Articles Posted in Case Law Update

This seems to be the month for Average Weekly Wage (AWW) cases.  If you have not been keeping up with our blog (first, shame on you! 😉 ), AWW is the calculation of an injured worker’s wages, which is used to determine the amount of workers’ compensation benefits the injured worker will receive.  Last week, we discussed the Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney) case, which dealt with a situation where the worker did not earn a regular set amount each week.  This week we will look at a case with set weekly earnings.

In Lidey v. Workers’ Compensation Appeal Board (Tropical Amusements, Inc.), the injured worker was employed as manager/fabricator of company who provides amusement park and carnival rides.  While doing his job, the employee suffered a severe injury to his right arm, in which the arm was fractured and crushed, requiring multiple surgical procedures.  At the time of the injury, he was paid $2,000.00 per week.  In the year prior to his injury, his wages increased from $1,000.00 per week to $2,000.00 per week, at least temporarily.  There was no discussion whether this rate would continue indefinitely.

Though workers’ compensation benefits were paid voluntarily, they were based on an AWW of $640.00 (yielding a weekly compensation rate of $458.50).  Believing he should have compensation based on the AWW of $2,000.00, the injured worker filed a Petition to Review.  After evaluating the evidence (primarily testimony from both sides), the Workers’ Compensation Judge (WCJ) granted the Petition for Review, finding that the AWW indeed should be $2,000.00, for a resulting workers’ compensation rate of $917.00 (the maximum rate for 2013, the year of the injury).

As we have discussed previously, the vast majority of folks working in Pennsylvania are covered by the Pennsylvania Workers’ Compensation Act.  However, the calculation of wages, for the purposes of awarding workers’ comp benefits, can vary by the status of an employee.  For example, a “seasonal” employee is treated differently in these calculations than an employee who works the entire year.

The majority of employees in Pennsylvania (those who do not receive the same amount each week, month or year) have their workers’ compensation rate calculated by averaging out the highest three quarters of the year prior to the injury.  The calculation may be different for some employees, such as those who worked less than a year before the injury, or those who are paid by a flat salary (so wages do not vary by the week).  “Seasonal” employees also have a different calculation, as the Commonwealth Court of Pennsylvania recently addressed.

In the matter of Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney), the employee drove a truck during apple harvest (September to November), moving pickers and bins around the orchard.  One day, while exiting his truck, a tree branch struck the employee’s eye, eventually causing him to lose sight in the eye.  No work was promised or expected after the apple harvest ended.  The employee was retired (receiving Social Security Retirement benefits) both before and after the time he worked for this employer.

With the recent decision by the Supreme Court of Pennsylvania to accept appeal in the Sladek case, and the multitude of cases in Commonwealth Court, litigation regarding the presumption of cancer in firefighters is a hot topic.

One area which was not addressed, until the recent Commonwealth Court decision in Steele v. Workers’ Compensation Appeal Board (Findlay Township), is the difference between volunteer firefighters and professional ones.  While both of these brave men and women put their lives on the line regularly, the Pennsylvania Workers’ Compensation Act treats them very differently for the cancer presumption.

Each falls under the presumption, making it easier for a firefighter who contracts cancer from the job, to get PA workers’ compensation benefits.  However, there is one requirement in the Pennsylvania Workers’ Compensation Act (Act) which is only applicable to a volunteer firefighter:

A topic we frequently address, since it often becomes the subject of appellate decisions, is whether a worker is injured while in the scope and course of his or her job.  Generally (outside the commuting issue), either the employee took a small, momentary departure from the job, or completely left the scope and course of the job by some action.  These cases often succeed or fail depending on the precise facts involved, though appellate decisions do help provide us with necessary parameters.

