Pennsylvania Workers’ Compensation Lawyer Blog

When a PA workers’ compensation claim is denied by the insurance carrier, it is up to the injured worker to file a Claim Petition. In litigating a Claim Petition before a Workers’ Compensation Judge (WCJ), the injured worker bears the burden to prove that he or she suffered an injury, which was related to his or her job, and was rendered disabled by such injury.

It is the WCJ who makes the critical determination of who is credible in this litigation. Neither the Workers’ Compensation Appeal Board (WCAB), nor the Pennsylvania system of Courts, can substitute their opinions on credibility of witnesses. However, the testimony of the credited witness must be “unequivocal.”

This area was highlighted recently by the Commonwealth Court of Pennsylvania in Potere v. Workers’ Compensation Appeal Board (KEMCORP). Here, the WCJ found the Independent Medical Examiner (IME; in reality, a Defense Medical Examiner [DME]) credible, and denied the Claim Petition filed by the injured worker. The WCAB affirmed.

Cases dealing with benefits stopping in PA workers’ compensation, due an alleged “retirement” of the injured worker, are frequent on our blog. Usually, Pennsylvania Courts are reading the PA Workers’ Compensation Act ever more strictly. A recent case, however, gives hope to the injured worker in Pennsylvania.

In Keene v. Workers’ Compensation Appeal Board (Ogden Corp.), the Commonwealth Court of Pennsylvania reversed the Workers’ Compensation Appeal Board (WCAB), who in turn had reversed the Workers’ Compensation Judge (WCJ), when the WCJ denied a Petition for Suspension (for an alleged voluntary withdrawal from the labor market).

The WCJ found that the injured worker, who had hurt her knee at work in 1989, had not voluntarily withdrawn from the labor market, and denied the workers’ comp insurance carrier’s Petition for Suspension. The injured worker said she had looked for work for a long time and the failure to find any work had depressed her, so she stopped even looking. The WCAB reversed, finding that the injured worker failed to look for a job for a two-year period, showing that she had withdrawn from the labor market.

In Pennsylvania workers’ compensation matters, a workers’ comp insurance carrier can only get a “Termination” of benefits when the injured worker is “fully recovered” from his or her injury. This sounds like, and should be, a difficult standard for the insurance carrier to meet. Unfortunately, as happens too often in law, the appearance is deceiving.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Schmidt v. Workers’ Compensation Appeal Board (IATSE Local 3). Mr. Schmidt suffered a herniated disc in his low back and a lumbar strain in an accident at work. For this injury, the injured worker had extensive surgery, which the Court related as:

“L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation system.”

Utilization Review is the proper course of action when either party in a PA workers’ compensation case questions whether medical treatment is reasonable and necessary. We have discussed this process in a previous blog entry.

Since the Pennsylvania Workers’ Compensation Act is remedial legislation, intended by its creators to provide the injured worker with the benefit of the doubt, what is considered “reasonable and necessary” does not have to cure a condition. As PA Courts have previously stated, “Treatment may still be reasonable and necessary ‘even when it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition.'”

A recent case, Gary v. Workers’ Compensation Appeal Board (Philadelphia School District), decided by the Commonwealth Court of Pennsylvania seems to certainly blur this line. In 2001, Ms. Gary injured her neck and back while working. Then, in 2003, a Utilization Review Determination found the treatment of a chiropractor to be reasonable and necessary.