As attorneys representing the injured worker in Pennsylvania, there is a call we get far too often.  It starts with the injured worker telling us that they lost their case before the Workers’ Compensation Judge (WCJ) and need assistance in litigating an appeal before the Workers’ Compensation Appeal Board (WCAB).  Unfortunately, in the vast majority of these cases, we are simply unable to offer help to the injured worker.

The role of the WCJ in Pennsylvania workers’ compensation is something we have discussed on this blog in the past.  Essentially, the WCJ is the ultimate Finder of Fact.  When a credibility determination has to be made, it is the province of the WCJ to do so.  As long as there is support in the evidentiary record, and the WCJ explains his or her reasoning, these credibility determinations cannot be reversed or changed on appeal.  Even if the appellate body, whether the WCAB, the Commonwealth Court of Pennsylvania, or even the Pennsylvania Supreme Court, admits it would have concluded otherwise, it still cannot change the Findings of Fact or credibility determinations rendered by the WCJ.

So, you may be wondering, if an appellate court cannot change the Findings of Fact or determinations of credibility of a WCJ, what is required then on appeal?  Basically, a successful appeal requires that it be shown the WCJ made an error of law.  An appellant would have to show that there is no substantial basis to support the ultimate Conclusion of Law made by the WCJ.  In other words, accepting the facts as found by the WCJ, the appellant should still have won.  For better or worse (depending if you win before the WCJ), it is pretty rare to find a true “error of law” made by the WCJ.  This is why we can rarely help an injured worker with an appeal, when the injured worker does not contact us until he or she loses in front of the WCJ.

Since the Pennsylvania Workers’ Compensation Act covers “employees,” but not “independent contractors,” the relationship between these two terms is something we have previously discussed on our blog.  A recent case from the Commonwealth Court of Pennsylvania on this topic featured an added twist of a late answer.

In Hawbaker v. Workers’ Compensation Appeal Board (Kriner’s Quality Roofing Services and Uninsured Employer Guaranty Fund), the injured worker was employed as a roofer, when he fell.  The injury was denied by the workers’ compensation insurance carrier, who alleged the injured worker (the “Claimant”) was actually an independent contractor, and not entitled to benefits under the Pennsylvania Workers’ Compensation Act.

Claimant filed a Claim Petition, and the insurance carrier did not file a timely Answer.  Under the law, all factual allegations made by the Claimant are deemed admitted if there is no timely Answer denying the allegations (Known as a “Yellow Freight” situation, for the case which first addressed it).  Claimant included in the allegations that he was an employee of the employer.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) found the Claimant to have been an independent contractor, and denied the Claim Petition.  This was affirmed on appeal to the Workers’ Compensation Appeal Board (WCAB).

When one thinks of an “injury,” typically one is imagining a sudden physical incident.  Maybe a roofer falls from a ladder.  A nurse pulls her back positioning a patient.  A machine operator catches a hand in a device.  While these are certainly injuries we see in PA workers’ compensation, not all work injuries are like these.  Some are physical, some are mental.  Also, some fall more into the category of “disease” than “injury.”  Yet, as a recent case from Commonwealth Court of Pennsylvania reminds us, all are compensable under the Pennsylvania Workers’ Compensation Act.

In Kimberly Clark Corporation  v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician in his employer’s plant.  He was diagnosed with metastatic bladder cancer in the Summer of 2005, and sadly passed away on June 23, 2006.  His widow (the “Claimant”) filed a Fatal Claim Petition.

In litigation before a Workers’ Compensation Judge (WCJ), Claimant presented the testimony of two coworkers of her late husband.  Both testified that the late husband had been exposed to various chemicals and substances which are known to cause cancer while doing the duties of his job.  The witnesses listed the names of many of the materials.  Claimant also presented the testimony of an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens.

We have discussed the role of Utilization Review (UR) both on our website and on our blog.  This helps demonstrate how important this concept is in the Pennsylvania workers’ compensation system.  As the Bureau’s Workers’ Compensation Automation and Integration System (WCAIS) takes an increasingly bigger role in the practice of workers’ comp in PA, there are changes which must be made.  One of those deals with the UR process.

UR is, of course, the process to determine whether a given course of medical treatment is reasonable and necessary.  If treatment is found to not be reasonable and necessary by the Utilization Review Organization (URO), the workers’ comp insurance carrier is not liable for the payment of that treatment (nor, by the law, is the patient).  A determination by a URO can be appealed to a Workers’ Compensation Judge (WCJ).

Typically, a UR is initiated by the workers’ compensation insurance carrier, to try and avoid paying for a specified medical treatment.  Frequent targets in these URs are physical therapy, chiropractic treatment and medications.  However, there are often situations where we file a UR, prospectively (for some future treatment), so our client can more easily get a specific treatment, whether it be a diagnostic study (such as an MRI or EMG), surgical procedure, or unusual medication.

Representing injured workers in Pennsylvania, we see many severe injuries.  One condition which certainly belongs in this category is Reflex Sympathetic Dystrophy (RSD), otherwise known as Complex Regional Pain Syndrome (CRPS).  This debilitating condition has been discussed on our blog in the past.

Since a hallmark of RSD/CRPS is incapacitating pain, much of the challenge in treating patients with the condition is providing some level of relief.  A tool which may be coming to the arsenal of pain management physicians in the future is Neridronic Acid.  Clinical trials of this medication are promising enough to have led the U.S. Food and Drug Administration (FDA) to label Neridronic Acid with the Breakthrough Therapy designation, as noted by the U.S. National Institute of Health (NIH). These clinical trials appear to have shown a significant reduction in pain and symptoms of CRPS with the Neridronic Acid treatment, as reported by Pain News Network.

