Bowling For Compensation Dollars

July 13, 2012

Factual Background In 2008, claimant was a member of a labor crew for a paving company.  While waiting for the next truckload of asphalt to arrive, the crew found a bowling ball next to the parking lot where they were working.  After a round of shot-put, a challenge arose among the crew members to see if anyone could break the bowling ball with a sledgehammer.  Claimant struck the bowling ball with the sledgehammer and cracked it.  Claimant’s second whack at the ball caused a piece of it to break off and strike him in the eye, resulting in an eye laceration which ultimately led to the loss of the eye.  Claimant filed a workers’ compensation Claim Petition requesting benefits entitlement for specific loss of the eye, alleging the injury occurred during the course and scope of his employment.  During the litigation of this case before a Workers’ Compensation Judge (WCJ), claimant’s foreman testified that in between the two times claimant struck the bowling ball with the sledgehammer, he told claimant to, “knock it off, or stop.” The WCJ granted the Claim Petition holding that claimant, at the time of the accident, had not deliberately put himself at risk of injury, but was merely careless, and that such carelessness did not take him outside the scope of his employment to disqualify the claim.  The WCJ disagreed with employer’s position during the litigation, that claimant had violated a positive work order, which violation had caused the injury, thus invalidating the claim.  Instead, the WCJ concluded that although the foreman had issued a direct warning, it was not imparted sufficiently in advance of the injury in order to be considered a positive work order.  The WCJ was more persuaded by claimant’s argument that an employee does not depart from being engaged in the furtherance of the employer’s business or affairs during intervals of leisure while at work. Read More

The Pennsylvania Supreme Court Expands A Contractor’s Liability For Workers’ Compensation Payments To A Subcontractor’s Employees

July 2, 2012

Background Facts of Case The most common case implicating an alleged statutory employer as liable for workers’ compensation benefits for an individual, typically involves a construction worker whose direct employer, namely, a subcontractor on a large construction project, has failed to provide workers’ compensation insurance coverage for that individual.  In that instance, the subcontractor has failed to purchase or maintain an active or valid workers’ compensation policy to cover its own employee.  The question then arises as to whether the general contractor becomes the statutory employer liable for workers’ compensation damages to that individual if he is injured on-the-job. However, in this case, Six L’s Packing Company grew, processed, and distributed tomatoes and other produce.  The company owned various farms, processing, and distribution facilities.  Six L’s contracted with F. Garcia and Sons to perform certain services, including transporting tomatoes by truck between a warehouse in Pennsylvania and a processing facility in Maryland.  Claimant was employed by Garcia as a truck driver, and sustained injuries from a vehicular accident incurred on a highway in Pennsylvania while hauling tomatoes between the two locations.  Claimant filed workers’ compensation Claim Petitions against Garcia and against Six L’s.  It turned out that Garcia had not maintained workers’ compensation insurance for its employees.  This case was therefore focused on the theory of whether Six L’s then became claimant’s statutory employer, under Section 302 of the Pennsylvania Workers’ Compensation Act, as amended, and whether Six L’s consequently became liable for payment of workers’ compensation benefits to claimant. Under Section 302, (a) A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act.  Read More

The Pennsylvania Commonwealth Court Again Addresses The Situation Where A Claimant Receiving Workers’ Compensation Indemnity Benefits Is Considered Retired, Has Consequently Withdrawn Himself Voluntarily From The Workforce, And Is Therefore No Longer Entitled To Wage Loss Benefits

March 8, 2012

Factual Background Claimant had sustained occupationally-related cervical and lumbar spine injuries on June 6, 1997 and on March 31, 1998, and had incurred another work-related cervical injury on September 3, 1998.  After the 1998 injury, claimant never returned to work.  At that point, he was fifty-one years old and had been a twenty-year employee of the employer.  He thereafter received workers’ compensation indemnity benefits, as appropriate. On June 5, 2003, claimant underwent an Independent Medical Examination conducted by Dr. Levenberg, who concluded that, despite residuals from his injuries, claimant was nevertheless appropriate for full time sedentary work.  A Notice of Ability to Return to Work, Workers’ Compensation Bureau form LIBC-757, was issued to claimant on June 26, 2003.  On June 22, 2004, a Modification Petition was filed on employer’s behalf based upon a Labor Market Survey conducted by a vocational rehabilitationist, premised upon Dr. Levenberg’s medical allowances for claimant to work.  On June 24, 2004, a Suspension Petition was filed on employer’s behalf, alleging that claimant had voluntarily withdrawn himself from the labor market because he had retired, that any wage loss he was experiencing was due to this fact, and that he was therefore no longer entitled to workers’ compensation indemnity benefits. These matters were litigated, and the Workers’ Compensation Judge (WCJ) ultimately credited Dr. Levenberg’s medical findings, assessing claimant as capable of performing sedentary work, over claimant’s doctor’s testimony that claimant could not work.  However, the Judge did not grant the Modification Petition.  In regard to the Suspension Petition, claimant was receiving a retirement pension through the employer, as well as Social Security Administration (SSA) disability benefits.  Claimant testified that he believed he could not work.  The WCJ concluded that claimant had not voluntarily withdrawn himself from the workforce, and that claimant’s choice to take his retirement pension was an economic decision.  Read More

