Pennsylvania Workers’ Compensation Lawyer Blog

Back in June, 2015, we discussed the Commonwealth Court decision in Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.).  In this decision, which confounded us at the time, the Court said that an injured worker could not successfully expand the description of his or her work injury after an Impairment Rating Evaluation (IRE) was performed.

Recently, however, this decision was reversed by the Supreme Court of Pennsylvania.  Though the basis was not that suggested by the injured worker, the Supreme Court found that the IRE in this case was not valid.  Essentially, the Court said that, under the American Medical Association (AMA) Guides (the books which dictate permanent impairment in PA), the doctor who performs the IRE must determine the level of impairment.  The mere fact that the impairment in this case was both physical and psychological, though only the physical was accepted, does not change this requirement.  Because, said the Court, the psychological impairment stemmed from accepted physical injury, such impairment had to be considered or dismissed by the physician conducting the IRE.  Instead, the IRE physician testified that he was not asked to, nor was he capable of, opining on psychological impairment.  As such, the Court found the IRE not valid, reversing the decision of the Commonwealth Court of Pennsylvania.

This decision was a 5-2 split, with two different Justices rendering dissenting opinions.  Though the reasons and arguments vary between the two dissents, the overriding theme of both seems to be that the psychological injury was not accepted, and, thus, should not have been part of the “impairment rating” as related to the accepted work injury.

On our blog, we have previously discussed cases where the dispute in a case is whether an injured worker was actually engaged in his or her employment duties at the time of the injury (what we call the “scope and course” of their work).  As you may have noticed, these cases often depend on the exact facts involved, making it hard to discern a general rule.  A case recently published from the Commonwealth Court of Pennsylvania did nothing to change this status.

In Grill v. Workers’ Compensation Appeal Board (U.S. Airways), the injured worker was at his job, and was on work time.  The accident happened when Claimant was helping his coworkers move a locker he brought from home to replace a battered one the Employer had been using.  No supervisor had authorized, or was even aware of, this action.  While moving the locker, the injured worker suffered shaft fractures in his fourth and fifth metacarpals, which required surgical treatment by the Philadelphia Hand Center.

When the claim was denied by the workers’ comp insurance carrier, the injured worker filed a Claim Petition.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) denied the Claim Petition.  Specifically, the WCJ found that the injured worker was not required by his job to move the locker and that he had not sought permission from his supervisor to move the locker.  As such, “Claimant was not engaged in the course and scope of his employment when he was injured.”

As we have mentioned, workers’ compensation laws vary widely from State to State, making the selection of which workers’ compensation laws apply to a given case a critical determination.  As much as there are things in PA law that benefit the workers’ comp insurance carrier, many aspects of Pennsylvania law are more beneficial to an injured worker than the laws of other States.  One would think that Pennsylvania law would apply to an employee who primarily works in PA and was injured in PA.  One may be wrong.

In Salvadori v. Workers’ Compensation Appeal Board (Uninsured Employers Guaranty Fund and Farmers Propane, Inc.), the injured worker was a truck driver for a company based in Ohio.  The job performed by the injured worker, however, was primarily in the State of Pennsylvania.  Indeed, the injury took place in PA, when his truck was rammed by another truck at a rest stop.  The injured worker suffered serious injuries including “a right shoulder rotator cuff tear, injury to the anterior chest wall, and disc herniations in his neck and low back.”  The injured worker also experienced a concussion.  As a result of these conditions, the injured worker was disabled from his job.

Since he worked primarily in PA, and was injured in PA, there is (clearly) jurisdiction in Pennsylvania for the injury.  Therefore, he filed a Claim Petition for benefits in PA.  When his employer was discovered to not carry workers’ compensation insurance in PA, the injured worker filed a Claim against the Uninsured Employers’ Guaranty Fund (UEGF).  The injured worker testified and presented medical evidence.  Neither the Employer, nor the UEGF, presented any contradictory evidence.  As such, the Workers’ Compensation Judge (WCJ) granted both the Claim Petition against the Employer, as well as the one against the UEGF.

As noted on our website, generally, an injured worker cannot sue his or her employer for its negligence in causing a work-related injury.  Additionally, unlike in a negligence case, workers’ compensation benefits do not include payment for pain and suffering.  Occasionally, however, there is another party (a “third party”) that the injured worker can sue and obtain those “non-economic damages” (like pain and suffering).  We see this primarily when the employee is injured in a motor vehicle accident or is the victim of a defective product.

