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Articles Posted in Case Law Update

A topic often litigated in the Pennsylvania Workers’ Compensation system is whether an injured worker was within the scope and course of his or her employment at the time of the incident.  Accordingly, this is a topic that is no stranger to this blog.  Though this area continues to depend drastically on the facts within each case, a recent decision by the Commonwealth Court of Pennsylvania does shed some additional guidance on such cases.

In Henderson v. WP Ventures, Inc. (Workers’ Compensation Appeal Board), a custodian was waiting to be able to perform his usual tasks.  He was being prevented from doing so by the facility being cleaned and ventilated after a roof leak.  Taking advantage of his down time, the injured worker stepped out for a cigarette and to grab a sandwich from a nearby shop.  While outside of the facility, the injured worker fell and hurt his head.

A Claim Petition was filed, and litigated, before a Workers’ Compensation Judge (WCJ).  The injured worker testified that if his supervisor was not around (as was the case that day), he was permitted to take limited breaks without express permission when there was idle time.  This was not disputed by the employer.  After hearing the evidence, the WCJ granted the Claim Petition.  Specifically, the WCJ found, “Claimant was taking a cigarette break when he slipped and fell on the walkway outside of the building in which he was working, and this was a minor deviation from employment that would fall under the personal comfort doctrine.”

A recent case in the Commonwealth Court of Pennsylvania touched on two interesting aspects of the PA workers’ compensation system.  First, the Court dealt with the offset for Social Security Old Age benefits (personally, I find “Social Security Retirement” benefits a bit less offensive), under Section 204(a) of the Pennsylvania Workers’ Compensation Act.  Second, the role and importance of a post-injury conviction, in the context of the vocational process, was considered.

The case we are discussing is Sadler v. Philadelphia Coca-Cola (Workers’ Compensation Appeal Board).  Obviously a serious injury, the workers’ comp insurance carrier accepted “’a right pinky finger amputation,’ ‘distal radioulnar joint subluxation, ECU tendinopathy, pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ resection’ and ‘right transverse process fractures of L2-3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib and right leg radiculitis, . . . and low back sprain.’” After the injury, while receiving temporary total disability (TTD) benefits, the injured worker applied for Social Security Retirement (SSR) benefits (and, in turn, the insurance company filed a Notice of Offset, reducing the TTD payments based on 50% of the SSR benefits).  Also subsequent to the work injury, the injured worker was convicted of a Class II Felony and incarcerated for some period of time.

As frequently happens, the workers’ compensation insurance carrier had the injured worker evaluated for an “Independent Medical Examination” (IME; the word “independent” being dubious, since it is the carrier who unilaterally selects the physician).  After the IME doctor releases the injured worker to gainful employment, the insurance company retains a vocational counselor to prepare a Labor Market Survey (LMS), also known as an Earning Power Assessment (EPA).  The insurer then files a Petition for Modification, based on the jobs found in the LMS/EPA (in addition to a Petition for Termination, which is not relevant to our discussion).  Among other petitions not directly relevant, the injured worker filed a Petition to Review Benefit Offset.

One of the most unfair aspects of Pennsylvania Workers’ Compensation has always been how injured workers must defend petitions which address only medical benefits.   While injured workers receiving total disability benefits can easily retain an attorney (paying a portion, usually 20%, of such benefits as the fee), injured workers who continue to work, and lose no wages, must decide whether to pay an attorney from their pocket or risk losing access to medical benefits for the work injury.  However, this situation has now changed, thanks to a decision by the Supreme Court of Pennsylvania.

The PA Workers’ Compensation Act (“Act”) has typically been interpreted to allow attorney fees to only be assessed against the workers’ comp insurance carrier if there is a showing that the petition at issue was “unreasonable.”  Thus, the award of attorney fees, chargeable to the insurance company, was the exception to the rule.  This despite the fact that Section 440 of the Act says:

“In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.” [Emphasis added]

Back in July, 2019, we blogged, unhappily, about the Commonwealth Court of Pennsylvania decision in Peters v. Workers’ Compensation Appeal Board (Cintas Corporation).  This decision found a traveling employee to not be in the scope and course of his employment when he was injured in a motor vehicle accident after leaving a work-sponsored event.  Today, it is our pleasure to report that the Supreme Court of Pennsylvania has issued a decision vacating the decision of Commonwealth Court.  Essentially, the Supreme Court agreed (as did we) with the two dissenting judges on the Commonwealth Court.

Just to give a quick recap, the injured worker (“Claimant”) was a salesman, who went to various sites in his day.  There was no dispute that he was a “travelling” employee for the purposes of the PA Workers’ Compensation Act (Critical, since commuting to work is not generally covered with a stationary employee, absent some other factor, such as “a special mission”).

One day, after completing his work, Claimant drove to a bar, where his employer was sponsoring an event, typical of an after-sales blitz.  The employer paid for the food and drink.  To get to this bar, Claimant had to actually pass the exit for his home.  After the event, Claimant was injured in a car accident.

