Articles Posted in PA Workers Compensation Bureau Update

In law, almost every cause of action has a “statute of limitations.”  This is simply a time within which a cause of action can be brought.  Typically, if a suit or action is not filed within the applicable statute of limitations, the suit or action will be dismissed.  Pennsylvania workers’ compensation cases are no different.  Basically, the statute of limitations for a PA workers’ compensation case is three years.  But that is only part of the story.

There are actually time constraints in PA workers’ comp other than the basic statute of limitations.  These can be longer or shorter than the general statute of limitations.  For example, notice of an injury must be provided within 120 days of the injury (though, in certain types of cases, that time can be extended under the “discovery rule”).  Unless the case is covered by the discovery rule, the failure of the injured worker to provide notice to the employer within 120 days of the injury will cause the workers’ compensation claim to be denied.

On the other hand, there are types of workers’ comp cases in PA that have a statute of limitations longer than three years.  When an injured worker dies subsequent to an injury, as a result of the work injury, we have what is known as a “fatal claim.”  Under the Pennsylvania Workers’ Compensation Act, as stated in Section 301(c)(1), ” . . . wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury.”  So, as long as the death takes place within 300 weeks of the work injury, fatal claim benefits may be obtained (these provide benefits to dependents, since general workers’ compensation benefits in PA end with the death of the injured worker).

While I apologize to my clients for not being available for the last couple of days, I think you will agree that the absence was for a good cause.  For the last several years, I have attended the Annual Pennsylvania Bureau of Workers’ Compensation Seminar, which was held earlier this week in Hershey, PA.  Not only does this seminar allow me to earn many of the continuing legal education credits I need every year, but it also allows us a window into what employers and adjusters are being told regarding the law (I am in the vast minority as an attorney who represents injured workers – the seminar is primarily attended by claims personnel (from both employers and insurance carriers) with some defense attorneys sprinkled in).

Like having the playbook for the other team, we believe it is incredibly valuable to hear what is being told, and how, to these workers’ comp claims personnel.  This allows us to have an idea about how a claim or a situation may be viewed, and what steps may, or may not, be taken.  We hope this allows us to be one step ahead in protecting our clients.

So, now we are back, armed with this insight and ready to once again provide each injured worker with the best representation possible.  If you are not already being protected by us, give us a call today at 215-638-7500 and let our knowledge and experience work for you too.

When litigation begins in a workers’ compensation case in Pennsylvania, by law, a “Mandatory Mediation” must be conducted (unless such a mediation would be “futile.”).  The guidelines for these Mandatory Mediations can vary by the hearing office involved (generally, each county in Pennsylvania has a workers’ compensation hearing office).

Recently, the Philadelphia Workers’ Compensation Hearing Office issued a statement containing the policy of that office for Mandatory Mediations.  By the law, the mediations will be scheduled in each case, unless the Workers’ Compensation Judge (WCJ) assigned to the case deems it futile.  The date of the Mandatory Mediation will be determined with input from the attorneys on each case (as some cases require testimony or depositions to be completed before the parties are in a position to discuss settlement of a case).  The policy makes clear that no continuances will be granted for Mandatory Mediations.  If a Mandatory Mediation is cancelled, and the parties still wish to have a mediation done, the parties must approach another WCJ and schedule a Voluntary Mediation.

Unless you have been living under a rock, you are aware the Pope will be visiting Philadelphia late this September. With the throngs of people flooding Philadelphia for the festivities, the Pennsylvania Bureau of Workers’ Compensation realized that some adjustments to their scheduling will have to take place.

As such, we received an e-mail from the office of the Director of Adjudication, stating that, “No hearings or mediations will be scheduled or held at the Philadelphia Arch St. Office of Adjudication from Wednesday, September 23, 2015 through Friday September 25, 2015. Matters already scheduled during that time will be rescheduled. Notice of any other changes that may impact litigation or mediation during that week will be provided as soon as possible.”

Some of the Workers’ Compensation Judges (WCJs), individually, are expanding these adjustments even further. We have an upcoming hearing scheduled for September 21, 2015, and the WCJ has advised the parties that the hearing will be held in the Upper Darby Hearing Office, rather than in Philadelphia.

The Pennsylvania Bureau of Workers’ Compensation has been much more open about changes in the hiring and assignment of Workers’ Compensation Judges (WCJs) than in years past. In fact, to the credit of the Bureau, we have received electronic notification regularly for additions or changes in the workers’ compensation hearing locations on a regular basis.

Today, we received notification that a new WCJ has been hired, and assigned to the Philadelphia hearing office, located at 110 North 8th Street, on the 4th Floor. By our count, the Honorable Nancy Harris Farese will be the 18th WCJ assigned to the Philadelphia hearing office. The high number of WCJs at this office is partially due to the closing of the Northeast Philadelphia hearing office in 2012.

