Pennsylvania Workers' Compensation Lawyer Blog

Last week, we attended a PA Workers’ Compensation seminar in Hershey, Pennsylvania. This is the “Fall Section Meeting of the Pennsylvania Bar Association’s Workers’ Compensation Section.” For years, workers’ comp attorneys from across the entire State of PA have gathered at this seminar to learn and discuss new cases and trends in PA workers’ compensation.

As you know, from reading our blog, we stay very current on workers’ comp cases coming out of the Commonwealth Court of PA and the Pennsylvania Supreme Court. But, we recognize the importance of attending seminars like this one, so that we can interact with other workers’ compensation attorneys across PA, as well as the Workers’ Compensation Judges, and stay on top of trends and developments.

We believe it is this desire to stay current in all aspects of PA workers’ compensation law which makes Brilliant & Neiman LLC able to help injured workers as well as possible. Sometimes, general practice attorneys, who do not limit their entire practice to PA workers’ comp cases, as we do, are not able to stay as current on all aspects of cases they handle. We believe this is the primary benefit to us limiting our practice to just representing injured workers in their PA workers’ compensation cases.

In the Summer 2010 issue of News & Notes, published by the PA Bureau of Workers’ Compensation, Workers’ Compensation Judge (WCJ) Joseph Hagan was named to be Judge Manager for the Southeastern District of Pennsylvania. Judge Hagan has been a WCJ in this district, working from the Philadelphia Workers’ Compensation Hearing Office, since 1988. The Southeastern District covers the Northeast Philadelphia, Center City Philadelphia and Upper Darby Workers’ Compensation Hearing Offices.

WCJ Karen Wertheimer remains Judge Manager for the Eastern District of PA. This includes the Allentown, Bristol, Lancaster, Malvern, Northampton and Reading Workers’ Comp Hearing Offices. Interestingly, this District also has two “informal” or “unlisted” locations – an injured worker who resides in Quakertown, Doylestown or other parts of the Central/Upper Bucks County will have hearings held in the Doylestown Courthouse, while an injured worker who lives in the eastern portion of Montgomery County will have hearings held in Dresher.

The Central District of PA, encompassing Harrisburg, Hazleton, Pottsville, Scranton, Wilkes-Barre and Williamsport, is headed by Judge Manager Susan Caravaggio, and the Western District is led by Judge Manager David Cicola.

Back in October, 2009, we noted that the Supreme Court of Pennsylvania accepted the appeal (or, as formally said, “accepted allocatur”) in the matter of Diehl v. Workers’ Compensation Appeal Board (I.A. Construction).

This is the case where the Commonwealth Court of Pennsylvania first found that a PA workers’ compensation insurance carrier had to show job availability if a change of disability status is requested (changing from total disability to partial) as a result of an Impairment Rating Evaluation (IRE), if the IRE is not requested within 60 days of the expiration of 104 weeks of total disability benefits. An “en banc” (all of the Judges on the Court, rather than just the usual panel of three) decision by the Commonwealth Court reversed the Court’s initial decision, and found that no job availability need be shown in this situation.

The Supreme Court of PA recently affirmed the en banc decision of the Commonwealth Court of Pennsylvania. According to the PA Supreme Court, the crucial element is that “impairment” and “disability” are two very different things. Since the PA Workers’ Compensation Act refers only to the “impairment rating” (in this Section of the Act), and does not mention disability, the Court concluded that the Legislature did not intend to make the earning power of an injured worker an issue in IRE cases; instead, the issue in an IRE case is simply the injured worker’s degree of impairment. As such, there is no need for the PA workers’ compensation insurance company to present evidence on job availability to get a modification of workers’ comp benefits as a result of an IRE.

Though workers’ compensation laws vary from State to State, there are some elements which remain fairly constant. Workers’ compensation laws are generally “no fault” statutes (no need for an injured worker to demonstrate negligence), and they generally exclude the recovery of “pain and suffering.” Workers’ compensation systems also are usually streamlined (as compared to general civil litigation) and procedures are often more relaxed than in ordinary State Court systems.

