Pennsylvania Workers' Compensation Lawyer Blog

Once workers’ compensation benefits are suspended in Pennsylvania, for example when an injured worker goes back some type of gainful employment, the general rule is that workers’ comp benefits can be reinstated by simply proving his or her earning power is again adversely affected by the injury, and that the new disability is related to the original injury. As a general rule, the injured worker need not demonstrate that there has been a change in his or her condition.

This gets a bit more complicated when there is another condition impacting the employability of an injured worker. For instance, take the matter of Upper Darby Township v. Workers’ Compensation Appeal Board (Nicastro), decided by the Commonwealth Court of PA. Here, the claimant injured his low back at work in 2002 dumping a can into the garbage truck. A Notice of Temporary Compensation Payable (TNCP) was issued, accepting a low back strain. The TNCP subsequently converted to a regular Notice of Compensation Payable (NCP).

The claimant returned to his regular duties in March, 2004, and workers’ comp benefits were suspended. On June 8, 2004, claimant again injured his low back lifting a trash can. A Petition was filed, but before there could be a decision by a Workers’ Compensation Judge (WCJ), the parties resolved the case by Stipulation. Specifically, in the Stipulation the parties agreed that claimant was disabled by the work injury from June 8, 2004 until October 7, 2004, that claimant was able to go back to his regular job as of October 7, 2004 and that claimant left the employ of the company in December, 2004, because of “injuries unrelated to his back.”

In January, 2008, claimant filed a Petition for Reinstatement, contending that his work injury was again adversely affecting his ability to work. Claimant testified before the WCJ that he continued to work at his regular duty job until December 5, 2004, when he was terminated for excessive absenteeism. Since that time, Claimant testified that he felt capable of performing his regular job. There were no subsequent injuries or incidents that changed his condition since December, 2004.

Claimant presented the medical opinion of the doctor who began treating him on November 1, 2006. The doctor testified that claimant was not capable of performing his pre-injury job, and that this opinion was based on the fact that claimant tried to go back to his regular job and failed.

The WCJ found claimant and his doctor credible and granted the Reinstatement Petition. To avoid a conflict with the Stipulation, and to attempt to make the testimony of the medical expert consistent, the WCJ granted the Reinstatement as of November 1, 2006, the date the medical expert first saw claimant. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal to the Commonwealth Court of PA, however, this decision was reversed. Since the Stipulation stated that claimant was not able to work due to some (unstated) condition unrelated to the work injury, he faced a different burden for a Reinstatement to be successful. When there is both a work injury, and a non-work injury, present, the Court found, “The claimant must show that the non-work injury is no longer disabling and that the work injury is now causing the loss of earning power.” This requires a showing that there has been a change in the condition.

The evidence found credible by the WCJ, said the Court, contradicts the previous Stipulation. This makes the medical opinion incompetent, which cannot then successfully support a reinstatement of benefits. First, the Court observed that the opinion of the medical expert, that claimant cannot do his regular job, is directly contradicted by the testimony of the claimant. Second, the opinion of the medical expert was based on the fact that claimant tried to go back to the regular duties and could not do them; this conclusion is inconsistent with the facts stated in the Stipulation. Essentially, since the claimant failed to prove that there was a change in condition, or circumstances, after the Stipulation was approved means the Reinstatement Petition must fail.

Under the Pennsylvania Workers’ Compensation Act, mental injuries caused by a psychic, or mental, incident, require an injured worker to prove that the psychic, or mental, onset was an “abnormal working condition.” We have discussed psychological injuries under PA workers’ comp previously. We call these types of cases “mental/mental” cases.

But, what about a mental, or emotional, onset that leads to a physical injury (what we call a “mental/physical” case)? Back in 1981, the Supreme Court of Pennsylvania decided Krawchuk v. Philadelphia Electric Company, wherein the Court granted workers’ comp benefits to an employee who suffered a heart attack at home, after having a great deal of stress at work. This was followed, however, by the Court’s decision in Davis v. Workmen’s Compensation Appeal Board (Swarthmore Borough) in 2000, finding that abnormal working conditions were required in a case with an emotional or mental onset. Finally, the Court clarified things in 2005 in the case of Pankyo v. Worker’s Compensation Appeal Board (U.S. Airways) (Pankyo).

In the Pankyo case, the Court found that the holding in Davis was limited. Specifically, the Court noted, “given the facts in Davis, that case only stands for the proposition that where a claimant suffers a psychic injury with attendant physical symptoms, the claimant must meet the abnormal working relations test.” On the other hand, where the injury itself is physical (again, such as a heart attack), the “abnormal working conditions” requirement does not apply (even though the onset was a mental incident).

This area was addressed recently by the Commonwealth Court of Pennsylvania in Janet Little, dependent of David Little, Deceased v. Workers’ Compensation Appeal Board (B&L Ford/Chevrolet). Here, the Workers’ Compensation Judge (WCJ) applied the “abnormal working conditions” test when the claimant suffered a fatal heart attack two days after he was notified he was being terminated from his job (a few months after claimant suffered a physical work injury). As such, the WCJ denied the Fatal Claim Petition.

