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Articles Posted in Workers Comp Appeals

Over the years, we have had blog entries on many different topics of interest to the injured worker in PA. One theme we have never dealt with, however, is the emotionally-charged area of politics. While we generally try to avoid politics, we would be remiss if we did not comment about one of the candidates for Judge on the Commonwealth Court of Pennsylvania.

As loyal readers of our blog know, the Commonwealth Court of Pennsylvania is the next appellate level, above the Workers’ Compensation Appeal Board (WCAB). This Court must address many issues directly impacting the lives of injured workers in PA. Judges on this Court are elected in the general election. We believe it is important for voters to be informed, allowing them to make the best decisions possible.

One of the candidates for Commonwealth Court Judge in the election coming up on November 8 is Kathryn Boockvar. Back in June of this year, we attended the 10th Annual Workers’ Compensation Conference in Hershey, PA, which is presented by The Pennsylvania Bureau of Workers’ Compensation. In addition to the many attorneys who practice in the area of PA workers’ comp, we noticed Ms. Boockvar in attendance. We were both impressed and encouraged that Ms. Boockvar was interested enough in the PA workers’ compensation system to attend such an event. In addition to her obvious interest in workers’ compensation, her resume shows that she spent much of her career representing disabled individuals.

Previously, we posted a blog entry on the Commonwealth Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). This was the decision where the Commonwealth Court was unmoved when the injured worker applied for every job in a Labor Market Survey and found none available to him. The Court said the workers’ compensation insurance carrier can still obtain a Modification or Suspension of workers’ comp benefits in this situation.

Thankfully, the Supreme Court of Pennsylvania accepted appeal in this matter on April 27, 2011. We will certainly keep our readers informed when the Supreme Court of PA reaches a decision.

Back in October, we blogged about the decision of the Commonwealth Court of Pennsylvania in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), which addressed what caused a presumption that an injured worker “retired,” entitling the workers’ comp insurance carrier to a suspension of workers’ compensation benefits.

The decision of the Commonwealth Court arguably made a murky area of the law even more confusing, but it also attempted to inject some compassion and logic into an aspect of law short on both.

For better or worse, the Supreme Court of Pennsylvania has accepted an appeal in this matter. Specifically, the issue for the Court to determine is:

Some time ago, we made a brief deviation from our normal course of not blogging about own active cases, to discuss a liquor store clerk who was robbed at gunpoint. The PA Liquor Control Board (LCB) denied the claim, stating that being robbed at gunpoint was not an “abnormal working condition” for a PA LCB clerk (remember that the next time you think of stepping into a State Store in Pennsylvania – armed robbery is simply accepted as a normal course of a day by management). We filed a Claim Petition on the clerk’s behalf and litigated the case.

We are pleased to report that the Workers’ Compensation Judge (WCJ) did not buy Defendant’s argument, and did not believe that society has degraded far enough such that a clerk can expect armed robbery on his or her normal day at work. In granting our Claim Petition, the WCJ rejected the Defendant’s attempt to expand the Commonwealth Court of Pennsylvania’s disastrous decision in of McLaurin v. Workers’ Compensation Appeal Board (SEPTA), wherein the Court, in its infinite wisdom, found that a SEPTA driver’s normal workday includes being assaulted by a gun-wielding teen (sending the message, as we understand it, that anyone foolish enough to step on a SEPTA vehicle can expect to face such consequences).

Undaunted, however, the PA LCB has filed an appeal with the Pennsylvania Workers’ Compensation Appeal Board (WCAB). It appears the PA LCB’s argument is that the WCJ was incorrect and Pennsylvania liquor stores are just as deadly as SEPTA vehicles (how very proud they must feel while making these arguments). We find it amazing, not to mention disheartening, that our own governmental agencies would be stooping to such disgraceful antics to deny a case. Rather than address what they clearly view as a “normal working condition,” perhaps by improving security methods, the PA LCB instead is trying to use its stubborn ignorance and incompetence as a basis to deny an injury to one of its own employees. How can one put any word other than “disgraceful” on that?

When an aggrieved party wants to appeal a decision of a Workers’ Compensation Judge in PA, the first step is to the Pennsylvania Workers’ Compensation Appeal Board (WCAB). Until recently, the WCAB was comprised of a total of 15 commissioners, who would travel throughout the State of Pennsylvania, holding oral arguments in Philadelphia, Pittsburgh, Harrisburg, Scranton, Johnstown and Erie.

Unfortunately, due to budget difficulties faced by PA, the total of 15 commissioners on the WCAB has been drastically reduced. Right now, only five commissioners remain. Apparently, there will be another three commissioners named, when they are approved by the PA Senate.

This reduction in staffing is almost certain to have a negative effect on the speed with which WCAB decisions are issued. While we would love to provide a link for more information, there has been no official word on this development from the PA Bureau of Workers’ Compensation (other than to change the listed commissioners to the current total of five).

As you may recall, in a recent blog entry, we mentioned the case of PGW v. Workers’ Compensation Appeal Board (Amodei). This was the case where the Commonwealth Court of Pennsylvania stated, unequivocally, that credit against pension benefits in PA workers’ comp is to be done on the net amount of the benefit, rather than the gross.

It has now come to our attention that the workers’ compensation insurance carrier in this case has filed a Petition for Allocatur with the Supreme Court of Pennsylvania, asking the State’s highest Court to accept an appeal in this matter.

As always, we will keep everyone posted on developments in this, and any other, PA workers’ comp matter. We also want to remind folks that we are happy to answer questions regarding any Pennsylvania workers’ compensation issues. You can contact us by telephone or e-mail, through our firm website.

As a Claimant’s lawyer, practicing exclusively in PA workers’ comp, I was thrilled when the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board (WCAB) in 2007. The Court in Lewis limited a PA workers’ comp insurance company’s ability to continually file petitions to terminate a claimant’s workers’ comp benefits. Specifically, the Court held that a workers’ compensation insurance carrier in PA had to prove there was an actual change in condition from the previous adjudication of disability (again, for this case to be important, the injured worker had to have previously defended a Termination Petition).

There was some concern, however, with how the Commonwealth Court of Pennsylvania would interpret the Lewis decision. As we posted in a previous blog entry, the Commonwealth Court initially did properly follow Lewis. Last month, the Commonwealth Court of Pennsylvania set claimant’s workers’ comp attorneys’ minds at ease, when they issued a decision in Delaware County v. Workers’ Compensation Appeal Board. Here, like in Lewis, the workers’ comp insurance company lost a Termination Petition, then filed another Termination Petition. Finding the workers’ compensation insurance carrier’s doctor credible when he testified the injured worker had fully recovered from the work-related injury, the Workers’ Compensation Judge (WCJ) granted the Termination Petition.

On appeal, the Commonwealth Court of PA, vacated the termination and remanded to the WCJ (sent the case back to the WCJ for additional findings). The Court found that the WCJ had granted the Termination Petition in error, because it was not enough to simply find the workers’ compensation insurance carrier’s doctor was credible when he testified that the injured worker had fully recovered from her work injury. Instead, the Court said the WCJ must first decide whether the workers’ comp insurance company proved that the claimant’s condition had changed from the time of the first Termination Petition to the time of the second. Only after that finding is made can the WCJ decide whether the workers’ compensation insurer proved the injured worker had fully recovered.

Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

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