As per the Governor's shut down we are working remotely, however rest assured that we are still working to protect your rights! Please email us at dbrilliant@bnlegal.com for Dina Brilliant and gneiman@bnlegal.com for Glenn Neiman or call us at (215) 638-7500 and leave a message as we are checking our messages.

A new Frequently Asked Question has been, "I have the Coronavirus, can I get workers' compensation benefits?" The answer is that, yes, you may be entitled to workers compensation benefits depending on the facts. This can be whether you have contracted COVID-19 through work, or whether you have lost a modified duty job through an employer closing or layoff. Email or call us to discuss the specifics of your case in regard to the Coronavirus or any other work injury.

Back in July, 2019, we blogged, unhappily, about the Commonwealth Court of Pennsylvania decision in Peters v. Workers’ Compensation Appeal Board (Cintas Corporation).  This decision found a traveling employee to not be in the scope and course of his employment when he was injured in a motor vehicle accident after leaving a work-sponsored event.  Today, it is our pleasure to report that the Supreme Court of Pennsylvania has issued a decision vacating the decision of Commonwealth Court.  Essentially, the Supreme Court agreed (as did we) with the two dissenting judges on the Commonwealth Court.

Just to give a quick recap, the injured worker (“Claimant”) was a salesman, who went to various sites in his day.  There was no dispute that he was a “travelling” employee for the purposes of the PA Workers’ Compensation Act (Critical, since commuting to work is not generally covered with a stationary employee, absent some other factor, such as “a special mission”).

One day, after completing his work, Claimant drove to a bar, where his employer was sponsoring an event, typical of an after-sales blitz.  The employer paid for the food and drink.  To get to this bar, Claimant had to actually pass the exit for his home.  After the event, Claimant was injured in a car accident.

One frequently litigated part of PA workers’ compensation law is whether an injured worker is within the “scope and course” of his or her employment at the time of the injury.  Often, this question is dealing with a situation where an employee is injured just before or after his or her work day.  Since these cases are very limited by the exact facts, we like to see how the courts address each and every instance.  Recently, the Commonwealth Court of Pennsylvania issued a decision on this issue, though it is “unreported.”

We have previously discussed that not all Pennsylvania appellate cases, including ones that address PA workers’ compensation issues, are created equal.  Only “reported” appellate cases can be used as precedent.  However, “unreported” cases can still be cited by the parties, as persuasive, though such decisions are not binding on a Workers’ Compensation Judge (WCJ).  For these reasons, we obviously prefer to use reported cases, but we never ignore the unreported ones.

The recent case is Lombardi v. Workers’ Compensation Appeal Board (UPMC Health Plan, Inc.).  Here, the injured work arrived for her shift about 30 minutes early.  Her work takes place in an office building, not owned by her employer.  The injured worker went to the food court on the ground floor, intending to purchase breakfast to take to her cubicle.  While doing so, she tripped and fell, fracturing her right forearm and wrist.

As we have noted previously, all hearings in Pennsylvania workers’ compensation matters have been held virtually, either by telephone or video, since last Spring.  We have now been told that the hearing offices within the PA Bureau of Workers’ Compensation will be reopening as of August 16, 2021.

However, this does not mean the system will return to how it functioned prior to the pandemic.  As with many things, we will be learning a “new normal.”  We have been told that “virtual hearings” will continue for certain things, though exactly when hearings will be live, as opposed to virtual, remains unclear.  Likely, we will have live hearings for the testimony of an injured worker, or an important witness, but that virtual hearings will continue for “status hearings.”  Whether a hearing is live or virtual, ultimately, will come down to the discretion of the Workers’ Compensation Judge.

Meanwhile, the Workers’ Compensation Appeal Board will continue to hold oral argument virtually.  As is the case now, the parties can request oral argument be done live.  Provided the request is made in a timely fashion, it will generally be granted.  In the special case of disfigurement/scarring, the hearing will be done in person.

