A recent decision by the Commonwealth Court of Pennsylvania, however, confirms the beliefs of us Pennsylvania workers’ compensation attorneys, who feel this technical step is not always necessary. In Shelton v. WCAB, decided by the Court on June 26, 2008, the workers’ compensation insurance carrier was ordered to pay medical bills even though the bills were not submitted on the proper forms.

In this case, the Court drew a distinction between the situations when the claim has already been accepted as opposed to one where there has never been liability of the workers’ compensation insurance carrier established. When the liability of the workers’ compensation insurance carrier has not yet been established, then bills must be on the proper forms. When we are dealing with an accepted claim, then this technicality may not be necessary.

Though there will be reargument on this case, and a new decision will be issued, many of us Pennsylvania workers’ compensation attorneys doubt that the new decision will be as favorable as the one which has been vacated. We will, of course, post about the new decision when it is made.

For example, employees of the Federal Government must go under the Federal Employees’ Compensation Act (FECA), which is administered by the Office of Workers’ Compensation (OWCP). Railroad workers are usually subject to the Federal Employers’ Liability Act (FELA), which uses the Federal Court system for its procedure. The Longshore and Harbor Workers’ Compensation Act (“Longshore Act”) governs employees engaged in maritime activities (though these cases sometimes have “dual jurisdiction” in PA and can proceed either through the Longshore Act or the regular Pennsylvania workers’ comp system, often depending whether the injury took place on the water or on dry land). So, not every worker who is injured in PA will be proceeding through the Pennsylvania Workers’ Compensation Act.

On the other hand, there are times when a worker who is injured in another State can still proceed under the Pennsylvania workers’ compensation system (Like the example above with the Longshore Act, this is known as “dual jurisdiction,” since there would also likely be jurisdiction in the State in which the injury took place). In this situation, we look at where the injured worker was hired, where the injured worker usually worked (and where the injured worker expected to work), and other factors, to see what options the injured worker has for which workers’ comp system to use.

As with so many areas of the law, the work injury can be a complicated process right from the start. Before a lawyer can even get into the details of the injury, and see if there is a valid workers’ comp case, the lawyer must figure out the best law to use (when there is even a choice).

A torn rotator cuff is generally categorized as either small, medium, large or massive. Initial treatment for a tear usually consists of “conservative” (non-surgical) options, such as physical therapy, medications and/or injections. If these conservative methods do not relieve the problem, surgery may be indicated.

The problem comes with the “massive” rotator cuff tears. These tears used to be called irreparable. The injured worker was left with only two choices – either live with the pain and disability, or have a “debridement procedure” performed (this is a surgical procedure where the area is cleaned out, though the tear is not repaired). In the past, the injured worker remained on workers’ compensation benefits, and remained unable to perform ordinary daily activities of living, let alone work.

These days, though, the injured worker with a massive rotator cuff tear has some better choices. Technology has brought potential real solutions to the irreparable rotator cuff tear. One such method is the Latissimus Dorsi Tendon Transfer procedure, in which a tendon is borrowed from the patient’s arm or shoulder and used to replace the ruined one in the rotator cuff. This procedure is said to require less than two hours of surgery, and only entail a single overnight hospital stay. A study was performed on the effectiveness of this procedure recently, in part authored by local orthopedic surgeons Dr. Gerald Williams, Dr. Shawn Hennigan, Dr. Sami Kella and Dr. Joseph Iannotti.

Perhaps even more encouraging is the arthroscopic Graft Jacket Allograft procedure, which remains in its early stages. It appears one of the biggest advantages to this surgery is that the procedure is “arthroscopic,” where the cuts are only small holes, rather than the large incisions required for open surgery. Here, the patient’s torn rotator cuff is repaired with a human cadaver graft, in a procedure said to last about four hours.

While these new developments in treatment for rotator cuff tears offer hope to patients, including those on Pennsylvania workers’ compensation, it is always wise to consult with your doctor, to determine the best course of treatment for your particular case.

