Posts Tagged ‘pennsylvania commonwealth court’

     The Pennsylvania Commonwealth Court has ruled that a denial of workers compensation benefits was proper in a case involving the issue of whether the injured worker (“claimant”) was in the course and scope of employment when the injury occurred. In Penn State University v. WCAB (Smith), the Court has determined that evidence was insufficient to establish that the workers’ compensation claimant, Mr. Smith, injured himself while in the “course and scope” of his employment.  Smith broke both of his ankles when he jumped down a flight of stairs while on his lunch break. Typically, an injury is compensable under the Workers’ Compensation Act only if the injury arises in the course of employment and is causally related thereto. An injury may be sustained in the course of employment under the Workers’ Compensation Act where the employee is injured on or off the employer’s premises while actually engaged in furtherance of the employer’s business or affairs. However, an activity that does not further the affairs of the employer will take the employee out of the course and scope of employment and serve as a basis for denial of the claim. Generally speaking, neither small temporary departures from work to administer to personal comforts or convenience, nor inconsequential or innocent departures will remove the claimant from the course and scope of employment.

     In the day of his injury, Mr. Smith was cleaning dorm rooms at Perry Hall for Employer’s Housing Department.  Claimant left Perry Hall to take his 30 minute unpaid lunch leave at Bruno’s, an on-campus dining facility where Claimant had an employer-sponsored meal plan. Claimant was walking from Perry Hall to Bruno’s on a walkway that included three flights of stairs. He intentionally jumped down the second flight of approximately twelve steps, landing very hard with his feet flat and fractured both ankles.

     The Court determined that Mr. Smith’s actions in light of the nature of his employment (performing housekeeping or cooking duties) could not be viewed as furthering employer’s business or affairs noting that he voluntarily jumped down a flight of stairs on a “whim,” and that he had thoughts of doing it before the injury date. The Court went on to state that he did not trip or fall down the stairs, but walked up to the edge and jumped off the stairs and injured himself upon landing.  The Court concluded that the employer did not encourage in any way Claimant to jump a flight of stairs during his lunch break and that the facts did not establish that Smith’s actions furthered a specific interest of Employer.

Update- In an earlier post (set forth below) I discussed subrogation rights of an employer who has paid Heart and Lung Act benefits to an injured employee.  On January 28, 2011, the Pennsylvania Supreme Court issued a decision In Oliver v. City of Pittsburgh holding that Heart and Lung and Act Benefits are not subrogable. 

        Under the Pennsylvania Workers Compensation Act, when an employer has paid benefits to an injured worker as a result of a work injury that was caused by the negligence of a third party, the employer is entitled to recoup whatever benefits it has paid from the injured employee’s recovery from the negligent third party. This concept, known as subrogation, often comes in to play when an employee is injured in a motor vehicle accident while in the course and scope of employment.
Generally speaking, the employer’s subrogation rights are absolute with regard to recouping payments made under the workers Compensation Act. An interesting issue has arisen in this Commonwealth with respect to subrogation rights of a municipality with respect to benefits paid under the Heart and Lung Act. The Heart and Lung act addresses payments made to a certain class of employees (i.e. police officers, firefighters, etc.) for injuries incurred while “in the performance of (their) duties”. The key distinction between workers compensation wage loss benefits and Heart and Lung benefits is that workers compensation benefits are generally 2/3 (or 66.66%) of an employee’s pre-injury earnings while Heart and Lung benefits are 100% of the employee’s pre-injury pay.
In 2009, the Pennsylvania Commonwealth Court addressed the issue of a municipality’s subrogation rights relative to payment of Heart and Lung benefits. In Oliver v. City of Pittsburgh, the court held that an employer that pays benefits under the Heart and Lung Act is entitled to subrogate against the injured employee’s third party recovery. This decision effectively reversed a prior Commonwealth Court ruling from 2002 that held an employer, while having a right to subrogation relative to benefits paid under the Workers Compensation Act, did not have the right to subrogate as to the Heart and Lung benefits paid.
Again, as indicated above, the Pennsylvania Supreme Court has reversed the Pennsylvania Commonwealth Court and has held that Heart and Lung and Act Benefits are not subrogable.

