Pennsylvania Workers' Compensation Lawyer Blog

In a previous blog entry, I mentioned the April 28, 2008 decision by the Commonwealth Court of Pennsylvania in Diehl v. WCAB, which greatly limited what a workers’ compensation insurance carrier in Pennsylvania can do with an Impairment Rating Evaluation (IRE). This decision was very favorable to the injured worker. Unfortunately, on June 24, 2008, the Commonwealth Court of Pennsylvania issued an order, and granted the workers’ compensation insurance company’s application for reargument, and vacated the prior decision. This means that, for now, the law returns as it had been before the Diehl decision was issued (meaning the workers’ comp insurance company does NOT have to show job availability when trying to have benefits changed to partial based on an IRE).

Though there will be reargument on this case, and a new decision will be issued, many of us Pennsylvania workers’ compensation attorneys doubt that the new decision will be as favorable as the one which has been vacated. We will, of course, post about the new decision when it is made.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Worker Comp Generally , Workers Comp Appeals

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Last month, I wrote a blog entry explaining how every State, including Pennsylvania, had very different laws governing workers’ compensation systems within that State. One point I should clear up is that not every injured worker in Pennsylvania automatically qualifies for the PA workers’ compensation system. Whole occupations, or groups of workers, are subject to workers’ comp systems which vary from the Pennsylvania Workers’ Compensation Act.

For example, employees of the Federal Government must go under the Federal Employees’ Compensation Act (FECA), which is administered by the Office of Workers’ Compensation (OWCP). Railroad workers are usually subject to the Federal Employers’ Liability Act (FELA), which uses the Federal Court system for its procedure. The Longshore and Harbor Workers’ Compensation Act (“Longshore Act”) governs employees engaged in maritime activities (though these cases sometimes have “dual jurisdiction” in PA and can proceed either through the Longshore Act or the regular Pennsylvania workers’ comp system, often depending whether the injury took place on the water or on dry land). So, not every worker who is injured in PA will be proceeding through the Pennsylvania Workers’ Compensation Act.

On the other hand, there are times when a worker who is injured in another State can still proceed under the Pennsylvania workers’ compensation system (Like the example above with the Longshore Act, this is known as “dual jurisdiction,” since there would also likely be jurisdiction in the State in which the injury took place). In this situation, we look at where the injured worker was hired, where the injured worker usually worked (and where the injured worker expected to work), and other factors, to see what options the injured worker has for which workers’ comp system to use.

As with so many areas of the law, the work injury can be a complicated process right from the start. Before a lawyer can even get into the details of the injury, and see if there is a valid workers’ comp case, the lawyer must figure out the best law to use (when there is even a choice).

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Worker Comp Generally

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The rotator cuff is where four muscles and several tendons form a covering around the top of the humerus, the upper arm bone, in the shoulder. While tears in this region of the shoulder can occur with the wear and tear of using the shoulder over years, a rotator cuff tear is also a common injury we see in Pennsylvania workers’ compensation cases. This type of injury can occur in many different ways, including lifting or falling on the shoulder. Even repetitive use of the shoulder at work over years can lead to a compensable work-related rotator cuff tear.

A torn rotator cuff is generally categorized as either small, medium, large or massive. Initial treatment for a tear usually consists of “conservative” (non-surgical) options, such as physical therapy, medications and/or injections. If these conservative methods do not relieve the problem, surgery may be indicated.

The problem comes with the “massive” rotator cuff tears. These tears used to be called irreparable. The injured worker was left with only two choices – either live with the pain and disability, or have a “debridement procedure” performed (this is a surgical procedure where the area is cleaned out, though the tear is not repaired). In the past, the injured worker remained on workers’ compensation benefits, and remained unable to perform ordinary daily activities of living, let alone work.

These days, though, the injured worker with a massive rotator cuff tear has some better choices. Technology has brought potential real solutions to the irreparable rotator cuff tear. One such method is the Latissimus Dorsi Tendon Transfer procedure, in which a tendon is borrowed from the patient’s arm or shoulder and used to replace the ruined one in the rotator cuff. This procedure is said to require less than two hours of surgery, and only entail a single overnight hospital stay. A study was performed on the effectiveness of this procedure recently, in part authored by local orthopedic surgeons Dr. Gerald Williams, Dr. Shawn Hennigan, Dr. Sami Kella and Dr. Joseph Iannotti.