Under Federal Law, known as the Medicare Secondary Payer Act, all parties to workers’ compensation settlements in Pennsylvania must “consider the interests of Medicare” with regard to the settlement. This is regardless of whether the injured worker is entitled to Medicare or not. CMS does not want the burden of future medical treatment for the injured worker to simply be shifted from the workers’ compensation insurance carrier to Medicare.

CMS has certain guidelines for when their approval is needed. When a workers’ compensation settlement is more than $25,000.00 and the injured worker is entitled to Medicare, CMS must actually approve the terms of the settlement. Additionally, if the workers’ compensation settlement is over $250,000.00 (it is extremely rare for a workers’ comp settlement in PA to be more than $250,000.00) and the injured worker has a “reasonable expectation” that he or she will be entitled to Medicare within 30 months of the date of the workers’ compensation settlement, again, CMS must approve the settlement. In particular, CMS will want to approve the amount of the settlement which is allocated to future medical treatment.

Even if the injured worker does not meet either of the two thresholds above requiring CMS approval for the workers’ compensation settlement, the parties still must consider the interests of Medicare in the settlement. Many times, this still requires some amount of the settlement proceeds being allocated to future medical treatment.

When there is a portion of the workers’ compensation settlement being allocated to future medical treatment, whether in a case that CMS has granted its approval or not, a Workers’ Compensation Medicare Set-Aside (WCMSA) is created. This is supposed to be set up as a trust, though the injured worker is usually the trustee. The WCMSA money is to be placed in a separate, interest bearing, account. These funds are then to be used only for medical treatment for the work injury, which would otherwise be payable by Medicare. The theory is that once this WCMSA is exhausted, and the injured worker has properly accounted for every dollar spent, then Medicare will begin to pay for treatment related to the work injury.

Settling a workers’ compensation case in Pennsylvania is a very complicated process, even beyond the obvious issues of how much a case is worth, and the terms of a settlement. There are many pitfalls involved in the process, and consulting with an attorney experienced in PA workers’ comp matters is always a good idea.

An injured worker qualifies for workers’ compensation benefits in Pennsylvania when he or she is disabled from work by an injury which took place in the scope and course of his or her employment. One qualifies for Social Security Disability benefits when one is disabled from all gainful employment, regardless of the cause of the disability. Many times, the workers’ comp claimant in PA qualifies for both, but is not aware they can receive both.

Between the two programs, a workers’ compensation claimant in Pennsylvania can only receive a certain percentage of their pre-injury earnings. Usually this amount will be more than the workers’ comp benefits alone. Plus, getting approved for SSD will lead to getting Medicare benefits, which can be a valuable resource. The Social Security Administration will withhold any SSD benefits a workers’ compensation claimant in Pennsylvania would otherwise be entitled to (the amount of SSD over that percentage of pre-injury earnings). There is no deduction from workers’ comp benefits in PA for SSD (contrary to Social Security Retirement benefits, for which the workers’ compensation insurance carrier gets a credit in Pennsylvania).

As with any potential benefit, a workers’ comp claimant in Pennsylvania should fully investigate whether applying for SSD benefits would be a good choice in their particular situation (in some cases, the injured worker may be better off not applying for SSD). This, as with any decision a workers’ comp claimant makes, should be discussed with an experienced Pennsylvania workers’ compensation lawyer.

Claimant filed a Claim Petition three days after her injury (a fact for which the injured worker was chided by the Court, who, seemingly would prefer the injured worker sit and wait with no assurance her claim would ever be accepted by the workers’ comp insurance carrier). An Answer was filed by the workers’ comp insurance carrier admitting Claimant suffered a head contusion in the work injury.

The Workers’ Compensation Judge eventually found the doctors offered by the workers’ comp insurance carrier more credible and denied the wage loss aspect of the Claim Petition (Under the Pennsylvania Workers’ Compensation Act, no wage loss benefits are payable unless there are more than seven days of disability; here the Workers’ Compensation Judge found only three days of disability).

