Pennsylvania Workers' Compensation Lawyer Blog

We have already mentioned on a past blog entry that injured workers in Pennsylvania can collect PA workers’ compensation benefits and Social Security Disability benefits at the same time. However, a recent opinion from the United States Tax Court, reported on LawyersUSAOnline.com, reminds us that the receipt of the two benefit programs together can have unintended tax consequences.

Our firm only handles Pennsylvania workers’ compensation cases; we do not handle tax matters of any kind. Having said that, depending on the spouse’s earnings, if Social Security Disability benefits are being received, workers’ compensation benefits received by an injured worker in PA can be taxable, when ordinarily they would not be taxable. This issue was also addressed recently by the Social Security Administration in a POMS (essentially, a memo). Obviously, this situation changes depending on the circumstances in each case, and the advice of a tax professional should be obtained.

On many occasions over the years, we have addressed the Utilization Review (UR) process in Pennsylvania workers’ compensation cases. This is the process either party, usually the workers’ comp insurance carrier, uses to obtain a determination as to whether a treatment at issue is “reasonable and necessary” such that the insurance company must pay for the treatment.

What is sometimes lost in this abstract analysis is the impact a UR has on real live people. When a Request for Utilization Review is filed by a workers’ compensation insurer, the insurance carrier is immediately relieved of payment of bills for the treatment at issue, unless and until the treatment at issue is found to be “reasonable and necessary.”

Being in business for profit, or at least to make a living, not all providers are able, or willing, to continue to provide treatment once a UR is filed. One of the most dangerous areas this problem hits home is with medications.

Many medications cannot be suddenly stopped without risk of very severe consequences. Yet, when a UR is filed, frequently retail pharmacies will refuse to fill prescriptions, leaving the injured worker without the medication he or she desperately needs.

This is one of those flaws in the Pennsylvania Workers’ Compensation Act that seems so clear, and so basic, that the PA Legislature would have to fix it, right? That is what we keep thinking, but we have thus far been unsuccessful in having this issue resolved. Sadly, it may take widespread media coverage of a tragic event before things are made right.

While the Pennsylvania Workers’ Compensation Act generally precludes an injured worker in PA from suing his or her employer, the injured worker does have the ability to sue a third party, if that party is responsible for the injury. Since workers’ compensation in PA does not provide any payment for pain and suffering, the ability to file a civil action against a third party is a valuable option. Answers to this, and other questions regarding the PA workers’ comp system, can be found on the Brilliant & Neiman LLC website.

As can be seen from a recent article in the Legal Intelligencer, verdicts in cases involving work injuries can be significant. This again demonstrates the importance of having an experienced PA workers’ comp attorney, who knows what to be looking for in such a case.

As noted in a previous blog posting, Glenn C. Neiman, a partner at Brilliant & Neiman LLC, joined the prestigious faculty of Lawline.com in 2008. It was recently announced that his next seminar for Lawline.com will be on changing the description of injury in PA workers’ compensation, a topic which has been addressed here recently. The seminar, currently scheduled for late July, will be streamed live through Lawline.com, then made available to attorneys across the State of Pennsylvania, as well as throughout the United States.

Utilization Review is the proper course of action when either party in a PA workers’ compensation case questions whether medical treatment is reasonable and necessary. We have discussed this process in a previous blog entry.

Since the Pennsylvania Workers’ Compensation Act is remedial legislation, intended by its creators to provide the injured worker with the benefit of the doubt, what is considered “reasonable and necessary” does not have to cure a condition. As PA Courts have previously stated, “Treatment may still be reasonable and necessary ‘even when it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition.’”

A recent case, Gary v. Workers’ Compensation Appeal Board (Philadelphia School District), decided by the Commonwealth Court of Pennsylvania seems to certainly blur this line. In 2001, Ms. Gary injured her neck and back while working. Then, in 2003, a Utilization Review Determination found the treatment of a chiropractor to be reasonable and necessary.

The workers’ comp insurance carrier, undaunted, again sought Utilization Review in 2008, on the same chiropractor, concerning the same treatment. The Workers’ Compensation Judge (WCJ) found the Utilization Reviewer credible, when the Reviewer said the treatment at issue was not reasonable or necessary because it failed to show significant improvement. The testimony of the injured worker, that the treatment gave her relief, was not believed by the WCJ. In her decision, the WCJ did not even mention the 2003 Utilization Review Determination. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. The Court noted that the failure of the WCJ to even mention the 2003 Utilization Review (regarding the same provider, giving the same treatment) was harmless, given the period of time in between the two URs, and the fact that the WCJ credited evidence showing a change in condition in that span of time. Further, the Court found that, while treatment can be reasonable and necessary while still simply relieving pain, the WCJ credited the testimony of the Utilization Reviewer, who found the treatment did not yield “significant improvement.” As such, the Court concluded, the workers’ comp insurance carrier met its burden of proving the chiropractic treatment was not reasonable or necessary.

