Philadelphia Workers Comp Attorney- Case Law Update Regarding Pension Offset

In Stepp v. Workers’ Compensation Appeal Board (No. 2270 C.D. 2013, filed September 10, 2014), the Commonwealth Court decided whether an employer may take an offset against a claimant’s workers’ compensation benefits under Section 204 (a) of the Pennsylvania Workers’ Compensation Act for pension benefits funded by its wholly-owned subsidiary. Unfortunately, the answer is yes.

Claimant began working for Marianna Scenery Hill Telephone Company in January 1973. In 2000, FairPoint acquired Marianna. Claimant continued to be an employee of Marianna, but the human resources department for all employees of all FairPoint subsidiaries was managed by FairPoint. It appeared that all employees in the FairPoint “family of subsidiaries” were covered by the same workers’ compensation plan or policy.

Claimant argued that the Workers’ Compensation Appeal Board and Judge erred in granting FairPoint an offset for Claimant’s pension under Section 204 (a) of the Act because Marianna funded the pension plan. Claimant argues that FairPoint is not entitled to an offset for a pension plan funded by a different , but still existing, corporation.

In 1996, the legislature, in an effort to combat rising workers’ compensation costs, amended 204 (a) of the Act to allow employers an offset against workers’ compensation benefits for social security, severance, and pension benefits simultaneously received by an employee.  Note that the Court reminded us that the party seeking to change the status quo in a workers’ compensation case bears the burden of proof. Here, it’s the employer’s burden.

Claimant did not challenge the factual finding of the WCJ (Workers’ Compensation Judge- at the initial level) that Marianna funded 95.71% of Claimant’s pension. Instead, Claimant asserted that the Board erred because FairPoint, not Marianna, is “directly liable” for the payment of his workers comp benefits. As such, the argument is that only Marianna, no FairPoint, is entitled to the Section 204 (a) offset.

The Court pointed to Section 1929 of the Business Corporation Law of 1998 to highlight that when corporations merge, the surviving corporation succeeds to both the rights and liabilities of the constituent corporation. While this wasn’t a merger governed by Section 1929, the principles have direct application pursuant to prior case law. (LTV Steel Co., 754 A.2d 666).

As a practitioner who represents injured workers, I want to disagree with this case. However, and unfortunately, I believe the Court decided it correctly.

For more information about Pennsylvania Workers Comp, call or email Certified Work Comp Specialist, Michael Cardamone of The Cardamone Law Firm, LLC 7 days a week at (215) 206-9068 or myphillyworkerscomp@gmail.com

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Case Law Update: Can An Injured Worker Be Compensated For Ayurvedic Medical Treatment When Not Prescribed By A Licensed Pennsylvania Health Care Practitioner?

No. The Commonwealth Court of Pennsylvania, in a recent Opinion, (Babu v. Workers’ Compensation Appeal Board) has ruled that an injured worker- even though a nurse herself, cannot be reimbursed for Ayurvedic treatment she underwent in India because it was not done vis-a-vis a referral or under the supervision of a licensed Pennsylvania health care practitioner.

The Court rejected the Claimant’s allegation that she herself was a supervising Pennsylvania health care practitioner. The Court noted that there was no evidence that Claimant was trained in massage therapy or that she exercised supervisory control over the practitioners in India.

This is a bad case for injured workers in Pennsylvania. The seminal issues should be whether the treatment is “reasonable, necessary, and related” to the accepted work injury. Claimant, to her credit, was trying an alternative form of medicine to get some relief from her work-related symptoms. What happens when a claimant goes out of state because a spouse changed jobs? Can the claimant now not get medical treatment if the provider isn’t licensed in Pennsylvania? That’s never been enforced before as far as I recall- as long as the provider bills the treatment on the prescribed forms in Pennsylvania, the treatment gets paid. Health practitioners like nurses, should be given some slack with supervising, to an extent, their own condition.

Let’s hope this Decision gets appealed and that the Pennsylvania Supreme Court takes the case.

For more information about Pennsylvania Workers’ Compensation, call experienced and Certified Attorney Michael Cardamone of The Cardamone Law Firm, LLC 7 days a week at (215) 206-9068 or email myphillyworkerscomp@gmail.com

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Pennsylvania Work Comp Law- Marazas v. Workers’ Compensation Appeal Board (Vitas Healthcare Corporation)-Can An Employee, After Quitting, Be Considered In The Course And Scope Of Employment When Injured On The Premises Before Leaving?

