For better or worse, there has not been much happening in the Pennsylvania appellate court system, so we have not be able to post any case law updates.  However, we would like to remind everyone that the next seminar in Brilliant & Neiman LLC’s Continuing Education Series is scheduled for Wednesday, October 24, 2018 at 7:00 p.m. at the firm’s Warminster office (260 West Street Road, Warminster, PA 18974).

Following up on the successful September topic (“Settling a PA Workers’ Compensation Case – What the Injured Worker Has to Know”), October’s subject will be the PA workers’ compensation process.  Come learn about how a case progresses through the system.  What happens after a work injury, including the time frames and details.  What rights and obligations an injured worker has under the Pennsylvania Workers’ Compensation Act.  And, how what you don’t know may actually hurt you.

As with all of our Continuing Education Series, the program is absolutely free, and we want every injured worker (and those who care about him or her) to attend.  However, since space is limited, reservations are required.  To reserve a seat for the program on October 24, 2018, or for any of the additional programs, call 215-638-7500 or e-mail gneiman@bnlegal.com.

A couple of months ago, we talked about the Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC) decision by the Commonwealth Court of Pennsylvania.  This was the first time the Court addressed the PA Supreme Court decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), which struck the entire Impairment Rating Evaluation (IRE) process from the Pennsylvania Workers’ Compensation Act (Act).

As a brief refresher, the IRE provision of the Act allowed a workers’ compensation insurance carrier to have an injured worker undergo an evaluation, after the injured worker received total disability benefits for two years.  This evaluation, known as an IRE, would change the status of benefits to “partial” from “total” if the injured worker was less than 50% whole-body impaired by the work injury (note that 99.9% of injured workers are less than 50% whole-body impaired; that is a ridiculously high standard).  While this would not impact the amount of benefits an injured worker received, it would start the clock ticking on the 500 week maximum entitlement.

The decision in Protz struck the entire IRE provision from the Act, finding it unconstitutional.  This left attorneys who represent injured workers in PA needing answers to how this would impact the many injured workers already now receiving “partial” disability benefits due to an IRE.

Brilliant & Neiman LLC is proud to announce a Continuing Education Series, with topics of interest to the injured worker in Pennsylvania.  The initial seminar in the series will take place on Tuesday, September 25, 2018 at 7:00 p.m., at the headquarters of the firm, 260 West Street Road in Warminster, PA.

The program on September 25, 2018 will be entitled “Settling a PA Workers’ Compensation Case – What the Injured Worker Has to Know.”  We selected this topic to start the series, since we are often asked questions regarding the settlement of workers’ comp cases in Pennsylvania.  Specifically, we will be discussing the timing of a settlement, the factors that go into determining the value of a PA workers’ compensation case (and the factors that, for reasons we will explain, do not), and the process (from the start of the settlement negotiations to the final approval of the Compromise & Release Agreement).

Additional programs will be held in October and November (for those marking their calendars, the dates will be October 24, 2018 and November 29, 2018).  The program in October will examine and explain the PA workers’ compensation litigation process, from the origin of a claim, and the starting of benefits, through litigation when an insurance carrier seeks to reduce or end the benefits.  We felt this topic would be helpful to address the stress an injured worker faces about the direction and future of his or her case.  Finally, the November program will talk about the medical issues involved with an injured worker, specifically, as dealing with chronic pain.  Depending on the level of interest, there could be additional programs added to this series.

When an injured worker in PA settles a personal injury case against a third party (typically from a work-related car accident, a products liability case or similar), the workers’ compensation insurance carrier has its hand out to get repaid for the wage loss and medical benefits provided to the injured worker.  For past wage loss and medical benefits, that remains the law.  For future medical benefits, however, things have changed dramatically.

Recently, the Supreme Court of Pennsylvania issued a decision in Whitmoyer v. Workers Compensation Appeal Board (Mountain Country Meats).  The Court found that while a workers’ compensation insurance carrier is entitled to a credit against future workers’ compensation wage loss benefits (when a third party settlement is more than the insurance carrier has already paid), the insurance company is NOT entitled to a credit against future medical benefits.  This represents a large change in practice.

When a third party case is settled in the presence of a workers’ comp case in PA, there is a specific form one uses to calculate both the lien (how much the workers’ compensation insurance carrier is getting back for money they have already paid) and the “balance of recovery” (dealing with how the money above the lien amount is treated for future payments).  The balance of recovery is used to calculate the “reimbursement rate” for future payments.  Instead of having to pay the entire amount due for future obligations, the workers’ comp insurer would only have to pay that amount times the reimbursement rate, typically less than half.  This form is called a “Third Party Settlement Agreement” (TPSA).

Facial disfigurement is the only aspect of the Pennsylvania Workers’ Compensation Act under which a Workers’ Compensation Judge (WCJ) has the discretion to award anywhere from zero to 275 weeks of workers’ compensation benefits.  Since such injuries can range from barely noticeable to tremendously disfiguring, these cases vary widely in the amounts awarded.  Note that the scarring can be traumatic, or from a work-related surgery.  After a WCJ views a scar, and renders a decision, either side can appeal the decision to the Workers’ Compensation Appeal Board (WCAB).

What the WCAB can do with this decision was recently addressed by the Commonwealth Court of Pennsylvania in Keister Miller Investments LLC v. Workers’ Compensation Appeal Board (Hoch).  Here, the injured worker (Claimant) was involved in a work-related motor vehicle accident wherein he suffered a broken nose and a laceration to the right side of his head.

