act to become a positive work order. The decision of the WCAB was affirmed by the Commonwealth Court of Pennsylvania.

While the WCJ is indeed the ultimate finder of fact, appellate courts are able to use those findings as they see fit. The question of whether an injury was suffered in the scope and course of employment is a question of law, fully reviewable on appeal.

The Court noted that there are three elements to finding a violation of a positive work order, and all three are present in this case. First, the injury must be caused by the violation of the work order (striking the ball caused the shard to go into the injured worker’s eye). Second, the employee must know about the work order (the injured worker was specifically told to “knock it off”). Lastly, the order must relate to an activity not connected with the employee’s work duties (here the injured worker’s job was not to strike a bowling ball with a sledge hammer). Since the workers’ comp insurance carrier prevailed on all three elements of this defense, the injured worker is precluded from receiving benefits for the injury.

How the Pennsylvania workers’ compensation system handles undocumented workers is a frequently misunderstood topic, which we have previous addressed. We mentioned that undocumented workers are entitled to workers’ compensation benefits as a general rule, thanks to the Pennsylvania Supreme Court’s decision in Reinforced Earth Co. v. Workers’ Compensation Appeal Board (Astudillo).

This result was intended to defeat the tremendous incentive for employers to hire illegal immigrants. If such workers were not eligible for PA workers’ comp benefits, an employer could simply discard the worker when he or she was injured. Employers in PA, as well as throughout our Country, are already required to ascertain a potential employee is eligible to work in the United States. Sadly, employers regularly disregard such Federal laws, apparently without any official retribution.

On the other hand, the PA Supreme Court also recognized that the immigration status of an injured worker is relevant to an injured worker’s employment status. Therefore, an undocumented worker is entitled to PA workers’ comp benefits as long as the injured worker is totally disabled. Once the injured worker is released to any type of work, however, the reason the injured worker is not employed is the immigration status. As such, once an undocumented worker is released back to any type of gainful employment, a Pennsylvania workers’ compensation insurance carrier can obtain a suspension of wage loss benefits (medical benefits do continue without regard to immigration status).

How the PA workers’ comp insurer proves that a worker is undocumented or illegal, and not eligible for employment in Pennsylvania (or in the United States as a whole), was recently addressed by the Commonwealth Court of Pennsylvania in Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz).

In this case, the worker suffered a back injury, alleged to be a herniated disc with lumbar radiculopathy, while performing his job and subsequently filed a Claim Petition. During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker was asked whether he was a citizen and whether he was an undocumented worker; he refused to answer either question, invoking his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Both the injured worker, and the workers’ comp insurance carrier submitted medical testimony that the injured worker was not physically capable of performing his pre-injury job, but that he was capable of modified duty work.

The WCJ granted the Claim Petition, but found that wage loss benefits were suspended on the date of the injury, because the injured worker was an undocumented alien worker. The WCJ arrived at this conclusion by taking an “adverse inference” from the injured worker’s refusal to answer questions regarding his immigration status.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the suspension of benefits. The WCAB ruled that an adverse inference alone was not enough to prove that the injured worker was an undocumented alien. This was affirmed by the Commonwealth Court of Pennsylvania. Since the burden on whether the benefits should be suspended rested with the workers’ comp insurance carrier, the suspension was not warranted. That the WCJ drew an adverse inference was correct, said the Court, but the adverse inference alone could not prove that the injured worker was an undocumented alien.

As attorneys who represent injured workers in PA, we have been hearing a great deal of griping from attorneys for the insurance carriers about this decision. How can they prove an injured worker is an undocumented alien, they complain. To us, the answer is simple and ironic – the United States Government created a process for employers to ascertain a prospective employee’s immigration status several years ago. If employers simply abide by already existing Federal law, they will not “accidentally” hire an undocumented alien, and this will never be an issue. We greet these workers’ comp insurance carrier complaints with amusement, since the problem stems solely from the employers’ own illegal actions.

