Articles Posted in Case Law Update

When a workers’ compensation insurance carrier in Pennsylvania does not agree with the medical treatment being received by an injured worker, there are steps the carrier can take. The most common is “Utilization Review,” which challenges the reasonableness and necessity of medical treatment. The carrier can also file a Petition to Review Medical Treatment, if the treatment is believed to be unrelated to the work injury. While the workers’ comp insurance company has the further option of simply ignoring the medical bills, this can lead to an undesirable result for the insurance carrier.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of CVA, Inc. and State Workers’ Insurance Fund v. Workers’ Compensation Appeal Board (Riley), where the insurance carrier took that last option and just ignored the bills it did not like. Thankfully for injured workers in PA, the decision did not go well for the insurance carrier.

This case involved a worker who injured his left knee, and received therapeutic magnetic resonance (TMR) treatment. Bills were sent to the workers’ comp insurance adjuster, who denied the bills, saying either that the documentation did not support the charges, the documentation did not support the billing code, or the treatment was unrelated to the work injury. The injured worker then filed a Petition for Penalties.

Once again, we are reporting on the Pennsylvania Court System addressing the issue of retirement, and voluntary withdrawal from the labor market, in the context of a PA workers’ compensation case.

In Department of Public Welfare/Norristown State Hospital v.Workers’ Compensation Appeal Board (Roberts), the Commonwealth Court of Pennsylvania reversed the decision of the Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ordered that the injured worker’s benefits be suspended because he had retired and voluntarily withdrew from the labor market.

The claimant in this case hurt his neck and back. After his injury, the injured worker took a retirement pension, which, as previously discussed here, may or may not be indicative of retirement. The injured worker also filed for what the Court called a “Social Security Disability Pension,” though I am not sure what that means (Social Security Retirement, akin to pension, is, of course, different than Social Security Disability). In his testimony before the WCJ, the injured worker said he did not feel physically capable of working and has not looked for work. The doctor testifying for the insurance carrier (the Independent Medical Examiner, IME, who typically is somewhat less than independent) felt the injured worker was capable of sedentary duty work.

The calculation of the Average Weekly Wage (AWW) under the Pennsylvania Workers’ Compensation Act has been explained previously on this blog. Generally, assuming the injured worker had been working for his or her employer for more than a year before the work injury, the AWW is calculated by taking the average earnings of the injured worker for the highest three quarters in the year immediately before the injury.

Occasionally, we have a question regarding whether the injured worker has been “employed” for more than a year before the injury, perhaps due to layoffs. The Supreme Court of Pennsylvania Courts told us in 2005, in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), that despite periods of layoff, the term of “employment” continued. In that matter, Mr. Reifsnyder was considered to have zero earnings for the weeks he was laid off, for the purposes of calculating his AWW.

Also in 2005, the Supreme Court of Pennsylvania told us, in Colpetzer v. Workers’ Compensation Appeal Board (Standard Steel), that when an injured worker is disabled by a work injury in the one year period prior to another work injury, the AWW for the subsequent injury should include the AWW from the previous injury for any periods the worker was disabled by the previous injury.

The most damaging petition a workers’ compensation insurance carrier can file against an injured worker in Pennsylvania is a Petition to Terminate. If granted, a Petition to Terminate ends the injured worker’s rights to all PA workers’ compensation benefits for his or her injury, whether wage loss replacement (known as “indemnity”) or medical.

Because the consequences of a Petition to Terminate are so great, the standard for a Workers’ Compensation Judge (WCJ) to grant such a petition is supposed to be high. Specifically, the workers’ comp insurance company must prove that the work-related injury has fully resolved.

Though a doctor need not utter any magic words to show an injured worker has fully recovered from his or her injury, the opinion must be clear and unequivocal. Merely being released back to unrestricted work, by itself, is not proof the work injury has fully resolved (this does not even entitle the insurance carrier to a Suspension, let alone a Termination).

Impairment Rating Evaluations (IREs), under the Pennsylvania Workers’ Compensation Act, have been discussed in this blog before. Basically, the IRE process enables the workers’ comp insurance carrier to switch an injured workers’ disability status to partial if there is a whole body impairment of less than 50% (a ridiculously high standard). [This does not impact the amount of the benefits being received or the access the medical treatment for the work injury].

Recently, the Commonwealth Court of Pennsylvania faced the question of whether an IRE determination is valid if it provides for no degree of impairment for a diagnosis the injured worker still has, but is at that time asymptomatic (and, whether the IRE is then later void, because that very same diagnosis is again causing symptoms).

In this decision, Westmoreland Regional Hospital v. Workers’ Compensation Appeal Board (Pickford), the injured worker was left out in the cold by the Court. The Court concluded that the IRE only has to consider the injured worker’s condition at the moment of the IRE. Since the injured worker had no objective evidence of her brachial plexopathy or Complex Regional Pain Syndrome (CRPS, formerly known as Reflex Sympathetic Dystrophy or RSD) at the time of the IRE, zero impairment for those conditions was correct. The Court found largely irrelevant that within several months of the IRE, the conditions were again revealing objective evidence of impairment.

Under the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier is responsible for all reasonable and necessary medical treatment which is related to the work injury. In very rare circumstances, the cost of wage loss (“indemnity”) benefits and medical expenses can be allocated between more than one insurance carrier. Typically, this would be seen when the injured worker is disabled by more than a single injury, involving multiple insurance companies.

Hearing loss cases, however, are treated differently under the PA Workers’ Compensation Act. When someone losses their hearing due to excessive noise in the workplace, the Act specifically states that, “An employer shall be liable only for the hearing impairment caused by such employer.” (Section 306(c)(8)(iv)).