The Pennsylvania Commonwealth Court Affirms The Denial Of A Claim Petition Because The Injury Was Determined Not To Have Occurred Within The Course Of A Claimant’s Employment When He Abandoned His Job Duties And Specific Worksite

February 9, 2012

Factual Background of Case In June 2007, the Oakmont Country Club, near Pittsburgh, hosted the annual U.S. Open Golf Tournament.  Employer provided certain services at this U.S. Open, and hired Claimant to work there.  Claimant’s assigned job duty was to watch an open tent with a Lexus vehicle on display inside.  His shift was from 7 p.m. on June 9 to 7 a.m. on June 10. Claimant filed a Workers’ Compensation Claim Petition for a June 10, 2007 injury, which was opposed by employer, based on the position that Claimant was outside the course of his employment when he was injured. Claimant’s testimony differed significantly in comparison with that offered by various employer representatives. Claimant testified that around 6 a.m. on June 10, he heard sounds and saw lights.  Approximately forty minutes later, he said he decided to check the surrounding areas where he had previously seen the lights and heard the noises.  He left the Lexus Tent.  While away from the Lexus Tent, but still on the Oakmont Country Club grounds, and before his shift ended, Claimant incurred head and back injuries.  He indicated that around 6:40 a.m., he walked to a grandstand with bleachers to get a better look around the area, when something let loose under him on the bleachers, causing him to fall.  He said he had decided to investigate the area around the Lexus Tent because he had heard some noises earlier.  He could not approximate the distance between the Lexus Tent and the grandstand.  He described the bleachers as possibly being as little as twenty feet out of his way and less than one hundred yards from the Lexus Tent.  He was unable to estimate the distance or direction he was walking when he came upon the bleachers, other than to say they were within the vicinity of the Lexus Tent.  Read More

The Commonwealth Court Holds That Despite A Claimant Undergoing Spinal Fusion Surgery, Involving Bone Grafting And Metallic Fixation, A Termination, Based On A Credible And Persuasive Physician’s Opinion Establishing The Claimant’s Full Recovery From All Aspects Of The Work Injury, Can Be Properly Granted

September 16, 2011

Background Facts of Case Claimant, a stagehand, sustained a back injury on September 11, 2007 while working at Mellon Arena in Pittsburgh, due to a fall.  His injury had been legally described as involving a lumbar level L3-4 disk herniation and a lumbar strain.  As a result of the injury, Claimant was paid partial disability workers’ compensation benefits from January 12, 2007 through January 18, 2008, and total disability benefits from January 19, 2008 through July 2, 2008.  On July 3, 2008, he returned to work at his regular job with no wage loss.  The remaining issue to be litigated was whether a full Termination of benefits was deserved, based upon the medical opinion evidence.  The Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) both answered this question in the affirmative. In February 2008, Claimant had undergone low back surgery, including an L3-4 decompressive laminectomy, a right-sided microdiscectomy, and a fusion using autologous bone augmented by bone from a bone bank, with screw fixation bilaterally.  During Claimant’s testimony, he admitted the surgery had resolved his leg limp.  However, he reported experiencing continued daily back pain symptoms aggravated by weather changes, and also occasional right leg pain.  He addressed the pain by taking ibuprofen.  After returning to his job post-surgery, Claimant did not miss any further work due to back problems, and did not undergo any additional formal medical treatment.  He did have a pre-existing non-work related pars defect, degenerative spinal disease, and spondylolisthesis. Dr. Richard Kasdan conducted an independent medical examination on June 30, 2008.  His conclusions were opposed by treating physician opinions that Claimant had not recovered.  The WCJ credited Dr. Kasdan’s opinions, that Claimant recovered from his work injury, as persuasive, and he terminated all workers’ compensation benefits entitlement effective June 30, 2008.  The overriding issue on appeal was whether Dr. Read More

Jumping Down A Whole Flight Of Steps At Work And Crashing, Instead Of Walking Down The Stairs Normally: A Compensable Injury?