As to the medical benefits, the Workers’ Compensation Judge found medical benefits were payable until the date the workers’ comp insurance carrier’s medical expert said Claimant was fully recovered from her injury. The Workers’ Compensation Judge found, based on the workers’ comp insurance carrier’s medical expert, that the injury was a concussion (not a contusion). Since the Claimant won, at least in part, the Workers’ Compensation Judge awarded Claimant reimbursement of litigation costs.

Both sides appealed the decision of the Workers’ Compensation Judge. The Workers’ Compensation Appeal Board (WCAB) affirmed the majority of the decision, but reversed the award of litigation costs.

Under the Pennsylvania Workers’ Compensation Act, Section 440(a), litigation costs are to be reimbursed by the workers’ comp insurance carrier when Claimant is successful in the litigation “in whole or in part.”

The Commonwealth Court of PA affirmed the decision of the WCAB. The Court found no appreciable difference between a head contusion and a concussion in this case (an opinion, I doubt, would be shared by anyone who has suffered a concussion). Indeed, since the Court found there would be no medical treatment needed for one that was not done for the other in this case, “Claimant does not assert that the injury description resulted in any financial benefit to her.” I do not recall any requirement in the Pennsylvania Workers’ Compensation Act that medical benefits lead to a “financial benefit” to the injured worker. This seems to be just another example of the battle faced by the injured worker in PA.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

The challenge of the Notification of Modification or Suspension must be filed by the injured worker within 20 days of when the injured worker received the Notification of Modification or Suspension. According to a recent case in the Commonwealth Court of PA, Wawa v. W.C.A.B. (Seltzer), the date the injured worker received the Notification of Modification or Suspension is a finding of fact to be made by the Workers’ Compensation Judge (and will not be disturbed on appeal, if supported by “substantial evidence”).

This is yet another danger to the injured worker, who may be unaware that valuable rights can be lost simply by not taking action. It is very important that the injured worker be fully informed of the potential pitfalls contained within the Pennsylvania Workers’ Compensation Act.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

Previous decisions of the Supreme Court of Pennsylvania, in years’ past, suggested that a Petition to Review the NCP would have to be filed for the Workers’ Compensation Judge to be able to amend the description of injury. On the other hand, many cases have also noted that the form of the pleadings is not fatal in PA workers’ comp, and that a Workers’ Compensation Judge is usually able to decide the case based on the evidence presented, generally without regard to the petitions actually pending.

Creating more strict requirements only makes PA workers’ compensation more dangerous for the unwary. We will keep you posted on this, and other decisions, as they happen.

Prolotherapy seems to involve injecting a substance into the injured area, causing an irritation in the area. This certainly seems an odd step to take (purposely irritating an already injured area), but the idea is that the irritation being caused leads to the area repairing itself. The substance being injected can vary by the type of prolotherapy being done.

As with any potential treatment option, workers’ compensation patients should always discuss the step with their doctor. While it is always good to have options for treatment, some treatment methods may be better than others for any given condition or patient, and your doctor is the best one to guide which treatment would be greatest treatment option.

That is only half the battle, unfortunately. Once the degenerative disc disease has been made symptomatic by the work injury, the symptoms often do not stop. Frequently, the injured worker will try many “conservative” treatment options, such as medications and physical therapy. Failing that, doctors might try various types of injections, including epidural steroid injections. Sadly, though, time and again, the injured worker remains in pain despite these efforts.

Once the pain has continued for longer than six months, and various conservative treatment options have failed to reduce the symptoms, doctors start to talk about surgery as an option. There is no doubt that spinal surgery, whether for the neck or the back, is a last resort. As with any major surgical procedure, there are serious consequences which can result from such an operation. Moreover, there is no guarantee the injured worker will be any better after surgery.

In the past few years, there have been some new options when it comes to cervical or lumbar spine surgery. “Artificial disc replacement” is a procedure which is now available for both the neck and the back. Our spines are comprised of “discs.” One could think of these discs as jelly donuts. When a disc is damaged, the jelly leaks out of the donut, and the donut flattens (putting more strain on the discs above and below the damaged disc). Artificial disc replacement is designed to avoid the strain on other discs, by inserting an artificial disc where the damaged disc was.

