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The Pennsylvania Workers’ Compensation Act, in Section 306(b)(3), requires that an insurance carrier provide notice (in the form of a “Notice of Ability to Return to Work”) to an injured worker when the carrier receives information that the injured worker is able to work in any capacity. This notice is generally a threshold requirement before the carrier can move to modify or suspend workers’ compensation benefits based on a job offer or a Labor Market Survey.

Therefore, if a Notice of Ability to Return to Work is not issued, typically, the carrier cannot prevail on a Petition to Modify or Suspend workers’ comp benefits. There are exceptions to this rule, including a situation where an injured worker has already returned to gainful employment. Recently, the Commonwealth Court of Pennsylvania dealt with another situation where the injured worker did not receive the Notice of Ability to Return to Work before a job offer was made.

In Smith v. Workers’ Compensation Appeal Board (Caring Companions, Inc.), the injured worker’s attorney received a medical report releasing the injured worker to light duty work. Since there was currently litigation (Claim Petition) pending, the attorney then properly sent a copy of this report to the workers’ comp insurance carrier. A job offer letter was sent to the injured worker after the receipt of this report, but a Notice of Ability to Return to Work was not issued.

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While we limit our practice to representing injured workers in Pennsylvania workers’ compensation cases, We could not help but notice a recent PA unemployment compensation case decided by the Commonwealth Court of Pennsylvania.

Unemployment compensation benefits are generally available in Pennsylvania when an employee involuntarily loses his or her job, provided there was no “willful misconduct.” What constitutes “willful misconduct,” as is so often in the law, varies from case to case.

In the case of Brown v. Unemployment Compensation Board of Review, the employee was a battery machine operator. When he placed a sign on a defective battery stating “do not use,” the sign had been ignored. He then put signs on defective batteries, stating, “To the moron who can’t read do not use this,” “do not use this battery” and “Not charging you moron.” The employee was promptly terminated for his use of the word “moron.”

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Several months ago, we reported that four PA Workers’ Compensation Judges (WCJs) had stepped down from the bench, while only two new WCJs had been named by the Pennsylvania Bureau of Workers’ Compensation. This left a difficult void in some hearing offices, such as that in Allentown.

We are now pleased to report that a new WCJ has been named to the bench in Allentown. She is The Honorable Cathleen A. Sabatino, who most recently was practicing as a Senior Associate at the law firm of Del Collo & Mazzanti LLP in Paoli, PA. Since graduating from Villanova University School of Law, Ms. Sabatino has been active in the Workers’ Compensation section of the Philadelphia Bar Association where she has served as chair of the section’s annual charity auction. In her community, Ms. Sabatino volunteers as an adult mentor with Spring-Ford Community Theatre’s Youth Ensemble (She holds a B.A. in Theatre from DeSales University).

It is with warm thoughts that we greet The Honorable Cathleen A. Sabatino, and we wish her well in her new career as a WCJ in Allentown.

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For some time now, the Pennsylvania Bureau of Workers’ Compensation has been working on a new electronic system to make interacting with a Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) a more efficient and accessible process. The Bureau is unveiling the process, known as the Workers’ Compensation Automation and Integration System (WCAIS), in two stages.

The first stage, which went “live” on September 17, 2012, deals just with the WCAB. As the Bureau stated, with this release:

“Parties will be able to file appeals, petitions and documents online with the WCAB and to upload documents, and search, view and obtain information on the status of appeals in WCAIS.”

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Settling a workers’ compensation case in PA, generally referred to as a “Compromise & Release,” is a big decision. There are many factors which go into not only the value of the case, but whether settlement is even advisable. The advice of an attorney who is experienced with PA workers’ comp cases can be very valuable. This goes for the settlement itself, as well as the documents carrying out the settlement.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Hoang v. Workers’ Compensation Appeal Board (Howmet Aluminum Casting, Inc.). In this case, the injured worker settled his case (by executing a Compromise & Release Agreement). Sometime after the settlement, the injured worker learned that his treating doctor had an outstanding bill for over $37,000.00.

