Pennsylvania Workers' Compensation Blog

Despite the opinion issues in Sears Logistic Services v. WCAB (Preston), __ A.2d__ (Pa. Cmwlth., No 631 C.D. 2007, filed on December 5, 2007), nine days later, the Commonwealth Court issues Visteon System v. WCAB (Steglik), __ A.2d__ (Pa. Cmwlth., No 1179 C.D. 2007, filed on December 15, 2007), which seems to take a broader view of when a judge can expand recognized work injuries in the absence of a review petition. In this case, the claimant's compensable work injury was defined by a supplemental agreement and a judicial decision on a claim petition as a left shoulder sprain/strain, chronic cervical strain and sprain, cervical spondylosis with muscle spasm secondary to the strain and sprain and tendinopathy of the left shoulder. In a subsequent termination petition, a workers' compensation judge found that the claimant suffers from radial neuropathy and ulnar neuritis at both elbows, a long thoracic nerve injury, and involvment of her brachial plexus nerve. The Court reasoned that this expansion was appropriate by noting that "while these new problems [sic] areas may include Claimant's arms, elbows and hands, said problems stem from Claimant's original work injuries."

Clearly, in light of Sears Logistic Services and Visteon Systems, workers' compensation judges are allowed to expand recognized work injuries in the absence of a review petition. However, the limitations of when they are empowered to do so have still not been completely defined. Practically speaking when handling a case where the new injuries seem to be a different body part and/or were not in existence at the time the injury was recognized, it is best to file a review petition.

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In Ballerino v. WCAB (Darby Borough), ___ A.2d ___ (Pa. Cmwlth., No. 1113 C.D. 2007, filed on December 13, 2007), the Commonwealth Court held that an injured volunteer firefighter's average weekly wage should not include the statewide average weekly wagecombined with his actual pre-injury wage. The Court concluded that the Act does not permit this kind of stacking.

The Claimant in this case sustained a disabiling injury in the course of his volunteer service as a firefighter. The Employer (Darby Borough) issued a Notice of Compensation Payable, allowing the injured firefighter to collect $477.85 per week, by using the statutory formula for firefighters injured in the line of duty. The injured firefighter filed a claim petition, seeking to increase his workers' compensation, stating that his earnings from his regular full-time employment of $580 per week should have been added to the presumed statutory average weekly wage, and thus allowing him to collect $716 per week. The workers' compensation judge found against the Claimant, stating that the "stacking" of wages was not permitted by the Pennsylvania Workers' Compensation Act. The WCAB affirmed this decision.

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The Commonwealth Court in Ingram, et. al. v. WCAB (Ford Electronics & Refrigeration), ___A.2d ___ (Pa. Cmwlth., No. 491 C.D. 2007, filed on December 12, 2007) held that an approved compromise and release agreement extinguishes a dependent claimant's right to pursue a fatal claim where the decedent claimant eventually died from the occupational disease.

In Ingram the decedent was granted workers' compensation benefits in 1989 and again in 1995 for carpal tunnel syndrome. Four months after the decedent's last day of work in 1995, a claim petition was filed by the decedent for an asbestos-related occupational disease. In March of 1998, the workers' compensation judge circulated a decision approving a compromise and release agreementthat resolved liability of the employer for the accepted carpal tunnel injuries. The agreement also resolved liability for the occupational disease claim.

More than 300 weeks after the decedent's last day of work, the decedent died from lung cancer. Decedent's grandson filed a fatal claim petition to collect benefits. The Court held that an approved compromise and release agreement extinguishes a dependant claimant's right to pursue a fatal claim where the decedent claimant eventually died from the occupational disease. The Court explained its reasoning by noting that the legislature intended the compromise and release agreements to be on equal footing with civil settlements, which stress finality of the case.

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In Sears Logistic Services vs. WCAB (Preston), ___ a.2d___ (Pa. Cmwlth., No. 631 C.D. 2007, filed on December 5, 2007), the Commonwealth Court attempts to clarify when a workers' compensation judge is empowered to redefine a claimant's recognized injury in the absence of a review petition and in the context of a termination petition. The Court held that a workers' compensation judge may expand an injury on their own accord when the mistake in the Notice of Compensation Payable (NCP) relates to a "fact or condition that existed when the NCP was executed." It appears from this analysis that judges are not empowered to expand recognized injuries that flow from the work injury, i.e., occurred over time.

