Pennsylvania Workers' Compensation Lawyer Blog

Four PA Workers’ Comp Judges Leaving the Bench

Wed, 16 May 2012 11:13:57 -0500

PA Workers’ Compensation Judges (WCJs) are like other employees in many ways. Just like we see turnover in any industry among its work staff, we see WCJs leave the bench for retirement or other opportunities. Recently, we discussed two new WCJs being named to the bench by the Pennsylvania Bureau of Workers’ Compensation. Perhaps we were remiss, however, in neglecting to mention the reason for the openings on the bench, and honoring those who served the workers’ comp arena so admirably.

As we have previously discussed, workers’ comp hearings in PA are generally conducted in the county in which the injured worker resides. These workers’ compensation hearing offices are spread throughout the State of Pennsylvania. Over the past several months, four of the WCJs have left the bench. From the Northeast Philadelphia Workers’ Compensation Hearing Office, Judges Ida Louise Harris and A. Michael Snyder have stepped down. The Malvern Workers’ Compensation Hearing Office (Montgomery County) has lost Judge Seymour Nathanson. And, just recently, we were told by Judge Geoffrey Dlin, that he would be stepping down as WCJ from the Allentown Workers’ Compensation Hearing Office (Lehigh County).

We want to wish all of these former members of the PA workers’ comp judiciary the best of luck in their future endeavors. As with the entire Pennsylvania workers’ compensation community, we want to thank these wonderful individuals for their service to the Bureau.

PA Courts Say Crooked Nose Not Unsightly

Fri, 04 May 2012 10:50:16 -0500

In PA Workers’ Compensation, almost everything has a specific amount of benefit, for a specific period of time. A workers’ comp rate is determined by starting with the Average Weekly Wage (AWW) and using a precise formula. If an injured worker in PA loses a finger, toe, hand, foot, arm or leg in the work injury, he or she is entitled to a certain number of weeks of compensation (depending on which appendage is involved). An injured worker determined to be less than 50% impaired after receiving total disability benefits for 104 weeks is entitled to a maximum of 500 additional weeks of workers’ compensation benefits. These schedules regarding the amount of benefits payable to an injured worker can be found on the website of the Pennsylvania Bureau of Workers’ Compensation, in Section 306.

There is, of course, an exception to every rule. In PA, facial disfigurement is compensable by a payment of up to 275 weeks of benefits, at the discretion of the Workers’ Compensation Judge (WCJ). The disfigurement must be both permanent and “unsightly.” The Commonwealth Court of Pennsylvania recently addressed this issue in the case of Walker v. Workers’ Compensation Appeal Board (Health Consultants), where the Court decided a crooked nose was not “unsightly” and not worthy of any compensation.

In the Walker case, the injured worker fell down steps and broke her nose. The injury to the nose was accepted and she received workers’ comp benefits until she went back to work. Subsequently, she filed a Petition for Reinstatement (treated by the WCJ and the Court, correctly, as to also include a Petition to Review the Notice of Compensation Payable [to add low back to her work injury], since it was the unaccepted injury which allegedly now caused her disability. In this litigation, Claimant also sought facial disfigurement benefits for her nose, which now had small scars and was slightly crooked.

The WCJ denied the Petition for Reinstatement, finding both Claimant and her medical expert not credible (she had not complained of problems with the low back until several months after the injury). For the nose, however, the WCJ awarded 45 weeks of benefits for facial disfigurement. Significantly, before making his finding, the WCJ asked for, and received, pictures of the injured worker before the work injury, since he did not find the damage to the nose to be obvious.

On appeal the Workers’ Compensation Appeal Board (WCAB) affirmed the WCJ on the Petition to Reinstate, but reversed on the award for facial disfigurement. In viewing the injured worker themselves, the WCAB found the nose, while admittedly slightly crooked, was not “unsightly.” As such, under the PA Workers’ Compensation Act, the WCAB found no benefits awardable for the nose.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB on both parts. In so doing, the Court noted that the law requires the disfigurement to be “unsightly,” and the fact the WCAB found the nose not “unsightly,” and the fact the WCJ needed before and after pictures to see any difference, is clear evidence the nose was not unsightly.

