The 2012 Update on Pennsylvania Workers’ Compensation Cases
November 8, 2012
By Marc S. Jacobs, Esq.
The law in Workers’ Compensation continues to change with numerous decisions by both the Commonwealth Court and Pennsylvania Supreme Court.
Insurance carriers have attempted to deny workers their benefits by use of various techniques. They have tried to identify “employees” as “independent contractors” so that coverage would not apply. They have refused to acknowledge the right of employees to file for additional benefits under the Uninsured Motorist coverage policy on an employer’s auto or truck policy. Retirement always comes into play and the use of proper forms raises questions of when and how often such forms have to be used. Here are some cases that may apply to you.
1. Independent Contractor vs. Employee:
This issue always comes up because an independent contractor would not be entitled to Workers’ Compensation benefits. In Six L’s Packing Company v. WCAB (Williamson), 46 EAP 2011 (2012), the Pennsylvania Supreme Court answered one question regarding such a circumstance.
A tomato grower hired a trucking company to transport harvested tomatoes between the grower’s warehouse and other delivery points. One of the trucking company’s workers was injured in a truck accident while transporting the grower’s tomatoes. The injured worker sought Workers’ Compensation benefits from the trucking company. However, it turns out the trucking company had no Workers’ Compensation insurance (a violation of the law). The driver then brought a Workers’ Compensation claim against the tomato grower.
The grower fought the claim. It denied owning any of the trucks that were driven by the driver. And, it argued, since the trucking company hired the driver, the grower should have no obligation to make payments under the Workers’ Compensation Act. The grower also argued that the injury occurred on a public highway not on the grower’s property.
The Worker’s Compensation Court rejected the grower’s argument. Instead, the Court ruled that the Act provides coverage in situations where a company contracts to have work performed that is a regular part of the contracting company’s business. In this case, growing, harvesting and delivering tomatoes are regular parts of the grower’s business. So, the Court concluded, the grower was a contractor and the trucking company a sub-contractor. Because the trucking company employed the injured worker – and it lacked insurance – the grower was responsible as the statutory employer and, therefore, obligated to pay Workers’ Compensation benefits.
2. Make Sure You Tell Your Doctor of Your Injury:
There is a rather frustrating case, which reminds us of how important it is to give a full history to your treating doctor about how and when you suffered your work injury. In Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72 (Pa. Commw. Ct. 2012), a claimant filed a petition alleging a work related injury which occurred while lifting a heavy skid with a co-worker. He eventually received treatment. The employer contested the claim alleging the claimant had suffered non-work related injuries which were related to his age. The Judge found in favor of the employer and rejected the testimony of the claimant’s medical expert. An important component of the Judge’s evaluation was the fact the claimant had not told the treating doctor about the alleged work injury during the initial visit. There was no reference to the work injury in the doctor’s records or any type of description in the notes.
Sometimes claimants are hesitant to discuss how an injury happened. Workers want to get back to their job and sometimes focus just on the nature of the complaints. Be sure to give a full picture to your doctor. Not only will that help treatment, but it will be important if your case eventually goes to litigation.
3. Uninsured Motorist Coverage/Underinsured Motorist Coverage:
In a milestone case for workers injured on the job while driving a car, the Pennsylvania Supreme Court has ruled that automobile insurers must pay Uninsured and Underinsured Motorist (UM/UIM) benefits to eligible individuals, even if they are receiving Workers’ Compensation. Heller v. Pennsylvania League of Cities and Municipalities 2011 Pa. LEXIS 2521 (2011).
In Heller, an on-duty police officer was hurt in an automobile accident. The injured officer recovered $25,000 from the reckless driver who injured him (the maximum coverage under that driver’s policy). The officer then notified his own insurer and his employer’s carrier of a potential UIM claim.
The employer’s auto insurance carrier denied the claim saying it was not required to provide coverage since the officer was collecting Workers’ Compensation. The Supreme Court disagreed and ordered the insurance company to pay.
For our clients, this case has a couple important messages. If you are hurt at work while driving a vehicle, collecting Workers’ Compensation benefits will not stop you from also filing a UM/UIM claim. This case also illustrates that every driver should carry Uninsured and Underinsured Motorist coverage. Remember, Uninsured Motorist coverage protects you and your family if someone is hurt by a careless driver who has no insurance. Underinsured Motorist coverage protects you and your family if a careless driver does not have enough insurance.
4. Notice of Ability to Return To Work:
This situation is for those workers who are already disabled from a work related injury and receiving benefits. The employer may have you examined by a doctor of their own choice (or perhaps it is your own doctor’s opinion) who feel you can perform certain light duty work. The employer will then send you a “Notice of Ability to Return to Work (NABTRW).” This document will advise you what the doctor said and the restrictions placed on you. You should contact us immediately upon receiving this Notice. You may disagree with what the NABTRW indicates. An investigation must be made as to whether your doctor agrees with the restrictions set forth by the employer’s doctor. You should also be advised the Court has held you have an obligation to start a job search after receiving this letter.
