Pennsylvania Workers’ Compensation Lawyer Blog

One of the pitfalls in the Pennsylvania workers’ compensation system is the concept of “withdrawal from the labor market.” Without intending to do anything but receive additional income, an injured worker in PA can easily cause his or her workers’ compensation benefits to stop accidentally. This is one of the many reasons we urge every injured worker to have the representation of an attorney Certified as a Specialist in Workers’ Compensation law (as are both of the attorneys at Brilliant & Neiman LLC).

A recent decision from the Commonwealth Court of Pennsylvania, Hi-Tech Flooring, Inc. v. Workers’ Compensation Appeal Board (Santucci), reminds us of the perils of an alleged “withdrawal from the labor market.” Here, the injured worker suffered what was initially accepted as a “right knee contusion.” Later litigation expanded the injury to a more accurate injury description of “ongoing progressive degenerative changes of the right knee as a result of the August 18, 2014 work incident.”

A few years after the injury, seeking to have additional income, the injured worker filed for pension benefits from his union and filed for Social Security Disability (SSD) benefits. Each application was accepted. The decision approving the SSD application noted that Claimant had the following ailments or conditions, “lumbar and cervical disc disease, status post C5-6 cervical discectomy and fusion; bilateral knee degenerative osteoarthritis, status post bilateral arthroscopic procedures; right hip degenerative joint disease; and status post total hip replacement.” According to the Court, the determination granting the SSD benefits did also mention “resulting synovitis in Claimant’s right knee and ongoing right knee pain.”

A topic often litigated in the Pennsylvania Workers’ Compensation system is whether an injured worker was within the scope and course of his or her employment at the time of the incident.  Accordingly, this is a topic that is no stranger to this blog.  Though this area continues to depend drastically on the facts within each case, a recent decision by the Commonwealth Court of Pennsylvania does shed some additional guidance on such cases.

In Henderson v. WP Ventures, Inc. (Workers’ Compensation Appeal Board), a custodian was waiting to be able to perform his usual tasks.  He was being prevented from doing so by the facility being cleaned and ventilated after a roof leak.  Taking advantage of his down time, the injured worker stepped out for a cigarette and to grab a sandwich from a nearby shop.  While outside of the facility, the injured worker fell and hurt his head.

A Claim Petition was filed, and litigated, before a Workers’ Compensation Judge (WCJ).  The injured worker testified that if his supervisor was not around (as was the case that day), he was permitted to take limited breaks without express permission when there was idle time.  This was not disputed by the employer.  After hearing the evidence, the WCJ granted the Claim Petition.  Specifically, the WCJ found, “Claimant was taking a cigarette break when he slipped and fell on the walkway outside of the building in which he was working, and this was a minor deviation from employment that would fall under the personal comfort doctrine.”

A recent case in the Commonwealth Court of Pennsylvania touched on two interesting aspects of the PA workers’ compensation system.  First, the Court dealt with the offset for Social Security Old Age benefits (personally, I find “Social Security Retirement” benefits a bit less offensive), under Section 204(a) of the Pennsylvania Workers’ Compensation Act.  Second, the role and importance of a post-injury conviction, in the context of the vocational process, was considered.

The case we are discussing is Sadler v. Philadelphia Coca-Cola (Workers’ Compensation Appeal Board).  Obviously a serious injury, the workers’ comp insurance carrier accepted “’a right pinky finger amputation,’ ‘distal radioulnar joint subluxation, ECU tendinopathy, pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ resection’ and ‘right transverse process fractures of L2-3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib and right leg radiculitis, . . . and low back sprain.’” After the injury, while receiving temporary total disability (TTD) benefits, the injured worker applied for Social Security Retirement (SSR) benefits (and, in turn, the insurance company filed a Notice of Offset, reducing the TTD payments based on 50% of the SSR benefits).  Also subsequent to the work injury, the injured worker was convicted of a Class II Felony and incarcerated for some period of time.

As frequently happens, the workers’ compensation insurance carrier had the injured worker evaluated for an “Independent Medical Examination” (IME; the word “independent” being dubious, since it is the carrier who unilaterally selects the physician).  After the IME doctor releases the injured worker to gainful employment, the insurance company retains a vocational counselor to prepare a Labor Market Survey (LMS), also known as an Earning Power Assessment (EPA).  The insurer then files a Petition for Modification, based on the jobs found in the LMS/EPA (in addition to a Petition for Termination, which is not relevant to our discussion).  Among other petitions not directly relevant, the injured worker filed a Petition to Review Benefit Offset.