For example, the Commonwealth Court of Pennsylvania recently made a decision in the case of Starr Aviation v. Workers’ Compensation Appeal Board (Colquitt).  Here, the employee worked at Pittsburgh International Airport, driving a cart to transport bags to and from the airplanes.  One day, during her menstrual cycle (a phrase never before used on this blog!), the employee forgot to bring the necessary feminine products, and her wallet, with her to the job.  Her mother agreed to bring the products and money to her.  After obtaining permission from her supervisor, the employee took the cart to meet her mother (at a terminal that she did often have to travel to).  In addition to the feminine products, her mother also brought her lunch money, TV dinners, and cigarettes.  On the way to meet her mother, there was an accident, which led to the lower left leg of the employee being amputated.

The claim was denied by the workers’ compensation insurance carrier, on the basis that the employee was not in the scope and course of her job duties at the time of the injury.  A Claim Petition was litigated before the Workers’ Compensation Judge (WCJ).  In the litigation, the Employer presented testimony from fact witnesses that the employee was offered food and money by co-workers and that feminine products were available in the ladies’ room.

Back in August, 2016, we discussed the case of City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek).  For those who do not recall, this was the case (well, one of several recent cases actually) which determined that a firefighter must prove the cancer he or she developed was of a type caused by the listed carcinogen, before the firefighter could use the presumption in Section 108 (making the obtaining of workers’ compensation benefits easier for the firefighter).  The Commonwealth Court of Pennsylvania had vacated the decision of the Workers’ Compensation Judge (WCJ), which granted the Claim Petition.

While an aggrieved party has the right to appeal any decision of a WCJ to Commonwealth Court (after first appealing to the Workers’ Compensation Appeal Board (WCAB)), the Supreme Court of Pennsylvania has the power to decide which appeals it will accept.  The fact the Court has now accepted appeal in this matter suggests that they wish to clarify the reading of Section 108(r).  Which way they will find is anyone’s guess at this point, though we will be following the developments closely.

A threshold issue in a Pennsylvania workers’ compensation case is whether the person who was injured was actually an “employee.”  This is an area we have addressed on this blog in the past.  Recently, the Commonwealth Court of Pennsylvania decided a case regarding this issue.

In the matter of Department of Labor and Industry, Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Lin and Eastern Taste), Mr. Lin was injured while renovating a restaurant which had not yet opened.  Since Mr. Lin was paid by the day (not the job) and did not operate a business of his own, it would appear, at first, he was an employee at the time of the injury.

After hearing the evidence, however, the Workers’ Compensation Judge (WCJ), denied the Claim Petition, finding that Mr. Lin was not an employee of the restaurant, that his work was not in the regular business of the restaurant, and that his employment was casual in nature.  Determining that the restaurant was not in the “construction industry,” the WCJ found that the Construction Workplace Misclassification Act (CWMA) did not apply.

We have previously discussed the “coming and going rule” in Pennsylvania Workers’ Compensation, where, essentially, an employee is not covered by the PA Workers’ Compensation Act if he or she is injured while on the commute to or from work.  Like most legal rules, of course, there are exceptions.  The Commonwealth Court of Pennsylvania recently addressed this issue.

In Lutheran Senior Services Management Company v. Workers’ Compensation Appeal Board (Miller), the injured worker had a serious motor vehicle accident while going in to work.  Again, by the general rule, workers’ compensation benefits would not be available to the injured worker.  However, this fact pattern has a twist.  The injured worker was Director of Maintenance Director of Maintenance for a nursing home facility.  There were occasions when he had to come in on a day off to deal with an emergency (he was a salaried employee, not an hourly one).  On those occasions, the established practice of the employer was to provide “comp time” for him.  The “comp time” would run from when he got paged, to when he got back home.

One day, the injured worker was sick.  He planned to call out of work.  The employer called him and said a security camera malfunction had to be fixed.  None of the three employees working under him were available, so he went into work.  On the ride into work, he was involved in the bad car accident.

