Pennsylvania Workers' Compensation Lawyer Blog

A work injury is covered by the Pennsylvania Workers’ Compensation Act when the injury takes place in PA. However, even when a work injury occurs outside Pennsylvania, there are times PA has “jurisdiction” to hear the case.

One of those situations when PA workers’ comp laws can apply to a work injury taking place in another State is when the injured worker’s employment is “principally localized” in PA. Recently, the Commonwealth Court of Pennsylvania addressed what “principally localized” means in John D. Williams v. Workers’ Compensation Appeal Board (POHL Transportation).

In this case, Mr. Williams, who lives in PA, was hired by a trucking company in Ohio. The trucking company had no offices or facilities in Pennsylvania. Mr. Williams’ mileage log showed that 38% of his mileage was within Pennsylvania, 32% was in Ohio and the remaining 30% was spread over 19 different States. The injury took place in Vermont.

The Workers’ Compensation Judge (WCJ) found that PA had jurisdiction and granted the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) reversed, finding that Mr. Williams did not primarily work in PA, because the employer was located in Ohio, Mr. Williams was hired in Ohio and all assignments came from Ohio.

On appeal, the Commonwealth Court of PA reversed the WCAB and reinstated the granting of the Claim Petition as found by the WCJ. The Court found that the burden faced by Mr. Williams in this situation was to show that he was domiciled in PA and that “a substantial part” of his working time for employer was within PA. He did not have to show the work was “primarily” in PA.

Defendant argued that 38% (the time Mr. Williams worked in PA) could not be considered “a substantial part” of the working time, as 62% of the work was in a different State. The Court explained that the burden is not to show the work was primarily, or even mostly, in PA, but just to show it was “substantial.” Here, more than a third of the work was in PA, and more work was within PA than any other State. There was no argument that Mr. Williams lived in Pennsylvania. As such, the burden was met for jurisdiction to be in PA.

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Before Labor Market Surveys (LMS)/Earning Power Assessments (EPA), workers’ comp insurance carriers in PA used to actually have to prove a specific job was available to an injured worker in order to modify or suspend workers’ compensation benefits. This changed in the 1996 amendments to the Pennsylvania Workers’ Compensation Act, but any injured worker who was hurt before the amendments took place continues to fall under the “Old Act.”

In those cases, and even in LMS/EPA cases these days, the litigation starts with an Independent Medical Examination (IME), better, and more accurately, known as a “Defense Medical Examination.” Once some doctor releases the injured worker to some kind of work, the workers’ comp insurance carrier can start the vocational process (whether that be LMS/EPA, or the “Old Act” job referrals). But, when is a medical release too old, or stale, to be used?

In Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Guyders), the Commonwealth Court of Pennsylvania addressed this issue. This was an “Old Act” case, so the injured worker was sent on 73 job referrals (yes, you read that right, 73 – apparently, the workers’ comp insurance company does not know the meaning of the word “overkill.”)

The workers’ compensation insurance carrier filed a Petition to Modify or Suspend, based on the 73 job referrals. All were approved by the IME physician, who saw the injured worker, just one time, in 2003. Over the time from 2003 to 2006, the 73 jobs were referred to the injured worker. The vocational expert hired by the injured worker said a medical examination becomes outdated in six months to a year. The Workers’ Compensation Judge (WCJ) found both Claimant and her vocational expert credible, and dismissed any job referrals made more than six months after the date of the IME. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal, the Commonwealth Court of PA reversed. Though the Court agreed the WCJ is the ultimate finder of fact (and determiner of credibility), the Court then, in effect, dismissed the WCJ’s determination of credibility regarding the injured worker’s vocational expert. The Court found that there is no standard that an IME is outdated or stale after six months, and that an opinion of a vocational counselor otherwise was outside his scope of expertise.
Respectfully, we must disagree. The opinion of the claimant’s vocational counselor was offered not as a medical expert, but as a vocational expert. If that opinion was that a medical examination needs to be within six months to a year of the job referrals, in his vocational opinion, that, to us, is a valid vocational expert’s opinion. Once found by the WCJ to be credible, we believe, the Court had no right to usurp the authority of the WCJ in this respect. The Court also chided the WCJ for taking the six month end of the statement, when the vocational expert said six months to a year. Again, the law in PA is clear that a WCJ can accept the testimony of any expert, in whole or in part. It is bad enough the legislature appears determined to narrow the workers’ comp system unfairly in PA, for the Courts to follow suit is a real shame.

