Pennsylvania Workers' Compensation Lawyer Blog

Representing injured workers in Pennsylvania workers’ compensation cases, we realize how scary and unfamiliar the PA workers’ comp system can be, especially to an injured worker who does not have an attorney representing them. As we try to do from time to time, we are sponsoring a free PA workers’ compensation seminar on Monday, May 10, 2010, at 6:00 p.m. at our Trevose office (Three Neshaminy Interplex, Suite 301)[Just North of Northeast Philadelphia, just off the Roosevelt Boulevard/Route One, I-95 and the Pennsylvania Turnpike].

We are excited to have Dr. Joel Kravitz, who is Board Certified in Occupational Medicine and Family Medicine, as well as Dr. Gene Nelson, Clinical Care Coordinator at Progress Physical Therapy Centers, and Bill Leitzel, MS Physical Therapist at Progress Physical Therapy Centers joining us for this seminar. In addition to speaking, all of the panelists will be available to answer the many questions you may have.

We encourage all injured workers to take advantage of this unique opportunity to have both your medical and legal questions answered. This is a rare opportunity, and seating is limited, so we ask that you call our offices at (215) 244-8101 to reserve your spot. If you are unable to attend this free seminar, but would like to schedule a personal appointment with us, also feel free to call us to schedule.

In representing injured workers in Pennsylvania, we frequently see hearing loss cases. Many work environments require employees in those areas to be exposed to dangerously high levels of noise. Over a period of time, this can lead to a loss in hearing.

Tinnitus, perceived usually as a “ringing” in the ear, is a condition that can be seen along with a loss of hearing. Workers’ compensation insurance carriers often allege that tinnitus, when present, is not the result of noise exposure at work, but of another cause, such as heredity.

A recent article discussed on www.medicalnewstoday.com suggests that tinnitus is far less likely to be the result of inheriting bad genes than from environmental factors, such as noise exposure at work.

In Pennsylvania, hearing loss as a result of noise exposure at work is compensable, as long as the loss of hearing is greater than 10%. The amount of compensation one can receive for loss of hearing in PA is relative to the percentage of the hearing impairment.

There is a process in PA when a workers’ comp insurance carrier wants to modify or suspend the workers’ compensation benefits of an injured worker. First, there must be evidence of a change in condition. Then, the insurance carrier must serve a form called Notice of Ability to Return to Work on the injured worker (with documentation regarding what type of employment the injured worker can do). Only then can the workers’ comp insurance carrier file a Petition to Modify or Suspend benefits and go before a Workers’ Compensation Judge (WCJ).

But, what if the injured worker is not capable of working at all, due to something other than the work injury? The Supreme Court of Pennsylvania faced this issue in 2000, in Schneider, Inc. v. Workers’ Compensation Appeal Board (Bey). In that case, the worker suffered an injury to his head and neck. While he was receiving workers’ comp benefits, he was stabbed in the head in a bar fight and was rendered paraplegic and brain damaged. The Court held that the workers’ comp insurance carrier did not have to show any job availability, because it would be “fruitless.” In that situation, the injured worker was completely and permanently disabled by the non-work-related injury.

More recently, the Commonwealth Court of Pennsylvania was invited to expand this theory in Wells v. Workers Compensation Appeal Board (Skinner); thankfully, the Court declined. Mr. Skinner injured his back at work, and began to receive PA workers’ compensation benefits. Since Mr. Skinner also suffered with diabetes, cardiac problems and other related health issues, the workers’ comp insurance carrier filed a Petition to Suspend benefits, under the theory of Schneider.

The workers’ comp insurance carrier presented medical evidence that, from the standpoint of his back injury, Mr. Skinner was capable of modified duty work. However, the insurance carrier’s medical expert testified that the non-work-related conditions rendered Mr. Skinner totally disabled. The insurance company also had a vocational witness testify that two modified duty jobs were offered to Mr. Skinner, but he neglected to apply for either. No Notice of Ability to Return to Work was issued.

Convinced that the Notice of Ability to Return to Work was not necessary, since Mr. Skinner was totally disabled by non-work-related causes, the WCJ granted the Petition for Suspension, in accordance with Schneider.

This decision was reversed, however, by the Workers’ Compensation Appeal Board (WCAB). The WCAB concluded that issuing a Notice of Ability to Return to Work is a prerequisite to modifying or suspending benefits. Since that was not done, the Petition must fail.

