Hendrick I. Penn IV

Obtained a landmark decision from the Commonwealth Court of Pennsylvania holding that an injured worker cannot continue to collect workers’ compensation wage loss benefits by moving to a new location outside of his pre-injury economy when work is available to him within the pre-injury economy and within his work-related restrictions. In the case, the employer had accepted the worker’s claim. He was restricted to modified duty by the work injury. He was collecting total disability workers’ compensation wage loss benefits. The employer had no work available within his work-related restrictions. Therefore, the employer had an earning power assessment completed by a vocational expert to prove that other jobs were available that the worker could do. The vocational expert found that many jobs were available near the store where the claimant’s work injury occurred and that these jobs fit within the claimant’s work-related restrictions. The claimant argued that he had moved to another state in the south, and that this rendered the jobs found by the vocational expert unavailable. The worker argued that the employer had to find him jobs in his new home state. The Commonwealth Court rejected the worker’s argument and reduced his wage loss benefits by the amount he could earn in the jobs located in the pre-injury economy in Pennsylvania. The Court accepted the legal argument. More specifically, the Court concluded that an employer need only prove that work is generally available within the worker’s pre-injury economy, and that the employer need not prove that work is available wherever a worker decides to move after the work injury. 

Obtained a favorable Commonwealth Court decision making the test for when a worker can obtain benefits for a purely psychiatric injury more stringent. When a worker alleges a purely psychiatric injury, without an associated physical injury, he has an added burden of proof under Pennsylvania law. He must prove that he was exposed to an abnormal work condition. In this case, an over-the-road truck driver’s tractor caught on fire. The worker pulled the truck over to the side of the road and exited without injury. The flames were extinguished by another truck driver who threw snow on them. The worker was not physically injured in the fire, but he alleged that he suffered PTSD secondary to the event. The Workers’ Compensation Judge held that a truck fire is a highly unusual singular event constituting an abnormal work condition, and he granted the claim. The Workers’ Compensation Appeal Board affirmed the Judge’s decision on the issue of an abnormal work condition being present. However, the Commonwealth Court reversed the Judge’s Decision and found that an abnormal work condition did not exist. The Commonwealth Court accepted Hendrick’s legal argument in the appeal. The Court held that a singular event cannot be just highly unusual to constitute an abnormal work condition. It must be “extraordinarily unusual and distressing.” The Commonwealth Court also accepted the argument that a worker’s training, knowledge, and anticipation of a particular event must be considered in the analysis. The Court noted that the worker admitted that he had been trained repeatedly throughout his career on how to deal with truck fires. The decision potentially saved the client over $250,000 in past due wage loss benefits plus significant future wage loss exposure. 

Obtained a favorable decision from a workers’ compensation judge holding that a nursing home employee failed to prove that she contracted a COVID-19 infection at work and not simply from her day-to-day activities in public. The Judge denied the claim despite the claimant’s testimony that patients in the nursing home were diagnosed with COVID-19.