Pennsylvania Workers' Compensation Lawyer Blog

Under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is disabled from his or her job due to a work injury, the injured worker is entitled to workers’ compensation wage loss benefits. This rate is based on the earnings the injured worker had prior to the injury. Those earnings are called the Average Weekly Wage (AWW).

Assuming the injured worker had been working for his or her employer for more than a year before the work injury, the AWW is calculated by taking the average earnings of the injured worker for each of the four 13-week quarters immediately before the injury. The lowest quarter is disregarded and an average is taken of the remaining three quarters. The resulting number is the AWW. The workers’ compensation rate is typically two-thirds of the AWW (if the AWW is very low, the rate could be as high as 90%, if the AWW is very high, the rate is capped at a certain level each year).

Sometimes, these calculations result in a terrible injustice. The most egregious example was fixed by the Supreme Court of Pennsylvania in their decision in Hannaberry HVAC v. Workers’ Compensation Appeal Board (Snyder Jr.) in 2003. There, the injured worker was a part-time employee for most of the year preceding the injury. Shortly before the accident, the injured worker had graduated school and become a full-time employee, earning a wage four times what he had been earning. The accident (in which he was pinned under a forklift) left the injured worker a quadriplegic.

The Supreme Court of PA found that the normal wage calculation, as described above, would not work in this case. That calculation, said the Court, would not reflect the “economic reality” and would not “provide a fair ascertainment of wages.” The Court stated that the calculation as provided in the PA Workers’ Compensation Act “does not control the calculation in a circumstance where it would lead to a grossly and demonstrably inaccurate measure of a worker’s weekly wage.” This decision certainly was consistent with the humanitarian objectives of the PA Workers’ Compensation Act.

Unfortunately, the Hannaberry decision is read strictly by lower Courts and that reasoning is rarely used. Take, for example, the recent decision by the Commonwealth Court of Pennsylvania in Pike v. Workers’ Compensation Appeal Board (Veseley Brothers Moving).

For two of the three quarters immediately preceding the work injury, Mr. Pike was an hourly employee, earning $306.23 and $368.15 per week (The decision does not make clear what the earnings were in the other quarter, though it appears that must have been lower and the quarter that was dropped from the calculation). In the last quarter prior to the work injury, Mr. Pike had been promoted to a new position and earned $1,559.54. The Workers’ Compensation Judge averaged $306.23, $368.15 and $1,559.54, divided by three, and came up with AWW of $744.64 (resulting in a workers’ compensation rate of $496.67).

The injured worker appealed, citing Hannaberry, alleging that his promotion made the AWW unfair and that the AWW did not accurately reflect his earnings. The Court, as has become common practice, limited Hannaberry to its facts and affirmed the WCJ. First, said the Court, the request to use the highest quarter is the exact change the legislature removed in the 1996 amendments to the Act, and the reason to use this quarter was not as moving as in Hannaberry. Second, there was not enough evidence that the earnings would continue to be at that level (and this, of course, stands as a practice hint to those of us representing injured workers!). As such, the Court found that the WCJ did not err, and the AWW was properly calculated.

To attorneys who represent injured workers in PA, though, this calculation certainly seems unfair. Certainly looks like the calculation here “lead(s) to a grossly and demonstrably inaccurate measure of (the) worker’s weekly wage.” But, that’s just our opinion.

When a PA workers’ compensation claim is denied by the insurance carrier, it is up to the injured worker to file a Claim Petition. In litigating a Claim Petition before a Workers’ Compensation Judge (WCJ), the injured worker bears the burden to prove that he or she suffered an injury, which was related to his or her job, and was rendered disabled by such injury.

It is the WCJ who makes the critical determination of who is credible in this litigation. Neither the Workers’ Compensation Appeal Board (WCAB), nor the Pennsylvania system of Courts, can substitute their opinions on credibility of witnesses. However, the testimony of the credited witness must be “unequivocal.”

This area was highlighted recently by the Commonwealth Court of Pennsylvania in Potere v. Workers’ Compensation Appeal Board (KEMCORP). Here, the WCJ found the Independent Medical Examiner (IME; in reality, a Defense Medical Examiner [DME]) credible, and denied the Claim Petition filed by the injured worker. The WCAB affirmed.

The Court reversed this credibility determination, because it found the testimony of the IME physician was “equivocal.” In his testimony, at first, the IME doctor said the injured worker was limited to light to medium duty, but that he would be ready for full duty in a few weeks. Later in the deposition, the IME doctor said there were no objective findings and that the injured worker could return to his regular employment. Though this was found credible by the WCJ, the Court found these opinions contradictory and said the WCJ could not base his decision on such testimony. The Court remanded the case back to the WCJ, to decide the case again, in light of this change.

Notably, the Court affirmed another area of this decision, finding that it was perfectly fine for the workers’ comp insurance carrier to revoke a Notice of Temporary Compensation Payable (TNCP), and issue a Notice of Denial (NCD), despite that there was no dispute an injury took place (and ongoing disability was the only issue in dispute). We continue to hope that the new Bureau form of the NCD stops this incredibly silly, and dangerous, practice.

