Articles Posted in Case Law Update

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If they are able to prove one of these things, a Workers’ Compensation Judge (WCJ) can find that the injured worker has withdrawn from the labor market, leading to a suspension of the wage loss benefits.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.

When the Commonwealth Court of Pennsylvania decides a case in the PA workers’ compensation arena, we often get some insight into an aspect of the law, or an interpretation of a section of the Pennsylvania Workers’ Compensation Act (Act).  Rarely do we see a case address two areas of significance.  So, when the Commonwealth Court issued a decision recently in the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.)  case, we were very excited.  We get to talk about preexisting conditions as well as calculation of the Average Weekly Wage.

Let us start first with the issue of preexisting conditions.  There is no doubt that you are entitled to workers’ compensation benefits in PA if your work duties, or work injury, aggravate a preexisting condition, whether that underlying condition is work-related or not.  We see this often with asthma, allergic reactions, arthritis and degenerative disc disease in the neck or back.  Indeed, this is such a basic concept, and comes up so often, that it is covered in the Medical FAQ section of our website.

Where things get messy is when the workers’ compensation benefits will be terminated.  As described in a previous blog post, generally speaking, the Courts will say benefits stop when an injured worker returns back to baseline with the underlying preexisting condition (even if that baseline leaves the injured worker advised not to return to his or her regular job, due to a fear of another aggravation).  The exception to the rule is when the underlying condition is also work-related, as in the previous blog about the Little case.  In that situation, workers’ comp benefits continue, since it is the work injury (not a non-work-related underlying condition) which prevents a return to the regular employment.

A couple of months ago, we talked about the Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) decision by the Commonwealth Court of Pennsylvania.  This was the first time the Court addressed the PA Supreme Court decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), which struck the entire Impairment Rating Evaluation (IRE) process from the Pennsylvania Workers’ Compensation Act (Act).

As a brief refresher, the IRE provision of the Act allowed a workers’ compensation insurance carrier to have an injured worker undergo an evaluation, after the injured worker received total disability benefits for two years.  This evaluation, known as an IRE, would change the status of benefits to “partial” from “total” if the injured worker was less than 50% whole-body impaired by the work injury (note that 99.9% of injured workers are less than 50% whole-body impaired; that is a ridiculously high standard).  While this would not impact the amount of benefits an injured worker received, it would start the clock ticking on the 500 week maximum entitlement.

The decision in Protz struck the entire IRE provision from the Act, finding it unconstitutional.  This left attorneys who represent injured workers in PA needing answers to how this would impact the many injured workers already now receiving “partial” disability benefits due to an IRE.

When an injured worker in PA settles a personal injury case against a third party (typically from a work-related car accident, a products liability case or similar), the workers’ compensation insurance carrier has its hand out to get repaid for the wage loss and medical benefits provided to the injured worker.  For past wage loss and medical benefits, that remains the law.  For future medical benefits, however, things have changed dramatically.

Recently, the Supreme Court of Pennsylvania issued a decision in Whitmoyer v. Workers Compensation Appeal Board (Mountain Country Meats).  The Court found that while a workers’ compensation insurance carrier is entitled to a credit against future workers’ compensation wage loss benefits (when a third party settlement is more than the insurance carrier has already paid), the insurance company is NOT entitled to a credit against future medical benefits.  This represents a large change in practice.

When a third party case is settled in the presence of a workers’ comp case in PA, there is a specific form one uses to calculate both the lien (how much the workers’ compensation insurance carrier is getting back for money they have already paid) and the “balance of recovery” (dealing with how the money above the lien amount is treated for future payments).  The balance of recovery is used to calculate the “reimbursement rate” for future payments.  Instead of having to pay the entire amount due for future obligations, the workers’ comp insurer would only have to pay that amount times the reimbursement rate, typically less than half.  This form is called a “Third Party Settlement Agreement” (TPSA).

Facial disfigurement is the only aspect of the Pennsylvania Workers’ Compensation Act under which a Workers’ Compensation Judge (WCJ) has the discretion to award anywhere from zero to 275 weeks of workers’ compensation benefits.  Since such injuries can range from barely noticeable to tremendously disfiguring, these cases vary widely in the amounts awarded.  Note that the scarring can be traumatic, or from a work-related surgery.  After a WCJ views a scar, and renders a decision, either side can appeal the decision to the Workers’ Compensation Appeal Board (WCAB).

What the WCAB can do with this decision was recently addressed by the Commonwealth Court of Pennsylvania in Keister Miller Investments LLC v. Workers’ Compensation Appeal Board (Hoch).  Here, the injured worker (Claimant) was involved in a work-related motor vehicle accident wherein he suffered a broken nose and a laceration to the right side of his head.

A Claim Petition was filed, seeking compensation for the facial scarring.  After viewing the scar, and describing it for the record, the WCJ granted the Claim petition, finding, as required, that the “work-related injury resulted in a serious and permanent disfigurement of Claimant’s face, which is of such a character as to produce an unsightly appearance and not usually incident to the employment.”  In so doing, the WCJ awarded 40 weeks of benefits.