The Pennsylvania Department of Labor and Industry has announced that the maximum workers' compensation benefit rate for an injury that occurs in 2010 will be $845.00 per week. The maximum rate for a 2009 injury is $836.00, making this one of the smallest yearly increases in recent history.
Ostrawski v. Workers’ Compensation Appeal Board (UPMC Braddock Hospital)
In determining whether a claimant is entitled to include wages earned with a concurrent employer in an average weekly wage the following factors should be examined: the period of employment preceding the work injury, whether periods of layoff were frequent, whether a concurrent employer terminated an employee during a layoff and whether a laid-off employee returned to work following such a period. Moreover, the Court explained that the presence of these factors can sufficiently demonstrate a pre-injury ability to earn wages for the alleged concurrent employment.
McLaurin v. Workers’ Compensation Appeal Board (SEPTA)
The Commonwealth Court upheld a workers’ compensation judge’s finding that a bus driver who was accosted by several hooded young men with guns was not exposed to abnormal working conditions. The employer presented evidence which showed such occurrences were not extraordinary and were envisioned as part of the work. This case seems to uphold the line of cases that state that abnormal working conditions are hard to demonstrate absent illegal activity on the part of the employer.
In a decision filed on September 2, 2009, the Commonwealth Court ruled that an employer is responsible for paying for repairs to an injured workers' home due to substandard construction when that original construction was necessitated by claimant's work injury.
In Equitable Resources v. WCAB (Thomas), the employer was required to make modifications to claimant's bathroom due to claimant's paraplegia caused by his work injury. After that construction was completed, claimant began to experience water leakage in the bathroom and mold began to form in the walls and under the floors. The Court held that the employer is also responsible for paying for the repairs necessary to rectify the poor construction.
The claimant in this case, World Kitchen, Inc. v. Workers’ Compensation Appeal Board (Rideout) returned to work for the employer in a 40-hour a week position in which she was to earn slightly less than her pre-injury earnings. However, she began having problems performing the job and took days off, because of her work-related back pain. The judge and the Board found that she was entitled to benefits based on the amount of actual earnings and not the 40 hour a week job. The Court reviewed the evidence and found that the claimant never established medically or even factually that she was missing work as a result of her work-related back condition. Thus, it reasoned that the employer was entitled to a modification based upon the 40 hour a week job.
The Court and Administrative Proceeding Interpreter Certification Law provides for Administrative Agencies, including the Bureau of Workers' Compensation, to provide language interpreters (including sign language) when required by a claimant at a hearing. The cost of the interpreter is paid by the Administrative Agency. If you require such a service, please notify your attorney's office which can make the necessary arrangements with the hearing office. At least 10 days notice prior to the hearing is strongly recommended.
Pursuant to the Workers' Compensation Act, Section 105.1, the Department of Labor & Industry has determined the statewide average weekly wage for injuries occurring on and after Jan. 1, 2009, shall be $836.00 per week. For purposes of calculating the update to payments for medical treatment rendered on and after Jan. 1, 2009, the percentage increase in the statewide average weekly wage is 3.6 percent.
If you were injured in 2009 and your average weekly wage is $1,254 or greater, you will collect $836.00 per week in total disability benefits. If your average weekly wage falls between $627.01 and $1,253.49, you will collect 66 2/3% of your average weekly wage on a weekly basis.
If you were injured in 2009 and your average weekly wage is between $464.44 and $627.00, you will collect $418.00 in weekly total disability benefits.
If you were injured in 2009 and your average weekly wage is $464.43 or less, you will collect 90% of your average weekly wage on a weekly basis.
In these uncertain times of recession, many workers’ fear that their jobs may be in jeopardy. Some of those who face the greatest fears are those who have gone back to work on light or modified duty, as these jobs may be the first targeted when layoffs occur.
For these clients, you need to make sure your rights are protected. Under current case law, if an individual working restricted duty due to a work injury is laid off, the employer is obligated to reinstate wage loss benefits. In many of these cases, the employer will not do so voluntarily, and a petition to reinstate benefits must be filed.
It is for these above reasons that you’ll need to make sure your rights are protected in these shaky economic times. Make sure you contact your attorney if you are laid off to discuss your options and know what benefits you are entitled to receive in case of a layoff.
