Pennsylvania Workers' Compensation Lawyer Blog

Generally speaking, the goal is to return an injured worker in Pennsylvania to gainful employment. Along those lines, under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is not able to keep working, due to the effects of the work injury, workers’ comp benefits should be reinstated.

The key element to whether benefits will be reinstated is often whether the loss of earnings is truly related to the work injury. A good example of this concept came recently in the case of Verity v. Workers’ Compensation Appeal Board (The Malvern School), decided by the Commonwealth Court of Pennsylvania.

Here, Ms. Verity (Claimant) suffered a strain to her left hip and low back. After being released to modified duty, Claimant returned to work under those restrictions. Subsequent to her going back to work, Claimant had additional restrictions placed upon her by her physician, which included “no going up/down stairs.” The employer said they had nothing within those restrictions, and Claimant filed a Petition for Reinstatement.

In that litigation, Claimant testified that she had to climb three flights of stairs a day for her apartment, and that she was able to go up or down the ten steps that were required at her job, maybe four times a day. Her doctor testified that she did not mean literally no steps, the doctor just meant no steps on a repeated basis. In fact, Claimant’s doctor said she encouraged her to continue working at the job. As such, the Workers’ Compensation Judge (WCJ) denied the Reinstatement Petition, since the reason Claimant was not working was not related to the work injury (or, in other words, it was not the work injury which prevented her from working at that job). The Workers’ Compensation Appeal Board (WCAB) affirmed.

Upon appeal to the Commonwealth Court of PA, the decision was again affirmed. Claimant knew the restriction placed by the doctor was not accurate, but did nothing to fix it (indeed, when Claimant went back to the doctor again, the same restriction was placed). Claimant knew her injury did not prevent her from doing her job. Therefore, the Petition for Reinstatement was properly denied.

Many changes to the Pennsylvania Workers’ Compensation Act, much to the detriment of the injured worker, took place in the sweeping 1996 amendments to the Act. One of the more substantial changes was the amendment to Section 204(a), allowing PA workers’ comp insurance carriers to enjoy an offset, or credit, for such things as severance, unemployment compensation and Social Security retirement (known as “Old Age,” though we certainly won’t use that term) benefits.

Looking specifically at Social Security retirement, Section 204(a) permits the PA workers’ compensation insurance company to take an offset equal to 50% of an injured worker’s Social Security retirement benefit. The Supreme Court of Utah found a similar provision in that State’s workers’ compensation system to be unconstitutional. With that decision in mind, attorneys representing injured workers in PA had high hopes for a similar result from the Pennsylvania Court System.

So far, unfortunately, our hopes have been dashed. The Commonwealth Court of Pennsylvania has decided, in Caputo v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), that the PA workers’ comp system is different than that in Utah, and the offset in Section 204(a) of the PA Workers’ Compensation Act is indeed constitutional. Hope remains the Supreme Court of Pennsylvania will review this issue, but for now the 50% offset in Section 204(a) will remain.

Note, also, that taking Social Security retirement benefits can severely damage a workers’ comp case in PA. Between this significant risk, and the 50% offset, it is advisable for an injured worker to consult with an attorney experienced in the Pennsylvania workers’ comp system before making such a critical decision.

Under PA workers’ comp, wage loss benefits are stopped (suspended) when an injured worker returns to work at no loss in wages (medical treatment continues, regardless of wage loss, however). What if the injured worker (“claimant”) voluntarily quits a job? Can he or she get reinstated to workers’ compensation benefits in PA? Well, it depends.

The Commonwealth Court of Pennsylvania faced this issue in Allen v. Workers' Compensation Appeal Board (Delaware County SPCA, Inc.). Here, on August 24, 2007, the claimant injured his shoulder at work, but then subsequently returned to work, at his pre-injury job, at no loss in wages, causing the workers’ comp benefits to be suspended. The injured worker then voluntarily quit his job on January 3, 2008, because there was a “deterioration of the relationship” with the company, and he was having increased pain in his shoulder. On January 29, 2008, the injured worker saw a doctor who found that he was not physically capable of his pre-injury job as of that date.

A Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement, as of January 29, 2008, since the injured worker proved he had a change of condition as of that date. Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the WCJ, finding that claimant was not entitled to a reinstatement of his workers’ comp benefits, because he had voluntarily quit his job.

The Commonwealth Court of Pennsylvania reversed the WCAB, and reinstated the decision of the WCJ, saying that once claimant proved that his condition had changed, and that he was again disabled from his job, he was again entitled to PA workers’ compensation benefits. The fact the injured worker quit the job meant he was not entitled to benefits from January 8, 2008 to January 28, 2008 (since the reason he was not working in that time was not shown to be related to the work injury). Once the injured worker proved a change in his condition, the fact that he quit was no longer relevant.

One question, left unanswered by the Court, is what happens when the injured worker is again released to return to his pre-injury position? In a normal situation, the employer/workers’ comp insurance carrier must prove that a job is available to him before a suspension of benefits would be granted. Would the fact the claimant quit the job come back to haunt him then? I guess we will have to stay tuned.

Before recent changes in PA Workers’ Compensation law, an insurance carrier could “accept” a claim using a Notice of Denial (NCD). This left the status of the work injury in doubt, so, in 2011, the PA Bureau of Workers’ Compensation redesigned the NCD form to no longer allow such an action.

With the previous NCD, we had seen a Claim Petition denied, despite an acknowledged work injury. As attorneys who represent injured workers, we found this result illogical, and just plain wrong.

As if in a confirmation that an illogical result was intended, the Commonwealth Court of Pennsylvania decided the case of Zuchelli v. Workers' Compensation Appeal Board (Indiana University of Pennsylvania), again denying a Claim Petition because disability was not proven (the NCD used to “accept” the claim was done before 2011).

We hope that the change in the NCD form will remove this issue forever, and save the Courts from their own tendencies. In the meantime, we would urge the Courts to understand the difference (and there is one) between denying a Claim Petition and finding disability was not proven. It is shocking, in this day and age, that the Courts could be so blind to the value and importance of an injured worker having access to medical treatment (regardless of whether disability took place or not).

When we settled a workers’ comp case in Pennsylvania (usually done by what is called a “Compromise & Release Agreement”), there was often a question from our client about whether he or she could then file for unemployment compensation benefits. Usually, as part of a workers’ compensation settlement, the employer/insurance carrier wants a resignation as part of the deal. Until recently, we told them the honest answer – maybe. It depended on the identity of the Unemployment Compensation Referee (UCR), the wording of the resignation and the status of the medical clearance (one must be capable of some type of employment to be eligible for unemployment compensation).

When the Commonwealth Court of Pennsylvania recently decided Lee v. Unemployment Compensation Board of Review, however, we were given a pretty specific answer – no, you cannot. Here, the injured worker gave both a resignation and a release (waiving her rights to other causes of action, including unemployment compensation benefits) as part of her workers’ compensation settlement. Following the approval of the settlement, the injured worker filed for unemployment compensation benefits.

Benefits were granted by the UCR, who found the resignation was not “voluntary,” since it was required as part of a workers’ compensation settlement. The Unemployment Compensation Board of Review reversed, finding the injured worker not eligible for unemployment compensation benefits. Upon further appeal, this was affirmed by the Commonwealth Court of Pennsylvania.

While the Court found the release to be void (one cannot waive rights to unemployment compensation benefits in Pennsylvania, or, for that matter, PA workers’ comp benefits), the Court went on to agree with the Board of Review, that the resignation was “voluntary,” meaning the injured worker not was eligible for unemployment compensation benefits.

Settlements of workers’ compensation cases in PA are still routinely performed, and are often the best course of action (depending on the circumstances in each individual case), but this decision means there is another consideration to be taken into account when an injured worker is evaluating whether to settle his or her case.