Pennsylvania Workers' Compensation Lawyer Blog

Though, generally speaking, Pennsylvania’s workers’ compensation system is based purely on wage loss, there are exceptions to the rule. With most work-related injuries in PA, workers’ comp is paid only if the injured worker is disabled from his or her job by the work injury.

One large exception is the category of injuries called “specific loss.” This encompasses when an injured worker permanently loses the use of certain body parts or senses. In this event, benefits are paid under the Pennsylvania Workers’ Compensation Act, whether or not there is any disability resulting from the injury. This covers fingers, toes, hands, feet, arms and legs, in addition to the senses of sight and hearing.

Loss of hearing has had many changes in PA workers’ compensation law over the years. In fact, the entire way hearing loss is compensated under PA workers’ comp was changed with Act 1, passed in 1995. For all hearing loss since then, the amount of workers’ compensation benefits paid varies according to the percentage of binaural (both ears) hearing impairment. To receive any workers’ comp benefits, there must be at least a 10% hearing impairment; while, on the other hand, an impairment over 75% is deemed to be a complete loss of hearing.

One issue that arises in hearing loss cases is the contribution of “presbycusis,” the name for the loss of hearing which happens naturally as we age. When addressing the impact of harmful noise-exposure at work in a hearing loss, we also look at the type of hearing loss, as there are different characteristics for different causes. Of course, we also look at other kinds of noise to which the injured worker may have been exposed (military, hunting, power tools, just for a few examples).

Often, a loss of hearing is an insidious, gradual, process, which is not discovered for several years. Indeed, in many of our clients over the years, the injured worker is the last to notice (the family, and friends, who deal with the injured worker, are typically the first to notice).

When the loss of hearing is not raised until after retirement, there can be additional issues arising. One of these issues was faced recently by the Commonwealth Court of Pennsylvania in City of Philadelphia v. Workers’ Compensation Appeal Board (Seaman).

In this case, the injured worker was a fireman in the City of Philadelphia for many years. Several months after he retired, a hearing loss test (known as an “audiogram”) revealed a significant loss of hearing. The injured worker filed a Claim Petition, which was granted by a Workers’ Compensation Judge (WCJ).

The PA workers’ compensation insurance carrier appealed to the Commonwealth Court of Pennsylvania, saying that the injured worker could not win, because he could not prove the extent of hearing loss on the date he retired. The Court, however, rejected this defense and affirmed the granting of the Claim Petition. Unless there was a previous hearing loss test done close in time to the retirement, showing a significantly lesser hearing impairment, there is no such burden on the injured worker, the Court found.

Even more recently, in a decision rendered November 19, 2010, the Commonwealth Court of Pennsylvania again addressed hearing loss in the matter of Joy Mining Machinery Company v. Workers’ Compensation Appeal Board (Zerres). Here, as in the Seaman case above, the WCJ granted the Claim Petition finding a work-related loss of hearing (13.125% hearing loss in this case).

The issues in the Zerres case were whether the injured worker could prove he was exposed to the harmful noise within the three years before a Claim Petition was filed, and whether the WCJ could properly give greater weight to the injured worker’s testimony about noise level than noise-level studies (called “dosimetry readings”) offered by the employer.

The Court affirmed the decision of the WCJ, finding that the testimony of the injured worker, without more, if believed by the WCJ, was sufficient both for the timing of the noise exposure, as well as the level of exposure. The Court noted that the dosimetry readings offered by the employer were not done on the person of the injured worker, nor were they done every day in every area, thus, the dosimetry readings did not prove to what extent the injured worker was actually exposed.

When either party to a PA workers’ compensation case wants an opinion on whether medical treatment is reasonable and necessary (and this is usually requested by the workers’ comp insurance carrier, rather than the injured worker), the procedure is to file a Request for Utilization Review (UR).

The Pennsylvania Bureau of Workers’ Compensation then assigns a Utilization Review Organization (URO) randomly from a list. Following submission of records, and frequently a personal statement from the injured worker, the URO issues a Utilization Review Determination. The party against whom the URO finds has the right to appeal, by filing a Petition for Review of Utilization Review Determination.

This Petition will be assigned to a Workers’ Compensation Judge (WCJ). The litigation of a Petition for Review of Utilization Review Determination is called a “de novo” proceeding. That translates to, roughly, “from the start.” In this situation, it means the parties are not limited to the evidence before the URO; instead, the parties can submit whatever evidence to the WCJ that they desire.

