Pennsylvania Workers' Compensation Lawyer Blog

In Philadelphia, we recently heard of “prolotherapy” because Philadelphia Flyers’ player, Simon Gagne, who injured his head and neck, has said this treatment method has greatly improved his condition. When I saw that, I wondered if prolotherapy may be beneficial to an injured worker, especially one who has hurt the neck or the back. Workers’ compensation cases are littered with patients taking an abundance of medications, or getting multiple steroid, or other, injections into their spines. We could certainly use a less invasive treatment option.

Prolotherapy seems to involve injecting a substance into the injured area, causing an irritation in the area. This certainly seems an odd step to take (purposely irritating an already injured area), but the idea is that the irritation being caused leads to the area repairing itself. The substance being injected can vary by the type of prolotherapy being done.

As with any potential treatment option, workers’ compensation patients should always discuss the step with their doctor. While it is always good to have options for treatment, some treatment methods may be better than others for any given condition or patient, and your doctor is the best one to guide which treatment would be greatest treatment option.

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Posted In: Medical News

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It happens all too often. A worker suffers an injury to his or her neck or back. Though the injured worker never had neck or back pain before the injury, the workers’ compensation insurance company questions the claim. According to the workers’ compensation insurance carrier, the injured worker is suffering from “degenerative disc disease,” not a work injury. In reality, of course, it is the work injury which has made the degenerative disc disease start to cause pain. In Pennsylvania, an “aggravation” of a pre-existing condition, like degenerative disc disease, is considered a “new injury,” allowing an injured worker to collect PA workers’ comp benefits.

That is only half the battle, unfortunately. Once the degenerative disc disease has been made symptomatic by the work injury, the symptoms often do not stop. Frequently, the injured worker will try many “conservative” treatment options, such as medications and physical therapy. Failing that, doctors might try various types of injections, including epidural steroid injections. Sadly, though, time and again, the injured worker remains in pain despite these efforts.

Once the pain has continued for longer than six months, and various conservative treatment options have failed to reduce the symptoms, doctors start to talk about surgery as an option. There is no doubt that spinal surgery, whether for the neck or the back, is a last resort. As with any major surgical procedure, there are serious consequences which can result from such an operation. Moreover, there is no guarantee the injured worker will be any better after surgery.

In the past few years, there have been some new options when it comes to cervical or lumbar spine surgery. “Artificial disc replacement” is a procedure which is now available for both the neck and the back. Our spines are comprised of “discs.” One could think of these discs as jelly donuts. When a disc is damaged, the jelly leaks out of the donut, and the donut flattens (putting more strain on the discs above and below the damaged disc). Artificial disc replacement is designed to avoid the strain on other discs, by inserting an artificial disc where the damaged disc was.

The artificial disc used for the lumbar spine, Charite’, was approved for use by the FDA in October, 2004. Then, in July, 2007, the FDA approved Prestige for the cervical spine. As with any medical decision, tremendous thought should go into what action is best for any particular patient. The fact that new options are developing, to relieve the chronic pain faced by the injured worker, is very encouraging.

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On May 14, 2008, the Workers’ Compensation Section of the Philadelphia Bar Association received an e-mail that all pleadings (including briefs and stipulations resolving disputes between parties) addressed to Workers’ Compensation Judge Aida Louise Harris, in the Northeast Philadelphia Workers’ Compensation Office must be submitted on CD in Microsoft Word format, 12 point font.

Though this new procedure was revoked in a later e-mail on May 19, 2008, this is clearly the direction that office is taking. Indeed, the e-mail revoking the new procedure specifically stated that the procedure was being revoked only because “due to technological issues, the electronic submission initiative cannot be implemented as yet.”

Other courts, in recent years, have been moving to electronic submissions, so this is not a surprising development. We will, of course, keep you up to date if this new procedure does go into effect. Also, be aware that you can review the procedures of any participating Workers' Comp Judge at the website of the Pennsylvania Department of Labor & Industry.

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Posted In: PA Workers Compensation Bureau Update , Workers Compensation Litigation

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A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

In years past, if an employer in PA failed to carry Pennsylvania workers’ compensation insurance (which is a crime in Pennsylvania), and that employer filed for bankruptcy, the injured worker may have been left out in the cold. Fortunately, as part of Act 147, passed by the Pennsylvania Legislature in 2006, the Uninsured Employers’ Guaranty Fund (UEGF) was created. The UEGF, funded by payments from all workers’ comp insurance companies in PA, steps in when there is a claim against an uninsured employer (regardless of whether that employer is bankrupt). This fund provides a measure of security for the injured worker who, unknown to the worker, is employed by a company who fails to carry the required workers’ comp insurance.

