As we have previously discussed, within the Pennsylvania Workers’ Compensation Act, there lies a trap for unwary injured workers.  Actually, there are many traps in the Act, but for today, we’ll just deal with this one.

When a workers’ comp insurance carrier thinks (and this is a critical word) that an injured worker has returned to work, the insurance company can file a Notification of Modification (if there remains a partial wage loss) or a Modification of Suspension (wages are believed to be at or higher than the pre-injury wages).  If there is no “challenge” filed by the injured worker, within the allotted time period, the Notification of Modification or Suspension has the same legal effect as if the injured worker has agreed to the change in status.  This is certainly a trap for an injured worker who knows better than to sign a document without legal counsel, but is unaware that not signing a document can also have dire consequences.

The PA Bureau of Workers’ Compensation announced that:

We are all struggling through an unprecedented time due to the novel coronavirus (COVID-19).  This global pandemic has infected thousands, and forced the sheltering of millions and closure of businesses across the world (including our offices).  In Pennsylvania, hundreds have already been infected, with experts predicting the spread to get worse, before it gets better.

This condition attacks the respiratory system, and can cause grave bodily harm, especially in those particularly vulnerable.  Disability, and death, can result from this condition.

We have started to receive telephone calls on whether being infected with COVID-19 can be a “work injury” under the Pennsylvania Workers’ Compensation Act.  The short answer is yes, potentially, such an infection could be considered a “work injury” in PA.  Basically, the typical analysis we use for any potential workers’ comp case would be applied in this type of case.

By now, most Pennsylvanians have heard that Governor Tom Wolf has ordered all non-life-sustaining businesses in PA to close their physical locations, as of 8:00 p.m. on March 19, 2020.  Along with this announcement, the Governor’s office released a list of what businesses qualify as “life-sustaining.”  Law firms are specifically excluded from this list.  Obviously, we all want to see the end of the Coronavirus pandemic, and we all must do our part.  As such, Brilliant & Neiman LLC will abide by the orders of the Governor and close our physical offices until further notice.

Please be advised that our attorneys will still be working remotely, and are available to both existing clients, as well as any injured workers needing assistance at this difficult time.  You can call us at 215-638-7500, or 610-740-1002, and leave a message on the voicemail of either Dina Brilliant or Glenn Neiman, or you can e-mail them at dbrilliant@bnlegal.com or gneiman@bnlegal.com.  We will get back to you as soon as possible.

We ask for your patience in these trying times.  We are working hard to serve the needs of our clients, as well as help contain the spread of the Coronavirus.  We will provide updates as they are available.

***UPDATE 3/17/20*** A statement was issued by Joseph DeRita, Director of the Pennsylvania Workers’ Compensation Office of Adjudication:

As you are all aware, Governor Wolf ordered the closure of all Pennsylvania state government offices for 14 days effective Tuesday, March 17, 2020. All hearings and mediations scheduled during that time are cancelled and will be rescheduled as soon as practicable. Some of the WCJ’s, who are already equipped to work from home, have already reached out to discuss rescheduling arrangements for mediations. Those will go forward.  In addition, in an effort to provide some adjudicatory services, I have authorized the use of telephone hearings on a limited basis for Petitions to Approve C & R Agreements.  Requests to schedule C & R hearings will be accepted beginning March 17, 2020 in the Southeastern and Eastern district offices only as described below.  We hope to expand this limited service to the Central and Western districts by week’s end.  Beyond that, we will be expanding WCJ telework capabilities generally to conduct telephone hearings on other types of petitions.