In Nickel v. WCAB (Agway Agronomy), No. 719 C.D. 2008, October 22, 2008, the claimant and employer entered into a compromise and release agreement in the context of a claim petition where liability was disputed. Importantly, in the settlement agreement, the employer agreed to pay for the outstanding medical bills that were related to the alleged work injury. Thereafter, the employer filed a fee review which the Commonwealth Court held that it had jurisdiction to do so, because in effect it had accepted liability for their payment. However, the Court also held that the medical provider that was going to be reimbursed for bills by the employer could not seek the higher repricing under the Act after accepting initial payment from Medicaid. Nor can the medical provider seek the difference in the payment from the claimant. In other words, if the medical provider chooses to accept funds from Medicaid, then it cannot seek additional payment under the Workers' Compensation Act.
In Waronsky v. WCAB (Mellon Bank), 367 C.D. 2008, October 22, 2008), the Commonwealth Court affirmed the denial of a claim petition by a claimant because it found that the workers' compensation judge correctly determined that the claimant was not in the course and scope of her employment when she was struck by a car as she was crossing the street from the employer-owned parking garage to the employer's office. This was reached even though the employer encouraged its employees to park in its garage and the employer had a voluntary transportation program that permitted the claimant to pay for parking with pre-tax earnings.
The claimant in this case was determined not to be in the course and scope of her employment because she was not required to park in the employer's garage, and the employer did not issue parking directives or exercise control over the mode of transportation that the claimant chose to get to work. The claimant was free to park her car where she chose. Also, the area where the employer operated did not ban on-street parking, so there was no necessity for the claimant to park in the garage.
In Patton v. WCAB (Lane Enterprises, Inc.), 2623 C.D. 2007, filed October 22, 2008, the Commonwealth Court held on appeal that workers' compensation judge's determination that the decedent claimant did not suffer from an occupational disease was supported by substantial and competent evidence. This is because the workers' compensation judge credited the employer's medical witnesses and rejected the assertion that the claimant suffered from an occupational disease.
In fatal claims, while a death certificate is admissible as proof, it is not conclusive proof for both the fact and cause of death. As the Court found, the claimant failed to establish her entitlement to the rebuttable presumption that her husband was employed in an occupation or industry in which the occupational disease was a hazard.
In Crawford as personal representative of Josephine Crawford, deceased v. WCAB (Centerville Clinics, Inc.), No. 2331 C.D. 2008, filed October 10, 2008, a Compromise and Release Agreement was made null and void by the death of the client prior to the formal order being issued. In the case, the claimant testified regarding a compromise and release agreement before the workers' compensation judge on August 24, 2005. However, before a formal order was issued on August 29, 2005, the claimant passed away from cervical cancer. Thereafter, the employer filed an appeal with the Workers' Compensation Appeal Board, which sent the case back to the workers' compensation judge. The workers' compensation judge determined that the parties had agreed under Paragraph 18 of the agreement that the deal would be "null and void upon her death if not approved by a judge." Since the claimant died before such approval, the agreement was in fact, null and void.
Claimants must be sure to keep their attorneys informed of their health issues when entering into settlement agreements, as terminal illness issues of this nature can cause problems with compromise and release agreements.
In Griffiths v. WCAB (Seven Stars Farm, Inc.) 148 MAT 2005 (Decision by Chief Justice Castille, Decided March 19, 2008) the Pennsylvania Supreme Court reversed the Commonwealth Court and held that under proper circumstances, a van and the modifications to make it wheelchair accessible qualify as an orthopedic appliance, and make the employer/carrier responsible for its payment. The need for the modified van is a direct result of the claimant's work injury, and the van directly addressed the lack of mobility caused by the work injury. This case was argued by Martin Banks Pond Lehocky & Wilson attorney Matthew L. Wilson.
The Pennsylvania Supreme Court went further and reversed the Commonwealth Court, holding that the employer/carrier is responsible for 100% of the cost of the van and its retrofitting. Originally, the Commonwealth Court held that the employer was only obligated to pay for 80% rather than 100% of the cost of retrofitting the van because Section 306(f.1)(3)(i) there was an 80% limitation for products and services that are not calculated under the Medicare program. The Pennsylvania Supreme Court reasoned that the 80% limitation set forth by the above-named Section only applies to services offered by a provider, who is defined as a healthcare provider. By contrast, the above-referenced section, which requires employers to pay for orthopedic appliances, does not require the existence of a healthcare provider.
