I read an interesting article in the Associated Press regarding a Pennsylvania Appellate Court holding that police officers who lose their sense of smell might also risk losing their jobs.
The Pennsylvania Commonwealth Court ruled that a suburban Pittsburgh township had the right to terminate one of its police officers after he lost his sense of smell in an off duty motorcycle accident. The reasoning for the termination was because police officers must be able to detect drugs, alcohol, hazardous materials, natural gas and other substances.
Obviously, if the loss of smell was related to a work related injury then the officer could still be fired, but his workers' compensation weekly wage benefits would have to be paid. Unfortunately for this officer, the accident was not work related.
You can see the article here.
Tuesday, March 31, 2009
Wednesday, March 11, 2009
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.
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.
Monday, February 23, 2009
McDonald's: No workers comp for employee shot protecting patron
Do they have no sense of decency?
See the full story from Rawstory.com here. See a news report and surveillance video of the event here.
Fast food giant McDonald's has denied workers compensation benefits to a minimum wage employee who was shot when he ejected a customer who had been beating a woman inside the restaurant.
A representative of the administrator for McDonald's workers compensation plan explained that "we have denied this claim in its entirety as it is our opinion that Mr. Haskett's injuries did not arise out of or within the course and scope of his employment.
"Nigel Haskett, then aged 21, was working at a McDonald's in Little Rock, Arkansas last summer when he saw a patron, later identified as Perry Kennon, smacking a woman in the face. A surveillance video of the incident, which had been posted to YouTube, was taken down after McDonald's charged copyright infringement, but according to written descriptions of the video, Haskett tackled Kennon, threw him out, and then stood by the door to prevent him from reentering.
See the full story from Rawstory.com here. See a news report and surveillance video of the event here.
Tuesday, February 10, 2009
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.
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.
Wednesday, February 4, 2009
New Case Law on Serial Termination Petitions
There was a new Pennsylvania Commonwealth Court decision in the case of Delaware County v. WCAB (Browne) dated December 22, 2008. This case dealt with the issue of serial Termination Petitions by the insurance company. I have blogged about the issue of “serial termination petitions” previously, specifically about the case of Lewis v. WCAB (Giles & Ransome, Inc.) case. This blog post can be found here.
The Delaware County case involved the similar facts as in Lewis wherein a claimant previously defeated a termination petition and then a subsequent termination petition was filed. The Commonwealth Court held that the employer failed to establish that the Claimant’s physical condition had changed since the prior decision. The Commonwealth Court indicated that in order to show a “a change in the Claimant’s physical condition” before the employer can move forward with a Termination Petition, the employer could come forward with creditable medical evidence that the Claimant’s current physical condition is different than it was at the time of the last disability adjudication due to a total recovery from the recognized work injury. Such medical evidence, if found creditable by the WCJ and if referenced as a Finding of Fact in the Decision, would satisfy the employer’s burden of proving a change in the Claimant’s physical condition.
In other words, by accepting the employer’s medical evidence of a full recovery as creditable, a WCJ could properly make a finding that the employer has met the standards set forth in Lewis by demonstrating a change in Claimant’s condition.
I am sure this case will be appealed and we will receive more clarification on the burdens of proof in serial termination cases.
The Delaware County case involved the similar facts as in Lewis wherein a claimant previously defeated a termination petition and then a subsequent termination petition was filed. The Commonwealth Court held that the employer failed to establish that the Claimant’s physical condition had changed since the prior decision. The Commonwealth Court indicated that in order to show a “a change in the Claimant’s physical condition” before the employer can move forward with a Termination Petition, the employer could come forward with creditable medical evidence that the Claimant’s current physical condition is different than it was at the time of the last disability adjudication due to a total recovery from the recognized work injury. Such medical evidence, if found creditable by the WCJ and if referenced as a Finding of Fact in the Decision, would satisfy the employer’s burden of proving a change in the Claimant’s physical condition.
In other words, by accepting the employer’s medical evidence of a full recovery as creditable, a WCJ could properly make a finding that the employer has met the standards set forth in Lewis by demonstrating a change in Claimant’s condition.
I am sure this case will be appealed and we will receive more clarification on the burdens of proof in serial termination cases.
Thursday, January 22, 2009
Prison Guard receives settlement in MRSA case
This is a news story about a prison guard who contracted a MRSA infection while at work. The infection caused significant scarring on her face. The case settled for $226,000.00. See the whole article here.
2009 Pennsylvania Average Weekly Wage Announced
Pursuant to the Workers' Compensation Act, Section 105.1, the Department of Labor & Industry has determined the statewide average weekly wage for injuries occurring on and after Jan. 1, 2009, shall be $836.00 per week. For purposes of calculating the update to payments for medical treatment rendered on and after Jan. 1, 2009, the percentage increase in the statewide average weekly wage is 3.6 percent.
Under the Workers' Compensation Act, injured workers are entitled to indemnity (wage-loss) benefits equal to two-thirds of their weekly wage for a work-related injury. However, there are minimum and maximum adjustments provided in the Act, and the benefit rate is set using the annual maximum in place at the time of injury. The maximum is based on the Department of Labor and Industry's calculation of the statewide average weekly wage.
The following schedules provide the weekly rates from calendar year 1993 to 2009. When referring to the schedules, read down the column for the calendar year during which the injury occurred.
For example, the maximum weekly compensation rate for calendar year 2009 is $836.00. The second block represents the weekly compensation rate to be 66 2/3 percent of the employee's average weekly wage if the average weekly wage falls between $1,254.00 and $627.01.
The third block reflects a weekly compensation rate of $418.00 if the employee's average weekly wage is between $627.00 and $464.44.
The last block is 90 percent of the employee's average weekly wage if his/her average weekly wage is $464.43 or less.
You can see the full schedule here.
Under the Workers' Compensation Act, injured workers are entitled to indemnity (wage-loss) benefits equal to two-thirds of their weekly wage for a work-related injury. However, there are minimum and maximum adjustments provided in the Act, and the benefit rate is set using the annual maximum in place at the time of injury. The maximum is based on the Department of Labor and Industry's calculation of the statewide average weekly wage.
The following schedules provide the weekly rates from calendar year 1993 to 2009. When referring to the schedules, read down the column for the calendar year during which the injury occurred.
For example, the maximum weekly compensation rate for calendar year 2009 is $836.00. The second block represents the weekly compensation rate to be 66 2/3 percent of the employee's average weekly wage if the average weekly wage falls between $1,254.00 and $627.01.
The third block reflects a weekly compensation rate of $418.00 if the employee's average weekly wage is between $627.00 and $464.44.
The last block is 90 percent of the employee's average weekly wage if his/her average weekly wage is $464.43 or less.
You can see the full schedule here.
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