 

Most employees in PA are covered by the Pennsylvania Workers’ Compensation Act.  This is a topic that has been mentioned previously in this blog.  However, that thought begs the question – who is actually an “employee”?  This can be a complicated topic and analysis, where one must differentiate the “employee” from the “independent contractor” (the latter not covered by the PA Workers’ Compensation Act).  Ultimately, this is a determination based upon the facts in each specific case.  A recent decision from the Commonwealth Court of PA does remind us of the significant factors.

Suppose you go to work for a company.  You sign an agreement, which says that you are an independent contractor.  You agree that taxes will not be withheld.  You are paid by the job, not by your time.  You have the right to decline job assignments.  You are not required to wear your employer’s uniform at work.  Your boss is not even on location when you are doing your job.  So, are you an employee?  Well, that would depend!  Though these are some of the factors to be examined, there are certainly others.

In Berkebile Towing and Recovery v. Workers’ Compensation Appeal Board  (Harr, State Workers’ Insurance Fund and Uninsured Employers Guaranty Fund), the answer was yes.  Some other facts, as found by the Workers’ Compensation Judge (WCJ), would be helpful to understanding the decision:

The Pennsylvania Bureau of Workers’ Compensation has announced that The Honorable Ashley Drinkwine will be a new Workers Compensation Judge (WCJ) assigned to the Philadelphia Workers’ Compensation Hearing Office.  Judge Drinkwine will be taking the place of Judge Scott Olin, who has retired after many successful years on the bench.  The decorum and wisdom of Judge Olin will be missed and we wish him well in his retirement.

Specifically, the release states:

The WCOA is pleased to announce the hiring of new Workers’ Compensation Judge Ashley Drinkwine who will replace the recently retired Judge Scott Olin in the Philadelphia hearing office.  Judge Drinkwine will begin her statutorily mandated training beginning June 1, 2021.  Congratulations Judge Drinkwine!

We apologize for having such infrequent posts these past several months.  Like much of society, things have slowed down since the pandemic arrived.  There seem to be fewer appellate decisions coming down, and those that do seem more frequently to be unreported decisions.  This makes it more difficult to find things to share with our readers.

Similarly, the Pennsylvania Workers’ Compensation Office of Adjudication is continuing to have the parties litigate matters remotely, using either telephone or videoconferencing for hearings and depositions.  Unlike family conversations, Zoom is a platform we cannot use, apparently due to security concerns.  Instead, some Workers’ Compensation Judges (WCJs) use WebEx and others use Teams (what was Skype for Business).

The advantages of litigating cases remotely, obviously, are vast.  We eliminate the need to travel to hearings in various counties across the State (we represent clients as far west as Carlisle, Harrisburg and Mechanicsburg, as far south as Delaware County and as far north as the Scranton/Wilkes-Barre area).  Basically, we handles cases throughout the Southeastern, Northeastern and Central parts of PA.

It is a frequent call we receive.  “My check is late.”  Nobody wants to deal with a delay in getting their check, especially around the holidays.  Indeed, getting a check late means more than just difficulty in holiday shopping – it means late rent, mortgage payments, phone bills, credit card payments, car payments, etc.  Getting checks from the workers’ compensation insurance carrier in an untimely fashion can cause late fees, eviction proceedings and repossessions.

The Pennsylvania Workers’ Compensation Act contains a provision wherein a Workers’ Compensation Judge (WCJ) can order a penalty of up to 50% of the amount paid untimely.  Typically, this is seen only in cases where checks are significantly late (more than a few days), or when the checks are regularly issued in an untimely fashion.  For a WCJ to entertain thoughts of a penalty, however, the fault must lie with the workers’ compensation insurance carrier.

Increasingly, we are seeing these late checks where the workers’ compensation insurance carrier actually mails the check in a timely fashion, but the beleaguered United States Postal Service (USPS) cannot deliver the check promptly.  A recent article in The Philadelphia Inquirer touches on the delays in the delivery of packages by USPS, but we can attest that the delays apply to letters, as well.  We are seeing situations (sadly on a frequent basis) where it is taking 7-9 days for a letter from the Bureau of Workers’ Compensation in Harrisburg, PA to get to our main office in Warminster, PA.  A brief we filed with the Commonwealth Court was lost within the USPS (despite the presence of a tracking number) requiring that we mail it again.

