Pennsylvania Workers' Compensation Lawyer Blog

In a previous blog entry, I mentioned the April 28, 2008 decision by the Commonwealth Court of Pennsylvania in Diehl v. WCAB, which greatly limited what a workers’ compensation insurance carrier in Pennsylvania can do with an Impairment Rating Evaluation (IRE). This decision was very favorable to the injured worker. Unfortunately, on June 24, 2008, the Commonwealth Court of Pennsylvania issued an order, and granted the workers’ compensation insurance company’s application for reargument, and vacated the prior decision. This means that, for now, the law returns as it had been before the Diehl decision was issued (meaning the workers’ comp insurance company does NOT have to show job availability when trying to have benefits changed to partial based on an IRE).

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.

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Posted In: Case Law Update , Worker Comp Generally , Workers Comp Appeals

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Last month, I wrote a blog entry explaining how every State, including Pennsylvania, had very different laws governing workers’ compensation systems within that State. One point I should clear up is that not every injured worker in Pennsylvania automatically qualifies for the PA workers’ compensation system. Whole occupations, or groups of workers, are subject to workers’ comp systems which vary from the Pennsylvania Workers’ Compensation Act.

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).

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Many injured workers in Pennsylvania are not aware that they can apply for Social Security Disability (SSD), while still receiving workers’ comp benefits in PA. Though the two programs have different standards for what “disabled” means, and the injured worker may not be able to receive full benefits from both programs, there is no need to choose one or the other.

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.

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Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

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.

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Posted In: Case Law Update , Wage Loss Benefits , Worker Comp Generally , Workers Comp Appeals , Workers Compensation Litigation

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A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

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.

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Posted In: Case Law Update , Wage Loss Benefits , Worker Comp Generally , Workers Compensation Litigation

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As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

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.

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On November 9, 2006, the most recent amendment to the Pennsylvania Workers’ Compensation Act, known as Act 147 of 2006, was signed into law. Several of the provisions of Act 147 were designed to quicken the litigation process in PA workers’ comp. One of those provisions created what is known as “Mandatory Mediation.”

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.

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Posted In: PA Workers Compensation Bureau Update , Worker Comp Generally , Workers Compensation Litigation , Workers Compensation Settlements

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An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

While the testimony of the injured worker is important in determining whether there is a loss of use “for all practical intents and purposes,” according to a recent case decided by the Commonwealth Court of Pennsylvania, medical evidence must also be presented in support of the injured worker. In Jacobi v. W.C.A.B., decided by the Court on February 12, 2008, the claimant testified about how he is limited in using his right middle finger (which had been caught in a freight door and subject to three surgeries, the last of which involved the placement of a screw), but the claimant did not present any medical evidence which stated that the use of the finger has been lost “for all practical intents and purposes.” The Court reversed the decision of the Workers’ Compensation Judge, who had awarded benefits to the claimant.

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Posted In: Case Law Update , Worker Comp Generally , Workers Compensation Litigation

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Even when an injured worker receives a decision from the Workers’ Compensation Judge (WCJ) in Pennsylvania, the case is not over. Either side may appeal the decision to the next level, the Workers’ Compensation Appeal Board (WCAB). Such an appeal must be filed within 20 days of the decision of the WCJ.

An appeal must allege that the Workers’ Compensation Judge committed an “error of law” or that the decision issued by the Judge is not a “reasoned decision.” Simply disagreeing with the decision is not a proper basis of appeal. An appeal cannot challenge who the Judge believed (called “determination of credibility”), since this is solely at the discretion of the Judge.

The WCAB schedules oral argument at various locations throughout the year. At the time oral argument is made, the WCAB also expects a brief to be filed by the appealing party (though a party can request additional time to submit a brief).

Once the decision of the WCAB is made, the losing party can then appeal to the Commonwealth Court of Pennsylvania. This appeal must be filed within 30 days of the WCAB decision. Oral argument is rarely done at this level and the matter is usually decided just on the written arguments filed by the parties.

The decision of the Commonwealth Court of Pennsylvania can be appealed to the Supreme Court of PA, though the Supreme Court only hears cases it chooses. The appealing party files a petition for “Allocatur” with the Supreme Court of PA, which the Court then grants or denies. If the Court grants allocatur, it accepts the appeal and will decide the issue. If the Court denies allocatur, the decision of the Commonwealth Court of Pennsylvania becomes final.