In Jacobi v. WCAB (Wawa, Inc.), No. 1110 C.D. 2007, filed February 12, 2008, it was demonstrated that competent medical evidence of permanent loss of use for all practical purposes must be presented before further support for the claim in the form of the claimant's testimony can be considered. In this case, the claimant did not fulfill his burden of proof with regards to his claim petition that alleged he had suffered a specific loss of his middle finger. The doctor in the case stated that while the claimant would have residual permanent impairment, the opinion was given before the claimant underwent a fusion surgery on the finger.
In cases such as these, when a claimant alleges that injuries have resolved into a specific loss, they have burden of proving that the loss is permanent for all practical purposes. This requires more than just limitations upon a workers' occupational activities. The loss requires a more disabling injury than one that results in a loss of use for occupational purposes only. However, it is not necessary that the injured body part be 100% useless in order for the loss of use to qualify for specific loss. This is a question of fact for the workers' compensation judge, and the severity of the loss, meaning for all practical purposes, is a question that the law addresses.
In Land O'Lakes, Inc. v. WCAB (Todd), No. 1085 C.D. 2007, filed February 11, 2008, the employee was not entitled to reimbursement from the Supersedeas Fund after successfully litigating a suspension petition that was based upon seeking a forfeiture of compensation based on the claimant's refusal to accept reasonable and necessary medical treatment. This is because reimbursement from the Supersedeas Fund is only permitted where an employer has litigated a petition pursuant to Section 413 and 430 of the Pennsylvania Workers' Compensation Act.
A petition alleging the forfeiture of the right to compensation is not the same as the suspension petition because forfeiture is based on the claimant's own unwillingness to accept medical treatment rather than a change in status while a suspension requires a change that alters the claimant's right to workers' compensation benefits.
In Coyne v. WCAB (Villanova University and PMA Group), No 710 C.D. 2007, filed February 11, 2008) says that a workers' compensation judge can terminate benefits within the context of the claim petition even when the employer has never filed a termination petition. In the context of the claim petition, the claimant has the burden to establish the duration of the disability throughout the time in which her petition was pending. The claimant failed to meet her burden of showing that she continued to be disabled by her work injury, and the workers' compensation judge found the claimant was recovered as of the date of her independent medical examination.
Rosenberg v. WCAB (Pike County), __A.2d __ (Pa. Cmwlth., No 17 C.D. 2007, filed on February 5, 2008) discusses modification of benefits based upon a labor market survey. The Claimant, injured at work, was placed in a light duty job as a clerical worker. When the Notice of Ability to Return to Work was issued, the claimant was still performing this light duty position. Approximately one month after the Notice of Ability to Return to Work was issued, the claimant was terminated from her light duty position. She was told that it wasn't expected that she would return to her regular duty position, and her employer did not provide permanent light duty positions. Her light duty position was filled by a newly hired person.
The Commonwealth Court held that this case is controlled by a prior ruling in South Hills Health System v. WCAB (Kiefer), 806A.2d 962 (Pa. Cmwlth. 2002), which requires that an employer that is seeking to establish earning power under Act 57 is obligated to show that a job was not available within its own organization from the date that the Notice of Ability to Return to Work/LIBC-757 form was sent and continues for 30 days or until the Petition for Modification or Suspension is filed.
In Gumm v. WCAB (J.Allan Steel), __A.2d __ (Pa. Cmwlth., No 599 C.D. 2007, filed on January 28, 2008) helped to explain the proper use of the notice of compensation denial.
The Commonwealth Court explained the standards that were articulated in Jordan v. WCAB (Phila. Newspapers, Inc.), 921 A.2d 27 (Pa. Cmwlth. 2007), and in Gereyes v. WCAB (New Knight Inc.), 793 A.2d 1017 (Pa. Cmwlth. 2002), and noted that in Jordan the employer's issuance of a notice of compensation denial was subject to penalties. This was because the employer filled out the form knowing that the claimant was still suffering from a work-related wage loss. In contrast, the employer in Gereyes was not subject to penalties, because it had issued a notice of compensation denial based upon the fact that the claimant was still working, and as such, not disabled under the Act.