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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.

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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."

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In Morella v. WCAB (Selva), the Commonwealth Court upheld the WCAB's decision to change a workers' compensation judge's determination to grant a modification petition. In this case, the plaintiff sustained a work-related injury to his low back, and he was receiving full workers' compensation benefits for approximately six years. At that point in time, the employer filed a modification petition claiming that full-time work was available for the claimant based on his physical needs, and there was no loss of earning power by taking this work. The claimant did not believe he was able to do the work that the employer was offering, so a filed an answer denying the modification petition. The workers' compensation judge was capable only of part-time employment, and a modification to his benefits was granted to make up the difference of the claimant's total disability benefits and part-time wages.

The employer filed an appeal of the workers' compensation judge's decision, stating that the workers' compensation judge found the evidence of the employer's witness most credible, and based on that, the only decision to be handed down was to modify benefits and have the claimant return to full-time employment. The WCAB agreed with the employer, and the ruling of the workers' compensation judge was overturned. The claimant then appealed the decision to the Commonwealth Court. The Commonwealth Court affirmed the decision of the WCAB, explaining that finding the claimant was capable of full-time earnings was the only way that the evidence conformed to the award.

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The Commonwealth Court affirmed their position that if an employer unilaterally ceases to pay a claimant's medical bills on causation grounds, they can be held liable for penalties if a workers' compensation judge finds that the billsare causally related to the work injury. However, the Court reaffirmed that the imposition of a penalty in this situation is at the discretion of the workers' compensation judge.

In Delarosa v. WCAB (Masonic Homes), the claimant settled the partial disability benefits of her case through a lump sum settlement, but her employer remained liable for any reasonable and necessary medical expenses that are incurred as related to her work injury. The settlement occurred in 1997. In early 1998, the claimant filed a penalty petition against the employer, alleging that the employer had failed to reasonable medical expenses incurred by the claimant between 1996 and 1998 as a result of her work injury. In question was if the medical treatment was causally related to the claimant's work injury. The Court found that the treatment was medically necessary and related to her work injury and ordered the employer to pay for the expenses. With regards to the penalty petition, the Court stated that the imposition of a penalty in these types of situations is up to the workers' compensation judge who hears the penalty, and not the Court, and thus, denied the penalty petition.

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The Commonwealth Court determined that an employer was in violation of the Pennsylvania Workers' Compensation Act by failing to pay benefits on a workers' compensation judge's order that granted benefits. In City of Philadelphia v. WCAB (Sherlock), the claimant was injured while on duty and filed a claim petition seeking workers' compensation benefits. The claimant's employer did not respond to the petition, and the workers' compensation judge awarded the claimant's benefits. The employer did not file an appeal against the order, but failed to pay any workers' compensation benefits. The claimant then filed a penalty petition against the employer, alleging that the employer violated the Pennsylvania Workers' Compensation Act (the Act) by refusing to pay the workers' compensation benefits awarded by the workers' compensation judge. The employer aruged that it had complied with the order because they paid the claimant Injured On Duty (IOD) benefits based on the claimant's special civil service agreement. The workers' compensation judge sided with the employer and denied the claimant's penalty petition.

The claimant then appealed to the Workers' Compensation Appeal Board (WCAB) where the decision was reversed. The WCAB stated that 1) the claimant's IOD benefits did not amount to compliance with the judge's order and 2) there was no dispute that the employer failed to pay any workers' compensation benefits pursuant to the first judge's order, and this was a clear violation of the Act. The case was remanded back to a workers' compensation judge for further findings limited only to the issue of whether penalties, litigation expenses, and attorney fees should be assessed against the employer for violation of the Act.

Continue reading "Commonwealth Court Determines IOD Benefits Do Not Amount to Constructive Compliance" »

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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.

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

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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.

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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.

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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.

Continue reading "Commonwealth Court Rules in Favor of Injured Worker in Offset Dispute" »

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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.

Continue reading "Commonwealth Court Reverses Decision Based on Labor Market Survey" »

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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.

Continue reading "Commonwealth Court Prevents Workers' Compensation Insurance Carriers From Limiting Injured Worker Recourse" »

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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

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