One of the frequent questions we are asked is regarding the settlement of a Pennsylvania workers’ compensation claim.  In fact, there is a page on our website just devoted to settlements.  When considering whether to settle his or her case, there are several things an injured worker should consider.  Initially, it is important to note that not every workers’ comp case settles.  Workers’ compensation benefits can end for a variety of reasons, other than a settlement.  Therefore, just because you have had a work injury in PA, do not believe you are simply entitled to a settlement.

The timing of the case is always an important consideration when considering whether to settle a case.  We do not mean timing in a strict calendar sense, as there is no magic number of months or years which must go by before a case can settle.  Instead, we are looking at the posture of the case.  Is the injured worker still in active treatment?  Is surgery, or other invasive treatment still being planned?  Is there other health coverage available?  As to the case legally, we ask whether there is a current threat to the benefits?  Whether there is current litigation, and the chances of success?  What is the employability of the injured worker?  (Considering that encompasses both physical restrictions, as well as educational and work backgrounds).  As you can see, there are many factors going into whether now is the right time to settle.

Next, the question may be the value of the case.  Again, there is no magic formula.  A settlement only works if both sides agree.  It has to be voluntary for everyone.  Unlike a personal injury case, there is no pain and suffering in a PA workers’ compensation case.  A settlement purely reflects loss of earnings, and, if applicable, future medical treatment.  Obviously, the settlement figure is something to be negotiated.

Though the phrase “scope and course of employment” does not appear anywhere in the Pennsylvania Workers’ Compensation Act, this is a frequent issue involved with appellate cases.  After all, a work injury is only compensable if one was performing his or her job at the time of the injury.  This issue often depends on the particular facts of each case.  A recent decision by the Commonwealth Court of Pennsylvania continues this concept.

In Rana v. Workers’ Compensation Appeal Board (Asha Corporation), the injured worker (“Claimant”) was a manager-in-training for a Dunkin Donuts franchisee.  The franchisee owned locations in Wyncote, Horsham, and Hatfield.  Claimant primarily worked as a manager at the Wyncote location, but would be expected to travel to the other locations occasionally for operational issues.  One night, after Claimant finished his regular shift at the Wyncote store, Claimant’s boss called him at home at 10:00 pm, and said an employee at the Hatfield location had a medical issue.  Claimant told his boss he would go in and see what was happening.  While heading to the location, Claimant was in a motor vehicle accident, and unfortunately was fatally injured.

A Fatal Claim Petition was filed by Claimant’s parents, who were dependent upon him.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Fatal Claim Petition, finding that Claimant “was furthering Employer’s business and was on a special assignment for Employer. Thus, Decedent was in the course and scope of his employment at the time of the accident and Claimants were entitled to collect compensation.”

In past blog posts, we have discussed the Uninsured Employers’ Guaranty Fund (UEGF).  This is the safety net available for workers who have been injured while working for an employer who (in violation of Pennsylvania law) fail to carry PA workers’ compensation insurance.  While the UEGF does give these injured workers an avenue to pursue to get wage loss and medical benefits, there are hurdles to clear which are not present with a typical PA workers’ compensation case.

Ordinarily, when a worker gets hurt in Pennsylvania, he or she simply files a Claim Petition and can seek benefits from the date of the work injury.  When a claim is being made against the UEGF, however, one must first file a Notice of Claim Against Uninsured Employer (the form is LIBC-551).  Unless the Notice is filed within 45 days of the injured worker knowing the employer failed to carry PA workers’ compensation insurance, no medical or wage benefits are payable until the Notice is filed.

Once the Notice is filed, the injured worker must wait at least 21 days to file a Claim Petition for Benefits from the Uninsured Employer and the Uninsured Employer’s Guaranty Fund (form LIBC-550).  In contrast, there is no requirement (in a typical PA workers’ comp case) of waiting any time before filing a regular Claim Petition.