An appeal of the Compromise & Release Agreement could not be filed (since one only has 20 days to file such an appeal), so the injured worker filed Review and Penalty Petitions, seeking payment of this medical bill. The Workers’ Compensation Judge (WCJ) noted that the Compromise & Release Agreement failed to state that the workers’ compensation insurance carrier would be responsible for any medical bills. Since this is a somewhat common statement in a PA workers’ comp settlement, the WCJ called this “telling.” The injured worker argued there was a “mutual mistake of fact,” so the settlement should be reopened. Ultimately, the WCJ denied the Petitions, finding that the workers’ compensation insurance carrier did not violate the Pennsylvania Workers’ Compensation Act because the Compromise & Release Agreement did not require payment of this bill. No mutual mistake of fact was seen by the WCJ. The decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

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In a surprising development, we have learned that the Pennsylvania Bureau of Workers’ Compensation will be closing the Northeast Philadelphia Workers’ Compensation Hearing Office (currently located on Grant Avenue in Northeast Philadelphia). This decision came as somewhat of a shock, since only a couple of weeks before, a high ranking source in the Bureau had mentioned that the Northeast Philadelphia office was one of the busiest hearing offices in the entire State. Indeed, that source had revealed that a plan was being discussed to divert some cases from that office to the Center City Philadelphia Hearing Office.

Instead, the Bureau has now elected to close the Northeast Philadelphia office entirely. This means that injured workers who reside in Northeast Philadelphia will have to travel to the hearing office in Center City Philadelphia (at 8th and Arch Streets, not far from the Philadelphia Convention Center).

While this decision is now known to those practicing in the PA workers’ compensation community, no announcement has been publicly made by the Bureau. We are not yet aware of the time frame for the closing of the office. As always, we will notify our loyal readers as soon as additional information is discovered.

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Ordinarily, to be compensable as a work injury in Pennsylvania, an injury must take place while the injured worker is in the “scope and course” of his or her employment. Interestingly, the phrase “scope and course” is not even mentioned in the Pennsylvania Workers’ Compensation Act, though the concept, derived from case law, has great importance.

An injured worker with a fixed place of employment (“stationary employee”) is generally covered for an injury away from the fixed place of employment only if he or she is actually furthering the affairs of the employer. In contrast, a travelling employee (one with no fixed place of employment), has a greater latitude of when he or she is within the scope of employment.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Rabin, Deceased), finding that the injured worker, a stationary employee, was still within the scope and course of his work when he was injured at the salad bar at a nearby restaurant.

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As most sports fans in the Philadelphia area are aware, the Philadelphia 76ers recently completed a blockbuster trade, netting them star center Andrew Bynum from the Los Angeles Lakers. These same fans are also likely aware that Bynum is heading to Germany for a procedure on his troublesome knees which is currently not available in the United States.

In the past, Bynum has had multiple problems with his knees, including a dislocated knee cap, a torn MCL and a torn meniscus. Though he seemed to be fairly healthy last season, Bynum desires this treatment. The procedure Bynum will be having is not approved by the U.S. Food & Drug Administration, which is why he must travel to Germany to get this care.

The treatment at issue here is called Regenokine Therapy. While it is said to be beneficial to knees, it is also alleged to help with low back pain and other conditions, including osteoarthritis. Other athletes to have undergone Regenokine Therapy reportedly include the Lakers’ Kobe Bryant and the Yankees’ Alex Rodriguez.

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As attorneys who represent injured workers in PA, we are often told by our clients that their doctor or physical therapist is not being paid by the workers’ compensation insurance carrier. Moreover, the client is receiving bills from the provider, maybe even notices from a collection agency. This is a sticky area, since the rules are in place, but not easily enforceable.

The Pennsylvania Workers’ Compensation Act is very specific on this topic. Right in the Act, Section 306 (f.1)(7), it says:

“A provider shall not hold an employe liable for costs related to care or service rendered in connection with a compensable injury under this act. A provider shall not bill or otherwise attempt to recover from the employe the difference between the provider’s charge and the amount paid by the employer or the insurer.”

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When we attended the Annual Workers’ Compensation Conference in Harrisburg, presented by the Pennsylvania Bureau of Workers’ Compensation, more was discussed than just the status of workers’ compensation laws in PA.

Though we did certainly have sessions regarding many topical issues with the Pennsylvania Workers’ Compensation Act, including scope and course of employment, positive work rules, undocumented workers, Medicare Set-Asides, recent legal developments, along with other various medical and legal issues, time was also taken to share the importance of Kids’ Chance, a charity “dedicated to helping our kids who need it most – those who need assistance for college or vocational education because a parent was killed or injured in a work-related accident.”

We would urge injured workers, and families of injured workers, to avail themselves of this valuable resource.

Contact Information
Trevose
5 Neshaminy Interplex Dr, #205
Trevose, PA 19053
Phone: (215) 638-7500 [Formerly (215) 244-8101]Fax: (267) 803-6298
Lehigh Valley
609 Hamilton Mall
Allentown, PA 18101
Phone: (610) 740-1002Fax: (267) 803-6298
Pineville P.O. Box
P.O. Box 196
Pineville, PA 18946-0196

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