May 1, 2013

Brilliant & Neiman LLC Involved in Mediation Working Group with Bureau

Mediation is a growing area in Pennsylvania workers’ comp. As we have previously discussed, a mediation is when an independent party, in this context usually a Workers’ Compensation Judge [WCJ] (other than the assigned WCJ), meets with the parties in an informal setting in an effort to resolve the differences between the parties. The ultimate goal is to achieve a settlement to the case (usually done by “Compromise & Release Agreement”).

Since we at Brilliant & Neiman LLC work with injured workers every day, having constant contact with the Pennsylvania workers’ compensation system, we are well-versed in most aspects of how the system functions from day to day. We are proud that our knowledge and experience will be used by the PA Bureau of Workers’ Compensation, as the Bureau adjusts the system to change with the times.

Since the start of “Mandatory Mediation,” added to the Pennsylvania Workers’ Compensation Act in the 1996 amendments to the Act, the system has been relatively stagnant. Recently, the Bureau has sought a small working group to evaluate the mediation system and see what, if any, changes could be beneficial to the mediation process.

In the near future, a small group of attorneys will meet with Elizabeth Crum, the Bureau’s Director of Adjudication, The Honorable David Cicola (Judge Manager for the Western District), The Honorable Joseph Hagan (Judge Manager for the Southeastern District [Philadelphia and Upper Darby (Delaware and Chester Counties)]) and The Honorable Karen Wertheimer (Judge Manager for the Eastern District [Allentown (Lehigh County), Bristol (Bucks County), Lancaster (Lancaster County), Malvern (Montgomery County), and Reading (Berks County)]).

Both attorneys of Brilliant & Neiman LLC, Dina Brilliant and Glenn Neiman, will be involved in this meeting. The intention of the meeting will be to have an open discussion about the mediation process, where thoughts and concerns of the attorneys can be voiced and addressed, hopefully leading to the entire mediation system being improved.

September 19, 2012

PA Workers Comp Settlement Cannot be Reopened For Medical Bill

Settling a workers’ compensation case in PA, generally referred to as a “Compromise & Release,” is a big decision. There are many factors which go into not only the value of the case, but whether settlement is even advisable. The advice of an attorney who is experienced with PA workers’ comp cases can be very valuable. This goes for the settlement itself, as well as the documents carrying out the settlement.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Hoang v. Workers’ Compensation Appeal Board (Howmet Aluminum Casting, Inc.). In this case, the injured worker settled his case (by executing a Compromise & Release Agreement). Sometime after the settlement, the injured worker learned that his treating doctor had an outstanding bill for over $37,000.00.

An appeal of the Compromise & Release Agreement could not be filed (since one only has 20 days to file such an appeal), so the injured worker filed Review and Penalty Petitions, seeking payment of this medical bill. The Workers’ Compensation Judge (WCJ) noted that the Compromise & Release Agreement failed to state that the workers’ compensation insurance carrier would be responsible for any medical bills. Since this is a somewhat common statement in a PA workers’ comp settlement, the WCJ called this “telling.” The injured worker argued there was a “mutual mistake of fact,” so the settlement should be reopened. Ultimately, the WCJ denied the Petitions, finding that the workers’ compensation insurance carrier did not violate the Pennsylvania Workers’ Compensation Act because the Compromise & Release Agreement did not require payment of this bill. No mutual mistake of fact was seen by the WCJ. The decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The injured worker then filed an appeal to the Commonwealth Court of Pennsylvania, but was no more successful. The denial by the WCJ was affirmed. Essentially, the Court found that the injured worker failed to prove that there was a “mutual mistake,” nor did the injured worker show that there was even a unilateral mistake on his part, of which the Defendant was aware. No evidence showed, nor did the Compromise & Release Agreement state, that the injured worker expected any medical bills (past or future) to be paid as part of the settlement.

January 18, 2012

Workers’ Compensation Specialty Coming to Pennsylvania

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.

September 23, 2010

Compromise & Release Settlement in PA Workers’ Comp Not Enforceable Until Granted by Workers’ Compensation Judge

When an injured worker in PA wants to settle his or her Pennsylvania workers’ compensation claim in exchange for a lump sum of money, the process generally used is the “Compromise & Release Agreement.” This type of workers’ comp settlement is voluntary between the parties. A Compromise & Release can only take place when agreed to by both the injured worker and the PA workers’ comp insurance carrier.

As we have noted in a previous blog entry, a Compromise & Release Agreement is not final until it is actually approved by a Workers’ Compensation Judge (WCJ). The law requires that a WCJ determine whether the injured worker understands and accepts the terms and conditions of the Compromise & Release Agreement. Until the approval of the WCJ is obtained, either party may back out of the Agreement.

The limits of this theory were recently tested before the Commonwealth Court of Pennsylvania in the case of McKenna v. Workers' Compensation Appeal Board (SSM Industries, Inc. and Liberty Mutual Insurance Co.). In this case, the parties agreed to settlement terms at a mediation (a settlement conference with a WCJ, usually not the WCJ hearing the case). A Compromise & Release Agreement was signed by both parties.

At the hearing before the WCJ to approve the Compromise & Release Agreement, however, the employer demanded that the injured worker agree never to seek re-employment with employer. The injured worker refused to agree to this new term, and the Compromise & Release Agreement was not approved (since it was no longer agreed to by the parties).