Considering such a determination should be subjective, I find the decision of the Court plain wrong. The WCAB admitted that the injured worker’s nose was now slightly crooked. It was of no moment to the WCAB that the injured worker considered herself, and perhaps, given the WCJ’s finding, a reasonable person would find her, less attractive than before the injury. The dictionary defines “disfigurement” as, “an appearance that has been spoiled or is misshapen.” How, then, is the damage to the injured worker not compensable? Why does anyone get a nosejob if they do not find their appearance acceptable? According to our esteemed Court, if Jessica Alba suffered a facial injury and came out looking like Rosie O’Donnell, she would not be disfigured. I suppose the Court has a logic for its decision, but if so, it is logic I cannot detect.

Pension Offset in PA Workers’ Comp Denied Without Evidence

Tue, 24 Apr 2012 10:43:05 -0500

Not very long ago, this blog expressed our disappointment with the decision rendered by the Commonwealth Court of Pennsylvania in Glaze v. Workers’ Compensation Appeal Board (City of Pittsburgh), where the Court remanded to the Workers’ Compensation Judge (WCJ) for the WCJ to find some amount of a credit for pension payments, despite the employer’s failure to present credible evidence to the WCJ initially. As we expressed in our blog entry, a party who fails to sustain its burden of proof in a PA workers’ compensation case should not prevail.

We are now happy, though a bit confused, to report what appears to be a contradictory decision by the Commonwealth Court of Pennsylvania in the case of United Airlines v. Workers’ Compensation Appeal Board (Gane). Here, the claimant suffered a severe injury described as “pain disorder, dysthemic disorder, herniated discs at C3-4 and C4-5, rotator cuff impingement on the left side with aggravation and protruding disc at C5-6.”

After the work injury, the claimant began to receive a pension from his employer, which was entirely funded by the employer. As we have previously discussed in this blog, this resulted in a credit for the entire amount of the pension the injured worker received, under Section 204(a) of the Pennsylvania Workers’ Compensation Act. Subsequently, the employer here went bankrupt and the pension was terminated by the government, and taken over by the United States Federal Pension Benefit Guarantee Corporation (PBGC).

The employer, despite no longer directly paying the pension, still desired to have a credit for the pension payments. A Petition for Review was filed and litigated before a WCJ. Both parties presented expert testimony regarding how pensions are funded and paid. The WCJ found that employer failed to prove an exact amount of credit to which they would be entitled. Moreover, the WCJ found that no credit would be appropriate anyway, since the pension plan had been terminated by the government, relieving the employer of any liability it may have had.

The Commonwealth Court of Pennsylvania disagreed with the latter finding by the WCJ. Instead, the Court stated that the only inquiry under Section 204(a) is “the extent to which the employer funded an employee’s pension, not who is liable for payment.” Thus, the termination of the pension, and taking over of the liability by PBGC, is irrelevant to whether employer still gets a credit.

Interestingly, especially after the decision in Glaze, the Court then affirmed the decision of the WCJ anyway, holding that employer is still not entitled to a credit for the pension payments, because employer failed to prove the amount of credit to which it was entitled. While we find this decision a bit difficult to reconcile with Glaze, we are delighted to see that, perhaps, a party in PA workers’ comp who fails to meet its burden of proof should really not win.

Two New PA Workers’ Compensation Judges Named to the Bench

Wed, 18 Apr 2012 11:22:57 -0500

Though no formal announcement has been made by the Pennsylvania Bureau of Workers’ Compensation, we have learned that Holly San Angelo and Lawrence Beck have been named as new Workers’ Compensation Judges in PA. As we have previously mentioned, workers’ comp cases in Pennsylvania are typically held in the County in which the injured worker resides. Workers’ compensation hearing offices are spread throughout the State of Pennsylvania.

Judge San Angelo will be assigned to the Northeast Philadelphia Hearing Office (on Grant Avenue in Northeast Philadelphia) and Judge Beck will be in the Philadelphia Hearing Office (at 8th and Arch Streets in Center City Philadelphia). Having litigated cases against both of the new Judges in the past, we can safely say that the bench will improved by the presence of these two members.

