Pennsylvania Workers' Compensation Lawyer Blog

As followers of our blog are aware, we filed a workers’ compensation case on behalf of a PA liquor store clerk who was the victim of an armed robbery (and suffered post-traumatic stress disorder (PTSD) as a result). We were successful before the Workers’ Compensation Judge (WCJ), and the matter is currently pending before the Workers’ Compensation Appeal Board (WCAB). Though we, of course, follow all PA court decisions in the workers’ comp area, we have a particular interest in those dealing with this issue.

Yesterday, the Commonwealth Court of Pennsylvania issued a decision in the matter of PA Liquor Control Board v. Workers’ Compensation Appeal Board (Kochanowicz). In what can only be described as a staggeringly repulsive decision, the Court reversed both the WCJ and WCAB, who both found that the claimant in that case suffered PTSD as a result of an armed robbery, and that the armed robbery was an “abnormal working condition.” Both the injured worker’s treating doctor, and the Independent Medical Examiner (IME)[Who often is anything but “independent”], found that the injured worker suffered PTSD as a result of the armed robbery.

In its infinite wisdom, the Court found that armed robberies at liquor stores in Pennsylvania are common; perhaps, if we are understanding their logic correctly, an armed robbery at a liquor store these days is akin to taking out the trash. Just another part of a clerk’s daily routine.

Examining this conclusion logically is appalling. One State agency, the Court system, is noting that another State agency (PA Liquor Control Board) is so incompetent that entering a liquor store in Pennsylvania is essentially risking one’s life. It would seem the signs in front of the PA liquor stores should immediately be changed to read, “CAUTION – IT IS PERFECTLY NORMAL FOR ARMED BANDITS TO ENTER THIS STORE AT ALL TIMES.” Moreover, under this result, the injured worker is disabled from work, a fact both medical experts agreed upon, and he receives no income whatsoever. How is that remotely fair?

Of course, since we do live in a civilized society, and the old west remains in the past, there was a minority voice of reason on the Court. Three of the Judges on the Court dissented, and made arguments that made perfect sense. We are hopeful that a request for appeal (known as allocator) will be made to the Supreme Court of Pennsylvania, and that this grave injustice will be rectified by the Supreme Court. We also encourage the public to contact their Pennsylvania elected officials, Representatives and Senators, to have the PA Workers’ Compensation Act changed, so people who are injured while working are properly protected in this circumstance. Just for common decency, this must be fixed.

Today, I received an e-mail from a Workers' Compensation Judge (WCJ) in the Philadelphia Workers' Compensation Hearing Office, indicating the Pennsylvania Bureau of Workers' Compensation has now announced that certain correspondence can be sent to the WCJ by e-mail, rather than through the U.S. Postal Service. While the correspondence a party can send to a WCJ is limited (primarily routine correspondence, such as requesting a continuance of a hearing), this option is beneficial, not only to attorneys who practice in the area of PA workers' comp, but also to helping reduce the amount of paper being used unnecessarily in the litigation process.

Often, injured workers in Pennsylvania have their claims denied by the workers’ comp insurance carrier because their disability is said to be related to a “degenerative” condition, rather than a traumatic one. In fact, almost inevitably, if the word “degenerative” appears in the medical records, the workers’ compensation claim will be denied by the workers’ comp insurance company, forcing the injured worker to litigate his or her claim.

Yet, these degenerative conditions are ones that allowed the injured worker to do his or her job, frequently even without difficulty, until the work injury. The fact that the work injury makes the degenerative changes disabling is what truly matters. In that situation, the injured worker is entitled to PA workers’ compensation benefits.

Recently, the Commonwealth Court of Pennsylvania confirmed this premise in Green v. Workers’ Compensation Appeal Board (US Airways). The case began when Ms. Green was injured at work in 1993. A Notice of Compensation Payable (NCP) was issued, accepting the injury as a meniscal tear in the right knee. The description of injury was later amended to include left tibial plateau cartilage damage and lateral femoral condyle defect. Workers’ compensation benefits were suspended in 2003.

In 2008, Ms. Green filed a Petition for Reinstatement, alleging that the work injury again caused her to be disabled. A deposition was taken of her medical expert, who essentially testified that the work injury triggered degenerative changes, which progressively made the condition worse. The workers’ compensation insurance carrier did not put on any medical evidence. This Petition was denied by the Workers’ Compensation Judge (WCJ), who found that Ms. Green failed to prove her case. Specifically, the WCJ found Ms. Green’s medical expert credible, but not persuasive. The only reason given by the WCJ for not accepting the testimony of her medical expert is that the doctor “characterized Claimant’s injuries as degenerative in nature.”

