Articles Posted in Workers Compensation Litigation

We are often asked why an injured worker in Pennsylvania needs an attorney.  “They know I got hurt on the job,” the injured worker might say, “Why would I need a lawyer?”  Well, the Commonwealth Court of Pennsylvania recently issued a decision that demonstrates why every injured worker in PA should have an attorney protecting his or her rights.

In Keffer v. Colfax Corporation and Phoenix Insurance Company (Workers’ Compensation Appeal Board) it appears the injured worker did everything his employer and the insurance carrier asked.  And, he lost all of his rights in the process.  This case is a very important lesson for every injured worker in Pennsylvania.

The injured worker in this case hurt his low back lifting a box of metal rods on December 18, 2014.  The insurance carrier issued a Notice of Temporary Compensation Payable (NTCP), accepting the injury as a “low back strain,” and the payment of workers’ compensation benefits began.  These benefits continued until the injured worker returned to full-duty work on March 9, 2015.  The insurance carrier then issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP) on March 12, 2015.

Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits.  We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.

A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA.  In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer.  Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.

Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced.  The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer.  The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.

Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer.  If notice is not given within this time, a Claim Petition may be barred.  The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker (“The Discovery Rule”).

Recently, in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), the Commonwealth Court of Pennsylvania looked at what constitutes sufficient “notice” to meet the legal requirement.  Here, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital.  Subsequently, the injured worker sent an e-mail to his employer that he had emergency foot surgery.  A below-the-knee amputation was performed on the right leg.  The e-mail did not mention any relation to work.

On December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.”

When a person is injured at work in Pennsylvania, and the injury is not accepted by the workers’ compensation insurance carrier, the injured worker must file a Claim Petition to seek benefits.  Once the Claim Petition is filed, the insurance carrier has 20 days to file an Answer, responding to the allegations of the Claim Petition.  If the workers’ comp insurance company does not file an Answer within those 20 days, the injured worker can file what is (informally) called a “Yellow Freight Motion.”

If this Motion is granted, all well-pled facts in the Claim Petition are deemed admitted.  The appellate courts in PA have told us that this Motion is not the same as a default judgement.  Ongoing disability can still be challenged by the insurance carrier, and proofs by the injured worker can be required by the WCJ.

A recent case decided by the Commonwealth Court of Pennsylvania, Hollis v. C&R Laundry Services LLC (Workers’ Compensation Appeal Board), addressed what constitutes a “well-pled fact” when it comes to the description of injury.  Here, the employee was a truck driver who was involved in a motor vehicle accident while working.  When the injury was denied, a Claim Petition was filed.  The injury was alleged to be “left rotator cuff pathology/cervical left side radiculopathy, [Cervical, Thoracic, Lumbar] sprain/strain.”

To prevail in a PA workers’ compensation case, typically the successful party presents the testimony of a medical expert, whose opinion is accepted by a Workers’ Compensation Judge (WCJ).  This expert opinion must be “to a reasonable degree of medical certainty.”  What is encompassed by those words is a bit of an art.

A recent case from Commonwealth Court of PA, UPMC Pinnacle Hospitals v. Renee Orlandi (Workers’ Compensation Appeal Board) [albeit an unreported case], touched on this issue, which may be of some interest to our readers.  When we present the testimony of a medical expert, the opinion of that expert need not be to concrete one-hundred precent certainty.  Few things in medicine reach that level, as a practical matter.  Instead, the opinions must simply be to a “reasonable degree of medical certainty.”

Pennsylvania courts have specifically found that there are no “magic words” that must be uttered by a medical expert for the opinion of that expert to be competent and be a sufficient foundation for the WCJ to base findings.  A reviewing court, such as the Workers’ Compensation Appeal Board (WCAB), or the Commonwealth Court of PA, cannot pick a sentence here or there from a medical deposition, out of context.  Instead, the appellate court must see if the testimony, as a whole, contains “a requisite level of certainty necessary to deem it unequivocal.”

When an employee in Pennsylvania gets injured, the PA Workers’ Compensation Act allots the workers’ compensation insurance carrier 21 days to investigate and accept or deny the claim.  If 21 days is not sufficient, the insurance carrier can opt to issue a Notice of Temporary Compensation Payable (NTCP or TNCP), and continue the investigation for up to 90 days more.  If the TNCP is not properly revoked within those 90 days, according to the Act, the TNCP becomes a regular Notice of Compensation Payable (NCP), and the injury can no longer be denied.  Simple, right?