The artificial disc used for the lumbar spine, Charite’, was approved for use by the FDA in October, 2004. Then, in July, 2007, the FDA approved Prestige for the cervical spine. As with any medical decision, tremendous thought should go into what action is best for any particular patient. The fact that new options are developing, to relieve the chronic pain faced by the injured worker, is very encouraging.

Though this new procedure was revoked in a later e-mail on May 19, 2008, this is clearly the direction that office is taking. Indeed, the e-mail revoking the new procedure specifically stated that the procedure was being revoked only because “due to technological issues, the electronic submission initiative cannot be implemented as yet.”

Other courts, in recent years, have been moving to electronic submissions, so this is not a surprising development. We will, of course, keep you up to date if this new procedure does go into effect. Also, be aware that you can review the procedures of any participating Workers' Comp Judge at the website of the Pennsylvania Department of Labor & Industry.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

In years past, if an employer in PA failed to carry Pennsylvania workers’ compensation insurance (which is a crime in Pennsylvania), and that employer filed for bankruptcy, the injured worker may have been left out in the cold. Fortunately, as part of Act 147, passed by the Pennsylvania Legislature in 2006, the Uninsured Employers’ Guaranty Fund (UEGF) was created. The UEGF, funded by payments from all workers’ comp insurance companies in PA, steps in when there is a claim against an uninsured employer (regardless of whether that employer is bankrupt). This fund provides a measure of security for the injured worker who, unknown to the worker, is employed by a company who fails to carry the required workers’ comp insurance.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said:

“Searching the Internet and newspaper ads for jobs, without more, does not constitute a job search; it constitutes “surfing” the web and reading the newspaper – it is window shopping. To show that he was engaged in a good-faith effort, a claimant has to show that he applied or sent applications for employment or other indicia that he was actively applying for employment.”

This case proves instructive on how to limit the damaging effects of taking a pension. Remember, too, that aside from this issue (of whether the PA workers’ compensation benefits are suspended due to the change in status), there is also the issue of the workers’ compensation insurance carrier taking a credit against the pension that is being taken. This process is littered with pitfalls which can permanently harm an injured worker’s rights under the Pennsylvania Workers’ Compensation Act. Before making a decision, like whether to take a pension, which could impact your workers’ compensation benefits, it is always a good idea to consult with a lawyer experienced in PA workers’ compensation matters.

Mediation, generally speaking, is a process where an independent person meets with the parties to a dispute and helps the parties reach a resolution to their quarrel. This is a process used in all types of litigation, and even in disputes outside of litigation. Usually, this is a very informal process. The mediator will meet with the parties separate and together, working to try and bring them together on common ground. There is no court reporter present, and things said in mediation are not admissible in the litigation (encouraging the parties to be honest about the strengths and weaknesses of their position).

Mediation has been used in Pennsylvania workers’ compensation matters as long as I can recall. In the past, mediation only happened in PA workers’ comp when the parties so requested. The process was entirely voluntary, and did not occur that often.

Act 147 made mediation mandatory, in every case, unless the Workers’ Compensation Judge felt that mediation would be futile. As a result, we are seeing much more mediation in Pennsylvania workers’ comp than in years past. In turn, the increased mediation seems to have led to workers’ compensation settlements becoming more frequent in PA.

Mandatory mediation is not binding. That means that if a settlement cannot be agreed upon by all parties, then there is no settlement. Usually, there is little to lose by engaging in mediation. If a settlement cannot be reached, nothing is lost other than the time spent by the parties (and even then, some issues in the litigation may get resolved, narrowing the disputes which remain).

As with Act 147 generally, mandatory mediation appears to be a beneficial change to the PA Workers’ Compensation Act for the injured worker. I am proud to have participated in meetings working on this litigation, with the Pennsylvania Trial Lawyers Association (now known as Pennsylvania Association for Justice). As a PA workers’ comp attorney, I salute the hard work of the Pennsylvania Association for Justice in having such fair legislation passed.