Pennsylvania Workers' Compensation Lawyer Blog

Some time ago, we made a brief deviation from our normal course of not blogging about own active cases, to discuss a liquor store clerk who was robbed at gunpoint. The PA Liquor Control Board (LCB) denied the claim, stating that being robbed at gunpoint was not an “abnormal working condition” for a PA LCB clerk (remember that the next time you think of stepping into a State Store in Pennsylvania – armed robbery is simply accepted as a normal course of a day by management). We filed a Claim Petition on the clerk’s behalf and litigated the case.

We are pleased to report that the Workers’ Compensation Judge (WCJ) did not buy Defendant’s argument, and did not believe that society has degraded far enough such that a clerk can expect armed robbery on his or her normal day at work. In granting our Claim Petition, the WCJ rejected the Defendant’s attempt to expand the Commonwealth Court of Pennsylvania’s disastrous decision in of McLaurin v. Workers’ Compensation Appeal Board (SEPTA), wherein the Court, in its infinite wisdom, found that a SEPTA driver’s normal workday includes being assaulted by a gun-wielding teen (sending the message, as we understand it, that anyone foolish enough to step on a SEPTA vehicle can expect to face such consequences).

Undaunted, however, the PA LCB has filed an appeal with the Pennsylvania Workers’ Compensation Appeal Board (WCAB). It appears the PA LCB’s argument is that the WCJ was incorrect and Pennsylvania liquor stores are just as deadly as SEPTA vehicles (how very proud they must feel while making these arguments). We find it amazing, not to mention disheartening, that our own governmental agencies would be stooping to such disgraceful antics to deny a case. Rather than address what they clearly view as a “normal working condition,” perhaps by improving security methods, the PA LCB instead is trying to use its stubborn ignorance and incompetence as a basis to deny an injury to one of its own employees. How can one put any word other than “disgraceful” on that?

We are pleased to present a guest blog post from http://www.metropolitanmds.com regarding the use of acupuncture. We thought this may be of benefit to injured workers, who may be interested in exploring alternative areas for pain relief:

Acupuncture is one of the oldest forms of health care and treatments on the planet, but it still serves its purposes even today. Now, while inserting dozens of needles into your body doesn't seem like the most fun way to treat ailments, acupuncture is a tried and true therapeutic practice that has helped people deal with pain for centuries.

By inserting needles into various pressure points around the body, physical pain and stress can be relieved and even treated using acupuncture. For most, it's funny to think that sticking needles into the pain areas and pressure points of the body would be the answer, but when it comes to people who suffer from fibromyalgia and chronic fatigue syndrome, it might just be that.

New studies have shown that that acupuncture in certain areas of the body releases adenosine, which is a natural pain killer that is usually released after an injury. This allows people who are suffering from constant fibromyalgia to gain some much-needed relief.

By releasing adenosine, pain signals can be blocked from ever reaching the brain thus helping sufferers deal with their pain problems. This brings up a lot of questions about how much acupuncture has to do with adenosine release and if this is the reason that so many benefit from it. Yet, whatever the reason, studies have shown acupuncture to be great at treating the condition and helping the people who suffer from it.

From the fatigue angle, the study also went on to show that adenosine released from acupuncture has a lot to do with the regulation of the sleep cycle. By being able to regulate sleep correctly, chronic fatigue syndrome may be able to be properly treated and even fixed.

Acupuncture paired with the correct medicine can help both constant pain and fatigue, as new studies have gone on to show. This is good news for sufferers of both ailments, and goes to show that this ancient art of health may still have some new tricks to share.

By Rachelle Holmes of Chicago Breast Augmentation and Chicago Liposuction Center, MetropolitanMDs

**Update - Appeal accepted by the Supreme Court of Pennsylvania on April 27, 2011 - Stay tuned for more details**

Years ago, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act (Known as Act 57), a workers’ comp insurance company in PA had to prove that work was actually open and available to an injured worker in order to reduce or stop the payment of workers’ compensation benefits. This was known as the “Kachinski” standard, after the Pennsylvania Supreme Court decision in Kachinski v. Workers’ Compensation Appeal Board (Vepco Constr. Co.), decided in 1987. This was discussed in previous blog entries.

