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.

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).

Back in 2017, we shared the exciting news (hey, we attorneys have a unique sense of excitement!) that the entire Impairment Rating Evaluation (IRE) section of the Pennsylvania Workers’ Compensation Act (Act) was declared unconstitutional by the Supreme Court of PA (The Protz case) and stricken from the Act.  This, of course, stopped attempts by the insurance industry to get an IRE at all.

Not able to live with themselves in a world without IREs (oh, the horror), the Pennsylvania legislature passed Act 111.  This brought back the IRE process, albeit with a specific identification of which version of the Guides to the Evaluation of Permanent Impairment, put forth by the American Medical Association, need be used (the failure to so identify was largely the reason the prior IRE law was stricken).  Act 111 also lowered the threshold for continued total disability from 50% to 35% whole body impairment (for a better explanation of the IRE process, see our website).

Recently, the Commonwealth Court of PA addressed to what extent Act 111, which was enacted on   October 24, 2018, would be retroactive.  The case of Rose Corporation v. Workers’ Compensation Appeal Board (Espada) involved a work injury of September 6, 2006.  On May 22, 2013, the insurance carrier had obtained an IRE under the old (stricken) IRE law.  The IRE used the correct edition of the AMA Guides, and found a whole body impairment rating of less than 35%.  As a result, the insurance carrier wanted to use the 2013 IRE to obtain a change of benefit status, from total to partial, under Act 111.

We have previously discussed on this blog the difficulties in differentiating shoulder injuries to injured workers, noting that according to medical literature, several conditions can account for similar symptoms in a similar area.  Some recent articles have now shed light on some difficulties in diagnosing a concussion versus a whiplash injury, given the similar presentation between the two conditions.

According to an article in the Journal of Orthopedic & Sports Physical Therapy, since the presenting symptoms of concussion and whiplash can be similar (neck pain, headache, dizziness, and concentration deficits), and the causes of both conditions (biomechanically) is similar, there is a very real risk of misdiagnosis.  This is seems especially prevalent in the workers’ compensation system where panel physicians hesitate to refer injured workers to specialists, or for diagnostic testing, to avoid angering either the employer or the workers’ compensation insurance carrier.  The very nature of the panel physician/employer relationship unfortunately creates an incentive for the panel physician to undertreat the injured worker and return him or her to full duty before the injured worker is ready to do so.

While many times either a concussion or whiplash will resolve within a three month period, in those cases where it does not, misdiagnosis can be very dangerous.  Paul Lagerman (“a Physiotherapist with 20 years of experience in pain management, musculoskeletal injury and rehabilitation”), posted a deep analysis of this problem, along with the dangers and effects of not understanding what condition is actually in need of medical treatment.  This can cause the problem to linger far longer than necessary.

As we noted in our June 2020 update, the Pennsylvania Bureau of Workers’ Compensation began to (technically) allow limited in-person hearings, in counties which have been declared to be in the “Green” phase by Governor Wolf.  This announcement was made on June 12, 2020, to take effect June 19, 2020.  As a practical matter, we have yet to have an in-person hearing scheduled.  Regular hearings continue to operate by telephone conference, with video conference as the other option.

There appear many different feelings among Workers’ Compensation Judges (WCJs) regarding the taking of testimony of an injured worker or fact witness.  Some WCJs have expressed an interest in video conferencing for the testimony of the injured worker and fact witnesses (for which the Bureau appears to be using Skype for Business primarily, though I understand there is discussion of other platforms).  On the other hand, since the WCJ cannot know who else is in the room, other WCJs want simply deposition testimony of the injured worker or fact witnesses, feeling they get no advantage by watching the video.  I tend to agree with a WCJ who told me that, as long as he can watch the eyes of a witness, he can tell if they are being coached or reading notes.  Another WCJ explained that she did not want in-person testimony of my client, since the required use of a mask took away from the WCJ’s ability to fully evaluate the demeanor of my client.  This would not be an issue with video conference.