When a party to a PA workers’ compensation litigation receives a decision of the Workers’ Compensation Judge (WCJ), the party can file an appeal to the Workers’ Compensation Appeal Board (WCAB).  If a party is not successful before the WCAB, then the party can file an appeal to the Commonwealth Court of Pennsylvania.  The losing party at that level can request an appeal to the Supreme Court of PA, but whether the appeal is accepted by the Supreme Court is discretionary with the Court.

Oral argument is available on every case before the WCAB, even before briefs are submitted (though the parties can waive the right to oral argument if they wish).  At the Commonwealth Court and Supreme Court levels, however, the Courts decide whether they want oral argument (typically requested only on novel or complicated issues), and the arguments would be after the briefs are submitted.

At least, that’s how it was.  We were just notified by the Pennsylvania Department of Labor & Industry that a change is being proposed to the rules regarding oral argument before the WCAB.  There are two basic elements looking to be changed.  First, the briefs would be submitted before any oral argument would be done (so the WCAB Commissioners could know the case before hearing the oral arguments cold).  Second, mirroring the higher courts, the use of oral argument would be discretionary with the WCAB, reserved for novel or complex issues.

The Pennsylvania Workers’ Compensation Act sets forth that medical treatment related to a work injury is to be paid for by the workers’ comp insurance carrier (provided the treatment is reasonable and necessary).  If there is a dispute as to whether treatment is related to a work injury, a petition must be filed.  If, on the other hand, the dispute is whether treatment is reasonable and necessary, then the Utilization Review process is to be used.  Whether treatment is related to a work injury is not a factor in a Utilization Review.  A recent decision from the Commonwealth Court of Pennsylvania dealt with this distinction.

In Haslam v. Workers’ Compensation Appeal Board (London Grove Communication), the injured worker (“Claimant”), fell from a building.  He suffered fractures to his right ankle, tibia, and fibula, a left calcaneus fracture, and injuries to his neck and low back.  After some time, the indemnity aspect (wage loss part) of the work injury was settled by Compromise & Release Agreement.  The settlement documents described the work injury as “R and L Foot Fracture.”

After the settlement, the workers’ compensation insurance company filed for Utilization Review against the treating doctor, seeking a ruling of whether ongoing medical treatments, including compound creams, were reasonable and necessary.  The Utilization Review Determination found all treatment to be reasonable and necessary.

Complicated fact patterns tend to make for complicated blog entries.  A recent decision by the Commonwealth Court of Pennsylvania in McNeil v. Workers’ Compensation Appeal Board (Department of Corrections, SCI-Graterford) is one of these situations, but is valuable for the lessons contained within.

In that case the injured worker (“Claimant”) tripped and fell on January 26, 2011, injuring her low back and left shoulder.  A Claim Petition was filed.  In the interim, a Notice of Compensation Payable (NCP) was issued accepting first left ankle sprain and left shoulder sprain, then later amended to add low back sprain.  Eventually, the Claim Petition was granted, so that the accepted work injury included, “left ankle sprain, acute cervical strain, acute back pain, musculoskeletal injury of the left shoulder, mild edema of the left ankle, left shoulder sprain, and tenderness of the Claimant’s left shoulder and upper and lower back.”  There was no appeal of this decision.

After the decision was rendered in the Claim Petition, the workers’ compensation insurance carrier filed a Petition for Termination, alleging that Claimant had fully recovered from the work-related injuries. The Petition for Termination was based on a May 21, 2014 “Independent” Medical Examination (IME, though a more realistic term is Defense Medical Examination, or DME).  Claimant filed Petitions for Review (to amend the description of injury) and Penalties (for the failure to pay for medical treatment related to the work injury); these Petitions were consolidated with the Petition for Termination.

Of course, no injured worker is trying to lose his or her Pennsylvania workers’ compensation benefits.  But, not being properly advised by an attorney who is certified as a specialist in PA workers’ compensation law can lead to that very result.  Take the cautionary tale of Mr. Torijano, a plumber’s helper who suffered a lumbar strain while working.

