Posts Tagged ‘W.C.A.B’

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”.

In Knechtel v. W.C.A.B. (Marriott Corporation), 934 A.2d 697 (Pa. 2007) the Pennsylvania Supreme Court affirmed an earlier order issued by the Commonwealth Court regarding the issue of whether an injured worker’s health care provider may attend and observe a medical examination scheduled by the defendant employer. Jusice Baer, in his concurring opinion, noted that the Pa. state legislature intended to allow the claimant’s health care provider “a first-hand view of the examination process, through attendance and observation”, but also noted that the legislature did not intend to permit the treating health care provider to engage in any active conduct which might disturb the examining physician and the examination process. Justice Baer went on to state that nothing in the Court’s affirmance of the Commonwealth Court’s opinion, “limiting a healthcare provider to attending and observing an employer’s physician’s examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam”. Justice Baer also indicated that a workers’ compensation judge “retains the discretion to grant a claimant’s reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer’s physician’s ability to conduct an examination”.

In Maxim Crane Works v. W.C.A.B. (Solano),931 A.2d 816 (Pa.Cmwlth.2007), the Court addressed the applicability of a retroactive offset of the Claimant’s workers’ compensation wage loss benefits based upon his concurrent receipt of Social Security “old age” benefits. Section 204(a) of the Pennsylvania Workers’ Compensation Act (“the Act”), 77 P.S. § 71(a), provides that fifty percent of the benefits commonly characterized as “old age” benefits under the Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.) shall be credited against the amount of the workers’ compensation payments provided that the Social Security benefits were received after the compensable injury. The offset shall not apply if old age Social Security benefits were received prior to the compensable injury per the provisions of Section 204(a) of the Act.
The Claimant, Solano, was injured on October 10, 2000. On June 6, 2005, Claimant received Form LIBC-756 “Employee’s Report of Benefits for Offsets” from the employer. Claimant completed the form and confirmed his receipt of old age Social Security benefits. On August 3, 2005, Claimant received Form LIBC-761 “Notice of Workers’ Compensation Benefit Offset”, notifying him that the employer was taking a credit that would offset his weekly workers’ compensation benefits, and that a credit from 14 months of prior old age Social Security benefits would also be recouped, reducing his weekly workers’ compensation benefits to zero for a period of 25.75 weeks. On August 16, 2005, Claimant filed the Petition to Review alleging that the offset was calculated in error.
In deciding the case, the Commonwealth Court has held that while the Claimant owed a duty to report receipt of old age Social Security benefits, the regulations placed the initial duty upon the employer or insurer to notify claimant of the reporting requirements and to provide the Claimant with the proper forms. Therefore, the employer was only entitled to an offset for old age Social Security benefits as of the date that claimant received the form notifying him of his duty to report his Social Security benefits. The Court further noted that the equitable doctrine of laches applied so as to disallow a retrospective offset for workers’ compensation claimant’s receipt of old age Social Security benefits. The employer had an obligation to notify claimant of claimant’s reporting requirements under the Workers’ Compensation Act in order for employer to secure an offset. However, the employer did not notify claimant of the reporting requirements until nearly five years after Claimant’s work injury and over two years after Claimant had begun receiving workers’ compensation benefits. In essence, the Court held that the employer could not sit on their rights and expect to recoup a retroactive overpayment.

Thomas P. Cummings, Esq.
Dougherty, Leventhal & Price
75 Glenmaura National Blvd.
Moosic, PA 18507
(570) 347-1011
[email protected]

The Pennsylvania Commonwealth Court has ruled that a claimant was entitled to benefits, despite fact that he was injured while violating a positive work order prohibiting horseplay. In Sysco Food Services of Philadelphia v. W.C.A.B. (Sebastiano), the facts indicated that the claimant was employed as an order selector. On the date of injury he was retrieving some shrink wrap. when he was grabbed from behind by a co-worker who shouted “Let’s get him.” Anothe co-worker grabbed the claimant from the front, hugging his arms so he could not move, and attempted to trip him. This individual pulled claimant across the floor. Claimant asked him to stop. At that time, someone came by on a pallet jack, beeped the horn at them, and told them to get out of the way. Claimant asserted that he was let go and as he was turning around to walk away he felt someone collide into him. As he fell to the ground, he looked up and a co-worker was on top of him. He heard a loud crack as he was falling. Claimant was taken to the hospital. Claimant acknowledged that horseplay was prohibited by his employer and that it is a punishable offense. Claimant’s contentionwas that he was not a participant in the horseplay, but rather a victim of it.
The claimant, Sebastiano, filed a claim for workers’ compensation benefits. In reponse, the employer raised the affirmative defense that claimant’s actions violated a positive work order and, therefore, his injuries were sustained outside the course and scope of his employment. To properly sustain this defense, the employer must prove: (1) that the injury was in fact caused by the violation of the work rule, (2) that the employee actually knew of the order or rule, and (3) that the rule implicated an activity not connected with the employee’s work duties.
The Commonwealth Court ruled that the claimant was entitled to benefits and granted claimant’s petition. The Court reasoned that, despite fact that the claimant was injured while violating a positive work order prohibiting horseplay, claimant was the victim of horseplay and was not an active participant in it. As the claimant did not choose to engage in the horseplay, it could not be said that he violated the rules of his employer. Further, the Court noted other factors supporting a compensable claim including the fact that the claimant was in an area he was required to be at the time he sustained his injuries, the incident in question was mere horseplay, and that there was joking around with no intent to harm or injure.