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A recent study published in the New England Journal of Medicine, reported by the Associated Press, found that amateur athletes (and by extension, victims of work injuries in PA), who have torn the anterior cruciate ligament (ACL) in their knee, actually do better by trying to rehab the knee before trying the surgical route.

According to the article, less than half of those in the study needed the ACL surgically repaired within two years. It appears the rehabilitation, alone, was enough in those cases.
"It seems that if you start out with rehabilitation only ... you have a good chance of ending up with an equally good outcome as if you had early ACL surgery," said Richard Frobell, of Lund University Hospital in Sweden, an author of the work.

While all situations in medicine are different, depending on the particular patient, and other factors, this article certainly suggests that an injured worker with an ACL tear should be in no rush to undergo surgery on his or her knee.

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In an earlier blog entry, we discussed the 2009 decision by the Supreme Court of Pennsylvania in Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill). This case discussed the procedure for amending a Notice of Compensation Payable (NCP).

The Court, in Cinram, decided that a “corrective amendment” (a condition which was present at the time of the injury and was erroneously left off the NCP) was to be treated differently than a “subsequently-arising” or “consequential” condition (a diagnosis not present at the time of the injury, but rather developed after the date of the injury). In the former, a Workers’ Compensation Judge (WCJ) can amend the NCP at any time any type of Petition is being litigated. On the other hand, in the latter, the injured worker must actually file a Petition to Review to achieve an amendment to the NCP.

An issue left open in Cinram was the appropriate “statute of limitations” in either of these situations. This issue has now been addressed, by the Commonwealth Court of Pennsylvania, in Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Court found there to be no difference between the two situations for statute of limitations purposes.

Whether the requested amendment to the NCP is a “corrective amendment” or a “subsequently-arising” or “consequential” condition, it now appears the injured worker must file their Petition within three years of the date of the most recent payment of workers’ compensation wage loss benefits. Failure to file a Petition within those three years may make such a Petition then barred in the future.

For the injured worker who does the right thing, and goes back to work, perhaps at modified or light duty, this may represent a trap of sorts. For example, Ms. Fitzgibbons was injured in 1997, and went back to work (at no loss in wages) in 1998. The workers’ compensation insurance carrier accepted the injury only as “epicondylitis of the left elbow.” In 2002, Ms. Fitzgibbons filed Petitions to Review (alleging she also hurt her neck, low back, left hip, leg and knee in the 1997 injury), and Reinstate (alleging she was now disabled by all of these injuries).

The Court found that her Petition to Review must fail, as she waited more than three years from the date of the last payment of compensation to file the Petition. So, while the Petition to Reinstate was timely (filed within the 500 week allotment), it too must fail, because the injury causing the disability was not that accepted by the NCP. Yet another example of how the unwary can fall victim due to the intricacies of the PA Workers’ Compensation Act.

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Some time ago, we made a brief deviation from our normal course of not blogging about own active cases, to discuss a liquor store clerk who was robbed at gunpoint. The PA Liquor Control Board (LCB) denied the claim, stating that being robbed at gunpoint was not an “abnormal working condition” for a PA LCB clerk (remember that the next time you think of stepping into a State Store in Pennsylvania – armed robbery is simply accepted as a normal course of a day by management). We filed a Claim Petition on the clerk’s behalf and litigated the case.

