Pennsylvania Workers' Compensation Lawyer Blog

Over the years, we have had blog entries on many different topics of interest to the injured worker in PA. One theme we have never dealt with, however, is the emotionally-charged area of politics. While we generally try to avoid politics, we would be remiss if we did not comment about one of the candidates for Judge on the Commonwealth Court of Pennsylvania.

As loyal readers of our blog know, the Commonwealth Court of Pennsylvania is the next appellate level, above the Workers’ Compensation Appeal Board (WCAB). This Court must address many issues directly impacting the lives of injured workers in PA. Judges on this Court are elected in the general election. We believe it is important for voters to be informed, allowing them to make the best decisions possible.

One of the candidates for Commonwealth Court Judge in the election coming up on November 8 is Kathryn Boockvar. Back in June of this year, we attended the 10th Annual Workers' Compensation Conference in Hershey, PA, which is presented by The Pennsylvania Bureau of Workers' Compensation. In addition to the many attorneys who practice in the area of PA workers’ comp, we noticed Ms. Boockvar in attendance. We were both impressed and encouraged that Ms. Boockvar was interested enough in the PA workers’ compensation system to attend such an event. In addition to her obvious interest in workers’ compensation, her resume shows that she spent much of her career representing disabled individuals.

Again we do not normally get involved in politics or in telling people for whom to vote. However, we do believe that everyone should be informed so that when they vote they know who potentially may have their interests in mind. We suggest that you take the time to research Ms. Boockvar’s qualifications. By reviewing her website, informed voters can make their own decisions as to who to vote for on November, 8, 2011.

The most damaging petition a workers’ compensation insurance carrier can file against an injured worker in Pennsylvania is a Petition to Terminate. If granted, a Petition to Terminate ends the injured worker’s rights to all PA workers’ compensation benefits for his or her injury, whether wage loss replacement (known as “indemnity”) or medical.

Because the consequences of a Petition to Terminate are so great, the standard for a Workers’ Compensation Judge (WCJ) to grant such a petition is supposed to be high. Specifically, the workers’ comp insurance company must prove that the work-related injury has fully resolved.

Though a doctor need not utter any magic words to show an injured worker has fully recovered from his or her injury, the opinion must be clear and unequivocal. Merely being released back to unrestricted work, by itself, is not proof the work injury has fully resolved (this does not even entitle the insurance carrier to a Suspension, let alone a Termination).

In Richard Miller v. Workers’ Compensation Appeal Board (Peoplease Corp), the Commonwealth Court of Pennsylvania recently addressed exactly what was required to support a Termination of workers’ comp benefits in PA. Here, the injured worker suffered a herniated disc in his cervical spine which caused radiculopathy (when the disc presses on the nerve, causing symptoms down an extremity). As a result of this injury, an orthopedic surgeon operated on the injured worker’s neck, to relieve the pressure on the nerve.

When the orthopedic surgeon released the injured worker back to unrestricted duty, and said he was all better, the workers’ comp insurance carrier filed a Petition to Terminate. The WCJ found the orthopedic surgeon credible and granted the Petition to Terminate. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania, however, reversed that decision. The Court found the opinions of the orthopedic surgeon to be less than unequivocal, and unable to support a finding that the work injury was fully resolved. The orthopedic surgeon stated that the pain was “largely resolved,” that it was “hard to say” if there was any permanent damage to the spinal cord, that the surgery was a success because the injured worker did not “decline in function,” and that the most recent MRI did not show any “significant pressure” on the spinal cord. The Court found this testimony equivocal as to whether the injured worker fully recovered from his work injury.

While the position taken by the Commonwealth Court of Pennsylvania is both refreshing and encouraging to injured workers, and their attorneys, across PA, one should not lose sight of the fact that in this case the primary witness for the workers’ comp insurance carrier was the injured worker’s own orthopedic surgeon. It would appear the Hippocratic Oath, in which doctors swear to do no harm or injustice to their patients, has limited application to the legal side of a patient’s situation.

Impairment Rating Evaluations (IREs), under the Pennsylvania Workers’ Compensation Act, have been discussed in this blog before. Basically, the IRE process enables the workers’ comp insurance carrier to switch an injured workers’ disability status to partial if there is a whole body impairment of less than 50% (a ridiculously high standard). [This does not impact the amount of the benefits being received or the access the medical treatment for the work injury].

Recently, the Commonwealth Court of Pennsylvania faced the question of whether an IRE determination is valid if it provides for no degree of impairment for a diagnosis the injured worker still has, but is at that time asymptomatic (and, whether the IRE is then later void, because that very same diagnosis is again causing symptoms).

