Previously, we have warned of the pending legislation that will restrict the access of injured workers across the State of Pennsylvania to get medications they need.  Now, thanks to the House passing Senate Bill 936, the legislation heads to the Governor.  It is not bad enough that innocent people suffered injuries at work, now they have to deal with the reality that they will be treated different than patients who are not in the Pennsylvania workers’ compensation system.

As noted in an article on Pennlive.com, this legislation “was drawn up in response to reports in the Philadelphia Inquirer and Daily News about doctors and law firms specializing in worker’s compensation that were operating their own pharmacies.”  Perhaps someone would be kind enough to explain why the legislation did not simply prohibit the ownership of pharmacies by these groups?  Instead, this legislation does not even deal with this issue.  At all.  Rather, the legislation makes medications (all medications, not just the opioids that caused all of the supposed angst) more difficult for an injured worker in PA to obtain.

And, again we ask, is this fair?  Is this how our elected representatives protect us?  By making sure that we have difficulty getting medications if we are unlucky enough to be injured at work?  We urge all injured workers, those who care about injured workers and those who care about fairness and justice, to reach out to their legislators, and reach out to the Governor’s office, and let everyone know this will not be done without a fight!

On our blog, as you probably noticed, we like to share court opinions which are of interest to the injured worker in PA.  Typically, of course, these opinions deal with interpretations of the Pennsylvania Workers’ Compensation Act (Act).  Also, typically, these are opinions rendered by the Commonwealth Court of Pennsylvania.  Why that court?  And are all decisions of Commonwealth Court the same?  Glad you asked!

Once a Workers’ Compensation Judge (WCJ) renders a decision, the next level of appellate review is the Workers’ Compensation Appeal Board (WCAB).  This is a process we have discussed on this blog in the past.  Decisions rendered by the WCAB can be cited to WCJs, by attorneys, in future cases, but the WCAB opinions are only “persuasive” not “binding.”  This means that a WCJ need not follow a decision of the WCAB.  For this reason, we rarely devote a blog posting to a WCAB decision.

After the WCAB issues a decision, an appeal can be taken to the Commonwealth Court of Pennsylvania.  Like with the WCAB, an appeal to Commonwealth Court is a right, so the Commonwealth Court cannot decline an appeal.  The Commonwealth Court will then make a decision.  This is either “reported” or “unreported.”  These terms have their usual meaning – a “reported” decision is published in a law reporter; an “unpublished” one may not.  More importantly, as a practical matter, a “reported” decision can be cited in future cases (and is binding on both the WCJ and the WCAB).  While an “unreported” case can be cited in future cases, like a WCAB opinion, it is not binding on a WCJ (only persuasive).  Though they are far more plentiful, “unpublished” decisions are not typically made blog posts by us.  They simply are not as significant, since they need not be followed.  Note that an “unpublished” on “unreported” decision, upon motion of a party, could be changed to “published” or “reported.”

Previously on this blog, we have discussed the rights held by injured workers in Pennsylvania to choose their own medical providers.  This is only one area of confusion in the wacky world of medical benefits under the Pennsylvania Workers’ Compensation Act (Act).

A common complaint we get from an injured worker is that, “They are denying my medical treatment.”  In this situation, “they” is almost always the workers’ compensation insurance carrier.  And the word “denying” may or may not be accurate.

Under the Act, the workers’ comp insurance carrier has 30 days to either pay a medical bill or institute Utilization Review (the tool used to challenge whether medical treatment is reasonable or necessary), provided the bill is properly submitted by the medical provider (including supporting documentation).  As you can see, this means the workers’ compensation insurance company need not give an opinion on how they view treatment until it is actually performed.

We had heard on the grapevine that The Honorable Joseph Hagan, the current Judge Manager for the Southeastern District for the Pennsylvania Bureau of Workers’ Compensation, would be stepping down in the near future.  We have now heard confirmation of this change from the Bureau.  We are pleased to relate that Judge Hagan will, indeed, be retiring in the middle of April.  While we will miss practicing before Judge Hagan, we wish him health and happiness in his retirement.

Meanwhile, since the cases keep coming, no matter who leaves, the Judge Manager position must be filled.  We are also pleased to let everyone know that the new Judge Manager for the Southeastern District will be The Honorable Holly San Angelo.  From practicing in front of Judge San Angelo for several years, we are sure that she will do a terrific job in this role.  This will be effective as of March 16, 2018.  For reference, the Southeastern District includes the workers’ compensation hearing offices in Philadelphia and Upper Darby.

Whether an employee hurt during the commute to work is covered by the Pennsylvania Workers’ Compensation Act (Act) is always a difficult analysis, and one we often encounter here.  Each case depends on the specific facts involved. While most employees (those who are “stationary” employees) are not covered for the commute to work, one reaches a point in the commute when the employee is no longer still commuting, but has, for the purposes of the law, arrived at work.  “Parking lot” cases are frequently an aspect of this situation.

Recently, the Commonwealth Court of Pennsylvania made a decision in the matter of  US Airways, Inc. v. Workers’ Compensation Appeal Board (Bockelman).  This was one of those “parking lot” cases.  Here, the employee (Claimant) labored for US Airways as a Philadelphia-based flight attendant.  Employees were not required to drive to work, but, if they did so, there were two designated employee parking lots.  These lots were owned, operated, and maintained by the City of Philadelphia/Division of Aviation (DOA), for the use of all airport employees, not just those of US Airways.  An employee identification badge was required to park in these lots.  A shuttle bus, operated by DOA (and not US Airways) then took the employee from the lots to the airport terminal.  Claimant hurt her left foot when she slipped while riding this shuttle bus after parking her car.