Concussions can be a Real Headache for Injured Workers

Tue, 10 Apr 2012 13:16:15 -0500

As many of our loyal readers know, we occasionally delve into the world of sports for matters that may be of interest to injured workers in Pennsylvania. For example, we have brought up injury problems facing a football player for the Philadelphia Eagles as well as a hockey player for the Philadelphia Flyers.

Perhaps no injury is seen more often in football and hockey these days, however, than concussions. Indeed, as Melissa Gilbert can attest, even Dancing with the Stars can lead to such an injury.

Typically, though, a professional athlete, or an actress, is not doubted about whether an injury has been suffered. Treatment is readily given and the condition is taken very seriously. Often, the injured worker in PA does not have such a luxury.

As this recent article on Science Daily demonstrates, there are many frequently misunderstood facts and myths about concussions, several which can significantly complicate a PA workers’ comp case. For instance, did you know that a concussion will not necessarily show up on a CT scan? How about the fact that one can have a very serious concussion without being knocked unconscious? Another important point shown in this article is the fact that concussions vary from person to person, in symptoms as well as duration.

A concussion (and post-concussion syndrome) can be an incredibly debilitating condition for an injured worker in PA. One can suffer from headaches, depression and difficulty in memory, concentration and sleep, as well as other symptoms. Further, since there is no diagnostic study that can accurately confirm its presence (as an x-ray can do for a broken arm), the worker suffering with a concussion also has to deal with the workers’ comp insurance carrier disputing that he or she is even disabled. As fans of the Philadelphia Flyers know, though, those suffering from concussions have good company, from Eric Lindros and Keith Primeau in the past, to Chris Pronger, Danny Briere, James van Riemsdyk and Claude Giroux just this year. More information and support for these injured workers can be found at http://theconcussionblog.com/.

Chiropractic Treatment Not Reasonable or Necessary in PA Workers’ Comp because it Failed to Improve Condition

Mon, 02 Apr 2012 12:03:41 -0500

As long time readers of our blog know, Utilization Review is the process either party can use to address whether medical treatment for a PA work injury is reasonable or necessary. Though the Courts in Pennsylvania have made it clear that treatment can be reasonable and necessary while merely “palliative” (relieves symptoms though not curing the condition), we have seen the Commonwealth Court of Pennsylvania find treatment unreasonable and unnecessary because it did not significantly improve the condition.

This concept was again tested by the Commonwealth Court of Pennsylvania in Leca v. Workers’ Compensation Appeal Board (Philadelphia School District). Here, the injured worker hurt his low back and received chiropractic treatment for a period of years. The workers’ comp insurance carrier filed for Utilization Review. A Utilization Review Determination found the chiropractic treatment reasonable and necessary.

The workers’ compensation insurer filed a Petition for Review of Utilization Review Determination. In the litigation before a Workers’ Compensation Judge (WCJ), the insurer presented deposition testimony of the injured worker’s treating orthopedic surgeon, and its Independent Medical Examining (“Independent” being used loosely in this context) orthopedic surgeon. Both of these physicians testified the chiropractic treatment was not reasonable or necessary because, though it may have provided temporary relief, the chiropractic treatment did not improve the condition of the injured worker. No evidence from a chiropractor was offered. In response, the injured worker only offered the Utilization Review Determination (the injured worker did not even testify on his own behalf).

The WCJ granted the Petition, finding the experts presented by the workers’ comp insurance carrier credible. The chiropractic treatment was found unreasonable and unnecessary. Upon appeal, the Workers’ Compensation Appeal Board affirmed, as did the Commonwealth Court of Pennsylvania. The Court noted that the testimony of orthopedic surgeons, as opposed to a chiropractor, was perfectly acceptable, and that the WCJ had ample evidence to find the treatment at issue unreasonable and unnecessary.

While I am not certain the insurance carrier ever established the treatment was anything more than proper palliative treatment (no different than medications or injections), I am somewhat unclear why the injured worker did not present evidence regarding how the chiropractic treatment helped him. Why would the injured worker not testify regarding the benefits he derived from the treatment? Why would the chiropractor not testify, or at least submit a report, to address why he continued to provide this treatment? Not being involved in the case, I cannot say why these decisions were made, though it does make one wonder.