Prior to entering the judiciary, according to the notification sent by the Bureau, Judge Farese “graduated from the University of Pittsburgh Law School and has been employed as a staff workers’ compensation attorney with PMA Insurance Co since 1996. Prior to her employment with PMA, she worked with several other law firms in Philadelphia and one in Pittsburgh.”

Though it caused our attorneys to be out of town for a couple of days earlier this week, Brilliant & Neiman LLC felt it important that our attorneys attend the annual Pennsylvania Bureau of Workers’ Compensation Annual Conference in Hershey. This two-day seminar allowed our attorneys to discuss the law with other attorneys across the State of Pennsylvania, as well as with many Workers’ Compensation Judges (WCJs).

Topics that were covered included an update on recent cases coming through the Pennsylvania appellate courts, some information on traumatic brain injuries, a status of pain management treatment options and goals, the impact of social media on a workers’ compensation case, how employment laws interact with workers’ compensation cases, and how different WCJs run their practices and procedures.

While we hate to be unavailable to our clients for a two-day period, the exposure and information obtained by our attorneys is invaluable, and allows us to far better serve them.

Some time ago, there was a page on the website of the Pennsylvania Bureau of Workers’ Compensation which contained the practices and procedures of some Workers’ Compensation Judges (WCJs) in the Bureau. There were not that many of the WCJs listed, and the information was rarely updated. We are pleased to report that there is now an updated list of information for each WCJ, how he or she runs the courtroom and cases, and that it has been updated through April 29, 2015.

This is an incredibly valuable resource for not only us attorneys who represent the injured worker, but for everyone involved in the PA workers’ compensation system. This list tells us whether the WCJ follows the “serial listing” or “one day trial” format. We can learn whether the WCJ wants to see the injured worker for Supersedeas or other hearings, how evidence is to be submitted, and other important information.

Anything that makes the litigation process run more smoothly is a step in the right direction, and we must applaud the Bureau for the improvements made to this page.

Recently, we attended a seminar to be briefed on changes in the rules, formally known as the Special Rules of Administrative Practice and Procedure before Workers’ Compensation Judges or the Workers’ Compensation Appeal Board (each has a separate set of rules). Since our practice is limited to representing injured workers in Pennsylvania workers’ compensation cases, it is critical that we be aware of all aspects of the system.

Perhaps it would be wise first to understand where the Rules of Administrative Practice and Procedure fit into the system. As we have mentioned before in this blog, workers’ compensation laws vary widely from State to State. Here, the law starts with the Pennsylvania Workers’ Compensation Act, which was created back in 1915 and amended many times since. This law, and its amendments, were written and enacted by the PA legislature. The law is then interpreted by the appellate courts in Pennsylvania. The process by which we litigate these cases, through the Workers Compensation Judge (WCJ) and Workers’ Compensation Appeal Board (WCAB), are dictated by these Rules of Administrative Practice and Procedure.

Included in the changes to the Rules of Administrative Practice and Procedure before Workers’ Compensation Judges are how cases are litigated against the Uninsured Employers’ Guaranty Fund (UEGF), the fund that is available when an employer fails to carry PA workers’ comp insurance. There were also changes or amendments to what must be contained within Stipulations of Fact, to the timing of the serving of subpoenas, to the availability of a motion like a Motion for Summary Judgment (as in civil law), and changes to initial hearing procedures and pleadings.

We received word from Elizabeth Crum, Director of Adjudication for the Pennsylvania Bureau of Workers’ Compensation that two Workers’ Compensation Judges (WCJs) will be assigned to different hearing offices shortly after the new year. WCJ Michael Hetrick, formerly with the Lancaster hearing office in the Eastern District, will be transferred to the Pottsville hearing office (in the Central District). Then, from the Pottsville hearing office, WCJ Nathan Pogirski will be going to the Reading hearing office (Eastern District).

We wish these Judges a smooth transition and good luck in their new surroundings.

The Pennsylvania Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries suffered in 2015 will be $951.00 per week. This is an increase over the $932.00 for injuries suffered in 2014. While we applaud the increase, we continue to be mindful of the general unfairness that workers’ comp benefits in PA are calculated as of the date of injury . . . and then forever fixed at that level. Unfortunately, some work injuries are very severe and require the injured worker to be on workers’ compensation for years. We long for the day when cost-of-living adjustments are made, as they are in Social Security Disability. It seems only the fair way to handle long term, chronic, injuries.

The workers’ compensation rate calculation can be a complicated process, depending on the situation. Generally speaking, the wages of the injured worker from the day before the injury going back one year are gathered. We divide this into four quarters, then take the average of the highest three quarters. This is the “Average Weekly Wage” (AWW). Depending on the amount, the workers’ comp rate is usually 2/3 of the AWW, though that can vary. For lower wages, the rate can be as high as 90% of the AWW. For those workers above the maximum compensation rate, the percentage can be less than 2/3.

Making sure the AWW is properly calculated, to be sure you are getting the fullest extent of compensation possible, is yet another reason to come to an attorney certified as a specialist in workers’ compensation law, as are the attorneys at Brilliant & Neiman LLC.

Contact Information