Pennsylvania Workers' Compensation Blog

Commonwealth Court Upholds Decision Granting a Petition to Review Utilization Review Determination

Sat, 10 Nov 2007 12:18:01 -0500

The Commonwealth Court, in Loc, Inc. v. WCAB (Graham), ruled in favor of a claimant, upholding a decision granting a Petition to Review Utilization Review Determinations. The employer had filed Utilization Review Request to challenge the reasonableness and necessity of medications prescribed by the claimant's treating physician. The Utilization Review Organization (URO) requested medical records from the claimant's doctor. The doctor provided records, but the URO found the doctor's treatment not medically reasonable or necessary because, while the dovtor had provided records, "there is not documentation of significant efficacy of the medication prescribed." The claimant filed a Petition to Review the Utilization Review Determination, and the workers' compensation judge found the prescriptions were, in fact, reasonable and necessary. The employer sought to have the judge's decision reversed, citing the Court's prior decision in Geisler. However, the Court distinguished this case from Geisler by noting that in Geisler, the provider failed to forward any medical records to the URO, and no UR Determination was issued, and the provider and claimant were barred from appealing the matter any further. In the instant case, the doctor did forward medical records -- just not records which the URO anticipated or sought.

Commonwealth Court Upholds Employer's Medical Expert Must Recognize Formal Description of Work Injury

Wed, 07 Nov 2007 12:08:14 -0500

In Denise Elberson v. WCAB (Elwyn, Inc.), the Commonwealth Court held that an employer's medical expert must recognize the formal description of the work injury and opine that the claimant has fully recovered in order for the employer to be successful in terminating a claimant's benefits.

In the case, the employer's medical expert testified that he thought the claimant's work injury was a strain or sprain of the back. However, a lumbar disc herniation had been recognized through a Notice of Compensation Payable. The Court held that the medical expert's testimony was insufficient to support the employer's contention that the claimant had fully recovered. The Court wrote that "(a)t a bare minimum, the expert must know what the accepted work-related injury was to be competent to testify that a claimant has fully recovered from a work-related injury."

Commonwealth Court Restricts Employer's Right to Offsets Based on Old-Age Social Security Benefits

Tue, 18 Sep 2007 11:15:52 -0500

In Maxim Crane Works v. WCAB (Solano), the Commonwealth Court handed down an decision which greatly restricts an employer's right to take a credit to offset workers' compensation benefits based on an injured worker's receipt of old-age Social Security benefits.

Under the Pennsylvania Workers' Compensation Act, an employer is entitled to an offset against workers' compensation in certain situations for pension and retirement benefits as well as Social Security retirement benefits. Act 57 of 1996 provided for the creation of forms by the Bureau of Workers' Compensation for an injured worker to report his or her recript of such benefits as well as for the employer to notify the worker of its right to an offset. Specifically, the Bureau created the Employee Report of Benefits (LIBC-756) form and the Notice of Workers' Compensation Benefit Offset (LIBC-761) form.

Commonwealth Court Affirms Workers' Comp. Carriers Not Responsible for Paying for Unlicensed Medical Treatment

Mon, 27 Aug 2007 11:04:16 -0500

In Blaine Boleratz v. WCAB (Airgas), the Commonwealth Court affirmed that workers' compensation insurance carriers are not responsible for paying for medical treatment to an injured worker unless it is rendered under the supervision of a licensed medical practitioner. In this case, the injured worker obtained therapy from a massage therapist. The carrier refused payment, noting that massage therapists are not eligible health care providers as defined by the Pennsylvania Workers' Compensation Act. It is important to note that the Court agreed with the insurance carrier, even though the massage therapy was prescribed by a licensed medical provider. But, because the actual treatment (massage therapy) was not provided or supervised by a licensed medical practitioner, the carrier was not held liable for payment.

Commonwealth Affirms Individuals Are Entitled to Benefits Regardless of Earning Status Outside of Volunteer Duties

Wed, 15 Aug 2007 15:34:47 -0500

In a victory for the Commonwealth's fire and ambulance volunteers, the Pennsylvania Supreme Court has affirmed that such individuals are entitled to workers' compensation benefits regardless of their earning status outside of their volunteer duties. In Borough of Heidelberg and Inservco Insurance Services Inc. v. WCAB (Selva), they rejected the employer's argument that the volunteer worker (injured while performing her volunteer duties) in the case should have been denied workers' compensation benefits because she had no other paying job and was not actively engaged in the workforce. THe Court held that it was the Pennsylvania State Legislature's intention for "those partaking in this laudable and selfless profession are entitled, at a minimum, to the presumed statewide average weekly wage." As a result, volunteers are entitled to workers' compensation benefits based on imputed earnings of no less than what the average Pennsylvania worker made in the year that the injury occurred.

