Pennsylvania Workers' Compensation Lawyer Blog

Back in October, we blogged about the decision of the Commonwealth Court of Pennsylvania in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), which addressed what caused a presumption that an injured worker “retired,” entitling the workers’ comp insurance carrier to a suspension of workers’ compensation benefits.

The decision of the Commonwealth Court arguably made a murky area of the law even more confusing, but it also attempted to inject some compassion and logic into an aspect of law short on both.

For better or worse, the Supreme Court of Pennsylvania has accepted an appeal in this matter. Specifically, the issue for the Court to determine is:

“Did the Commonwealth Court err by holding that, in a petition to suspend
compensation benefits based upon an alleged voluntary withdrawal from the
workforce, the employer bears the burden of showing by the totality of the
circumstances that the claimant has chosen not to return to the workforce?”

We will, of course, let you folks know the final result as soon as we are advised.

Under the Pennsylvania Workers’ Compensation Act, PA workers’ comp benefits can be suspended by a Workers’ Compensation Judge (WCJ) when an injured worker’s loss of earnings is no longer due to the work injury, but is instead due to reasons other than the work injury.

This issue was recently handed by the Commonwealth Court of Pennsylvania in University of Pennsylvania v. Workers’ Compensation Appeal Board (Hicks).
Here, the injured worker was a police officer for the University of Pennsylvania. While performing his job, he injured his neck and low back in a motor vehicle accident, and became disabled from his job. Subsequent to his injury, Claimant was convicted of a crime which made him ineligible to be certified as a police officer.

As a result the workers’ compensation insurance carrier filed Petitions for Termination and Suspension. After litigating the matter, the WCJ denied both Petitions. The Termination Petition was denied since the WCJ found Claimant’s medical expert (who testified that he was not fully recovered from the work injury) more credible than the medical expert offered by the workers’ comp insurance carrier. The Suspension Petition was denied because the loss of the certification was not automatic, and the workers’ compensation insurance carrier failed to prove the injured worker here lost his certification.

On appeal, the Workers’ Compensation Appeal Board (WCAB) and Commonwealth Court of Pennsylvania both affirmed. The Court found that since the WCJ found that Claimant remained disabled from his job, the status of the certification was irrelevant. Even if the status of the certification was relevant, the Court agreed with the WCJ, stating that the workers’ comp insurance carrier failed to prove the injured worker actually lost his certification.

Readers of this blog, from previous blog entries, know our frustration with the developing practice of workers’ comp insurance carriers “accepting” medical-only claims by issuing a Notice of Denial (NCD).

Aside from the logical problem, there are procedural issues this creates for attorneys representing injured workers in PA. For example, this practice lets the workers’ comp insurance carrier deny the wage aspect of a claim and avoid unreasonable contest fees, and would often wreak havoc with an injured worker’s attempt to obtain medical treatment for the work injury. There is also concern that the NCD would not stop the statute of limitations, meaning a claim could be barred if the injured worker did not know to file a Claim Petition within three years of the injury.

The PA Bureau of Workers’ Compensation recognized the problem years ago, and created a medical-only Notice of Compensation Payable (NCP). This document would properly preserve the statute of limitations, and let everybody know the true status of the claim. The Courts in Pennsylvania, however, as noted in our previous blog entries above, continued to allow workers’ comp insurance carriers to “accept” claims by using an NCD, making the medical-only NCP useless.

We are pleased to report that the Pennsylvania Bureau of Workers’ Compensation has now revised the NCD, which appears will stop this abuse by the workers’ comp insurance carriers. As you can see by clicking here, the new NCD does not permit the acceptance of the claim by use of this document.

We applaud the Bureau for closing this loophole, which the Courts had created. This change will benefit injured workers across the State of Pennsylvania.

When a workers’ compensation insurance carrier in PA does not believe the medical treatment rendered to an injured worker is reasonable and necessary, the appropriate course of action is for the insurance carrier to file for Utilization Review (UR). This was discussed in a previous blog entry. In this process, the PA Bureau of Workers’ Compensation will randomly assign a Utilization Review Organization (URO) to determine whether the treatment at issue is reasonable and necessary. The URO cannot address whether the treatment is related to the work injury.

