Pennsylvania Workers' Compensation Lawyer Blog

How the Pennsylvania workers’ compensation system handles undocumented workers is a frequently misunderstood topic, which we have previous addressed. We mentioned that undocumented workers are entitled to workers’ compensation benefits as a general rule, thanks to the Pennsylvania Supreme Court’s decision in Reinforced Earth Co. v. Workers’ Compensation Appeal Board (Astudillo).

This result was intended to defeat the tremendous incentive for employers to hire illegal immigrants. If such workers were not eligible for PA workers’ comp benefits, an employer could simply discard the worker when he or she was injured. Employers in PA, as well as throughout our Country, are already required to ascertain a potential employee is eligible to work in the United States. Sadly, employers regularly disregard such Federal laws, apparently without any official retribution.

On the other hand, the PA Supreme Court also recognized that the immigration status of an injured worker is relevant to an injured worker’s employment status. Therefore, an undocumented worker is entitled to PA workers’ comp benefits as long as the injured worker is totally disabled. Once the injured worker is released to any type of work, however, the reason the injured worker is not employed is the immigration status. As such, once an undocumented worker is released back to any type of gainful employment, a Pennsylvania workers’ compensation insurance carrier can obtain a suspension of wage loss benefits (medical benefits do continue without regard to immigration status).

How the PA workers’ comp insurer proves that a worker is undocumented or illegal, and not eligible for employment in Pennsylvania (or in the United States as a whole), was recently addressed by the Commonwealth Court of Pennsylvania in Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz).

In this case, the worker suffered a back injury, alleged to be a herniated disc with lumbar radiculopathy, while performing his job and subsequently filed a Claim Petition. During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker was asked whether he was a citizen and whether he was an undocumented worker; he refused to answer either question, invoking his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Both the injured worker, and the workers’ comp insurance carrier submitted medical testimony that the injured worker was not physically capable of performing his pre-injury job, but that he was capable of modified duty work.

The WCJ granted the Claim Petition, but found that wage loss benefits were suspended on the date of the injury, because the injured worker was an undocumented alien worker. The WCJ arrived at this conclusion by taking an “adverse inference” from the injured worker’s refusal to answer questions regarding his immigration status.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the suspension of benefits. The WCAB ruled that an adverse inference alone was not enough to prove that the injured worker was an undocumented alien. This was affirmed by the Commonwealth Court of Pennsylvania. Since the burden on whether the benefits should be suspended rested with the workers’ comp insurance carrier, the suspension was not warranted. That the WCJ drew an adverse inference was correct, said the Court, but the adverse inference alone could not prove that the injured worker was an undocumented alien.

As attorneys who represent injured workers in PA, we have been hearing a great deal of griping from attorneys for the insurance carriers about this decision. How can they prove an injured worker is an undocumented alien, they complain. To us, the answer is simple and ironic – the United States Government created a process for employers to ascertain a prospective employee’s immigration status several years ago. If employers simply abide by already existing Federal law, they will not “accidentally” hire an undocumented alien, and this will never be an issue. We greet these workers’ comp insurance carrier complaints with amusement, since the problem stems solely from the employers’ own illegal actions.

When a workers’ compensation insurance carrier in Pennsylvania does not agree with the medical treatment being received by an injured worker, there are steps the carrier can take. The most common is “Utilization Review,” which challenges the reasonableness and necessity of medical treatment. The carrier can also file a Petition to Review Medical Treatment, if the treatment is believed to be unrelated to the work injury. While the workers’ comp insurance company has the further option of simply ignoring the medical bills, this can lead to an undesirable result for the insurance carrier.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of CVA, Inc. and State Workers’ Insurance Fund v. Workers’ Compensation Appeal Board (Riley), where the insurance carrier took that last option and just ignored the bills it did not like. Thankfully for injured workers in PA, the decision did not go well for the insurance carrier.

This case involved a worker who injured his left knee, and received therapeutic magnetic resonance (TMR) treatment. Bills were sent to the workers’ comp insurance adjuster, who denied the bills, saying either that the documentation did not support the charges, the documentation did not support the billing code, or the treatment was unrelated to the work injury. The injured worker then filed a Petition for Penalties.

Before the Workers’ Compensation Judge (WCJ), the injured worker submitted the outstanding bills (on what is called HCFA forms, the usual billing forms) and medical records to support the treatment. The workers’ comp insurance carrier submitted no evidence at all. The WCJ granted the Petition for Penalties.

The primary argument raised by the workers’ comp insurance carrier was that the injured worker had a greater burden to prove a violation of the Pennsylvania Workers’ Compensation Act, a requirement to assess a Penalty. Initially, the WCJ overruled the hearsay objection placed to the injured worker’s evidence, finding depositions of witnesses were not necessary. The workers’ comp insurance carrier then termed TMR a “novel” medical treatment, akin to “shaman oriented drivel.” No doubt the cost, at about $3,000.00 per treatment, played a role in this response (the outstanding bill at issue was just over $140,000.00). The WCJ found that the injured worker had no burden to prove the treatment at issue was “generally accepted” in the medical community.