Commonwealth Court Rules in Favor of Injured Worker in Offset Dispute

Mon, 06 Aug 2007 12:37:32 -0500

The Commonwealth Court in Glen Gadonas v. WCAB (Boeing Defense & Space Group)ruled in favor of an injured worker in a dispute over whether the employer was entitled to an offset against the claimant's workers' compensation benefits for disability pension money received by the worker. The Pennsylvania Workers' Compensation Act allows an employer to reduce an injured worker's workers' compensation benefits by any amount that the injured worker receives in employer-funded disability pension benefits. In this case, shortly after going out on workers' compensation, the employee sought to receive his disability pension. The employer specifically assured the employee that there would not be any offset against his workers' compensation benefits if he took the disability pension. The employee began receiving $738 per month in a disability pension.

Commonwealth Court Reverses Decision Based on Labor Market Survey

Sun, 05 Aug 2007 14:05:50 -0500

In an unfortunate decision, the Commonwealth Court reversed the Workers' Compensation Appeal Board (WCAB) in a case where an injured worker found new employment on his own after his work injury. The employer sought to further reduce the workers' benefits based on a Labor Market Survey showing a greater earning capacity. In the case of CRST v. WCAB (Boyles), the injured worker secured employment in the security field. The work paid less than he was making prior to this injury and, therefore, the worker remained entitled to partial disability benefits based on his continuing wage loss. The employer filed a Petition to further reduce claimant's earning power based on vocational evidence that suggested that employment opportunities existed for the worker which would pay in excess of his actual current wages. The workers' compensation judge denied the employer's Petition, concluding that the claimant's earning power had been established by his actual job search and that fact precluded the employer from establishing that he had a greater earning capacity. The WCAB agreed with the workers' compensation judge.

Commonwealth Court Prevents Workers' Compensation Insurance Carriers From Limiting Injured Worker Recourse

Fri, 27 Jul 2007 12:01:54 -0500

The Commonwealth Court in Ruth Hough v. WCAB (AC&T Companies) handed down an important ruling that prevented workers' compensation insurance carriers from limiting an injured worker's recourse when medical bills are not paid in a timely manner. In Hough, the injured worker filed a Penalty Petition alleging that the insurance carrier had failed to pay for the claimant's prescription medications in the time period prescribed by the Pennsylvania Workers' Compensation Act and its medical cost containment regulations. The workers' compensation judge granted the Penalty Petition and assessed penalties against the carrier. The carrier appealed, arguing that rather than filing a Penalty Petition, the claimant was obligated to first seek to rectify the issue by filing a fee review request under Section 306(f.1)(5) of the Act. This Section calls for an "administrative decision" by the Department of Labor and Industry where the medical provider is alleging that the carrier is not making payment in the proper amount or in a timely manner. The Workers' Compensation Appeal Board (WCAB) agreed with the carrier and reversed the judge's award. The Claimant then appealed to the Commonwealth Court.

Commonwealth Court Compels Injured Worker to Attend IME

Tue, 17 Jul 2007 11:15:05 -0500

In Davis v. Woolworth Corporation(WCAB), the Commonwealth Court compelled an injured worker to attend an independent medical examination (IME) where the claimant had previously settled the wage loss (indemnity) portion of her claim and had not had an IME in the past seven years. The claimant argued, among other things, that the mere passage of time was not a basis on which to compel a claimant to attend an IME. The Court held that the passage of time is, in fact, grounds to compel such an exam. The Court cited long-established practice and case law which generally allow an employer to have a claimant attend an exam twice a year. To view the entire decision, click here

Commonwealth Court Again Refuses to Allow Claimants to Use IRE Results to Limit Employer's Right to Stop Workers' Comp

Fri, 13 Jul 2007 10:29:03 -0500

In a decision filed on June 18, 2007, the Commonwealth Court once again refused to allow claimants to use an Impairment Rating Evaluation (IRE) results to limit the employer's right to attempt to stop workers' compensation benefits. In Weismantle v. WCAB (Lucent Technologies), the Court held that an employer's Termination Petition was not foreclosed where the employer also requested an IRE while the Termination Petition was pending. This decision comes on the heels of the Court's 2006 decision in Schachter v. WCAB (SPS Technologies), wherein the Court ruled that an IRE showing a percentage whole-body impairment did not preclude the employer from later seeking a termination of benefits. To view the entire decision, click here.

