Articles Posted in Case Law Update

When an injured worker in Pennsylvania goes back to work, at least with restrictions, he or she has some protection if the work comes to an end. An issue recently addressed by the Commonwealth Court of PA is whether the job one looks at (to determine whether there are physical restrictions) is the job one held at the time of the injury, or the one held when the job is lost.

In Dougherty v. Workers’ Compensation Appeal Board (QVC, Inc.), the injured worker was employed as a video producer who suffered a tear of his Achilles tendon. After the injury, he was unable to physically do the regular duties of a video producer, but his employer took him back on a restricted basis, then reassigned him to a writer-producer position (which had much less physical demand). Unfortunately, the injured worker did not have the requisite skills to do the work of a writer-producer, and he was terminated for unsatisfactory work performance.

The injured worker filed a Petition for Reinstatement, which was litigated before a Workers’ Compensation Judge (WCJ). After hearing the evidence, the WCJ denied the Reinstatement Petition. Though the WCJ found that Claimant remained physically incapable of performing the pre-injury job (video producer), the WCJ determined that he was physically able to do the writer-producer job, and the reason he was again losing wages was not due to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

We have often discussed the right of an injured worker in Pennsylvania to have medical treatment for his or her work injury. The general rule is that medical treatment is covered by the Pennsylvania Workers’ Compensation Act if such treatment is not only reasonable and necessary, but is also related to the work injury. Sometimes, this comes down to who prescribed or provided the treatment, rather than the treatment itself.

For example, the Commonwealth Court of Pennsylvania recently issued a decision in the matter of Babu v. Workers’ Compensation Appeal Board (Temple Continuing Care Center). Here, a licensed Pennsylvania nurse hurt her neck and shoulders. She obtained some “Ayurvedic” treatment in her native India (the Court described this as a form of holistic alternative medicine traditional in India). The case was settled, expect for whether the bills for this treatment should be paid.

After hearing the evidence, the Workers’ Compensation Judge (WCJ), citing the case of Boleratz v. Workers’ Compensation Appeal Board (Airgas Inc.), determined the Ayurvedic treatment in this case was not compensable. Specifically, the WCJ found that the injured worker failed to prove the treatment was rendered, prescribed or supervised by a licensed practitioner. Additionally, the records offered by the injured worker did not show what treatment was provided, or to what part of the body the treatment was given (making it impossible to see if the treatment was actually even related to the injury). This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

A frequent topic on our blog is whether a work injury has been suffered in Pennsylvania while the injured worker is in the “scope and course” of his or her employment. These issues often involve an injury taking place on the commute to or from work.

As a general rule, an injury taking place during the commute to or from work is not within the scope and course of employment, and, again generally, workers’ compensation benefits are not available in that situation. However, as with many rules, there are exceptions. These exceptions were at the heart of the case in Holler v. Workers’ Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.)

In this case, the injured worker was a cable technician. He had a company vehicle, which was limited to company usage. The normal routine would be for him to check in at the main office each morning, get his assignments and equipment, and then spend the vast majority of his day on the road. On the fateful day, on his way in to the office, the injured worker was involved in a motor vehicle accident and was badly hurt.

Previously, we discussed the Commonwealth Court of Pennsylvania decision in School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), wherein the Workers’ Compensation Judge (WCJ) granted a Claim Petition, but then suspended benefits due to a job offer, despite the absence of a Notice of Ability to Return to Work. The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the suspension, finding that there could not be a valid suspension without the issuance of a Notice of Ability to Return to Work. The Commonwealth Court affirmed the Claim Petition as well, but reversed the WCAB as to the suspension, finding the suspension was appropriate.

The Supreme Court of Pennsylvania has now accepted appeal (known as granting allocatur), to address, as the Court has stated:

“(1) Whether the Commonwealth Court erred as a matter of law in reversing the WCAB and reinstating the WCJ’s suspension of Petitioner’s disability benefits as of September 30, 2009, when the employer never issued a Notice of Ability to Return to Work?

To have a workers’ compensation case in Pennsylvania, one must suffer an injury while in the scope and course of employment. That phrase, “scope and course,” is not specifically stated in the Pennsylvania Workers’ Compensation Act, but is a creation of courts, over the years, interpreting the Act. We have dealt with these issues many times, often with an injury which occurs while commuting to or from work. But, what if the injury happens after someone is no longer even employed?

The Commonwealth Court of Pennsylvania addressed this issue recently in Marazas v. Workers’ Compensation Appeal Board (Vitas Healthcare Corporation). Here, the injured worker quit his job after a dispute with his manager regarding an assignment. The injured worker handed over his keys and phone, and the manager told the injured worker he had to remove his personal belongings from the employer’s truck. According to employer’s policy, the manager escorted Claimant to the truck. While in this process, the injured worker tripped over a pallet jack and fell, hurting his left ankle, left knee, and upper, middle and lower back.

Believing he was not employed at that point, the injured worker filed a civil suit against the employer for his injuries. The employer defended the civil suit by arguing, in formal court pleadings, that the injured worker was in the scope of employment at the time of his injury, and therefore, workers’ compensation was his exclusive remedy. Based on this pleading, the injured worker withdrew his civil action and filed a Claim Petition in the workers’ compensation system.

Several years ago, injured workers in PA were benefited by the decision of the Supreme Court of Pennsylvania in the case of Lewis v. Workers’ Compensation Appeal Board. This case held that a workers’ comp insurance carrier in PA had to prove there was a change of condition of the injured worker, after the insurance company had lost a Petition for Termination, before the insurance carrier could be successful on another Petition for Termination. This was designed to curb the malicious practice in the insurance industry of filing petitions one after the other, without any real basis.

