Articles Posted in Case Law Update

**Update – This opinion was vacated (withdrawn) by the Commonwealth Court of Pennsylvania on February 24, 2011. The en banc (all of the Judges) Court will review the case and issue a new decision**

Under the Pennsylvania Workers’ Compensation Act, an employer or, more likely, workers’ compensation insurance carrier, has 21 days to accept or deny a workers’ comp claim in PA. An acceptance can be accomplished by issuing a Notice of Compensation Payable (NCP), Notice of Temporary Compensation Payable (TNCP) or an Agreement for Compensation. A rejection of a claim requires that a Notice of Denial (NCD) be filed (there are, of course, nuances and exceptions, but this is generally the case).

The Supreme Court of Pennsylvania held back in 1983 (Beissel v. Workers’ Compensation Appeal Board (John Wanamaker, Inc.)) that, to obtain a termination of workers’ comp benefits, the workers’ compensation insurance carrier must prove there was a change of condition after the NCP was issued. But, what if an injured worker recovers before an NCP can be issued?

In PA workers’ comp, when an injured worker returns to employment, there is a change in the workers’ compensation benefits he or she receives. If the injured worker is again earning the wages he or she earned before the work injury, then workers’ comp benefits are stopped completely (“suspended”). If the injured worker is earning less than before the injury, as a result of the injury, then workers’ comp benefits may only be “modified” to a lower rate.

Often the key to whether modified workers’ compensation benefits continue, in the case of an ongoing loss in wages, is whether the ongoing loss in wages is actually a result of the injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Trevdan Building Supply v. Workers’ Compensation Appeal Board (Pope). In this case, the employee ruptured his biceps tendon while unloading building material. Eventually, the injured worker was released to resume his regular duty employment, without any specific restriction, though his doctor noted that he may require some assistance with heavy lifting (which was also the case, on occasion, prior to the injury).

As noted in the previous blog posting, the PA Workers’ Compensation Act mandates that an Impairment Rating Evaluation (IRE) must be performed using the “most recent edition” of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The most recent edition is the Sixth Edition, published around January 2008.

The Pennsylvania Bureau of Workers’ Compensation, in early 2008, stated that it would accept an IRE performed under the Fifth or Sixth Editions until September 1, 2008, to give IRE physicians a chance to become certified under the new edition.

Whether this pronouncement by the PA Bureau of Workers’ Compensation was consistent with the Pennsylvania Workers’ Compensation Act was addressed by the Commonwealth Court of Pennsylvania in Stanish v. Workers Compensation Appeal Board (James J. Anderson Construction Co.).

It is funny how, after relatively few PA workers’ compensation hearing loss cases were decided by the Commonwealth Court of Pennsylvania, now, all of a sudden, it seems like every case decided by the Court is on this issue.

In our previous blog post, we mentioned that an injured worker in PA must have at least a 10% “binaural” (both ears) hearing impairment to receive any workers’ compensation benefits for a work-related loss of hearing. Since the statute clearly states that the loss of hearing is to be evaluated by looking at the effect on both ears, what happens if the loss is just in one ear? Recently, the Court addressed this very issue in Duncannon Borough v. Workers’ Compensation Appeal Board (Bruno).

Here, the injured worker, a police officer, was in a motor vehicle accident while in the scope and course of his employment. As a result of this accident, in addition to other injuries, he suffered a 31.88% hearing impairment to his right ear. Calculated “binaurally,” the hearing impairment was below the 10% threshold. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the injury to the single ear did not need to be calculated binaurally. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

When either party to a PA workers’ compensation case wants an opinion on whether medical treatment is reasonable and necessary (and this is usually requested by the workers’ comp insurance carrier, rather than the injured worker), the procedure is to file a Request for Utilization Review (UR).

The Pennsylvania Bureau of Workers’ Compensation then assigns a Utilization Review Organization (URO) randomly from a list. Following submission of records, and frequently a personal statement from the injured worker, the URO issues a Utilization Review Determination. The party against whom the URO finds has the right to appeal, by filing a Petition for Review of Utilization Review Determination.