As attorneys who limit their practice to representing injured people in PA workers’ compensation cases, we were greatly disappointed in this decision. Though the Court gave lip service to the proper standard, that treatment can be reasonable and necessary simply because it relieves pain, ultimately, the Court ignored the concept. The use of the term “significant improvement” as part of the reasoning behind the decision demonstrates the lack of true understanding. Workers who have severe injuries, such as disc herniations in the cervical or lumbar spine, separated shoulders, total knee replacements, thoracic outlet syndrome and complex regional pain syndrome, just to name a few, find simple pain relief, even if only temporary, to be worth an incalculable price. Sadly, our court system believes otherwise.

The Allentown Workers’ Compensation Hearing Office has been located at 160 Hamilton Street, in Allentown, for several years now. We have just been advised by one of the Workers’ Compensation Judges (WCJ) at that office that the hearing location for Allentown will be moving shortly. The plan is for the move to take place in July, 2011. We are told the new location will be closer to the Allentown exit, off of the Pennsylvania Turnpike.

As we have discussed in previous blog entries, in PA, a workers’ compensation hearing is typically held in the County in which the injured worker resides. We will provide more information, including the new address, when we are advised by the PA Bureau of Workers’ Compensation.

Previously, we posted a blog entry on the Commonwealth Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). This was the decision where the Commonwealth Court was unmoved when the injured worker applied for every job in a Labor Market Survey and found none available to him. The Court said the workers’ compensation insurance carrier can still obtain a Modification or Suspension of workers’ comp benefits in this situation.

Thankfully, the Supreme Court of Pennsylvania accepted appeal in this matter on April 27, 2011. We will certainly keep our readers informed when the Supreme Court of PA reaches a decision.

The issue of “retirement” and “voluntary withdrawal from the labor market” is one we see often in Pennsylvania workers’ compensation. We have had blog entries on how applying for Social Security Retirement benefits can impact the receipt of PA workers’ comp benefits, and how receipt of pension benefits can have such effect. In fact, I have given a seminar on this very topic in the past.

So, when the Commonwealth Court of Pennsylvania tackles this issue, we certainly take note. Recently, the Court rendered a decision in the matter of City of Pittsburgh v. Workers’ Compensation Appeal Board (Leonard). Here, the Workers’ Compensation Judge (WCJ) granted a suspension of benefits for a “voluntary withdrawal from the labor market,” but did so at a later date than the workers’ compensation insurance carrier wished, and reinstated benefits thereafter when the injured worker “re-entered the labor market.”

If you are a follower of our blog [and thanks for following us!], you can probably guess that this case turns on the facts. The injured worker here was a police officer who suffered a work injury to his forearm and knee. On April 1, 2006, Claimant received a disability pension, though an Independent Medical Examination (IME) [I chuckle every time I actually write “independent” in that context] found that he was able to work at a light to medium duty level.

Based on the IME, the workers’ comp insurance carrier issued a Notice of Ability to Return to Work on August 16, 2007. The injured worker admittedly did not look for any work. Shortly thereafter, the carrier filed a Petition for Suspension, alleging that the injured worker voluntarily withdrew from the labor market.

As noted in the Robinson and Day cases (which, as of this date, are pending appeal with the Supreme Court of Pennsylvania) , the receipt of a pension does not necessarily create a presumption that the injured worker “retired” or voluntarily withdrew from the labor market. Instead, the facts surrounding the situation must be examined. Primarily, one must determine whether the pension was a “retirement pension,” indicting the injured worker is not planning to perform any work, or a “disability pension,” perhaps only indicating the injured worker cannot perform his pre-injury position.

The WCJ here found that the pension at issue was a disability pension, so the WCJ properly refused to apply the presumption the workers’ comp insurance carrier requested. However, the WCJ did suspend benefits as of August 17, 2007, when Claimant received the Notice of Ability to Return to Work. The WCJ reasoned at that point, Claimant knew, or should have known, that he was required to look for work and failed to do so. This indicated a withdrawal from the labor market.

At the same time, the WCJ was convinced that, as of December 1, 2008, the injured worker was looking for gainful employment in good faith. In a previous blog, we mentioned the Hensal case, with the requirements in this area. Since the WCJ is the ultimate finder of fact, the Commonwealth Court accepted the findings of the WCJ on this issue. As such, the decision of the WCJ was affirmed by the Court.