Articles Posted in Case Law Update

When the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board  back in 2007, we attorneys who represent the injured worker thought things had really changed.  No longer could the workers’ comp insurance carrier file Termination Petition after Termination Petition in an endless series to evade the payment of benefits.  Indeed, there were cases from Commonwealth Court of PA shortly after Lewis which gave us real hope.  Unfortunately, that same Commonwealth Court has now pulled that hope away.

In Baumann v. Workers’ Compensation Appeal Board (Kellogg Company), the injured worker suffered a right shoulder and upper back strain, and a right C6 radiculopathy was later added, as a result of a car accident while he was performing his job duties in 2007.  In November, 2009, a Workers’ Compensation Judge (WCJ) issued a decision denying a Petition for Termination.

Following another Defense Medical Examination (DME, laughingly referred to officially as an “Independent” Medical Examination, where nothing is independent) with the same expert as in the prior litigation, the workers’ compensation insurance carrier filed another Petition for Termination in 2010.

There is an old saying in law that one only gets “one bite at the apple.”  That means, basically, that you have a chance to file your claim or suit or whatever, litigate the issue and obtain a final decision.  Once that is done, you can file an appeal of that decision (if available in that forum), but you can never go back and try the case all over again from the start.  While the world of workers’ compensation has some different evidentiary standards, this rule of law generally applies.  A recent case from the Commonwealth Court of Pennsylvania dealt with this issue.

In 2013, the injured worker filed a Claim Petition alleging interstitial lung disease, chronic inhalation injury, hypersensitivity, lung disease, eosinophilic lung disease, and interstitial pneumonitis.  This was the case of Northtec, LLC and American Zurich Insurance Company v. Workers’ Compensation Appeal Board (Skaria).  After the Petition was assigned to a Workers’ Compensation Judge (WCJ), but before any evidence was submitted, the attorney for the injured worker withdrew the Claim Petition.  This was done “without prejudice.”  That means that the injured worker could refile the same Petition again (if it was done prior to the statute of limitations, of course).

Indeed, the injured worker did file the same Claim Petition again, in 2014.  Hearings were conducted and the deposition testimony of the injured worker was submitted.  Subsequently, since the attorney for the injured worker was unable to get the deposition of their medical expert scheduled within the allotted time period, the attorney again requested that the Claim Petition be marked as withdrawn “without prejudice.”  This time, the counsel for the workers’ compensation insurance carrier opposed the request, stating that she had intended to defend the claim, on the issue of notice of the injury, but that both of her witnesses had since left the employ of that company.  She alleged that she would be prejudiced if the injured worker was allowed to file the same Petition, yet again, in the future.

As we have mentioned several times on this blog, and even discussed on our website, most employees in Pennsylvania are covered under the Pennsylvania Workers’ Compensation Act.  However, different groups of employees fall outside this coverage for various reasons.  One of those groups, employees who work in maritime industry, was the subject of a recent decision from the Commonwealth Court of Pennsylvania.

In Savoy v. Workers’ Compensation Appeal Board (Global Associates), the Commonwealth Court of Pennsylvania had to decide whether an employee injured on a docked United States Navy vessel was entitled to coverage under both the federal Longshore and Harbor Workers’ Compensation Act (Longshore Act) and the state Pennsylvania Workers’ Compensation Act (Workers’ Compensation Act).  When an injured worker can choose among different benefit programs, it is known as “concurrent jurisdiction.”

The injured worker in the Savoy case testified that the Navy vessel was docked at the Philadelphia Navy Yard in a basin (so in the water of the Delaware River).  While on the ship, Mr. Savoy, an electrician, tripped and twisted his right knee, suffering a torn right lateral meniscus.  A Claim Petition was filed seeking benefits under the Workers’ Compensation Act (the parties agreed that Mr. Savoy was already receiving benefits under the Longshore Act).

***********SUPREME COURT OF PENNSYLVANIA HAS ACCEPTED APPEAL – UPDATE WILL FOLLOW WITH DECISION********  

Under the Pennsylvania Workers’ Compensation Act, injured workers in PA are protected against most types of injuries or conditions.  One thing specifically noted is a category of “occupational diseases.” These cover ailments found predominantly in a specified profession, above the levels found generally, and create a presumption of the disease being related to the work activities.  A specific example of an occupational disease is contained in Section 108(r), pertaining to firefighters.  It reads:

“Cancer suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.”

In theory, a workers’ compensation insurance carrier can be required to pay part of, or even the entire, cost of counsel fees owed to the attorney for the injured worker.  This is to be awarded any time the insurance carrier lacks a “reasonable basis” to file or defend a litigation.  In practice, this is rarely awarded (though, to be candid, we did just receive such an award last week).  The costs of litigation incurred by the attorney for the injured worker are to be awarded whenever the injured worker is successful in litigation “in whole or in part.”  Recently, the Commonwealth Court of Pennsylvania had to address the process for the award of attorney fees and litigation costs.

