As we discuss in our FAQs on our website, not every person who works in the State of Pennsylvania is covered by the PA Workers’ Compensation Act (Act).  Certain categories of employees are excluded from the protections of the Act for various reasons.  One of those exclusions applies to those employed in “domestic service.” This area was recently addressed by the Commonwealth Court of PA.

In Van Leer v. Workers’ Compensation Appeal Board (Hudson), the Commonwealth Court of Pennsylvania was faced with a case where the injured worker was employed as a caretaker for a woman suffering from mild dementia.  The patient with the dementia was the only person in the household.  Though the case did not address how, the injured worker suffered very significant injuries.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ).  After hearing the testimony of the injured worker, the WCJ made the following Findings of Fact:

Once an injured worker in PA establishes a right to workers’ compensation benefits, such benefits can only be stopped by the workers’ comp insurance carrier under certain circumstances.  Two of the most common involve litigation before a Workers’ Compensation Judge (WCJ) – proving to the WCJ that the injured worker is fully recovered from the work injury (termination of benefits), or that work is available to the injured worker at equal to, or higher, wages (suspension of benefits).

An interesting circumstance happens when an injured worker is released back to his or her pre-injury position, without restriction, but the job (for some reason) is no longer available.  What relief is available to the PA workers’ comp insurance carrier in this situation?  Assuming the injured worker has not fully recovered from the work-related injury, there is no relief available to the insurance company.

This issue came up in a recent unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner) [We should note, as we have covered in a previous blog, that an “unreported” case can be cited to a WCJ for persuasive purposes, but it is not binding on a WCJ, as a “reported” decision would be].  Here, the injured worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy.  In fact, spinal fusion surgery was required.  However, the medical treatment was successful, and the injured worker was released back to the time of injury job, without restriction.  There was not, however, a full recovery from the work-related injury.

When an injured worker in PA gets medical treatment for his or her work injury, and a bill is submitted to the workers’ compensation insurance carrier, the insurance carrier has three choices.  They can pay the bill (within 30 days), initiate the Utilization Review process (to challenge whether the treatment is reasonable and necessary), or it can dispute relatedness by filing a Petition to Review Medical Treatment.  Or, it would seem, there is a fourth option – just ignore the bills.  This one, however, often ends poorly for the workers’ comp insurance carrier.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Mason v. Workers’ Compensation Appeal Board (Philadelphia AFL-CIO Hospital Association and Rodriguez), where this issue was addressed.  It is important to note, right from the start, that this is an “unreported” decision.  Previously on this blog, we mentioned that “unreported” decisions are not binding on a Workers’ Compensation Judge (WCJ), but can be persuasive and are still sometimes helpful to see how the Court views an issue.

In this case, the injured worker twisted his low back while doing his job.  The injury was accepted as “low back strain.”  The injured worker began to receive medical treatment, and the providers coded the bills for diagnoses of “lumbosacral strain/sprain, lumbosacral radiculopathy, and lumbar HNP (herniated nucleus pulposus).”  The workers’ compensation insurance company elected to not pay the medical bills, taking the position that the injured worker did not prove the work injury consisted of more than a low back strain.  Since the treatment was for diagnoses other than the accepted diagnosis, the insurance carrier felt the medical treatment was unrelated to the work injury.

As far back as 2008, our blog reported on a marked increase in the number of total knee replacements that were being performed.  This trend seems to have been continuing, and, perhaps, not for the best.  According to a recent article in The Intelligencer, a rather high number of patients who elected to have a total knee replacement performed, were dissatisfied with the results.  According to the article:

Research suggests that up to one-third of those who have knees replaced continue to experience chronic pain, while 1 in 5 are dissatisfied with the results. A study published last year in the BMJ found that knee replacement had “minimal effects on quality of life,” especially for patients with less severe arthritis.”

In Pennsylvania workers’ compensation, a total knee replacement is a procedure with see with some regularity.  Whether the injured worker had a preexisting arthritic condition, which was aggravated by a work injury, or whether the work injury itself led directly to the procedure, a total knee replacement is not uncommon in a workers’ comp case.

In litigating a workers’ compensation case in Pennsylvania, we fight about many aspects of a case.  Certainly, we have had disputes over when an injured worker was actually “disabled” from his or her job. As highlighted in a recent decision by the Commonwealth Court of PA, though, sometimes the exact date on which disability begins can have great consequence.

In Valley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), the injured worker hurt his back while performing his job, and was taken to the hospital by ambulance, on Friday, March 27, 2015.  The employer paid him for the day of the injury, on the paystub calling it “COMP TM.”

On April 13, 2015, the workers’ compensation insurance carrier filed a Notice of Temporary Compensation Payable (NTCP).  As we have previously discussed in our blog, this document allows an insurance carrier to begin to pay workers’ compensation benefits while still investigating a claim.  The NTCP is valid for a maximum of 90 days (if it is not revoked within those 90 days, it converts into a full Notice of Compensation Payable (NCP), which cannot be revoked).  If the NTCP is revoked within those 90 days, the claim can be denied in full.

