Articles Posted in Case Law Update

The Pennsylvania appellate courts have consistently determined that a Workers’ Compensation Judge (WCJ) is the final arbiter of credibility in a PA workers’ compensation case.  Short of finding that a credibility determination by the WCJ is “arbitrary and capricious,” these determinations are to be accepted by the courts.  This makes sense, since it is the WCJ who actually sees and evaluates the witnesses and the evidence directly.

Every once in a while, though, a WCJ’s credibility determinations are challenged on appeal, often by casting the attack in a different light.  Recently, the Commonwealth Court of Pennsylvania stopped such an effort by the Workers’ Compensation Appeal Board (WCAB) in the case of Lawry v. County of Butler (Workers’ Compensation Appeal Board).

In Lawry, the WCJ heard the testimony of the injured worker and reviewed the medical evidence, and largely denied the insurance carrier’s Petition to Terminate benefits.  To be specific, the WCJ found that the injured worker had fully recovered from “right thumb strain/sprain and right ulnar collateral ligament tear.”  Importantly, though, the WCJ also “determined that Employer failed to meet its burden of proving that Claimant fully recovered from her RSD/CRPS.”

One of the most important determinations in any PA workers’ compensation case is the Average Weekly Wages (AWW).  As we have explained in prior blog posts, if an injured worker has been employed for over a year, and is not paid a fixed amount each pay period, the AWW is determined by dividing the year prior to the date of injury into four quarters.  The top three of those quarters are then averaged.  This is the AWW.  The compensation rate is calculated from this figure.

For years, the Pennsylvania appellate courts have held that periods of lay off count within this calculation.  The Courts have said that the “employment relationship” continues through the lay off.  This often leads to a deflated AWW for an injured worker unfortunate enough to have undergone periods of lay off in the year before the injury (since those periods of lay off would be a zero for each pay period). Recently, a PA workers’ compensation insurance carrier tried to use this sword as a shield.

In Resources for Human Development, Inc. and Gallagher Bassett Services v. Sherry Dixon (Workers’ Compensation Appeal Board), the injured worker was employed by Resources for Human Development, Inc., as a home health aide.  The injured worker suffered a “strain or tear” to her “multiple trunk” (their word usage, not ours) when a patient fell on her.  Since the injured worker also was employed by Public Partnerships, LLP, she filed a Review Petition alleging that she had concurrent employment (so the AWW would be based on earnings from both of those jobs).

Under the Pennsylvania Workers’ Compensation Act, the insurance carrier has 30 days to either pay a medical bill for treatment related to a work injury, or file for Utilization Review (to challenge whether such treatment is reasonable and necessary).  The question, at times, is whether the treatment is “related” to the work injury or not.  Some workers’ comp insurance carriers simply deny payment, alleging the bills are for treatment unrelated to the work injury.  A recent decision by the Commonwealth Court of Pennsylvania casts doubt on this type of response.

First, it is important to note that this decision is “unreported,” and is only persuasive (not binding).  In Pennsylvania Liquor Control Board v. 3B Pain Management (Bureau of Workers’ Compensation Fee Review Hearing Office), the injured worker fell in the parking lot outside the store.  A Claim Petition was filed and litigated.  Ultimately, the Workers’ Compensation Judge granted the Claim Petition, finding the work injury to be a “meniscal tear of the right knee and chondromalacia of the femoral and tibial condyle of the right knee.”

The injured worker had chiropractic treatment, which the Court described as, “ . . . spinal manipulation relating to low back pain, manipulation of Claimant’s knees and his right hip for pain, low level laser treatment on his right knee, and therapeutic massage for unidentified muscle spasms.”

In Pennsylvania workers’ compensation, physical and mental injuries are treated very differently.  Is that fair?  Probably not, but that is the law with which we are left.

A physical injury, like a herniated disc in the neck or back, a rotator cuff tear in the shoulder or a ligament tear in a knee, are compensable under the PA Workers’ Compensation Act (Act), as long as the injured worker was within the scope and course of his or her employment at the time of the injury.  A mental injury, like post-traumatic stress disorder (PTSD), anxiety or depression, on the other hand, must be due to “abnormal working conditions” to be compensable (unless resulting from a physical injury).

It is the interpretation of this phrase, “abnormal working conditions,” upon which such a case turns.  As the court decisions have taught us, that phrase is very fact specific.

We often have issues regarding whether a particular medical expense is payable by the workers’ compensation insurance carrier.  The issue could be whether it is a “medical” treatment at all, whether it is related to the work injury, or whether it is “reasonable or necessary.”  A recent case from the Commonwealth Court of Pennsylvania examined a few of these issues.