We will be keeping an eye on this, and other, avenues that the medical community pursues to care for injured workers with this serious condition.

This seems to be the month for Average Weekly Wage (AWW) cases.  If you have not been keeping up with our blog (first, shame on you! 😉 ), AWW is the calculation of an injured worker’s wages, which is used to determine the amount of workers’ compensation benefits the injured worker will receive.  Last week, we discussed the Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney) case, which dealt with a situation where the worker did not earn a regular set amount each week.  This week we will look at a case with set weekly earnings.

In Lidey v. Workers’ Compensation Appeal Board (Tropical Amusements, Inc.), the injured worker was employed as manager/fabricator of company who provides amusement park and carnival rides.  While doing his job, the employee suffered a severe injury to his right arm, in which the arm was fractured and crushed, requiring multiple surgical procedures.  At the time of the injury, he was paid $2,000.00 per week.  In the year prior to his injury, his wages increased from $1,000.00 per week to $2,000.00 per week, at least temporarily.  There was no discussion whether this rate would continue indefinitely.

Though workers’ compensation benefits were paid voluntarily, they were based on an AWW of $640.00 (yielding a weekly compensation rate of $458.50).  Believing he should have compensation based on the AWW of $2,000.00, the injured worker filed a Petition to Review.  After evaluating the evidence (primarily testimony from both sides), the Workers’ Compensation Judge (WCJ) granted the Petition for Review, finding that the AWW indeed should be $2,000.00, for a resulting workers’ compensation rate of $917.00 (the maximum rate for 2013, the year of the injury).

As we have discussed previously, the vast majority of folks working in Pennsylvania are covered by the Pennsylvania Workers’ Compensation Act.  However, the calculation of wages, for the purposes of awarding workers’ comp benefits, can vary by the status of an employee.  For example, a “seasonal” employee is treated differently in these calculations than an employee who works the entire year.

The majority of employees in Pennsylvania (those who do not receive the same amount each week, month or year) have their workers’ compensation rate calculated by averaging out the highest three quarters of the year prior to the injury.  The calculation may be different for some employees, such as those who worked less than a year before the injury, or those who are paid by a flat salary (so wages do not vary by the week).  “Seasonal” employees also have a different calculation, as the Commonwealth Court of Pennsylvania recently addressed.

In the matter of Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney), the employee drove a truck during apple harvest (September to November), moving pickers and bins around the orchard.  One day, while exiting his truck, a tree branch struck the employee’s eye, eventually causing him to lose sight in the eye.  No work was promised or expected after the apple harvest ended.  The employee was retired (receiving Social Security Retirement benefits) both before and after the time he worked for this employer.

With the recent decision by the Supreme Court of Pennsylvania to accept appeal in the Sladek case, and the multitude of cases in Commonwealth Court, litigation regarding the presumption of cancer in firefighters is a hot topic.

One area which was not addressed, until the recent Commonwealth Court decision in Steele v. Workers’ Compensation Appeal Board (Findlay Township), is the difference between volunteer firefighters and professional ones.  While both of these brave men and women put their lives on the line regularly, the Pennsylvania Workers’ Compensation Act treats them very differently for the cancer presumption.

Each falls under the presumption, making it easier for a firefighter who contracts cancer from the job, to get PA workers’ compensation benefits.  However, there is one requirement in the Pennsylvania Workers’ Compensation Act (Act) which is only applicable to a volunteer firefighter:

A topic we frequently address, since it often becomes the subject of appellate decisions, is whether a worker is injured while in the scope and course of his or her job.  Generally (outside the commuting issue), either the employee took a small, momentary departure from the job, or completely left the scope and course of the job by some action.  These cases often succeed or fail depending on the precise facts involved, though appellate decisions do help provide us with necessary parameters.

For example, the Commonwealth Court of Pennsylvania recently made a decision in the case of Starr Aviation v. Workers’ Compensation Appeal Board (Colquitt).  Here, the employee worked at Pittsburgh International Airport, driving a cart to transport bags to and from the airplanes.  One day, during her menstrual cycle (a phrase never before used on this blog!), the employee forgot to bring the necessary feminine products, and her wallet, with her to the job.  Her mother agreed to bring the products and money to her.  After obtaining permission from her supervisor, the employee took the cart to meet her mother (at a terminal that she did often have to travel to).  In addition to the feminine products, her mother also brought her lunch money, TV dinners, and cigarettes.  On the way to meet her mother, there was an accident, which led to the lower left leg of the employee being amputated.

The claim was denied by the workers’ compensation insurance carrier, on the basis that the employee was not in the scope and course of her job duties at the time of the injury.  A Claim Petition was litigated before the Workers’ Compensation Judge (WCJ).  In the litigation, the Employer presented testimony from fact witnesses that the employee was offered food and money by co-workers and that feminine products were available in the ladies’ room.

Back in August, 2016, we discussed the case of City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek).  For those who do not recall, this was the case (well, one of several recent cases actually) which determined that a firefighter must prove the cancer he or she developed was of a type caused by the listed carcinogen, before the firefighter could use the presumption in Section 108 (making the obtaining of workers’ compensation benefits easier for the firefighter).  The Commonwealth Court of Pennsylvania had vacated the decision of the Workers’ Compensation Judge (WCJ), which granted the Claim Petition.

While an aggrieved party has the right to appeal any decision of a WCJ to Commonwealth Court (after first appealing to the Workers’ Compensation Appeal Board (WCAB)), the Supreme Court of Pennsylvania has the power to decide which appeals it will accept.  The fact the Court has now accepted appeal in this matter suggests that they wish to clarify the reading of Section 108(r).  Which way they will find is anyone’s guess at this point, though we will be following the developments closely.

Contact Information