Articles Posted in Case Law Update

**Update – Decision of the Commonwealth Court of PA REVERSED by Supreme Court of Pennsylvania on July 20, 2011 – See blog entry of August 2, 2011**

When a worker gets hurt at work in PA, the Pennsylvania Workers’ Compensation Act requires that the employer be notified of the injury with 120 days. If the injury is one of repetitive, or cumulative, nature, such as carpal tunnel syndrome or hearing loss, the 120-day period does not begin until the date the condition, and its relation to work, is known (called “the discovery rule”). This notice does not need to contain the exact diagnosis of the work injury, but merely “a reasonably precise description of the injury.”

In Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), decided by the Commonwealth Court of Pennsylvania on June 4, 2009, the Court addressed what “sufficient” notice of an injury must contain.

In PA, when a workers’ compensation insurance carrier wants to challenge whether medical treatment is reasonable or necessary, the insurance carrier can request Utilization Review (UR). In such a case, the PA Bureau of Workers’ Compensation assigns the UR Request to a Utilization Review Organization (URO). The URO then obtains records from the provider under review, and a personal statement from the injured worker if he or she wishes, and a Utilization Review Determination is issued. This Determination can then be appealed by either party by filing a Petition to Review Utilization Review Determination.

However, if the healthcare provider under review fails to submit records, the regulations to the Pennsylvania Workers’ Compensation Act require the URO simply find treatment unreasonable and/or unnecessary, because records were not submitted. In this situation, no report is prepared by the URO, and no findings on the merits are made. Importantly, this type of Determination cannot be appealed under the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005.

Recently, the Commonwealth Court of Pennsylvania has made things even worse for injured workers, by extending County of Allegheny. The case of Sexton v. Workers’ Compensation Appeal Board (WCAB) was decided by the Court on May 22, 2009. In Sexton, the provider submitted records to the URO, but forgot to submit a verification with the records. The URO returned the records to the provider, so the provider could resubmit the records with the required verification. Unfortunately, the provider never resubmitted the records or the verification.

When a work injury is denied by the workers’ compensation insurance carrier in PA, the injured worker must file a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation. The Claim Petition is then litigated before a Workers’ Compensation Judge (WCJ). To win a Claim Petition, usually the injured worker needs the WCJ to find both the injured worker, and his or her doctor, credible.

The testimony of the medical expert must be “unequivocal,” that the injured worker suffered a work-related injury, and has been disabled from work as a result of this injury. “Unequivocal” does not require 100% certainty (since nothing in life is 100% certain), but simply requires the doctor to believe that is the case.

A recent decision by the Commonwealth Court of Pennsylvania, Moyer v. Workers’ Compensation Appeal Board (WCAB), addressed this issue. The WCJ in this case found Claimant and his doctor credible and granted the Claim Petition. However, the WCAB reversed the WCJ, finding the testimony of Claimant’s doctor to be equivocal.

Typically, under the Pennsylvania Workers’ Compensation Act, the benefits of an injured worker are reduced based on any earnings the injured worker has after his or her injury. Specifically, the injured worker receives two-thirds of the difference between the pre-injury earnings and the post-injury earnings (up to a statutory maximum).

In a somewhat troubling decision issued by the Commonwealth Court of PA, Alessandro v. Workers’ Compensation Appeal Board, an injured workers’ benefits were ordered to be suspended, despite the workers’ comp insurance carrier having no evidence that post-injury earnings equaled pre-injury earnings. The Court, noting that the Workers’ Compensation Judge found the injured worker not credible, believed the burden to show earnings (and subsequent wage loss) rests with the injured worker, not the workers’ comp insurance carrier.

As an attorney who represents injured workers in Pennsylvania, I find this decision problematic. Mr. Alessandro testified that he worked some, but had a large wage loss. Since it appears he was paid in cash (meaning there are no written wage records), and Mr. Alessandro was found not credible, as a practical matter, it seems almost impossible for Mr. Alessandro to prove he has a wage loss. How can one prove an absence of earnings?

Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance company in PA is entitled to an offset when an injured worker receives Social Security Retirement Benefits (SSR). This is one of the provisions in the Act that seems most unfair to us attorneys who represent injured workers in PA.

The Supreme Court of Utah recently declared a similar provision in that State’s workers’ compensation laws to be unconstitutional, as it discriminated against injured workers on the basis of their age. Only injured workers old enough to qualify for SSR would have their workers’ comp benefits reduced.

Since workers’ compensation laws vary widely from State to State, there is no direct impact of this decision on the laws in Pennsylvania. However, this law does give us hope that a similar result can eventually be accomplished in the Supreme Court of Pennsylvania.

As discussed in previous blog entries, the case of Diehl v. Workers’ Compensation Appeal Board is of great importance in determining whether it matters when a workers’ compensation insurance carrier in Pennsylvania requests an Impairment Rating Evaluation (IRE) within 60 days of the expiration of 104 weeks of total disability.

