Articles Posted in Case Law Update

Under the Pennsylvania Workers’ Compensation Act, injured workers in PA are protected against most types of injuries or conditions.  One thing specifically noted is a category of “occupational diseases.” These cover ailments found predominantly in a specified profession, above the levels found generally, and create a presumption of the disease being related to the work activities.  A specific example of an occupational disease is contained in Section 108(r), pertaining to firefighters.  It reads:

“Cancer suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.”

A recent decision by the Commonwealth Court of Pennsylvania had to interpret this Section of the PA Workers’ Compensation Act, and decide when the presumption is appropriate.

In theory, a workers’ compensation insurance carrier can be required to pay part of, or even the entire, cost of counsel fees owed to the attorney for the injured worker.  This is to be awarded any time the insurance carrier lacks a “reasonable basis” to file or defend a litigation.  In practice, this is rarely awarded (though, to be candid, we did just receive such an award last week).  The costs of litigation incurred by the attorney for the injured worker are to be awarded whenever the injured worker is successful in litigation “in whole or in part.”  Recently, the Commonwealth Court of Pennsylvania had to address the process for the award of attorney fees and litigation costs.

In Byfield v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), the employee injured his spine and right wrist.  The injury was accepted by Notice of Compensation Payable (NCP) as cervical, thoracic and lumbar strain and sprain and contusion of the right wrist.  Eventually, the injured worker returned to light duty work.

Despite the fact that the injured worker had actually returned to work, at the same earnings as before the injury, in its infinite wisdom, the workers’ compensation insurance carrier filed a Petition for Suspension, alleging the injured worker refused reasonable and necessary medical treatment, in the form of facet injections.  This concept of a “forfeiture petition” has been addressed before on this blog.

Back in February, 2015, we posted a blog entry expressing our disappointment in the decision rendered by the Commonwealth Court of Pennsylvania in the matter of IA Construction Corporation v. Workers’ Compensation Appeal Board (Rhodes).  We are now delighted to relate that the Supreme Court of Pennsylvania, the top appellate court in PA, has now reversed the decision of the Commonwealth Court, and reinstated the decision reached by the Workers’ Compensation Judge (WCJ) [and affirmed by the Workers’ Compensation Appeal Board (WCAB)].

This case involved an Impairment Rating Evaluation (IRE).  As we discuss on our website, if a workers’ compensation insurance carrier obtains a whole body impairment rating of an injured worker of less than 50%, more than 60 days after the injured worker receives 104 weeks of total disability benefits, the insurance carrier cannot automatically change the status of disability from “total” to “partial.”  Instead, the insurance company must file a Petition for Modification to have a WCJ order such a change.

In this matter, the workers’ comp insurance carrier took the deposition of the IRE physician.  The injured worker offered no evidence, but argued that the testimony of the IRE physician was not credible (and that, thus, the Petition for Modification should be denied).  Finding the IRE physician not credible, the WCJ did deny the Petition.  The WCAB affirmed the decision.

Every employer in Pennsylvania must carry PA workers’ compensation insurance (unless exempted for some reason, such as qualifying to insure itself).  The failure to carry workers’ comp insurance is a criminal act, one punishable by a fine and/or incarceration.  Unfortunately, not all employers in PA obey the law.  As we have discussed over the years, PA has a fund for injured workers when no insurance is present, called the Uninsured Employers Guaranty Fund (UEGF).

To initiate a case against the UEGF, an injured worker must notify the UEGF within 45 days of learning that his or her employer failed to carry workers’ compensation insurance.  The Commonwealth Court of Pennsylvania recently had to address when compensation becomes payable, and whether “compensation” in this context, when notice is provided to the UEGF after the 45 days, includes payment of medical expenses.

In this matter, Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Kendrick and Timberline Tree & Landscaping LLC), the employee suffered an orbital fracture, traumatic brain injury and postconcussion syndrome on November 7, 2011.  A Claim Petition was filed against the employer.  In that litigation, at a hearing on December 21, 2011, the injured worker was advised that the employer had no workers’ compensation insurance in PA.  A Notice of Claim was not filed against the UEGF until February 8, 2012 (more than 45 days after the injured worker knew there was no insurance).  All of these facts were stipulated between the parties.  A Claim Petition against the UEGF was filed; the only issue for the Workers’ Compensation Judge (WCJ) to decide was when the compensation was to start (the date of the injury, or the date the UEGF was notified).

Generally, for most employees, the commute to and from work is not a time in which the employee is covered under the Pennsylvania workers’ compensation system (this is known as the “going and coming rule”).  As with many of the principles we touch on with this blog, there are exceptions.  (One critical one, which we are not discussing in this blog post, is the “traveling employee,” which can be seen in this blog post).  Here we are going to look at a recent case on what happens with an injury in the employer’s parking lot.

In Quality Bicycle Products, Inc. v. Workers’ Compensation Appeal Board (Shaw), the employee was running out of the building to his car due to a family emergency.  On his way to his car, in the employer’s parking lot, the employee felt a pop in his knee (later diagnosed as a fractured patella). A Claim Petition was filed and granted by a Workers  Compensation Judge (WCJ).  This was affirmed on appeal by the Workers’ Compensation Appeal Board (WCAB).  [Note that other aspects of the decision were reversed by the WCAB, but are not relevant to our discussion].