On appeal to the Commonwealth Court of Pennsylvania, the workers’ comp insurance carrier argued that the Notice of Ability to Return to Work was not required, under Schneider, given Mr. Skinner’s disability. The Court rejected this argument and affirmed the WCAB. The Court said Schneider is to be limited to the facts in that case, and read strictly. The condition of Mr. Skinner was not as clearly permanently and totally disabling as that in Schneider. As such, the general rule applies and the failure to issue the Notice of Ability to Return to Work was fatal to the Petition to Suspend.

Generally speaking, a Workers’ Compensation Judge (WCJ) is the sole determiner of credibility in PA workers’ comp matters. Testimony of any witness can be accepted, in whole or in part. Determinations of credibility by a WCJ cannot generally be overturned on appeal.

This issue was addressed by the Commonwealth Court of Pennsylvania in Stancell v. Workers Compensation Appeal Board (LKI Group, LLC). In this case, the workers’ comp insurance carrier sent the injured worker for an Independent Medical Examination (IME; more realistically referred to as a “Defense Medical Exam,” as there is usually nothing “independent” about it). That doctor pronounced the injured worker fully recovered.

Based on this opinion, the workers’ comp insurance carrier filed a Petition for Termination. To win such a Petition, the carrier must prove that the injured worker has fully recovered from the entire work injury. In that litigation, the IME doctor admitted he did not examine one of the body parts which were injured (the lower right arm). Regardless, the IME doctor testified that the injured worker had fully recovered from the entire injury (he was asked, hypothetically, if she injured her lower right arm, whether that, too, was recovered). The WCJ found this testimony credible and granted the Petition for Termination.

This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB). The Commonwealth Court of Pennsylvania also affirmed, finding the testimony of the IME doctor was “substantial competent evidence,” supporting the decision rendered by the WCJ. The Court noted that the injured worker’s treating doctor did not testify the lower right arm caused her any problem, and the IME doctor testified the injured worker made no complaints regarding her arm.

My only issue with this is that an injured worker is supposed to have no burden to prove anything in a Petition for Termination; yet, the Court suggests perhaps there would have been a different result if the injured worker’s doctor had testified differently. It appears as if the Court is placing a burden on the injured worker which does not belong.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, an employer/insurance carrier has 21 days to investigate a workers’ compensation claim and issue appropriate documentation, either accepting (by Notice of Compensation Payable (NCP) or Agreement for Compensation) or denying (Notice of Denial (NCD)) the claim. If the employer/insurance carrier is unsure whether the claim is compensable, a Notice of Temporary Compensation Payable (TNCP) can be issued. This document can then be revoked, within 90 days, if the employer/insurance carrier wishes to deny the claim.

If an employer/insurance carrier wishes to revoke a TNCP, and deny liability, there are certain procedures which must be followed. If the procedures are not followed exactly, the TNCP can simply convert to an NCP (which cannot be revoked). One of the requirements is that a TNCP can only be revoked if the revocation is made within five days of the last workers’ compensation check.

Using magic powers which would be the envy of Merlin, the Commonwealth Court of Pennsylvania recently made this “requirement” disappear, allowing a TNCP to be revoked despite a clear violation of this provision. In Barrett v. Workers’ Compensation Appeal Board (Vision Quest National), the injured worker suffered a fractured ankle while doing her job. The workers’ comp insurance carrier issued a TNCP, along with the first check for workers’ compensation benefits.

Unbeknownst to the injured worker, the workers’ comp insurance carrier stopped payment on the check (the injured worker only learned of this when the bank notified her of the shortage in her account). Then, over a month after the TNCP was issued, and the check was sent, the TNCP was revoked and an NCD was issued.

The injured worker filed a Petition for Penalties, alleging that the workers’ comp insurance carrier violated the Pennsylvania Workers’ Compensation Act by stopping her payments. Since the TNCP was not revoked within five days of the check, the TNCP had converted into an NCP.

After litigating the matter, the Workers’ Compensation Judge (WCJ) denied the Petition for Penalties. This was affirmed by the Workers’ Compensation Appeal Board (WCAB), and then the Commonwealth Court of Pennsylvania. The Court found that a check for workers’ compensation benefits in PA is only a “conditional payment.” The payment is not truly accomplished, said the Court, until “payment of the monetary funds is actually received.” So, since the stop-payment was issued, and the check was never actually cashed, no payment to the injured worker was ever made. As such, the TNCP was revoked properly.

Aside from my obvious displeasure, that being that a workers’ compensation check now is just a fancy “IOU,” my bigger gripe is what was not addressed. The TNCP was in force for over a month before being revoked. The workers’ comp insurance carrier openly admitted that no payments were made in that time. How can there be no violation of the Act if payments were not made under an existing TNCP? At the worst, even accepting the Court’s reasoning, the Penalty should have been granted for the period during which the TNCP was in force.