This issue was recently addressed by the Commonwealth Court of Pennsylvania, but here it was a Petition for Modification which followed the Petition for Termination. In Simmons v. Workers’ Compensation Appeal Board (Powertrack International), the injured worker suffered a closed head injury resulting in post-concussion syndrome, in 2001. Two Petitions for Termination were denied by Workers’ Compensation Judges (WCJs) in the ensuing years.

Trying a different strategy, the workers’ comp insurance carrier filed a Petition for Modification, based on a Labor Market Survey (LMS). [We have discussed the LMS process previously, and relayed our dissatisfaction with using representative, hypothetical jobs to stop or reduce the very real money received by injured workers in PA]. This time the insurance company was successful, and the WCJ found the experts offered by the insurance carrier (medical and vocational) more credible than those offered by the injured worker. As a result, the WCJ granted the Petition for Modification, and ordered the workers’ compensation benefits modified, based on the highest paying job in the LMS. This was affirmed by the Workers’ Compensation Appeal Board (WCAB) on appeal.

As we have discussed in the past, Workers’ Compensation Judges (WCJs) in PA have the ultimate say on which witnesses are credible and which are not. Upon appeal, these determinations cannot be challenged. Instead, appellate courts in Pennsylvania can only review whether there has been an error of law, or whether the WCJ made a “reasoned decision.”

What constitutes a “reasoned decision” is difficult to put into an exact definition (I am reminded of the old definition of pornography as stated by Supreme Court Justice, Potter Stewart, “I know it when I see it”). Generally, it appears a “reasoned decision” is one which provides enough information for an appellate review. While most arguments challenging whether a WCJ’s decision is a “reasoned” one fail, some do succeed.

Recently, the Commonwealth Court of Pennsylvania issued a decision in one of these cases, Cucchi v. Workers’ Compensation Appeal Board (Robert Cucchi Painting, Inc.). Here, the injured worker suffered severe trauma, including lumbar, thoracic, and rib fractures, lung pneumothorax, and liver lacerations. After some period of time, the injured worker settled the wage loss (called the “indemnity”) aspect of the case, but left the case open for medical treatment. As so often happens, the workers’ comp insurance carrier then challenged future treatment by filing for Utilization Review.

We watched with great interest as the Pennsylvania Supreme Court reviewed the case of Cruz v. Workers’ Compensation Appeal Board (Kennett Square Specialties). This case is very important to those who practice, or are involved, in the Pennsylvania workers’ comp system.

For those who do not recall, this case involves an injured worker who refused to answer questions regarding his United States’ citizenship status, invoking his Fifth Amendment right against self-incrimination. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but then suspended benefits, based solely on a negative inference, from the injured worker’s refusal to answer the questions. The Workers’ Compensation Appeal Board (WCAB) reversed the suspension, saying that the negative inference, by itself, was insufficient to support a suspension of benefits. Upon appeal, the Commonwealth Court of Pennsylvania agreed, and affirmed the decision rendered by the WCAB.

The Supreme Court of Pennsylvania has now rendered its decision, affirming the opinion of the Commonwealth Court. Rejecting the argument that part of an injured worker’s burden of proof is to show eligibility to work in the United States, the Court found that citizenship status is instead a defense offered by the workers’ comp insurance carrier. In a Claim Petition, according to the Court, the burden faced by the injured worker is to simply prove two things: “(1) he or she was injured while in the course of employment, and (2) the injury resulted in a loss of earning power.” As such, the insurance carrier is the party bearing the burden of proof on whether the injured worker can legally work in the United States.

Utilization Review is the process through which either party, though usually the workers’ compensation insurance carrier, can challenge whether medical treatment is reasonable and necessary. We have addressed this topic on several occasions. When a Utilization Review Determination is received, the party who lost can appeal (by filing a Petition for Review of Utilization Review Determination), and then the matter is heard before a Workers’ Compensation Judge (WCJ).

What if, though, neither Claimant nor Claimant’s attorney are even aware of the Utilization Review Determination? Certainly the insurance carrier cannot use the Determination to not pay for treatment, despite not providing a copy, right? Apparently they can, says Commonwealth Court of Pennsylvania.

In Marek v. Workers’ Compensation Appeal Board (Logistics Express, Inc.), Claimant and Claimant’s attorney only became aware of the Utilization Review Determination when payment for medications was allegedly denied based on a Utilization Review Determination. Claimant’s attorney then even obtained records from the Bureau of Workers’ Compensation, and no Utilization Review Determination was on file. Having no other alternative, Claimant’s attorney filed a Petition for Penalties, for the non-payment of the medications.

We have talked before about the fact that a work injury in PA generally cannot take place during the commute to or from work to be compensable under the Pennsylvania Workers’ Compensation Act. One area where this issue is frequently tested is when an employee is injured in a parking lot. In this kind of case, one must prove that the injured worker is on the premises occupied or under the control of the employer (or upon which the employer’s business or affairs are being carried on), that he or she is required by

the nature of the employment to be present on the employer’s premises, and that he or she sustains an injury caused by the condition of the premises or by operation of the employer’s business or affairs thereon.

For example, the Commonwealth Court of Pennsylvania recently issued a decision in PPL v. Workers’ Compensation Appeal Board (Kloss). Here, the employer offered its employees cheaper parking at one of two parking lots, or offered a similar subsidy for using public transportation. The employer did not own either of the two parking lots, and neither parking lot was restricted to the use of PPL’s employees. The employees of PPL were offered these subsidies, but were not required to accept them, or park in any particular place. Note, however, that PPL did construct a skyway to walk from one of the parking garages to PPL’s building.