In Byfield v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), the employee injured his spine and right wrist.  The injury was accepted by Notice of Compensation Payable (NCP) as cervical, thoracic and lumbar strain and sprain and contusion of the right wrist.  Eventually, the injured worker returned to light duty work.

Despite the fact that the injured worker had actually returned to work, at the same earnings as before the injury, in its infinite wisdom, the workers’ compensation insurance carrier filed a Petition for Suspension, alleging the injured worker refused reasonable and necessary medical treatment, in the form of facet injections.  This concept of a “forfeiture petition” has been addressed before on this blog.

Back in February, 2015, we posted a blog entry expressing our disappointment in the decision rendered by the Commonwealth Court of Pennsylvania in the matter of IA Construction Corporation v. Workers’ Compensation Appeal Board (Rhodes).  We are now delighted to relate that the Supreme Court of Pennsylvania, the top appellate court in PA, has now reversed the decision of the Commonwealth Court, and reinstated the decision reached by the Workers’ Compensation Judge (WCJ) [and affirmed by the Workers’ Compensation Appeal Board (WCAB)].

This case involved an Impairment Rating Evaluation (IRE).  As we discuss on our website, if a workers’ compensation insurance carrier obtains a whole body impairment rating of an injured worker of less than 50%, more than 60 days after the injured worker receives 104 weeks of total disability benefits, the insurance carrier cannot automatically change the status of disability from “total” to “partial.”  Instead, the insurance company must file a Petition for Modification to have a WCJ order such a change.

In this matter, the workers’ comp insurance carrier took the deposition of the IRE physician.  The injured worker offered no evidence, but argued that the testimony of the IRE physician was not credible (and that, thus, the Petition for Modification should be denied).  Finding the IRE physician not credible, the WCJ did deny the Petition.  The WCAB affirmed the decision.

Every employer in Pennsylvania must carry PA workers’ compensation insurance (unless exempted for some reason, such as qualifying to insure itself).  The failure to carry workers’ comp insurance is a criminal act, one punishable by a fine and/or incarceration.  Unfortunately, not all employers in PA obey the law.  As we have discussed over the years, PA has a fund for injured workers when no insurance is present, called the Uninsured Employers Guaranty Fund (UEGF).

To initiate a case against the UEGF, an injured worker must notify the UEGF within 45 days of learning that his or her employer failed to carry workers’ compensation insurance.  The Commonwealth Court of Pennsylvania recently had to address when compensation becomes payable, and whether “compensation” in this context, when notice is provided to the UEGF after the 45 days, includes payment of medical expenses.

In this matter, Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Kendrick and Timberline Tree & Landscaping LLC), the employee suffered an orbital fracture, traumatic brain injury and postconcussion syndrome on November 7, 2011.  A Claim Petition was filed against the employer.  In that litigation, at a hearing on December 21, 2011, the injured worker was advised that the employer had no workers’ compensation insurance in PA.  A Notice of Claim was not filed against the UEGF until February 8, 2012 (more than 45 days after the injured worker knew there was no insurance).  All of these facts were stipulated between the parties.  A Claim Petition against the UEGF was filed; the only issue for the Workers’ Compensation Judge (WCJ) to decide was when the compensation was to start (the date of the injury, or the date the UEGF was notified).

Once an injured worker in Pennsylvania begins to receive workers’ compensation benefits, an insurance carrier can only stop making those payments under certain circumstances.  If the benefits are being paid under a Notice of Temporary Compensation Payable (NTCP), then the insurance carrier can simply withdraw the NTCP, issue a Notice of Denial (NCD) and stop paying unilaterally [As opposed to a Notice of Compensation Payable (NCP), which cannot be withdrawn].  However, in most other circumstances, approval must be obtained either from the injured worker (typically by the execution of a “Supplemental Agreement”) or from a Workers’ Compensation Judge (WCJ).

As with many rules, there are exceptions.  If the injured worker returns to work, the workers’ compensation insurance carrier can file a Notification of Modification (if partial disability payments will continue) or a Notification of Suspension (if payments will stop totally).  The injured worker has a chance to “challenge” either of these documents if he or she disagrees with the return to work (or the amount of wages in the return to work).  If either of these documents is not challenged within the given time period, the document is treated as if the injured worker signed in agreement.

This challenge process was one of the issues in a recent decision from the Commonwealth of Pennsylvania in Dixon v. Workers’ Compensation Appeal Board (Medrad, Inc.).  The matter began when the employee suffered a neck injury, which was accepted as a cervical sprain (interesting enough, the description of injury was not expanded, yet disfigurement benefits were awarded for scarring from cervical surgery [a procedure one would not have for a mere “sprain]).