Monday, May 22, 2017

Seminal Pennsylvania Case on the Definition of "Injury" Approaches its 30th Anniversary, is Commemorated by Pitt Law Student

            My comp judge colleagues from the Virginia system always leave judges from other jurisdictions (like me) gasping when they tell us of the large percentage of workers who appear at hearings self-represented.  As it turns out, however, many of these pro se claimants have sustained repetitive motion injuries, which are not compensable under the Virginia Act.  It's the Virginia Deputy Commissioner's job to deliver the unhappy news that the worker has no rights.  (Mike Duff reviews this issue nicely in Chapter Four of his textbook; it is important to note, however, that carpal tunnel, given an amendment to the Virginia statute, is now compensable in certain instances.) 

            Under the Pennsylvania Act, we don't have this problem.  This is so given our liberal definition of "injury," the statute's designation of the compensable event.   

            In our state, we're reminded of this fact by the approaching 30th Anniversary of the seminal Pennsylvania case on this precise issue, Pawlosky v. W.C.A.B. (Latrobe Brewing Co.), 525 A.2d 1204 (Pa. 1987).

            My research assistant (and student), Justin Beck, a 2017 graduate of Pitt Law School, has written a top-notch documentary retrospective on this case.  I've posted this brilliant young man's essay on the website

            In summary, the Pawlosky case clarified that all injuries, including repetitive motion injuries, aggravations of pre-existing conditions, and disease maladies, are covered by our state’s law. 

            The full story: following liberalizing amendments in 1972, an employee in Pennsylvania was no longer obliged to prove an “accident,” but merely that an “injury” had occurred. In the context of occupational diseases, however, the injured worker was still obliged to show that the claimed pathology had a greater incidence in his or her occupation than in the general population.  In 1987, the Pennsylvania Supreme Court, in Pawlosky, addressed this issue.  The court expanded the compensable event, declaring that, as long as competent proofs showed that the ailment arose in the course of employment, and is medically related to the same, the worker possesses a valid claim.  Under the Pennsylvania system, the issue of legal causation has been settled.  What we are always litigating is medical causation.

             Mr. Beck, in his essay, recounts the story behind this pivotal litigation, which centers on the occupationally-aggravated asthma of a brewery worker.

            The importance of the Pawlosky decision has only been strengthened as the years have passed. Workers’ compensation practitioners and judges know, instinctively, that defenses resting on the theories that the injury was “not due to an accident”; was “due to a pre-existing condition”; or was not “peculiar to the worker’s occupation,” are not cognizable. Civil lawyers, meanwhile, are (or should be) aware that work injury claims asserted by workers against their employers in tort will almost invariably be dismissed on the basis of the exclusive remedy, with the trial court citing Pawlosky as authority.

            Notably, just as Mr. Beck completed his essay, our middle-level appeals court, on May 4, 2017, held that a worker, employed as a paper plant electrician for many decades, had a cognizable claim of injury for his fatal metastatic bladder cancer. Before the court did anything else, it invoked Pawlosky, confirming that all work-related harm, including an unlisted disease, can indeed constitute an injury. Kimberly-Clark Corp. v. W.C.A.B. (Bromley), 2017 Pa. Commw. LEXIS 175 (Pa. Commw. 2017).

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