Articles Posted in Case Law Update

In litigating a workers’ compensation case in Pennsylvania, we fight about many aspects of a case.  Certainly, we have had disputes over when an injured worker was actually “disabled” from his or her job. As highlighted in a recent decision by the Commonwealth Court of PA, though, sometimes the exact date on which disability begins can have great consequence.

In Valley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), the injured worker hurt his back while performing his job, and was taken to the hospital by ambulance, on Friday, March 27, 2015.  The employer paid him for the day of the injury, on the paystub calling it “COMP TM.”

On April 13, 2015, the workers’ compensation insurance carrier filed a Notice of Temporary Compensation Payable (NTCP).  As we have previously discussed in our blog, this document allows an insurance carrier to begin to pay workers’ compensation benefits while still investigating a claim.  The NTCP is valid for a maximum of 90 days (if it is not revoked within those 90 days, it converts into a full Notice of Compensation Payable (NCP), which cannot be revoked).  If the NTCP is revoked within those 90 days, the claim can be denied in full.

When the Commonwealth Court of Pennsylvania decides a case in the PA workers’ compensation arena, we often get some insight into an aspect of the law, or an interpretation of a section of the Pennsylvania Workers’ Compensation Act (Act).  Rarely do we see a case address two areas of significance.  So, when the Commonwealth Court issued a decision recently in the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.)  case, we were very excited.  We get to talk about preexisting conditions as well as calculation of the Average Weekly Wage.

Let us start first with the issue of preexisting conditions.  There is no doubt that you are entitled to workers’ compensation benefits in PA if your work duties, or work injury, aggravate a preexisting condition, whether that underlying condition is work-related or not.  We see this often with asthma, allergic reactions, arthritis and degenerative disc disease in the neck or back.  Indeed, this is such a basic concept, and comes up so often, that it is covered in the Medical FAQ section of our website.

Where things get messy is when the workers’ compensation benefits will be terminated.  As described in a previous blog post, generally speaking, the Courts will say benefits stop when an injured worker returns back to baseline with the underlying preexisting condition (even if that baseline leaves the injured worker advised not to return to his or her regular job, due to a fear of another aggravation).  The exception to the rule is when the underlying condition is also work-related, as in the previous blog about the Little case.  In that situation, workers’ comp benefits continue, since it is the work injury (not a non-work-related underlying condition) which prevents a return to the regular employment.

A couple of months ago, we talked about the Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) decision by the Commonwealth Court of Pennsylvania.  This was the first time the Court addressed the PA Supreme Court decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), which struck the entire Impairment Rating Evaluation (IRE) process from the Pennsylvania Workers’ Compensation Act (Act).

As a brief refresher, the IRE provision of the Act allowed a workers’ compensation insurance carrier to have an injured worker undergo an evaluation, after the injured worker received total disability benefits for two years.  This evaluation, known as an IRE, would change the status of benefits to “partial” from “total” if the injured worker was less than 50% whole-body impaired by the work injury (note that 99.9% of injured workers are less than 50% whole-body impaired; that is a ridiculously high standard).  While this would not impact the amount of benefits an injured worker received, it would start the clock ticking on the 500 week maximum entitlement.

The decision in Protz struck the entire IRE provision from the Act, finding it unconstitutional.  This left attorneys who represent injured workers in PA needing answers to how this would impact the many injured workers already now receiving “partial” disability benefits due to an IRE.

When an injured worker in PA settles a personal injury case against a third party (typically from a work-related car accident, a products liability case or similar), the workers’ compensation insurance carrier has its hand out to get repaid for the wage loss and medical benefits provided to the injured worker.  For past wage loss and medical benefits, that remains the law.  For future medical benefits, however, things have changed dramatically.

Recently, the Supreme Court of Pennsylvania issued a decision in Whitmoyer v. Workers Compensation Appeal Board (Mountain Country Meats).  The Court found that while a workers’ compensation insurance carrier is entitled to a credit against future workers’ compensation wage loss benefits (when a third party settlement is more than the insurance carrier has already paid), the insurance company is NOT entitled to a credit against future medical benefits.  This represents a large change in practice.

When a third party case is settled in the presence of a workers’ comp case in PA, there is a specific form one uses to calculate both the lien (how much the workers’ compensation insurance carrier is getting back for money they have already paid) and the “balance of recovery” (dealing with how the money above the lien amount is treated for future payments).  The balance of recovery is used to calculate the “reimbursement rate” for future payments.  Instead of having to pay the entire amount due for future obligations, the workers’ comp insurer would only have to pay that amount times the reimbursement rate, typically less than half.  This form is called a “Third Party Settlement Agreement” (TPSA).

Facial disfigurement is the only aspect of the Pennsylvania Workers’ Compensation Act under which a Workers’ Compensation Judge (WCJ) has the discretion to award anywhere from zero to 275 weeks of workers’ compensation benefits.  Since such injuries can range from barely noticeable to tremendously disfiguring, these cases vary widely in the amounts awarded.  Note that the scarring can be traumatic, or from a work-related surgery.  After a WCJ views a scar, and renders a decision, either side can appeal the decision to the Workers’ Compensation Appeal Board (WCAB).

What the WCAB can do with this decision was recently addressed by the Commonwealth Court of Pennsylvania in Keister Miller Investments LLC v. Workers’ Compensation Appeal Board (Hoch).  Here, the injured worker (Claimant) was involved in a work-related motor vehicle accident wherein he suffered a broken nose and a laceration to the right side of his head.

