Articles Posted in Workers Compensation Litigation

Back in 2008, we discussed the decision of the Commonwealth Court of Pennsylvania in the matter of Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.) [Note that the formatting, with the WCAB listed as the party and the Employer in parentheses, has been reversed since this decision].  This decision terrified attorneys who represent injured workers in Pennsylvania.

Essentially, Weney stood for the proposition that if a work injury is in litigation, and there is an aspect of the injury that was either raised, or should have been raised, the injured worker is barred from trying to bring it up in a subsequent litigation (what the court calls “technical res judicata”).  The consequence of barring a condition from being added in the future, even if it was never even litigated in the past, is both a great fear and a terrible injustice to us in the workers’ comp Claimant bar.

However, the Commonwealth Court of Pennsylvania does recognize limits to this concept.  This was addressed by the Court in the recent case of Michael N. Lewis, Sr. v. City of Philadelphia (Workers’ Compensation Appeal Board).  The injured worker here was a police officer, who in 2017, sustained injuries to his hand/wrist, low back, chest wall, and thoracic spine while attempting to subdue a burglary suspect.  The injury was properly accepted by issuance of a Notice of Compensation Payable (NCP).

One of the bigger “victories” by the PA workers’ compensation insurance industry against the injured workers in Pennsylvania is the Impairment Rating Evaluation (IRE) process. Under this process, after an injured worker has received 104 weeks of temporary total disability benefits, the insurance company can initiate an IRE, which can limit the period of time an injured worker can receive workers’ compensation benefits. The IRE process is covered in great detail on our website.

If the examining physician finds that the injured worker has less than a 35% “whole body impairment” due to the work injury, the benefits can shift from “total” in character to “partial.” This does not change the amount of the benefits the injured worker receives, but it limits the duration for which the injured worker can receive those benefits.

One of the questions in the IRE process is which conditions or diagnoses need to be considered by the IRE physician in calculating the “whole body impairment.” There was a school of thought, championed by the insurance industry, that the IRE could only consider those conditions or diagnoses actually accepted as work-related. Thankfully, the Commonwealth Court of Pennsylvania has provided some clarification, establishing that the IRE physician must consider all conditions or diagnoses “due to” the work injury, whether accepted or not.

No matter what kind of company one works for, as long as one is an “employee,” as defined in the Pennsylvania Workers’ Compensation Act (and not otherwise excluded by other laws, such as federal employees, military personnel, maritime workers and railroad workers), one is entitled to workers’ compensation benefits if an injury is suffered while at work. This is true whether one works for a sole proprietor, small corporation or a major international conglomerate.

When a work injury takes place in PA, notice is required to be given to the “employer” within 120 days of the injury. Failure to do so can result in the injured worker being barred from receiving any workers’ compensation benefits for the injury. This can get more complicated when we are dealing with a sole proprietorship or a small corporation, where the owner is the injured worker. To whom must this notice be provided?

The Commonwealth Court of Pennsylvania recently addressed this issue in Erie Insurance Property & Casualty Company v. Heater (Workers’ Compensation Appeal Board). In this case, the injured worker was the owner of a sole proprietorship. By definition, the “employer” had notice of the work injury as soon as the injured worker had the injury, since they are the same entity.

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.”