Yes. Why? Pursuant to this Decision from the Commonwealth Court of Pennsylvania, dated August 11, 2014, even though the injured worker quit, the Employer directed him to clean out the truck before leaving, and after he did that, he tripped on a pallet jack causing a fall and resultant injury. The reasoning of the Court was that Claimant was doing something that the Employer requested, and he was on the Employer’s premises and furthering Employer’s interests when he sustained injuries- even though he had technically quit just moments before.

In their Decision, the Commonwealth Court of Pennsylvania distinguished the facts of this case with Little v. Workers’ Compensation Appeal Board (B & L Ford/Chevrolet), 23 A.3d 637 (Pa. Cmwlth. 2011) where a claimant had a heart attack at his home two days after receiving a termination letter in the mail. Here, Claimant was injured on the Employer’s premises. In Little, the claimant was terminated by letter and died days after his employer severed the employment relationship. Here, Claimant sustained the injury on the last day of employment, “in temporal proximity to quitting, within a reasonable time of being required to be on the premises”.  Also, in Little, the claimant was not only fired, he was also not engaged in any work activities when he was pacing at his own home. Here, Claimant was injured while performing a task required by the Employer- cleaning out the truck.

Note also that Claimant, while ultimately successful, as part of the appeal, argued that Employer’s admissions in a civil suit that Claimant was employed at the time of his injury, estopped Employer from denying that fact in the workers’ compensation proceeding. The Court delineated the factors of judicial estoppel and concluded that it did not apply in this case.

The key in this Decision of the Commonwealth Court of Pennsylvania is that under Section 301(c) (1) of the Pennsylvania Workers’ Compensation Act, the phrase “arising in the course of employment” is construed to include injuries sustained in furtherance of the business affairs of the employer, as well as certain other injuries which occur on premises occupied or controlled by the employer. In this case, while Claimant had “quit”, the Employer then required him to perform a task and that’s when he was injured- thus, falling under the “arising in the course of employment” umbrella.

For information about Pennsylvania Workers’ Compensation Law, call Certified Pennsylvania Work Comp Attorney, Michael W. Cardamone 7 days a week at (215) 206-9068 or email myphillyworkerscomp@gmail.com

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Cruz vs. Workers’ Compensation Appeal Board- What Is The Proper Allocation Of The Burden of Proof Between An Employer And A Workers’ Compensation Claimant Regarding The Injured Employee’s Legal Eligibility Under Federal Immigration Law To Obtain Suitable Employment When The Employer Seeks To Suspend Disability Benefits?

In this Supreme Court of Pennsylvania Decision, the Court held that the Employer bore the burden to prove that the loss of earning power of its employee, David Cruz, was due to his lack of United States citizenship or other legal work authorization in order to obtain a Suspension of his workers’ compensation disability benefits.

The Court also held that Claimant’s invocation of his 5th Amendment right against self-incrimination when questioned at the workers’ compensation hearing before the Work Comp Judge did NOT constitute substantial evidence of his alleged lack of legal authorization to be employed in the United States.

The 23 page Decision by the Pennsylvania Supreme Court was well organized and reached the right result. Per previous case law, the burden of an injured worker to prove eligibility for benefits is two-fold, 1) he or she was injured in the course and scope of employment, and 2) the injury resulted in a loss of earning power. Thus, a claimant’s eligibility to lawfully work in the US is not a relevant factor. Once an injury is established as work-related, to suspend benefits, it is the Employer’s burden of proof to show the factors necessary for a Suspension of benefits. In this regard, it’s the Employer’s burden to prove, through competent evidence, that claimant’s loss of earning power is due to her employment eligibility status under federal law.

If you have questions about Pennsylvania Work Comp Law, call or email Attorney Cardamone 7 days a week at (215) 206-9068 or myphillyworkerscomp@gmail.com

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Case Review: Pennsylvania Workers’ Compensation Subrogation, Medical Expenses, and Reimbursement

In a Commonwealth Court Decision dated June 30, 2014, the Court affirmed the Order of the Workers’ Compensation Appeal Board which affirmed the Workers’ Compensation Judge’s decision that $29,995.59 of work-related medical expenses were not directly payable to Claimant. See Evans v. WCAB (Highway Equipment And Supply Company) No. 2252 C.D. 2013.

