Posts Tagged ‘Pennsylvania Workers’ Compensation Act’

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 Workers’ Compensation Act requires that a Notice of Ability to Return to Work form must be issued to an injured worker (the “claimant”) in a “prompt” fashion in order for an employer to pursue a modification or suspension of the claimant’s wage loss benefits based on an earning power assessment. However, the Act does not define what constitutes “prompt” written notice. Pennsylvania courts have held that the purpose of this statutory requirement is to provide notice to an injured worker that (1) there is medical evidence that the claimant can perform some work, (2) that benefits could be affected, and (3) that the claimant has an obligation to look for work. A claimant must have notice that her benefits could be affected before the employer attempts to modify benefits by showing earning power which is typically done by expert vocational testimony showing open and available work that falls within the claimant’s work-related restrictions and is within the claimant’s geographical area. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of work. The appellate courts have thus determined that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received within a reasonable time after its receipt lest the report itself becomes stale. It also requires an employer to give notice to the claimant a reasonable time before the employer acts upon the information. This necessarily requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice.

The Pennsylvania Commonwealth Court has ruled that an employer is not entitled to recoupment of an overpayment of workers’ compensation benefits under Section 413(a) of the Workers’ Compensation Act absent the existence of an incorrect “agreement” to modify.

The decision in Dollar Tree Stores, Inc. v. WCAB affirms the ruling of the Workers’ Compensation Appeal Board that had reversed a Workers’ Compensation Judge’s decision that allowed the defendant to recoup $112 per week from the plaintiff. The facts of the case indicate that the excess payments were a result of the employer’s miscalculation of plaintiff’s weekly compensation rate. The Court noted that a stipulation of facts signed by the parties did not meet the definition of aan “agreement” under the provisions of the Act.

Thomas P. Cummings, Esq.
[email protected]
570-347-1011

In Pennsylvania, employees who are injured on the job are entitled to workers’ compensation benefits from their employer and/or their employer’s insurance carrier.  Workers’ compensation benefits provide an injured employee with compensation for (1) lost wages during the time the employee misses time from work due to his work injury, and (2) payment of all work-related medical expenses.  If an employee suffers a loss of vision, hearing, or loss of, or loss of use of an arm, hand, finger, leg, foot or toe, the employee is also entitled to recover specific loss benefits (the amount of which is directed by statute).  Contrary to popular belief, injured employees are not entitled to recover damages for “pain and suffering” against their employer or its insurance carrier.

Workers’ compensation benefits are considered “no fault” benefits.  In other words, even if the employee was negligent or careless in causing his own injuries, subject to some limited exceptions, he is still entitled to workers’ compensation benefits.  Workers’ compensation benefits are also the exclusive remedy an injured employee has against his employer.  Again, subject to some limited exceptions, even if the employer was negligent or careless in causing the employee’s injuries, the injured employee can not sue or pursue a claim against his employer for any additional damages beyond those he is entitled to under the Workers’ Compensation Act.

Although an injured employee generally can not sue his employer to recover damages relating to a work injury, if a third party’s negligence caused the injured employee’s injuries then the injured employee can pursue a claim and/or sue the responsible third party for damages.  The injured employee could recover damages for “pain and suffering” against a negligent third party.  An example of when an injured employee could pursue a claim for damages against a negligent third party would be where the employee was injured while using a defective machine.  Under those circumstances, the injured employee could pursue a claim for damages against the manufacturer and seller of the defective machine which caused his injuries.  Another example where an injured employee could pursue a claim for damages against a negligent third party would be where the employee was injured while working on a construction site.  If the employee’s injuries were caused by another contractor’s (or his employee’s) negligence, then the injured employee could pursue a damage claim against the contractor (or his employees) who caused his injuries.    

If you have been injured on the job, or if you have any questions regarding workers’ compensation law and right to benefits and damages, call DLP for a free consultation at 570-347-1011.

John P. Finnerty, Esquire 

ACTION ALERT
The Senate is about to begin full consideration of House Bill 2738, a Workers’ Compensation reform bill.  The Pennsylvania Bar Association generally stands in support of this legislation.  There are, however, two very troubling developments with the bill that have broader ramifications than workers’ compensation.

First, the original legislation proposed the professionalization of the Workers’ Compensation Appeal Board.  It would have required standards for Appeal Board members that are consistent with the existing requirements for Workers’ Compensation Judges: being an attorney in good standing before the Supreme Court, five years of Workers’ Compensation practice before administrative agencies or equivalent experience, and annual continuing professional development requirements.  Workers’ Compensation adjudication involves making sophisticated evidentiary rulings, reviewing fact patterns in light of an increasingly complex statutory scheme and understanding of an ever-growing body of complex case law. It is unconscionable that a non-attorney can be responsible for reviewing a decision of a judge who is an attorney and meets certain standards. Second, HB 2738 has been amended to eliminate the salary correction for Workers’ Compensation judges that would bring them to a level of compensation comparable to other administrative law judges.  The elimination of this salary parity provision is a political response to the Court’s pay raise decision, despite the fact that this Worker’s Compensation issue is wholly unrelated to the controversy of judicial pay.  There is no defensible reason to punish a small group of Worker’s Compensation judges in a Worker’s Compensation measure that is completely separate from the judicial pay political issue.  Such action serves no useful purpose, even to inform. We ask you to write to your Senator.  Request that the professional requirements for the Worker’s Compensation Board of Appeals and that simple pay parity for the small class of Workers’ Compensation Judges be reinserted in HB 2738–issues of integrity and professionalism for Pennsylvania’s Worker’s Compensation system and the legal profession, generally. We have made it easy to communicate – go to the PBA’s Legislative Action Center (click here) and compose a Message to Your Legislator on Workers’ Compensation Reform (click on Write Your Legislators).  Complete your Contact Information, and the Legislative Action Center will help you through an easy step-by-step process to edit, and send an e-mail message or download a letter for mailing.  The site has bullet points and a sample letter for you to personalize. Please try to personalize the form message before you send the e-mail or letter. If you choose, you may Compose Your Own Message, using the bullet point arguments noted above, (by clicking on Write Your Legislators under the Compose Your Own Message heading).

- Attorney Tom Cummings