Pennsylvania Weekly Case Law Summary

10.04.13

Harrison v. WCAB (Auto Truck Transport, Corp.), No. 769 C.D. 2013, Filed 10/02/2013. 
 
On May 9, 2008 the claimant suffered a compensable right ankle sprain which was accepted by NCP. An IRE physician ultimately found that claimant had a 0% impairment rating for the right ankle sprain but a 13% impairment for a congenital foot problem. The employer filed a Modification Petition to change the status of claimant’s benefits from total to partial. The employer also filed a Termination Petition based on a full recovery IME. The claimant filed a Review Petition to expand the injury to include the congenital foot problem diagnosed by the IRE physician. Finding the testimony of the IRE and IME doctors more credible than the testimony of the treating doctor, the WCJ granted the employer’s Modification and Termination Petitions and denied claimant’s Review Petition. The Appeal Board affirmed. On appeal to Commonwealth Court claimant argued that because the WCJ accepted the IRE doctor’s 13% impairment rating, which included the congenital foot problem, the NCP was implicitly amended to include that condition as part of the work injury. The Commonwealth Court rejected this argument and affirmed, holding that the IRE physician’s job is to assess the impairment of the compensable injury and the fact that he evaluated both the accepted injury (ankle) and the pre-existing (foot) did not automatically change the description of the work injury. 
 
Comments: 
 
This case is helpful to employers in those situations where an IRE physician examines a non work related problem. In order to avoid a challenge like was made in this case, claims representatives and attorneys should carefully word a letter to the IRE doctor explaining the purpose of the appointment and the injury to be evaluated. The Court cautioned that the IRE physician could come to the conclusion that a certain problem is work related and this opinion could result in an issue as to work relatedness. This was not an issue in Harrison because the IRE doctor found that the 13% rating resulted only from the non work related condition.
 
Liberty Mutual Insurance Company, as subrogee of George Lawrence v. Domtar Paper Co. et al, No. 1052 WDA 2012, Filed 09/27/2013
 
Claimant sustained a work related injury while employed by Schneider National Inc. in the parking lot of Domtar Paper Company. Liberty Mutual, the workers’ compensation insurer for Schneider, paid almost $34,000.00 in workers’ compensation benefits. Liberty Mutual then filed suit against the owners of the property where Domtar Paper was located. Claimant never filed his own lawsuit. The property owners argued that the case should be dismissed because Pennsylvania does not recognize an independent cause of action by a workers’ compensation insurance carrier where the injured worker has not filed the lawsuit. The trial judge agreed and dismissed the case. On appeal to the Superior Court, Liberty Mutual argued that it had an absolute right to subrogation under Section 319 of the Workers’ Compensation Act and that it had the independent right to sue as the subrogee of the claimant. However, the Superior Court held that Liberty Mutual did not have the ability to file its own lawsuit. 
 
Comments:
 
This is a very unfortunate case since up until this point, there was some controversy over whether an employer/insurer could bring an independent subrogation action. The law now is pretty clear that the insurer cannot initiate the lawsuit. We believe the insurer still can file a writ to toll the two year statute of limitations but if the claimant does not participate, then the lawsuit will ultimately fail.
 
For more information please contact Carl Smith at csmith@wglaw.com or 412.894.0107.

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