A Claim Petition was filed, seeking compensation for the facial scarring.  After viewing the scar, and describing it for the record, the WCJ granted the Claim petition, finding, as required, that the “work-related injury resulted in a serious and permanent disfigurement of Claimant’s face, which is of such a character as to produce an unsightly appearance and not usually incident to the employment.”  In so doing, the WCJ awarded 40 weeks of benefits.

Since the Supreme Court of Pennsylvania set the PA workers’ compensation system abuzz in the Protz case by striking the entire Impairment Rating Evaluation (IRE) section from the Pennsylvania Workers’ Compensation Act (Act), we have waited to see some appellate decision interpreting Protz.  The Commonwealth Court of PA has now weighed in on the issue.

In Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), the Court reversed the decision of the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB), and found that the injured worker was potentially able to reinstate her total disability benefits after an IRE.  The Court remanded for the injured worker to prove she remains totally disabled.

As attorneys for injured workers in PA, we were thrilled with the primary decision rendered by the Court – that being an injured worker whose 500 week maximum of partial disability benefits (which was obtained by IRE) has ended can still seek reinstatement to total disability benefits.  In so finding, the Court rejected arguments by the workers’ compensation insurance carrier that the injured worker could not pursue reinstatement because she had failed to challenge the status of the IRE provisions of the Act initially.

Unfortunately, due to what appears to be a problem with Comcast business phone service across several states, we currently cannot be reached by telephone.  Please try to contact us by e-mail at gneiman@bnlegal.com or dbrilliant@bnlegal.com or by messaging us at our Facebook page.  We deeply regret this inconvenience, and hope Comcast has our service restored in the near future.

***I should note that the phones were back by that afternoon around 3:00***

 

“Notice” of a Pennsylvania work injury is an issue which we have previously addressed in this blog.  Essentially, an injury must be reported to the employer within 21 days to have benefits date back to the first day, and within 120 days of the injury to have an entitlement to PA workers’ compensation benefits at all.  Often, the disputed aspect of a case is whether the notice provided to an employer is sufficient under the Pennsylvania Workers’ Compensation Act.

Importantly, proper notice does not mean that an employee must give a report with specifics or certainty.  What matters is whether the notice provided makes the employer aware that there is a possibility of a work-related injury.  Recently, the Commonwealth Court of Pennsylvania dealt with this very issue in City of Pittsburgh and UPMC Benefit Management Services, Inc. v. Workers’ Compensation Appeal Board (Flaherty).

Here, the injured worker (Claimant) was a firefighter for 16 years.  She was diagnosed with breast cancer in 2004, and was no longer able to continue performing the required duties of the position.  After Act 46 was enacted in 2011, creating a presumption dealing with cancer and firefighters, Claimant received a letter from her union describing the benefit to the new law.  Shortly thereafter, she filed a Claim Petition giving her employer notice that her condition may have been work-related.  She did not receive an opinion from her doctor, that her condition was, in fact, related to work, until a few months later.

Recently, an injured worker from Lower Bucks County, PA, called us.  When we discussed our Bucks County office locations, I mentioned our main office in Warminster and our satellite location in Trevose.  To our surprise, the injured worker was not familiar with Warminster.  As a proud commercial resident of Warminster Township, we wanted to make sure more folks knew about our town.

Warminster Township is less than four miles northwest of Philadelphia, and conveniently accessible to the Pennsylvania Turnpike and I-95.  SEPTA bus service runs throughout Warminster, and we have our own regional rail station.  Over 32,000 residents call Warminster Township home.

While Warminster Township may be less than 11 square miles in size, it features “420 acres of active and passive recreation areas in 13 parks.”  The largest of the parks is Warminster Community Park, located between Street Road and Bristol Road, adjacent to Jacksonville Road.  This park boasts over five miles of trails, and features playground equipment, basketball courts and a unique “little city” area for kids to play.

Thoracic Outlet Syndrome (TOS) and Brachial Plexopathy are two conditions we see representing injured workers in Pennsylvania.  These conditions were recently in the news in the Philadelphia area, with the report that Phillies pitcher Vince Velasquez underwent surgery for TOS in the previous offseason.  Indeed, it is not an uncommon injury for a professional baseball pitcher; our firm has represented a former major league pitcher with the condition (of course, we have represented many more types of injured workers with this condition than professional athletes!).

Both TOS and brachial plexopathy are sort of general terms, each regarding issues in the brachial plexus area (think of it like a big city train station, where it is many branches of nerves coming together rather than railroad tracks).  There are many forms of these conditions, making diagnosis difficult.  As we have mentioned previously on this blog, brachial plexopathy can be confused for conditions in the shoulder and/or neck of the injured worker.  This difficulty is also mentioned in the Medical FAQs on our website.  In the PA workers’ compensation system, we are often litigating to have TOS or brachial plexopathy accepted as part of the work injury (since such conditions are rarely, if ever, voluntarily accepted by the workers’ compensation insurance carrier).

Part of the problem in getting TOS or brachial plexopathy accepted as a work injury is the fact the conditions can be caused in various ways.  In fact, some occurrences are “idiopathic,” meaning that there is no known cause.  On the other hand, trauma is an established cause of the conditions.  It is also important to note that when we talk of “trauma” as a cause of TOS or brachial plexopathy in a work-related injury, we are speaking both of a single injury, as well as some type of repetitive motion kind of injury.  As we have discussed on this blog, repetitive motion injuries are just as much “work injuries” as single traumatic episodes.