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed this decision. The WCAB noted that the WCJ did not find the testimony of Ms. Green’s medical expert to be credible.

The Commonwealth Court of PA, however, vacated the decision and remanded to the WCJ for further findings. Initially, the Court observed that the WCAB made an error in saying the WCJ found the medical expert’s opinion not credible – the WCJ actually found the opinion credible, but not persuasive and there is a difference. Further, the WCJ erred in finding the opinion unpersuasive, since the opinion of the medical expert clearly was that the work injury started the chain of events, leading to the disability. Thus, any finding by the WCJ, based on the medical testimony, that the disability was related solely to degenerative changes, is not supported by the evidence. In analyzing the case, the Court made clear to observe that just because a condition is degenerative does not mean the cause of the disability is the same; in fact, often, as here, the work injury “aggravates” or “accelerates” the degenerative condition, making that condition disabling.

This case demonstrates that injured workers must not simply accept a denial from a workers’ comp insurance company, simply because degenerative changes have been mentioned. There still very well may be a valid PA workers’ compensation case, and the injured worker may still be entitled to workers’ comp benefits.

Under the Pennsylvania Workers’ Compensation Act, Section 440(a), “where a claimant succeeds in a litigated case reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest.” The Act, as you can see, clearly states that this is to be the rule, not the exception. The employer/insurance carrier has the burden to prove that there was a reasonable contest. One would read that language and believe unreasonable contest counsel fees are often awarded. One would be dead wrong.

The reason why unreasonable contest counsel fees are rarely found these days is reflected in a recent decision by the Commonwealth Court of Pennsylvania, Grady v. Workers’ Compensation Appeal Board (Lutz t/a Top of the Line Roofing). Here, a roofer suffered a T12 burst fracture resulting in paraplegia of both lower extremities and depression when he fell from a rooftop.

Ultimately, a Claim Petition was filed against the Employer and the Uninsured Employers’ Guaranty Fund (UEGF). Initially, the parties asked the Workers’ Compensation Judge (WCJ) to “bifurcate” the case, to decide whether the injured worker was actually an employee (as opposed to an independent contractor). This lets the parties get past a threshold issue, before litigating the remainder of a case.

The WCJ issued an “interlocutory decision” (a decision before a final decision), finding the injured worker was an employee, on July 9, 2008. The Employer and the UEGF did nothing, and offered no defense to the Claim Petition. A final decision was rendered by the WCJ on January 14, 2009, granting the Claim Petition and awarding unreasonable contest attorneys fees, since there was no reasonable basis to deny the claim after the interlocutory decision

Though the decision granting the Claim Petition was affirmed by the Workers’ Compensation Appeal Board (WCAB), the aspect awarding unreasonable contest attorneys fees was reversed. Upon further appeal, the Commonwealth Court of Pennsylvania agreed with the WCAB.

The Commonwealth Court of PA found that the Employer’s failure to pay benefits may be the subject of a Penalty Petition, for a violation of the PA Workers’ Compensation Act, but that such a failure did not create an unreasonable contest. The Court chastised the WCJ for confusing unreasonable contest with a violation of the Act. (Note that unreasonable contest fees, and penalties, cannot be assessed against the UEGF by law, though they probably can still be assessed against the employer – the Court did not reach that issue).

With all due respect, in my view, the WCJ was entirely correct and it is the Commonwealth Court of PA who confused unreasonable contest with a violation of the Act. The Employer/UEGF had no duty to pay benefits based only on the interlocutory order; payment of benefits would have had to come by the issuance of a Notice of Compensation Payable (NCP) or Stipulation. Since there was no legal duty to commence benefits, there can be no violation of the Act. Meanwhile, the continued denial of the Claim Petition, without reason or basis can truly be seen as nothing other than unreasonable. Indeed, by condoning this behavior, the Commonwealth Court of Pennsylvania is allowing workers’ comp insurance carriers across PA to deny Claim Petitions at will, and engage in the all-too-common practice of starving out injured workers (forcing injured workers to return to work while still disabled, or to accept a minimal settlement to feed a family).