Previously, in 2005, the Commonwealth Court of Pennsylvania decided the matter of United States Steel Corporation v. Workers’ Compensation Appeal Board (Luczki), holding that it is an “unreasonable contest” when a workers’ compensation insurance carrier appeals a UR Determination without “contrary medical evidence” in its possession at the time the Petition for Review of Utilization Review Determination is filed.

Recently, the Commonwealth Court of PA had to address this issue a step further in The Road Toad, Inc. v. Workers’ Compensation Appeal Board (McLean). Here, there was no dispute that the PA workers’ comp insurance carrier did not have contrary medical evidence in its possession when it appealed a UR Determination, but obtained an Independent Medical Examination (IME) to support its position AFTER the Petition for Review of Utilization Review Determination was filed.

The WCJ granted the PA workers’ comp insurance carrier’s Petition, but the Workers’ Compensation Appeal Board (WCAB) reversed. The WCAB concluded that the WCJ could not base his decision on the results of the IME, because, under Luczki, that evidence had to be in the insurance carrier’s possession before the appeal, and it was not.

Upon further appeal, the Commonwealth Court of Pennsylvania reversed the WCAB, and reinstated the decision rendered by the WCJ. Whether or not there was an unreasonable contest has no relevancy as to whether or not the testimony of the IME physician was admissible. Since a Petition for Review of Utilization Review Determination is a de novo proceeding, the WCJ was correct to consider the results of the IME, and the Petition was properly granted, said the Court.

The impact of pensions and “retirement” on PA workers’ compensation cases seems to be a frequent issue visited by the Commonwealth Court of Pennsylvania. Just last month, we told you about the decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) [Where the Court found that a “disability” pension does not create a presumption that an injured worker has voluntarily left the work force, while a “retirement” pension does].

Now, the Commonwealth Court of Pennsylvania has decided the Day v. Workers’ Compensation Appeal Board (City of Pittsburgh) case and further complicated the matter. A basic reading of the case could be consistent with the decision in the Robinson case. In Day, the Court found the injured worker took a “regular” pension from the employer, and applied for (and received) Social Security benefits. Further, the Court found that the injured worker testified he was capable of some kind of work, but he was not looking for work. In this case, unlike in Robinson, the Court found the injured worker did retire (and, as such, his workers’ compensation benefits should be suspended).

The problem is what does not appear in the case (and we only know this from the workers’ compensation attorney who litigated the case before the Commonwealth Court of Pennsylvania). The Social Security “benefits” being received by the injured worker were DISABILITY benefits, not RETIREMENT benefits, as the Court made it sound. Also, the pension at issue was not a regular (old age) pension, but a DISABILITY pension. Based on the true facts of the case (which, again, do not appear in the written opinion), one would think the same result should have been reached as in Robinson, denying the Petition for Suspension.

Once again, we are cast into a very murky area when it comes to pensions, Social Security Benefits, retirement and workers’ compensation in PA. These cases seem to vary depending on the facts, but what seems consistent is the complicated nature of the issue, and the uncertainty of the results.

Many times an injured worker in PA will be so impaired that he or she may also qualify for Social Security Disability benefits. Contrary to what some injured workers may have thought, you can receive both Pennsylvania workers' comp benefits and Social Security Disability benefits at the same time (though there is a credit/offset between the two programs).

Though our firm handles only PA workers' compensation cases, and does not reperesent folks in Social Security Disability matters, we recognize the need for our clients to be informed about Social Security in general.

Some very helpful information can be found at www.socialsecurityhome.com. Though this is not an official government site, and is not run by the Social Security Administration, an injured worker can learn a great deal about the process by reviewing this site.

We were humbled and appreciative to learn that our blog has been selected by LexisNexis as one of the Top 25 Blogs for Workers' Compensation and Workplace Issues. Considering all of the excellent blogs covering just Pennsylvania workers’ comp issues, it was incredibly rewarding for us to be selected to such an elite group, not only for PA, but for blogs covering the issue across the entire Country. We are especially proud, since this is our second such recognition in the past three years.

The entire list of the Top 25 Blogs for Workers' Compensation and Workplace Issues can he found here.

We again thank LexisNexis, and our loyal readers, for this tremendous honor. Over the ensuing months, and years, we will strive to be worthy of this recognition.