A Claim Petition was filed, seeking compensation for the facial scarring.  After viewing the scar, and describing it for the record, the WCJ granted the Claim petition, finding, as required, that the “work-related injury resulted in a serious and permanent disfigurement of Claimant’s face, which is of such a character as to produce an unsightly appearance and not usually incident to the employment.”  In so doing, the WCJ awarded 40 weeks of benefits.

Since the Supreme Court of Pennsylvania set the PA workers’ compensation system abuzz in the Protz case by striking the entire Impairment Rating Evaluation (IRE) section from the Pennsylvania Workers’ Compensation Act (Act), we have waited to see some appellate decision interpreting Protz.  The Commonwealth Court of PA has now weighed in on the issue.

In Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), the Court reversed the decision of the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB), and found that the injured worker was potentially able to reinstate her total disability benefits after an IRE.  The Court remanded for the injured worker to prove she remains totally disabled.

As attorneys for injured workers in PA, we were thrilled with the primary decision rendered by the Court – that being an injured worker whose 500 week maximum of partial disability benefits (which was obtained by IRE) has ended can still seek reinstatement to total disability benefits.  In so finding, the Court rejected arguments by the workers’ compensation insurance carrier that the injured worker could not pursue reinstatement because she had failed to challenge the status of the IRE provisions of the Act initially.

“Notice” of a Pennsylvania work injury is an issue which we have previously addressed in this blog.  Essentially, an injury must be reported to the employer within 21 days to have benefits date back to the first day, and within 120 days of the injury to have an entitlement to PA workers’ compensation benefits at all.  Often, the disputed aspect of a case is whether the notice provided to an employer is sufficient under the Pennsylvania Workers’ Compensation Act.

Importantly, proper notice does not mean that an employee must give a report with specifics or certainty.  What matters is whether the notice provided makes the employer aware that there is a possibility of a work-related injury.  Recently, the Commonwealth Court of Pennsylvania dealt with this very issue in City of Pittsburgh and UPMC Benefit Management Services, Inc. v. Workers’ Compensation Appeal Board (Flaherty).

Here, the injured worker (Claimant) was a firefighter for 16 years.  She was diagnosed with breast cancer in 2004, and was no longer able to continue performing the required duties of the position.  After Act 46 was enacted in 2011, creating a presumption dealing with cancer and firefighters, Claimant received a letter from her union describing the benefit to the new law.  Shortly thereafter, she filed a Claim Petition giving her employer notice that her condition may have been work-related.  She did not receive an opinion from her doctor, that her condition was, in fact, related to work, until a few months later.

Whether an employee hurt during the commute to work is covered by the Pennsylvania Workers’ Compensation Act (Act) is always a difficult analysis, and one we often encounter here.  Each case depends on the specific facts involved. While most employees (those who are “stationary” employees) are not covered for the commute to work, one reaches a point in the commute when the employee is no longer still commuting, but has, for the purposes of the law, arrived at work.  “Parking lot” cases are frequently an aspect of this situation.

Recently, the Commonwealth Court of Pennsylvania made a decision in the matter of  US Airways, Inc. v. Workers’ Compensation Appeal Board (Bockelman).  This was one of those “parking lot” cases.  Here, the employee (Claimant) labored for US Airways as a Philadelphia-based flight attendant.  Employees were not required to drive to work, but, if they did so, there were two designated employee parking lots.  These lots were owned, operated, and maintained by the City of Philadelphia/Division of Aviation (DOA), for the use of all airport employees, not just those of US Airways.  An employee identification badge was required to park in these lots.  A shuttle bus, operated by DOA (and not US Airways) then took the employee from the lots to the airport terminal.  Claimant hurt her left foot when she slipped while riding this shuttle bus after parking her car.

As could be expected, the Employer denied that Claimant was entitled to workers’ compensation benefits, since her injury was sustained while on the commute to work.   A Claim Petition was filed.  After considering the evidence, the Workers’ Compensation Judge (WCJ) found that Claimant was within the scope and course of her employment at the time of the injury, and granted the Claim Petition.  This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Several years ago, we were excited to tell everyone about the Supreme Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap).  It was this case that made clear workers’ compensation insurance carriers in PA could not simply use a classified “help wanted” ad to reduce every injured worker’s benefits.

If a workers’ compensation insurance carrier in Pennsylvania wants to reduce the benefits of an injured worker, said the Court, the jobs shown must not only be open at the time they are found, the potential jobs in a Labor Market Survey (LMS) or Earning Power Assessment (EPA) should “remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.”  The reasoning behind this, of course, is that an LMS/EPA is not just a tool to cut the benefits of injured workers; it should be a device to assist an injured worker back to gainful employment.

The Commonwealth Court of Pennsylvania recently had to address exactly what a workers’ compensation insurance carrier needs to prove in this regard.  In Smith v. Workers’ Compensation Appeal Board (Supervalu Holdings PA, LLC), the injured worker (Claimant) hurt his neck and back.  At the time he was injured, he was earning an “Average Weekly Wage” (AWW; the calculation we do under the PA Workers’ Compensation Act to see the amount of benefits due to the injured worker) of $992.50.  The injury was accepted by the insurance carrier as a cervical strain and sprain (making eventual fusion surgery required due to the work injury a curious fit to that modest diagnosis).