Upon appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was reversed.  The Court felt that the WCJ, and the WCAB, erred in finding that the injury took place in the scope and course of employment.

Once an injured worker in Pennsylvania begins to receive workers’ compensation benefits, an insurance carrier can only stop making those payments under certain circumstances.  If the benefits are being paid under a Notice of Temporary Compensation Payable (NTCP), then the insurance carrier can simply withdraw the NTCP, issue a Notice of Denial (NCD) and stop paying unilaterally [As opposed to a Notice of Compensation Payable (NCP), which cannot be withdrawn].  However, in most other circumstances, approval must be obtained either from the injured worker (typically by the execution of a “Supplemental Agreement”) or from a Workers’ Compensation Judge (WCJ).

As with many rules, there are exceptions.  If the injured worker returns to work, the workers’ compensation insurance carrier can file a Notification of Modification (if partial disability payments will continue) or a Notification of Suspension (if payments will stop totally).  The injured worker has a chance to “challenge” either of these documents if he or she disagrees with the return to work (or the amount of wages in the return to work).  If either of these documents is not challenged within the given time period, the document is treated as if the injured worker signed in agreement.

This challenge process was one of the issues in a recent decision from the Commonwealth of Pennsylvania in Dixon v. Workers’ Compensation Appeal Board (Medrad, Inc.).  The matter began when the employee suffered a neck injury, which was accepted as a cervical sprain (interesting enough, the description of injury was not expanded, yet disfigurement benefits were awarded for scarring from cervical surgery [a procedure one would not have for a mere “sprain]).

As we discussed back in September, the Commonwealth Court of Pennsylvania rendered an important decision for the IRE process when the Court decided the matter of M.A. Protz v. Workers’ Compensation Appeal Board (Derry Area SD).  The delegation of power by the PA legislature, as we noted, was found to be unconstitutional.  We were left with several questions, the main one being whether appeal would be accepted by the Supreme Court of Pennsylvania.

The answer to this question has now been found – the Supreme Court of Pennsylvania has accepted the appeal filed by both sides.  The issues to be decided can be seen here and here.

We look forward to the clarification by the Supreme Court of Pennsylvania, and we hope that the decision rendered answers most, if not all, of our remaining questions.  We will certainly report of this development when it happens.

In many situations in life, things make sense.  This is not always true in law.  For example, a reasonable person may conclude that a “Notice of Denial” would be issued when a claim is “denied.”  How silly that person would feel to know that Pennsylvania Courts find it perfectly acceptable for a “Notice of Denial” to be used to accept a claim, even though the form itself specifically prohibits such a use.

Church v. Workers’ Compensation Appeal Board (Cook Landscaping) involved a worker who suffered a herniated disk in his lumbar spine while performing his job in 2004.  A Notice of Temporary Compensation Payable (NTCP) was issued accepting the injury as as a “herniated disc.”  An average weekly wage of $973.81 and a compensation rate of $649.21 was listed.  Subsequently, a second NTCP was issued, marked “corrected,” and adjusted the average weekly wage and compensation rate.  Temporary total disability benefits were paid for approximately 10 weeks under the two NTCPs.

After the 10 or so weeks, the injured worker returned to his job.  The workers’ compensation insurance carrier filed a Notice Stopping Temporary Compensation (NSTC) and a Notice of Workers’ Compensation Denial (NCD), indicating that, although an injury took place, Claimant was not disabled as a result of the injury and further indicating that all medical treatment related to the work injury would be reviewed for payment.  Having no medical insurance, the injured worker went several years without treatment for his low back, though he continued to have pain.

As we have addressed in the past, the Pennsylvania Workers’ Compensation Act applies to most “employees” in the State of Pennsylvania.  It does not, however, apply to “independent contractors.”  Often the line of demarcation between the two classes is blurry.  It becomes even more blurry when the findings of a Workers’ Compensation Judge (WCJ) are disregarded by appellate courts.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of Edwards v. Workers’ Compensation Appeal Board (Epicure Home Care, Inc.).  Here, the injured worker was a home health aide, who was hurt when she fell down the steps at the residence of one of her clients.  The defense to the Claim Petition filed by the injured worker was not a medical one, but, instead, was simply that the injured worker was an “independent contractor,” and not an “employee.”

In litigating the Claim Petition, the issue of the employee/employer relationship was “bifurcated” (litigated separately prior to litigating all of the aspects of the case).  The testimony of the injured worker, and a representative of the employer, was considered by the WCJ on the bifurcated issue.  The WCJ concluded that the injured worker was, in fact, an employee, and made the following findings of fact:

Back in June, 2015, we discussed the case of Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.).  Here, the Commonwealth Court of Pennsylvania found an Impairment Rating Evaluation (IRE) still valid, even though not all accepted injuries were included.  An IRE, as you can read on our website, changes the disability status of an injured worker from total to partial.

We are happy to report that the Supreme Court of Pennsylvania has accepted appeal in this matter.  Specifically, the Court will be addressing the issue:

Did the Commonwealth Court err in concluding that an Impairment Rating Evaluation (IRE), which is designed to rate the percentage of disability two years out from a work injury, was valid where the IRE only considered the injuries listed on the notice of compensation payable issued at the time of injury, and did not consider additional injuries that subsequently arose and were known at the time of the IRE but not yet formally added to the description of injury?”