John Kennedy Law

The Commonwealth Court on May 7, 2013 said it did not have jurisdiction to consider an Order forcing a claimant to attend an IRE. The Court said such an order is interlocutory, which in human speak means that it can’t be appealed. That is the boring part of the case. What’s actually interesting is what the WCJ did when employer requested an IRE. The Judge said that the employer had to first show independent proof that claimant was at MMI. The Judge said Combine v. Workers’ Compensation Appeal Board (National Fuel Gas Distribution Corp.), 954 A.2d 776 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (2009), and section 306(a.2) of the Act require proof of MMI before the employer can request an IRE. The Appeal Board disagreed and said proof of MMI is not required first before asking claimant to go to an IRE. The Commonwealth Court said it could not look at this issue because an Order compelling claimant to attend an IRE is interlocutory.

So, does an employer need to first show that claimant is at MMI before the employer can force claimant to attend an IRE?

Carter v. WCAB (GenCorp Inc.) (opinion not reported)

The Pennsylvania Supreme Court ruled earlier this month that employers can indeed prevent employees from suing third parties. You typically see this situation in setting where someone works for an employment agency and the agency places that employee with a third party customer. Well in Bowman v. Sunoco that is exactly what happened.

Sabrina Bowman worked as a security guard for a company called Allied Barton Security Services. She signed an employment contract with Allied Barton that said she agreed she would not sue her employer’s cuspomers for negligence. And, as luck would have it, she was placed as a security guard with Sunoco and was injured. She then sued Sunoco for her injuries, and they got a good lawyer who discovered the employment contract (which said she could not sue Sunoco). The lawyer asked the court to dismiss the lawsuit and the case was dismissed.

Why does that matter at all? What’s the problem you might ask? Well, there is a section of the Workers’ Compensation Act that says all agreements or “release of damages” that ask any employee to give up her right to sue for injuries are invalid and against “public policy.” According to the Workers’ Compensation Act whenever an employer asks an employee to sign any agreement that limits an employee’s right to sue then that agreement is invalid.

The Supreme Court said that this section of the Workers’ Compensation Act only applies to workers’ compensation benefits, and it does not stop an employer from asking an employee to sign an agreement that the employee will not sue the employer’s customers for injuries.

What I find interesting is that one has to wonder if the employer is shooting itself in the foot. The employer has a right to recover most of the workers’ compensation benefits that it has paid to its employee from the third party. As we all know, that could be a lot of money, sometimes close to a half a million dollars in some cases. When the employer tells its employee after a work injury that he cannot sue the party responsible for the injury, isn’t the employer giving up its subrogation rights?

A national insurance journal has published a report that finds the epidemic of opioid abuse is even worse when the user is receiving workers’ compensation benefits. In my own workers’ compensation practice I do find claimants and injured workers who appear to be taking very serious opioid based drus such as Opana, a drug that is made for and usually prescribed for people suffering from terminal cancer. I have had several cases where the claimant alleges that his prescription drug usage has caused liver problems.

You can find the article from the Insurance Journal here.

Pennsylvania, where I practice law, is one of the worst states according to the article for opioid drug usage in work related claims.