The
Mere Presence of Pain
is not Necessarily
Disabling
If
Employee is Able to Function at Home, He is Able to Function at Work
The claimant here argued that
his pain from work-related problems including reflex sympathetic dystrophy
(“RSD”) prevented him from remaining at work in a light duty position. The Court disagreed, and upheld the Judge’s
suspension of the claimant’s wage loss benefits.
The court focused on 2 issues:
(1) Pain at home or work: The employee would have felt pain from his
RSD whether he performed the light duty position or stayed home. The employee did
not show that the work would increase his pain, even though there was medical
testimony that his pain would increase with fatigue.
(2) Pain was not disabling: The employee failed to prove that his RSD
pain was so great that he was unable to function.
Brobst v. WCAB (Schuylkill
Products, Inc.), 2003 WL 21206023 (Pa. Cmwlth. 2003)
Gender
Stereotyping
The Third Circuit
clarified in 2001 that although Title VII does not address harassment on the
basis of sexual orientation, it does assign liability to an employer for
harassment based on an employee’s perceived “noncompliance with gender
stereotypes.[1]” Employers have been largely successful to
date in dismissing these “gender stereotype” harassment claims since 2001
dismissed because the plaintiff’s alleged harassment was based on sexual
orientation, and the plaintiff was unable to demonstrate any discrimination
based on gender stereotyping.
The plaintiff in Kay
v. Independence Blue Cross, 2003 WL 21197289 (E.D. Pa. 2003) is one of the
first to prove a gender stereotyping harassment claim in Pennsylvania. In this case, the plaintiff presented
evidence of receiving from a co-worker a photocopy of an advertisement for a
gay telephone chat line, on which was written “A real man in the corporate
world would not come to work with an earing in his ear. But I guess you will never be a ‘real man’.”
The plaintiff also presented evidence of a comment made by a female co-worker
after he refused to replace a water cooler bottle, and another male co-worker
accomplished the task. At that time, the
female co-worker stated that she was “glad there was a real man on the floor.”
The Court found
that these incidents amounted to actionable harassment under Title VII because
they were related to perceptions about the plaintiff’s masculinity, and were not
based on the plaintiff’s sexual orientation.
Nevertheless, the
plaintiff here was unable to establish that the harassment was pervasive and
regular or that the employer failed to take appropriate remedial action to
address the harassment. Accordingly, as
these two necessary elements of a hostile work environment could not be proven,
the claim was dismissed under a Motion for Summary Judgment.
Kay v.
Independence Blue Cross,
2003 WL 21197289 (E.D. Pa. 2003)
Court Upholds Termination of WC Benefits in Spite of
Spine Surgery
Pa. Supreme
Court Declines to Hear Wagner on Appeal
The Commonwealth
Court had upheld a termination of wage and medical benefits based on a medical
expert’s finding that a wc claimant had fully recovered from his work
injury. In spite of the vertebral
surgical fusion to address the claimant’s work-injury, the Court upheld the
termination as it found that the claimant was “functionally the same as before
the injury.”[2]
The Pennsylvania
Supreme Court has now denied the claimant’s appeal from that Commonwealth Court
Decision. This action by the
Supreme Court strengthens the
Commonwealth Court’s holding – that an employer can secure a termination of wc benefits,
even post-surgery, as long as the claimant’s function has returned to its
pre-injury level.
Wagner v. WCAB
(O’Malley Wood Products, Inc.), 821 A.2d 589 (Pa. 2003)
Using an Employer’s Subrogation Lien to Reduce WC
Medical Costs
Court Clarifies
Calculation of Credit
When a wc employee is successful in a lawsuit against the party who
caused his work-related injury, the employer has a subrogation lien against
that “third party recovery.” Where a
claimant’s recovery is greater than the employer’s subrogation lien, the
employer takes a credit against future wc wage and medical benefits. With regard to medical costs, the employer
is responsible for only a percentage of the adjusted medical bills.
The Court here clarified how to calculate that percentage. The percentage of each adjusted medical bill
that an employer is responsible for is calculated as the “expenses of recovery”
(plaintiff’s attorney’s fee, medical expert and other costs in the third party
lawsuit) divided by the total third party recovery. This percentage will
typically fall in the 40% range (plaintiff’s fee of 33%, plus costs).
Zacour v. WCAB (Mark Ann Industries), 2003 WL 21135454 (Pa. Cmwlth. 2003)
No Medical Benefits Available for WC Widows and
Orphans
In a rather unique argument, a claimant’s attorney requested medical
benefits for a deceased wc employee’s widow and orphans, for their “psychological
treatment and grief counseling.” The
claimant’s attorney cited the ever-popular and expansively-used “humanitarian purposes of the Act” in his
request that the Court simply add these benefits to those explicitly enumerated
in the Act.
The Court declined to “read” these additional benefits into the Act,
since “the plain language of Section 307 lists the benefits to be awarded the
survivors of an employee whose death occurs in the course of employment, but it
does not include medical benefits in that list.” The Court accordingly upheld the lower court’s denial of the request of the widow and orphans for
medical care.
Village Auto Body v. WCAB (Eggert), 2003 WL 21402567 (Pa. Cmwlth. 2003)