We are pleased to report that the Workers’ Compensation Judge (WCJ) did not buy Defendant’s argument, and did not believe that society has degraded far enough such that a clerk can expect armed robbery on his or her normal day at work. In granting our Claim Petition, the WCJ rejected the Defendant’s attempt to expand the Commonwealth Court of Pennsylvania’s disastrous decision in of McLaurin v. Workers’ Compensation Appeal Board (SEPTA), wherein the Court, in its infinite wisdom, found that a SEPTA driver’s normal workday includes being assaulted by a gun-wielding teen (sending the message, as we understand it, that anyone foolish enough to step on a SEPTA vehicle can expect to face such consequences).

Undaunted, however, the PA LCB has filed an appeal with the Pennsylvania Workers’ Compensation Appeal Board (WCAB). It appears the PA LCB’s argument is that the WCJ was incorrect and Pennsylvania liquor stores are just as deadly as SEPTA vehicles (how very proud they must feel while making these arguments). We find it amazing, not to mention disheartening, that our own governmental agencies would be stooping to such disgraceful antics to deny a case. Rather than address what they clearly view as a “normal working condition,” perhaps by improving security methods, the PA LCB instead is trying to use its stubborn ignorance and incompetence as a basis to deny an injury to one of its own employees. How can one put any word other than “disgraceful” on that?

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Posted In: Case Law Update , Firm News , Worker Comp Generally , Workers Comp Appeals , Workers Compensation Litigation

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We are pleased to present a guest blog post from http://www.metropolitanmds.com regarding the use of acupuncture. We thought this may be of benefit to injured workers, who may be interested in exploring alternative areas for pain relief:

Acupuncture is one of the oldest forms of health care and treatments on the planet, but it still serves its purposes even today. Now, while inserting dozens of needles into your body doesn't seem like the most fun way to treat ailments, acupuncture is a tried and true therapeutic practice that has helped people deal with pain for centuries.

By inserting needles into various pressure points around the body, physical pain and stress can be relieved and even treated using acupuncture. For most, it's funny to think that sticking needles into the pain areas and pressure points of the body would be the answer, but when it comes to people who suffer from fibromyalgia and chronic fatigue syndrome, it might just be that.

New studies have shown that that acupuncture in certain areas of the body releases adenosine, which is a natural pain killer that is usually released after an injury. This allows people who are suffering from constant fibromyalgia to gain some much-needed relief.

By releasing adenosine, pain signals can be blocked from ever reaching the brain thus helping sufferers deal with their pain problems. This brings up a lot of questions about how much acupuncture has to do with adenosine release and if this is the reason that so many benefit from it. Yet, whatever the reason, studies have shown acupuncture to be great at treating the condition and helping the people who suffer from it.

From the fatigue angle, the study also went on to show that adenosine released from acupuncture has a lot to do with the regulation of the sleep cycle. By being able to regulate sleep correctly, chronic fatigue syndrome may be able to be properly treated and even fixed.

Acupuncture paired with the correct medicine can help both constant pain and fatigue, as new studies have gone on to show. This is good news for sufferers of both ailments, and goes to show that this ancient art of health may still have some new tricks to share.

By Rachelle Holmes of Chicago Breast Augmentation and Chicago Liposuction Center, MetropolitanMDs

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Years ago, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act (Known as Act 57), a workers’ comp insurance company in PA had to prove that work was actually open and available to an injured worker in order to reduce or stop the payment of workers’ compensation benefits. This was known as the “Kachinski” standard, after the Pennsylvania Supreme Court decision in Kachinski v. Workers’ Compensation Appeal Board (Vepco Constr. Co.), decided in 1987. This was discussed in previous blog entries.

