Articles Posted in Workers Compensation Litigation

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.

With regard to the WCAB, there were changes made to how appeals, Requests for Supersedeas on Appeal, and appeal briefs are filed, what has to be filed to preserve multiple claims or disputes, and the timing of decisions on Supersedeas.

While there were very few significant substantive changes made, we recognize how critical it is that we remain current, and well versed, in every aspect of the Pennsylvania Workers’ Compensation Act. These rules show how complicated this system can get, and the need to make sure that when you select an attorney to represent you in a workers’ compensation case, he or she is “Certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court.” It is important to know that each of our attorneys are properly certified, assuring you of having the best legal representation possible.

On Friday, January 24, 2014, our offices will be closed for part of the day so our attorneys, and our staff, can attend a seminar regarding the usage of the new computer system recently installed for the Pennsylvania Bureau of Workers’ Compensation. Called the WCAIS system, this program went live back in September.

Though we were involved in the early testing of the WCAIS system, each day has brought changes to the new program. To best handle our cases with the Bureau of Workers’ Compensation, we felt it important that we, and our staff, attend a seminar held to review the current status of WCAIS, and how best to use the system. The seminar is scheduled to have Hon. Elizabeth A. Crum, Director, Workers’ Compensation Office of Adjudication in Harrisburg, Hon. Susan B. Caravaggio, Central District Judge Manager for the Workers’ Compensation Office of Adjudication, and three of the lead programmers who worked on, and refined, the system.

While we apologize for any inconvenience caused by us closing the firm, we believe our attendance at this seminar this will better enable us to represent injured workers throughout Southeastern and Central Pennsylvania.

As a leading workers’ compensation firm in Pennsylvania, Brilliant & Neiman LLC has worked with the PA Bureau of Workers’ Compensation on issues, such as the mediation process, in the past. The Bureau is now getting ready to institute the final part of its overhaul, transitioning into the online Workers’ Compensation Automation and Integration System (WCAIS). Initially, last September, the Bureau started the transition to WCAIS, by putting the Workers’ Compensation Appeal Board (WCAB) onto the system. This next, and final, step will be to bring the rest of the Bureau, and the entire adjudication process, into WCAIS.

It was no surprise, then, that the attorneys at Brilliant & Neiman LLC were again invited by the Bureau to be among a select group of attorneys and legal professionals from across the State of Pennsylvania to assist the Bureau with the final stages of this development. This partnership is beneficial to the Bureau, by having the attorneys work on the new system under the watch of the Bureau – to further tweak the process and refine its efficiency, as well as to the attorneys involved, by having an early exposure to the new system and gaining valuable experience.

The WCAIS system will streamline the workers’ compensation process in PA, centralizing the filing of petitions, the scheduling of hearings and the entire litigation of cases. Currently, the system is scheduled to go live on September 9, 2013. This new process should greatly increase the efficiency of both the Bureau, and the parties involved in litigation. We at Brilliant & Neiman LLC were excited and honored to share our time and experience with the Bureau, to help make the system better for all involved.

We were recently asked by an injured PA worker, and not for the first time, “Why is my employer making me see another doctor if I am already being treated by the doctor my employer sent me to?” The answer to the question requires that we look at two different parts of the Pennsylvania Workers’ Compensation Act (Act). Essentially, we are looking at the difference between a “panel physician” and an “Independent Medical Examination (IME)” [More realistically termed a “Defense Medical Examination (DME)” since there is often nothing “objective” about it].

Under the Act, an employer may only be responsible for payment to a medical provider on a “panel posting,” for the first 90 days of treatment, provided the panel posting meets the requirements as contained within the Act. Though there is a widely held belief that an employer controls medical treatment for the first 90 days, this is a vast overstatement, and employers frequently have an improper panel (meaning that the injured worker may be able to treat with any provider, and have the employer pay for such treatment, from the start).

A proper panel posting must contain at least six providers, at least three of which are physicians (the remainder could be therapy facilities or other healthcare providers who are not doctors). No more than four of the six on the posting may be from the same “coordinated care organization” (one could simply say “practice”). This posting must be displayed in a prominent location. The employer must have the injured worker sign an acknowledgement, both at the time of hire and as soon as practical after the injury, that the injured worker is aware of the panel posting. All of these requirements can be found in Section 306(f.1)(1)(i) of the Act. Frankly, very few employers actually achieve all of these requirements (yet, sadly, injured workers are unfairly saddled with treatment at a location chosen by their employer because the injured worker is not aware of his or her rights).