When the Commonwealth Court of Pennsylvania decides a case in the PA workers’ compensation arena, we often get some insight into an aspect of the law, or an interpretation of a section of the Pennsylvania Workers’ Compensation Act (Act).  Rarely do we see a case address two areas of significance.  So, when the Commonwealth Court issued a decision recently in the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.)  case, we were very excited.  We get to talk about preexisting conditions as well as calculation of the Average Weekly Wage.

Let us start first with the issue of preexisting conditions.  There is no doubt that you are entitled to workers’ compensation benefits in PA if your work duties, or work injury, aggravate a preexisting condition, whether that underlying condition is work-related or not.  We see this often with asthma, allergic reactions, arthritis and degenerative disc disease in the neck or back.  Indeed, this is such a basic concept, and comes up so often, that it is covered in the Medical FAQ section of our website.

Where things get messy is when the workers’ compensation benefits will be terminated.  As described in a previous blog post, generally speaking, the Courts will say benefits stop when an injured worker returns back to baseline with the underlying preexisting condition (even if that baseline leaves the injured worker advised not to return to his or her regular job, due to a fear of another aggravation).  The exception to the rule is when the underlying condition is also work-related, as in the previous blog about the Little case.  In that situation, workers’ comp benefits continue, since it is the work injury (not a non-work-related underlying condition) which prevents a return to the regular employment.

Okay, so you get injured at work.  You get treatment with a doctor, maybe have a course of physical therapy, then you start to feel a little better.  You are not all better yet, and you cannot go back to your regular job, but maybe you could do some kind of work.  So the doctor releases you to light duty work.  What then?

First, let’s talk about what does not happen.  If you are receiving workers’ compensation benefits, as you should be if you are disabled by the work injury, then benefits cannot just be stopped (unless you are being paid under a Notice of Temporary Compensation Payable, which can be revoked within 90 days).  Unless work is shown to be available to you (within your physical restrictions), temporary total disability benefits should continue.

Work could be shown to be “available” to you with your employer, perhaps at a modified version of your former job, or a different job entirely.  Or, work could be shown to be available to you with a totally different employer.  This can be done through a “Labor Market Survey” or “Earning Power Assessment.”  In this situation, the light duty job need not actually be offered to you, it just needs to be generally available (like listed in the “help wanted” section in a newspaper or online).  There is also a tool used by workers’ compensation insurance carriers called “funded employment,” where the insurance carrier actually pays you to work at a charity.

On our blog, and our website, we talk of how to help the injured worker, both through legal rights under the Pennsylvania Workers’ Compensation Act, and through news and developments in the medical field.  But, maybe the most helpful thing is to avoid the work injury in the first place.

While typically, we keep things local to Pennsylvania work injuries, we were contacted by a site in the United Kingdom, which has a guide to help reduce the occurrence of injuries in the workplace.  Obviously, some of the legal and governmental things that are mentioned are not true for PA, but the guide does have some things employers can consider as they try to reduce the frequency of work injuries.

According to the site:

Though the Pennsylvania Workers’ Compensation Act does not have a cost-of-living increase, as seen with Social Security Disability benefits, the maximum workers’ compensation rate does increase every year.  This, of course, does not impact existing injuries, only those that take place in this calendar year.  The PA Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries taking place in 2019 will be $1,049.00 per week.  This is up from the $1,025.00 maximum rate for 2018 work injuries.

Calculating the specific workers’ compensation rate in a case can become complicated.  Essentially, we look at the wages earned by the injured worker in the year prior to the work injury. This year is then split into four quarters, and an average is taken of the highest three of the quarters.  We are then left with the Average Weekly Wage (AWW).  Depending on the figures, the workers’ compensation rate is usually 2/3 of the AWW, though that can vary. For lower wages, the rate can be as high as 90% of the AWW. Those workers earning very high wages, creating a rate that would be above the  maximum compensation rate, will receive less than 2/3 of the AWW.

There can also be confusion over what is allowed to be included in an AWW calculation.  Another job held by the employee (called “concurrent employment”) is certainly includable, as is overtime and most bonuses.  Fringe benefits and self-employment earnings are two things that are not part of the AWW.

Anyone who follows our blog, or the Pennsylvania workers’ compensation system, knows that one of the fastest changing areas these days is that of Impairment Rating Evaluations (IREs).  To keep pace with these changes, and continue our goal of educating the injured worker throughout PA, we have updated the IRE section of our website.  The new page can be accessed here.

For those unfamiliar with the IRE process, this was something the insurance industry lobbied hard for when major changes were made to the Pennsylvania Workers’ Compensation Act (Act) in 1996.  As seen with other States in the Country, an IRE process can change the status of an injured worker from “total” disability to “partial” disability.  While this may not (and in PA does not) change the amount of the weekly benefit received by an injured worker, it does start the clock ticking on the number of weeks of partial disability benefits an injured worker can receive (in Pennsylvania, an injured worker can only receive a maximum of 500 weeks of partial disability benefits; there is no limit to the number of weeks of total disability benefits that can be received).

In 2017, the Supreme Court of Pennsylvania declared the IRE process, as set forth in the Act, unconstitutional.  This set the powerful insurance lobby into full panic mode (though, frankly, the actual financial impact of the loss of the IRE process on the insurance industry is in dispute).  As a result, the PA legislature capitulated to the lobby and passed Act 111, reinstating the IRE process.  To the surprise of very few, the elected representatives chose to side with the insurance industry over the injured worker.