One of the more dangerous additions in those changes to the Act in 1996 was the invention of the “Earning Power Assessment” (EPA)[Also known as a “Labor Market Survey” [LMS]]. The EPA, or LMS, was to take the place of actual job referrals. A vocational counselor would be hired by the workers’ comp insurance carrier to go out and find job openings, and prepare the EPA/LMS. This document was to serve as an estimate of the jobs which exist in the geographic area in which the injured worker resides.

A question left open since the invention of the EPA/LMS was the impact of whether the job was actually available to the injured worker. A recent case before the Commonwealth Court of Pennsylvania, Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), addressed this very issue.

In that case, a vocational counselor located five jobs that were open as of the date he found them, and he prepared the EPA/LMS. The injured worker received the EPA/LMS several weeks later and immediately applied for all of the jobs. The injured worker received no offers of employment from any of the five jobs. The Workers’ Compensation Judge (WCJ) found the IME doctor and the workers’ comp insurance carrier’s vocational counselor credible, but denied the Petition to Modify, because the applications made by the injured worker showed the jobs were not available to her. The Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of Pennsylvania, however, reversed the decision of the WCJ, and granted the Petition to Modify. The Court found that an EPA/LMS is just an estimate of earnings. The fact the jobs were not open weeks later, when the injured worker applied, is irrelevant. Other, similar, jobs, said the Court, would replace those that were then filled.

Also, the injured worker failed to look for employment on her own, outside of those jobs in the EPA/LMS. Therefore, the Court found that the injured worker could not rebut the fact that jobs were open and available to her at the time the EPA/LMS was created.

The one good thing in the decision is contained within Footnote 12. There, the Court noted that one position identified in the EPA/LMS was still open and available when the injured worker applied. The injured worker did not get a job offer as a result of her application. The Court admitted that this position was not “available” to the injured worker, and could not form the basis of a Modification Petition.

Overall, this decision highlights the importance of having an experienced PA workers’ compensation attorney on your side BEFORE there is any litigation. Timing is critical in cases like these, and passage of time is something an attorney may not be able to fix once it happens. Once the Petition to Modify is filed by the workers’ comp insurance carrier, it may be too late to prevent a bad decision.

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In a previous blog posting, we discussed the case of Armstrong v. Workers’ Compensation Appeal Board, decided by the Commonwealth Court of Pennsylvania in 2007. This case first allowed a PA workers’ compensation insurance carrier to use a Notice of Denial (NCD) to “accept” a workers’ comp case. As attorneys for injured workers in PA, we hoped this case would be viewed narrowly, if not reversed, by future Court decisions.

Unfortunately, the Commonwealth Court of Pennsylvania, in the case of Forbes Road CTC v. Workers’ Compensation Appeal Board (Consla), has now expanded this theory. No longer does a PA workers’ comp insurance carrier have to even issue a Temporary Notice of Compensation Payable (TNCP), then revoke the TNCP, to use an NCD to accept a case (as it was done in Armstrong). In Consla, the Court specifically stated that, “we hold an employer may properly issue an NCD to accept a claimed work injury for medical purposes only.”

As we felt after reading the Armstrong decision, we can only wonder why the Pennsylvania Bureau of Workers’ Compensation would have gone to the trouble of developing a specific form called a “Medical Only Notice of Compensation Payable,” which was designed to be issued in this very type of case, if an NCD could simply be used. Oh, and we also wonder how a Court can decide that a Notice of DENIAL can be used to ACCEPT a case. Silly us, we thought the Pennsylvania Legislature was charged with making laws, leaving the Courts to simply interpret them.

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As we have discussed in several previous blog entries, an injury at work in PA must happen in the scope and course of employment to be compensable under the Pennsylvania Workers’ Compensation Act. Often, this is the issue in dispute when an employee is injured in a parking lot, either coming to, or leaving, work.

In ICT Group v. Workers’ Compensation Appeal Board (Churchray-Woytunick), recently decided by the Commonwealth Court of Pennsylvania, a worker slipped and fell in a parking lot as she was preparing to leave the premises for lunch. Since the employee was required to take a lunch break, was allowed to leave the premises, the parking lot was used by the employees and the injury took place only about ten feet from the employer’s door, the Court found the injury was within the scope and course of employment and workers’ comp benefits were awarded.

