Pennsylvania Workers’ Compensation Lawyer Blog

Before Labor Market Surveys (LMS)/Earning Power Assessments (EPA), workers’ comp insurance carriers in PA used to actually have to prove a specific job was available to an injured worker in order to modify or suspend workers’ compensation benefits. This changed in the 1996 amendments to the Pennsylvania Workers’ Compensation Act, but any injured worker who was hurt before the amendments took place continues to fall under the “Old Act.”

In those cases, and even in LMS/EPA cases these days, the litigation starts with an Independent Medical Examination (IME), better, and more accurately, known as a “Defense Medical Examination.” Once some doctor releases the injured worker to some kind of work, the workers’ comp insurance carrier can start the vocational process (whether that be LMS/EPA, or the “Old Act” job referrals). But, when is a medical release too old, or stale, to be used?

In Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Guyders), the Commonwealth Court of Pennsylvania addressed this issue. This was an “Old Act” case, so the injured worker was sent on 73 job referrals (yes, you read that right, 73 – apparently, the workers’ comp insurance company does not know the meaning of the word “overkill.”)

In an earlier blog entry, we discussed the 2009 decision by the Supreme Court of Pennsylvania in Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill). This case discussed the procedure for amending a Notice of Compensation Payable (NCP).

The Court, in Cinram, decided that a “corrective amendment” (a condition which was present at the time of the injury and was erroneously left off the NCP) was to be treated differently than a “subsequently-arising” or “consequential” condition (a diagnosis not present at the time of the injury, but rather developed after the date of the injury). In the former, a Workers’ Compensation Judge (WCJ) can amend the NCP at any time any type of Petition is being litigated. On the other hand, in the latter, the injured worker must actually file a Petition to Review to achieve an amendment to the NCP.

An issue left open in Cinram was the appropriate “statute of limitations” in either of these situations. This issue has now been addressed, by the Commonwealth Court of Pennsylvania, in Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Court found there to be no difference between the two situations for statute of limitations purposes.

**Update – Appeal accepted by the Supreme Court of Pennsylvania on April 27, 2011 – Stay tuned for more details**

Years ago, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act (Known as Act 57), a workers’ comp insurance company in PA had to prove that work was actually open and available to an injured worker in order to reduce or stop the payment of workers’ compensation benefits. This was known as the “Kachinski” standard, after the Pennsylvania Supreme Court decision in Kachinski v. Workers’ Compensation Appeal Board (Vepco Constr. Co.), decided in 1987. This was discussed in previous blog entries.

One of the more dangerous additions in those changes to the Act in 1996 was the invention of the “Earning Power Assessment” (EPA)[Also known as a “Labor Market Survey” [LMS]]. The EPA, or LMS, was to take the place of actual job referrals. A vocational counselor would be hired by the workers’ comp insurance carrier to go out and find job openings, and prepare the EPA/LMS. This document was to serve as an estimate of the jobs which exist in the geographic area in which the injured worker resides.

In a previous blog posting, we discussed the case of Armstrong v. Workers’ Compensation Appeal Board, decided by the Commonwealth Court of Pennsylvania in 2007. This case first allowed a PA workers’ compensation insurance carrier to use a Notice of Denial (NCD) to “accept” a workers’ comp case. As attorneys for injured workers in PA, we hoped this case would be viewed narrowly, if not reversed, by future Court decisions.

Unfortunately, the Commonwealth Court of Pennsylvania, in the case of Forbes Road CTC v. Workers’ Compensation Appeal Board (Consla), has now expanded this theory. No longer does a PA workers’ comp insurance carrier have to even issue a Temporary Notice of Compensation Payable (TNCP), then revoke the TNCP, to use an NCD to accept a case (as it was done in Armstrong). In Consla, the Court specifically stated that, “we hold an employer may properly issue an NCD to accept a claimed work injury for medical purposes only.”

As we felt after reading the Armstrong decision, we can only wonder why the Pennsylvania Bureau of Workers’ Compensation would have gone to the trouble of developing a specific form called a “Medical Only Notice of Compensation Payable,” which was designed to be issued in this very type of case, if an NCD could simply be used. Oh, and we also wonder how a Court can decide that a Notice of DENIAL can be used to ACCEPT a case. Silly us, we thought the Pennsylvania Legislature was charged with making laws, leaving the Courts to simply interpret them.

As we have discussed in several previous blog entries, an injury at work in PA must happen in the scope and course of employment to be compensable under the Pennsylvania Workers’ Compensation Act. Often, this is the issue in dispute when an employee is injured in a parking lot, either coming to, or leaving, work.

In ICT Group v. Workers’ Compensation Appeal Board (Churchray-Woytunick), recently decided by the Commonwealth Court of Pennsylvania, a worker slipped and fell in a parking lot as she was preparing to leave the premises for lunch. Since the employee was required to take a lunch break, was allowed to leave the premises, the parking lot was used by the employees and the injury took place only about ten feet from the employer’s door, the Court found the injury was within the scope and course of employment and workers’ comp benefits were awarded.

These cases are always very “fact-specific,” and there are many different ways these types of cases go. Yet another reason that injured workers should be sure to select attorneys with extensive experience in PA workers’ compensation matters.

While there is no minimum time a worker must be employed before the worker qualifies for workers’ compensation coverage in Pennsylvania, the worker must actually be “employed” at the time of the injury. This means there must be both an offer and an acceptance of employment, before the work injury takes place.

In Moberg v. Workers’ Compensation Appeal Board (Twining Village), a recent decision of the Commonwealth Court of Pennsylvania, a prospective employee was injured while getting a tuberculin test. Since this test must have been passed before an offer of employment could have been made, the Court found that, at the time of the test, the injured worker was not actually an “employee” yet. As such, PA workers’ compensation benefits were denied.

This case does bring up the fact that an employee is immediately covered under the Pennsylvania Workers’ Compensation Act, as soon as employment begins. We have seen several cases over the years where an employee is hurt on the first day of work. In those cases, there is no doubt the injured worker is entitled to PA workers’ comp benefits. The key, as noted in Moberg, is that the employment relationship must have actually started before the injury takes place.