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Posted In: Worker Comp Generally , Workers Comp Appeals , Workers Compensation Litigation

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Recently, Hazleton, Pennsylvania, was in the news for its efforts to crack down on undocumented, illegal aliens. We also are hearing the Presidential candidates speak about their views on how to handle these people. It might make one wonder how an undocumented, illegal worker is treated under the Pennsylvania Workers’ Compensation Act.
The short answer is that an undocumented, illegal worker is entitled to workers’ compensation benefits in PA. The Supreme Court of Pennsylvania decided The Reinforced Earth Company v. W.C.A.B. (Astudillo) in 2002, answering this question with certainty.

Since that time, however, the Courts in PA have not been so kind to undocumented workers. While access to medical treatment for the work injury has continued undisturbed, the illegal worker’s right to wage loss (also known as “indemnity”) benefits has been reduced. As long as the undocumented worker is totally disabled, he or she is entitled to both medical and indemnity benefits. On the other hand, once the illegal alien worker is capable of ANY type of employment, the workers’ compensation insurance carrier can file a petition before a Workers’ Compensation Judge to have the indemnity benefits stopped (again, the medical benefits for the work injury would still continue).

In a typical workers’ comp case in Pennsylvania, if the workers’ compensation insurance carrier wants to reduce or stop (“modify” or “suspend”) indemnity benefits, the workers’ compensation insurance carrier must prove there is work available within the physical restrictions of the injured worker. When the injured worker is an undocumented alien, however, the workers’ compensation insurance carrier does not have to show that any work is available. This was made clear by the Commonwealth Court of Pennsylvania in Morris Painting, Inc. v. WCAB (Piotrowski), decided in 2003.

Indeed, even an illegal alien who has returned to work, at a loss in earnings, is not entitled to any indemnity benefits. The Commonwealth Court of PA decided Jose Mora v. WCAB (DDP Contracting Co., Inc) in 2004. In that decision, the Court held that even actual earnings of an illegal alien cannot be the basis for partial disability benefits because the injured worker in that case is not legally able to work in the United States.

As with the likely result on the mounting illegal alien issue at the National level, a compromise has developed with regard to PA workers’ comp benefits available to an injured undocumented illegal worker.

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Pennsylvania workers’ compensation law is like no other State. I mean no disrespect by that statement; truly, PA workers comp is unique, like in every other State. Unlike Federal laws which may be of concern to an injured worker, such as Social Security Disability (SSD) or the Americans with Disabilities Act (ADA), which apply to any injured worker in the United States, each State has its own set of workers’ compensation laws.

The difference between workers’ comp laws from State to State is tremendous. For instance, in Pennsylvania, once an injured worker is receiving workers’ compensation benefits, the workers’ compensation insurance carrier usually must get the permission of a Workers’ Compensation Judge to stop the benefits. In some other States, the workers’ compensation insurance company can simply stop paying benefits on its own. Also, in PA, the Employer, or workers’ compensation insurance company, can only control treatment, at most, for the first 90 days. After that time, if not before, an injured worker in Pennsylvania can select his or her own doctor.

On the down side, in PA, once an injured worker returns to work with no loss in wages, there is usually no more money due the injured worker. There is no compensation for the injured worker who can no longer take part in pleasurable activities (as long as the injured worker can do his or her job, according to PA law, no compensation is payable). In some other States, an injured worker who returns to work can still get money for his “percentage of impairment.”

So, while you are looking at the information out there, including on this Blog and on the Brilliant & Neiman LLC website, please keep in mind that every State has different workers’ comp laws. If your case is not a Pennsylvania workers’ compensation case, the information here may or may not apply to you. We would strongly recommend you talk to an attorney licensed in the State in which you were injured. Follow this link for helpful information regarding workers' compensation laws in other States.

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There are many things in life that are not fair. At least one of those things rears its ugly head in Pennsylvania workers’ comp. Unless an employee has a contract, or is a member of a union, there is very little protection for the employee from being fired from his or her job while out of work on workers’ compensation in PA. While an employee cannot legally be fired in Pennsylvania for pursuing a workers’ compensation claim [Shick v. Shirey, 716 A.2d 1231 (Pa. 1998)], it is often difficult to prove the reason for the termination is the pursuit of a workers’ comp case (as opposed to just the absenteeism of the injured worker). Please note, also, that workers’ compensation benefits in PA continue regardless of whether a totally disabled injured worker has been terminated from his or her job or not.

Federal laws do offer some protections for the injured worker caught in this position. The Family and Medical Leave Act (FMLA) can provide some job protection for a period of time. If an injured worker is terminated from his or her job, COBRA may allow the private health insurance coverage to continue, with the injured worker able to assume the payments at the group rate used by his or her employer.

Unfortunately, though, there is often very little that we, as Pennsylvania workers’ compensation attorneys, can do to protect our clients from being terminated from their jobs while they are disabled from work and receiving workers’ compensation benefits.

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