The Pennsylvania Commonwealth Court has ruled that the employer who pays an injured employee wage loss benefits under the Heart and Lung Act is entitled to subrogate against the injured employee’s recovery against a negligent third party. In Oliver vs. City of Pittsburgh, the Court ruled that Heart and Lung Act benefits must be given the same effect as workers’ compensation benefits as the similar purpose of the two benefit schemes requires consistent treatment noting that benefits paid under the Heart and Lung Act should be treated in the same manner as payments made pursuant to the Workers’ Compensation Act. The Court concluded that the legislature intended the employer’s subrogation right entitlement to apply to Heart and Lung benefits as well as Workers’ Compensation benefits.

The Pennsylvania Commonwealth Court has recently ruled that a medical provider’s failure to provide a password to access medical records contained on a CD-ROM amounts to non-compliance with a medical records request and supports a finding that the treatment that was the subject of a Utilization Review (UR) was not reasonable or necessary. In Shaw v. WCAB (Melgrath Gasket Co.), the facts indicated that the employer filed a UR regarding medications prescribed for the Claimant, Mr. Shaw. The Workers Compensation Bureau assigned the UR request to a Utilization Review Organization (URO). The treating physician timely mailed a CD-ROM, purportedly containing Claimant’s medical records, to the URO but failed to either inform the URO of the encrypted password or provide directions on how the URO could gain access to the records. The Commonwealth Court ruled that the failure to provide the URO the password to the CD-ROM rendered the records contained on the CD-ROM useless since, without access to those records, the URO could not properly perform a records review. In essence, as the CD-ROM could not be accessed, the CD-ROM received by the URO was the equivalent of a blank CD-ROM. The Court acknowledged that there is no rule or regulation prohibiting the medical provider from sending the medical records on CD-ROM and that the provider did nothing improper by securing the contents of the CD-ROM by password. However, the Court concluded that the medical provider under review acted unreasonably by failing to inform the URO about how it could open the file. Despite being contacted by the UR, the provider did nothing; as such, the URO had no other option than to issue a determination finding the medical treatment unreasonable and unnecessary under 34 Pa.Code § 127.464 because of the medical provider’s failure to mail medical records, in a useable form, to the URO.

The Pennsylvania Commonwealth Court has ruled that a detoxification program was “reasonable medical treatment” and upheld an Order granting a suspension of wage loss benefits. Under the Pennsylvania Workers’ Compensation Act, if an injured employee (the “claimant”) refuses reasonable treatment, the employee shall forfeit all rights to compensation for any increase in incapacity resulting from such refusal. Treatment has been deemed “reasonable” if it is highly probable that the treatment will cure the health problem and enhance the claimant’s prospects for gainful and fulfilling employment. In the case of Bereznicki v. W.C.A.B. (Eat “N Park Hospitality Group), the employer offered the claimant entry into a detox program and claimant refused the offer. The employer filed a suspension petition, alleging that the claimant refused reasonable medical treatment.

In support of their Petition, the employer offered expert medical testimony which indicated that the claimant was taking various medications (Methadone, Oxycodone, Neurontin, Alprazolam, Zanaflex, Effexor, Wellbutrin, Depakote and Etodolac) and that a chronic pain management program would allow claimant to return to normal neurologic function by decreasing the toxic doses of the medications. The employer’s medical expert also noted that any program that would decrease the toxic dose of the opioids would be in claimant’s best medical interest, that a supervised detox program entails very little risk and that although such a program would not help her return to her pre-injury job, it would make it possible for her to function with activities of daily living.

