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Articles Posted in Case Law Update

Once an injured worker in Pennsylvania establishes an entitlement to workers’ compensation benefits (when out of work, the benefits are known as “temporary total disability benefits” or TTD), the workers’ comp insurance carrier cannot just stop paying the benefits at its discretion.  This is one of the advantages of the workers’ compensation system in PA.

Unless the injured worker settles the case, or agrees that he or she has returned to gainful employment at (or above) the pre-injury earnings, there are very few situations an insurance company can stop the TTD benefits without an order of a Workers’ Compensation Judge (WCJ).  Indeed, even an order of a WCJ can only be obtained in certain circumstances, such as when the insurance carrier proves the injured worker has fully recovered from the work injury, or that work is available to the injured worker within his or her physical capabilities.

Given the difficulties workers’ comp insurance carriers face in PA trying to stop the payment of TTD benefits, the companies are always searching for new ways to accomplish this goal.  One of the relatively recent ways to attack the payment of benefits is by alleging an injured worker has voluntarily removed him or herself from the labor market.  Proving such an allegation allows the stoppage of TTD payments without having to demonstrate any job availability.

This blog does not address Coronavirus (COVID-19) and how it relates to PA workers’ compensation.  Which is good, because I think we are all tired of seeing the words “Coronavirus” or “COVID-19.”

Instead, we are looking at a recent decision from the Commonwealth Court of Pennsylvania, wherein the Court looked at the effect of a workers’ compensation insurance carrier issuing a Notice Stopping Temporary Compensation (NSTC) more than five days after the last payment of workers’ comp benefits under a Notice of Temporary Compensation Payable (NTCP).  The short answer is there is not much consequence to the insurance company.

When a workers’ comp insurance carrier is not sure whether a work injury claim in PA is compensable, the insurer has the option of issuing an NTCP, which allows the payment of workers’ compensation of benefits to start, while still allowing the insurer to complete its investigation and still have the option to deny the claim.  In theory, the NTCP is a win-win proposition.  In theory.

Usually, if the testimony of an injured worker, and that of the medical expert offered by the injured worker, is not found credible by the Workers’ Compensation Judge (WCJ), there is no way to win the case.  This highlights just how important it is to have a “presumption” under the law, such as that available to firefighters.  As a recent decision of the Commonwealth Court of Pennsylvania shows, having the “presumption” can be the difference between winning and losing a workers’ comp case in PA.

We have previously discussed the presumption that cancer suffered by a firefighter is related to his or her work duties and work exposure.  We have addressed the different types of cancer implicated in this presumption, as well as who can use the presumption.  What we have not addressed is how important it is to actually have this presumption.  And that is what is clearly seen in Deloatch v. Workers’ Compensation Appeal Board (City of Philadelphia), decided recently by the Commonwealth Court of Pennsylvania.

The injured worker here was a firefighter who was diagnosed with lung cancer.  He filed a Claim Petition, which was litigated before a WCJ.  The injured worker testified that he was exposed to diesel fumes and smoke from fires throughout his years of service with the Fire Department. Though he stopped smoking years before, the injured worker agreed he had a 30 to 35-year-long history of smoking cigarettes.  The medical evidence presented by the injured worker connected the lung cancer to his occupational exposure as a firefighter.  Medical evidence offered by the workers’ compensation insurance company showed that the lung cancer was not due to his work as a firefighter, but was “most likely” from personal factors (primarily smoking).

One of the important aspects to the Pennsylvania Workers’ Compensation Act (“Act”) is Section 309, which deals with the calculation of the Average Weekly Wage (AWW), controlling the amount of benefits an injured worker in PA will receive.  We have discussed these calculations in previous blog posts.  Additionally, the concept of a “seasonal employee” has been addressed here.  Recently, the Commonwealth Court of PA has again touched on the meaning of “seasonal employee.”

Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board (Trucks) deals with a shoulder injury suffered by a player for the Pittsburgh Steelers.  The compensability of the work injury was not in dispute; in fact, the only issue to be decided was whether the National Football League (NFL) player was a “seasonal employee” for the purposes of determining the AWW (Note that highly paid professional athletes have a special section of Act, for calculating the AWW; the player in this case did not rise to that level).

After hearing the evidence, the first Workers’ Compensation Judge (WCJ) granted the Claim Petition and set the AWW at $3,846.15 (concluding that the player was NOT a “seasonal employee” and that the AWW was determined by dividing the yearly salary by 52 weeks (this was appealed and remanded for unrelated reasons, which I will not bother addressing).  The Workers’ Compensation Appeal Board (WCAB) affirmed.

We have discussed the Utilization Review (UR) process many times in this blog.  Indeed, UR is such a big issue in the world of Pennsylvania workers’ compensation that we have a section on our website devoted to just this topic.  Basically, UR is the tool used by either an injured worker, or the workers’ compensation insurance carrier (usually the latter) to determine whether medical treatment is “reasonable and necessary.”

A somewhat related process is that for Fee Review.  Since this is something that is done by healthcare providers (rather than the injured worker), we have rarely addressed Fee Review in this blog.  The healthcare providers often have their own legal counsel handle these matters (rather than obtaining relief through the efforts of the injured worker’s attorney, as in other areas of workers’ comp).  Fee Review is the means a healthcare provider uses to obtain payment for reasonable and necessary medical treatment, related to the work injury.  Recently, the Commonwealth Court of Pennsylvania issued a decision which dealt with both Utilization Review and Fee Review.

In Keystone Rx LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Compservices Inc./AmeriHealth Casualty Services), the injured worker hurt his left knee.  As part of the treatment for the knee, the physician ordered medications, which were dispensed by Keystone Rx LLC.  The workers’ compensation insurance carrier filed for Utilization Review of the treatment rendered by the physician, including these prescriptions.  A Utilization Review Determination found all treatment of the physician, including the medications, to be unreasonable and unnecessary.  This meant the insurance company was not responsible for payment of the treatment found unreasonable and unnecessary (including the prescriptions).

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.

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