Philadelphia, Pennsylvania Personal Injury Blog

The old saying is that time is money. The Pennsylvania Workers' Compensation Appeal Board recently proved the adage true when it reversed a grant of an injured worker's claim for compensation. The reason for the reversal: the injury was reported to the employer past the 120-day deadline for notification.

The Case in Question

In the case ruled on by the Appeal Board, a woman claimed to have suffered a work-related disc herniation in May 2007. She said she'd cleaned 42 tanning beds for her employer that day and felt numbness in an arm and fingers, as well as shoulder pain.

The workers' comp judge awarded her temporary total disability benefits, clearly believing that the injury was both severe and sustained on the job.

The Appeal Board reversed this decision because the woman didn't report her injury to her employer until October 2007. More than 130 days had passed since the injury by the time she made the report. Because Section 311 of Pennsylvania's Workers' Compensation Act requires an employee to report a work-related injury to the employer within 120 days, this woman lost a significant award for a substantial injury.

The franchise industry faces many unanswered questions in the wake of the recent decision in Awuah v. Coverall North America. Though the industry had hoped to be reassured that it could continue to classify independent franchisees as distinct from independent contractors for the purpose of denying benefits to these workers, the case offered no such assurance. In fact, Awuah seems to indicate that courts may be moving towards upholding greater protections for franchisees in the future.

Awuah v. Coverall North America

Four franchisees filed suit against Coverall in 2007 asserting that Coverall misclassified them as independent contractors rather than employees. They alleged that the misclassification was an intentional unfair or deceptive business practice designed to withhold rightful benefits including minimum wage, overtime payments and workers compensation protections. In March, a federal district judge determined that Coverall had failed to establish that the franchisees were independent contractors and had thus violated Massachusetts state employment law by withholding benefits from the workers.

Recently, an employer was reminded that it must follow proper procedure to suspend its former employee's workers compensation benefits. In the Commonwealth Court of Pennsylvania, a judge affirmed the Workers' Compensation Appeal Board's decision to deny an employer's request to suspend the worker's benefits.

The employee had been receiving benefits since 1989 when he injured his back on the job after being struck by a machine. In 2004, the employee was examined by the employer's doctor. The doctor stated that he believed that employee was still totally and permanently disabled, but that the disability was caused by non-work-related causes, namely, the employee's diabetes. The doctor believed that the employee's back injury caused by the work accident would have healed by that time, so that the employee's current back complaints must have been caused by neuropathy related to the employee's diabetes.

The employee also had non-work-related conditions related to his heart including atrial fibrillation, chronic obstructive pulmonary disease and high blood pressure. The doctor believed that the employee could not obtain "gainful employment" but, if employee's non-work-related conditions were excluded, the employee could be cleared for "sedentary work."

Pennsylvania workers' compensation law is always evolving, through statutory changes and judicial and administrative changes. These changes directly affect the rights and claims of injured workers, sometimes favorably and sometimes to their detriment. The law firm of Martin Banks strives to stay on top of these changes so that we can protect our clients' benefits and legal rights.

We provide this Blog as a source for discussion and current information about all facets of workers' compensation, particularly as it applies to employees in Pennsylvania. You will find topical analysis of recent Bureau of Workers Compensation (BWC) and Workers Compensation Appeal Board (WCAB) rulings, and other news accounts or postings by our attorneys about relevant issues in work injury law.

Martin Banks represents only injured workers. We welcome your feedback about the developments in our Blog posts, and in our periodic updates we will try to reflect your input and the work injury issues most important to you. We also invite any person having problems with a current workers' comp claim or seeking a lawyer to file a claim to contact us, at 888-229-6467 or 215-268-7646 or by e-mail. We provide a free consultation, serving the Philadelphia metro area and southeast Pennsylvania.

The Pennsylvania Department of Labor and Industry has announced that the maximum workers' compensation benefit rate for an injury that occurs in 2010 will be $845.00 per week. The maximum rate for a 2009 injury is $836.00, making this one of the smallest yearly increases in recent history.

Martin Banks will sponsor a Blood Drive for the American Red Cross on Tuesday, January 19, 2010 from 9 am - 3 pm. The Blood Drive will take place on the 19th Floor of our building at 1818 Market Street, Philadelphia. Walk-ins are welcome or you can sign up online to donate!

Commissioner of Social Security, Michael J. Astrue, recently announced that the agency has ended the year with fewer disability hearings pending than in the prior year. Social Security ended fiscal year (FY) 2009 with 722,822 hearings pending compared to 760,813 hearings pending at the start of the year, a reduction of more than 37,000 cases. Over the same period, the average processing time for these cases improved from 514 days in FY 2008 to 491 in FY 2009.

“Our backlog reduction plan is working, and progress is accelerating,” Commissioner Astrue said. “Even in the face of a significant increase in our workloads as a result of the worst recession since the Great Depression, we have reduced the hearings backlog for nine consecutive months. Thanks to the efforts of thousands of hardworking Social Security employees and the additional funding we received from President Obama and the Congress, we have exceeded our backlog reduction goal for this year.”

In addition to reducing the number of cases awaiting a hearing decision, the agency again targeted the oldest and most difficult cases for processing. Beginning in FY 2007 with 65,000 cases that were 1,000 days old or older, the agency has continually attacked its “aged” cases. This year, the agency targeted 166,838 cases that were 850 days or older and virtually eliminated this entire universe of cases. The goal in FY 2010 has been reset again to eliminate cases over 825 days old.

For more information about Social Security’s hearings process and backlog reduction initiatives, go to www.socialsecurity.gov/appeals.

Law Does Not Provide for a Social Security Cost-of-Living Adjustment for 2010

Since the Cost-of-Living Adjustment (COLA) went into effect in 1975, this will be the first year that there is no automatic adjustment. Social Security and Supplemental Security Income benefits for more than 57 million Americans will not automatically increase in 2010.

Some other changes that would normally take effect in January 2010 based on the increase in average wages also will not take effect, even though average wages did increase. Since there is no COLA, the statute prohibits an increase in the maximum amount of earnings subject to the Social Security tax as well as the retirement earnings test exempt amounts. These amounts will remain unchanged in 2010. A fact sheet with more information on 2010 Social Security changes can be found on the Social Security Administrations web site.

According to Michael J. Astrue, Commissioner of Social Security said " This year, in light of the human need, we need to support President Obama's call for us to make another $250 recovery payment for 57 million Americans." The president is calling on the Senate to enact this legislation before it becomes too late for Social Security Administration to update its computer systems to implement this needed change. For a full update from the Social Security Administration go to www.socialsecurity.gov/cola.

Ostrawski v. Workers' Compensation Appeal Board (UPMC Braddock Hospital)

In determining whether a claimant is entitled to include wages earned with a concurrent employer in an average weekly wage the following factors should be examined: the period of employment preceding the work injury, whether periods of layoff were frequent, whether a concurrent employer terminated an employee during a layoff and whether a laid-off employee returned to work following such a period. Moreover, the Court explained that the presence of these factors can sufficiently demonstrate a pre-injury ability to earn wages for the alleged concurrent employment.

McLaurin v. Workers’ Compensation Appeal Board (SEPTA)
The Commonwealth Court upheld a workers’ compensation judge’s finding that a bus driver who was accosted by several hooded young men with guns was not exposed to abnormal working conditions. The employer presented evidence which showed such occurrences were not extraordinary and were envisioned as part of the work. This case seems to uphold the line of cases that state that abnormal working conditions are hard to demonstrate absent illegal activity on the part of the employer.