This Petition will be assigned to a Workers’ Compensation Judge (WCJ). The litigation of a Petition for Review of Utilization Review Determination is called a “de novo” proceeding. That translates to, roughly, “from the start.” In this situation, it means the parties are not limited to the evidence before the URO; instead, the parties can submit whatever evidence to the WCJ that they desire.

The impact of pensions and “retirement” on PA workers’ compensation cases seems to be a frequent issue visited by the Commonwealth Court of Pennsylvania. Just last month, we told you about the decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) [Where the Court found that a “disability” pension does not create a presumption that an injured worker has voluntarily left the work force, while a “retirement” pension does].

Now, the Commonwealth Court of Pennsylvania has decided the Day v. Workers’ Compensation Appeal Board (City of Pittsburgh) case and further complicated the matter. A basic reading of the case could be consistent with the decision in the Robinson case. In Day, the Court found the injured worker took a “regular” pension from the employer, and applied for (and received) Social Security benefits. Further, the Court found that the injured worker testified he was capable of some kind of work, but he was not looking for work. In this case, unlike in Robinson, the Court found the injured worker did retire (and, as such, his workers’ compensation benefits should be suspended).

The problem is what does not appear in the case (and we only know this from the workers’ compensation attorney who litigated the case before the Commonwealth Court of Pennsylvania). The Social Security “benefits” being received by the injured worker were DISABILITY benefits, not RETIREMENT benefits, as the Court made it sound. Also, the pension at issue was not a regular (old age) pension, but a DISABILITY pension. Based on the true facts of the case (which, again, do not appear in the written opinion), one would think the same result should have been reached as in Robinson, denying the Petition for Suspension.

Back in October, 2009, we noted that the Supreme Court of Pennsylvania accepted the appeal (or, as formally said, “accepted allocatur”) in the matter of Diehl v. Workers’ Compensation Appeal Board (I.A. Construction).

This is the case where the Commonwealth Court of Pennsylvania first found that a PA workers’ compensation insurance carrier had to show job availability if a change of disability status is requested (changing from total disability to partial) as a result of an Impairment Rating Evaluation (IRE), if the IRE is not requested within 60 days of the expiration of 104 weeks of total disability benefits. An “en banc” (all of the Judges on the Court, rather than just the usual panel of three) decision by the Commonwealth Court reversed the Court’s initial decision, and found that no job availability need be shown in this situation.

The Supreme Court of PA recently affirmed the en banc decision of the Commonwealth Court of Pennsylvania. According to the PA Supreme Court, the crucial element is that “impairment” and “disability” are two very different things. Since the PA Workers’ Compensation Act refers only to the “impairment rating” (in this Section of the Act), and does not mention disability, the Court concluded that the Legislature did not intend to make the earning power of an injured worker an issue in IRE cases; instead, the issue in an IRE case is simply the injured worker’s degree of impairment. As such, there is no need for the PA workers’ compensation insurance company to present evidence on job availability to get a modification of workers’ comp benefits as a result of an IRE.

**Update – On April 4, 2011, The Supreme Court of Pennsylvania accepted appeal in the Robinson case. Therefore, what we have written here about the status of the law in Pennsylvania may change. Stay tuned for more details!**

In this blog, we have addressed the consequences of “retirement,” as it affects PA workers’ compensation cases, on several occasions. As far as we could tell, taking a pension from an employer led to a finding that an injured worker had “retired,” triggering the draconian consequences of placing the Pennsylvania workers’ comp benefits in jeopardy. Specifically, we addressed the Hensal case, which seemed to suggest the act of simply taking a pension created a presumption that an injured worker had “retired,” or, in PA workers’ comp language, had voluntarily withdrawn from the labor market.

Recently, however, The Commonwealth Court of Pennsylvania issued a decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). While this decision may have made a complicated issue even more convoluted, it also sprinkled in a desperately needed dose of reality and compassion for the injured worker. In essence, this decision guided us on how to determine when an injured worker is “retired.”