Therefore, trends, developments and concerns in workers’ compensation systems can frequently be addressed at a level relevant to every State in the Country. Recently, we were contacted by Gregory M. Duhl, Associate Professor of Law at William Mitchell College of Law in Minnesota, regarding an article he co-authored with Jaclyn Milner, an attorney in Minnesota. Since the article deals with the impact of social networking sites on workers’ compensation cases in general, it certainly appears to be of interest to injured workers in Pennsylvania, as well as every other State in the Country.

The full article can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675026 . I encourage all injured workers, and workers’ compensation attorneys, to read the article carefully. Our society is becoming more and more technologically advanced, and many injured workers, and perhaps even their attorneys, do not realize how social networking sites, such as Facebook, Twitter and Myspace, can impact a workers’ compensation case. As the article notes, both the information within social networking sites themselves, as well as the “guidance” for when and where future surveillance may be productive, these sites can be an enormous liability to a workers’ compensation case.

**Update - On April 4, 2011, The Supreme Court of Pennsylvania accepted appeal in the Robinson case. Therefore, what we have written here about the status of the law in Pennsylvania may change. Stay tuned for more details!**

In this blog, we have addressed the consequences of “retirement,” as it affects PA workers’ compensation cases, on several occasions. As far as we could tell, taking a pension from an employer led to a finding that an injured worker had “retired,” triggering the draconian consequences of placing the Pennsylvania workers’ comp benefits in jeopardy. Specifically, we addressed the Hensal case, which seemed to suggest the act of simply taking a pension created a presumption that an injured worker had “retired,” or, in PA workers’ comp language, had voluntarily withdrawn from the labor market.

Recently, however, The Commonwealth Court of Pennsylvania issued a decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). While this decision may have made a complicated issue even more convoluted, it also sprinkled in a desperately needed dose of reality and compassion for the injured worker. In essence, this decision guided us on how to determine when an injured worker is “retired.”

In this case, the injured worker was performing light duty work for her pre-injury employer, until the employer stopped making such work available to her. At that point, the injured worker filed for a disability pension. The employer then (heart of gold these employers have) filed a Petition to Suspend PA workers’ comp benefits, because they felt the taking of the pension meant the injured worker had voluntarily withdrawn from the labor market.

The Workers’ Compensation Judge (WCJ) denied the Suspension Petition, finding that the injured worker was forced into retirement by her employer, and that she did then continue to look for work after the “retirement” (though the record showed Ms. Robinson made only one trip to a local job center long after the “retirement” and looked at some other jobs, applying for none). Since the burden of proof then shifted to the employer to show jobs were available to Ms. Robinson, and the employer failed to meet this burden, the WCJ denied the Petition for Suspension. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ.

Upon further appeal, the Commonwealth Court of PA also affirmed. The Court found the issue to be whether the injured worker had actually “retired.” If so, then the standard discussed in our previous blog entries was to be used (There would be a presumption that the injured worker voluntarily withdrew from the labor market, so the burden of proof would be on the injured worker to show either that he or she is disabled from ALL employment, or that he or she is continuing to look for work). On the other hand, if the injured worker had not retired, then the burden of proof remained on the employer to show there was work available within the injured worker’s physical restrictions.

In examining the situation of Ms. Robinson, the Court saw that she filed for a disability pension, rather than a retirement pension, noting that the disability pension only stated that she was not capable of her pre-injury job (not that she was not capable of any job). Ultimately, the Court found that the employer failed to prove Ms. Robinson intended to “terminate her career” by retiring. Therefore, there was no presumption, and employer was required to show job availability (which the employer did not). Note, though, that three Judges on the Court dissented from the majority view, and would have granted the Suspension Petition.

If this sounds complicated to you, join the club. These issues get very thorny and vary widely depending on the facts in each case. Injured workers often ask us when they need to obtain a PA workers’ comp attorney. It is situations like these, where an injured worker may take an action, seemingly totally unrelated to the workers’ compensation case, that makes us advise injured workers to have an attorney as soon as possible.