Claimant had filed and won a Claim Petition- the Work Comp Judge awarded ongoing work comp benefits for total disability and medical expenses. Claimant’s counsel submitted a letter to Employer informing it of the amount due and also submitted a subrogation lien of Highmark Blue Shield for payment of medical expenses in the amount of $29,995.59.

Claimant contended that pursuant to Frymiare v. Workers’ Compensation Appeal Board (D. Pileggi & Sons), 524 A.2d 1016 (Pa. Cmwlth. 1987), the WCAB erred by not directing payment directly to Claimant. However, the Commonwealth Court distinguished this instant case from Frymiare because there an employer must still pay for medical expenses to a claimant even if a third-party, such as Highmark (private insurer), has already defrayed the cost but has not asserted its subrogation lien. Here, Claimant had already submitted into evidence a letter from Healthcare Recoveries stating that Highmark had a subrogation lien for the awarded medical expenses. As such, they had preserved their lien and the WCJ did not err in finding that the medical expenses should not be paid directly to Claimant.

This case isn’t terribly interesting to most injured workers. But it underscores the notion that the assertion of a lien can affect where payments go for medical expenses. Timing is everything in this regard.

For more information about Pennsylvania Work Comp Law, call or email Attorney Michael W. Cardamone 7 days a week at (215) 206-9068 or myphillyworkerscomp@gmail.com

 

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Pennsylvania Workers’ Comp And Repetitive Work Injuries Information

Do repetitive work injuries count as work-related injuries in Pennsylvania?

Yes! Whether your injury was sustained suddenly, or from repetitive work activities, it is a work injury so long as 1) you were an employee at the time, 2) it occurred in the course and scope of your employment (ie, while you were working), and 3) your doctor agrees that it was caused by your work activities. (also make sure to meet the 120 day notice requirement under the Act)

Now, this doesn’t mean that your Employers’ doctors or an IME doctor won’t have another opinion. For example, in carpal tunnel cases, many times the medical experts will have different opinions as to what caused the condition. These claims are frequently denied. Do not let this discourage you!  You can, and should, pursue any repetitive work injury. How is this done? Hire an experienced Pennsylvania repetitive work injury lawyer. We are here to help you at The Cardamone Law Firm, LLC- a specialty boutique firm solely dedicated to injured workers. TCLF gives you the individual attention your case needs to succeed.

If my injury occurred from repetitive work activities, what is the date of my injury? Good question. If you are not working currently, it’s usually the last day of work-since each day of work is considered a new injury under the Pennsylvania Workers’ Compensation Law. If you are continuing to work, it’s often the day you gave notice of the injury to your Employer. Sometimes, the date of injury is the day of the diagnosis by a doctor. It’s obviously not as cut and dry as a traumatic work-related injury, but it’s just as valid as a matter of law.

The most common repetitive trauma work injury that I see in Pennsylvania is carpal tunnel syndrome. Some other repetitive work injuries in Pennsylvania Workers’ Compensation cases are low back injuries from repetitive lifting, or shoulder injuries from repetitive lifting or assembly line work. These are just a few examples.

It is very important for an injured worker in Pennsylvania to describe the specific mechanism of injury- that is, a description of what work activities caused the symptoms. This is a key foundation for the medical expert opinions. Sometimes the doctors will race through the history portion of the examination, so be sure to slow them down to explain and document what you were doing at work which caused your problem. Make sure to tell the provider if you had previous symptoms in the same body part- even if it was many years ago. Sweeping a prior injury or treatment under the carpet can significantly damage a work comp case. Always always always tell the truth. And remember, an aggravation of a pre-existing condition is still a work-related injury under the Pennsylvania Workers’ Compensation Act.

Repetitive work injury cases in Pennsylvania Workers’ Compensation cases are not treated any differently regarding the litigation process. You still need to produce a medical expert who opines, within a reasonable degree of medical certainty, that the work activities caused the diagnoses- or were a substantial contributing factor.  In addition, the injured worker will have to testify about the circumstances surrounding the injury.

If you need a Repetitive Work Injury Lawyer in Philadelphia or Pennsylvania, call one of Pennsylvania’s Most Experienced Work Comp Lawyers Michael W. Cardamone, Founder of The Cardamone Law Firm, LLC 7 days a week at 215-206-9068 to reach him directly or email MyPhillyWorkersComp@Gmail.com for a free analysis of your case.  TCLF is here for you.

