Pennsylvania Workers' Compensation Lawyer Blog

As we have discussed in a previous blog entry, the PA Workers’ Compensation Act requires that a Notice of Ability to Return to Work be served on an injured worker (and his or her attorney), before the workers’ comp insurance carrier can move to modify or suspend benefits.

Specifically, the Act states, “If the insurer receives medical evidence that the claimant
is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant . . . “ One of the interesting words chosen in this law is “prompt.”

The Commonwealth Court of Pennsylvania, in Melmark Home v. Workers’ Compensation Appeal Board (Rosenberg), decided in 2008, held that a Notice of Ability to Return to Work sent five and a half months after the workers’ comp insurance carrier received the information was “stale,” and was not valid (because it was not “prompt”). That Court also noted that the real key to whether a Notice of Ability to Return to Work is “prompt” enough is the impact on the injured worker.

Recently, the Commonwealth Court of Pennsylvania again addressed this issue, in Kleinhagan v. Workers’ Compensation Appeal Board (KNIF Flexpak Corp). In this case, the Notice of Ability to Return to Work was sent less than two months after the medical information was received by the insurance carrier, but before the vocational interview was conducted, before modification or suspension of benefits was sought and before a Petition to Modify or Suspend was filed.

The Court found the Notice of Ability to Return to Work timely in this situation. The delay of less than two months did not cause the medical information to become “stale.” The fact that nothing was done prior to the Notice of Ability to Return to Work being served also kept the injured worker from being prejudiced in any way. Given the entirety of circumstance in the matter, the Court found the written notice to be “prompt” and consistent with the Act.

As discussed in a previous blog entry, PA workers’ compensation proceedings are usually held in the County in which the injured worker resides. Counties are then grouped by “Districts.” In the State of PA, there are four Districts: Eastern, Southeastern, Central and Western.

Hearings for the Eastern District are located in Allentown, Bristol, Lancaster, Malvern and Reading (also, though not officially listed on the Bureau of Workers’ Compensation official website, some hearings take place in Doylestown and Dresher). The Southeastern District sees hearings in Northeast Philadelphia and Center City Philadelphia, in addition to Upper Darby. Harrisburg, Hazleton, Pottsville, Scranton, Wilkes-Barre and Williamsport comprise the Central District. Throughout the State of Pennsylvania, there are now a total of 95 Workers’ Compensation Judges (WCJ).

This number includes four new WCJs who have just been introduced by the Bureau of Workers’ Compensation. In the Philadelphia Workers’ Compensation Hearing Office (Southeastern District), Timothy Bulman and Sandra Craig have been added. Robert O’Donnell has joined the Lancaster Workers’ Compensation Hearing Office (Eastern District). The Western District, Johnstown Workers’ Compensation Hearing Office, has added Steven Minnich.

More information on the division of workers’ compensation hearing offices across Pennsylvania, and on the Workers’ Compensation Judges in PA, is available on the PA Bureau of Workers’ Compensation office website.

Generally speaking, when an employee in Pennsylvania is injured while performing the duties of his or her job, the employee is entitled to PA workers’ compensation benefits. One of the exceptions to this rule, however, is when “the injury or death would not have occurred but for the employe’s intoxication.” This is one of the “affirmative defenses” available to a PA workers’ comp insurance carrier. The defendant bears the burden to prove that the intoxication caused the injury.

Recently, the Commonwealth Court of Pennsylvania dealt with whether the defendant’s medical expert had to actually state that the injury would not have occurred “but for” the intoxication. In Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board (Braun), the employee fell off a steel beam, six to eight inches wide, and suffered very serious injuries, including severe head trauma.

A Notice of Temporary Compensation Payable (TNCP) was issued, and workers’ comp benefits were started. However, when lab results showed that the injured worker had a blood alcohol level of around .28 at the hospital (Far beyond the .08 level which constitutes drunken driving in PA), the claim was then denied by issuance of a Notice of Denial (NCD).

Claimant filed a Claim Petition, for the injury itself, and a Petition to Reinstate, alleging the TNCP was not revoked in a timely fashion. The parties agreed that the work injury happened, and that the injured worker was totally disabled as a result of the injury. Only two issues remained for decision: whether the claim was barred due to intoxication, and whether the revocation of the TNCP, and the issuance of the NCD, was timely.

The Workers’ Compensation Judge (WCJ) credited the testimony of defendant’s medical expert, who stated, “without question, that this person was severely intoxicated by
alcohol and that level of alcohol was a major and very substantial contributing
factor to his unfortunate accident.” Based on this testimony, the WCJ denied the Claim Petition. The Petition to Reinstate was also denied, as the WCJ found the revocation timely.

On appeal, the Workers’ Compensation Appeal Board (WCAB) agreed the revocation of the TNCP was timely (and that the Petition to Reinstate was properly denied), but reversed with regard to the intoxication defense. The WCAB stated that the proper standard for this affirmative defense was to prove the injury would not have happened “but for” the intoxication, and defendant’s medical expert did not give this opinion.

The Commonwealth Court of Pennsylvania, however, reversed the WCAB, and agreed with the WCJ that the Claim was barred by intoxication. The Court found that, in Pennsylvania workers’ compensation cases, there has never been a need for the use of “magic words,” and that the testimony of defendant’s expert, when viewed as a whole, met the standard required to prove that the intoxication was, in fact, the cause of the injury.

As to the Petition to Reinstate, the Court affirmed the WCAB and the WCJ, finding that a denial of the Petition was appropriate. The Pennsylvania Workers’ Compensation Act requires that a TNCP must be revoked no later “than five (5) days after the last payment.” The term “last payment” though, said the Court, does not mean the date the check was received. Rather, that term means “within five days of the end of the last payment period.”

Here, the last workers’ compensation check was received by the injured worker on February 11, 2003, but the check was for the two-week period ending on February 20, 2003. Though the TNCP was revoked on February 21, 2003, more than five days after the injured worker received the last workers’ comp check, the revocation was within five days of the last day of the pay period, so the revocation and denial was timely.

As we mentioned in a previous blog entry, we are excited to sponsor a seminar on Pennsylvania Workers’ Compensation, which is free to injured workers. More information can be seen in our ads in many area newspapers, or you can view the ad on www.phillyburbs.com by clicking here. We think this opportunity to learn about work injuries, from two experienced PA workers’ compensation attorneys, an occupational medicine physician and two representatives of a physical therapy facility, is a valuable experience which should be taken by every injured worker. We look forward to seeing all of you in our offices for the seminar on May 10, 2010 at 6:00. Just call us at (215) 244-8101 to reserve your spot.