For now, the protocol to request a special C & R telephone hearing during the time of government shutdown is as follows:  send an e-mail request to the Judge Manager of the district in which the case is pending (JM Karen Wertheimer, Eastern District,kwertheime@pa.gov and JM Holly San Angelo, Southeastern District, hsanangelo@pa.gov). Your request must include the case caption, dispute #, names and e-mail addresses of counsel and whether the case requires translation services (include language of testimony to be translated).  WCOA staff will schedule the court reporter.  The JM will re-assign the case to a specially selected WCJ who will then schedule and conduct the C & R hearing telephonically.  Claimant must be present in Claimant’s counsels office.  The C & R agreement must be notarized.  The WCJ assigned to hear the case will advise how the telephone conference is to be arranged and how the C & R documents are to be transmitted prior to the telephone hearing. 

By now, we are all too familiar with the Coronavirus (COVID-19).  At this point, governments, individuals and businesses are still evaluating how best to protect each other and ourselves against this pandemic.

The Bureau of Workers’ Compensation is largely still open and operating on a normal basis.  Hearings are generally still taking place, though the situation is being monitored.  One hearing office, however, has been closed for at least a two week period.  The Dresher Workers’ Compensation Hearing Office will be closed from March 13 through March 27, 2020.  We are told that all hearings and mediations scheduled there are cancelled and will be rescheduled.  The Dresher office serves injured workers who live in Eastern Montgomery County (or cases otherwise based in that region); cases based in Western Montgomery County, in the Malvern Workers’ Compensation Hearing Office, will take place as scheduled.

Brilliant & Neiman LLC will remain open, and our attorneys are available to injured workers.  However, we will be trying to abide by CDC recommendations, and avoiding personal contact, including hand shaking.  We also ask visitors to our offices to use hand sanitizer at our door.

Pennsylvania workers’ compensation hearings are generally held in each county in the Commonwealth.  Some smaller counties may share hearing facilities, while more populous counties may have a second location.  The county in which the injured worker resides is typically the county in which hearings will be held, provided the injured worker lives in PA.

For several years, hearings in Bucks County have been divided between Bristol (for Lower Bucks County) and Doylestown (for Central and Upper Bucks County).  While that will still be the case, hearings in Doylestown which had been held at the Bucks County Courthouse will now be moved to the Bucks County Administrative  Building (which is across the street from the Courthouse).  For those unfamiliar with Doylestown, the Bucks County Administrative  Building is actually the former courthouse.  While the two buildings are across the street from one another, injured workers should be sure they are heading to the correct hearing location.

Bucks County is not the only one with multiple hearing locations.  Several others split their cases between two offices.  Montgomery County spreads its caseload between Malvern (for Western Montgomery County) and Dresher (for Eastern Montgomery County).  Injured workers who reside in Northampton County may have hearings in Tannersville (North) or Easton (South).  Philadelphians used to have the convenience of hearing locations in both Center City Philadelphia and Northeast Philadelphia, but the latter was closed several years ago.

Ordinarily, reinstating PA workers’ compensation benefits for an injured worker is not a high burden.  As we have previously discussed, usually benefits can be reinstated when the reason for the suspension of workers’ comp benefits no longer exists.  When the injured worker once again suffers a loss in earnings due to the work injury, through no fault of the injured worker. benefits are to be reinstated.  Case law tells us that a medical deposition is not even required in such a situation.

However, the relative burden of proof changes drastically when there has been a finding of “bad faith” with regard to a modified job offer.  Pennsylvania’s appellate courts have consistently held that all work is equal and that an injured worker cannot refuse a job offer for reasons unrelated to the work injury.  To do so would entail a finding of “bad faith,” which will stick to the injured worker for the life of the work injury.  A recent case in the Commonwealth Court of Pennsylvania demonstrated the drastic effect a “bad faith” finding can have on an injured worker in PA.

In Tyson Shared Services, Inc. v. Workers’ Compensation Appeal Board (Perez), the injured worker suffered a significant injury to his right shoulder on December 3, 2014.  This required two surgical procedures.  Shortly after the second surgery, the injured worker was offered a modified-duty janitorial position, which was consistent with the physical restrictions set by the treating surgeon.  For reasons not discussed in the decision, the injured worker refused this job offer.  A Claim Petition was litigated, resulting in a decision by a Workers’ Compensation Judge (WCJ) granting temporary total disability benefits, but then suspending the benefits as of the date of the modified-duty job offer.

