Pennsylvania Workers' Compensation Lawyer Blog

In a meeting held yesterday in Doylestown, PA, the Bucks County Bar Association Workers' Compensation Section named Glenn C. Neiman, a partner at Brilliant & Neiman LLC, as Co-Chair of the Section. The position is a two year term, slated to begin in January 2010.

Traditionally, the Chair of the Workers' Compensation Section is shared by an attorney who represents injured workers, and an attorney who represents Pennsylvania workers' comp insurance companies. In this case, the tradition has been followed, as Jonathan C. Meyers, a partner at the defense firm of Hill Wallack LLP, was named as the other Co-Chair.

The Workers' Compensation Section of the Bucks County Bar Association holds meetings throughout the year for attorneys who practice in this area, discussing items of interest to their members. Often there is coordination between the Section and Workers' Compensation Judges' in the Bucks County area, helping the PA workers' comp system flow as smoothly as possible. The Section also is responsible for producing an annual seminar for attorneys, regarding PA workers' compensation.

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Who better than the injured worker to know the pain that person is feeling? At this point in medical science, we do not have a “pain meter.” Doctors can examine a person, and obtain diagnostic testing, such as x-ray, MRI and CT scan, but, ultimately, doctors can only tell us whether they can find an objective basis for a person’s pain. No doctor could credibly state whether a person has pain.

This becomes an issue in PA workers’ compensation cases. A Workers’ Compensation Judge (WCJ) must decide whether to believe an injured worker, when he or she testifies regarding the symptoms they suffer. At least, that is how a reasonable person could assume the system works.

In reality, in PA, according to a recent decision by the Commonwealth Court of Pennsylvania, the testimony of the injured worker, without matching testimony from a physician, cannot defeat a petition filed by the workers’ compensation insurance carrier to modify or suspend the injured claimant’s workers’ compensation benefits. In World Kitchen, Inc. v. WCAB (Workers’ Compensation Appeal Board), the Independent Medical Examiner (IME, otherwise known as Defense Medical Examiner (DME)), released the injured worker to full time work.

The injured worker tried the job in good faith, but she was not able to work full time due to continuing back pain. The WCJ decided that the workers’ compensation insurance carrier had to pay workers’ compensation benefits based on the actual wages earned by the injured worker. The Commonwealth Court of PA reversed the WCJ, finding that the Petition to Modify should have been granted. The Court reasoned that the testimony of claimant, that she had to leave work on occasion due to ongoing back pain, was not sufficient by itself to defeat the Petition. Since the claimant presented no medical evidence (deposition of a doctor) of her own, she must lose.

As the dissent in the case pointed out, the testimony of an injured worker by itself IS enough to reinstate workers’ comp benefits in PA, so it is silly to say such testimony is not enough to keep benefits going.

This case highlights the dangers of an injured worker litigating a workers’ compensation case in Pennsylvania without the representation of an experienced PA workers’ comp attorney. Not only did this injured worker not know a medical deposition was necessary to win the case, in all likelihood, the injured worker lacked the funds to pay for a medical deposition. Many workers’ compensation firms, including Brilliant & Neiman, LLC, never charge their clients for the costs of litigating a case (which can easily run more than $5,000).

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Injured workers in Pennsylvania are entitled to payment of wage loss benefits, as well as payment for medical treatment related to the work injury. The term “medical treatment” in PA is defined broadly. It includes obvious items, such as an MRI or x-ray, medications, doctor visits and surgery, but it also can include items you might not immediately consider, such as prosthetic devices and home modifications.

Regarding home modifications, Pennsylvania Courts have previously held that a workers’ comp insurance carrier only has to modify an injured worker’s home one time. While the workers’ compensation insurance company is required to replace medical equipment that wears out, such as wheelchairs, braces and orthotics, the law was unclear whether revisions to a home modification had to be paid for by the workers’ comp insurance carrier.

Recently, the Commonwealth Court of Pennsylvania decided the case of Equitable Resources v. WCAB (Workers’ Compensation Appeal Board). In that case, the injured worker was paralyzed in the work injury. The workers’ compensation insurance carrier paid for modifications to the home. Unfortunately, some time later, it was discovered the modifications were done poorly, and considerable expense was required to fix the mistakes made by the original contractor (who, by the way, was selected by the employer). The workers’ comp insurance carrier refused to pay for the subsequent repairs, believing they had paid for the initial home modification, and that was the extent of their responsibility.

The Court found repair of the home modifications closer to the replacement of a worn-out wheelchair than additional modifications to a home. As such, the Court directed the workers’ compensation insurance carrier to make payment. This seems to be a just result, appropriately reflecting that the PA Workers’ Compensation Act is, “remedial in nature and is intended to benefit workers, and therefore, the Act must be liberally construed in order to effectuate its humanitarian objectives.”

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