The Commonwealth Court of Pennsylvania was no more sympathetic to the workers’ comp insurance carrier’s complaints. The Court observed that the insurance carrier could have initiated Utilization Review, if it questioned the reasonableness or necessity, or filed a Petition to Review Medical Treatment, if it disputed the relatedness. Whether treatment is “generally accepted” in the medical community goes to whether the treatment is reasonable or necessary, so that can only be addressed through Utilization Review (in other words, a WCJ lacks jurisdiction to even address whether treatment is reasonable or necessary). In the context of a Petition for Penalties, the Court found, the question was simply whether the payment of the bills was denied. The evidence submitted by the injured worker, showing the bills were for treatment to the left knee and were denied by the insurance carrier, was sufficient to establish the Petition for Penalties.

Once again, we are reporting on the Pennsylvania Court System addressing the issue of retirement, and voluntary withdrawal from the labor market, in the context of a PA workers’ compensation case.

In Department of Public Welfare/Norristown State Hospital v.Workers’ Compensation Appeal Board (Roberts), the Commonwealth Court of Pennsylvania reversed the decision of the Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ordered that the injured worker’s benefits be suspended because he had retired and voluntarily withdrew from the labor market.

The claimant in this case hurt his neck and back. After his injury, the injured worker took a retirement pension, which, as previously discussed here, may or may not be indicative of retirement. The injured worker also filed for what the Court called a “Social Security Disability Pension,” though I am not sure what that means (Social Security Retirement, akin to pension, is, of course, different than Social Security Disability). In his testimony before the WCJ, the injured worker said he did not feel physically capable of working and has not looked for work. The doctor testifying for the insurance carrier (the Independent Medical Examiner, IME, who typically is somewhat less than independent) felt the injured worker was capable of sedentary duty work.

The WCJ found the testimony of the IME credible, but denied the Suspension Petition, finding that the workers’ comp insurance carrier failed to prove its case. This was affirmed by the WCAB.

Upon further appeal, the Commonwealth Court of Pennsylvania found that the Suspension should have been granted. Because the injured worker took his retirement pension, filed for a “Social Security Disability Pension,” and did not look for any work, the injured worker had, in fact, retired and voluntarily removed himself from the labor market. Further, since the WCJ found the IME credible (that the injured worker was capable of sedentary duty work), and since the injured worker testified that he had not looked for any work, the Petition for Suspension should have been granted. On these facts, said The Court, there is no requirement that the workers’ comp insurance carrier prove that work was available to the injured worker.

Once again, we are honored and excited to report that our blog has been selected by LexisNexis as one of the Top 25 Blogs for Workers' Compensation and Workplace Issues for 2011. We recognize all of the wonderful blogs out there covering not only Pennsylvania workers’ comp issues, but also blogs covering workers’ comp across the entire Country. It is for this reason that we are so humbled at again being recognized. We are especially proud, since this is our third such recognition in the past four years.

We again thank LexisNexis, and our loyal readers, for this providing us the opportunity to serve. We will make every effort over the ensuing months, and years, to show that we are worthy of this recognition.

The calculation of the Average Weekly Wage (AWW) under the Pennsylvania Workers’ Compensation Act has been explained previously on this blog. Generally, 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 the highest three quarters in the year immediately before the injury.

Occasionally, we have a question regarding whether the injured worker has been “employed” for more than a year before the injury, perhaps due to layoffs. The Supreme Court of Pennsylvania Courts told us in 2005, in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), that despite periods of layoff, the term of “employment” continued. In that matter, Mr. Reifsnyder was considered to have zero earnings for the weeks he was laid off, for the purposes of calculating his AWW.

Also in 2005, the Supreme Court of Pennsylvania told us, in Colpetzer v. Workers’ Compensation Appeal Board (Standard Steel), that when an injured worker is disabled by a work injury in the one year period prior to another work injury, the AWW for the subsequent injury should include the AWW from the previous injury for any periods the worker was disabled by the previous injury.

One area left unexplored, until now, was whether the receipt of unemployment compensation benefits, received in the year prior to a work injury, is includable in the AWW. To the surprise, and great disappointment, of injured workers in PA, and the attorneys representing injured workers in PA, The Commonwealth Court of Pennsylvania has found that unemployment compensation benefits are not to be included in the AWW when received in the year before a work injury.

In Lenzi v Workers' Compensation Appeal Board (Victor Paving), the Court found that the Pennsylvania Workers’ Compensation Act does not provide for inclusion of unemployment compensation benefits in the calculation of the AWW, so they cannot be considered.

It is difficult to reconcile these cases logically. The injured worker maintained his employment throughout the period of the year before the injury, under Reifsnyder. However, here, the injured worker received unemployment compensation benefits in lieu of working for the weeks in which he was laid off. The Lenzi case concludes that the injured worker gets credit for zero earnings for the weeks he was laid off, despite the fact that he received the unemployment compensation benefits for those weeks. Indeed, it is difficult to understand how the receipt of workers’ compensation benefits, in Colpetzer, is different, fundamentally, than the receipt of unemployment compensation benefits.