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Posted In: Case Law Update , Wage Loss Benefits , Worker Comp Generally , Workers Compensation Litigation

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As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said:

“Searching the Internet and newspaper ads for jobs, without more, does not constitute a job search; it constitutes “surfing” the web and reading the newspaper – it is window shopping. To show that he was engaged in a good-faith effort, a claimant has to show that he applied or sent applications for employment or other indicia that he was actively applying for employment.”

This case proves instructive on how to limit the damaging effects of taking a pension. Remember, too, that aside from this issue (of whether the PA workers’ compensation benefits are suspended due to the change in status), there is also the issue of the workers’ compensation insurance carrier taking a credit against the pension that is being taken. This process is littered with pitfalls which can permanently harm an injured worker’s rights under the Pennsylvania Workers’ Compensation Act. Before making a decision, like whether to take a pension, which could impact your workers’ compensation benefits, it is always a good idea to consult with a lawyer experienced in PA workers’ compensation matters.

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Posted In: Case Law Update , Worker Comp Generally

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On November 9, 2006, the most recent amendment to the Pennsylvania Workers’ Compensation Act, known as Act 147 of 2006, was signed into law. Several of the provisions of Act 147 were designed to quicken the litigation process in PA workers’ comp. One of those provisions created what is known as “Mandatory Mediation.”

Mediation, generally speaking, is a process where an independent person meets with the parties to a dispute and helps the parties reach a resolution to their quarrel. This is a process used in all types of litigation, and even in disputes outside of litigation. Usually, this is a very informal process. The mediator will meet with the parties separate and together, working to try and bring them together on common ground. There is no court reporter present, and things said in mediation are not admissible in the litigation (encouraging the parties to be honest about the strengths and weaknesses of their position).

Mediation has been used in Pennsylvania workers’ compensation matters as long as I can recall. In the past, mediation only happened in PA workers’ comp when the parties so requested. The process was entirely voluntary, and did not occur that often.

Act 147 made mediation mandatory, in every case, unless the Workers’ Compensation Judge felt that mediation would be futile. As a result, we are seeing much more mediation in Pennsylvania workers’ comp than in years past. In turn, the increased mediation seems to have led to workers’ compensation settlements becoming more frequent in PA.

Mandatory mediation is not binding. That means that if a settlement cannot be agreed upon by all parties, then there is no settlement. Usually, there is little to lose by engaging in mediation. If a settlement cannot be reached, nothing is lost other than the time spent by the parties (and even then, some issues in the litigation may get resolved, narrowing the disputes which remain).

As with Act 147 generally, mandatory mediation appears to be a beneficial change to the PA Workers’ Compensation Act for the injured worker. I am proud to have participated in meetings working on this litigation, with the Pennsylvania Trial Lawyers Association (now known as Pennsylvania Association for Justice). As a PA workers’ comp attorney, I salute the hard work of the Pennsylvania Association for Justice in having such fair legislation passed.

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Posted In: PA Workers Compensation Bureau Update , Worker Comp Generally , Workers Compensation Litigation , Workers Compensation Settlements

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Regardless of whether we are seeing an injured worker suffering from a trauma to his or her arm, leg, neck, back, shoulder or any other part of the body, the common thing we are seeing is pain. Often, this is a chronic, unrelenting, pain. These are usually the cases when surgery either has been attempted and has not been successful, or when the doctors do not feel surgery would relieve the pain. Frequently, the only way to even take the edge off this excruciating pain is by taking pain-relieving medications, often narcotics.

One of the more “popular” narcotic medications used in Pennsylvania workers’ compensation matters is OxyCodone (OxyContin). The manufacturer of OxyContin, Purdue Pharma, has recently developed three new dosage strengths. These three new dosage levels now make a total of seven dosage strengths of OxyContin. In theory, this makes prescribing the proper dosage for every injured worker much easier.

With more usage of OxyCodone, and OxyContin, comes more abuse. Unfortunately for those injured workers who actually need this type of pain medication for relief, many people are using such drugs recreationally. Purdue Pharma has attempted to change the type of the OxyContin tablet, to make it less “useful” for recreational use, but so far, the FDA has not approved the changes. According to this article, there were 42.2 million prescriptions written last year for Oxycodone.

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Experienced Pennsylvania workers’ compensation attorneys frequently are involved in cases where an injured worker, no longer able to perform his or her pre-injury job, is referred to other jobs in the community by a vocational counselor, at the request of the workers’ compensation insurance carrier. As lawyers who limit our practice to PA workers’ comp, we love to see cases reduce the power of the workers’ compensation insurance carriers to abuse this process.