Back in June, 2015, we discussed the Commonwealth Court decision in Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.).  In this decision, which confounded us at the time, the Court said that an injured worker could not successfully expand the description of his or her work injury after an Impairment Rating Evaluation (IRE) was performed.

Recently, however, this decision was reversed by the Supreme Court of Pennsylvania.  Though the basis was not that suggested by the injured worker, the Supreme Court found that the IRE in this case was not valid.  Essentially, the Court said that, under the American Medical Association (AMA) Guides (the books which dictate permanent impairment in PA), the doctor who performs the IRE must determine the level of impairment.  The mere fact that the impairment in this case was both physical and psychological, though only the physical was accepted, does not change this requirement.  Because, said the Court, the psychological impairment stemmed from accepted physical injury, such impairment had to be considered or dismissed by the physician conducting the IRE.  Instead, the IRE physician testified that he was not asked to, nor was he capable of, opining on psychological impairment.  As such, the Court found the IRE not valid, reversing the decision of the Commonwealth Court of Pennsylvania.

This decision was a 5-2 split, with two different Justices rendering dissenting opinions.  Though the reasons and arguments vary between the two dissents, the overriding theme of both seems to be that the psychological injury was not accepted, and, thus, should not have been part of the “impairment rating” as related to the accepted work injury.

On our blog, we have previously discussed cases where the dispute in a case is whether an injured worker was actually engaged in his or her employment duties at the time of the injury (what we call the “scope and course” of their work).  As you may have noticed, these cases often depend on the exact facts involved, making it hard to discern a general rule.  A case recently published from the Commonwealth Court of Pennsylvania did nothing to change this status.

In Grill v. Workers’ Compensation Appeal Board (U.S. Airways), the injured worker was at his job, and was on work time.  The accident happened when Claimant was helping his coworkers move a locker he brought from home to replace a battered one the Employer had been using.  No supervisor had authorized, or was even aware of, this action.  While moving the locker, the injured worker suffered shaft fractures in his fourth and fifth metacarpals, which required surgical treatment by the Philadelphia Hand Center.

When the claim was denied by the workers’ comp insurance carrier, the injured worker filed a Claim Petition.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) denied the Claim Petition.  Specifically, the WCJ found that the injured worker was not required by his job to move the locker and that he had not sought permission from his supervisor to move the locker.  As such, “Claimant was not engaged in the course and scope of his employment when he was injured.”

As we have mentioned, workers’ compensation laws vary widely from State to State, making the selection of which workers’ compensation laws apply to a given case a critical determination.  As much as there are things in PA law that benefit the workers’ comp insurance carrier, many aspects of Pennsylvania law are more beneficial to an injured worker than the laws of other States.  One would think that Pennsylvania law would apply to an employee who primarily works in PA and was injured in PA.  One may be wrong.

In Salvadori v. Workers’ Compensation Appeal Board (Uninsured Employers Guaranty Fund and Farmers Propane, Inc.), the injured worker was a truck driver for a company based in Ohio.  The job performed by the injured worker, however, was primarily in the State of Pennsylvania.  Indeed, the injury took place in PA, when his truck was rammed by another truck at a rest stop.  The injured worker suffered serious injuries including “a right shoulder rotator cuff tear, injury to the anterior chest wall, and disc herniations in his neck and low back.”  The injured worker also experienced a concussion.  As a result of these conditions, the injured worker was disabled from his job.

Since he worked primarily in PA, and was injured in PA, there is (clearly) jurisdiction in Pennsylvania for the injury.  Therefore, he filed a Claim Petition for benefits in PA.  When his employer was discovered to not carry workers’ compensation insurance in PA, the injured worker filed a Claim against the Uninsured Employers’ Guaranty Fund (UEGF).  The injured worker testified and presented medical evidence.  Neither the Employer, nor the UEGF, presented any contradictory evidence.  As such, the Workers’ Compensation Judge (WCJ) granted both the Claim Petition against the Employer, as well as the one against the UEGF.

Contact Information