Case Law Update

April 9, 2025

Workers’ Compensation Judge Need Not Set Aside Erroneously Issued Notice of Compensation Payable

When a party files a document in the world of Pennsylvania workers’ compensation, it means something. As with most areas of the law, parties are bound by what is filed. So, a recent decision by the Commonwealth Court of Pennsylvania, addressing an attempt by a workers’ comp insurance carrier to withdraw a Notice of Compensation Payable, is significant.

In City of Philadelphia and PMA Management Corp. v. John Bell (Workers’ Compensation Appeal Board), the injured worker was a firefighter for the City of Philadelphia who was diagnosed with colon cancer. Believing his cancer was caused by exposure to toxic fumes and compounds over his 17-year career, the injured worker reported this suspected work injury to his employer, as required under the law.

The City of Philadelphia investigated the allegation and then decided to deny the claim. However, an inexperienced adjuster accidentally caused a Medical-Only Notice of Compensation Payable (MONCP) to be issued, which accepted a work-related injury in the nature of colon cancer.

April 2, 2025

IRE Must Consider All Medical Conditions “Due To” The Work Injury

by Glenn Neiman

As we have addressed in a previous blog post, discussing the case of City of Philadelphia v. Turner (Workers’ Compensation Appeal Board), a Workers’ Compensation Judge (WCJ) cannot allow the conditions considered by an Impairment Rating Evaluation (IRE) to be only those conditions formally accepted by the workers’ compensation insurance company. Instead, the IRE physician must consider all conditions “due to” the work injury (in his or her medical opinion).

Just to refresh your recollection, an IRE is a tool available to PA workers’ compensation insurance carriers, which allows the status of workers’ comp benefits to be switched from “total” (for which there is no specific time limit) to “partial” (for which there is a maximum of 500 weeks available), if the “whole body impairment” (WBI) of the injured worker is found to be less than 35% (an extremely difficult standard to reach). More detail on the IRE process can be found on our website here.

In a recent case, the Commonwealth Court of Pennsylvania faced this issue again, though in a slightly different context. In the Turner case, the only medical evidence was the IRE physician, who was presented by the workers’ comp insurer. Since that physician did not consider all conditions he believed to be “due to” the work injury, the Court was able to simply affirm the decision of the WCJ, and find that the insurer failed to meet its burden under the Pennsylvania Workers’ Compensation Act.

March 21, 2025

PA Supreme Court Upholds Coverage for all “Medicines and Supplies” Related to Work Injury

by Glenn Neiman

Back in November, 2023, we discussed the case of M.R. Schmidt v. Schmidt, Kirifides and Rassias, PC (Workers Compensation Appeal Board). As you may recall, this case addressed an issue regarding payment for CBD oil used in conjunction with treatment for a work-related injury. The Workers’ Compensation Judge (WCJ) ordered such bills paid, though the Workers’ Compensation Appeal Board (WCAB) reversed that decision. The Commonwealth Court of Pennsylvania then reversed the WCAB, determining that the initial decision authored by the WCJ was correct.

Since that time, the matter was appealed to the highest Court in the State, the Supreme Court of Pennsylvania. Recently, that Court issued an opinion which affirmed the decision of the Commonwealth Court of PA (saying the WCJ was correct in requiring coverage for the CBD oil).

The Court was very specific in its opinion, stating, “we hold that any item that is part of a health care provider’s treatment plan for a claimant’s work-related injury falls within the purview of the broad-encompassing phrase ‘medicines and supplies’ as provided in Section 306(f.1)(1)(i). We further hold that, in such circumstances, the cost containment provisions of the (Pennsylvania Workers’ Compensation Act) and the attendant Pennsylvania Department of Labor regulations, both of which apply to a health care provider, do not apply to a claimant.”

March 3, 2025

PA Workers’ Comp Insurer Fails to Prove Injured Worker Withdrew From Labor Market

by Glenn Neiman

While we do not typically discuss “unreported” decisions of the Commonwealth Court of Pennsylvania (see this blog post on the difference between reported and unreported decisions), a recent such decision touches on an important topic – the concept of a voluntary withdrawal from the labor market, or, in normal language, retirement.

Once an injured worker proves an entitlement to PA workers’ compensation benefits, those benefits generally continue until something changes. That change could be the injured worker returning back to work, or an intervening decision from a Workers’ Compensation Judge (WCJ) regarding the full recovery of the injured worker, or the availability of work within the restrictions of the injured worker (among other things that can impact the continued receipt of benefits).