In one particular case, the Claimant did not start to look for work until a few months after he received this Notice. The Claimant thought he could wait until he received a Labor Report from the employer outlining potential jobs in his geographic area for which he may be capable of performing such work. The Court rejected this type of inaction. It indicated that since the Claimant did not look for work between the time he received his Notice of Ability to Return to Work and the time of the employer’s vocational interview, the Judge could find there were jobs available within his earning capacity during this period of time. Remember; do not let the employer off the hook. Although the burden of proof is on the employer to show available jobs, you must be aware of your rights, responsibilities and obligations.
Also, the Commonwealth Court has recently indicated that if you have already received one Notice of Ability to Return to Work, the employer need not send you another one where you have an updated exam and there are minor medical changes which may list an increase in your ability to work. While the employer has the obligation to notify you of this report, the Court rejected an attempt by a claimant to argue that since a new NABTRW was not issued there was no basis for the employer to proceed. The Court felt the notice aspect of the Act had been met by the first NABTRW that was issued. Thus, the Court felt there was adequate notice given to the claimant. Smith v. Workers’ Comp. Appeal Bd. (Caring Companions, Inc.), 2012 Pa. Commw. LEXIS 276 (Pa. Commw. Ct. Sept. 17, 2012).
The employer must show a claimant has retired by the totality of circumstances. In other words, has the claimant chosen not to return to the work force even under medical restrictions or has the claimant been forced to retire because of his disability. Often times, such allegations are made in connection with a claimant accepting a retirement pension or Social Security benefits.
Usually, the employer files a petition alleging the claimant really does not want to work and it is not due to disability. Thus, the court will take a look not only at the nature of your disability, but other connecting circumstance such as whether you are on retirement (as noted above), have you been looking for work, if you are capable of performing light duty, and/or are you receiving Social Security disability rather than Social Security Retirement benefits.
You should contact our office before taking any action so that the full set of facts can be reviewed. In a recent case, a claimant was receiving Workers’ Compensation benefits. It turns out the employer was closing down and offered the claimant a lump sum pension plan. The claimant signed the plan – received his money – but, really did not review what he had signed. It included reference to the fact that he was physically not disabled and could perform his regular job.
Once the claimant signed this form the employer just stopped paying compensation. There was no petition filed as required. There was not notice filed indicating benefits were to stop. The claimant filed a penalty petition alleging the employer did not follow the proper steps. The Commonwealth Court held that since the claimant accepted the retirement pension, benefits should have been suspended and there was really no penalty in the employer not filing the proper petition. Krushauskas v. WCAB (General Motors) (October 11, 2012).
Watch What You Sign When it Comes to Retirement Benefits!
6. Notice of Injury:
In Gentex Corp. v. Workers’ Comp. Appeal Bd. (Morack), 975 A.2d 1214 (Pa. Commw. Ct. 2009), a worker complained of intense pain in her hands but did not originally believe the pain was from her job duties. Her doctor kept her off of work for a few days but did not mention to the Claimant anything about the cause of her problems. The Claimant returned to work but the pain did not get any better. Over one year later, the Claimant sought treatment with a specialist who indicated her condition was due to her daily repetitive work activities. The Claimant filed a claim under Workers’ Compensation. The employer objected alleging the Claimant did not meet the obligation to notify the employer that this was a work injury within 21-days from the time she originally went out of work.
The PA Supreme Court rejected the employer’s argument and found in favor of the Claimant reasoning even though her notice was not “perfect” the Claimant made sufficient effort to inform her employer about her condition once the doctor told her it was work related. The Court cited the humanitarian purpose of the Act and granted compensation.
The Court explained there is no “magic words” which have to be used but the Court looks at the totality of circumstances based on the facts of the case. If you feel you have suffered a work injury, tell your employer how and why you feel that way. Be sure to explain to your doctor the job duties you perform so that your doctor can better understand the potential for any relationship between your symptoms and your job duties.
Contact the Experienced Philadelphia Workers’ Compensation Lawyers at Galfand Berger
If you or someone you know have been injured at your workplace in Pennsylvania or New Jersey, call our Philadelphia Workers’ Compensation attorneys at Galfand Berger, LLP at 1-800-222-8792 or contact us online. With offices in Philadelphia, Bethlehem and Reading, PA, we serve clients throughout Southeast Pennsylvania, including Harrisburgand Allentown, as well as Southern New Jersey.