Petition to Review in PA Workers’ Comp Must be Timely

Mon, 26 Mar 2012 10:44:42 -0500

Previously, we discussed the case of Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Commonwealth Court of Pennsylvania held that a Petition to Review, to expand a description of injury, must be filed within three years of the last payment of workers’ compensation benefits.

This issue again came before the Commonwealth Court of Pennsylvania, in Dillinger v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County), and the results were similar. On November 15, 2003, the injured worker was assaulted while driving a bus. As a result, she suffered a left shoulder strain. Workers’ compensation benefits were then suspended as of February 20, 2004. On March 22, 2007, the injured worker filed a Petition to Review, alleging that she also suffered post-traumatic stress disorder (PTSD) as a result of her injury. The injured worker also filed a Petition for Reinstatement and a Claim Petition.

A Workers’ Compensation Judge (WCJ) granted the Petition to Review and dismissed the Claim Petition, as moot. The WCJ found that the PTSD should have been accepted as part of the work injury and should be listed on the Notice of Compensation Payable (NCP). Upon appeal, this was reversed by the Workers’ Compensation Appeal Board (WCAB), based upon the Fitzgibbons decision.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The Petition to Review was not timely, under Fitzgibbons, and must fail. The Petition for Reinstatement, since it was based on the PTSD, rather than the left shoulder strain, also must fail. The Court did reverse the WCAB, however, as to the dismissal of the Claim Petition. The injured worker may still attempt to prevail on the Claim Petition, so the Court remanded to the WCJ to make additional findings of fact to determine whether the injured worker met her burden of proof with regard to the Claim Petition.

Hurt at Work in PA – Have Medical Questions?

Wed, 21 Mar 2012 09:55:26 -0500

As attorneys who represent folks who have been hurt at work in Pennsylvania, we get many questions beyond legal ones dealing with PA workers’ comp issues. The average injured worker has led a fairly healthy life, and this change is sudden and understandably scary. Many injured workers have medical questions, not only about their conditions, but how their conditions may relate to workers’ compensation issues.

Seeing this need in the community, we have created a new page on our website, Medical FAQ. We hope this new page will provide some helpful answers to questions held by injured workers throughout Central and Southeastern Pennsylvania.

Of course, every injured worker is free to contact us, to get answers to questions regarding any aspect of their workers’ compensation issues. We take pride in limiting our entire practice to helping injured workers with their workers’ comp cases.

Pension offset in PA Workers Comp May Apply Even Without Evidence to Prove Amount

Thu, 15 Mar 2012 09:23:20 -0500

We have discussed Section 204(a), part of the 1996 amendments to the Pennsylvania Workers’ Compensation Act, previously on our blog. This Section gives the workers’ comp insurance carrier a right to a credit, or offset, on other types of benefits, including Social Security Retirement, unemployment compensation, severance and pension benefits.

The offset regarding a pension is available to an employer only “to the extent funded by the employer directly liable for the payment of compensation.” In many situations, this can be a complicated calculation. There are generally two types of pension plans – “defined contribution” and “defined benefit.” In a defined contribution plan, the employee contributes a specific percentage of his earnings to the plan, as does the employer. In those cases, calculations are generally less confusing. The problem comes more with defined benefit plans, where the employee is paid a set amount from a pool of money.

Since payments in defined benefit plans are made from a pool of money, rather than individual accounts, it is virtually impossible for an employer to identify how much it contributed to any one individual’s pension. The Courts have addressed this issue and made clear that “an employer can meet its burden of proving the extent of its contribution to a claimant’s defined-benefit pension by credible actuarial evidence; it need not identify actual contributions to the claimant’s pension.”

With all of this in mind, we turn to Glaze v. Workers’ Compensation Appeal Board (City of Pittsburgh), which is actually a consolidation of many similarly-situated cases involving firemen with a defined benefit plan. Here, the employer sought a credit against the pension being received by injured workers, which was challenged by the injured workers. Before a Workers’ Compensation Judge (WCJ), both sides presented expert testimony regarding the contributions made by the employer to the pensions of the injured workers. The WCJ found the expert offered by the injured worker more credible than the expert presented by the employer. In explaining the determination of credibility, the WCJ gave around seven reasons, though the first was the inability to identify the contribution to each specific pension by employer’s expert. Though the WCJ agreed employer was entitled to some credit, the WCJ denied the offset since the employer failed to meet its burden of proof. On appeal to the Workers’ Compensation Appeal Board (WCAB), there was a split of the WCAB Commissioners. By law, this affirmed the decision of the WCJ.