In Westmoreland County v. WCAB (Fuller), )__ A.2d __ (Pa. Cmwlth., 1277 C.D. 2007, filed January 24, 2008), the employer appealed from the denial of a termination petition and argued that the workers' compensation judge erred by not formally expanding the claimant's work injury during a previously litigated termination petition. The employer asserted that the workers' compensation judge should have limited the injury to the description on the Notice of Compensation Payable (NCP), as no review petition was filed, and she did not specifically articulate that she was amending the nature of the injury when deciding on the second termination petition. The Commonwealth Court held that the workers' compensation judge did properly expand the injury during the first termination petition in the absence of a review petition, because the expansion was in reality just a correction. It noted that the injury was recognized as a back strain, but really a disc herniation occurred.
Importantly, the Court noted that a workers' compensation judge does not have to fully articulate the finding of an expansion for it to be valid. The judge can merely credit an expert medical witness's testimony for it to be considered amended.
In Ropock v. WCAB (Commonwealth of PA/DPW), __A.2d__ (Pa. Cmwlth., No. 1638 C.D. 2007, filed on January 14, 2008), the claimant filed a review petition that alleged that the employer was inappropriately taking an offset of Social Security benefits against his workers' compensation benefits. He alleged that this offset was in error, because his Social Security Disability benefits administratively had converted to old-age Social Security benefits without him actually removing himself from the work force. The Court ruled against the claimant and held that the Pennsylvania Workers' Compensation Act clearly mandates that if a claimant is receiving old-age Social Security benefits, then the employer is entitled to an offset.
In Sysco Food Services of Philadelphia v. WCAB (Sebastiano), __A.2d__ (Pa. Cmwlth., 817 C.D. 2007, filed January 23, 2008), the employer appealed the decision that awarded a claimant benefits in a claim petition and asserted that he was not entitled to workers' compensation because his injuries were the result of horseplay with another employee. Moreover, the employer asserted that the claimant violated a positive work order that prohibited horseplay, and such an order precludes the claimant from receiving workers' compensation.
The Commonwealth Court rejected the employer's arguments, noting that an employer must prove that:
1. There was a violation of a work rule;
2. The employer knew of the order or rule; and
3. The rule implicated an activity not connected with actual work duties.
It was also noted that the violation of a positive work order is a "very rare exception" to awarding benefits.
In Riddle v. WCAB (Allegheny City Electric, Inc.), __ A.2d __ (Pa. Comwlth., No. 1390 C.D. 2008, filed on January 8, 2008), the claimant argued on appeal from the granting of a modification petition that an earning power assessment was inadequate. The reason for its inadequacy was because the jobs that it analyzed were not in the geographic area of his current residence. Under Section 306(b)(2), 77 P.S. § 512(2) of the Pennsylvania Workers' Compensation Act, it states that it should have been performed in the "usual employment area where the injury occurred."
The Commonwealth Court rejected this argument and stated that an employer should not be precluded from attempting to establish job availability in the area where the claimant is actually residing. It reasoned that such an interpretation of the Act would be absurd and unreasonable.
The Personal Animus Exception is an affirmative defense available to employers to rebut the presumption that an injury that occurs on the employer's premises is work-related. The defense may be used to establish that a claimant's injuries do not arise out of the course of the claimant's employment.
In M&B Inn Partners, Inc. v. WCAB (Petriga), __A.2d__ (Pa. Cmwlth., 1201 C.D. 2007, filed January 8, 2008), a claimant was aggressively sexually harassed by a client. The employer promised, but failed, to remove client from the premises. As a result of the incidents, the claimant experienced depression, anxiety, insomnia, nightmares, and weight loss. The Commonwealth Court rejected the employer's argument on appeal that the situation fell under the personal animus exception and reasoned that the client had no prior relationship with the claimant. The Court also reiterated the principle that if a claimant is an innocent victim of an attack, then it can be considered an unexpected event that arose in the course of employment.
In Stock v. Workers' Compensation Appeal Board (Food Check Shopping Bag), __A.2d__ (Pa. Cmwlt., No. 1296 C.D. 2007, filed on December 19, 2007), the Commonwealth Court held that the filing of a review petition to add psychological injuries to an NCP was untimely. The Court explained that even though the petition was filed within three years of the last payment of specific loss benefits, these kinds of benefits do not constitute compensation benefits for the purposes of tolling the statute. It must be noted that the disability portion of thise case had been subject to a commutation.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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" »
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" »
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.
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
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.
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.
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.
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.
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.