This distinction became critical for the Commonwealth Court of Pennsylvania in Securitas Security Services v. Workers’ Compensation Appeal Board (Schuh). The injured worker fell off a chair and suffered a low back strain. Subsequently, the injured worker began to receive psychological treatment for depression. When the workers’ comp insurance carrier received bills for the psychological treatment, the carrier filed for UR.

A UR Determination was rendered by the URO, finding the treatment reasonable and necessary. The workers’ comp insurance carrier elected not to appeal this UR Determination.

The injured worker then filed a Petition to Review, seeking to add psychological injury to the accepted work injury. As evidence, the injured worker offered only the unappealed UR Determination. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the workers’ comp insurance carrier’s decision to institute the UR process, and the failure to appeal the UR Determination, effectively acknowledged the psychological injury was related to the work injury. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal, the Commonwealth Court of PA reversed. The sole issue to be decided by the URO was whether the treatment was reasonable and necessary. In fact, the law precludes a URO from even addressing the relatedness of a condition. As such, held the Court, a UR Determination, by itself, cannot support a Petition to Review to amend the description of injury.

Several months ago, we posted a blog entry observing how diagnostic testing, MRI in particular, does not show “pain.” What can be seen on such studies are anatomical conditions which may or may not actually cause pain. We observed how this creates difficulty in litigation, such as a Pennsylvania workers’ compensation case, since an injured worker may testify that he or she suffers pain from an injury, but would be unable to “prove” it.

After the blog entry was posted, I was contacted by Dr. Donald Marks, whose company, Cognitive Engineering, LLC, maintains that they can “show” the pain an injured worker is feeling. Specifically, Dr. Marks stated, “Consider that a functional MRI can show actual activation of the pain centers of the brain, which validates/ illustrates the complaint of pain. I have published on this, and my work has supported two litigations.” You can see more about this concept on Dr. Marks’ website by clicking here.

This is a fascinating, and developing, area of medicine, which we, as attorneys who represent injured workers, will be keeping a close eye on.

As discussed in previous blog entries, Commonwealth Court of Pennsylvania has held that a Notice of Denial (NCD) can be used to properly “accept” a work-related injury. This continues to disappoint, and confuse, at least some of us who spend our careers protecting the rights of the injured worker. Logically, how can one use a Notice of DENIAL to accept an injury, and, if that is the proper method to do so, why did the PA Bureau of Workers’ Compensation go to the trouble of creating the Medical-Only Notice of Compensation Payable (NCP)?

Recently, this concept was confirmed by the Commonwealth Court of PA in Morrison v. Workers’ Compensation Appeal Board (Rothman Institute). Here, an NCD was issued over a year after the work injury (as noted in a previous blog entry, a PA workers’ comp insurance carrier has 21 days to issue documentation accepting or denying a claim). On the NCD, Box 4 was checked, acknowledging that an injury took place, but disputing that the injured worker was disabled as a result of the injury.

The Workers’ Compensation Judge (WCJ) rejected the testimony of Claimant, and the evidence from Claimant’s medical experts, and denied the Claim Petition. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of Pennsylvania also affirmed.

As we have discussed here previously, a WCJ makes the final determination as to the credibility of witnesses. Here, the WCJ found Claimant and Claimant’s medical evidence not credible. Therefore, I have no real issue with the Claimant not being successful in proving disability. However, this NCD, which the PA workers’ compensation insurance carrier issued, acknowledged that an injury took place. As such, I find it inconceivable that the Claim Petition could be denied entirely. That an injury took place in the scope and course of employment was admitted by a document the insurance carrier filed with the Pennsylvania Bureau of Workers’ Compensation. In my view, the Claim Petition should have been granted, but the request for disability should have been denied. A matter of semantics, perhaps, but what happens three years and a day after the injury? The Statute of Limitations expires at that point. What is the status of the work injury then? Can the injured worker get medical treatment then? All good, and unanswered, questions.