June 24, 2011

Background Facts of Case Claimant was a housekeeper for the Pennsylvania State University Behrend Campus.  On June 7, 2007, he left where he was working at Perry Hall, to take a one-half hour unpaid lunch break at an on-campus dining facility operated by Employer, where Claimant participated in an Employer-sponsored meal plan.  (He would have to notify his supervisor, and clock out and clock back in, if he left campus for his lunch break.)  On the way to the dining facility, he intentionally jumped down an entire flight of approximately 12 steps.  This resulted in multiple fractures to both ankles, and he underwent surgeries on both ankles and screws were inserted.  He did return to work without a loss of earnings on August 7, 2007. On June 25, 2007, Claimant filed a Claim Petition, which was subsequently litigated.  In opposition to the Petition, Employer contended this incident’s occurrence was outside the course and scope of Claimant’s employment, that the incident happened because of horseplay and in violation of a positive work order, and accordingly, that the resulting injury was non-compensable. Claimant testified that jumping down the flight of steps was a whim on his part.  He also said, though, that he thought about jumping down this flight of stairs previously.  A co-worker of Claimant testified that Claimant told her, prior to the injury date, that he thought he could successfully jump down this set of stairs. The Workers’ Compensation Judge (WCJ) granted benefits, finding this incident did not occur outside the scope of Claimant’s occupational activities, and that Claimant’s actions did not constitute a direct and intentional violation of a positive work order against horseplay. Employer appealed, and the Workers’ Compensation Appeal Board (WCAB) affirmed the WCJ’s holding, concluding the injury arose within the course of Claimant’s employment, and resulted from an activity not foreign enough to Claimant’s regular duties as to remove him from the scope of his employment at the time of injury. Read More

The Pennsylvania Commonwealth Court Explains That, Although A Claimant’s Average Weekly Pre-Injury Wage Figure Was Increased Because Of Overtime Pay, He Is Not Necessarily Entitled To Wage Loss Benefits Once He Returns To Work And Overtime Is Then Unavailable, If Overtime Is Also Unavailable At That Time To His Similarly Employed Co-Workers Across-The-Board

June 17, 2011

Background Facts of Case Claimant sustained a work injury in October, 2006.  He was thereafter paid total disability benefits appropriately under the terms of a Notice of Compensation Payable.  Prior to the injury, he worked overtime, and, of course, his overtime pay was included in his average weekly pre-injury wage figure calculation, from which his corresponding weekly benefits rate was derived.  On March 20, 2007, claimant returned to work without physical restrictions, and his wage loss benefits payments were Suspended.  As of September, 2007, overtime work was no longer available to claimant because of a downturn in the economy adversely affecting the employer.  In fact, overtime work was eliminated for all employees there.  Claimant earned approximately $211 less per week without the overtime pay, in comparison with his average weekly pre-injury wage figure.  In November, 2007, claimant filed a petition seeking parti­al disability benefits payments (i.e., two-thirds of the difference between his average weekly pre-injury wage figure and his current pay per week), effective March 20, 2007, alleging that his work injury had caused him a reduction in his earning power.  This matter was litigated before a Workers’ Compensation Judge (WCJ). First of all, in reviewing the medical opinion evidence, the WCJ agreed that claimant had returned to work without physical restrictions.  (An independent medical examination physician concluded that claimant had no physical restrictions.  Claimant’s treating physician said that claimant should not lift more than 50 pounds and that he may require occasional lifting assistance, but it was further noted that sometimes claimant had even needed such assistance pre-injury.  Therefore, the WCJ determined that, currently, claimant had no real physical restrictions attributable directly to the work injury.)  Although the WCJ concluded that claimant was indeed eligible for partial disability benefits from March 21, 2007 through September 30, 2007, the WCJ then ordered a Suspension effective October 1, 2007.  Read More

The Pennsylvania Commonwealth Court Further Illustrates How A Claimant’s Retirement Status Can End Eligibility For Indemnity Benefits Entitlement