 

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How Does A Notice Of Temporary Compensation Payable Work In Pennsylvania Workers’ Compensation?

Under Section 406 of the Pennsylvania Workers’ Compensation Act, if an employer is uncertain whether a claim is compensable or uncertain of the extent of liability, they can initiate compensation payments without prejudice and without admitting liability pursuant to a Notice of Temporary Compensation Payable (“NTCP”) on a form as prescribed by the Department of Labor and Industry.

This is a common occurrence as the Pennsylvania Workers’ Compensation Act only gives the employer/insurer 21 day to accept, deny, or temporarily accept a claim- and it can take some time to investigate. The NTCP entitles claimant (the injured worker) to a maximum of ninety days of compensation.

It is important to note that the NTCP does not mean the employer is accepting responsibility for the work-related injury. It can revoke the NTCP by issuing a Notice Stopping and a Notice of Denial during the 90 day period as long as they are filed no later than five days after the last payment. If the employer does not file the Notice within the ninety day period during which temporary compensation is paid or payable, the employer shall be deemed to have admitted liability and the notice of temporary compensation payable shall be converted to a notice of compensation payable. A Notice of Compensation Payable is a document, similar to a NTCP, but which accepts liability for a work injury, whether for medical benefits alone, or medical and wage loss benefits. With the conversion, an NCP isn’t issued- it’s just that the original NTCP converts by operation of law. Therefore, it is important to keep track of the timeline- and it is recommended that an injured worker seek legal guidance as the rules are quite technical in this regard.

If a Notice Stopping is filed, it is very important to get a consult immediately with an experienced PA Work Comp Attorney so that the proper petition can be filed to pursue the benefits in response. Even if a Notice Stopping isn’t filed, you will want your case analyzed to make sure the proper diagnoses are recognized by the insurer/employer. It is very common for the employer/insurer to accept a “strain” or a “contusion” when the injuries are frequently much more serious.

If you have received a Notice of Temporary Compensation Payable, or a Notice Stopping, a Notice of Denial, or a Notice of Compensation Payable, fee free to contact Certified Work Comp Attorney, Michael W. Cardamone 7 days a week at (215) 206-9068 for a free consult or email myphillyworkerscomp@gmail.com  These documents can be confusing and Attorney Cardamone will be happy to explain them and apply them to your situation.

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The Cardamone Law Firm, LLC Opens Chester County Office For Injured Workers

The Cardamone Law Firm, LLC- a specialized Pennsylvania Work Comp boutique firm founded by Attorney Michael W. Cardamone and dedicated 100% to the strong representation of injured workers in Pennsylvania, has opened its third office- in Exton, PA to help serve its growing client base. With a main office in Blue Bell, PA, and satellite offices in Center City Philadelphia and now Exton, The Cardamone Law Firm, LLC is conveniently located to represent injured workers in Easter and Central, Pennsylvania. The Exton office address is:

Eagleview Corporate Center

600 Eagleview Blvd

Suite 300

Exton, PA 19341

 

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Wetzel v. Workers’ Compensation Appeal Board (Parkway Service Station)- Does An Injured Worker Abandon His Employment When Injured On Employer’s Premises While Trying To Stop A Criminal From Leaving The Premises After An Attempted Robbery?

No. The Commonwealth Court, in a well reasoned Opinion dated May 27, 2014, (No. 1693 C.D. 2013)  has ruled that the Decedent in this case did not abandon his employment when trying to stop an individual from leaving the premises after an attempted robbery when he was run over by the criminal. The Court reversed the Workers’ Compensation Appeal Board (WCAB) below who ruled that the Decedent abandoned his employment and was not furthering the business affairs of Parkway Service Station (Employer) when he was injured while attempting to stop a thief  from leaving the premises after the attempted robbery of the Employer’s store.

Decedent was a management employee at the store. He filed a Claim Petition alleging that as a result of being struck by the vehicle, he sustained work-related severe traumatic brain injury, which rendered him comatose and permanently disabled and incapacitated. (he is now deceased) Employer denied the allegations claiming it wasn’t a work-related injury and that Decedent’s injuries were caused by violating a positive work order (by possessing a gun on Employer’s premises). After significant amounts of testimony on the issue, the Workers’ Compensation Judge (WCJ) found there was no violation of a positive work order. The WCJ also found that decedent was furthering the business affairs of the Employer.

