Articles Posted in Case Law Update

When we litigate a Claim Petition, to obtain PA workers’ compensation benefits for one who is injured at work, we must prove that the person was hurt while in the scope and course of his or her job, and that such injury renders the person disabled.  Almost always, this requires the testimony of a medical expert (usually the treating doctor).  The opinion the doctor provides must be to a “reasonable degree of medical certainty.”  What does that phrase mean?  Commonwealth Court of Pennsylvania recently examined that very thing.

In PetSmart, Inc. v. Workers’ Compensation Appeal Board (Sauter), the injured worker alleged that he had hurt his low back while doing his job.  A Claim Petition was filed, and the matter was litigated before a Workers’ Compensation Judge (WCJ).  In support of the Claim Petition, the injured worker presented expert medical testimony, from his treating physician, that “he had discogenetic [sic] low back pain, as well as nerve symptomatology of indeterminate etiology” and that it was his “presumption” that it was related to work.  Finding the injured worker, and his medical expert, credible, the WCJ granted the Claim Petition.  This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ.  While the Court was quick to point out that there are no “magic words” that need to be used by a medical expert, and that an appellate court is “not permitted to pick one or two sentences out of context,” the Court concluded that the testimony of the injured worker’s medical expert did not rise to the level of “reasonable degree of medical certainty,” and could not support the granting of the Claim Petition.

While workers in Pennsylvania are generally all covered by the PA Workers’ Compensation Act (other than certain classes, such as Federal workers, some of those in the shipping industry, and others), not all are treated equally.  There is a stark difference between “stationary” employees (who go to the same job location each day) and “travelling” employees (who do not).  But, as we see in a recent decision of the Commonwealth Court, even the additional latitude of the travelling employee is not always enough.

In Peters v. Workers’ Compensation Appeal Board (Cintas Corporation), the employee was undisputedly a “traveling” employee.  As a salesman, most of his time was spent out on the road, travelling to various accounts.  One day, after working his full day out in the field, he came back toward his house, passed the exit for his house, and continued on to a bar, where he attended what the Commonwealth Court of Pennsylvania termed “a celebration with coworkers.”  When he went home, after the “celebration,” he was injured in a car accident.

The employee (the “Claimant”) filed a Claim Petition, alleging his injury took place while in the scope and course of his employment.  After litigating before the Workers’ Compensation Judge (WCJ), the Claim Petition was denied.  The WCJ found that Claimant was not in the scope and course of his employment at the time of the injury.  This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Previously, we have discussed “reported” cases versus “non-reported” cases, and how each can be used (the Courts have now started to use the terms “precedential” versus “non-precedential”).  Since they are not binding on a Workers’ Compensation Judge (WCJ), we rarely discuss non-precedential (or “non-reported”) cases on our blog.  However, when we see a decision in an important area of law, it can be helpful to explore how Courts are treating the law (and the previous cases).

Several years ago, the Supreme Court of Pennsylvania decided the case of Lewis v. Workers’ Compensation Appeal Board (WCAB).  This case was critical for the rights of injured workers in Pennsylvania, as it kept the workers’ comp insurance carriers from being able to file Termination Petition after Termination Petition, for little purpose other than to harass and annoy the injured worker.  Instead, as logic would dictate, the insurance company would have to show that there was actually a change in the condition of the injured worker before the insurance carrier could win a subsequent Petition for Termination (after litigating, and losing, a previous Petition for Termination).

As we noted on our blog, this was followed by some indication that PA Courts would undermine the concept, and allow a Termination of workers’ compensation benefits, even after litigation of a previous Termination Petition.

Once an injured worker proves an entitlement to workers’ compensation benefits in PA, only certain things allow a Pennsylvania workers’ comp insurance company to stop paying those benefits.   Some of the more common things would be convincing a Workers’ Compensation Judge (WCJ) that the injured worker has fully recovered, has returned to working at pre-injury wages, or has left the labor market for reasons unrelated to the work injury.  Another basis for the stoppage of workers’ compensation benefits in PA is incarceration.

Under Section 306(a.1) of the Pennsylvania Workers’ Compensation Act (Act), “Nothing in this act shall require payment of compensation under clause (a) or (b) for any period during which the employe is incarcerated after a conviction . . . “  While this sounds simple, as with many things, there can be disagreements on the application.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the case of Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola).  Here, the injured worker was receiving PA workers’ compensation benefits.  He was charged with a crime, and could not afford bail.  As such, he was incarcerated.  This, of course, would not allow a stoppage of workers’ comp benefits, since the incarceration did not come “after a conviction.”

One of the common questions we hear from injured workers is “What happens if I retire?” or, more than you may imagine, “What happens if I move out of this Country?”  In either case, the answer is that your wage loss benefits are placed in serious jeopardy.  Medical benefits are not impacted by these things; this is just a risk to wage loss (“indemnity”) benefits.

Normally, to reduce or eliminate workers’ compensation wage loss benefits, the insurance carrier must prove that the injured worker’s condition has changed, such that he or she is physically capable of some kind of work, and that this kind of work is available to the injured worker.  The standard is different, however, if the insurance company can prove either that the injured worker has “retired,” or has relocated out of the Country.  If they are able to prove one of these things, a Workers’ Compensation Judge (WCJ) can find that the injured worker has withdrawn from the labor market, leading to a suspension of the wage loss benefits.  One of the tools we have, as attorneys who represent injured workers, is to show that work is not “available” to the injured worker.  In these situations, that is not even relevant.

There are strategies to deal with these situations, provided that the injured worker obtain timely legal advice.  This is yet another instance when acting without legal counsel can dramatically impact your rights.  Once benefits are suspended in these situations, it can be difficult, if not impossible, for us to fix the problem.  The best way to fix the problem, is to avoid it happening.

Several years ago, we related that the Pennsylvania legislature passed Act 46, which created a presumption that cancer suffered by veteran firefighters is related to their work duties.  This amendment to the Pennsylvania Workers’ Compensation Act was largely cheered by all (other than workers’ comp insurers, of course!).  The Supreme Court of Pennsylvania explained the presumption threshold as:

“(A) firefighter-claimant asserting a cancer claim under Section 108(r) of the Act, 77 P.S. §27.1(r), must first establish that he was diagnosed with a type of cancer possibly caused by one or more IARC Group 1 carcinogens.”

As with any legislation, there were differences in how the law should be interpreted.  Certainly, we have had litigation regarding the types of cancer involved.  But, another area of confusion developed due to the difference in how the law treats career firefighters, as opposed to volunteer firefighters.  We discussed the 2017 decision of the Commonwealth Court in Steele v. Workers’ Compensation Appeal Board (Findlay Township) previously in our blog.  The dispute in that case boiled down to the requirement that a volunteer firefighter must prove exposure to the carcinogen through reports filed under the Pennsylvania Fire Information Reporting System (PennFIRS).

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.

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.