In this decision, Westmoreland Regional Hospital v. Workers' Compensation Appeal Board (Pickford), the injured worker was left out in the cold by the Court. The Court concluded that the IRE only has to consider the injured worker’s condition at the moment of the IRE. Since the injured worker had no objective evidence of her brachial plexopathy or Complex Regional Pain Syndrome (CRPS, formerly known as Reflex Sympathetic Dystrophy or RSD) at the time of the IRE, zero impairment for those conditions was correct. The Court found largely irrelevant that within several months of the IRE, the conditions were again revealing objective evidence of impairment.

Instead, the Court noted that the injured worker could simply file a Petition for Reinstatement, as long as there was evidence that the whole body impairment was greater than 50%. Since this standard is so ridiculously high, though, few injured workers are able to meet this standard. Indeed, since a “whole body impairment” has nothing to do with “disability,” it would seem this entire scheme is flawed. This is just further proof of how the injured worker is viewed in the State of Pennsylvania.

While many injured workers with shoulder or neck pain do truly suffer from the initial diagnosis they are given, some have a more rare condition. Sure, a strain or sprain of the shoulder or neck is quite common, and the torn rotator cuff or labral tear in the shoulder, or disc herniation with radicular symptoms in the neck, is seen fairly often, but other conditions are seen on occasion as well.

In the September 2011 issue of the newsletter from Mink Radiologic Imaging, there is discussion of Parsonage-Turner syndrome (PTS), also known as acute brachial plexopathy. Additionally, this article mentions Quadrilateral Space Syndrome (QSS), another condition that could be considered in the presence of shoulder pain. The difficulty in clarifying a diagnosis in such a case is reflected in this article from The American Journal of Roentgenology.

These are things an injured worker, and, of course, his or her physician, should keep in mind if a presumed shoulder strain or sprain is not healing as would be expected. The continued presence of symptoms in the injured shoulder could be an indication of another, undiagnosed, condition.

Under the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier is responsible for all reasonable and necessary medical treatment which is related to the work injury. In very rare circumstances, the cost of wage loss (“indemnity”) benefits and medical expenses can be allocated between more than one insurance carrier. Typically, this would be seen when the injured worker is disabled by more than a single injury, involving multiple insurance companies.

Hearing loss cases, however, are treated differently under the PA Workers’ Compensation Act. When someone losses their hearing due to excessive noise in the workplace, the Act specifically states that, “An employer shall be liable only for the hearing impairment caused by such employer.” (Section 306(c)(8)(iv)).

Recently, the Commonwealth Court of Pennsylvania decided the matter of James McClure, Sr. v. Workers’ Compensation Appeal Board (Cerro Fabricated Products). Here, the injured worker had a documented hearing loss of 18.12% in 1997, while employed by a different employer. He became employed by Cerro in 2000. No Claim Petition was filed until 2004, when he had a hearing loss of 24.69%. The prior employer was dismissed, since more than three years passed since the last date Mr. McClure was exposed to excessive noise in the employ of the previous employer (Some injuries have a “discovery rule,” where the “statute of limitations” can be extended, where the injured worker has no reason to know or suspect the injury; there is no such rule in hearing loss under the Pennsylvania Workers’ Compensation Act).

The Workers’ Compensation Judge (WCJ) granted the Claim Petition against Cerro, but ruled that they were only responsible for 6.57% of the hearing loss (the difference between the loss shown before Mr. McClure worked for Cerro and the current hearing loss). Cerro was found responsible for all reasonable and necessary medical treatment related to the hearing loss. The Workers’ Compensation Appeal Board (WCAB) affirmed the apportionment of the hearing loss, but also found the medical expenses should be similarly proportional. Specifically, Cerro should only be responsible for 26.6% of the medical expenses (the same percentage of their share of the hearing loss relative to the total hearing loss).

What makes this unique, of course, is without the other employer in the case, the injured worker was then personally responsible for 73.4% of the cost of treatment related to a work injury. This would be a very unusual result, one that seems far too harsh to ever occur in the PA workers’ comp system.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The Pennsylvania Workers’ Compensation Act specifically limits liability in hearing loss cases to the hearing impairment caused by noise exposure of that employer. The Court found that this applies not only to indemnity benefits, but also to medical expenses. It was the fault of Mr. McClure, the Court noted, that a timely claim was not filed against the previous employer (and had that been done, the Court said, that employer would have been responsible for the remainder of the medical expenses).

Since the Act does not specify whether this provision was intended to apply to both indemnity and medical benefits, it seems a rather harsh result for the Court to find as it did. It does, however, serve as a reminder for every injured worker to seek legal advice from an experienced PA workers’ compensation attorney at the first thought that there may have been any type of injury. The consequences for doing nothing, as Mr. McClure learned, can be very grave.