Recently, on May 12, 2008, the Commonwealth Court of Pennsylvania decided PA Department of Corrections v. WCAB (Zvara). In this case, the claimant, who does not drive, was referred to five jobs, which were said by the workers’ compensation insurance carrier to be within the physical limitations of claimant. Claimant did not apply for any of the jobs (Often, the failure to apply for any of the referred jobs is nearly certain to cause the case to be lost). In this situation, however, the Court found that the workers’ compensation insurance carrier did not meet its burden of proof. Specifically, the workers’ compensation insurance carrier failed to prove public transportation was compatible with the hours of the offered jobs, or that the prospective employers would modify the hours of the jobs to accommodate the schedules of public transportation. The mere fact that the referred jobs were accessible by public transportation, without more, was not enough. Since the workers’ compensation insurance carrier did not meet its burden of showing jobs “available” to the claimant, the burden never shifted to claimant, to prove he or she applied for each job in good faith. As such, the Petition for Modification was denied.

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Posted In: Case Law Update , Vocational Process , Workers Compensation Litigation

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An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

While the testimony of the injured worker is important in determining whether there is a loss of use “for all practical intents and purposes,” according to a recent case decided by the Commonwealth Court of Pennsylvania, medical evidence must also be presented in support of the injured worker. In Jacobi v. W.C.A.B., decided by the Court on February 12, 2008, the claimant testified about how he is limited in using his right middle finger (which had been caught in a freight door and subject to three surgeries, the last of which involved the placement of a screw), but the claimant did not present any medical evidence which stated that the use of the finger has been lost “for all practical intents and purposes.” The Court reversed the decision of the Workers’ Compensation Judge, who had awarded benefits to the claimant.

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Posted In: Case Law Update , Worker Comp Generally , Workers Compensation Litigation

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It seems like such a basic thing. An injured worker goes to the doctor and gets a prescription. Big deal, right? What is there to think about? Well, maybe it isn’t so simple after all. Maybe there are some questions an injured worker should be asking when getting a prescription. When I came across this article, I started thinking that some of these ideas make a great deal of sense. The article seemed like a valuable resource to both my injured clients and the general public. I guess you could sum up some of these hints by reminding yourself to know what medication you are taking, why you are taking it, how to take it and how your body reacts to the medication. I would suggest anyone getting a prescription filled review this article.

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Reflex Sympathetic Dystrophy (RSD), also known as Complex Regional Pain Syndrome (CRPS) is a horrible condition we see all too often resulting from work injuries. This condition can develop from a traumatic work injury, even what previously seemed to be a relatively minor one. Scientists still do not seem to know why RSD or CRPS develops.

The hallmark symptom of RSD or CRPS is unrelenting, often burning, pain. This character of pain, called “neuropathic” pain, is caused by irritation of the nerves in the affected area. Frequently, there are also changes in the skin or fingernails of the area as well (known as “trophic” changes). Sadly, there is no cure for RSD or CRPS, and doctors simply try to manage the symptoms of the patient as best they can.

Research is continuing in this area, and there are some promising things on the horizon. A recent study, led by local RSD/CRPS specialist Dr. Robert Schwartzman, found that the drug ketamine, given in an anesthetic dosage, may relieve pain in RSD/CRPS patients who have failed with other treatments. Administration of ketamine while the patient is placed in a five-day coma has been successfully performed in other countries, but has not been approved as yet in the United States. Obviously, in the workers’ comp setting, treatment not approved by the FDA probably does not need to be paid for by the PA workers’ compensation insurance carrier.

An incurable, debilitating, condition like RSD/CRPS raises many issues in Pennsylvania Workers’ Compensation. Unfortunately, the Pennsylvania Workers’ Compensation Act was designed for injuries which will eventually heal. The system is not properly prepared to deal with a lifelong debilitating condition like RSD/CRPS, which makes the selection of lawyers experienced in PA workers’ compensation particularly important.

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Even when an injured worker receives a decision from the Workers’ Compensation Judge (WCJ) in Pennsylvania, the case is not over. Either side may appeal the decision to the next level, the Workers’ Compensation Appeal Board (WCAB). Such an appeal must be filed within 20 days of the decision of the WCJ.

An appeal must allege that the Workers’ Compensation Judge committed an “error of law” or that the decision issued by the Judge is not a “reasoned decision.” Simply disagreeing with the decision is not a proper basis of appeal. An appeal cannot challenge who the Judge believed (called “determination of credibility”), since this is solely at the discretion of the Judge.

The WCAB schedules oral argument at various locations throughout the year. At the time oral argument is made, the WCAB also expects a brief to be filed by the appealing party (though a party can request additional time to submit a brief).

Once the decision of the WCAB is made, the losing party can then appeal to the Commonwealth Court of Pennsylvania. This appeal must be filed within 30 days of the WCAB decision. Oral argument is rarely done at this level and the matter is usually decided just on the written arguments filed by the parties.