If you have been injured at work and have questions about your claim, please call me for a free consultation.
Thomas P. Cummings, Esq.
75 Glenmaura National Blvd.
Moosic, PA 18507
[email protected]

The Pennsylvania Commonwealth Court recently ruled in Boleratz v. W.C.A.B. (Airgas, Inc.) that treatment in the nature of massage therapy was not subject to payment by the employer under the Pa. Workers’ Compensation Act. In Boleratz, the treatment in question had been prescribed by Claimant’s treating physician. The parties also agreed that the treatment was causally related to the work injury. The Court held hold that the services of the massage therapist, who is not licensed or otherwise authorized by the Commonwealth to provide health care services, are not reimbursable under the Act, even if the services are prescribed by a health care provider as the services did not constitute “services rendered by a health care provider under the Workers’ Compensation Act”. 77 P.S. § 531(1)(i)(ii); 77 P.S. § 29.
Thomas P. Cummings, Esq.
[email protected]
(570) 347-1011

In Borough of Heidelberg v. W.C.A.B. (Selva), the Pennsylvania Supreme Court upheld an injured EMT’s right to collect workers’ compensation benefits.  The case is significant because the EMT was injured while working as a volunteer.  The Court noted that it is the intention of the Workers’ Compensation Act that members of a volunteer fire department or fire company are deemed employees and that when they are injured in the line of duty, they are entitled to workers’ compensation benefits even if they are paid no wages for compensation by the municipality for their services.

The next question then is what amount of workers’ compensation benefits are they entitled to as they have no historical wages to base their benefits upon.  The Pennsylvania Supreme Court in Borough of Heidelberg ruled that injured volunteer fire and ambulance company workers are entitled to wage loss benefits based on the statewide average weekly wage for purposes of computing their compensation.  The Court further held that such injured volunteers are entitled to receive workers compensation benefits regardless of whether the injured volunteer has any other employment at the time he/she is injured.

If you or someone you know suffers a work-related injury which causes a disability, including an injury suffered while volunteering for a fire company, call the DLP team of Pennsylvania Personal Injury Attorneys for a free consultation regarding your right to workers’ compensation benefits.

John P. Finnerty, Esquire

In Lewis v. W.C.A.B. (Giles & Ransome, Inc.), 919 A.2d 922 (2007), the Pennsylvania Supreme Court issued an opinion detailing the high burden of proof employers face in attempting to terminate an injured employee’s workers’ compensation benefits.  In general, a workers’ compensation judge may modify or terminate a claimant’s benefits when it has been demonstrated that the claimant’s disability (loss or earnings power) has changed.   

In Lewis, the employer had unsuccessfully attempted to terminate the Claimant’s benefits on three prior occasions.  The employer subsequently filed another Termination Petition.  In support of its fourth Termination Petition, the employer presented expert testimony from a medical witness who acknowledged that Claimant was suffering from the same condition and the same disorders which had previously been diagnosed.  The employer’s medical expert merely attempted to recharacterize the cause of Claimant’s condition. 

Where there have been prior petitions to modify or terminate workers’ compensation benefits, the employer seeking modification or termination of benefits must demonstrate a change in physical condition since the last disability determination.  Because the employer did not produce evidence that Claimant’s medical condition had improved,the Lewis  Court held that the employer’s Termination Petition was barred by issue preclusion. 

The Lewis decision precludes an employer from re-litigating the cause of a claimant’s condition or symptoms.  Once it has been determined that a claimant is disabled due to a particular condition or symptoms, the only way an employer can subsequently terminate or modify the claimant’s benefits is to produce expert medical testimony establishing an improvement in claimant’s physical condition which results in an increase in Claimant’s earnings power.

John P. Finnerty, Esquire