As happens every year around this time, the Pennsylvania Bureau of Workers’ Compensation has released the Statewide Average Weekly Wage (SAWW) for the coming year.  For 2021, the SAWW is $1,130.00, an increase over the $1,081.00 of 2020.  The SAWW represents the maximum weekly workers’ compensation rate an injured worker can receive in PA (for injuries taking place in 2021).

Unfortunately, those injured before 2021 do not see any change in their workers’ compensation rate with this change.  While other benefit programs, such as Social Security Disability, feature an annual cost-of-living increase, the Pennsylvania Workers’ Compensation Act contains no such option.  The rate in place at the time of the work injury is the rate that will remain for the life of that injury, no matter the extent of the disability.

The calculation of the workers’ compensation rate is provided for in the Pennsylvania Workers’ Compensation Act.  First, we must determine the Average Weekly Wage (AWW).  From this figure, we compute the temporary total disability rate, which we generally call the workers’ compensation rate.  Depending on the figures, the workers’ compensation rate is usually two-thirds of the AWW, though that is just the general rule.  Mid-range AWW can result in a workers’ compensation rate of half of the maximum rate.  A lower AWW can lead to a workers’ compensation rate at 90% of the AWW.  On the other hand, an injured worker earning a very high wage would create a workers’ compensation rate limited by the maximum compensation rate (the SAWW discussed above), which would mean he or she would receive less than 2/3 of the AWW.

The Pennsylvania Bureau of Workers’ Compensation rarely announces the coming or going of Workers’ Compensation Judges (WCJs).  Recently, the Bureau veered from its normal procedure and announced the following release:

The Workers’ Compensation Office of Adjudication is pleased to announce the hiring of two new Judges:  Anthony Salvino, Esq. and Jeffrey Mills, Esq.  They will begin training on November 23, 2020 and will be assigned to the Reading office.  Both Tony and Jeff bring a wealth of experience and knowledge in the Pennsylvania workers’ compensation law, practice and procedure.”

What was not mentioned was the departure to retirement of two existing WCJs.  First, we will be losing The Honorable Joseph McManus (who was on the bench in the Bristol Workers’ Compensation Office, serving Lower Bucks County).  Additionally, The Honorable Brian Eader, who was in the Central District of PA, will also be stepping down.  Having appeared in front of both of these WCJs on many occasions, we thank them for their years of service and wish them good luck and health in their retirements.

As we have discussed in the past, the assessment of unreasonable contest attorney fees is a rare finding in PA workers’ compensation.  This is when the workers’ comp insurance carrier is ordered to pay the fees of the injured worker’s attorney.  Even on those unusual occasions when a Workers’ Compensation Judge (WCJ) orders the payment of unreasonable contest attorney fees, often this is reversed by the appellate courts.  Which is why a recent decision of the Commonwealth Court of Pennsylvania was so refreshing.

In Gabriel v. Workers’ Compensation Appeal Board (Procter and Gamble Products Company), the injured worker suffered a puncture injury to his arm.  Notice was given to the employer by the injured worker within 120 days, as required under the Pennsylvania Workers’ Compensation Act (Act).  The injured worker received medical treatment, and the workers’ comp insurance company paid for such treatment.  However, the insurance carrier failed to issue any document, such as a medical-only Notice of Compensation Payable (MONCP), as would be required by the Act (the Act provides that the insurance carrier accept or deny an injury, issuing the appropriate form, within 21 days).

The injured worker filed a Claim Petition, to which the insurance carrier filed an Answer, denying all of the allegations in the Claim Petition. The matter was fully litigated before a WCJ.  After the final hearing before the WCJ, the insurance carrier finally issued a MONCP (this around two years after the occurrence of the injury).

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