Pennsylvania Workers' Compensation Lawyer Blog

When an aggrieved party wants to appeal a decision of a Workers’ Compensation Judge in PA, the first step is to the Pennsylvania Workers’ Compensation Appeal Board (WCAB). Until recently, the WCAB was comprised of a total of 15 commissioners, who would travel throughout the State of Pennsylvania, holding oral arguments in Philadelphia, Pittsburgh, Harrisburg, Scranton, Johnstown and Erie.

Unfortunately, due to budget difficulties faced by PA, the total of 15 commissioners on the WCAB has been drastically reduced. Right now, only five commissioners remain. Apparently, there will be another three commissioners named, when they are approved by the PA Senate.

This reduction in staffing is almost certain to have a negative effect on the speed with which WCAB decisions are issued. While we would love to provide a link for more information, there has been no official word on this development from the PA Bureau of Workers’ Compensation (other than to change the listed commissioners to the current total of five).

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

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As you may recall, in a recent blog entry, we mentioned the case of PGW v. Workers’ Compensation Appeal Board (Amodei). This was the case where the Commonwealth Court of Pennsylvania stated, unequivocally, that credit against pension benefits in PA workers’ comp is to be done on the net amount of the benefit, rather than the gross.

It has now come to our attention that the workers’ compensation insurance carrier in this case has filed a Petition for Allocatur with the Supreme Court of Pennsylvania, asking the State‘s highest Court to accept an appeal in this matter.

As always, we will keep everyone posted on developments in this, and any other, PA workers’ comp matter. We also want to remind folks that we are happy to answer questions regarding any Pennsylvania workers’ compensation issues. You can contact us by telephone or e-mail, through our firm website.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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As a Claimant’s lawyer, practicing exclusively in PA workers’ comp, I was thrilled when the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board (WCAB) in 2007. The Court in Lewis limited a PA workers’ comp insurance company’s ability to continually file petitions to terminate a claimant’s workers’ comp benefits. Specifically, the Court held that a workers’ compensation insurance carrier in PA had to prove there was an actual change in condition from the previous adjudication of disability (again, for this case to be important, the injured worker had to have previously defended a Termination Petition).

There was some concern, however, with how the Commonwealth Court of Pennsylvania would interpret the Lewis decision. As we posted in a previous blog entry, the Commonwealth Court initially did properly follow Lewis. Last month, the Commonwealth Court of Pennsylvania set claimant’s workers’ comp attorneys’ minds at ease, when they issued a decision in Delaware County v. Workers’ Compensation Appeal Board. Here, like in Lewis, the workers’ comp insurance company lost a Termination Petition, then filed another Termination Petition. Finding the workers’ compensation insurance carrier’s doctor credible when he testified the injured worker had fully recovered from the work-related injury, the Workers’ Compensation Judge (WCJ) granted the Termination Petition.

On appeal, the Commonwealth Court of PA, vacated the termination and remanded to the WCJ (sent the case back to the WCJ for additional findings). The Court found that the WCJ had granted the Termination Petition in error, because it was not enough to simply find the workers’ compensation insurance carrier’s doctor was credible when he testified that the injured worker had fully recovered from her work injury. Instead, the Court said the WCJ must first decide whether the workers’ comp insurance company proved that the claimant’s condition had changed from the time of the first Termination Petition to the time of the second. Only after that finding is made can the WCJ decide whether the workers’ compensation insurer proved the injured worker had fully recovered.

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Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

On September 26, 2008, the Commonwealth Court of Pennsylvania decided Hansen v. Workers’ Compensation Appeal Board, in which unreasonable contest attorney fees were denied. In this case, at the time the decision was made to deny the claim, the workers’ comp insurance carrier had five progress notes from the injured worker’s doctor. One of these notes made mention of the injured worker’s occupation, in discussing her carpal tunnel syndrome. None of the notes specifically stated the carpal tunnel was work-related. The workers’ comp insurance carrier denied the claim. The WCJ granted the claim, but denied unreasonable contest attorney fees. The injured worker appealed the denial of attorney fees.

On appeal to the Commonwealth Court, the decision of the WCJ, denying the unreasonable contest attorney fees was affirmed. The Court reasoned that the workers’ comp insurance carrier had a factual basis to deny the claim since the progress notes were vague, and the injured worker had performed similar work for other employers in the past. The Court apparently had no problem with the fact that the workers’ comp insurance carrier did not request the injured worker attend an Independent Medical Examination (IME) until after a lawyer was retained and litigation was begun.

To us, as lawyers who regularly practice in the area of PA workers’ comp, the Court has now switched the burden to the injured worker to show clear evidence of a work injury to the workers’ comp insurance carrier. Previously, based on the actual language of the Pennsylvania Workers’ Compensation Act, we believed the workers’ comp insurance carrier had a duty to investigate an injury once report of the injury had been received (since this is what the Act specifically states in Section 406.1). It now appears the workers’ compensation insurance carrier has much less of a duty to investigate report of a work injury than is written in the Act.

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

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One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

One of the arguments made by the workers’ comp insurance company was that Ms. Grahl’s doctor was not capable of testifying, because he did not see her until after the Termination Petition was granted by the WCJ (so he could not have known her condition at that time). The Court rejected this argument, since the doctor accepted and assumed that claimant was fully recovered when so found by the WCJ.

It is also important to note that this difficult burden flies both ways, as the Court also observed. When a workers’ comp insurance carrier loses a Termination Petition, the workers’ comp insurance company must prove a change in condition to win a later Termination petition. For more on this burden on the workers’ comp insurance carrier, see Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.)

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

The Commonwealth Court of Pennsylvania then reversed the WCAB, reinstating the original decision of the WCJ – PA workers’ compensation benefits could not start before December 17, 2003. The Court said that the connection between the injury and the disability was not obvious (and this would certainly vary from case to case, depending on the circumstances in any particular case), and that, therefore, competent medical evidence was required. The only medical evidence in the case was the deposition of claimant’s medical expert, who did not see claimant until she had already been out of work for over a year.

This case highlights the importance of having an attorney who is familiar with all the quirks and nuances of the Pennsylvania Workers’ Compensation Act. This set of laws is quite tricky for any attorney who does not practice in the area of PA workers’ comp on a frequent basis. This is exactly the reason that we at Brilliant & Neiman LLC limit our practice to only handling Pennsylvania workers’ compensation matters.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

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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.

Posted by Glenn Neiman | Permalink | Email This Post

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

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In a very disturbing decision by the Commonwealth Court of Pennsylvania, in Watson v. W.C.A.B. (Special People in Northeast), reported by the Court on May 30, 2008, the injured worker was denied reimbursement of litigation costs, even though the injured worker was successful in part of her Claim Petition.

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.

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Posted In: Workers Comp Appeals , Workers Compensation Litigation

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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.

Posted by Glenn Neiman | Permalink | Email This Post

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

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In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

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.

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Posted In: Case Law Update , Workers Comp Appeals , 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.

Posted by Glenn Neiman | Permalink | Email This Post

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

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