Commonwealth Court Agrees that a Surviving Dependent Parent May Collect Workers' Compensation Benefits for a Deceased Child

Tue, 19 Jun 2007 12:57:31 -0500

In some instances, the Pennsylvania Workers' Compensation Act provides for survivor benefits to the decdents of those fatally injured in a work accident. The Act provides for payment of benefits to a surviving parent of the deceased worker in cases where the parent was dependent upon the worker for support. In the context of a workers' compensation claim, the test of dependency is whether or not the child's earnings were needed to provide the parent or parents with some of the ordinary necessities of life for the typical person in the parent's social and economic position.

In Wyoming Valley Health Care Systems v. WCAB (Kalwaytis), the Commonwealth Court looked at a case where a social worker was killed in a work-related motor vehicle accident. The deceased worker had been residing with her mother. Her mother filed a claim for workers' compensation benefits alleging that she was partially dependent on her daughter at the time of the accident. The workers' compensation judge was presented with detailed financial information for both the mother and daughter and considered their combined household expenses. The judge found that the mother was, in fact, partially dependent on the daughter to "make ends meet," and the judge awarded the mother $185.40 per week in benefits. Both the Workers' Compensation Appeal Board and the Commonwealth Court agreed with the judge's decision.

Pennsylvania Commonwealth Court Refuses to Offset Fatal Claim Benefits

Sun, 17 Jun 2007 12:51:00 -0500

When an injured worker receives workers' compensation benefits, those benefits can be offset or reduced when the injured worker begins to collect his or her Social Security Retirement benefits. The amount by which th workers' compensation benefit is reduced is determined by how much the injured worker receives in Social Security Retirement benefits. However, in the case of Zurich vs. WCAB (Bryan), the Commonwealth Court was faced with determining how this applies to a case where a widow was receiving fatal claim benefits as a result of her husband's fatal work injury when he fell from a crane. At the time of the husband's death, neither the victim nor his widow were collecting their Social Security Retirement benefits. Subsequent to the tragedy, the widow began to receive the benefits based on her status as the surviving widow of the decedent. The workers' compensation insurance carrier attempted to reduce her workers' compensation benefits based on her receipt of the Social Security Retirement benefits. However, the Court examined the applicable statute and found no mention of applying the offset to fatal claim benefits and refused to do so. The widow was entitled to continue receiving the workers' compensation fatal claim benefits without any reduction.

Commonwealth Court Holds Firm on Employees Demonstrating Abnormal Working Conditions in Psychological Injury Claims

Fri, 08 Jun 2007 13:09:40 -0500

The Commonwealth Court in Babich v. WCAB (CPA Department of Corrections), handed down another in a long line of decisions making it difficult for workers to collect workers' compensation benefits based on an alleged psychological injury resulting from non-physical stimuli in the work environment. The courts have consistently held that an employee must demonstrate that the psychological injury occurred due to an "abnormal working condition." In this case, the employee was a registered nurse in a state prison. During his employment, the claimant was subject to having feces and urine thrown on him, having threats made against him and his familly, and had to attend to several traumatic emergency situations including, but not limited to, one instance where an inmate mutilated his own genitals, and the employee had to retrieve a stray testicle from the cell floor. Based on testimony from several simlarly-employed individuals, the judge agreed with the employer's argument that the claimant's workplace experiences were not abnormal for someone in his specific line of work and place of employment. The claim for psychological benefits was denied.

Commonwealth Court Makes Clear There is No "Grace Period" for Employers to Make Timely Payment

Tue, 29 May 2007 15:24:13 -0500

In this Commonwealth Court decision filed on May 17, 2007, the Court finds, in conjunction with recent decisions, that there is no "grace period" for the employer to make timely payment on settlement payments for an injured worker. For a full-text of the decision, click here.

On 10/18/2004, the client in the case settled their case through compromise & release, and the decision was circulated on the same date. On 11/5/2004, the settlement checks are issued, but the client's check is not signed by the insurance carrier and is, therefore, not negotiable. The client's attorney returned the check to the carrier, and the carrier received the check on 11/10/2004. On 11/18/2004, the client files a penalty petition for failure of the carrier to re-issue the check within 30 days. The insurance carrier finally re-issued the check on 11/22/2004. In this case, since the insurance carrier did not fulfill the obligation of issuing payment within 30 days of the decision, the Workers' Compensation Judge awarded the client a 5% penalty that was confirmed by the Workers Compensation Appellate Board and the Pennsylvania Commonwealth Court.

This decision affirms that the 30-day deadline to issue payment in a compromise & release is clear, and there is no excuse for the untimely issue of checks by insurance carriers.