Perhaps even more encouraging is the arthroscopic Graft Jacket Allograft procedure, which remains in its early stages. It appears one of the biggest advantages to this surgery is that the procedure is “arthroscopic,” where the cuts are only small holes, rather than the large incisions required for open surgery. Here, the patient’s torn rotator cuff is repaired with a human cadaver graft, in a procedure said to last about four hours.

While these new developments in treatment for rotator cuff tears offer hope to patients, including those on Pennsylvania workers’ compensation, it is always wise to consult with your doctor, to determine the best course of treatment for your particular case.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Medical News

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There are many factors which have to be considered when an injured worker wants to settle his or her workers’ comp case in PA. Even aside from the primary things people think about, such as how much money will be involved, one has to determine if approval from the Centers for Medicare Services (CMS) will be required.

Under Federal Law, known as the Medicare Secondary Payer Act, all parties to workers’ compensation settlements in Pennsylvania must “consider the interests of Medicare” with regard to the settlement. This is regardless of whether the injured worker is entitled to Medicare or not. CMS does not want the burden of future medical treatment for the injured worker to simply be shifted from the workers’ compensation insurance carrier to Medicare.

CMS has certain guidelines for when their approval is needed. When a workers’ compensation settlement is more than $25,000.00 and the injured worker is entitled to Medicare, CMS must actually approve the terms of the settlement. Additionally, if the workers’ compensation settlement is over $250,000.00 (it is extremely rare for a workers’ comp settlement in PA to be more than $250,000.00) and the injured worker has a “reasonable expectation” that he or she will be entitled to Medicare within 30 months of the date of the workers’ compensation settlement, again, CMS must approve the settlement. In particular, CMS will want to approve the amount of the settlement which is allocated to future medical treatment.

Even if the injured worker does not meet either of the two thresholds above requiring CMS approval for the workers’ compensation settlement, the parties still must consider the interests of Medicare in the settlement. Many times, this still requires some amount of the settlement proceeds being allocated to future medical treatment.

When there is a portion of the workers’ compensation settlement being allocated to future medical treatment, whether in a case that CMS has granted its approval or not, a Workers’ Compensation Medicare Set-Aside (WCMSA) is created. This is supposed to be set up as a trust, though the injured worker is usually the trustee. The WCMSA money is to be placed in a separate, interest bearing, account. These funds are then to be used only for medical treatment for the work injury, which would otherwise be payable by Medicare. The theory is that once this WCMSA is exhausted, and the injured worker has properly accounted for every dollar spent, then Medicare will begin to pay for treatment related to the work injury.

Settling a workers’ compensation case in Pennsylvania is a very complicated process, even beyond the obvious issues of how much a case is worth, and the terms of a settlement. There are many pitfalls involved in the process, and consulting with an attorney experienced in PA workers’ comp matters is always a good idea.

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Posted In: Workers Compensation Settlements

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Many injured workers in Pennsylvania are not aware that they can apply for Social Security Disability (SSD), while still receiving workers’ comp benefits in PA. Though the two programs have different standards for what “disabled” means, and the injured worker may not be able to receive full benefits from both programs, there is no need to choose one or the other.

An injured worker qualifies for workers’ compensation benefits in Pennsylvania when he or she is disabled from work by an injury which took place in the scope and course of his or her employment. One qualifies for Social Security Disability benefits when one is disabled from all gainful employment, regardless of the cause of the disability. Many times, the workers’ comp claimant in PA qualifies for both, but is not aware they can receive both.

Between the two programs, a workers’ compensation claimant in Pennsylvania can only receive a certain percentage of their pre-injury earnings. Usually this amount will be more than the workers’ comp benefits alone. Plus, getting approved for SSD will lead to getting Medicare benefits, which can be a valuable resource. The Social Security Administration will withhold any SSD benefits a workers’ compensation claimant in Pennsylvania would otherwise be entitled to (the amount of SSD over that percentage of pre-injury earnings). There is no deduction from workers’ comp benefits in PA for SSD (contrary to Social Security Retirement benefits, for which the workers’ compensation insurance carrier gets a credit in Pennsylvania).

