Pennsylvania Workers' Compensation Lawyer Blog

**Update - Decision of the Commonwealth Court of PA REVERSED by Supreme Court of Pennsylvania on July 20, 2011 - See blog entry of August 2, 2011**

When a worker gets hurt at work in PA, the Pennsylvania Workers’ Compensation Act requires that the employer be notified of the injury with 120 days. If the injury is one of repetitive, or cumulative, nature, such as carpal tunnel syndrome or hearing loss, the 120-day period does not begin until the date the condition, and its relation to work, is known (called “the discovery rule”). This notice does not need to contain the exact diagnosis of the work injury, but merely “a reasonably precise description of the injury.”

In Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), decided by the Commonwealth Court of Pennsylvania on June 4, 2009, the Court addressed what “sufficient” notice of an injury must contain.

Ms. Morack began having pain in her hands at work. At first, she was not aware it had anything to do with her job. She applied for short-term disability benefits on February 2, 2005, putting on the application that her disability was not work-related, and the condition was swelling in arms, hands, knees and ankles from fibromyalgia and high blood pressure.

Later in February, 2005, her doctor advised her that she had carpal tunnel syndrome, and it was related to her duties at work. Ms. Morack called her employer and left a message on voicemail that she had “work-related problems.” The next notice came to the employer in September, 2006, when they received a copy of the Claim Petition.

The Workers’ Compensation Judge (WCJ) found Ms. Morack credible and granted the Claim Petition. The WCJ found that Ms. Morack called the employer and gave notice within 120 days. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal to the Commonwealth Court, the employer had two arguments. First, the employer said Ms. Morack failed to prove the voicemail was left within 120 days (no time was stated for when the voicemail was left). Second, the employer alleged the notice given was not sufficient.

The Court disagreed on the first point, finding that, since Ms. Morack was found credible, and won before the WCJ, she is entitled to all reasonable inferences. Based on the evidence, there was no reason to believe the voicemail was left more than 120 days from the injury date.

On the second argument, however, the Court agreed with employer and reversed the decision of the WCJ. The Court found that simply telling the employer that she had “work-related problems” was not sufficient. While, in some situations, the short-term disability application may provide the missing detail, here, the application cited body parts and conditions not even alleged to be work-related, so it was of no help. In the end, Ms. Morack failed to provide any description at all of her alleged work injury. As such, the granting of the Claim Petition was reversed by the Court.

In PA, when a workers’ compensation insurance carrier wants to challenge whether medical treatment is reasonable or necessary, the insurance carrier can request Utilization Review (UR). In such a case, the PA Bureau of Workers’ Compensation assigns the UR Request to a Utilization Review Organization (URO). The URO then obtains records from the provider under review, and a personal statement from the injured worker if he or she wishes, and a Utilization Review Determination is issued. This Determination can then be appealed by either party by filing a Petition to Review Utilization Review Determination.

However, if the healthcare provider under review fails to submit records, the regulations to the Pennsylvania Workers’ Compensation Act require the URO simply find treatment unreasonable and/or unnecessary, because records were not submitted. In this situation, no report is prepared by the URO, and no findings on the merits are made. Importantly, this type of Determination cannot be appealed under the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005.

Recently, the Commonwealth Court of Pennsylvania has made things even worse for injured workers, by extending County of Allegheny. The case of Sexton v. Workers’ Compensation Appeal Board (WCAB) was decided by the Court on May 22, 2009. In Sexton, the provider submitted records to the URO, but forgot to submit a verification with the records. The URO returned the records to the provider, so the provider could resubmit the records with the required verification. Unfortunately, the provider never resubmitted the records or the verification.

The Workers’ Compensation Judge (WCJ) ordered a new UR be performed. The WCAB, though, reversed. This was affirmed by the Commonwealth Court of PA. The Court found that the verification was required to be submitted, to assure the records were true and correct. Since the verification (and the records) were never resubmitted, the URO could not generate a report and reach a Determination on the merits. As such, under County of Allegheny, the Determination could not be appealed by the injured worker.

I find County of Allegheny inconsistent with the terms, and the spirit, of the Pennsylvania Workers’ Compensation Act, which was intended to be humanitarian legislation, beneficial to the injured worker. Sexton then extends the harm even further. Records were actually submitted in Sexton. As the dissent by Judge Johnny J. Butler (former Secretary of the PA Department of Labor & Industry) observed, there was no authority in the Act for the URO to send the medical records back to the provider. Worse, even if medical records could not be used on appeal, what is the basis for precluding the injured worker from testifying as to the reasonableness and/or necessity of the treatment at issue? Under the Act, if the testimony of the injured worker was found credible, this could be the basis to grant a Petition to Review Utilization Review Determination. Under current law, however, the injured worker cannot even file the Petition to Review Utilization Review Determination when the provider fails to submit records.

When a work injury is denied by the workers’ compensation insurance carrier in PA, the injured worker must file a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation. The Claim Petition is then litigated before a Workers’ Compensation Judge (WCJ). To win a Claim Petition, usually the injured worker needs the WCJ to find both the injured worker, and his or her doctor, credible.

The testimony of the medical expert must be “unequivocal,” that the injured worker suffered a work-related injury, and has been disabled from work as a result of this injury. “Unequivocal” does not require 100% certainty (since nothing in life is 100% certain), but simply requires the doctor to believe that is the case.

A recent decision by the Commonwealth Court of Pennsylvania, Moyer v. Workers’ Compensation Appeal Board (WCAB), addressed this issue. The WCJ in this case found Claimant and his doctor credible and granted the Claim Petition. However, the WCAB reversed the WCJ, finding the testimony of Claimant’s doctor to be equivocal.

The Claimant had a past medical history of low back problems, before the work injury, and the WCAB felt the testimony of Claimant’s doctor was based only on the fact there was an increase in pain just after Claimant lifted a bucket at work. The opinion of a doctor is equivocal if it assumes an injury is work-related just because it happens right after an event at work. Similarly, an opinion is equivocal if the doctor can only say the work event “could have” caused the disability.

The Commonwealth Court of Pennsylvania reversed the WCAB, and granted the Claim Petition. The Court noted that one cannot take a single statement of a witness out of context; instead, one must examine the testimony as a whole. When looked at in this way, the Court found the testimony of Claimant’s doctor was based on the history given by Claimant (found credible by the WCJ), and observed a difference in Claimant’s condition before and after the event at work. The doctor did not merely say the event “could have” caused the aggravation of his low back condition, the doctor testified the event “was” the cause of the aggravation. Considering all of this, the opinion of Claimant’s doctor was unequivocal.

Cases like this highlight the importance of getting the right testimony from medical witnesses. If the attorney is not familiar with PA workers’ comp law, the testimony obtained may not be sufficient to win a Claim Petition.