In a decision rendered on April 28, 2008, the Commonwealth Court of Pennsylvania held that a PA workers’ compensation insurance carrier must show job availability if the IRE request is not made within that 60 day period. This decision was then vacated by the Court, to be addressed again by the entire Court (rather than a panel, as this decision was). Finally, on April 22, 2009, the Court issued a final decision in this matter, achieving a different result.

As feared by attorneys who represent injured workers in PA, the Court held that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within that 60 day period. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

One of the major changes in the Pennsylvania Workers’ Compensation Act, which was enacted in the 1996 amendments, is the creation of the Impairment Rating Evaluation (IRE). Under this concept, once an injured worker receives 104 weeks of temporary total disability benefits, the workers’ comp insurance company has the right to send the injured worker for an IRE. If the IRE results in a whole body impairment rating of less than 50% (which covers more than 98% of injured workers; this is an impossibly high standard), the status of workers’ compensation benefits can be changed from total to partial. This change in the status of benefits does not effect the rate of the weekly compensation, but how long such benefits can be received by an inured worker.

In PA, an injured worker can only receive a maximum of 500 weeks of partial disability benefits (there is no limit to the receipt of total disability benefits). Therefore, once the status of benefits is changed from total to partial, the receipt of benefits may be capped at 500 weeks.

If the IRE is requested within 60 days of the expiration of 104 weeks of total disability benefits, the change in status is automatic (the PA workers’ comp insurance carrier only has to file a Notice of Change of Status). On the other hand, if the request is not made within this window, the PA workers’ comp insurance carrier must file, and litigate, a Petition for Modification to have the status changed. In this situation, attorneys representing injured workers in PA have wondered whether the change in status takes effect on the date of the IRE or the date a Workers’ Compensation Judge (WCJ) decides the Modification Petition.

Under the Pennsylvania Workers’ Compensation Act, an insurance carrier can stop paying benefits to an injured worker who is “incarcerated after a conviction.” The Commonwealth Court of Pennsylvania recently emphasized that there must be a conviction before workers’ compensation benefits can be suspended.

In Rogele Inc.v. Workers’ Compensation Appeal Board (Mattson), which the Court decided on April 2, 2009, the Workers’ Compensation Judge (WCJ) assessed penalties against the workers’ comp insurance carrier, after the carrier stopped paying benefits to the injured worker. In that case, the injured worker was in jail, in the process of pleading guilty to a felony which was to entail significant jail time. At the time benefits were stopped, however, there had been no conviction.

The Court affirmed the decision of the WCJ, finding that in PA, as anywhere in the United States, one is innocent until proven guilty. Whether one later pleads guilty is irrelevant. The plain language in the Pennsylvania Workers’ Compensation Act requires the claimant be “incarcerated after a conviction.”

In Liveringhouse v. Workers’ Compensation Appeal Board, decided on March 19, 2009, the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which denied claimant’s Petition to Review. In this case, the injured worker filed her Petition to Review to add carpal tunnel syndrome to her accepted PA work injury.

The WCJ denied that Claimant suffered from carpal tunnel syndrome at all. Since all three medical experts testified (two for the workers’ compensation insurance carrier) that Claimant did have carpal tunnel syndrome, the Court found that the decision of the WCJ was defective. “It is well settled that a WCJ is not competent to make independent medical determinations.” The WCJ also erroneously stated that the injured worker never testified that she had to twist using her pliers, when in fact the record showed such evidence. Still, the two doctors who testified for the workers’ compensation insurance carrier found that the carpal tunnel syndrome was not work-related.

One of those doctors based his opinion primarily on his belief that carpal tunnel syndrome “could be related to job duties only when the jobs involve the use of significant vibratory tools over long periods of time.” In what would normally seem to be a determination of credibility, made solely by a WCJ, the Court found this opinion completely defective. Specifically, the Court stated, “Courts consistently have regarded carpal tunnel syndrome as a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings, and they have never limited benefits for carpal tunnel to cases involving use of ‘significant vibratory tools’ over long periods.”

Ordinarily in a Pennsylvania workers’ compensation case, litigation costs incurred by an injured worker (or his or her lawyer) are reimbursed by the PA workers’ comp insurance carrier if the injured worker was successful “in whole or in part.” This is a very important concept; if claimant attorneys cannot get their litigation costs reimbursed, some meritorious workers’ comp cases will be declined, as the attorneys will not be able to afford litigating them.

A recent decision by the Commonwealth Court of Pennsylvania, Reyes v. Workers’ Compensation Appeal Board (WCAB), limits the injured worker’s attorney in recovering costs, despite being successful on a Claim Petition, at least in part.

In Reyes, the claimant was injured in a work-related motor vehicle accident. A Notice of Denial (NCD) was issued, which acknowledged the injury, but denied disability. The injured worker filed a Claim Petition. The Workers’ Compensation Judge (WCJ) granted the Claim Petition for a closed period of time, finding that the work injury fully resolved on the date on the Independent Medical Examination (IME). The WCJ denied an award of wage loss benefits, finding that claimant failed to prove he was ever disabled from work. Finally, the WCJ denied an award of litigation costs, saying that the claimant was not successful at all.