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The Month in Pennsylvania Workers' Compensation: December 2012 At-A-Glance

Mitchell I. Golding, Esq. on 1/24/2013

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  • The WCJ did not commit an error of law upon applying the "physical-mental" analysis to the Claimant's claim where the triggering event was physical in nature and the Claimant subsequently developed Post Traumatic Stress Disorder, although he did not suffer a physical disability caused by the triggering event.

  • To substantiate a physical/mental injury claim, the psychological injury must be the result of a triggering physical event and the injury must arise in the course of employment.

    A claimant need not prove that he or she suffered a physical disability that caused a mental disability for which he or she may receive benefits. Nor must a claimant show that the physical injury continues during the life of the psychic disability. Rather, a claimant need only show that a physical stimulus resulted in a mental disability.

    Moreover, a claimant alleging a psychological injury stemming from a physical injury is not required to show abnormal working conditions.

    In this matter, Claimant suffered a significant physical stimulus in the form of the head-on collision causing the death of the other driver before Claimant's eyes, and disabling his loaded tractor-trailer causing it to descend an embankment. Claimant's intimate involvement in the fatal accident is sufficient to constitute a "physical stimulus" to support a compensation award.

  • Psychological injuries fall into three categories:

    1. Mental/Physical—where psychological stimulus causes a purely physical injury proof of abnormal working conditions is not required.
    2. Physical/Mental—where a physical stimulus causes a psychic injury the claimant alleging a psychological injury stemming from a physical injury is not required to show abnormal working conditions. A claimant is not required to prove he/she suffered a physical disability that caused a mental disability for which he or she may receive benefits.
    3. Mental/Mental—where a psychological stimulus causes a psychic injury the claimant must establish by objective evidence that he suffered a psychological injury and that the injury was more than a subjective reaction to normal working conditions. Even if a claimant adequately identifies actual (not merely perceived or imagined) employment events which have precipitated psychiatric injury, the claimant must still prove the events to be abnormal before he can recover.

    These categories require different standards of proof, the last being the most rigorous, requiring proof of abnormal working conditions.

New Enterprise Stone & Lime Co., Inc., and PMA Management v. WCAB (Kalmanowicz), No. 1492 C.D. 2012 (Decision by Judge Covey, December 6, 2012) 12/12

  • Although the filing of the petition constituted notice to Employer that Claimant was seeking loss of use benefits, it did not establish Claimant's right to compensation. Therefore, only when Claimant had evidence that he had a permanent, loss of use of left arm and legs was compensation due and resulting interest due.

  • The statutory interest on the unpaid specific loss benefits began to accrue on the dates Claimant's medical expert testified that all of Claimant's work-related injuries had resolved into specific losses of her left arm and legs. Until that time, payment of the specific loss benefits was not due and payable.

  • A claimant is permitted to receive specific loss benefits for the work injury for which he or she is receiving total disability benefits only when total disability has revolved into a specific loss. Consequently, specific loss benefit payment may not begin until after payment of total disability payments ends. Section 306(d) of the Act.

  • Court notes in dicta that interest on a claimant's disfigurement benefits began to accrue on the date that the WCJ viewed the claimant's scars for the second time at the hearing.

Jacqueline Fields v. WCAB (City of Philadelphia), No. 1432 C.D. 2011(By Judge Leadbetter, April 30, 2012) 12/12

  • The WCJ did not commit an error of law by applying Section 309(d) to the claimant's wage calculation rather than to Section 309(d) where the Claimant, who suffered a compensable injury on September 12, 2006, admitted that he had an ongoing employment relationship with Employer for five years prior to the work incident and although he had worked for a different employer between December 2005 and March 2006, the WCJ found employer's testimony credible as he was unaware that Claimant had ever severed ties with Employer and the Claimant did not provide any evidence that he had been terminated and reapplied for employment with employer as a new hire.

  • Section 309(d) and subsections (d.1) and (d.2) address work/employment histories – i.e., employees who have been employed for at least four consecutive periods of thirteen calendar weeks.

    Subsections (d.1) and (d.2) address progressively shorter employment relationships: (d.1) governs employees employed for at least one, but less than three consecutive periods of thirteen calendar weeks; while (d.2) addresses cases of recent hires, i.e., employees who worked less than a single complete period of thirteen calendar weeks at the time they suffered a work injury.

    The structure of the statute strongly indicates that subsection (d.2) was not intended to apply to employees, such as Claimant here, with long-term employment relationship with their employer, who happens to have been subject to layoffs. Both (d) and (d.1) include look-back periods encompassing the preceding fifty-two weeks, in search of "completed" thirteen-week periods; in contrast, subsection (d.2) has no such long-term focus, and indeed, it provides for a prospective calculation of potential earnings.

    By its terms, (d.2) contemplates persons for whom there is little work history with the employer upon which to calculate the AWW. Viewing the interrelationship of these subsections, and it is unlikely that the General Assembly intended (d.2) to supplant (d) or (d.1) anytime a long-term employment relationship happens to involve periods with a "work" cessation. Instead, subsection (d.2) was intended for instances that it plainly covers; i.e., those instances of work injuries to recently-hired employees for whom there was, by definition, no accurate measure of AWW other than taking the existing hourly wage and projecting forward on the basis of the hours of work expected under the employment agreement.

Robert Janson v. WCAB (EM Force, Inc.), No. 2257 C.D. 2011 (Decision by Judge Pellegrini) 12/12

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