Pennsylvania Workers' Compensation Lawyer Blog

In Liveringhouse v. Workers’ Compensation Appeal Board, decided on March 19, 2009, the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which denied claimant’s Petition to Review. In this case, the injured worker filed her Petition to Review to add carpal tunnel syndrome to her accepted PA work injury.

The WCJ denied that Claimant suffered from carpal tunnel syndrome at all. Since all three medical experts testified (two for the workers’ compensation insurance carrier) that Claimant did have carpal tunnel syndrome, the Court found that the decision of the WCJ was defective. “It is well settled that a WCJ is not competent to make independent medical determinations.” The WCJ also erroneously stated that the injured worker never testified that she had to twist using her pliers, when in fact the record showed such evidence. Still, the two doctors who testified for the workers’ compensation insurance carrier found that the carpal tunnel syndrome was not work-related.

One of those doctors based his opinion primarily on his belief that carpal tunnel syndrome “could be related to job duties only when the jobs involve the use of significant vibratory tools over long periods of time.” In what would normally seem to be a determination of credibility, made solely by a WCJ, the Court found this opinion completely defective. Specifically, the Court stated, “Courts consistently have regarded carpal tunnel syndrome as a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings, and they have never limited benefits for carpal tunnel to cases involving use of ‘significant vibratory tools’ over long periods.”

The other doctor testifying for the workers’ compensation insurance carrier refused to give an opinion regarding cumulative trauma or repetitive stress, saying he would only give opinions regarding an injury which may have occurred on a specific date. As such, the Court found the WCJ erred by using this testimony to counter other medical evidence that the work duties did lead to the carpal tunnel syndrome. Ultimately, the Court “vacated” the decision of the WCJ, and “remanded” the case back to the WCJ, for the WCJ to issue another decision, consistent with the proper legal standards.

Given the pronouncement of the Court that “carpal tunnel syndrome (is) a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings,” PA workers’ compensation insurance company doctors (“Independent Medical Examiners” or IMEs) may now have a more difficult time testifying that repetitive work duties cannot cause carpal tunnel syndrome. This is a victory for attorneys who represent injured workers in PA workers’ comp cases.

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Posted In: Case Law Update

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According to a recent article in the Journal of the American Academy of Orthopaedic Surgeons, physical therapy, combined with anti-inflammatory medication, is the most effective treatment for low back pain caused by degenerative disc disease.

As many injured workers know, one can have degenerative changes in their lumbar spine without even knowing. Once a work injury takes place, by lifting or twisting, or other common movement, the weakened lumbar spine becomes symptomatic. This results from the instability of the damaged discs.

According to the article, physical therapy helps by strengthening the surrounding muscles in the abdominal area and the lumbar spine, and by physically manipulating the spine. To obtain the best results, the patient has to remain active and use appropriate body mechanics.

As a doctor at an orthopedic clinic was quoted in the article as saying, “Surgery should be the last option, but too often patients think of surgery as a cure all and are eager to embark on it.”

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Ordinarily in a Pennsylvania workers’ compensation case, litigation costs incurred by an injured worker (or his or her lawyer) are reimbursed by the PA workers‘ comp insurance carrier if the injured worker was successful “in whole or in part.” This is a very important concept; if claimant attorneys cannot get their litigation costs reimbursed, some meritorious workers’ comp cases will be declined, as the attorneys will not be able to afford litigating them.

A recent decision by the Commonwealth Court of Pennsylvania, Reyes v. Workers’ Compensation Appeal Board (WCAB), limits the injured worker’s attorney in recovering costs, despite being successful on a Claim Petition, at least in part.

In Reyes, the claimant was injured in a work-related motor vehicle accident. A Notice of Denial (NCD) was issued, which acknowledged the injury, but denied disability. The injured worker filed a Claim Petition. The Workers’ Compensation Judge (WCJ) granted the Claim Petition for a closed period of time, finding that the work injury fully resolved on the date on the Independent Medical Examination (IME). The WCJ denied an award of wage loss benefits, finding that claimant failed to prove he was ever disabled from work. Finally, the WCJ denied an award of litigation costs, saying that the claimant was not successful at all.

On appeal, both the WCAB and the Commonwealth Court agreed with the WCJ, and denied wage loss benefits to claimant and litigation costs to the attorney. Despite the fact that the workers’ comp insurance company issued a Notice of Denial, and the attorney for the workers’ comp insurance carrier filed an Answer to the Claim Petition denying all allegations, the Court found the issue to be decided by the WCJ to just involve the wage loss benefits. The workers’ comp insurance carrier acknowledged the injury and in the litigation was only disputing the wage loss benefits, the Court said. Since the injured worker was not successful on this issue, the litigation costs were properly denied.