In M.R. Schmidt v. Schmidt, Kirifides and Rassias, PC (Workers Compensation Appeal Board), the injured worker (Claimant) suffered an “aggravation of a preexisting degenerative disc disease at the levels of L4-5 and L5- S1 with radiculopathy” while he was loading files into a bag.  The injured worker litigated, and won, a Claim Petition to have this injury accepted as compensable.  Despite his injury, Claimant continued to work with the assistance of pain management.  In an effort to avoid increasing the amount of Oxycodone and/or OxyContin he was taking, the pain management physician prescribed cannabinoid (CBD) oil.  Since the dosages of the opioids has not been increased again, and Claimant has been able to avoid surgery, the use of CBD oil appears to have been successful.

The Pennsylvania Workers’ Compensation Act (Act) requires that the insurance carrier pay for all reasonable and necessary medical treatment related to the work injury.  As such, Claimant provided the insurance carrier with the prescription for the CBD oil, as well as his out-of-pocket receipts.  The insurance carrier refused to reimburse these expenses, alleging that CBD oil is not a “pharmaceutical drug.”  As a result, Claimant filed a Petition for Penalties.

We are often asked why an injured worker in Pennsylvania needs an attorney.  “They know I got hurt on the job,” the injured worker might say, “Why would I need a lawyer?”  Well, the Commonwealth Court of Pennsylvania recently issued a decision that demonstrates why every injured worker in PA should have an attorney protecting his or her rights.

In Keffer v. Colfax Corporation and Phoenix Insurance Company (Workers’ Compensation Appeal Board) it appears the injured worker did everything his employer and the insurance carrier asked.  And, he lost all of his rights in the process.  This case is a very important lesson for every injured worker in Pennsylvania.

The injured worker in this case hurt his low back lifting a box of metal rods on December 18, 2014.  The insurance carrier issued a Notice of Temporary Compensation Payable (NTCP), accepting the injury as a “low back strain,” and the payment of workers’ compensation benefits began.  These benefits continued until the injured worker returned to full-duty work on March 9, 2015.  The insurance carrier then issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP) on March 12, 2015.

There are two situations when an employee hurt at work in Pennsylvania is entitled to workers’ compensation benefits.  The first, which encompasses the vast majority of cases, is when the employee is “actually engaged in the furtherance of the [employer’s] business or affairs . . . .”  This is true whether the injury takes place on or off the premises of the employer.  On the other hand, the second is when the employee is not actually engaged in the furtherance of the employer’s business or affairs.  In that situation, the analysis is one based on a 1977 Pennsylvania Commonwealth Court case called Workmen’s Comp. Appeal Bd. (Slaugenhaupt) v. United States Steel Corp (and generally known as the “Slaugenhaupt test”).

Under the Slaugenhaupt test, the injured worker must prove that he or she “(1) is on a premises under the control of the employer; (2) is required by the nature of his employment to be on such premises; and (3) sustains an injury or injuries due to a condition of the premises or operation of the business.”  All three of these requirements must be met.  Parking lot cases (so, before or after work) are always fact-specific, given this analysis.

A recent case decided by the Commonwealth Court of PA addressed this issue.  In Lewis v. Lehigh Asphalt Paving & Construction Co. (Workers’ Compensation Appeal Board), the employee felt some pain and weakness in his left calf and ankle while working.  He finished his shift and clocked out.   About 15 minutes after clocking out, he got into his work truck to go home.  As he pushed off his left foot to get into the truck, he felt a pop in his lower leg (which was the Achilles tendon tearing).  He sought medical care, and provided notice to his employer, that same day.

Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits.  We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.

A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA.  In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer.  Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.

Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced.  The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer.  The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.

Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer.  If notice is not given within this time, a Claim Petition may be barred.  The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker (“The Discovery Rule”).

Recently, in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), the Commonwealth Court of Pennsylvania looked at what constitutes sufficient “notice” to meet the legal requirement.  Here, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital.  Subsequently, the injured worker sent an e-mail to his employer that he had emergency foot surgery.  A below-the-knee amputation was performed on the right leg.  The e-mail did not mention any relation to work.

On December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.”

When a person is injured at work in Pennsylvania, and the injury is not accepted by the workers’ compensation insurance carrier, the injured worker must file a Claim Petition to seek benefits.  Once the Claim Petition is filed, the insurance carrier has 20 days to file an Answer, responding to the allegations of the Claim Petition.  If the workers’ comp insurance company does not file an Answer within those 20 days, the injured worker can file what is (informally) called a “Yellow Freight Motion.”

If this Motion is granted, all well-pled facts in the Claim Petition are deemed admitted.  The appellate courts in PA have told us that this Motion is not the same as a default judgement.  Ongoing disability can still be challenged by the insurance carrier, and proofs by the injured worker can be required by the WCJ.

A recent case decided by the Commonwealth Court of Pennsylvania, Hollis v. C&R Laundry Services LLC (Workers’ Compensation Appeal Board), addressed what constitutes a “well-pled fact” when it comes to the description of injury.  Here, the employee was a truck driver who was involved in a motor vehicle accident while working.  When the injury was denied, a Claim Petition was filed.  The injury was alleged to be “left rotator cuff pathology/cervical left side radiculopathy, [Cervical, Thoracic, Lumbar] sprain/strain.”

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