As with any potential benefit, a workers’ comp claimant in Pennsylvania should fully investigate whether applying for SSD benefits would be a good choice in their particular situation (in some cases, the injured worker may be better off not applying for SSD). This, as with any decision a workers’ comp claimant makes, should be discussed with an experienced Pennsylvania workers’ compensation lawyer.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Non-Workers Comp Benefit Programs , Worker Comp Generally

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In a very disturbing decision by the Commonwealth Court of Pennsylvania, in Watson v. W.C.A.B. (Special People in Northeast), reported by the Court on May 30, 2008, the injured worker was denied reimbursement of litigation costs, even though the injured worker was successful in part of her Claim Petition.

Claimant filed a Claim Petition three days after her injury (a fact for which the injured worker was chided by the Court, who, seemingly would prefer the injured worker sit and wait with no assurance her claim would ever be accepted by the workers’ comp insurance carrier). An Answer was filed by the workers’ comp insurance carrier admitting Claimant suffered a head contusion in the work injury.

The Workers’ Compensation Judge eventually found the doctors offered by the workers’ comp insurance carrier more credible and denied the wage loss aspect of the Claim Petition (Under the Pennsylvania Workers’ Compensation Act, no wage loss benefits are payable unless there are more than seven days of disability; here the Workers’ Compensation Judge found only three days of disability).

As to the medical benefits, the Workers’ Compensation Judge found medical benefits were payable until the date the workers’ comp insurance carrier’s medical expert said Claimant was fully recovered from her injury. The Workers’ Compensation Judge found, based on the workers’ comp insurance carrier’s medical expert, that the injury was a concussion (not a contusion). Since the Claimant won, at least in part, the Workers’ Compensation Judge awarded Claimant reimbursement of litigation costs.

Both sides appealed the decision of the Workers’ Compensation Judge. The Workers’ Compensation Appeal Board (WCAB) affirmed the majority of the decision, but reversed the award of litigation costs.

Under the Pennsylvania Workers’ Compensation Act, Section 440(a), litigation costs are to be reimbursed by the workers’ comp insurance carrier when Claimant is successful in the litigation “in whole or in part.”

The Commonwealth Court of PA affirmed the decision of the WCAB. The Court found no appreciable difference between a head contusion and a concussion in this case (an opinion, I doubt, would be shared by anyone who has suffered a concussion). Indeed, since the Court found there would be no medical treatment needed for one that was not done for the other in this case, “Claimant does not assert that the injury description resulted in any financial benefit to her.” I do not recall any requirement in the Pennsylvania Workers’ Compensation Act that medical benefits lead to a “financial benefit” to the injured worker. This seems to be just another example of the battle faced by the injured worker in PA.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Workers Comp Appeals , Workers Compensation Litigation

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Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

The challenge of the Notification of Modification or Suspension must be filed by the injured worker within 20 days of when the injured worker received the Notification of Modification or Suspension. According to a recent case in the Commonwealth Court of PA, Wawa v. W.C.A.B. (Seltzer), the date the injured worker received the Notification of Modification or Suspension is a finding of fact to be made by the Workers’ Compensation Judge (and will not be disturbed on appeal, if supported by “substantial evidence”).

This is yet another danger to the injured worker, who may be unaware that valuable rights can be lost simply by not taking action. It is very important that the injured worker be fully informed of the potential pitfalls contained within the Pennsylvania Workers’ Compensation Act.

Posted by Glenn Neiman | Permalink | Email This Post

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

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In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

Previous decisions of the Supreme Court of Pennsylvania, in years’ past, suggested that a Petition to Review the NCP would have to be filed for the Workers’ Compensation Judge to be able to amend the description of injury. On the other hand, many cases have also noted that the form of the pleadings is not fatal in PA workers’ comp, and that a Workers’ Compensation Judge is usually able to decide the case based on the evidence presented, generally without regard to the petitions actually pending.

Creating more strict requirements only makes PA workers’ compensation more dangerous for the unwary. We will keep you posted on this, and other decisions, as they happen.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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