Pennsylvania Workers' Compensation Lawyer Blog

When a PA workers’ compensation insurance carrier wants to “terminate” the workers’ comp benefits of an injured worker, the insurance company must prove that the injured worker has fully recovered from his or her work injury. What constitutes the “work injury” is usually what is described on the Notice of Compensation Payable (NCP)[the document used by the insurance carrier to accept a claim]. While this is the rule, there are always exceptions.

A recent decision rendered by the Commonwealth Court of Pennsylvania, Julio Paz Y Mino v. Workers’ Compensation Appeal Board (Crime Prevention Association), dealt with the exception to the rule. After Mr. Mino was injured, an NCP was issued, describing the injury as lumbar sprain and strain. A Petition to Terminate was filed by the workers’ comp insurance carrier. The Workers’ Compensation Judge (WCJ) denied this Petition, finding the testimony of the injured worker’s doctor more credible than the doctor who performed the Independent Medical Examination (IME) for the insurance company. Though the WCJ did not formally state he was amending the NCP (nor was a Petition to Review, the Petition used to amend an NCP, filed), he noted the diagnosis rendered by the injured worker’s doctor, specifically, an aggravation of pre-existing lumbar stenosis and a lumbar radiculopathy.

The workers’ compensation insurance carrier then filed a second Petition to Terminate (Persistent little devils, eh?). Since the first WCJ did not formally amend the NCP, the second WCJ did not include the entire diagnosis found by the first WCJ. In so doing, the second WCJ found that Claimant had fully recovered and granted the Petition to Terminate.

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of Pennsylvania, however, reversed. The Court found that there was no requirement that the NCP be formally amended, or that a Petition to Review be filed in this situation (see previous blog entry on Cinram case). The WCJ made findings, which were not appealed. Since the IME physician did not state that the injured worker had fully recovered from all of the diagnoses found by the first WCJ, the Petition to Terminate must fail.

Note, too, that the Court also dealt with an issue concerning an overpayment of benefits to the injured worker. The WCJ and the WCAB found that the workers’ compensation insurance carrier was entitled to a credit for the overpayment. The injured worker claimed that there should not be a credit because the overpayment came from an administrative error, rather than a miscalculation. On this issue, the injured worker did not fare as well. The Court found the injured worker would be “unjustly enriched” by the extra payments, regardless of whether the error was administrative or a miscalculation. The workers’ compensation insurance carrier was given a credit for these payments. What is unclear is whether this credit can only be taken from future workers’ compensation benefits, or whether repayment can be sought from the injured worker (if there are no future benefits).

In PA Workers’ Compensation, when the workers’ comp insurance carrier feels the treatment rendered to an injured worker is no longer “reasonable” or “necessary,” the relief is for the insurance company to file for Utilization Review (UR). When a UR is requested, the PA Bureau of Workers’ Compensation randomly assigns a Utilization Review Organization (URO) to review the treatment and decide if it is “reasonable and necessary.” Once a UR is requested, until treatment is found to be reasonable and necessary, the workers’ comp insurance carrier does not have to pay for the treatment under review.

When a UR is requested, the workers’ comp insurance carrier must specifically state both the provider under review and the treatment being challenged. A UR only pertains to the provider named, and the treatment as issue. In other words, if a UR finds treatment with a specific orthopedic surgeon not reasonable or necessary, the workers’ comp insurance carrier no longer is responsible for the treatment of that doctor; however, that does not mean the workers’ comp insurance carrier is not responsible for treatment with a different orthopedic surgeon. The workers’ comp insurance carrier would have the obligation to file another UR request, and the process would start all over.

But, what if the provider is not a physician at all, but a physical therapist working under the direction of a physician at the same facility? This was the issue presented to the Commonwealth Court of Pennsylvania in MTV Transportation v. Workers’ Compensation Appeal Board (Harrington).

In this case, Ms. Harrington injured her neck and lower back when she was involved in a car accident while doing her job. As part of her treatment, Ms. Harrington was getting physical therapy. The physical therapist who rendered the treatment was acting under the supervision of a physician at the facility, who was the doctor prescribing the treatment. The workers’ comp insurance carrier filed for UR, naming the therapist who was directly providing the treatment. This led to a finding that the treatment with that named therapist was unreasonable and/or unnecessary.