On appeal, the WCAB found that the WCJ erroneously concluded that Decedent was furthering Employer’s business affairs when he was injured, reasoning that the duties of a convenience store manager do not include the pursuit and apprehension of criminal suspects.

The Commonwealth Court, in its Opinion, first reminded us that the Pennsylvania Workers’ Compensation Act is remedial in nature and is intended to benefit the worker- and thus must be liberally construed  to effectuate its humanitarian objectives. With this in mind, it is still the Claimant who bears the burden of proving all elements necessary to support an award.

In this case, the Claimant had to prove that the injury occurred in the course and scope of employment. The Court noted that the operative phrase of “actually engaged in the furtherance of the business or affairs of the employer” which is usually expressed as ‘in course of employment’ must similarly be given a liberal construction. The WCJ accepted testimony of employee witnesses that there were many robbery attempts and attacks over the years at the store. Indeed, the Decedent had actually used a firearm to stop an attempted robbery of the store in 2007. While Decedent may have made an error in judgement in approaching the criminal, the WCJ had accepted that his job duties as Employer’s night manager, included securing the safety of his fellow employees and customers.

Importantly, the Commonwealth Court pointed out, the facts demonstrated that Decedent did not attempt to stop the thief from fleeing to further his own interest; instead, they showed he was furthering the interests of the Employer as the thief attempted to take money from the cash register as decedent instantly reacted to a screaming employee by running out of the store to stop the thief from fleeing and was run over when the thief refused to stop.

This is a great case for injured workers as the Commonwealth Court properly used the liberal construction mandate of the Act to analyze the facts of this case resulting in the correct outcome. It was Decedent’s job to protect the store and employees, and there was a history of violence and criminal activity at the store previously. He did not abandon his employment when trying to apprehend the criminal as apprehension of criminals was not something “foreign” to his job duties.

For more information about Pennsylvania Workers’ Compensation Law, contact Attorney Michael W. Cardamone 7 days a week at (215) 206-9068 or email myphillyworkerscomp@gmail.com

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How Does Surveillance Work In Pennsylvania Workers’ Compensation?

Is surveillance of injured workers allowed under the law? Yes. As long as the surveillance company is not on your private property. Why is surveillance done? Because the employers and insurers want to see if an injured worker is doing any activities that are inconsistent with the purported injuries.

Will you be able to review the surveillance video and report? Absolutely. If the insurer or employer wishes to use the surveillance as evidence in your Pennsylvania Workers’ Compensation case, you will have the right to review it to 1) see if it’s in fact you depicted in the video and 2) explain what you were doing.

I get surveillance videos approximately ten times per year. However, it is rarely effective in damaging my cases. As I always note, most people are honest and are doing activities consistent with what’s reported to the doctors. I always tell my clients that just because you are on video carrying coffee and bread while walking out of a convenience store doesn’t mean you’re able to do your pre-injury job for eight hours- a job that may require much more significant physical exertion such as heavy lifting, bending, twisting, etc.

I have many clients who actually catch the surveillance company spying on them- some clients have even called the police- to be sure that it wasn’t something or someone with bad intentions. However, in most cases, the surveillance is done effectively in the sense that the injured worker isn’t aware it’s taking place.

If you have been given surveillance video or reports by your Pennsylvania Work Comp Attorney, make sure to review it. I have had several cases where the person depicted was not my client, but in fact a sibling or a parent who just happens to look like my client. Don’t assume it’s you until you actually confirm it.

Many clients will ask me, “Should I stay inside as my case is progressing?” The answer, in my opinion is no. Do what you can do. In 99.9% of cases, the injured worker is not claiming that they literally cannot move. If your job requires lifting heavy boxes all day, then sitting on a lawnmower and mowing your grass isn’t inconsistent with being unable to do your job. Everything has to be put into context. There is no rule stating that you cannot go out to a movie or dinner merely because you’re on, or seeking workers’ compensation benefits.

For more information about surveillance in Pennsylvania Workers’ Compensation cases, call Certified Work Comp Attorney Michael W. Cardamone 7 days a week at (215) 206-9068 or email myphillyworkerscomp@gmail.com

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