When a workers’ compensation insurance carrier in Pennsylvania does not agree with the medical treatment being received by an injured worker, there are steps the carrier can take. The most common is “Utilization Review,” which challenges the reasonableness and necessity of medical treatment. The carrier can also file a Petition to Review Medical Treatment, if the treatment is believed to be unrelated to the work injury. While the workers’ comp insurance company has the further option of simply ignoring the medical bills, this can lead to an undesirable result for the insurance carrier.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of CVA, Inc. and State Workers’ Insurance Fund v. Workers’ Compensation Appeal Board (Riley), where the insurance carrier took that last option and just ignored the bills it did not like. Thankfully for injured workers in PA, the decision did not go well for the insurance carrier.

This case involved a worker who injured his left knee, and received therapeutic magnetic resonance (TMR) treatment. Bills were sent to the workers’ comp insurance adjuster, who denied the bills, saying either that the documentation did not support the charges, the documentation did not support the billing code, or the treatment was unrelated to the work injury. The injured worker then filed a Petition for Penalties.

Before the Workers’ Compensation Judge (WCJ), the injured worker submitted the outstanding bills (on what is called HCFA forms, the usual billing forms) and medical records to support the treatment. The workers’ comp insurance carrier submitted no evidence at all. The WCJ granted the Petition for Penalties.

The primary argument raised by the workers’ comp insurance carrier was that the injured worker had a greater burden to prove a violation of the Pennsylvania Workers’ Compensation Act, a requirement to assess a Penalty. Initially, the WCJ overruled the hearsay objection placed to the injured worker’s evidence, finding depositions of witnesses were not necessary. The workers’ comp insurance carrier then termed TMR a “novel” medical treatment, akin to “shaman oriented drivel.” No doubt the cost, at about $3,000.00 per treatment, played a role in this response (the outstanding bill at issue was just over $140,000.00). The WCJ found that the injured worker had no burden to prove the treatment at issue was “generally accepted” in the medical community.

The Commonwealth Court of Pennsylvania was no more sympathetic to the workers’ comp insurance carrier’s complaints. The Court observed that the insurance carrier could have initiated Utilization Review, if it questioned the reasonableness or necessity, or filed a Petition to Review Medical Treatment, if it disputed the relatedness. Whether treatment is “generally accepted” in the medical community goes to whether the treatment is reasonable or necessary, so that can only be addressed through Utilization Review (in other words, a WCJ lacks jurisdiction to even address whether treatment is reasonable or necessary). In the context of a Petition for Penalties, the Court found, the question was simply whether the payment of the bills was denied. The evidence submitted by the injured worker, showing the bills were for treatment to the left knee and were denied by the insurance carrier, was sufficient to establish the Petition for Penalties.

Once again, we are reporting on the Pennsylvania Court System addressing the issue of retirement, and voluntary withdrawal from the labor market, in the context of a PA workers’ compensation case.

In Department of Public Welfare/Norristown State Hospital v.Workers’ Compensation Appeal Board (Roberts), the Commonwealth Court of Pennsylvania reversed the decision of the Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ordered that the injured worker’s benefits be suspended because he had retired and voluntarily withdrew from the labor market.

The claimant in this case hurt his neck and back. After his injury, the injured worker took a retirement pension, which, as previously discussed here, may or may not be indicative of retirement. The injured worker also filed for what the Court called a “Social Security Disability Pension,” though I am not sure what that means (Social Security Retirement, akin to pension, is, of course, different than Social Security Disability). In his testimony before the WCJ, the injured worker said he did not feel physically capable of working and has not looked for work. The doctor testifying for the insurance carrier (the Independent Medical Examiner, IME, who typically is somewhat less than independent) felt the injured worker was capable of sedentary duty work.

The WCJ found the testimony of the IME credible, but denied the Suspension Petition, finding that the workers’ comp insurance carrier failed to prove its case. This was affirmed by the WCAB.

Upon further appeal, the Commonwealth Court of Pennsylvania found that the Suspension should have been granted. Because the injured worker took his retirement pension, filed for a “Social Security Disability Pension,” and did not look for any work, the injured worker had, in fact, retired and voluntarily removed himself from the labor market. Further, since the WCJ found the IME credible (that the injured worker was capable of sedentary duty work), and since the injured worker testified that he had not looked for any work, the Petition for Suspension should have been granted. On these facts, said The Court, there is no requirement that the workers’ comp insurance carrier prove that work was available to the injured worker.