Articles Posted in Case Law Update

We have written volumes about the Impairment Rating Evaluation (IRE) process.  It would now appear all of those words just became moot with the decision rendered by the Supreme Court of Pennsylvania, which ruled the entire IRE provision to be unconstitutional.

Back in September of 2015, we talked about the decision rendered by the Commonwealth Court of PA in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  In that decision, the Court found that the IRE provision within the Pennsylvania Workers’ Compensation Act (Act) was unconstitutional in that the impairment rating was to be determined by the latest version of the American Medical Association (AMA) Guide to Disability.  The Court believed this to be an impermissible delegation of power.  While this delegation of power was struck down by the Court, the case was remanded (sent back) to the Workers’ Compensation Judge (WCJ), to perform the IRE using the 4th edition (this was the edition which existed when the IRE provision was added to the Act).

The Supreme Court of Pennsylvania has now ruled that the Commonwealth Court was only correct in part.  Yes, said the highest court in the State, the delegation of power was indeed unconstitutional.  But, the Act does not contain any mention of using the 4th Edition of the AMA Guides.  A Court cannot rewrite a law.  Therefore, without a version of the AMA Guides to use, to measure an impairment rating, the entire IRE provision must be struck from the Act.

On this blog we often discuss the beginning and ending of a workers’ compensation case in Pennsylvania.  This is a natural, and obvious, area of litigation.  However, there is also potential for dispute, and thus, litigation, when an injured worker goes back to work.  This is especially true where the injured worker remains under limitations, and there may or may not be partial disability benefits due.  Recently, the Commonwealth Court of Pennsylvania issued a decision is this area.

In Holy Redeemer Health System v. Workers’ Compensation Appeal Board (Lux), a nurse (Claimant) suffered a back injury in the nature of lumbar sprain, facet arthropathy, and radiculitis while bending to care for a patient.  She was disabled from her pre-injury position (as a telemetry nurse) by this injury.  Since her employer had modified-duty work available within that department, the Claimant continued to work (with restrictions) and suffered no loss in wages.  The workers’ compensation insurance carrier accepted the claim on a medical-only basis.

While the injured worker continued to perform the modified-duty work, at no loss in wages, her employer created a permanent, available position in a different department and offered it to Claimant.  The employer did not force or require Claimant to leave her original modified-duty position.  This new position actually led to Claimant earning less money than in her modified-duty job in the other department.

Since the Pennsylvania Workers’ Compensation Act covers “employees,” but not “independent contractors,” the relationship between these two terms is something we have previously discussed on our blog.  A recent case from the Commonwealth Court of Pennsylvania on this topic featured an added twist of a late answer.

In Hawbaker v. Workers’ Compensation Appeal Board (Kriner’s Quality Roofing Services and Uninsured Employer Guaranty Fund), the injured worker was employed as a roofer, when he fell.  The injury was denied by the workers’ compensation insurance carrier, who alleged the injured worker (the “Claimant”) was actually an independent contractor, and not entitled to benefits under the Pennsylvania Workers’ Compensation Act.

Claimant filed a Claim Petition, and the insurance carrier did not file a timely Answer.  Under the law, all factual allegations made by the Claimant are deemed admitted if there is no timely Answer denying the allegations (Known as a “Yellow Freight” situation, for the case which first addressed it).  Claimant included in the allegations that he was an employee of the employer.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) found the Claimant to have been an independent contractor, and denied the Claim Petition.  This was affirmed on appeal to the Workers’ Compensation Appeal Board (WCAB).

When one thinks of an “injury,” typically one is imagining a sudden physical incident.  Maybe a roofer falls from a ladder.  A nurse pulls her back positioning a patient.  A machine operator catches a hand in a device.  While these are certainly injuries we see in PA workers’ compensation, not all work injuries are like these.  Some are physical, some are mental.  Also, some fall more into the category of “disease” than “injury.”  Yet, as a recent case from Commonwealth Court of Pennsylvania reminds us, all are compensable under the Pennsylvania Workers’ Compensation Act.

In Kimberly Clark Corporation  v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician in his employer’s plant.  He was diagnosed with metastatic bladder cancer in the Summer of 2005, and sadly passed away on June 23, 2006.  His widow (the “Claimant”) filed a Fatal Claim Petition.

In litigation before a Workers’ Compensation Judge (WCJ), Claimant presented the testimony of two coworkers of her late husband.  Both testified that the late husband had been exposed to various chemicals and substances which are known to cause cancer while doing the duties of his job.  The witnesses listed the names of many of the materials.  Claimant also presented the testimony of an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens.

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.

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