Recently, the Commonwealth Court of Pennsylvania decided the matter of James McClure, Sr. v. Workers’ Compensation Appeal Board (Cerro Fabricated Products). Here, the injured worker had a documented hearing loss of 18.12% in 1997, while employed by a different employer. He became employed by Cerro in 2000. No Claim Petition was filed until 2004, when he had a hearing loss of 24.69%. The prior employer was dismissed, since more than three years passed since the last date Mr. McClure was exposed to excessive noise in the employ of the previous employer (Some injuries have a “discovery rule,” where the “statute of limitations” can be extended, where the injured worker has no reason to know or suspect the injury; there is no such rule in hearing loss under the Pennsylvania Workers’ Compensation Act).

As followers of our blog are aware, we filed a workers’ compensation case on behalf of a PA liquor store clerk who was the victim of an armed robbery (and suffered post-traumatic stress disorder (PTSD) as a result). We were successful before the Workers’ Compensation Judge (WCJ), and the matter is currently pending before the Workers’ Compensation Appeal Board (WCAB). Though we, of course, follow all PA court decisions in the workers’ comp area, we have a particular interest in those dealing with this issue.

Yesterday, the Commonwealth Court of Pennsylvania issued a decision in the matter of PA Liquor Control Board v. Workers’ Compensation Appeal Board (Kochanowicz). In what can only be described as a staggeringly repulsive decision, the Court reversed both the WCJ and WCAB, who both found that the claimant in that case suffered PTSD as a result of an armed robbery, and that the armed robbery was an “abnormal working condition.” Both the injured worker’s treating doctor, and the Independent Medical Examiner (IME)[Who often is anything but “independent”], found that the injured worker suffered PTSD as a result of the armed robbery.

In its infinite wisdom, the Court found that armed robberies at liquor stores in Pennsylvania are common; perhaps, if we are understanding their logic correctly, an armed robbery at a liquor store these days is akin to taking out the trash. Just another part of a clerk’s daily routine.

Often, injured workers in Pennsylvania have their claims denied by the workers’ comp insurance carrier because their disability is said to be related to a “degenerative” condition, rather than a traumatic one. In fact, almost inevitably, if the word “degenerative” appears in the medical records, the workers’ compensation claim will be denied by the workers’ comp insurance company, forcing the injured worker to litigate his or her claim.

Yet, these degenerative conditions are ones that allowed the injured worker to do his or her job, frequently even without difficulty, until the work injury. The fact that the work injury makes the degenerative changes disabling is what truly matters. In that situation, the injured worker is entitled to PA workers’ compensation benefits.

Recently, the Commonwealth Court of Pennsylvania confirmed this premise in Green v. Workers’ Compensation Appeal Board (US Airways). The case began when Ms. Green was injured at work in 1993. A Notice of Compensation Payable (NCP) was issued, accepting the injury as a meniscal tear in the right knee. The description of injury was later amended to include left tibial plateau cartilage damage and lateral femoral condyle defect. Workers’ compensation benefits were suspended in 2003.

Under the Pennsylvania Workers’ Compensation Act, Section 440(a), “where a claimant succeeds in a litigated case reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest.” The Act, as you can see, clearly states that this is to be the rule, not the exception. The employer/insurance carrier has the burden to prove that there was a reasonable contest. One would read that language and believe unreasonable contest counsel fees are often awarded. One would be dead wrong.

The reason why unreasonable contest counsel fees are rarely found these days is reflected in a recent decision by the Commonwealth Court of Pennsylvania, Grady v. Workers’ Compensation Appeal Board (Lutz t/a Top of the Line Roofing). Here, a roofer suffered a T12 burst fracture resulting in paraplegia of both lower extremities and depression when he fell from a rooftop.

Ultimately, a Claim Petition was filed against the Employer and the Uninsured Employers’ Guaranty Fund (UEGF). Initially, the parties asked the Workers’ Compensation Judge (WCJ) to “bifurcate” the case, to decide whether the injured worker was actually an employee (as opposed to an independent contractor). This lets the parties get past a threshold issue, before litigating the remainder of a case.

Once workers’ compensation benefits are suspended in Pennsylvania, for example when an injured worker goes back some type of gainful employment, the general rule is that workers’ comp benefits can be reinstated by simply proving his or her earning power is again adversely affected by the injury, and that the new disability is related to the original injury. As a general rule, the injured worker need not demonstrate that there has been a change in his or her condition.

This gets a bit more complicated when there is another condition impacting the employability of an injured worker. For instance, take the matter of Upper Darby Township v. Workers’ Compensation Appeal Board (Nicastro), decided by the Commonwealth Court of PA. Here, the claimant injured his low back at work in 2002 dumping a can into the garbage truck. A Notice of Temporary Compensation Payable (TNCP) was issued, accepting a low back strain. The TNCP subsequently converted to a regular Notice of Compensation Payable (NCP).

The claimant returned to his regular duties in March, 2004, and workers’ comp benefits were suspended. On June 8, 2004, claimant again injured his low back lifting a trash can. A Petition was filed, but before there could be a decision by a Workers’ Compensation Judge (WCJ), the parties resolved the case by Stipulation. Specifically, in the Stipulation the parties agreed that claimant was disabled by the work injury from June 8, 2004 until October 7, 2004, that claimant was able to go back to his regular job as of October 7, 2004 and that claimant left the employ of the company in December, 2004, because of “injuries unrelated to his back.”