June 10, 2011

Background Facts of Case In 1992, Claimant sustained an occupational injury.  As a result, he worked at a modified-duty position from around 1996 through 2001, when he was laid-off.  Claimant subsequently received total disability workers’ compensation indemnity benefits.  Claimant still had certain lifting restrictions residual from his work injury.  Then, around 2001, Claimant began receiving Social Security Administration (SSA) retirement benefits, and pension benefits from the Employer.  Claimant did not look for work thereafter.  A Suspension Petition was filed, alleging that Claimant had voluntarily withdrawn himself from the workforce and was therefore ineligible for workers’ compensation indemnity benefits payments. Following litigation of this petition, the Workers’ Compensation Judge (WCJ) agreed, based upon the evidence presented, that Claimant had indeed voluntarily removed himself from the workforce and that this was the reason for his current wage loss.  Consequently, the Suspension Petition was granted.  Claimant appealed, and the Workers’ Compensation Appeal Board (WCAB) affirmed the WCJ’s decision.  Claimant further appealed to the Pennsylvania Commonwealth Court. Commonwealth Court Holding In addressing this issue, the Commonwealth Court first cited the standards enunciated by the Pennsylvania Supreme Court in Southeastern Pennsylvania Transportation Authority v. WCAB (Henderson), 669 A2d 911 (1995).  For indemnity benefits payments to continue after a claimant retires, the claimant must prove: 1) he is seeking employment after retirement, or 2) he was forced out of the labor market and into retirement because of residuals from the work injury.  See also County of Allegheny (Dept. of Public Works) v. WCAB (Weis) , 872 A.2d 263 (Pa. Cmnwlth. 2005).  The Commonwealth Court also explained that an employer is not required to prove availability of suitable work, when pursuing a Suspension under these circumstances, if the claimant voluntarily removed himself from the labor market through retirement. The Commonwealth Court then discussed the Pennsylvania Supreme Court case of Republic Steel Corp. Read More

A Recent Pennsylvania Commonwealth Court Case Is Instructive Concerning The Use Of The Employee’s Report Of Benefits Form

June 3, 2011

Background Facts of Case Claimant sustained a work injury in 2000.  A Notice of Compensation Payable indicated her weekly indemnity benefits rate was $611 based upon an average weekly pre-injury wage figure of $1,045.58.  Five years later, claimant was still receiving indemnity benefits payments on this basis.  The employer sent her an LIBC-756 form, Employee’s Report of Benefits, which she completed August 8, 2005.  At that time, she was receiving Social Security Administration (SSA) disability benefits, which are not subject to offset against the workers’ compensation benefits she also collected.  In 2007, the employer sent her another LIBC-756 form.  She completed this form on June 26, 2007, indicating she had been receiving old-age SSA benefits beginning October 28, 2006, at the rate of $1,376.90 monthly.  As a result, the employer filed a Notice of Workers’ Compensation Offset, form LIBC-761, indicating it was entitled to a credit of $6,884.50 for past overpaid workers’ compensation benefits, a credit which was intended to be applied against future indemnity benefits payable to claimant.  Claimant would therefore be paid nothing weekly in wage loss benefits until the entire credit was absorbed.  Thereafter, her indemnity benefits rate would be reduced to $452.37 weekly, reflecting a credit for one-half of the old-age SSA benefits she received weekly, against her weekly indemnity benefits payable, under Section 204 of the Workers’ Compensation Act, as amended (the Act).  Claimant filed a Penalty Petition alleging that the employer took an illegal retroactive Suspension.  This petition was litigated with several other petitions for this case. In regard to the Penalty Petition, the Workers’ Compensation Judge (WCJ) found that claimant had failed to establish the employer had violated any terms for payment, or for stopping payment, of indemnity benefits under the Act.  The WCJ held that claimant was aware in at least August, 2005 [when the employer sent the first LIBC-756 form to her] of the reporting requirements regarding her receipt of old-age SSA benefits, but that she did not report obtaining those benefits until she completed the second such form, which employer sent to her in June, 2007.  Read More

Workers’ Compensation Fraud: Tilting At Fraud Mill No Longer Quixotic

2011/05/01

Doug K. Rosenblum authored “Workers’ Compensation Fraud: Tilting at Fraud Mill No Longer Quixotic,” which was published in the Fraud Magazine, The Legal Intelligencer and The Philadelphia Examiner. Read More