Pennsylvania Workers' Compensation Lawyer Blog

Generally speaking, an injured worker in PA can ask a Workers’ Compensation Judge (WCJ) to review an accepted description of a work injury “at any time” (within the statute of limitations, of course) to amend those conditions for which the workers’ compensation insurance carrier should be responsible. In other words, usually, an injured worker, under the Pennsylvania Workers’ Compensation Act, can try to add more injuries to an accepted workers’ compensation case.

However, a recent decision by the Commonwealth Court of Pennsylvania put a significant hurdle in the path of an injured worker. On November 25, 2008, the Court decided Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.).

In this case, the workers’ comp insurance company accepted a “left shoulder strain.” The injured worker filed a Petition to Review, to add a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis, all in the left shoulder. The workers’ compensation insurance carrier agreed, and the parties executed a stipulation, providing that the work injury now included this more descriptive injury.

Mr. Weney then filed another Petition to Review, this time to add herniated discs in his cervical spine to the work injury. Since the records showed that Mr. Weney had neck problems at the time he was litigating the first Review Petition, the Court held that he was barred from litigating this second Review Petition.

This concept is called “technical res judicata” or “claim preclusion.” It happens when an identical issue, between identical parties, has already been decided. The troubling aspect of this case for us, as attorneys representing the injured worker, is that the neck problem was never litigated, or decided, in the first Review Petition. And, frankly, there was no reason to address the neck at that point, since the workers’ comp insurance carrier was agreeing to the left shoulder problem, and that problem was the immediate concern of Mr. Weney at that time.

The Court took pains to observe that technical res judicata applies to those claims actually litigated, as well as those that should have been litigated. This is a dangerous precedent, as it may mean that when we file a Petition to Review for a client, we may have to litigate every single condition which may be related to the work injury, or risk being barred from doing so in later litigation. Ultimately, it seems this will increase the complexity of litigating a Review Petition, which will just cause more of a strain on the workers’ compensation judicial system.

Under the Pennsylvania Workers’ Compensation Act, physical injuries, like carpal tunnel syndrome, low back strain or a fractured arm, are treated differently than emotional/psychological injuries, like post-traumatic stress disorder (PTSD), depression or anxiety. To obtain workers’ comp benefits in PA for emotional/psychological injuries, the injury must result from an “abnormal working condition,” rather than a person’s subjective response to a normal working condition. What constitutes an “abnormal working condition” under Pennsylvania workers’ comp law varies depending on the job at issue and is the subject of many court decisions.

Recently, the courts in PA have been very demanding in what constitutes an “abnormal working condition.” For some professions, such as firemen, policemen and other emergency first responders, the courts have set the threshold extremely high, finding very little in those jobs could possibly be “abnormal.” Essentially, some jobs should expect the unexpected, the courts seem to say.

Typically, harassment or bad behavior by a boss will not reach the level of an “abnormal working condition.” In fact, one of my favorite quotes on this subject comes from a 1996 decision of the Supreme Court of Pennsylvania, “In assessing whether work conditions are abnormal, we must recognize that the work environment is a microcosm of society. It is not a shelter from rude behavior, obscene language, incivility, or stress.”

With this in mind, a recent decision by the Commonwealth Court of Pennsylvania, Community Empowerment Association v. Workers’ Compensation Appeal Board (Porch), decided November 25, 2008, was a pleasant surprise. In this case, the Claimant was a victim of both sexual and religious harassment, and suffered emotional and psychological injury as a result. A Claim Petition was filed, and was subsequently granted by a Workers’ Compensation Judge (WCJ). On appeal, the Court found these facts sufficient to rise to the level of an “abnormal working condition.”

While emotional and psychological injuries sometimes have a more difficult burden of proof than a typical physical injury under PA workers’ compensation law, an injured worker should be aware that such claims can still sometimes be successful. As with any work injury, it is critical to consult immediately with an attorney experienced in Pennsylvania workers’ compensation.

Though the case of Armstrong v. Workers’ Compensation Appeal Board was decided by the Commonwealth Court of Pennsylvania over a year ago, on August 27, 2007, this decision continues to both amaze and irritate those of us who limit our practice to representing the injured worker in PA workers’ comp cases.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier has 21 days to accept or deny a claim. Typically, and logically, acceptance of a claim is done by issuing a Notice of Compensation Payable (NCP) [or an Agreement for Compensation], and denial of a claim is done by issuing a Notice of Denial (NCD). Since this seems to make perfect sense, naturally, this is not necessarily how things work.

On a Notice of Denial, there are six boxes, or “bases of denial.” Essentially, the workers’ comp insurance company checks one or more of those boxes, indicating the reason or reasons for the denial. Box number four on an NCD states, “Although an injury took place, the employee is not disabled as a result of this injury within the meaning of the Pennsylvania Workers’ Compensation Act.” This is rather unnecessary, since there is also a “medical only” NCP, to be issued when the workers’ comp insurance carrier feels there is no disability from the work injury.

In Armstrong, an NCD was issued, and box number four was checked. One of the issues the Court faced was whether the Notice of Denial was actually a document accepting the case. In a decision that seems contrary to common sense, the Court held that a Notice of Denial, with box four checked, does indeed mean that the workers’ compensation insurance carrier accepted the claim. Logic only an appellate court could love.