These cases are always very “fact-specific,” and there are many different ways these types of cases go. Yet another reason that injured workers should be sure to select attorneys with extensive experience in PA workers’ compensation matters.

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While there is no minimum time a worker must be employed before the worker qualifies for workers’ compensation coverage in Pennsylvania, the worker must actually be “employed” at the time of the injury. This means there must be both an offer and an acceptance of employment, before the work injury takes place.

In Moberg v. Workers’ Compensation Appeal Board (Twining Village), a recent decision of the Commonwealth Court of Pennsylvania, a prospective employee was injured while getting a tuberculin test. Since this test must have been passed before an offer of employment could have been made, the Court found that, at the time of the test, the injured worker was not actually an “employee” yet. As such, PA workers’ compensation benefits were denied.

This case does bring up the fact that an employee is immediately covered under the Pennsylvania Workers’ Compensation Act, as soon as employment begins. We have seen several cases over the years where an employee is hurt on the first day of work. In those cases, there is no doubt the injured worker is entitled to PA workers’ comp benefits. The key, as noted in Moberg, is that the employment relationship must have actually started before the injury takes place.

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“Water on the knee” is one of those phrases we hear that harkens back to years ago, like lumbago (low back pain) or causalgia (Reflex Sympathetic Dystrophy (RSD); now also known as Chronic Regional Pain Syndrome (CRPS)). Simply put, “water on the knee” is swelling (also called “effusion”) of the knee.

Like lumbago, for years people associated “water on the knee” with aging and related degenerative changes. For lack of a better term, years of wear and tear. A recent article on Medical News Today, however, points out that “water on the knee” is not just a sign of aging or degeneration.

In fact, the article states that trauma and injury can be causes of the knee problem. Interesting, doctors can study the fluid which is drained from the swollen knee, to gain some insight on the condition involved. For example, if the swelling is due to injury or trauma, there may be blood in the fluid. Bacteria in the fluid could point to infection as the source of the swelling. Some types of acids in the fluid may cause doctors to lean toward other causes, such as gout.

Regardless of the cause of the swelling, “water on the knee” is not something that stopped in years past.

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As we have discussed in a previous blog entry, the PA Workers’ Compensation Act requires that a Notice of Ability to Return to Work be served on an injured worker (and his or her attorney), before the workers’ comp insurance carrier can move to modify or suspend benefits.

Specifically, the Act states, “If the insurer receives medical evidence that the claimant
is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant . . . “ One of the interesting words chosen in this law is “prompt.”

The Commonwealth Court of Pennsylvania, in Melmark Home v. Workers’ Compensation Appeal Board (Rosenberg), decided in 2008, held that a Notice of Ability to Return to Work sent five and a half months after the workers’ comp insurance carrier received the information was “stale,” and was not valid (because it was not “prompt”). That Court also noted that the real key to whether a Notice of Ability to Return to Work is “prompt” enough is the impact on the injured worker.

Recently, the Commonwealth Court of Pennsylvania again addressed this issue, in Kleinhagan v. Workers’ Compensation Appeal Board (KNIF Flexpak Corp). In this case, the Notice of Ability to Return to Work was sent less than two months after the medical information was received by the insurance carrier, but before the vocational interview was conducted, before modification or suspension of benefits was sought and before a Petition to Modify or Suspend was filed.

The Court found the Notice of Ability to Return to Work timely in this situation. The delay of less than two months did not cause the medical information to become “stale.” The fact that nothing was done prior to the Notice of Ability to Return to Work being served also kept the injured worker from being prejudiced in any way. Given the entirety of circumstance in the matter, the Court found the written notice to be “prompt” and consistent with the Act.

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