Pennsylvania Workers' Compensation Lawyer Blog

As noted in a previous blog entry, Glenn Neiman, a partner at Brilliant & Neiman LLC, was invited to join the prestigious faculty of Lawline.com. Being a nationally recognized leader in continuing legal education programs, Lawline.com’s faculty includes some of the most well-known attorneys in the Country.

On May 14, 2009, Mr. Neiman recorded his first PA workers’ compensation seminar for Lawline.com. The seminar dealt with the effect of retirement on the receipt of workers’ compensation benefits in Pennsylvania, as well as an update on recent cases in PA workers’ comp. After the piece is edited by Lawline.com, it will be added to their course catalogue and made available to attorneys across the Country.

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Typically, under the Pennsylvania Workers’ Compensation Act, the benefits of an injured worker are reduced based on any earnings the injured worker has after his or her injury. Specifically, the injured worker receives two-thirds of the difference between the pre-injury earnings and the post-injury earnings (up to a statutory maximum).

In a somewhat troubling decision issued by the Commonwealth Court of PA, Alessandro v. Workers’ Compensation Appeal Board, an injured workers’ benefits were ordered to be suspended, despite the workers’ comp insurance carrier having no evidence that post-injury earnings equaled pre-injury earnings. The Court, noting that the Workers’ Compensation Judge found the injured worker not credible, believed the burden to show earnings (and subsequent wage loss) rests with the injured worker, not the workers’ comp insurance carrier.

As an attorney who represents injured workers in Pennsylvania, I find this decision problematic. Mr. Alessandro testified that he worked some, but had a large wage loss. Since it appears he was paid in cash (meaning there are no written wage records), and Mr. Alessandro was found not credible, as a practical matter, it seems almost impossible for Mr. Alessandro to prove he has a wage loss. How can one prove an absence of earnings?

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Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance company in PA is entitled to an offset when an injured worker receives Social Security Retirement Benefits (SSR). This is one of the provisions in the Act that seems most unfair to us attorneys who represent injured workers in PA.

The Supreme Court of Utah recently declared a similar provision in that State’s workers’ compensation laws to be unconstitutional, as it discriminated against injured workers on the basis of their age. Only injured workers old enough to qualify for SSR would have their workers’ comp benefits reduced.

Since workers’ compensation laws vary widely from State to State, there is no direct impact of this decision on the laws in Pennsylvania. However, this law does give us hope that a similar result can eventually be accomplished in the Supreme Court of Pennsylvania.

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With the dangers of Swine Flu on the minds of everyone, but perhaps especially the minds of those workers in the healthcare industry, this article from the Centers for Disease Control (CDC) may be of interest. Ironically, this article was posted on March 31, 2008, long before the current Swine Flu pandemic.

Raising this issue also brings to light that a healthcare worker in Pennsylvania who is stricken with an infectious disease as a result of his or her job is entitled to PA workers’ compensation benefits. We often see this type of case with Clostridium Difficile Colitis (C-Dif), Methicillin-resistant Staphylococcus Aureus (MRSA), and other infectious diseases which are known to exist in hospitals, nursing homes and other healthcare facilities.

If you suspect you have caught an infectious disease as a result of performing your job duties in PA, it is critical that you contact an experienced Pennsylvania workers’ compensation attorney.

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As discussed in previous blog entries, the case of Diehl v. Workers’ Compensation Appeal Board is of great importance in determining whether it matters when a workers’ compensation insurance carrier in Pennsylvania requests an Impairment Rating Evaluation (IRE) within 60 days of the expiration of 104 weeks of total disability.

In a decision rendered on April 28, 2008, the Commonwealth Court of Pennsylvania held that a PA workers’ compensation insurance carrier must show job availability if the IRE request is not made within that 60 day period. This decision was then vacated by the Court, to be addressed again by the entire Court (rather than a panel, as this decision was). Finally, on April 22, 2009, the Court issued a final decision in this matter, achieving a different result.

As feared by attorneys who represent injured workers in PA, the Court held that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within that 60 day period. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

Unfortunately for injured workers in Pennsylvania, this means there is very little difference whether the workers’ comp insurance carrier requests the IRE within the 60 day period or not.

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