Ms. Harrington then started treating with a differed therapist at the same facility, working under the direction of the same physician. The workers’ comp insurance carrier then argued it did not have to pay for this treatment, since it was rendered under the guidance of the same doctor, at the same facility. In the resulting litigation, the Workers’ Compensation Judge (WCJ) disagreed with the workers’ comp insurance carrier, and said a UR is only binding on the provider named in the UR request, so treatment with another therapist is not barred by that UR determination. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of Pennsylvania disagreed, but affirmed anyway. The Court found that the workers’ comp insurance carrier could have requested a UR by naming the doctor prescribing physical therapy and the facility where the injured worker received that therapy. Had the workers’ comp insurance carrier worded the UR that way, the Court would have found the treatment prescribed by that physician to be unreasonable and/or unnecessary, regardless of which therapist was actually rendering the treatment. However, the workers’ comp insurance carrier instead named only the therapist who rendered the treatment. As such, the Court agreed the UR only pertained to that therapist.

Note that this decision, arguably, pertains only where the injured worker is getting treatment at a facility where the physical therapist, and the physician who prescribes the treatment, both work. In other words, this decision may not be applicable where a doctor prescribes therapy and the injured worker finds a physical therapy facility having no relation to the prescribing doctor.

Generally speaking, employees in Pennsylvania are not entitled to workers’ compensation benefits when the employee is injured commuting to work (known as the “Coming and Going” rule).

There are four notable exceptions to this rule. They are that the injured worker: (1) has an employment agreement which includes commuting to and from work; (2) has no fixed place of employment; (3) is hurt while on a “special assignment” for employer; or, (4) is furthering the business of the employer.

The Supreme Court of Pennsylvania, in Peterson v. Workmen’s Compensation
Appeal Board (PRN Nursing Agency), decided in 1991, has already told us that an employee of a temporary agency has no fixed place of employment. In that case, the Supreme Court said, “[a] temporary employee, who is employed by an agency, never has a fixed place of work.” The Supreme Court then concluded, “when [an] agency employee travels to an assigned workplace, the employee is furthering the business of the agency. Therefore, . . . as a matter of law, [Peterson] had no fixed place of work . . . and her injury occurred while she was in furtherance of her employer’s business.”

The Peterson decision seems hard to reconcile with a recent decision rendered by the Commonwealth Court of Pennsylvania, Mackey v. Workers’ Compensation Appeal Board (Maxim Healthcare Services). In this case, Ms. Mackey, a home health aide, injured her ribs, knee and back in a motor vehicle accident on the way to a patient’s home. The Workers’ Compensation Judge (WCJ) denied the Claim Petition filed by Ms. Mackey, under the “Coming and Going” rule. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Despite the similarities between Ms. Mackey and the injured worker in Peterson, the Commonwealth Court of Pennsylvania affirmed the decision, finding Ms. Mackey not entitled to PA workers’ comp benefits. While Ms. Mackey did work for a temp agency, and was sent directly to a patient’s home from her own, the Court noted that Ms. Mackey worked for the same patient for a year and a half, and had no reason to believe the assignment would be ending in the near future. So, while a temp job typically would have no fixed place of employment, the facts in this case show Ms. Mackey DID have a fixed place of employment.

The Court also rejected Ms. Mackey’s argument that by going to the patient’s home in bad weather, there were “special” circumstances, and she was furthering the interests of the employer. As we discussed in a previous blog entry, the Court disposed of this argument by finding that having an employee show up at work is not a “special” circumstance, but rather a “universal” one, held by every employer.

As attorneys who represent injured workers in PA, we are troubled by this decision. A temp job, by its very nature is . . . you guessed it, temporary. As the Supreme Court of Pennsylvania held in Peterson, a temp job is a different creature, requiring different rules. The Mackey case sets a dangerous precedent. Now there appears to be an imaginary line in time when a temp employee, having no fixed place of employment, magically becomes an employee with a fixed place of employment. As lawyers, we ask for little more than certainty from the Courts; decisions like Mackey only serve to undermine such certainty, leading to additional litigation and further stretching of precious judicial resources.