Cases dealing with benefits stopping in PA workers’ compensation, due an alleged “retirement” of the injured worker, are frequent on our blog. Usually, Pennsylvania Courts are reading the PA Workers’ Compensation Act ever more strictly. A recent case, however, gives hope to the injured worker in Pennsylvania.

In Keene v. Workers’ Compensation Appeal Board (Ogden Corp.), the Commonwealth Court of Pennsylvania reversed the Workers’ Compensation Appeal Board (WCAB), who in turn had reversed the Workers’ Compensation Judge (WCJ), when the WCJ denied a Petition for Suspension (for an alleged voluntary withdrawal from the labor market).

The WCJ found that the injured worker, who had hurt her knee at work in 1989, had not voluntarily withdrawn from the labor market, and denied the workers’ comp insurance carrier’s Petition for Suspension. The injured worker said she had looked for work for a long time and the failure to find any work had depressed her, so she stopped even looking. The WCAB reversed, finding that the injured worker failed to look for a job for a two-year period, showing that she had withdrawn from the labor market.

In a decision recognizing both reality and the humanitarian nature of the PA Workers’ Compensation Act, the Court reversed the WCAB. Essentially, the Court found that whether the injured worker looked for work is irrelevant in this context UNTIL the workers’ comp insurance carrier proves the injured worker “retired.” Here, the injured worker did not file for a pension, nor did she seek Social Security Retirement Benefits (though she was receiving Social Security Disability Benefits). There were no indicia at all that the injured worker had “retired.” As such, found the Court, the Petition for Suspension must fail.

In Pennsylvania workers’ compensation matters, a workers’ comp insurance carrier can only get a “Termination” of benefits when the injured worker is “fully recovered” from his or her injury. This sounds like, and should be, a difficult standard for the insurance carrier to meet. Unfortunately, as happens too often in law, the appearance is deceiving.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Schmidt v. Workers’ Compensation Appeal Board (IATSE Local 3). Mr. Schmidt suffered a herniated disc in his low back and a lumbar strain in an accident at work. For this injury, the injured worker had extensive surgery, which the Court related as:

“L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation
system.”

Eventually, the workers’ comp insurance carrier sent Mr. Schmidt to an Independent Medical Examination (IME)[More realistically a Defense Medical Exam, or DME]. The IME physician found mild atrophy in Mr. Schmidt’s right leg that he felt would resolve in time. An absent knee reflex was also noted. Finally, the IME doctor agreed that Mr. Schmidt may continue to have pain in his back at times, from the work injury, and use of Ibuprofen for that pain would be reasonable. Despite all of that, the IME noted that none of the findings were “functional” and found Mr. Schmidt fully recovered from the work injury (to add to the absurdity, the surgery placed instrumentation, possibly metal rods, in the low back, which were still there).

The Workers’ Compensation Judge (WCJ) found the IME doctor credible and granted the Petition to Terminate. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The injured worker appealed to the Commonwealth Court of PA. At that Court, he argued there cannot be a Termination of benefits when even the IME doctor agrees there remains atrophy, lost reflex, ongoing pain and surgically placed instrumentation in the spine.

Amazingly, the Court agreed with the WCJ and WCAB and affirmed the Termination of benefits under the PA Workers’ Compensation Act. The Court found the testimony of the IME doctor sufficient to support a Termination. That testimony failed to indicate there were “objective medical findings to substantiate the claim of pain,” which, said the Court, is consistent with a Termination of benefits. The opinion of the IME doctor was that the work-related injury had fully resolved, and this was found adequate by the Court.

Decisions such as this sadden and disappoint those of us who devote our practices to representing injured workers in Pennsylvania. The Courts in PA often give lip service to the fact that the PA Workers Compensation Act is “remedial legislation” and must be read “liberally” to allow the Act to serve its “humanitarian purposes.” When it comes time for the ultimate decision, however, it is hard to picture a more draconian result.

The injured worker in this case suffered a significant injury, and had to have an extensive surgery. He continues to have completely objective findings, such as atrophy and lost reflex in the knee. How in the world can this be “fully recovered” under any definition?

There was no compensation for his pain and suffering. Since Pennsylvania is a “wage loss” State, as long as the injured worker was able to go back to gainful employment (and to his credit, he was), no additional compensation was due at all. All that remained was the availability of medical treatment, and the Court callously slammed the door shut on that. What happens if the instrumentation, which was surgically implanted in the spine, breaks or comes loose? What happens if the pain worsens, so that additional prescriptions are necessary? What if the medications are not sufficient, and additional pain management techniques are required? It appears the Court has officially stated that, for the record, nobody cares.

This is the plight of the injured worker in Pennsylvania, and this is the reason we dedicate our practice to working to protecting injured workers’ rights throughout the State of Pennsylvania.