One of the more dangerous additions in those changes to the Act in 1996 was the invention of the “Earning Power Assessment” (EPA)[Also known as a “Labor Market Survey” [LMS]]. The EPA, or LMS, was to take the place of actual job referrals. A vocational counselor would be hired by the workers’ comp insurance carrier to go out and find job openings, and prepare the EPA/LMS. This document was to serve as an estimate of the jobs which exist in the geographic area in which the injured worker resides.

A question left open since the invention of the EPA/LMS was the impact of whether the job was actually available to the injured worker. A recent case before the Commonwealth Court of Pennsylvania, Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), addressed this very issue.

In that case, a vocational counselor located five jobs that were open as of the date he found them, and he prepared the EPA/LMS. The injured worker received the EPA/LMS several weeks later and immediately applied for all of the jobs. The injured worker received no offers of employment from any of the five jobs. The Workers’ Compensation Judge (WCJ) found the IME doctor and the workers’ comp insurance carrier’s vocational counselor credible, but denied the Petition to Modify, because the applications made by the injured worker showed the jobs were not available to her. The Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of Pennsylvania, however, reversed the decision of the WCJ, and granted the Petition to Modify. The Court found that an EPA/LMS is just an estimate of earnings. The fact the jobs were not open weeks later, when the injured worker applied, is irrelevant. Other, similar, jobs, said the Court, would replace those that were then filled.

Also, the injured worker failed to look for employment on her own, outside of those jobs in the EPA/LMS. Therefore, the Court found that the injured worker could not rebut the fact that jobs were open and available to her at the time the EPA/LMS was created.

The one good thing in the decision is contained within Footnote 12. There, the Court noted that one position identified in the EPA/LMS was still open and available when the injured worker applied. The injured worker did not get a job offer as a result of her application. The Court admitted that this position was not “available” to the injured worker, and could not form the basis of a Modification Petition.

Overall, this decision highlights the importance of having an experienced PA workers’ compensation attorney on your side BEFORE there is any litigation. Timing is critical in cases like these, and passage of time is something an attorney may not be able to fix once it happens. Once the Petition to Modify is filed by the workers’ comp insurance carrier, it may be too late to prevent a bad decision.

In a previous blog posting, we discussed the case of Armstrong v. Workers’ Compensation Appeal Board, decided by the Commonwealth Court of Pennsylvania in 2007. This case first allowed a PA workers’ compensation insurance carrier to use a Notice of Denial (NCD) to “accept” a workers’ comp case. As attorneys for injured workers in PA, we hoped this case would be viewed narrowly, if not reversed, by future Court decisions.

Unfortunately, the Commonwealth Court of Pennsylvania, in the case of Forbes Road CTC v. Workers’ Compensation Appeal Board (Consla), has now expanded this theory. No longer does a PA workers’ comp insurance carrier have to even issue a Temporary Notice of Compensation Payable (TNCP), then revoke the TNCP, to use an NCD to accept a case (as it was done in Armstrong). In Consla, the Court specifically stated that, “we hold an employer may properly issue an NCD to accept a claimed work injury for medical purposes only.”

As we felt after reading the Armstrong decision, we can only wonder why the Pennsylvania Bureau of Workers’ Compensation would have gone to the trouble of developing a specific form called a “Medical Only Notice of Compensation Payable,” which was designed to be issued in this very type of case, if an NCD could simply be used. Oh, and we also wonder how a Court can decide that a Notice of DENIAL can be used to ACCEPT a case. Silly us, we thought the Pennsylvania Legislature was charged with making laws, leaving the Courts to simply interpret them.