The Commonwealth Court of Pennsylvania, however, remanded back to the WCJ for additional findings. Though the Court acknowledged that the WCJ is the ultimate finder of fact, and determiner of credibility, the Court said the first basis used by WCJ was so fundamentally flawed that the WCJ should reconsider the determination of credibility with the proper state of the law in mind (that the employer need not prove the amount contributed to any specific pension). To an untrained (or even trained) eye, this would appear as if the Court is trying to reweigh the WCJ’s determination of credibility.

Moreover, the Court found that since the WCJ agreed some offset should be due, since employer must have funded some portion of the pension, the WCJ erred in granting no offset. Upon remand, the WCJ was instructed to decide on a percentage of offset, since it cannot be zero. The Court noted that in civil law, one need not show exact damages in order to prevail. What the Court appears to forget is that the Pennsylvania Workers’ Compensation Act is NOT ordinary civil law. This Act is “remedial legislation” intended to benefit the injured worker. Remember that pain and suffering, and non-economic damages, are not permitted in PA workers’ compensation.

It is a completely foreign concept to me that a party to a workers’ compensation case can fail to meet its burden of proof, and still have the Commonwealth Court of Pennsylvania tell a WCJ that this was “close enough” and the employer should get some relief. The reliability of the entire system rests with core concepts being upheld. One of those core concepts is that a party must meet its burden of proof to win. The workers’ comp insurance carrier failed to meet its burden of proof, plain and simple, and the offset should have been denied. The efforts of the Court simply undermine the reliability of the system.

Even an Application for Pension May Cause Impact to PA Workers’ Comp Benefits

Fri, 09 Mar 2012 09:23:17 -0500

Whether an injured worker in PA has “voluntarily withdrawn from the labor market” has been a frequent topic on this blog. There has been a great deal of litigation on this issue in the appellate courts over the past several years. We are seeing that the details and facts in each case really have great meaning for which way the courts may decide.

In City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack), we saw some additional clarification of the relative burdens of proof in this situation. Here, the injured worker, a firefighter, suffered a rotator cuff tear in his shoulder, an aggravation of degenerative disc disease in his lumbar spine, and anxiety and depression. The injured worker filed for a disability pension, but was ineligible because he was terminated for cause.

The workers’ comp insurance carrier filed a Petition for Suspension, alleging that the fact the injured worker filed for a disability pension meant that he was voluntarily leaving the labor market. In such a case, the workers’ comp insurance carrier would not be required to prove job availability to obtain relief. The Workers’ Compensation Judge (WCJ) agreed that Claimant had voluntarily left the labor market. Further, the WCJ found that the injured worker did not prove he was looking for work, so the WCJ granted the Suspension Petition.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ. The WCAB concluded that the WCJ had erred in finding that the injured worker had “retired.” The fact that the injured worker did not receive the disability pension meant that he did not “accept” the pension. Thus, since the injured worker did not retire, the burden remained on the workers’ compensation insurer to prove job availability. Since no job availability was shown, the Suspension Petition must be denied.

When the workers’ comp insurance carrier appealed to Commonwealth Court of Pennsylvania, it argued the WCAB had erred in finding that the injured worker’s attempt to collect the pension, whether successful or not, could show that the injured worker intended to leave the labor market, or, in other words, retire. Interestingly, the Court agreed with the employer, but, the result remained unchanged.

While the Court agreed the attempt to obtain a pension can be enough to trigger a withdrawal from the labor market, the pension in this case was a DISABILITY pension, as opposed to a RETIREMENT pension, and there is a vast difference in the effects of collecting each. Since this was a disability pension, the workers’ comp insurance carrier still had the burden to show the injured worker does not intend to return to work. No evidence was presented by the workers’ compensation insurance company in that regard, so the Suspension Petition still must fail. Note that when an injured worker accepts a retirement pension, there is a presumption that the injured worker has left the labor market, meaning the burden of proof shifts to the injured worker to prove that he or she is actually looking for work (or that he or she is totally disabled from all employment).

