Pennsylvania Workers’ Compensation Lawyer Blog

As readers of our blog surely know by now, the relationship between the “retirement” of an injured worker and continued entitlement to Pennsylvania workers’ compensation disability benefits is a frequent topic in appellate litigation. The decisions in both the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania are regular enough that we, as attorneys who limit our practice to representing injured workers in PA, need to stay informed to best protect our clients.

Back in 2010, we discussed the decision of the Commonwealth Court of PA in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). In that case, the Commonwealth Court established that the taking of a disability pension, as opposed to a retirement pension, was not an indication of retirement. Therefore, the Court held that the workers’ compensation insurance carrier still had to prove that work was available to the injured worker in order to obtain a suspension of her workers’ compensation disability benefits. In 2011, we reported that the workers’ comp insurance carrier had filed a petition for review with the Supreme Court (Requested “allocatur”) and the Court granted the allowance of appeal.

Recently, the Supreme Court of Pennsylvania issued a decision, affirming the decision rendered by the Commonwealth Court. However, whereas the Commonwealth Court drew a distinction between a “disability” pension (as in this case) and a “retirement” pension, the Supreme Court held that the taking of a pension, regardless of what type of pension, does not (by itself) trigger any type of presumption (or in other words, a workers’ comp insurance carrier must prove more than that the injured worker took a pension to show that the injured worker “retired,” to obtain a suspension of the workers’ compensation disability benefits).

Several years ago, we discussed the decision in Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.), wherein the Commonwealth Court of Pennsylvania precluded an injured worker from amending a description of injury, because the injured worker had previously filed a Petition to Review and did not address that body part or diagnosis.

We found that decision to be overly harsh, unfair to the injured worker, and counter-productive for the resolution of cases (in essence, the Court punished the injured worker for agreeing to resolve the first Petition to Review by Stipulation, rather than go through the litigation process). Now, for injured workers, things have gone from bad to worse.

Recently, the Commonwealth Court of Pennsylvania, in DePue v. Workers’ Compensation Appeal Board (N. Paone Construction, Inc.), had another opportunity to address this issue, and again elected to punish the injured worker for resolving some aspect of his case. We are again mystified as to why the appellate system insists on sending a message that resolution is full of dangers and is, perhaps, best avoided.

As we have previously noted, undocumented workers in Pennsylvania are eligible for workers’ compensation benefits, but such benefits can be stopped when the injured worker is no longer totally disabled.

What a workers’ comp insurance carrier must prove to stop benefits in this situation was examined recently in the matter of Ortiz v. Workers’ Compensation Appeal Board (Raul Rodriguez). Here, the injured worker fell from a ladder and fractured his leg and ankle. Since the employer had no workers’ comp insurance, the injured worker filed a Claim Petition against the Uninsured Employers’ Guaranty Fund (UEGF).

During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker went back to work, albeit on a part-time basis. The WCJ granted the Claim Petition and awarded ongoing workers’ comp benefits, based on the injured worker’s earnings. UEGF did not appeal this decision.

When an injured worker in Pennsylvania goes back to modified duty work, and then loses that job through no fault of his own, typically the injured worker is entitled to a reinstatement of benefits, back to total disability benefits. Of course, as always, there are exceptions to the rule. One of the exceptions is when an injured worker’s benefits are modified by a finding of “bad faith.”

We saw this issue addressed by the Commonwealth Court of Pennsylvania in Napierski v. Workers’ Compensation Appeal Board (Scobell Company, Inc.). Here, the injured worker, a plumber, hurt his leg. The injury was accepted as compensable by the workers’ comp insurance carrier and total disability benefits were started.

To avoid continued payment of workers’ compensation benefits, the workers’ comp insurance carrier then lowered itself to the use of “funded employment,” a disgraceful, yet perfectly legal, tactic. The employer paid a company (Expediter) to have another company (IDI) hire the injured worker, with the original employer paying the salary (if it sounds a little fishy, well . . . that’s because it is).

Once an injured worker in Pennsylvania establishes that he or she is disabled from work, due to the work injury, typically the workers’ compensation benefits continue (at the “temporary total disability” rate) until either the injured worker goes back to work, fully recovers, settles the case, or, loses litigation which shows that the injured worker has a “wage earning capacity.”

This last situation is often the one leading to the most unfair results. Recently, in North Pittsburgh Drywall Co., Inc. v. Workers’ Compensation Appeal Board (Owen), the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ruled that benefits should be suspended (or at least modified, depending on the earnings), when the injured worker had no transportation to get to a modified job.

The injured worker in this case hurt his right wrist while doing his job in 2001. About a week after the work injury, his car was repossessed (there was no credited allegation that the repossession had anything to do with the injury or the delayed receipt of workers’ compensation benefits). The injury was accepted as work-related by the workers’ comp insurance carrier, who issued a Notice of Compensation Payable (NCP). In 2003, the employer offered the injured worker a modified duty job, the duties of which were approved by his treating physician. The job was located about 90 minutes from the injured worker’s home, about the same as the pre-injury position. Unfortunately, at that point, the injured worker still had no car.