Pennsylvania Workers' Compensation Lawyer Blog

Under the Pennsylvania Workers’ Compensation Act, a worker who gets injured while doing his or her job is entitled to PA workers’ comp benefits when the injury “arises in the course of his (or her) employment and related thereto.” (Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act).

What does that mean? Generally speaking, an injury happens in the “course of employment” when the worker is “actually engaged in furtherance of the employer’s business or affairs,” whether the injury takes place on or off the employer’s premises. An injury can also be in the “course of employment” even when the worker is not engaged in furtherance of the employer’s business, if certain conditions are met.

As you can imagine, this determination varies from case to case, highly depending on the facts in each situation. Recently, the Commonwealth Court of PA addressed this area in Pennsylvania State University v. Workers’ Compensation Appeal Board (Smith). Here, the claimant, on a half-hour lunch break, intentionally jumped down a flight of stairs, suffering significant injuries to both legs (distal right tibia fracture and talar dome fractures of the right ankle and a fracture of the distal tibia and the talus of the left ankle).

After litigation of the matter, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, awarding PA workers’ comp benefits. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed, finding that the act of jumping down the stairs was not “an activity so foreign to his regular work duties as to remove him from the scope of employment.”

The Commonwealth Court of PA, however, reversed the decision of the WCJ. Despite the fact the injured worker was staying on the premises of employer for his lunch break, the Court found that he could not be said to be furthering employer’s business or affairs. The act was not an accident or inadvertent slip, but a conscious decision. The Court found such an action “wholly foreign to his employment.” As such, the actions of the injured worker, said the Court, removed him from the course and scope of his employment. The Claim Petition, found the Court, must be denied.

Once again, this case serves as a lesson for how workers’ comp cases in PA can hinge on the precise facts in each case. This highlights the importance of selecting an experienced Pennsylvania workers’ compensation attorney.

Once a work injury in Pennsylvania is accepted by Notice of Compensation Payable (NCP), there is a process to add to, or change, the description of the accepted injury or condition. Sometimes, this is critical, to make the workers’ comp insurance carrier pay for treatment for the injury or condition at issue.

As discussed in a previous blog entry, the process differs slightly, depending on whether the injury or condition was present on the day of the injury (called a “corrective amendment”), or occurred thereafter (called a “subsequently-arising” or “consequential” condition). While both types have the same time limitations to be raised (within three years of the date of last payment), the difference between the two can be the difference between winning and losing.

For example, look at the recent decision of the Commonwealth Court of Pennsylvania in the case of Pizza Hut, Inc. v. Workers’ Compensation Appeal Board (Mahalick). Here, the claimant’s injury was accepted by NCP as a low back strain or sprain. Her workers’ compensation benefits were suspended as of March 26, 2003. On December 26, 2006, claimant filed a Petition to Review, to amend the description of injury to include bulging discs and facet arthropathy in her lumbar spine.

Since this was filed more than three years after the date of the last payment, claimant’s Petition for Review would have been too late. Except, fortunately for claimant, the amendment being sought was a corrective one (not requiring a Petition for Review to be filed) and there was already a Petition pending, filed by the workers’ compensation insurance carrier BEFORE the three years expired.

The Court found that since the litigation was instituted before the expiration of the three years from the date of last payment, and a corrective amendment can be made by a Workers’ Compensation Judge (WCJ) “in the course of the proceedings under any petition pending before such workers’ compensation judge,” [Quoting Section 413 of the Pennsylvania Workers’ Compensation Act], the requested amendment was timely. Since the WCJ found claimant’s medical evidence credible, claimant prevailed.

Had this been a request for a “subsequently-arising” or “consequential” condition, however, claimant would have lost, since her Petition for Review was filed beyond the allotted three years.

Recently, we posted a blog entry on the case of City of Philadelphia v. Workers’ Compensation Appeal Board (Butler), decided by the Commonwealth Court of Pennsylvania on December 16, 2010. In this opinion, the Court allowed a suspension or termination of workers’ compensation benefits to take place on a date before the issuance of a Notice of Compensation Payable (NCP). This appeared in conflict with existing case law from the Supreme Court of Pennsylvania.

We were notified by the attorney who litigated this case that the Commonwealth Court of PA granted a motion for en banc review of the case (most opinions of the Court are decided by a panel of Judges; an “en banc” review involves all of the Judges of the Court). Further, this Order of the Court, issued on February 24, 2011, vacated the decision which had been issued on December 16, 2010. The Court, after the en banc review, will issue a new opinion.

As attorneys who limit their practice to representing people who have been injured at work in PA, we often have the misfortune to see a potential new client who has already lost his or her case with another attorney.

Previously, in a blog entry, we have discussed the appeals process in Pennsylvania workers’ compensation. As discussed in that blog entry, often there is nothing we can do to help the injured worker at that point. The Workers’ Compensation Appeal Board (WCAB) can usually only disturb the opinion of a Workers’ Compensation Judge (WCJ) if the WCJ committed an error of law. Simply disagreeing with the WCJ is not sufficient.

This principle was tested somewhat recently in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Wilson), decided by the Commonwealth Court of Pennsylvania. Here, the injured worker was hurt and the Notice of Compensation Payable (NCP) described the injury as “thoracic strain.” The injured worker sought to amend the description of the injury to include a cervical strain, an aggravation of her pre-existing cervical degenerative disc disease and a rotator cuff tear. The workers’ compensation insurance carrier agreed to accept the cervical strain, but refused to accept the other conditions.

In the ensuing litigation, the medical expert offered by the injured worker did not testify about the neck. The doctor hired by the workers’ comp insurance carrier, for an “Independent Medical Examination” (IME), had drafted a report stating that the work-related injury did aggravate the pre-existing degenerative condition in the neck. In his deposition, however, the IME doctor stated that he meant to say “did not” and the opinion stated in the IME report was merely a typographical error.

The WCJ found the true opinion of the IME doctor was that stated in the IME report and granted the Review Petition, amending the description of injury to include both the aggravation of her pre-existing cervical degenerative disc disease and the rotator cuff tear. On appeal, the WCAB affirmed, finding that, as noted above, determinations of credibility of any witness, in whole or in part, was within the sole discretion of the WCJ.

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ. The Court found that the only evidence supporting the aggravation of the degenerative condition in the neck was that in the initial IME report, which was then recanted in the deposition of the IME doctor. A recanted opinion, said The Court, is, as a matter of law, equivocal, and cannot be used to support a finding of fact in the decision of a WCJ. The Court went on to point out that the sentence in the report at issue is contrary to the remainder of the IME report (which, to this writer, appears suspiciously close to reviewing determinations of credibility, which, of course, is not permissible upon appeal). The Court also noted that the report, itself, is “hearsay” and not admissible; this is the reason medical experts testify at depositions.

Though this appears close to the line of distinguishing “error of law” from “finding of fact,” in due respect to The Court, the result of the decision is not unreasonable. Given the odd facts (typically, the injured worker’s medical expert would support the petition at issue), however, we anticipate this decision will not be terribly damaging to the rights of the injured worker in PA.