As could be expected, the Employer denied that Claimant was entitled to workers’ compensation benefits, since her injury was sustained while on the commute to work.   A Claim Petition was filed.  After considering the evidence, the Workers’ Compensation Judge (WCJ) found that Claimant was within the scope and course of her employment at the time of the injury, and granted the Claim Petition.  This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

We have often discussed the importance of winning a case before the Workers’ Compensation Judge (WCJ).  This is because the WCJ is the “ultimate finder of fact.”  Determinations of credibility made by a WCJ cannot be challenged on appeal.  Indeed, appellate courts can only change the decision of a WCJ if there has been an “error of law.”  Given this great power held by the WCJ, it is critical that an injured worker’s case be litigated as well as possible before the WCJ.

We say this to point out that it really does matter what PA workers’ comp attorney an injured worker selects.  Certainly, one can simply search on the internet and find many attorneys from which to choose.  But, therein lies the difficulty – how should an injured worker in Pennsylvania choose his or her workers’ compensation attorney?

To try to bring some common sense to this situation, we have added a page to our website, intended to help an injured worker make this important selection.  Obviously, we would like an injured worker to call us, but whether you do or not, these are some things an injured worker can consider when making this important decision.

We have lamented the severe and draconian limits on the ability to challenge Utilization Reviews (URs) on this blog before.  We have seen a case where a healthcare provider sent a treatment summary and talked with the reviewer, and a case where records were actually submitted by the provider, but then returned by the reviewer due to a missing verification, both of which were deemed unreachable by appeal (finding that the Workers Compensation Judge (WCJ) lacked jurisdiction due to the failure to supply records).

Considering that UR is the process to limit medical treatment to an injured worker, and that the Supreme Court of Pennsylvania just told us, in Parker v. Workers’ Compensation Appeal Board (County of Allegheny), “we observe that the Workers’ Compensation Act is to be liberally construed in favor of workers in order to effectuate its remedial purpose,” these cases are hard to rationalize.  And, with this latest contribution from the Commonwealth Court of Pennsylvania, even more disappointing.

As noted above, the case law, and regulations, have told us that when a healthcare provider fails to provide records, no report is to be prepared by the Utilization Reviewer, and no challenge can be made from the Utilization Review to a Workers’ Compensation Judge (WCJ).  In fact, the Utilization Review Determination Face Sheet has a specific box to be checked for when no Determination can be issued due to the failure to supply records.

Pennsylvania’s legislators try their best to represent their constituents; I believe this is true the vast majority of times.  But, there are certainly times when the results of their actions are very difficult to reconcile with the best interests of those they have sworn to protect.

Currently pending in the PA legislature is House Bill 18/Senate Bill 936.  If passed, this legislation would completely change how an injured worker in Pennsylvania can receive medications.  A “drug formulary” would be set up.  This means that no longer would a patient be treated based on the individual needs of the patient, and the individual judgement of his or her doctor.  Nope.  Instead, decisions would be based on “evidence-based medicine.”  That means that what medications would generally be prescribed for a given condition, for the period generally prescribed, would be all that an injured worker in PA could receive.

Therefore, the individual judgment of the doctor is totally irrelevant.  The needs of the patient?  Not a factor.  This is an absurd system, since medicine is not an exact science.  Indeed, any physician will openly admit that not every patient will react to every condition in the same way.  Some heal faster than others.  Not every patient has exactly the same symptoms or limitations, even from the same condition.

Several years ago, we were excited to tell everyone about the Supreme Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap).  It was this case that made clear workers’ compensation insurance carriers in PA could not simply use a classified “help wanted” ad to reduce every injured worker’s benefits.

If a workers’ compensation insurance carrier in Pennsylvania wants to reduce the benefits of an injured worker, said the Court, the jobs shown must not only be open at the time they are found, the potential jobs in a Labor Market Survey (LMS) or Earning Power Assessment (EPA) should “remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.”  The reasoning behind this, of course, is that an LMS/EPA is not just a tool to cut the benefits of injured workers; it should be a device to assist an injured worker back to gainful employment.

The Commonwealth Court of Pennsylvania recently had to address exactly what a workers’ compensation insurance carrier needs to prove in this regard.  In Smith v. Workers’ Compensation Appeal Board (Supervalu Holdings PA, LLC), the injured worker (Claimant) hurt his neck and back.  At the time he was injured, he was earning an “Average Weekly Wage” (AWW; the calculation we do under the PA Workers’ Compensation Act to see the amount of benefits due to the injured worker) of $992.50.  The injury was accepted by the insurance carrier as a cervical strain and sprain (making eventual fusion surgery required due to the work injury a curious fit to that modest diagnosis).

Among the benefits available under the Pennsylvania Workers’ Compensation Act (Act), are “fatal claim” benefits.  Since these are only relevant for work accidents which involve the death of a worker, these are not things we like to often see.  Unfortunately, sometimes these things do happen, and they are cases which need attention.

In addition to modest “burial expenses,” fatal claim benefits also include benefits for any surviving minor children, and, potentially, a spouse (among other categories of possible recipients beyond this topic).  We say “potentially” since benefits to a spouse are not automatic.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Grimm v. Workers’ Compensation Appeal Board (Federal Express Corporation).  Here, the worker who died (Decedent) was employed by Federal Express.  She suffered a fatal heart attack while delivering packages in her normal course of work.

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