Even if the injured worker is treating with a provider that is on the employer’s panel posting, the employer (or more likely, its workers’ comp insurance carrier) has the right to have the injured worker examined by a doctor of its choosing under Section 314 of the Act. This is a DME. The bottom line is that the employer is usually entitled to a DME, whether or not the injured worker is treating with a panel provider. There are, of course, exceptions to every rule, and every injured worker should have the benefit of learning his or her rights by discussing their case with an experienced PA workers’ compensation attorney. As with most workers’ comp attorneys in Pennsylvania, we never charge a fee unless we get results for you.

It has certainly been a busy time for Workers’ Compensation Judges (WCJs) in Pennsylvania. We just recently discussed filling the vacancy in the Allentown Workers’ Compensation Hearing Office, and now we have learned of three additional WCJs on the move.

Leaving the bench will be The Honorable Nancy Goodwin, who had been stationed in the Philadelphia Workers’ Compensation Hearing Office, and The Honorable Thomas Hines, from the Malvern (Montgomery County) Workers’ Compensation Hearing Office. We have further learned, all of this unofficially, that The Honorable Kelly Melcher will be moving from the Reading Workers’ Compensation Hearing Office to the Malvern office to replace Judge Hines. We have not heard any information regarding a replacement for Judge Goodwin.

We wish Judge Goodwin and Judge Hines well in their retirements, and we thank them for their years of dedicated service to the PA workers’ comp community. We also congratulate Judge Melcher on the move, and wish her well in Malvern.

Several months ago, we reported that four PA Workers’ Compensation Judges (WCJs) had stepped down from the bench, while only two new WCJs had been named by the Pennsylvania Bureau of Workers’ Compensation. This left a difficult void in some hearing offices, such as that in Allentown.

We are now pleased to report that a new WCJ has been named to the bench in Allentown. She is The Honorable Cathleen A. Sabatino, who most recently was practicing as a Senior Associate at the law firm of Del Collo & Mazzanti LLP in Paoli, PA. Since graduating from Villanova University School of Law, Ms. Sabatino has been active in the Workers’ Compensation section of the Philadelphia Bar Association where she has served as chair of the section’s annual charity auction. In her community, Ms. Sabatino volunteers as an adult mentor with Spring-Ford Community Theatre’s Youth Ensemble (She holds a B.A. in Theatre from DeSales University).

It is with warm thoughts that we greet The Honorable Cathleen A. Sabatino, and we wish her well in her new career as a WCJ in Allentown.

As attorneys who represent injured workers in PA, we are often told by our clients that their doctor or physical therapist is not being paid by the workers’ compensation insurance carrier. Moreover, the client is receiving bills from the provider, maybe even notices from a collection agency. This is a sticky area, since the rules are in place, but not easily enforceable.

The Pennsylvania Workers’ Compensation Act is very specific on this topic. Right in the Act, Section 306 (f.1)(7), it says:

A provider shall not hold an employe liable for costs related to care or service rendered in connection with a compensable injury under this act. A provider shall not bill or otherwise attempt to recover from the employe the difference between the provider’s charge and the amount paid by the employer or the insurer.”

Well, that’s great! The provider can’t do what they are doing. Now what? This is where the problem lies. The legislature said what cannot be done, but neglected to put in anything that can be used to enforce this language. While a Penalty Petition can be filed against the employer or the workers’ compensation insurance carrier, one cannot be filed against the medical provider. Plus, considering the injured worker often needs the support and cooperation of the medical provider in litigation, antagonizing the medical provider is not usually in the best interests of the injured worker.

We try to educate the medical provider. We truly want the medical providers to be paid; they are providing a valuable service to our clients and deserve to be compensated. But, at the same time, we want any collections efforts against the injured worker to be stopped.

The proper way for a medical provider to bill for treatment related to a work injury in PA is for the provider to submit their bills on the proper forms (LIBC-9 and HCFA forms), and submit these with supporting documentation (like the office or treatment notes). The workers’ compensation insurance carrier then has 30 days to either pay the bill or submit the bill to Utilization Review (the tool available if they want to dispute whether the treatment is reasonable or necessary).