While we, as attorneys for the injured workers, really want the WCJ to personally see our client while he or she testifies, antagonizing a judge is never a good idea in litigation.  For the most part, WCJs will generally agree to videoconferencing of the injured worker testimony, since in-person is not commonly available.  This seems to be the most reasonable alternative.

As more counties across Pennsylvania reach the “Green” phase in the COVID-19 recovery process, attorneys involved in the PA workers’ compensation process were curious to know how this will impact the operations of the Bureau of Workers’ Compensation.  Yesterday, we were advised by the Bureau that, “(t)he designation of counties as ‘green’ does not automatically signal a return to in-person hearings.”  Instead, live, in-person hearings will only be permitted in limited situations.  This will be at the discretion of the Workers’ Compensation Judge (WCJ), where the WCJ feels it critical to have in-person testimony of a witness to properly assess credibility.  In-person hearings will only be permitted in counties that are in the “Green” phase of COVID recovery.

Either party can request that testimony of a witness be taken in-person, but the WCJ will have complete latitude to grant or deny the request.  Such a request should “include a justification and the position of the opposing party on the request.”  The WCJ can also determine, on his or her own motion, that in-person testimony will be necessary.

Significant changes will be made to prior procedures in the workers’ compensation hearing offices.  Only one Judge will hold hearings per day, and there will be a scheduled break between cases, so that an interim cleaning can be performed.  As the Bureau notes, “Each individual who enters the office has a personal responsibility to follow the CDC and DOH guidelines for handwashing, social distancing, wearing masks, and staying home if sick.”  All attendees to a hearing will be screened by security (to ask about wellness, in addition to the typical security screening).  No persons will be permitted to enter a workers’ comp hearing location without a mask (sadly, the new normal).

Once an injured worker in Pennsylvania establishes an entitlement to workers’ compensation benefits (when out of work, the benefits are known as “temporary total disability benefits” or TTD), the workers’ comp insurance carrier cannot just stop paying the benefits at its discretion.  This is one of the advantages of the workers’ compensation system in PA.

Unless the injured worker settles the case, or agrees that he or she has returned to gainful employment at (or above) the pre-injury earnings, there are very few situations an insurance company can stop the TTD benefits without an order of a Workers’ Compensation Judge (WCJ).  Indeed, even an order of a WCJ can only be obtained in certain circumstances, such as when the insurance carrier proves the injured worker has fully recovered from the work injury, or that work is available to the injured worker within his or her physical capabilities.

Given the difficulties workers’ comp insurance carriers face in PA trying to stop the payment of TTD benefits, the companies are always searching for new ways to accomplish this goal.  One of the relatively recent ways to attack the payment of benefits is by alleging an injured worker has voluntarily removed him or herself from the labor market.  Proving such an allegation allows the stoppage of TTD payments without having to demonstrate any job availability.

Yesterday, our attorneys participated in a webinar dealing with the continuing impact the Novel Coronavirus (COVID-19) is having on the Pennsylvania workers’ compensation system.  We have already participated in hearings using Skype for Business, and understand some Workers’ Compensation Judges (WCJs) are experimenting with the WebX platform.  Zoom had been used on occasion, but apparently some security concerns have rendered that unusable for our purposes.

Depending on the case and the situation, some attorneys, and the WCJs, are agreeing to simply delay the testimony of an injured worker for later in the case, hoping we will be able to have in-person hearings again in the somewhat near future.  However, given the uncertainty in timing, there is often a need to move forward, at least with video, in addition to audio.  We believe it is critical for the WCJ to actually see the injured worker testify, since so much comes down to simply whether the WCJ believes the injured worker or not.

Even in ordinary circumstances, the procedures followed by a WCJ vary widely, sometimes even in the same workers’ compensation hearing office.  For this reason, there is a “Judge Book,” detailing the practices and procedures for each WCJ in the Commonwealth.  Now, on the page for each WCJ, you will see “CLICK HERE TO VIEW THE JUDGE’S SPECIAL PROCEDURES DURING THE GOVERNOR’S EMERGENCY DECLARATION DUE TO COVID-19.”  Here you will find how any particular WCJ is handling cases in the current COVID-19 era.

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