As addressed by the Commonwealth Court of Pennsylvania in Torijano v. Workers’ Compensation Appeal Board (In A Flash Plumbing), Mr. Torijano (“Claimant”) was released to go back to light duty work following his injury.  Initially, he did go back to work.  But, he felt the work was too heavy for him.  He also was unhappy that his employer reprimanded him (for failing to call in before each job, as the employer required).  Rather than bring the physical problems to the attention of his employer, or his doctors, he simply stopped reporting for work.

After hearing testimony from four representatives of the employer, and reviewing a letter the employer sent Claimant, making clear light duty work was available, the Workers’ Compensation Judge (WCJ) granted the Petition for Suspension, stopping the wage loss replacement benefits.  The testimony of Claimant’s own medical expert confirmed that he remained capable of light duty work.  Also not helpful was the admission from Claimant that he told the adjuster the only reason he stopped going to the light duty job was the reprimand.  The WCJ found that Claimant voluntarily quit the job, which was within his light duty capabilities.  This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On our website, we have discussed the various types of benefits available under the Pennsylvania Workers’ Compensation Act (Act).  One of these types of benefits is known as “specific loss.”  This is the type of benefit available when a worker loses the use of a body part for “all practice intents and purposes.”  Recently, the Commonwealth Court of Pennsylvania dealt with the requirements of proving a “specific loss.”

In Morocho v. Workers’ Compensation Appeal Board (Home Equity Renovations, Inc.), the worker injured his thumb, index and middle fingers while using a table saw.  A Claim Petition was filed seeking, among other things, a specific loss of the index finger.

While litigating the case before the Workers’ Compensation Judge, the injured worker presented testimony from himself, and hospital records, showing that there was a significant injury to the index finger.  Specifically, in the post-operative note, the diagnosis was listed as “P1, P2 open fracture, partial tendon laceration, flexor digitorum profundus greater than 50% of the tendon width.”  Two pins were placed in the finger, then later removed, though significant damage to the finger, greatly limiting its use, remained.  A report from the treating physician observed that the injured worker “has effectively lost function of the index finger at this time for all intents and purposes.”  The insurance carrier doctor felt there was no loss of use.

Ordinarily, workers’ compensation in Pennsylvania is an “exclusive remedy.”  That means, the typical injured worker in PA cannot sue anyone for his or her injuries, and only has benefits under the Pennsylvania Workers’ Compensation Act (Act) available.  There are exceptions when the injury was caused by the negligence of a third party (a party other than the employer).

However, as we have noted in the past, the Act is designed so that the injured worker receives none of the benefits of the damages recovered in the personal injury (“third party” case).  This concept is called “subrogation.”  We recently observed this happening to one of our clients.

One of our clients suffered significant injuries, which were caused by a third party.  A civil suit was filed (in addition to the workers’ compensation action).  This civil suit was handled by a law firm other than us (our firm limits its practice to PA workers’ compensation cases, though we can certainly refer clients to excellent attorneys for any aspect of the law).

We have discussed Section 204(a) of the Pennsylvania Workers’ Compensation Act (Act) on this blog in the past.  This is the provision of the Act that provides a credit to the workers’ comp insurance carrier for certain other benefits an injured worker might receive, such as pension, social security retirement, unemployment compensation or severance.  While the Act may be specific on the credit due, the interpretation by the courts is puzzling.

In relevant part, Section 204(a) reads, “the benefits from a pension plan to the extent funded by the employer directly liable for the payment of which are received by an employee shall also be credited against the amount of the award made under [the Act].”  Given its ability to do so, the Pennsylvania Bureau of Workers’ Compensation then promulgated regulations on this offset, stating in pertinent part, “If the employe receives the pension benefit on a monthly basis, the net amount contributed by the employer and received by the employe shall be divided by 4.34.”  While not exciting, at least the language sounds clear.

In Harrison v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), the Commonwealth Court of Pennsylvania dealt with this Section directly.  The injured worker had the option of two pensions to take, either the maximum amount of money (which would have created a monthly offset of $1,885.03) or a lesser amount of money which included a survivor benefit for his wife (which would leave a monthly offset of  $1,537.79).

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