Benefits Suspended Under PA Workers’ Comp Because Injured Worker Gets Social Security Disability

Fri, 02 Mar 2012 09:40:36 -0500

On many occasions, we have explored the evolution of the Pennsylvania Workers’ Compensation Act as it pertains to whether an injured worker has “voluntarily left the labor market.” Typically, we see this situation when the injured worker has filed for a retirement pension, or given some other indicia of “retirement.” Until now, we have not seen the Pennsylvania Courts punish an injured worker for merely taking Social Security Disability benefits.

Unfortunately, that ended with Burks v. Workers’ Compensation Appeal Board (City of Pittsburgh), where the Commonwealth Court of Pennsylvania upheld the suspended of workers’ comp benefits merely because the injured worker was receiving Social Security Disability benefits.

In that case, the injured worker had both a work-related injury (knee sprain) and non-work-related conditions (many, primarily involving her hip and low back). The Court found that the injured worker was capable of light duty work with regard to the work injury, but that she was totally disabled with the addition of the non-work-related conditions. As such, the Court concluded:

“Claimant’s decision to receive Social Security Disability benefits shows that she has voluntarily withdrawn from the workforce for reasons unrelated to the work injury.”

The Court did note, in a footnote, that this decision is based on the fact that the work injury was not the basis for her receipt of Social Security Disability benefits. The Court went on to say that, if the injured worker received Social Security Disability benefits as a result of the work injury, then workers’ compensation benefits would continue.

Loss of Earnings Must be Related to Work Injury for Reinstatement in PA Workers’ Comp

Thu, 23 Feb 2012 09:42:18 -0500

Generally speaking, the goal is to return an injured worker in Pennsylvania to gainful employment. Along those lines, under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is not able to keep working, due to the effects of the work injury, workers’ comp benefits should be reinstated.

The key element to whether benefits will be reinstated is often whether the loss of earnings is truly related to the work injury. A good example of this concept came recently in the case of Verity v. Workers’ Compensation Appeal Board (The Malvern School), decided by the Commonwealth Court of Pennsylvania.

Here, Ms. Verity (Claimant) suffered a strain to her left hip and low back. After being released to modified duty, Claimant returned to work under those restrictions. Subsequent to her going back to work, Claimant had additional restrictions placed upon her by her physician, which included “no going up/down stairs.” The employer said they had nothing within those restrictions, and Claimant filed a Petition for Reinstatement.

In that litigation, Claimant testified that she had to climb three flights of stairs a day for her apartment, and that she was able to go up or down the ten steps that were required at her job, maybe four times a day. Her doctor testified that she did not mean literally no steps, the doctor just meant no steps on a repeated basis. In fact, Claimant’s doctor said she encouraged her to continue working at the job. As such, the Workers’ Compensation Judge (WCJ) denied the Reinstatement Petition, since the reason Claimant was not working was not related to the work injury (or, in other words, it was not the work injury which prevented her from working at that job). The Workers’ Compensation Appeal Board (WCAB) affirmed.

Upon appeal to the Commonwealth Court of PA, the decision was again affirmed. Claimant knew the restriction placed by the doctor was not accurate, but did nothing to fix it (indeed, when Claimant went back to the doctor again, the same restriction was placed). Claimant knew her injury did not prevent her from doing her job. Therefore, the Petition for Reinstatement was properly denied.

Social Security Retirement Offset in PA Workers’ Comp Act is Not Unconstitutional

Fri, 17 Feb 2012 09:29:25 -0500

Many changes to the Pennsylvania Workers’ Compensation Act, much to the detriment of the injured worker, took place in the sweeping 1996 amendments to the Act. One of the more substantial changes was the amendment to Section 204(a), allowing PA workers’ comp insurance carriers to enjoy an offset, or credit, for such things as severance, unemployment compensation and Social Security retirement (known as “Old Age,” though we certainly won’t use that term) benefits.