The decision of the Commonwealth Court of Pennsylvania can be appealed to the Supreme Court of PA, though the Supreme Court only hears cases it chooses. The appealing party files a petition for “Allocatur” with the Supreme Court of PA, which the Court then grants or denies. If the Court grants allocatur, it accepts the appeal and will decide the issue. If the Court denies allocatur, the decision of the Commonwealth Court of Pennsylvania becomes final.

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Posted In: Worker Comp Generally , Workers Comp Appeals , Workers Compensation Litigation

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One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

As the three Judges who dissented pointed out, this logic is blind to the fact that it is much easier for the Employer to show an absence of a suitable job than it is for an injured worker to show a job existed. One must wonder how an injured worker would know what is happening within the Human Resources department of their Employer (while the injured worker is home recovering from an injury yet).

This seems yet another case where the injured worker in PA gets the short end of the straw. Unfortunately, such a result seems to be happening all too frequently.

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Posted In: Case Law Update , Vocational Process , Workers Compensation Litigation

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Recently, Hazleton, Pennsylvania, was in the news for its efforts to crack down on undocumented, illegal aliens. We also are hearing the Presidential candidates speak about their views on how to handle these people. It might make one wonder how an undocumented, illegal worker is treated under the Pennsylvania Workers’ Compensation Act.
The short answer is that an undocumented, illegal worker is entitled to workers’ compensation benefits in PA. The Supreme Court of Pennsylvania decided The Reinforced Earth Company v. W.C.A.B. (Astudillo) in 2002, answering this question with certainty.

Since that time, however, the Courts in PA have not been so kind to undocumented workers. While access to medical treatment for the work injury has continued undisturbed, the illegal worker’s right to wage loss (also known as “indemnity”) benefits has been reduced. As long as the undocumented worker is totally disabled, he or she is entitled to both medical and indemnity benefits. On the other hand, once the illegal alien worker is capable of ANY type of employment, the workers’ compensation insurance carrier can file a petition before a Workers’ Compensation Judge to have the indemnity benefits stopped (again, the medical benefits for the work injury would still continue).

In a typical workers’ comp case in Pennsylvania, if the workers’ compensation insurance carrier wants to reduce or stop (“modify” or “suspend”) indemnity benefits, the workers’ compensation insurance carrier must prove there is work available within the physical restrictions of the injured worker. When the injured worker is an undocumented alien, however, the workers’ compensation insurance carrier does not have to show that any work is available. This was made clear by the Commonwealth Court of Pennsylvania in Morris Painting, Inc. v. WCAB (Piotrowski), decided in 2003.

Indeed, even an illegal alien who has returned to work, at a loss in earnings, is not entitled to any indemnity benefits. The Commonwealth Court of PA decided Jose Mora v. WCAB (DDP Contracting Co., Inc) in 2004. In that decision, the Court held that even actual earnings of an illegal alien cannot be the basis for partial disability benefits because the injured worker in that case is not legally able to work in the United States.

As with the likely result on the mounting illegal alien issue at the National level, a compromise has developed with regard to PA workers’ comp benefits available to an injured undocumented illegal worker.

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Posted In: Worker Comp Generally

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Pennsylvania workers’ compensation law is like no other State. I mean no disrespect by that statement; truly, PA workers comp is unique, like in every other State. Unlike Federal laws which may be of concern to an injured worker, such as Social Security Disability (SSD) or the Americans with Disabilities Act (ADA), which apply to any injured worker in the United States, each State has its own set of workers’ compensation laws.

The difference between workers’ comp laws from State to State is tremendous. For instance, in Pennsylvania, once an injured worker is receiving workers’ compensation benefits, the workers’ compensation insurance carrier usually must get the permission of a Workers’ Compensation Judge to stop the benefits. In some other States, the workers’ compensation insurance company can simply stop paying benefits on its own. Also, in PA, the Employer, or workers’ compensation insurance company, can only control treatment, at most, for the first 90 days. After that time, if not before, an injured worker in Pennsylvania can select his or her own doctor.

On the down side, in PA, once an injured worker returns to work with no loss in wages, there is usually no more money due the injured worker. There is no compensation for the injured worker who can no longer take part in pleasurable activities (as long as the injured worker can do his or her job, according to PA law, no compensation is payable). In some other States, an injured worker who returns to work can still get money for his “percentage of impairment.”

So, while you are looking at the information out there, including on this Blog and on the Brilliant & Neiman LLC website, please keep in mind that every State has different workers’ comp laws. If your case is not a Pennsylvania workers’ compensation case, the information here may or may not apply to you. We would strongly recommend you talk to an attorney licensed in the State in which you were injured. Follow this link for helpful information regarding workers' compensation laws in other States.