No matter what kind of company one works for, as long as one is an “employee,” as defined in the Pennsylvania Workers’ Compensation Act (and not otherwise excluded by other laws, such as federal employees, military personnel, maritime workers and railroad workers), one is entitled to workers’ compensation benefits if an injury is suffered while at work. This is true whether one works for a sole proprietor, small corporation or a major international conglomerate.

When a work injury takes place in PA, notice is required to be given to the “employer” within 120 days of the injury. Failure to do so can result in the injured worker being barred from receiving any workers’ compensation benefits for the injury. This can get more complicated when we are dealing with a sole proprietorship or a small corporation, where the owner is the injured worker. To whom must this notice be provided?

The Commonwealth Court of Pennsylvania recently addressed this issue in Erie Insurance Property & Casualty Company v. Heater (Workers’ Compensation Appeal Board). In this case, the injured worker was the owner of a sole proprietorship. By definition, the “employer” had notice of the work injury as soon as the injured worker had the injury, since they are the same entity.

On May 30, 2024 and May 31, 2024, the annual Pennsylvania Bureau of Workers’ Compensation “Workers’ Compensation Conference” will take place in Hershey, PA.  Here, attorneys, Workers’ Compensation Judges (WCJs), employer representatives, adjusters, risk management/safety employees and others who work in the world of workers’ comp across the entire State of PA, gather to discuss and learn changes and trends of which they should be aware.

As we do each year, our attorneys will attend the conference this year.  The majority of the attorney attendees at this seminar work for the insurance carriers.  This places us in the minority, but out attendance at this seminar is critical to our ability to properly represent our clients.

By listening while the insurance industry representatives are told about the state of the workers’ compensation laws, and impact of recent cases, we are getting insight into how the insurers will treat different situations.  This helps us understand and anticipate steps and strategies the workers’ compensation insurance carriers may take.  We are also able to have informal conversations with WCJs and defense attorneys, building relationships that may improve communication in future dealings.  We are also learning about any new developments or trends that may have escaped our notice.

The standard fee agreement in Pennsylvania workers’ compensation is 20% of the benefits obtained or awarded to an injured worker.  PA Courts have found this amount to be reasonable, and it remains the standard charged.  Historically, this pertained just to wage loss, or what we call “indemnity” benefits.

This was somewhat changed by a 2020 decision by the Commonwealth Court of Pennsylvania in the case of Neves v. Workers’ Compensation Appeal Board (American Airlines).  Here, the Court found that an attorney for the injured worker could obtain 20% of the medical bills, as well as 20% of the wage loss benefits.  While some attorneys immediately started using this ability, others, our firm among them, hesitated to do so.  We were unsure how that 20% fee would be dealt with by the healthcare provider.  More specifically, we were concerned that our client could potentially be liable for the 20% we would be taking as a fee.  This, of course, was a risk we would never place on our clients.

However, the Commonwealth Court of Pennsylvania has now clarified that risk in the recent case of Williams v. City of Philadelphia (Workers’ Compensation Appeal Board).  In that case, the Workers’ Compensation Judge (WCJ) refused to grant a 20% fee on the medical benefits, despite it being requested by the attorney and agreed upon by the injured worker.  While the Workers’ Compensation Appeal Board (WCAB) affirmed, the Commonwealth Court reversed, finding that the 20% fee on the medical benefits should have been granted.

The Pennsylvania appellate courts have consistently determined that a Workers’ Compensation Judge (WCJ) is the final arbiter of credibility in a PA workers’ compensation case.  Short of finding that a credibility determination by the WCJ is “arbitrary and capricious,” these determinations are to be accepted by the courts.  This makes sense, since it is the WCJ who actually sees and evaluates the witnesses and the evidence directly.

Every once in a while, though, a WCJ’s credibility determinations are challenged on appeal, often by casting the attack in a different light.  Recently, the Commonwealth Court of Pennsylvania stopped such an effort by the Workers’ Compensation Appeal Board (WCAB) in the case of Lawry v. County of Butler (Workers’ Compensation Appeal Board).

In Lawry, the WCJ heard the testimony of the injured worker and reviewed the medical evidence, and largely denied the insurance carrier’s Petition to Terminate benefits.  To be specific, the WCJ found that the injured worker had fully recovered from “right thumb strain/sprain and right ulnar collateral ligament tear.”  Importantly, though, the WCJ also “determined that Employer failed to meet its burden of proving that Claimant fully recovered from her RSD/CRPS.”

Twenty years ago today.  The Incredibles was on the big screen.  Friends and Frasier were both finishing up their long runs on network television (remember network television?).  The Super Bowl that year featured the infamous “wardrobe malfunction.”  And, Brilliant & Neiman LLC was formed to help injured workers’ with their Pennsylvania workers’ compensation cases.