As a practical issue, as attorneys representing injured workers in PA, we found this decision very disturbing. Essentially, the Court is finding a Notice of Denial to be a proper way for a workers’ comp insurance carrier to accept a medical claim. Silly us, we thought that was the entire purpose for the “medical only” Notice of Compensation Payable (which, by the way, was introduced by the Pennsylvania Bureau of Workers’ Compensation at the request of the PA insurance industry).

In reality, many of our clients have difficulty getting medical treatment if a claim is “accepted” by a Notice of Denial. Medical providers who are limited to the usual and customary English language (and are not fluent in Legalese) may not understand that “Denial” in this sense means exactly the opposite of what the dictionary suggests the word means. Also, too, is the question of what happens once the three-year Statute of Limitations expires. A Notice of Denial, is, by definition, a “denial” of the claim, despite what is written on the document. Is the medical aspect of the claim open at that point or not?

Frankly, use of the NCD to accept a claim is just plain wrong and should be eliminated. Since the Courts seem unwilling to do so, it may be time for the Pennsylvania legislature to step forward on the issue.

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Under the Pennsylvania Workers’ Compensation Act, an injured worker is generally covered for all of the effects of the work injury. Things that would not have happened “but for” the work injury often can be included in the workers’ compensation case. Thus, typically, if an injured worker in PA has a car accident on the way to therapy (for the work injury), the injuries suffered in the subsequent car accident are also covered by workers’ comp.

A recent decision by the Commonwealth Court of Pennsylvania, Matthews v. Workers’ Compensation Appeal Board (WCAB), however, restricts this concept. The injured worker must provide evidence of each aspect of his or her claim, as with any PA workers’ comp claim. Here, Ms. Matthews hurt her knee at work in January, 2003, then had a car accident, while going to therapy for her knee, in September, 2003. Medical evidence showed the January, 2003 injury had healed, but Claimant was disabled from the injuries from the car accident. The Workers’ Compensation Judge (WCJ) found that the work injury should be expanded to include the injuries from the car accident, and awarded ongoing workers’ comp benefits.

On appeal, the WCAB reversed the decision of the WCJ, finding the car accident could not be considered part of the work injury because Claimant never gave notice to her employer of the car accident (though she did notify her employer of the original work injury to her knee). The Commonwealth Court of PA agreed with the WCAB.

The dissent noted that Claimant presented evidence that she was treating with the same panel physician as was treating the initial work-related knee injury. As such, went the dissent, the employer DID have notice of the motor vehicle accident. For the majority, though, this was not deemed sufficient.

Essentially, they are treating the car accident as an “aggravation,” which, under PA workers’ comp law, is a “new injury.” As such, one of the elements an injured worker must prove is that he or she gave notice of the injury within 120 days. As an attorney representing injured workers in Pennsylvania, this decision does not seem fair. The car accident is not a new injury (Ms. Matthews did not go back to work, so how could she have a new injury?). The car accident, to me, is simply a continuation of the existing injury (no different than when we add another diagnosis to an existing claim).

This decision will serve no purpose other than to punish those injured workers who do not get timely legal advice from an experienced Pennsylvania workers’ compensation attorney. There really, to me, is no valid reason to require additional notice for what is truly a continuation of the same injury.

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What happens when an injured worker in Pennsylvania is released by his or her doctor to return to work, without restriction, but the injured worker has no job waiting for him or her? Recently, the Commonwealth Court of PA answered this question and put a smile on the face of this PA workers’ comp attorney.

In Consol PA Coal Co. v. Workers' Compensation Appeal Board, the injured worker broke his arm. His treating orthopedic surgeon eventually released him to return to work, without restriction. Rather than offer him a job, the Employer instead filed a Petition to Suspend his workers’ compensation benefits. Employer took the position that if the injured worker had no physical limitations, the loss in wages could not possibly be due to the work injury.

The Commonwealth Court disagreed with the Employer (as had the Workers’ Compensation Judge and the WCAB below), holding that to win a Petition for Suspension, an Employer must prove a job was actually available to the injured worker. Without this evidence, the Employer could not prevail.

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Section 204(a) of the Pennsylvania Workers’ Compensation Act entitles workers’ comp insurance carriers to an offset if the injured worker receives unemployment compensation benefits, Social Security Retirement benefits, severance benefits or pension benefits. Most of these benefits, and their offsets, are easily calculated. However, when one gets into the area of pensions, in particular “defined benefit” plans, things get more complicated.

In a “defined benefit” plan, the amount of money paid to the recipient is certain; therefore, the party funding the plan takes the risk of the plan not being adequately funded to make the necessary payments to recipients. The money paid into the plan is put into a general fund, which is then used to pay all recipients. Contrast this with a “defined contribution” plan, where the employer pays a certain amount on behalf of each employee, and that account is then used to only pay that employee. That employee then only receives the payments that his own account can support. Thus, the employee takes the risk of underfunding.