Looking specifically at Social Security retirement, Section 204(a) permits the PA workers’ compensation insurance company to take an offset equal to 50% of an injured worker’s Social Security retirement benefit. The Supreme Court of Utah found a similar provision in that State’s workers’ compensation system to be unconstitutional. With that decision in mind, attorneys representing injured workers in PA had high hopes for a similar result from the Pennsylvania Court System.

So far, unfortunately, our hopes have been dashed. The Commonwealth Court of Pennsylvania has decided, in Caputo v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), that the PA workers’ comp system is different than that in Utah, and the offset in Section 204(a) of the PA Workers’ Compensation Act is indeed constitutional. Hope remains the Supreme Court of Pennsylvania will review this issue, but for now the 50% offset in Section 204(a) will remain.

Note, also, that taking Social Security retirement benefits can severely damage a workers’ comp case in PA. Between this significant risk, and the 50% offset, it is advisable for an injured worker to consult with an attorney experienced in the Pennsylvania workers’ comp system before making such a critical decision.

Reinstatement of PA Workers’ Comp Benefits Proper With Change in Condition

Thu, 09 Feb 2012 11:04:20 -0500

Under PA workers’ comp, wage loss benefits are stopped (suspended) when an injured worker returns to work at no loss in wages (medical treatment continues, regardless of wage loss, however). What if the injured worker (“claimant”) voluntarily quits a job? Can he or she get reinstated to workers’ compensation benefits in PA? Well, it depends.

The Commonwealth Court of Pennsylvania faced this issue in Allen v. Workers' Compensation Appeal Board (Delaware County SPCA, Inc.). Here, on August 24, 2007, the claimant injured his shoulder at work, but then subsequently returned to work, at his pre-injury job, at no loss in wages, causing the workers’ comp benefits to be suspended. The injured worker then voluntarily quit his job on January 3, 2008, because there was a “deterioration of the relationship” with the company, and he was having increased pain in his shoulder. On January 29, 2008, the injured worker saw a doctor who found that he was not physically capable of his pre-injury job as of that date.

A Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement, as of January 29, 2008, since the injured worker proved he had a change of condition as of that date. Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the WCJ, finding that claimant was not entitled to a reinstatement of his workers’ comp benefits, because he had voluntarily quit his job.

The Commonwealth Court of Pennsylvania reversed the WCAB, and reinstated the decision of the WCJ, saying that once claimant proved that his condition had changed, and that he was again disabled from his job, he was again entitled to PA workers’ compensation benefits. The fact the injured worker quit the job meant he was not entitled to benefits from January 8, 2008 to January 28, 2008 (since the reason he was not working in that time was not shown to be related to the work injury). Once the injured worker proved a change in his condition, the fact that he quit was no longer relevant.

One question, left unanswered by the Court, is what happens when the injured worker is again released to return to his pre-injury position? In a normal situation, the employer/workers’ comp insurance carrier must prove that a job is available to him before a suspension of benefits would be granted. Would the fact the claimant quit the job come back to haunt him then? I guess we will have to stay tuned.

Acknowledged PA Work Injury – Claim Still Denied

Mon, 06 Feb 2012 09:55:54 -0500

Before recent changes in PA Workers’ Compensation law, an insurance carrier could “accept” a claim using a Notice of Denial (NCD). This left the status of the work injury in doubt, so, in 2011, the PA Bureau of Workers’ Compensation redesigned the NCD form to no longer allow such an action.

With the previous NCD, we had seen a Claim Petition denied, despite an acknowledged work injury. As attorneys who represent injured workers, we found this result illogical, and just plain wrong.

As if in a confirmation that an illogical result was intended, the Commonwealth Court of Pennsylvania decided the case of Zuchelli v. Workers' Compensation Appeal Board (Indiana University of Pennsylvania), again denying a Claim Petition because disability was not proven (the NCD used to “accept” the claim was done before 2011).

We hope that the change in the NCD form will remove this issue forever, and save the Courts from their own tendencies. In the meantime, we would urge the Courts to understand the difference (and there is one) between denying a Claim Petition and finding disability was not proven. It is shocking, in this day and age, that the Courts could be so blind to the value and importance of an injured worker having access to medical treatment (regardless of whether disability took place or not).