If the bill is not paid by the workers’ compensation insurance carrier in the proper time, or in the proper amount, the medical provider must file a form with the Bureau of Workers’ Compensation for “Fee Review” (LIBC-507). This is the step far too many medical providers ignore, by just jumping to the (unlawful) practice of billing the injured worker.

Once an administrative process issues a decision in the Fee Review, it can be appealed and heard before one of several Workers’ Compensation Judges (WCJ) who hear such actions. The medical provider need only file another form (LIBC-606) to have the process start. Our firm, among others, is perfectly willing to represent medical providers in these actions. What we are not willing to do, however, is have our clients pay the price for medical providers who are not following the proper procedures to be paid.

Through the efforts of concerned citizens, and attorney groups united to support injured people, such as the Pennsylvania Association for Justice, there has been no legislation really harmful to the injured workers in Pennsylvania passed since 1996. Unfortunately, it appears there is now a new threat on the horizon, and we call on every injured person, and anyone who cares about the injured worker in PA, to make their concerns known to their State Representatives and State Senators.

The Pennsylvania Chamber of Commerce has a new “wish list” for the reform of the workers’ compensation system in PA. The changes desired by the Chamber primarily impact the medical providers, rather than the injured workers directly. Obviously, however, this will impact the injured worker by narrowing the treatment options open to injured workers in Pennsylvania, and generally add another layer of difficulty to what is already a minefield for those unfamiliar with the process.

One of the primary changes that the PA Chamber of Commerce would have made is to increase the time an injured worker in PA is required to treat with a company “doctor” from 90 days to 180 days. Any injured worker who has experienced substandard medical care in those first 90 days, or the difficulties of having a medical provider more concerned with a return to work than a cure, understands the significance of this expansion. No mention was made by the Chamber of the developing practice we are seeing where the injured worker is stuck with a nurse practitioner for that captive period, effectively denying the injured worker from even being evaluated by a medical doctor.

Other changes the Chamber supports include preventing the injured worker from using a pharmacy of his or her choice, and having to rely on a claims adjuster to get the medication (a scary proposition when we consider how frequently the claims adjusters cannot even process checks in a regular fashion); severely limiting the type and duration of medical treatment based on a diagnosis made by the insurance company; reducing what the doctor can get paid for treating an injured worker impacting access to necessary care; and, finally, having a treating doctor’s care reviewed by a nurse with no right to appeal that review to a Workers’ Compensation Judge.

We, of course, will be fighting this battle in Harrisburg, along with the Pennsylvania Association for Justice. But, we cannot win this alone. We need you to help us protect the injured worker in PA. Please take a few minutes to make your State Representatives and State Senators aware that you, as a voter, care about the injured worker in Pennsylvania, and that you are against the changes being proposed by the Chamber of Commerce.

As attorneys who limit their practice to representing the injured worker in PA workers’ comp cases, we are thrilled by the recent announcement that the Supreme Court of Pennsylvania has approved the process of creating a “certified workers’ compensation attorney” in Pennsylvania (or, in other words, a workers’ compensation specialist).

We have seen the damage done to cases when an injured worker trusts a general practitioner to handle a Pennsylvania workers’ comp case. The Pennsylvania Workers’ Compensation Act is a complicated piece of legislation. As loyal readers of our blog know, this is a frequent topic of cases decided by the appellate courts in PA. Trusting a workers’ compensation case to an attorney not experienced in that area of law is akin to having an orthopedist handle your coronary artery bypass surgery. Just not a good idea.

A work-related injury can cause tremendous disruption, and loss, to both the injured worker and his and her family; we are thrilled that in the near future, that injured worker can have the confidence that he or she is selecting a “certified workers’ compensation attorney.” We, of course, look forward to becoming “certified workers’ compensation attorneys” as soon as the process for the testing and certification is completed.

Back in October, we blogged about the decision of the Commonwealth Court of Pennsylvania in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), which addressed what caused a presumption that an injured worker “retired,” entitling the workers’ comp insurance carrier to a suspension of workers’ compensation benefits.

The decision of the Commonwealth Court arguably made a murky area of the law even more confusing, but it also attempted to inject some compassion and logic into an aspect of law short on both.

For better or worse, the Supreme Court of Pennsylvania has accepted an appeal in this matter. Specifically, the issue for the Court to determine is:

“Did the Commonwealth Court err by holding that, in a petition to suspend compensation benefits based upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of the circumstances that the claimant has chosen not to return to the workforce?”

We will, of course, let you folks know the final result as soon as we are advised.