Crazy Commonwealth Court Decision

I think the Commonwealth Court has lost it marbles. In a recent decision, Pennsylvania Liquor Control Board v. WCAB, the court addressed what is an abnormal working condition while working at a liquor store.

As we all know from my past blog entries, you can receive workers compensation benefits for a psychological injury but only if you prove that the event that caused the psychological injury (stress, anxiety, nightmares, post traumatic stress disorder) was caused by an abnormal working condition. Obviously, these cases are extremely fact sensitive and it depends upon the specific jobs being looked at.

For example, in the above case, the employee worked for a liquor store who suffered an armed robbery while working. The court held that this incident was not an “abnormal working condition” because four other liquor store robberies had occurred in the same general area of the store that the robbery took place. Therefore, the court must have felt that this one particular liquor store clerk who experienced a traumatic armed robbery, should have expected to undergo this event.

This is why I think the Commonwealth Court has lost its marbles. How insane are they to believe that this is a normal working condition? Being held up at gun point and suffering a traumatic, emotional/psychological injury because of it is normal?!?! I'm dumbfounded...

Medical Expert Testimony

In a recent case that was issued by the Commonwealth Court of Pennsylvania, Southwest Airlines v WCAB, the Court addressed what constitutes expert medical testimony regarding causation.

In this case, the Claimant’s physician relied solely upon self serving statements by the Claimant regarding a head and neck injury being related to work activities. The doctor did not know of Claimant’s numerous preexisting and prior injuries to his head and neck. The workers’ compensation Judge, nevertheless, awarded benefits.

However, the Commonwealth Court reversed and stated that the basis for the doctor’s testimony was not competent and therefore the doctor’s expert testimony regarding causation was not competent.

This case is indicative of several things including what you must prove in order to win your workers’ compensation case. First, your treating physicians must give an opinion that your injury or condition is related to work activities. Second, that opinion must be competent and have a substantial basis. Usually, the basis for these opinions are the history given by the Claimant, examinations, diagnostic tests and the doctor’s own experience and education.

In the above case, it is apparent that the Claimant’s attorney did not adequately prepare the doctor regarding the issues in the case, specifically the prior injuries. If the Claimant’s attorney had prepared the doctor with the prior facts and the prior medical records and the doctor still had the opinion that the injuries were caused by the work activities then I am sure this case would not have gone up on appeal. This is a teachable moment for practicing Claimant’s attorneys in preparing their cases adequately as well as their medical experts.

Can a 27 year old injury be deemed work related?

In the case of Lancaster General Hospital v. WCAB (Weber-Brown) the Commonwealth Court of Pennsylvania decided that a claim on a twenty seven (27) year old eye injury was not beyond the three (3) year statute of limitations for work injuries.

In this case, the injured worker was exposed to a virus in his eye in approximately 1980. The claim was never formally accepted. Throughout the years, the Claimant continued to have periodic infections in the eye due to the virus he contracted at work.

In 2007, the Claimant suffered another one of the periodic infections. However, at this point, the infection could not be treated properly and the Claimant lost the use of the eye. The Claimant then filed a Petition for specific loss of the eye.

Despite the fact that it was twenty seven (27) years later, the Court said that the important date was not the exposure of the virus but rather the date of the “injury.” The Court indicated that in this particular case, the “injury” was the specific loss of the eye which occurred in 2007. As long as a Petition was filed within three (3) years of when the Claimant lost the use of the eye, then the claim would not be beyond the statute of limitations.

Abnormal Working Conditions

The Commonwealth Court decided a case recently on what constitutes an abnormal working condition. As we’ve blogged about before, an employee can claim a work related injury for mental trauma; however, the claimant must show that an abnormal working condition caused the trauma.

Merely having something bad happen at work does not necessarily translate into an abnormal working condition. For example, in prior cases, the Courts have held that a police officer suffering from post traumatic stress disorder due to being engaged in a gun battle with criminals was not an abnormal working condition because police officers often are involved in gun battles. Also, being yelled at by your boss significantly does not constitute an abnormal working condition.

In my opinion, in the case of McLaurin v WCAB (SEPTA), the Commonwealth Court of Pennsylvania unjustifiably restricted, once again, the definition of “abnormal working conditions.” In this case, a bus driver was assaulted by several hooded young men with guns. Due to this, the claimant suffered post traumatic stress disorder as well as psychological problems.

The employer presented evidence which showed that such occurrences were not extraordinary and did happen somewhat often while being a bus driver, despite the fact that it did not happen ever to this particular bus driver. The Court held that this occurrence was not an abnormal working condition.

In my opinion, I think the Court is completely off base. The injured worker was a bus driver. He was not in law enforcement or in any type of position where he would receive the training and skills to cope with such a happening. Once again, this is evidence of the Commonwealth Court severely limiting the rights of injured workers.

What geographic area should Labor Market Surveys be conducted?

In the recent case of Rebecor v. W.C.A.B. (Eckerd), the Commonwealth Court ruled on where a labor market survey must be completed. A labor market survey is where the workers' compensation insurance carrier hires a vocational specialist to do a job search for the injured worker. Once the search find jobs for the claimant in the general geographic area that is vocationally appropriate for the claimant as well as physical appropriate, the carrier will attempt to modify the claimant's benefits based upon the assumed wages of those jobs.