Usually, if the testimony of an injured worker, and that of the medical expert offered by the injured worker, is not found credible by the Workers’ Compensation Judge (WCJ), there is no way to win the case.  This highlights just how important it is to have a “presumption” under the law, such as that available to firefighters.  As a recent decision of the Commonwealth Court of Pennsylvania shows, having the “presumption” can be the difference between winning and losing a workers’ comp case in PA.

We have previously discussed the presumption that cancer suffered by a firefighter is related to his or her work duties and work exposure.  We have addressed the different types of cancer implicated in this presumption, as well as who can use the presumption.  What we have not addressed is how important it is to actually have this presumption.  And that is what is clearly seen in Deloatch v. Workers’ Compensation Appeal Board (City of Philadelphia), decided recently by the Commonwealth Court of Pennsylvania.

The injured worker here was a firefighter who was diagnosed with lung cancer.  He filed a Claim Petition, which was litigated before a WCJ.  The injured worker testified that he was exposed to diesel fumes and smoke from fires throughout his years of service with the Fire Department. Though he stopped smoking years before, the injured worker agreed he had a 30 to 35-year-long history of smoking cigarettes.  The medical evidence presented by the injured worker connected the lung cancer to his occupational exposure as a firefighter.  Medical evidence offered by the workers’ compensation insurance company showed that the lung cancer was not due to his work as a firefighter, but was “most likely” from personal factors (primarily smoking).

One of the important aspects to the Pennsylvania Workers’ Compensation Act (“Act”) is Section 309, which deals with the calculation of the Average Weekly Wage (AWW), controlling the amount of benefits an injured worker in PA will receive.  We have discussed these calculations in previous blog posts.  Additionally, the concept of a “seasonal employee” has been addressed here.  Recently, the Commonwealth Court of PA has again touched on the meaning of “seasonal employee.”

Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board (Trucks) deals with a shoulder injury suffered by a player for the Pittsburgh Steelers.  The compensability of the work injury was not in dispute; in fact, the only issue to be decided was whether the National Football League (NFL) player was a “seasonal employee” for the purposes of determining the AWW (Note that highly paid professional athletes have a special section of Act, for calculating the AWW; the player in this case did not rise to that level).

After hearing the evidence, the first Workers’ Compensation Judge (WCJ) granted the Claim Petition and set the AWW at $3,846.15 (concluding that the player was NOT a “seasonal employee” and that the AWW was determined by dividing the yearly salary by 52 weeks (this was appealed and remanded for unrelated reasons, which I will not bother addressing).  The Workers’ Compensation Appeal Board (WCAB) affirmed.

As we have mentioned in the past, unlike Social Security Disability benefits, PA workers’ comp benefits have no cost-of-living increase.  However, the maximum rate of workers’ compensation benefit that an injured worker can receive does increase annually.  Unfortunately, this only affects injuries taking place in the new calendar year.  The Pennsylvania Bureau of Workers’ Compensation has announced that the maximum workers’ compensation rate for injuries taking place in 2020 will be $1,081.00.  This is increased from the maximum rate for 2019 of $1,049.00.

The Pennsylvania Workers’ Compensation Act sets forth the procedure for the calculation of the Average Weekly Wage (AWW).  From this figure, we determine the temporary total disability rate, often just referred to as the workers’ compensation rate.  Depending on the figures, the workers’ compensation rate is usually 2/3 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, which would mean he or she would receive less than 2/3 of the AWW.

This can be a complicated area in the PA workers’ comp system, both through the calculation of the AWW and the workers’ compensation rate, as well as what can be included within the AWW calculation. Insurance carriers frequently make mistakes in these calculations (yet, rarely are these “mistakes” to the benefit of the injured worker).