Not so fast.  When a TNCP has been issued (for both wage loss and medical benefits), an insurance carrier can simply file a Medical-Only NCP, accepting liability solely for the medical aspect of the case (thus, denying liability for wage loss), without ever revoking that TNCP or issuing a Notice of Denial (NCD) for wage loss.  While this seems contrary to the words, if not the spirit, of the Act, the Commonwealth Court of Pennsylvania says this is perfectly fine.

This happened recently in an unreported case, Moretti v. County of Bucks (Workers’ Compensation Appeal Board), though prior reported decisions of the Commonwealth Court, supporting such a situation, were cited by the Court.

What if an injured worker in Pennsylvanian is employed by a company who (in direct violation of PA law) fails to carry workers’ compensation insurance?  Back in the old days, the injured worker, through no fault of his or her own, would be stuck with whatever assets the employer had.  However, in recognizing the pure unfairness of such a situation, several years ago, the Pennsylvania legislature created the Uninsured Employers’ Guaranty Fund (UEGF), essentially functioning as an insurer for the uninsured employers.

While the UEGF is wonderful in theory, it is less so in practice.  Funding for the UEGF comes from other insurance carriers, and it is seemingly consistently underfunded.  The law holds that the UEGF is NOT an insurance carrier, so it cannot be penalized for violations of the Pennsylvania Workers’ Compensation Act (Act), including the failure to pay an award as ordered by a Workers’ Compensation Judge (WCJ).  This makes collecting an award from the UEGF a delicate and diplomatic process.

In the past several years, to protect the limited funds of the UEGF, the PA legislature has tightened the requirements to obtain an award against the UEGF, and made such litigation much more difficult.  Timeframes have been drastically shortened and requirements of proof have been significantly increased.

Over the past several years, PA has legalized the use of medical marijuana.  Given the current difficulties in dealing with the opioid epidemic, this would seem to be a reasonable tool to help injured workers (and anyone else suffering from chronic pain) deal with their conditions without the use of narcotic medications.  The controversial status of marijuana, and both PA and Federal law, however, gave us great uncertainty as to whether use of medical marijuana would be covered under the Pennsylvania Workers’ Compensation Act.  Two recent decisions by the Commonwealth Court of Pennsylvania answer this question quite clearly in the affirmative.

Notably, the Medical Marijuana Act [MMA] specifically states that “Nothing in [the MMA] shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.”  Additionally, marijuana remains illegal under Federal law.  These two factors have made payment for medical marijuana under the PA Workers’ Compensation Act (Act) nearly impossible.  Until now.

The two companion cases on this issue of first impression are Appel v. GWC Warranty Corporation (Workers’ Compensation Appeal Board) and Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board).  Both of these injured workers suffered from severe pain, one from multiple back surgeries and the other from several conditions, including “herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease.”

If you are a football fan, you may have been following the story about Von Miller, star linebacker for the Buffalo Bills.  The story is also of interest, however, to injured workers, including those in PA.  (Parenthetically, we should note that Miller is, in fact, an injured worker, though the Pennsylvania Workers’ Compensation Act has special provisions for professional athletes – that said, the point of this article is that the care given to Miller is not the care received by the typical injured worker in PA).

On November 24, 2022, Miller injured his knee in a game against the Detroit Lions.  Being a star NFL player, Miller had access to the best medical tools possible, and was not required to have any kind of delay.  An MRI done the day after the injury showed the Anterior Cruciate Ligament (ACL) remained intact.  This meant the injury was not as severe as the team and player initially feared.

But, then an interesting thing happened.  Miller underwent exploratory surgery on the knee earlier this week.  A tear of the ACL was discovered, and repaired, during the procedure.  A tear that was not seen on the MRI.  Rather than missing a couple of weeks, suddenly Miller’s season was over.

Perhaps the most frequent question we, as attorneys who represent injured workers in PA workers’ compensation cases, receive is, “When can I settle my case?” Such a simple question for such a complicated issue. An entire page of our website is devoted to this “Big” question, as is part of the FAQs.

Initially, we should note that not every Pennsylvania workers’ compensation case ends in a settlement. Sometimes, the best interests of the injured worker do not result in such a conclusion to a case. This may be secondary to the injured worker having returned to the same employer after the injury (most workers’ comp cases require a resignation as part of the settlement), or it may be due to a substantial future medical exposure (which often has drastically different calculations between reasonable expectation and what the workers’ compensation insurance carrier would offer), or it may be some other issue unique to that particular case.

There is no “magic” time to settle a PA workers’ comp case. We have reached a settlement in a Claim Petition, mere months after an injury, and we have reached a settlement many years after an injury. Though it sounds like a cliché, it is true – every case is different and must be judged by its own facts and circumstance.

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