Reichert V. Workers’ Compensation Appeal Board- Does An Employer, Under The Pennsylvania Workers’ Compensation Law, Fail To Meet Its Burden Of Proof In A Labor Market Survey Under Section 306(b)(2) When It Fails To Establish The Absence of Open And Available Jobs At The Pre-Injury Employer?

Unfortunately for injured workers the answer is no.  In this Commonwealth Court of Pennsylvania Decision, handed down on November 8, 2013, the Court held that an employer does NOT have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition. Rather, a claimant may present evidence that “during the period in which the employer…had a duty to offer a specific job,” the employer had a specific job vacancy that it intended to fill that claimant was capable of performing. The burden then shifts to the employer to rebut the claimant’s evidence. The Court found that the Employer in this matter did not have any available positions within the retails stores that fell within Claimant’s restrictions. Further, Claimant failed to show that the Employer was actively recruiting for a specific job vacancy or that Employer had posted the existence of a specific job vacancy.

Claimant also asserted that the Employer’s vocational expert was required to contact the Employer about open and available jobs at its retail stores that Claimant was capable of performing PRIOR to conducting the labor market survey. The Commonwealth Court disagree, finding that neither the Act, nor any decisional law or Department regulations support that proposition.

The Commonwealth Court cited Section 306(b)(2) of the Pennsylvania Workers’ Compensation Act and Section 123.301 of the Department’s regulations to find:

“to prevail in seeking a modification of benefits, an employer must either: (1) offer to a claimant a specific job that it has available, which the claimant is capable of performing, or (2) establish ‘earning power’ through expert opinion evidence including job listings with employment agencies, agencies of the [Department], and advertisements in a claimant’s usual area of employment.” (citing South Hills Health Sys v. WCAB).

The bottom line here is that the Pennsylvania Workers’ Compensation Law does not require proof of the absence of specific jobs with the employer as a pre-requisite to expert testimony regarding “earning power”. But, the law does require an employer to offer a position to a claimant if it exists.

This Decision is not fair in my opinion. Why not? In a modification petition setting based on a labor market survey, the claimant is receiving indemnity benefits. To change the status quo, the employer/insurer has the burden of proof. It should, similarly, have the burden of demonstrating the absence of any appropriate job rather than putting that burden on a claimant who lacks the resources and access to the employer and its job availability information. This is just another disturbing example of the increasingly conservative rulings aimed at protecting employers and insurers to the detriment of injured workers and in clear defiance of the humanitarian spirit of the Act.

For more info about Pennsylvania Work Comp Law, call or email Certified Work Comp Specialist, Michael Cardamone at (215) 206-9068 or MyPhillyWorkersComp@Gmail.com

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Pennsylvania Workers’ Compensation And Child Support Information

How does a child support lien affect a Pennsylvania Workers’ Compensation case?

This issue arises in many cases. Workers’ Compensation benefits in Pennsylvania can be attached for payment of a support order. Act 109 of 2006 made a change to the Domestic Relations Act to state that support which is delinquent under a payment schedule established by a court is a lien against the net proceeds of any monetary award.

So what is a “monetary award”? It is defined as any portion of a settlement paid as a lump sum as a Workers’ Compensation or Occupational Disease Act award. It does not include a lump sum payable vis-a-vis a structured settlement annuity.

What does “net proceeds” mean? It is defined as monies in excess of $5,000 payable to the employee after payment of attorneys’ fees, litigation expenses, documented unpaid medical expenses incurred for treatment of the work injury, any indemnity or medical payments, and payments to the Medical Assistance Program.

So, if you are receiving Pennsylvania Work Comp indemnity benefits, your checks may be reduced to account for a child support obligation. It is important for the injured worker’s attorney to obtain a copy of the Court Order.

All Pennsylvania Workers’ Comp Lump Sum Settlements have to account for any child support arrears. An injured worker is required to sign a Child Support Affidavit and a lien search is also required using the injured worker’s social security number. The goal is to make sure that any arrears are paid off before the injured worker pockets settlement money- or at the very least, a payment plan.

For more information about child support and PA Workers Comp, call or email Certified PA Work Comp Attorney Michael W. Cardamone directly at 215-206-9068 or mcardamone@krasno.com

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Philip Payes v. Workers’ Compensation Appeal Board- Pennsylvania Supreme Court Case Regarding Mental-Mental Cases And Abnormal Working Conditions

In Payes v. WCAB, decided October 30,2013, the Pennsylvania Supreme Court found that the Commonwealth Court erred by not accepting the well-supported facts by the Workers’ Compensation Judge establishing the existence of an extraordinarily unusual and distressing single work-related event experienced by Appellant (injured worker) resulting in his disabling mental condition, where such single and comprehensive work-related event constituted an abnormal working condition as a matter of law.