One other concept which can impact the continued receipt of benefits is a “voluntary withdrawal from the labor market,” which was the subject of the unreported decision by the Commonwealth Court of PA in Ogden Corporation (Broadspire) v. Workers’ Compensation Appeal Board (Keene). Essentially, if the workers’ compensation insurance carrier can establish that the injured worker has retired, then the injured worker may no longer be entitled to wage loss (what we call “indemnity” benefits – the right to medical benefits would not be disturbed). The concept of “voluntary withdrawal from the labor market” is basically proving the injured worker “retired.”

February 3, 2025

“Specific Loss” Benefits in PA Workers’ Compensation Has Higher Benefit Rate Than Total Disability

by Glenn Neiman

Workers’ compensation benefits in Pennsylvania consist of three types (aside from fatal claim benefits, which are not really relevant for this discussion). These are described in detail on our website. There are wage loss benefits (also known as “indemnity”), medical benefits and “specific loss” benefits. Specific loss benefits are paid for permanent loss of use of a body part and/or disfigurement claims (usually scarring, either from the injury or resultant surgery). The rate paid to an injured worker in wage loss benefits and specific loss benefits, for many years, has been calculated using the same formula. A recent decision by the Supreme Court of Pennsylvania has now overruled existing case law, changing the formula in specific loss cases.

Under Section 306(a) of the Pennsylvania Workers’ Compensation Act (Act), the rate for temporary total disability (TTD) benefits is calculated using the Average Weekly Wage (AWW) of the injured worker. The benefit rate is two-thirds of the AWW, up to the statutory maximum (which is set every year). If the benefit rate as calculated is less than half of the maximum rate, then the appropriate benefit rate is the lesser of 1) One half of the maximum rate; or, 2) 90% of the AWW. Note that the AWW and benefit rate are often miscalculated by the workers’ comp insurance carrier and should always be reviewed by an experienced workers’ compensation attorney. Under old case law, the same benefit rate paid for TTD was used for specific loss.

That all changed when the Supreme Court of Pennsylvania issued a decision in the case of Jackiw v. Soft Pretzel Franchise (Workers’’ Compensation Appeal Board). The language in the Act for specific loss benefits, in Section 306(c), says that the benefit rate for specific loss, “ . . . shall not be more than the maximum compensation payable nor less than fifty per centum of the maximum compensation payable per week for total disability as provided in subsection (a) of this section, but in no event more than the Statewide average weekly wage.” The reference there to Section 306(a) is what created the prior case law, saying the rate was the same for each type of benefit.

January 10, 2025

PA Injured Worker Unable to Add Medical Condition Related to Accepted Work Injury

by Glenn Neiman

As we have discussed in this blog previously, changes to an accepted work injury in PA come in two types – “corrective” and “consequential.” The difference between these two situations can make or break a case, as recently illustrated by the Commonwealth Court of Pennsylvania in their decision in the Grow v. PECO Energy Company (Workers’ Compensation Appeal Board) matter.

A “corrective” amendment is when the condition was present at the time of the work injury. In this situation, the injured worker need not file a Petition to Review, and the corrective amendment can be made by a Workers’ Compensation Judge (WCJ) in the litigation of any type of petition. A “consequential” amendment, however, requires the filing of a Petition to Review. This is used when the new condition is due to the accepted work injury, but takes place after the time of the injury (ie: as a consequence of that injury). Significantly, a Petition to Review can only be filed within three years of the date of the last payment of workers’ compensation benefits.

Looking at the Grow case, the injured worker hurt his neck while working on November 4, 2013. The injury was accepted by the workers’ comp insurance carrier, using a Notice of Compensation Payable (NCP), which described the work injury as “contusions and fractures at C3-C4.” As a result of the work injury, disc fusion surgery was performed. To his credit, the injured worker went back to work on January 10, 2014, and the workers’ comp benefits were suspended.

November 22, 2024

DHS Lien Not Automatically Reimbursable Under PA Workers’ Comp

by Glenn Neiman

While perhaps not of interest to every injured worker, the subject of PA Department of Human Services’ (DHS) liens is one that appears from time to time in Pennsylvania workers’ compensation cases. And, while the injured workers may not have a huge interest, the PA workers’ compensation insurance companies surely feel otherwise. The topic can easily (as in the case we will discuss) feature bills of over $100,000.