Unfortunately, though, the Pennsylvania Workers’ Compensation Act (Act) is designed so that the injured worker who can file suit against a third party, and can recover those additional damages, actually ends up with none of that extra money.  We have discussed the concept of “subrogation” here before – this is what allows the workers’ comp insurance carrier to get paid back from the money an injured worker receives in a third party suit.

Recently, in Whitmoyer v. Workers’ Compensation Appeal Board (Mountain Country Meats), the Commonwealth Court of Pennsylvania addressed whether the workers’ comp insurance company is entitled to a credit for future medical treatment after a successful third party recovery.

To win a contested workers’ compensation case in Pennsylvania, the injured worker must prove that he or she suffered an injury while in the scope and course of employment and that he or she is disabled as a result of such injury.  The situation only changes moderately when the injured worker is actually killed in the accident, and it is a Fatal Claim Petition being litigated.  In that case, the burden is to prove that the injury, or the conditions at work, caused (or were a “substantial contributing factor” in causing) the death of the injured worker.

Recently, the Commonwealth Court of Pennsylvania examined what is needed to show that the conditions of work were indeed a substantial contributing factor in causing the death of an injured worker.  In this case, Justus v. Workers’ Compensation Appeal Board (Bay Valley Foods), the injured worker was found unresponsive locked inside a shed that contained chemicals.  The presence of the chemicals, and initial incorrect assumptions regarding what happened, led to a delay in diagnosing the actual problem –  a subarachnoid hemorrhage.  The injured worker passed away before treatment for the  subarachnoid hemorrhage could be performed.

The widow of the injured worker filed a Fatal Claim Petition.  Though the subarachnoid hemorrhage was unrelated to the work duties, the Petition alleged that the conditions at work led to a delay in treatment, which became a substantial contributing factor in the death of the injured worker [That the original condition need not be caused by work for subsequent damages to be compensable is a topic we have discussed previously].  Specifically, it was alleged that the distance of the shed from the main building caused a delay in finding the injured worker, and the presence of the chemicals in the shed caused an incorrect diagnosis, leading to a delay in proper treatment.

When the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board  back in 2007, we attorneys who represent the injured worker thought things had really changed.  No longer could the workers’ comp insurance carrier file Termination Petition after Termination Petition in an endless series to evade the payment of benefits.  Indeed, there were cases from Commonwealth Court of PA shortly after Lewis which gave us real hope.  Unfortunately, that same Commonwealth Court has now pulled that hope away.

In Baumann v. Workers’ Compensation Appeal Board (Kellogg Company), the injured worker suffered a right shoulder and upper back strain, and a right C6 radiculopathy was later added, as a result of a car accident while he was performing his job duties in 2007.  In November, 2009, a Workers’ Compensation Judge (WCJ) issued a decision denying a Petition for Termination.

Following another Defense Medical Examination (DME, laughingly referred to officially as an “Independent” Medical Examination, where nothing is independent) with the same expert as in the prior litigation, the workers’ compensation insurance carrier filed another Petition for Termination in 2010.

There is an old saying in law that one only gets “one bite at the apple.”  That means, basically, that you have a chance to file your claim or suit or whatever, litigate the issue and obtain a final decision.  Once that is done, you can file an appeal of that decision (if available in that forum), but you can never go back and try the case all over again from the start.  While the world of workers’ compensation has some different evidentiary standards, this rule of law generally applies.  A recent case from the Commonwealth Court of Pennsylvania dealt with this issue.

In 2013, the injured worker filed a Claim Petition alleging interstitial lung disease, chronic inhalation injury, hypersensitivity, lung disease, eosinophilic lung disease, and interstitial pneumonitis.  This was the case of Northtec, LLC and American Zurich Insurance Company v. Workers’ Compensation Appeal Board (Skaria).  After the Petition was assigned to a Workers’ Compensation Judge (WCJ), but before any evidence was submitted, the attorney for the injured worker withdrew the Claim Petition.  This was done “without prejudice.”  That means that the injured worker could refile the same Petition again (if it was done prior to the statute of limitations, of course).

Indeed, the injured worker did file the same Claim Petition again, in 2014.  Hearings were conducted and the deposition testimony of the injured worker was submitted.  Subsequently, since the attorney for the injured worker was unable to get the deposition of their medical expert scheduled within the allotted time period, the attorney again requested that the Claim Petition be marked as withdrawn “without prejudice.”  This time, the counsel for the workers’ compensation insurance carrier opposed the request, stating that she had intended to defend the claim, on the issue of notice of the injury, but that both of her witnesses had since left the employ of that company.  She alleged that she would be prejudiced if the injured worker was allowed to file the same Petition, yet again, in the future.