While the Commonwealth Court of PA did agree the WCJ erred in using the “abnormal working conditions” test, and that abnormal working conditions were not required to be shown in this situation, the Court still affirmed the decision of the WCJ. An injured worker in PA must prove the injury was suffered in the “scope and course” of his or her employment; here, the injured worker was being terminated from employment at the time of the incident. The Court found this unrelated to his work duties, and agreed with the WCJ that the Fatal Claim Petition was correctly denied.

As mentioned in our blog previously, the Workers’ Compensation office in Allentown, PA, has moved. No longer will hearings be held at 160 Hamilton Street. Now, the Pennsylvania Bureau of Workers’ Compensation has opened up the new Allentown location at 7248 Tilghman Street, Allentown, PA. The new offices feature four hearing rooms, along with several attorney conference rooms and mediation rooms. Our compliments go out to the Bureau on the spacious new quarters.

Under Section 312 of the Pennsylvania Workers’ Compensation Act, an injured worker must provide notice to his or her employer that he or she “received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.” This notice, under Section 311, must be given within 120 days of the injury, or the claim may be precluded. In reality, giving notice to an employer may not be so simple.

Take, for example, the facts in Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), a decision recently rendered by the Supreme Court of Pennsylvania. The injured worker toiled on an assembly line for many years, repetitively using her hands. Eventually, she began to have pain and swelling in her hands, and her fingers would become “stuck.”

Finally, on January 17, 2005, Ms. Morack told her boss that her hands were hurting so bad, she did not know what to do. The injured worker saw a doctor that same day and got a note keeping her out of work. According to the company policy, Ms. Morack called her employer every day for the first five days she was out, advising the employer each day that she could not work because of the swelling in her hands. She did not specifically tell the employer that the swelling was from her work duties, because she was not sure what caused the problem. A short-term disability application was made, indicating the condition was the result of “sickness” rather than “injury,” since, at that time, Ms. Morack believed her condition was related to pre-existing fibromyalgia, not her work duties.

Eventually, as she was being treated for her condition, Claimant was told by her doctor that she had bilateral carpal tunnel syndrome, flexor tendonitis in the left thumb and left fourth finger, triggering in the left index finger, a right wrist cartilage tear, and right-sided DeQuervain’s tendonitis. The doctor told Ms. Morack that these problems were not related to the fibromyalgia, but were caused by the repetitive work duties. Unable to reach her employer by telephone, Ms. Morack left several messages stating that she had “work-related problems.” The employer, allegedly, was not aware of a workers’ compensation claim until a Claim Petition was filed in October, 2006.

A Workers’ Compensation Judge (WCJ) found Claimant and her doctor credible and granted the Claim Petition. Specifically to the issue of notice, the WCJ found that she provided prompt notice when her doctor informed her of the problem being related to the work activities. The combination of what she told her supervisor on January 17, 2005, the short-term disability application, and the subsequent telephone messages were sufficient to provide notice under Section 312. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania reversed the WCJ, however, finding that while the notice was timely under Section 311, it was not sufficient under Section 312. The short-term disability application indicated the problem was not work-related. Further, the voicemail message that Claimant had “work-related problems” was too vague to serve as proper notice. Even accepting the testimony of Ms. Morack as credible, which the Court must do, the testimony cannot support proper notice.

In a decision sure to be well-received by PA workers’ compensation attorneys (at least those of us who represent injured workers), the Supreme Court of Pennsylvania reversed the Commonwealth Court, and reinstated the award of workers’ comp benefits. An exact diagnosis is not required for there to be proper notice. Also, the conversation(s) between an injured worker and his or her employer is to be viewed in context; the notice need not be given within a single conversation. By its nature, this is a fact-sensitive area. The Supreme Court found that Commonwealth Court failed to fully consider the effect of what Claimant said to her employer on January 17, 2005. Given this information, the subsequent voicemail message, and the fact Claimant had not been at work since January 17, 2005, the employer should have been aware of a work injury. The Supreme Court also noted that “the humanitarian purpose of the (Pennsylvania Workers’ Compensation Act) directs that ‘a meritorious claim ought not, if possible, be defeated for technical reasons.’” Under these circumstances, said the Supreme Court, deference should be given to the findings of the WCJ in such a fact-intensive inquiry.

Even more warming to the heart of lawyers representing injured workers in Pennsylvania is the concurring opinion filed by two of the Justices of the Supreme Court. In this concurring opinion, the Justices joined in the opinion of the majority, but wanted to chastise the employer for “inappropriate corporate conduct.” The Justices felt the company mistreated a longtime employee. Specifically, the Justices wrote:

“Rather than acknowledging the undisputed genesis of her injuries and paying her the due compensation, Genex opted to pursue a technical defense in the hope of avoiding its rightful obligations. It is unfortunate that someone in corporate management chose to pursue this regrettable course.”

Since we see such cold-hearted decisions by employers on a regular basis, we truly hope the enlightened words of the Supreme Court resonate throughout Corporate America.