A Pennsylvania workers’ comp insurance company can only obtain an offset from a pension plan “to the extent funded by the employer directly liable for the payment of compensation.” The issue, then, becomes how much that employer funded the plan. This can get complicated in a “defined benefit” plan, where the injured worker was employed by multiple employers over his or her career.

On March 5, 2009, the Commonwealth Court of Pennsylvania decided Consolidated Coal Co. v. Workers’ Compensation Appeal Board, and addressed this very issue. In this matter, the injured worker was entitled to a “defined benefit” disability pension, as a result of working just over 31 years for various union employers. He worked over 13 years for the employer at which he was injured. Due to Claimant’s higher benefit rate while working for this employer, the actuary of the plan testified that 51.12% of the total monthly benefits from the plan were attributable to this employer. Thus, the workers’ compensation carrier wanted an offset of 51.12%.

The Commonwealth Court agreed with employer. Even though the actuary of the plan did not testify as to what amount of money the employer contributed to the plan (versus the amount the employee was paid out of the plan), the Court found the method used appropriate for “defined benefit” plans. Since the contributions go into a general fund, and not into an account for each individual employee, as with a “defined contribution” plan, this service-based method is appropriate to calculate the offset.

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As you may recall, in a recent blog entry, we mentioned the case of PGW v. Workers’ Compensation Appeal Board (Amodei). This was the case where the Commonwealth Court of Pennsylvania stated, unequivocally, that credit against pension benefits in PA workers’ comp is to be done on the net amount of the benefit, rather than the gross.

It has now come to our attention that the workers’ compensation insurance carrier in this case has filed a Petition for Allocatur with the Supreme Court of Pennsylvania, asking the State‘s highest Court to accept an appeal in this matter.

As always, we will keep everyone posted on developments in this, and any other, PA workers’ comp matter. We also want to remind folks that we are happy to answer questions regarding any Pennsylvania workers’ compensation issues. You can contact us by telephone or e-mail, through our firm website.

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Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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Ordinarily, when an injured worker in Pennsylvania has his or her workers’ compensation benefits modified or suspended, such as by a return to work, having the benefits reinstated to total disability is not difficult provided that the loss of such work is not due to the fault of the injured worker, and the work-related disability continues.

The situation is much different, however, when the injured worker’s PA workers’ comp benefits are modified or suspended due to “bad faith conduct.” As explained by the Commonwealth Court of Pennsylvania in a recent case, Ward v. Workers’ Compensation Appeal Board (WCAB), decided on March 2, 2009, if the injured worker’s benefits were modified due to bad faith, then the injured worker has the burden to prove his or her medical condition worsened such that he or she is no longer capable of performing the job which had previously been found to be available.

The claimant in Ward was injured in 1992. In 1999, the PA workers’ comp insurance company was successful in litigating a Petition to Modify benefits. Specifically, the Workers’ Compensation Judge (WCJ) found that jobs were available to claimant, within his physical restrictions, but that he did not apply for the jobs. The WCJ ordered the total disability benefits modified to “partial disability benefits.”

In 2006, the claimant filed a Petition to Reinstate his total disability benefits. This Petition failed, because no medical expert testified that claimant’s condition had changed such that he was no longer capable of performing the job the WCJ found to be available to claimant back in 1999. Had claimant returned to work, rather than having this “bad faith” finding against him, reinstatement may have been considerably easier.

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As an attorney representing injured workers in Pennsylvania, I find “no work” jobs to be one of the nastier and more insulting actions an employer can take. Like they sound, “no work” jobs are positions offered to injured workers by their pre-injury employers, where the injured worker is to sit at a desk and literally do nothing. One of the favorite tricks of nasty employers is to offer such a job, wait for the employee to fall asleep, then fire the employee for sleeping on the job.

Though Courts in PA have held that “no work” jobs are “real” jobs, and have suspended workers’ comp benefits to injured workers who refuse such jobs without reason, a recent case shows the PA Courts do recognize limits to such actions. In Channellock, Inc. v. Workers’ Compensation Appeal Board (Reynolds), the Commonwealth Court of Pennsylvania held that a “no work” job was not within the injured worker’s physical capabilities.

The injured worker was taking medications which made him drowsy. A Workers’ Compensation Judge found both the injured worker, and his doctor, credible on this point. The injured worker tried the “no work” job and fell asleep. The worker was threatened with termination if this happened again. The Court found that proved that the job required that Claimant stay awake and that the credible evidence showed Claimant cannot stay awake due to his medication. As such, the job was not available to the injured worker and workers’ comp benefits were to continue.

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Posted In: Case Law Update

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