The injured worker then filed a Petition for Penalties, alleging the employer violated the Pennsylvania Workers’ Compensation Act by failing to proceed with a Compromise & Release Agreement once the Agreement was signed and completed. The WCJ granted the Petition for Penalties, but the Workers’ Compensation Appeal Board (WCAB) reversed.

On appeal, Commonwealth Court of PA agreed with the WCAB that the WCJ erred by granting the Petition for Penalties. The Court found that employer did not violate the Pennsylvania Workers’ Compensation Act, since a Compromise & Release Agreement is not final until it is approved by a WCJ, a step missing from the facts in this case. The Court confirmed that until a WCJ approves a Compromise & Release Agreement, either party may withdraw from the agreement without penalty.

January 13, 2010

Workers’ Compensation Settlement Tough Call in PA

From our blog, and our presence in the community, we receive many questions regarding workers’ compensation in Pennsylvania. Just recently, someone sent us an e-mail asking, “Is it a good idea to settle a case?”

Like many aspects of law, there is no easy answer to this question. Settling a workers’ compensation case in PA is a complicated issue. Frequently, there are good reasons to settle a case, and good reasons to wait. Only a discussion of the injured worker’s exact situation provides an answer in each person’s case. Facts in every case are different, as are the injured workers involved.

Even once an injured worker decides that settling the workers’ comp case is the way to go, questions remain. How much is the case worth? Will the medical treatment stay open, even for a short period of time? Will a resignation or release be necessary? Is a Workers’ Compensation Medicare Set-Aside (WCMSA) needed? These and other questions must be addressed as the parties negotiate a settlement.

On our website, a page is dedicated to just discussing the aspects of workers’ compensation settlements in PA. Settlements are also mentioned on our FAQ web page.

July 11, 2008

Workers’ Comp Insurer in PA Has Absolute Right to Subrogation

While, in Pennsylvania, an injured worker generally cannot sue his or her employer for causing the injury, the injured worker is free to sue a third party. For example, the injured worker could file an action against a manufacturer of a product which caused the injury, or another driver who caused an accident. When an injured worker receives a settlement or a verdict leading to the recovery of money from a third party, Section 319 of the Pennsylvania Workers’ Compensation Act says the workers’ compensation insurance carrier is entitled to be repaid all or part of the benefits the carrier paid to the injured worker.

Though the goals of Section 319 are somewhat logical – to keep a party from receiving a double benefit, the result of this law is often troublesome. In effect, between the repayment made from the recovery, and the credit the workers’ compensation insurance carrier enjoys against future wage and medical benefits, the injured worker often winds up netting absolutely nothing from the third party case. Considering that the Pennsylvania Workers’ Compensation Act does not provide for any compensation for pain and suffering, it seems terribly unjust that the injured worker can recover money in a third party case, intended to compensate for pain and suffering, and yet end up netting nothing.

Recently, the Commonwealth Court of Pennsylvania decided the case of Gorman v. WCAB. Here, the claimant settled his workers’ comp case. At that time, he was not pursuing a third party suit. In the Compromise & Release Agreement (the document used when a workers’ compensation case is settled in PA), the parties stated that there was no lien for any third party case. After the workers’ compensation settlement was done, the claimant successfully pursued a third party case and recovered money.

The workers’ compensation insurance carrier filed a petition with the Pennsylvania Bureau of Workers’ Compensation to recover some of the money claimant received in the third party case. The claimant opposed this recovery, because, in the Compromise & Release Agreement, the workers’ compensation insurance carrier gave up their rights to any money.

Finding that the workers’ compensation insurance carrier was not aware of the third party case at the time the workers’ comp case was settled, the Court held that the right to recovery could not have been given up. The Court did say that the right of recovery can be reduced, or waived entirely, by a workers’ compensation insurance carrier, but such a reduction or waiver must be made with knowledge of what is being given up. The right of the workers’ compensation insurance carrier to subrogation is absolute and cannot be lost without a voluntary decision to do so.

June 15, 2008

Workers’ Compensation Settlements in Pennsylvania May Require Medicare Approval

There are many factors which have to be considered when an injured worker wants to settle his or her workers’ comp case in PA. Even aside from the primary things people think about, such as how much money will be involved, one has to determine if approval from the Centers for Medicare Services (CMS) will be required.

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.

May 19, 2008

Mandatory Mediation in PA Workers Compensation

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.

April 24, 2008

Workers Compensation Settlement in Pennsylvania Not Final Until Approved by a Workers' Compensation Judge

An injured worker in PA can settle both the wage loss and medical parts of his or her case by entering into a Compromise & Release Agreement. This is something which can only be done when both the injured worker and the workers' comp insurance company agree to settle the case. Neither side can force the other to settle a case. Once the parties agree to the terms of a settlement, a Compromise & Release Agreement must be prepared, detailing the terms of the settlement. Then, before the settlement is final, a hearing must be held before a Workers’ Compensation Judge, who must be satisfied that the injured worker understands the terms and conditions of the settlement.

Recently, the Commonwealth Court of Pennsylvania decided that a Compromise & Release Agreement could not be approved because the injured worker had died before a hearing to approve the settlement could be accomplished. This case, Miller v. W.C.A.B. (Electrolux), was decided on January 4, 2008.

Understand that settling a workers’ compensation case in Pennsylvania is a very complicated process. It is very important that you have an experienced workers’ compensation lawyer working for you, to make sure that you receive the maximum recovery possible, and that your rights be properly protected.