One frequently litigated part of PA workers’ compensation law is whether an injured worker is within the “scope and course” of his or her employment at the time of the injury.  Often, this question is dealing with a situation where an employee is injured just before or after his or her work day.  Since these cases are very limited by the exact facts, we like to see how the courts address each and every instance.  Recently, the Commonwealth Court of Pennsylvania issued a decision on this issue, though it is “unreported.”

We have previously discussed that not all Pennsylvania appellate cases, including ones that address PA workers’ compensation issues, are created equal.  Only “reported” appellate cases can be used as precedent.  However, “unreported” cases can still be cited by the parties, as persuasive, though such decisions are not binding on a Workers’ Compensation Judge (WCJ).  For these reasons, we obviously prefer to use reported cases, but we never ignore the unreported ones.

The recent case is Lombardi v. Workers’ Compensation Appeal Board (UPMC Health Plan, Inc.).  Here, the injured work arrived for her shift about 30 minutes early.  Her work takes place in an office building, not owned by her employer.  The injured worker went to the food court on the ground floor, intending to purchase breakfast to take to her cubicle.  While doing so, she tripped and fell, fracturing her right forearm and wrist.

Most employees in PA are covered by the Pennsylvania Workers’ Compensation Act.  This is a topic that has been mentioned previously in this blog.  However, that thought begs the question – who is actually an “employee”?  This can be a complicated topic and analysis, where one must differentiate the “employee” from the “independent contractor” (the latter not covered by the PA Workers’ Compensation Act).  Ultimately, this is a determination based upon the facts in each specific case.  A recent decision from the Commonwealth Court of PA does remind us of the significant factors.

Suppose you go to work for a company.  You sign an agreement, which says that you are an independent contractor.  You agree that taxes will not be withheld.  You are paid by the job, not by your time.  You have the right to decline job assignments.  You are not required to wear your employer’s uniform at work.  Your boss is not even on location when you are doing your job.  So, are you an employee?  Well, that would depend!  Though these are some of the factors to be examined, there are certainly others.

In Berkebile Towing and Recovery v. Workers’ Compensation Appeal Board  (Harr, State Workers’ Insurance Fund and Uninsured Employers Guaranty Fund), the answer was yes.  Some other facts, as found by the Workers’ Compensation Judge (WCJ), would be helpful to understanding the decision:

As we have discussed in the past, the assessment of unreasonable contest attorney fees is a rare finding in PA workers’ compensation.  This is when the workers’ comp insurance carrier is ordered to pay the fees of the injured worker’s attorney.  Even on those unusual occasions when a Workers’ Compensation Judge (WCJ) orders the payment of unreasonable contest attorney fees, often this is reversed by the appellate courts.  Which is why a recent decision of the Commonwealth Court of Pennsylvania was so refreshing.

In Gabriel v. Workers’ Compensation Appeal Board (Procter and Gamble Products Company), the injured worker suffered a puncture injury to his arm.  Notice was given to the employer by the injured worker within 120 days, as required under the Pennsylvania Workers’ Compensation Act (Act).  The injured worker received medical treatment, and the workers’ comp insurance company paid for such treatment.  However, the insurance carrier failed to issue any document, such as a medical-only Notice of Compensation Payable (MONCP), as would be required by the Act (the Act provides that the insurance carrier accept or deny an injury, issuing the appropriate form, within 21 days).

The injured worker filed a Claim Petition, to which the insurance carrier filed an Answer, denying all of the allegations in the Claim Petition. The matter was fully litigated before a WCJ.  After the final hearing before the WCJ, the insurance carrier finally issued a MONCP (this around two years after the occurrence of the injury).

Back in 2017, we shared the exciting news (hey, we attorneys have a unique sense of excitement!) that the entire Impairment Rating Evaluation (IRE) section of the Pennsylvania Workers’ Compensation Act (Act) was declared unconstitutional by the Supreme Court of PA (The Protz case) and stricken from the Act.  This, of course, stopped attempts by the insurance industry to get an IRE at all.

Not able to live with themselves in a world without IREs (oh, the horror), the Pennsylvania legislature passed Act 111.  This brought back the IRE process, albeit with a specific identification of which version of the Guides to the Evaluation of Permanent Impairment, put forth by the American Medical Association, need be used (the failure to so identify was largely the reason the prior IRE law was stricken).  Act 111 also lowered the threshold for continued total disability from 50% to 35% whole body impairment (for a better explanation of the IRE process, see our website).

Recently, the Commonwealth Court of PA addressed to what extent Act 111, which was enacted on   October 24, 2018, would be retroactive.  The case of Rose Corporation v. Workers’ Compensation Appeal Board (Espada) involved a work injury of September 6, 2006.  On May 22, 2013, the insurance carrier had obtained an IRE under the old (stricken) IRE law.  The IRE used the correct edition of the AMA Guides, and found a whole body impairment rating of less than 35%.  As a result, the insurance carrier wanted to use the 2013 IRE to obtain a change of benefit status, from total to partial, under Act 111.

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.

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