However, under labor market surveys, the jobs don't actually have to be offered to the claimant. The jobs are mere examples of the work available to the claimant in the general job market that the injured worker COULD be performing.

But what happens when the injured worker moves away from the area where the injury took place? What about another state? In this case, the Court held that the labor market survey must be done in the area where the work injury happened, and not the area where the claimant currently lives.

No Work Jobs

Every once in awhile I have a case where the employer offers a sedentary job to one of my clients but the job is really not a “job.” It is referred to as a “no work” job where the claimant merely shows up and sits there and basically does nothing. But, the injured worker gets paid his normal wage for his time.

You may ask why would an employer do this, basically pay someone their normal wage for producing no work? In many instances there are unseen costs of having the employee out of work and receiving workers’ compensation wage benefits. Some employers want to keep the employee at the job site so they can keep an eye on him/her. Some employers think it is too expensive to have a wage claim open with their insurance company because their workers’ compensation premiums will rise. Other employers merely want to set the employee up for failure so that they can fire the employee and stop his workers’ compensation benefits.

In a new case from the Commonwealth Court of Pennsylvania, Channel Lock, Inc. v. W.C.A.B. (Reynolds), the Court addressed one of these “no work” jobs. The court ultimately held that the job was not within the injured employee's physical capabilities.

The facts are pretty simple. The injured employee was offered a job where he basically came in to work and sat there. The employee actually tried to do this but fell asleep one day because the medication that he was taking made him drowsy. The employer threatened to fire him if he did it again. At that point, the employee’s attorney filed a petition to allege that the job was not available within his physical restrictions. During the hearing process, the claimant’s doctor testified that the medication could cause drowsiness and the claimant himself testified that every time he took this prescribed medication he became sleepy.

Ultimately, the Commonwealth Court held that the job was not within the claimants physical restrictions due to the fact that he could easily fall asleep while performing these “no work” jobs.

I believe that the underlying lesson in this case is that the courts do not look kindly on these “no work” jobs and, if possible, will always rule on the side of the claimant if they believe that there are other motives that the employer has offered these sham jobs.

The Commonwealth Court of Pennsylvania rendered a decision in the case of Philadelphia Gas Works v. WCAB (Amodei), dated February 4, 2009. The decision is highly technical but deals with the issue of pension offsets under Section 204 (a) of the Pennsylvania Workers’ Compensation Act.

Section 204 (a) allows the employer/workers’ compensation insurance carrier to take an offset or a credit for pension benefits paid. The question in this case was whether or not an offset gets taken by the net amount received by the employee or the gross amount received by the employee. There was prior case law that indicated that Section 204 (a) required the offset to be calculated via the gross amount. However, regulations were submitted by the Bureau which required the net amount to be considered.

In this case, The Commonwealth Court rules that the offset be based upon the net amount of pension benefits received. In layman’s terms, this means that it is the amount that the Claimant pockets from the pension, after all of the subsequent taxes are taken out, that would be the basis for the offset.

I am sure this case will be appealed to the Pennsylvania Supreme Court.

New case law on "travelling employees"

The case of Jamison v. W.C.A.B. (Gallagher Home Health Services) was issued by the Commonwealth Court of Pennsylvania on August 19, 2008. This decision addressed the issue of “a traveling employee.”

In this case, the claimant was a home health nurse who traveled around for Gallagher Home Health Services to various in-home clients that needed home health care. The employer paid the claimant a fixed wage for the time that she spent with the patients but was also reimbursed the claimant for mileage expenses. The employer did not reimburse the claimant for mileage incurred driving to the first patient’s home or for mileage incurred returning to her own home from the last patient’s home. Also, it was known and allowed by the employer for claimant to do personal errands during the day and during her travels.

Also, the claimant worked for two other employers on a part time basis. On any given day, the claimant could be working for all three of her employers.

The claimant was involved in an automobile accident where she suffered an aggravation of a preexisting complex regional pain syndrome in her left arm and chest. This accident occurred while traveling from her home to her first client’s home.

The Workers’ Compensation Judge agreed with the employer and denied the Claim Petition. The denial was based on the holding that the claimant was not a traveling employee because on any given day she could be working for any one of, or all three of, her employers. Because the Judge found that claimant was not a traveling employee, her commute from her home to her first job site, was not in the course of employment.

A standard rule in Pennsylvania workers’ compensation is that, if you are injured while traveling from home to work and you are a stationary employee (meaning you have one place where you work) you cannot be compensated for any injuries while commuting to and from work. However, if you are a “traveling employee” you may be compensated for injuries that occur while you are traveling, even if it is on your daily commute to and from work.

On appeal, the Commonwealth Court indicated that, when considering whether an individual is a traveling employee, each case is determined on a case by case basis. The Court found that because claimant did not work on the employer’s premises, but treated patients in their homes, the claimant had to travel to the various homes and that travel was an essential element of the claimants work for the employer. Further, but for the multiple employer issue, there would be little reason to doubt that claimant was a traveling employee with respect to her job with Gallagher.

The Court dealt with an issue of first impression. No Court had addressed the issue of whether a claimant must work for a single employer in order to be considered a traveling employee. In this case, the court ruled in favor of the claimant. The Court held that there was no evidence that supported the Workers’ Compensation Judge’s finding that the claimant had abandoned her employment with Gallagher and was doing work for one of her other employers at the time of the motor vehicle accident.