It started with a simple idea.  Form a law firm that dedicated its practice to just PA workers’ compensation.  Do one thing, and do it well.  Don’t have “teams” or levels of support staff that a client must navigate – let the clients talk directly to the attorneys.  Now, twenty years later, our firm is stronger than ever and helping injured workers with their Pennsylvania workers’ compensation cases throughout Southeastern and Central PA.

We are not the official law firm of any sports team.  We do not have the slick marketing departments found at the big assembly line firms.  You will not find our faces gracing billboards on the highway.  What you will find, however, is the personal service that can only be achieved with a small firm dedicated to its limited practice.

We are proud to announce that Glenn Neiman, one of our partners, has been named as Co-Chair of the Bucks County Bar Association’s Workers’ Compensation Section.  This is the second term Mr. Neiman has served in this capacity, previously serving as Co-Chair of the Workers’ Compensation Section in 2010 and 2011.

Joining Mr. Neiman is his fellow Co-Chair, The Honorable Cassi Martin.  The Co-Chairs are looking forward to leading the Section into a productive 2024!  The Section is off to a good start, having put on a successful CLE program, “Ethical Considerations in Virtual Practice: Workers’ Compensation” during the recent Marathon CLE Day presented by the Bucks County Bar Association on December 12, 2023.

The Pennsylvania Bureau of Workers’ Compensation has released the maximum workers’ compensation rate for injuries suffered in 2024.  This is based upon the statewide average weekly wage.  For injuries suffered in 2024, the maximum workers’ comp rate will be $1,325.00 per week.  This is up from the 2023 maximum rate of $1,273.00.

As with have noted in previous blogs, the rate in effect at the time of the injury is the rate which will remain for that case permanently.  Unlike other benefit programs, like Social Security, there is no annual increase for existing injuries, such as cost of living adjustments.

The grid to see the calculation of the workers’ compensation rate from the Average Weekly Wage (AWW) can be found on the website of the Bureau of Workers’ Compensation.  While the calculation of the rate from the AWW is purely mathematical, the calculation of the AWW itself is complicated and should always be checked by an attorney experienced in PA workers’ compensation.

One of the most important determinations in any PA workers’ compensation case is the Average Weekly Wages (AWW).  As we have explained in prior blog posts, if an injured worker has been employed for over a year, and is not paid a fixed amount each pay period, the AWW is determined by dividing the year prior to the date of injury into four quarters.  The top three of those quarters are then averaged.  This is the AWW.  The compensation rate is calculated from this figure.

For years, the Pennsylvania appellate courts have held that periods of lay off count within this calculation.  The Courts have said that the “employment relationship” continues through the lay off.  This often leads to a deflated AWW for an injured worker unfortunate enough to have undergone periods of lay off in the year before the injury (since those periods of lay off would be a zero for each pay period). Recently, a PA workers’ compensation insurance carrier tried to use this sword as a shield.

In Resources for Human Development, Inc. and Gallagher Bassett Services v. Sherry Dixon (Workers’ Compensation Appeal Board), the injured worker was employed by Resources for Human Development, Inc., as a home health aide.  The injured worker suffered a “strain or tear” to her “multiple trunk” (their word usage, not ours) when a patient fell on her.  Since the injured worker also was employed by Public Partnerships, LLP, she filed a Review Petition alleging that she had concurrent employment (so the AWW would be based on earnings from both of those jobs).

Under the Pennsylvania Workers’ Compensation Act, the insurance carrier has 30 days to either pay a medical bill for treatment related to a work injury, or file for Utilization Review (to challenge whether such treatment is reasonable and necessary).  The question, at times, is whether the treatment is “related” to the work injury or not.  Some workers’ comp insurance carriers simply deny payment, alleging the bills are for treatment unrelated to the work injury.  A recent decision by the Commonwealth Court of Pennsylvania casts doubt on this type of response.

First, it is important to note that this decision is “unreported,” and is only persuasive (not binding).  In Pennsylvania Liquor Control Board v. 3B Pain Management (Bureau of Workers’ Compensation Fee Review Hearing Office), the injured worker fell in the parking lot outside the store.  A Claim Petition was filed and litigated.  Ultimately, the Workers’ Compensation Judge granted the Claim Petition, finding the work injury to be a “meniscal tear of the right knee and chondromalacia of the femoral and tibial condyle of the right knee.”

The injured worker had chiropractic treatment, which the Court described as, “ . . . spinal manipulation relating to low back pain, manipulation of Claimant’s knees and his right hip for pain, low level laser treatment on his right knee, and therapeutic massage for unidentified muscle spasms.”

Brilliant & Neiman LLC is proud to announce that Dina Brilliant and Glenn Neiman were part of a panel of Pennsylvania workers’ compensation dignitaries for a Continuing Legal Education Seminar, entitled “Ethical Considerations in Virtual Practice: Workers’ Compensation.”  The seminar was presented on December 12, 2023 by the Bucks County Bar Association.  Joining Ms. Brilliant and Mr. Neiman on the panel were Workers’ Compensation Judges Angela Lorenz and Cassi Martin, as well as defense counsel Joseph Turchi.

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