The WCJ ruled that, while the detox program would not guarantee that the claimant could return to her pre-injury job, an improvement of functioning would make it possible for claimant to work. Thus, the WCJ decided that the claimant refused reasonable medical treatment that would improve her ability to function and return to work.

The Commonwealth Court has upheld the WCJ’s decision in stating that a detox program would wean the claimant from toxic doses of medication, curing that health problem, and would allow the claimant to return to normal functioning and enhancing her prospects for gainful and fulfilling employment. Although the detox program would not return the claimant to her pre-injury job, her refusal of such treatment certainly increased her incapacity.

The Pennsylvania Commonwealth Court has addressed the issue of what constitutes an “abnormal working condition” for the purposes of establishing a work related mental injury. In McLaurin v. W.C.A.B. (SEPTA), the claimant was a SEPTA bus driver with a set route in West Philadelphia. One day, several hooded young men entered his bus without paying their fares. At the end of the bus route, one of these men approached McLaurin and pulled a gun. McLaurin pleaded with the gunman, who eventually put away his weapon and got off the bus. McLaurin then drove to the bus depot and told his supervisor what had happened. He was unable to work the next day nor any other days after that. He then filed a claim petition seeking workers compensation benefits alleging that he suffered work-related post-traumatic stress disorder, anxiety, and angina as a result of the bus incident. The Commonwealth Court has held that Mr. McLaurin did not experience an “abnormal working condition” which he would need to establish to meet his burden of proof in establishing a psychiatric injury. The Court noted that the record contained substantial evidence which showed that life-threatening situations had occurred to its employees “with sufficient frequency that methods of dealing with dangerous passengers were built into employees’ training, and that the bus driver could have thus anticipated his assault”.

The Pennsylvania Commonwealth Court has ruled that the employer/insurance carrier is responsible to pay for repair of modifications to a bathroom required to accomodate an injured worker who was rendered a paraplegic by a work-related injury. The Court chracterized the bathroom as an “orthopedic appliance” such as a wheelchair, which Employer is obligated to provide per Section 306(f .1) (1)(ii) of the Workers’ Compensation Act. Thus, the Court held that the cost to repair or replace the bathroom is compensable under the Pa. Workers’ Compensation Act.

In Sexton v. WCAB (Forest Park Health Center), the Pennsylvania Commonwealth Court has held that a utilization review organization (URO) had no choice but to deem injections received by a claimant for pain relief due to her work-related back injury unreasonable and unnecessary as the claimant’s medical records were not properly submitted to URO due to lack of required verification form signed by the claimant’s medical provider who’s treatment was being reviewed. The Court held that the submission of a signed verification form from provider was mandatory and the failure to provide the signed verification form to the URO was same thing as providing no medical records. Thus, without such a form, the URO could not say with certainty that the records were accurate.

The Pennsylvania Commonwealth Court recently issued a decision in a case involving an Impairment Rating Evalaution (IRE) that was not requested within the statutory time frame, i.e. within 60 days of the claimant’s receipt of 104 weeks of temporary total disability (TTD) wage loss benefits. This issue had previously been discussed by the Pennsylvania Supreme Court in the case of Gardner v. WCAB (Genesis Health Ventures). In Gardner, the Court held that an employer may request a claimant to submit to an IRE more than 60 days after the date the claimant comes into possession of 104 weeks of TTD benefits. Gardner also held that to modify the claimant’s benefit status from total to partial, the employer must seek a change in status via “the traditional administrative process”. Since the Gardner decision was issued in 2005, the question has been “what is meant by the traditional administrative process”?
In Diehl v. IA Construction, the Commomwealth Court addressed this issue. THe Court ruled that the defendant’s actions in securing an IRE under 50% (in the Diehl case, 28%), filing a Petition to Modify Benefit Status, and the presentation of the IRE findings into evidence was sufficient to meet the defendant’s burden of proof. Accordingly, the Diehl Court modified the claimant’s benefits status from total to partial and wage loss benefit entitlement was capped at 500 weeks.