In the case we will be addressing (Dura-Bond Coating, Inc. v. R. Marshall & PI&I Motor Express (WCAB)), the injured worker suffered a catastrophic work injury, leading to the amputation of both of his legs. Given that there was a dispute as to what entity was actually his “employer,” there was considerable litigation following the filing of a Claim Petition.

While the Claim Petition was being litigated, medical bills were not being paid by any workers’ compensation insurance carrier. This resulted in bills being paid through DHS. In a situation like this, where DHS pays for treatment that should be borne by another party, DHS has a lien to recover payments it has made.

October 18, 2024

PA Workers Compensation Judge Must Consider All Conditions “Due To” A Work Injury In IRE

by Glenn Neiman

One of the bigger “victories” by the PA workers’ compensation insurance industry against the injured workers in Pennsylvania is the Impairment Rating Evaluation (IRE) process. Under this process, after an injured worker has received 104 weeks of temporary total disability benefits, the insurance company can initiate an IRE, which can limit the period of time an injured worker can receive workers’ compensation benefits. The IRE process is covered in great detail on our website.

If the examining physician finds that the injured worker has less than a 35% “whole body impairment” due to the work injury, the benefits can shift from “total” in character to “partial.” This does not change the amount of the benefits the injured worker receives, but it limits the duration for which the injured worker can receive those benefits.

One of the questions in the IRE process is which conditions or diagnoses need to be considered by the IRE physician in calculating the “whole body impairment.” There was a school of thought, championed by the insurance industry, that the IRE could only consider those conditions or diagnoses actually accepted as work-related. Thankfully, the Commonwealth Court of Pennsylvania has provided some clarification, establishing that the IRE physician must consider all conditions or diagnoses “due to” the work injury, whether accepted or not.

August 15, 2024

No Credit For Pension Benefits Against PA Workers’ Compensation Benefits Post-Retirement

by Glenn Neiman

The Pennsylvania Workers’ Compensation Act (“Act”) has several “offsets,” which provide a workers’ comp insurer with a credit for other types of benefits received by an injured worker, such as unemployment compensation, Social Security Retirement (“SSR”), severance and pension benefits. These offsets were created to avoid a perceived “double dipping” by an injured worker, getting paid (in theory) twice for one injury.

These offsets are set forth in Section 204(a) of the Act. Each of the benefits is treated differently. For example, with SSR, the workers’ compensation insurer is entitled to a credit of fifty percent of the SSR benefit, “Provided, however, [t]hat the Social Security offset shall not apply if old age Social Security benefits were received prior to the compensable injury.” On the other hand, “benefits from a pension plan to the extent funded by the employer directly liable for the payment of compensation which are received by an employe shall also be credited against the amount of the award.” Notably, there is no mention of a difference whether the pension benefits were received prior to the work injury. So, what happens if an individual retires, starts getting a pension and then is injured?

This situation was recently addressed by the Commonwealth Court of Pennsylvania in the case of Bradford County and PCOMP v. Pasko (Workers’ Compensation Appeal Board). Here, the injured worker (“Claimant”) was employed by Bradford County for 25 years, when he retired in 1993. Upon his retirement, Claimant began to receive an employer-funded pension.

July 23, 2024

When PA Workers’ Compensation Insurer Is Not Bound By Stipulation

by Glenn Neiman

When we litigate cases in the Pennsylvania workers’ compensation system, we often resolve such matters through a Stipulation of Facts. This agreement of the parties is then approved by a Workers’ Compensation Judge (WCJ) and has the same effect as any other decision of a WCJ. This kind of resolution often can resolve disputes quickly and easily, saving the parties the time and effort of unnecessary litigation.

Once a Stipulation of Facts is approved by a WCJ, and the appeal period passes, it can no longer be disturbed. Maybe. A recent decision by the Commonwealth Court of Pennsylvania addressed a situation where it was necessary to set aside a Stipulation of Facts after it was approved by a WCJ.

In VNA of St. Luke’s Home Health/Hospice, Inc. v. Elizabeth Ortiz (Workers’ Compensation Appeal Board), the injured worker hurt her left shoulder at work in 2017. The workers’ comp insurer accepted the injury as a “left shoulder strain.” Believing her injury was more significant than that accepted, the injured worker filed a Claim Petition (though it seems more in the nature of a Petition for Review), alleging additional diagnoses. Based largely on the testimony of the injured worker, that there were no issues with the left shoulder before the 2017 work injury, and the medical records stating the same, a Stipulation of Facts was reached, expanding the work injury to include “a left rotator cuff tear and biceps tendon injury.” The Stipulation of Facts was approved by a WCJ in 2019.