Pennsylvania Workers' Compensation Lawyer Blog

Guiding PA workers’ compensation attorneys in how and why to expand the description of injury in a Pennsylvania workers’ comp case was the topic of the most recent seminar given by one of our partners, Glenn C. Neiman, for Lawline.com on July 22, 2011. Unlike the previous work Mr. Neiman has done for Lawline.com, this recent seminar was streamed live to attorneys across Pennsylvania (and the rest of the Country as well). In addition to discussing the nuts and bolts of changing a description of injury, Mr. Neiman also gave a brief update regarding some recent decisions from PA Courts of interest to the Pennsylvania workers’ comp lawyer community.

“The description of injury is really what drives a workers’ comp claim in Pennsylvania,” Mr. Neiman explained, when asked why this topic is important, “When we look at whether a work injury is fully recovered, or whether an injured worker can go back to work, or whether medical treatment is related to the work injury, we are always looking at the accepted work injury.”

While the seminar was performed live, it will also be added to the Lawline.com catalogue, so other attorneys across PA can learn about this important topic. “Not every firm limits its practice to Pennsylvania workers’ compensation cases like we do,” said Mr. Neiman, “so this seminar is of special benefit to those attorneys who do not handle PA workers’ comp matters on a regular basis.”

On July 7, 2011, Governor Tom Corbett signed House Bill 797 into law, as Act 46 of 2011, amending the Pennsylvania Workers’ Compensation Act by giving firefighters protection against the risk of cancer. The legislation adds a presumption that cancer suffered by veteran firefighters is related to their work duties. More information can be found in the related press release.

This new law, of course, has been well received by groups associated with firefighters in Pennsylvania, such as Delaware County Firemen’s Association, Pennsylvania Professional Fire Fighters Association, International Association of Firefighters Local 2781 and Firehouse.com.

As attorneys representing injured workers in PA, we applaud the Pennsylvania legislature for passing this measure, and providing support to the brave men and women who put their lives on the line for us every day of the week.

Often, physicians who perform Independent Medical Examinations (IMEs), hired by the PA workers’ compensation insurance carrier, seem less than truly independent (I know, shocking, huh?). I have heard IME doctors over the years testify that a bulging disc is a natural finding, one that cannot cause symptoms, and cannot lead to nerve impingement. This, of course, is not the only view, as an article on Laser Spine Institute’s website demonstrates.

I also know another person who would disagree with the view shared by these doctors in the IME community. While Phillies pitcher Roy Oswalt does not have to worry about the Pennsylvania workers’ comp system (unlike most of us, he gets paid whether he works or not), he does have to live with the symptoms of a bulging disc.

As Mr. Oswalt described in this article on Philly.com, the bulging disc is sending pain down his leg. Interestingly, I have also heard IME doctors testify that a nerve being impinged or irritated by a disc (called “radiculopathy” or “radiculitis”) will cause pain along the entire course of the nerve, down to the foot. In this case, Mr. Oswalt noted that his pain has gradually gone all the way down the leg. Since he has no reason to magnify his symptoms (considering IME doctors would say injured workers always have a financial motivation to lie), this information from Mr. Oswalt is both reliable and persuasive.

This should be a reminder to Workers’ Compensation Judges throughout the State of Pennsylvania, that a bulging disc (even, as Mr. Oswalt has, a “mild” bulging disc) can cause debilitating symptoms that not only can sideline a pitcher, but can put a construction worker, warehouse helper, chef, secretary, nurse and any other job, out of work.

As PA workers’ compensation attorneys, we appreciate the efforts of the Philadelphia Area Project on Occupational Safety and Health (PhilaPOSH), a group who is devoted to the safety and protection of workers across Southeastern Pennsylvania, as well as into New Jersey and Delaware.

PhilaPOSH conducted an event this past Memorial Day, to remember those workers who had been killed while performing their jobs. In addition to remembering those who had fallen, the organization also strove to increase the focus on making worksites across PA safer, so the list of fatal work injuries can be decreased, if not eliminated. A moving video, with clips from this event, is available on Youtube.

On June 30, 2011, Governor Tom Corbett signed House Bill 440, bringing the measure into law. While the Pennsylvania Bureau of Workers' Compensation labelled this a "reform bill," it appears it will have no real impact on injured workers in PA. Rather, the aim of the new law is to expand the availability of workers' compensation insurance coverage to small businesses.

One of the ways a workers’ compensation insurance carrier in PA can be relieved of paying workers’ comp benefits to an injured worker in Pennsylvania is by showing that employment is “available” to the injured worker, as described previously in our blog.

Prior decisions by both the Supreme Court of Pennsylvania, and the Commonwealth Court of Pennsylvania, make clear that if an injured worker would not reasonably be aware of the duties involved with a modified job offer, the job offer is not sufficient. Typically, if the injured worker has not previously worked in the position to which he is being offered, “the employer must provide information related to the job duties and classification so that the claimant can make an informed decision regarding whether the position offered is within (his or) her capabilities.” [Quoting language in the decision of Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Mem’l Hospital) from the PA Supreme Court].

This brings us to the recent decision by the Commonwealth Court of Pennsylvania in Vaughn v. Workers’ Compensation Appeal Board (Carrara Steel Erectors). Here, Mr. Vaughn was a union ironworker, who injured his back while performing heavy duty work. Some time after the injury an “Independent” (Which we know is anything but) Medical Examination (IME), released Mr. Vaughn to light duty work.

The Employer sent Mr. Vaughn a letter stating, in relevant part, “Your activities at work will be modified to accommodate the restrictions identified in the (IME).” There was no information as to how the position would be modified or what duties would be expected of him. Believing he did not have enough information, Mr. Vaughn refused to report for work.

A Petition for Suspension was filed by the workers’ compensation insurance carrier. A witness for the employer described a few menial tasks that Mr. Vaughn could have performed, had he come back to work (putting nuts and bolts together, “repair chokers,” and make deliveries to work sites). The Workers’ Compensation Judge found this witness credible and granted the Petition for Suspension. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania affirmed as well. Since the position being offered was the pre-injury position (union ironworker), the Court found that Mr. Vaughn should have been familiar with the duties of the job. Further, since the Employer said they would modify the position to accommodate the restrictions, the notice of the job being offered was sufficient.

As workers’ comp attorneys representing injured workers, we found this decision rather disconcerting. If an injured worker previously performed a light duty job, and is then being offered the same light duty job, then it makes logical sense that there would not be a need for the Employer to again describe the duties of the job being offered. That, however, is hardly the same situation as here, where a union ironworker, who performed heavy duty work, would now have to imagine how the Employer planned to make a job that is heavy duty by nature into a light duty job. How exactly can the injured worker “make an informed decision regarding whether the position offered is within (his) capabilities,” if he does not know the duties he will be asked to perform? This decision is further evidence of the unfairness of the Pennsylvania Workers’ Compensation Act, and the need for injured workers to be represented by a firm who knows, and protects, the rights of injured workers.