We are pleased to report a recent and significant victory in a Heart and Lung case involving one of our clients and his employer, a local police department. We were able to stop the attempt of the police department to cut off the benefits being paid to an injured police officer. He seriously injured his knee while coming to the aid of a customer who was having a heart attack at a local restaurant.
First, some background on the Pennsylvania Heart and Lung Act. Certain jobs are so dangerous that the Pennsylvania Legislature created the Heart and Lung Act to pay full salary during times of disability caused by a work injury instead of the usual 2/3 of wages paid in Workers Compensation cases. Employees covered by the Heart and Lung Act include State Police, all other Police, Firemen, Parole Agents and Liquor Control Board Officers. Corrections Officers and Residential Aides in certain state hospitals are covered by similar laws Called Acts 534 and 632.
Injuries have to be temporary to be covered by Heart and Lung and have to prevent the injured employee from performing the essential functions of his or her job. Unlike Workers Compensation; Heart and Lung cases are heard by the municipalities involved and there is no statewide process for administering, hearing and deciding claims. Likewise, there is no civil service-protected Administrative Law Judge system protected by Civil Service; Heart and Lung cases are heard and decided by a variety of individuals who might be an arbitrator, a lawyer, a commissioner or a hearing officer. There isn’t even a uniform paper to file requesting Heart and Lung benefits.
Much of the litigation in Heart and Lung cases involves the question of permanency. Heart and Lung benefits by law are paid for disability that is temporary in duration; however, there is no standard definition of permanency.
In our case, there were two injuries, one to each knee of the police officer.
Injury #1 Left knee. The police office injured his left knee aiding a restaurant customer. He returned to work and those workers’ compensation benefits were suspended and remain suspended today.
Surgery #1 repair of meniscus and cartilage followed by physical therapy.
Surgery #2 another operation to fix the damaged left meniscus.
Surgery #3 another surgery to try and correct surgeries 1 and 2.
Surgery #4 total knee replacement, left knee. After the knee replacement, the injured police officer recovered and was able to participate in a Triathlon within 10 months. The police officer returned to work full duty for one year.
Injury #2 Right Knee. The police officer injured his right knee giving CPR to a gunshot victim. We had to file a Claim Petition to receive compensation for this injury and that petition had to go all the way to a decision. Because he was also awarded Heat & Lung benefits, there were no attorney fees charged to the injured worker.
Surgery #5 partial knee replacement of right knee. The police officer was released to light duty but the police department could not accommodate him and he continued to receive Heart and Lung benefits. Claimant resumed running and weight lifting although he reported pain in both knees if pushed.
At this point, the injured office had an IME (employer’s medical exam) performed by Dr. Prebola.
Surgery #6 Claimant had a lateral release performed in December 2015. He developed an infection.
Surgery #7 The prosthetic was removed to treat the infection.
Surgery #8 Surgery to irrigate the joint, remove the necrotic bone and implant antibiotic capsules.
Surgery # 9 Total knee replacement.
The Municipality filed to stop Heart and Lung benefits soon after surgery #6 claiming that the police officer’s condition was permanent. Dr Prebola testified that the claimant would never be able to return to his job as a police officer because of his extensive injuries.
The police officer was represented pro bono, free of charge, in the Heart and Lung case by Calhoon and Kaminsky P.C., who argued that:
- Dr. Prebola had not seen all of the medical records from the surgeries #s 6, 7, 8 and 9.
- that the medical evidence presented by the Municipality was not sufficient to sustain their burden of proving that the condition was permanent.
- medical studies show that individuals with total knee replacements do participate in high impact sports.
- that the police office was still recovering from surgery at the time that the Municipality filed the court case to stop his Heart and Lung benefits and the question of recovery and permanency was premature. In other words, at this juncture is was premature to speculate as to the long term prognosis as he just underwent surgeries to get better.
The Special Hearing Master agreed with our arguments and dismissed the case brought by the Municipality, noting that the claimant had recovered from his left knee injury and that no evidence had been presented to show he would not recover from the right knee injury.
Result: The Municipality lost and the police officer continues to receive Heart and Lung benefits. If you have been injured in a work-related accident, you may be entitled to Pennsylvania workers’ comp benefits. Contact an experienced Harrisburg workers’ compensation lawyer at Calhoon and Kaminsky P.C., at 717-695-4722 for more information. Be sure to order a FREE copy of our book, 7 Deadly Sins That Can Destroy Your Pennsylvania Workers’ Comp Case.