[in cases like these, which we call “mental-mental”, where a mental stimulus causes a mental injury, an injured worker must prove abnormal working conditions under PA Work Comp Law]

The factual predicate of this case is rather simple, but not common.  The Claimant was a trooper with the Pennsylvania State Police and worked as such for about 12 years before the incident which happened on November 29, 2006. On that date, he was driving his patrol car at 545am, while it was dark, when a woman dressed in all black, including a black cap, suddenly ran in front of and was struck by his car. She flipped over the vehicle and landed on the highway. He immediately got out of his car to attend to her, as she was bleeding from the mouth. As he was trying to revive her, he also had to try to divert oncoming traffic from hitting himself and the victim. The incident was caught on film by a camera mounted on his patrol car. Other troopers arrived, but she was pronounced dead at the scene. Later, it was discovered that she suffered from mental illness. The trooper was transported to a hospital for testing as he was exposed to her blood. He returned to work in early January, 2007 but after four days, his feelings of anxiousness and stress led him to believe he could not continue to perform his job as a state trooper.

Claimant filed a Claim Petition alleging Post Traumatic Stress Disorder. After hearings and presentation of testimony, including expert psychiatric testimony, the Workers’ Compensation Judge found him credible and his medical expert. The WCJ found Claimant had met his burden of proving a mental injury arising from a work-related mental stimulus and while state troopers may expect to encounter or be involved with violent situations, that this particular work-related stimulus was not one normally encountered by or expect of state troopers- and therefore, that Claimant met his burden of showing abnormal working conditions- which is required for mental-mental cases.

The Workers’ Compensation Appeal Board reversed the WCJ’s ruling finding that this incident did not constitute abnormal working conditions given the nature of Claimant’s “stressful and perilous profession”.

The Commonwealth Court affirmed the WCAB’s Decision holding as a matter of law that Claimant’s injury did not result from an abnormal working condition, citing in part the notion that in the line of a police officer, Claimant can be expected to be witness to horrible tragedy. The Commonwealth Court broke down each part of the accident and post accident events, claiming each sequence was not extraordinary for that type of work.

The Pennsylvania Supreme Court, in a 22 page Decision, held that the Commonwealth Court erred by not accepting the well-supported facts found by the WCJ which established the existence of an extraordinarily unusual and distressing single work-related event experienced by Claimant resulting in his disabling mental condition. The Court first reviewed the standard on appeal- that is, that the Court must affirm the adjudication below unless it finds that an error of law was committed, that constitutional rights were violated, that a practice or procedure of a Commonwealth agency was not followed or that any necessary finding of fact is not supported by substantial evidence of record. It then discussed the abnormal working condition precedent, emphasizing just how “highly fact sensitive” the exercise is. In classifying what is “abnormal”, the Court recognized that there is no bright line test or a generalized standard. Instead, we must consider the specific work environment of the claimant. The Court then analyzed specific cases involving abnormal working conditions and police officers.

Most importantly, the Pennsylvania Supreme Court seized on one of the WCJ’s Findings- specifically number 13 wherein the WCJ concluded that State Troopers are not in their normal course of their duties when exposed to what occurred in this case- a mentally disturbed person running in front of Claimant’s vehicle for no apparent reason. Likewise, what the Claimant had to deal with in the aftermath was not something that normally occurs for State Troopers. This Finding, said the Pennsylvania Supreme Court, was not found to be unsupported by the evidence, nor was it arbitrary and capricious such that it could be set aside. The Commonwealth Court, reformulated Finding 13 of the WCJ, into unrelated component parts, where each part standing alone, might be safely determined to be a “normal” working condition for a police officer. But because the injury arose from a single incident, the inquiry must rest on whether that single incident alone, and not any purportedly comparable sets of incidents, was abnormal. Finding 13 by the WCJ, which was not disturbed on appeal, found that the incident was not one to which state troopers are normally exposed. The Court found that the record supported this Finding.

This is a great decision for injured workers in Pennsylvania. It shows that you cannot assume that because a person is in a rough and tumble type of job, that the person is never going to experience anything unusual. Even a State Trooper can be confronted with highly unusual or “abnormal” working conditions which results in significant psychological injury. The Decision also reminds us to really examine the Workers’ Compensation Judge’s Findings, because if they are supported by the record, and not disturbed on appeal, they govern.

For more information about Pennsylvania Workers’ Compensation Practice or Procedure, call or email Certified Pennsylvania Work Injury Attorney Michael W. Cardamone at 215-206-9068 or mcardamone@krasno.com for a free and prompt consult 7 days a week

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