The Uninsured Employers’ Guaranty Fund (UEGF), and its role in the Pennsylvania workers’ compensation system, has been discussed previously in this Blog.  While the UEGF plays under different rules than every insurance carrier that writes PA workers’ compensation insurance coverage, and the UEGF can be incredibly difficult and frustrating to litigate against, there is no argument that the UEGF is an improvement over how things were, before the UEGF was enacted.

The different rules which apply to the UEGF were further set when the legislature passed, and Governor Thomas Wolf signed, Act 132 in October, 2018 (has it been a year already?).  This new legislation provided new protections for the UEGF to enjoy, in an effort to protect limited resources in the face of the increasing number of claims (perhaps a more effective method of protecting UEGF assets, rather than leave injured workers without remedy, would be to focus on the employers who violate PA law by failing to carry PA workers’ compensation insurance).

Among the changes to the UEGF rules in Act 132 are:

When we litigate a Claim Petition, to obtain PA workers’ compensation benefits for one who is injured at work, we must prove that the person was hurt while in the scope and course of his or her job, and that such injury renders the person disabled.  Almost always, this requires the testimony of a medical expert (usually the treating doctor).  The opinion the doctor provides must be to a “reasonable degree of medical certainty.”  What does that phrase mean?  Commonwealth Court of Pennsylvania recently examined that very thing.

In PetSmart, Inc. v. Workers’ Compensation Appeal Board (Sauter), the injured worker alleged that he had hurt his low back while doing his job.  A Claim Petition was filed, and the matter was litigated before a Workers’ Compensation Judge (WCJ).  In support of the Claim Petition, the injured worker presented expert medical testimony, from his treating physician, that “he had discogenetic [sic] low back pain, as well as nerve symptomatology of indeterminate etiology” and that it was his “presumption” that it was related to work.  Finding the injured worker, and his medical expert, credible, the WCJ granted the Claim Petition.  This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ.  While the Court was quick to point out that there are no “magic words” that need to be used by a medical expert, and that an appellate court is “not permitted to pick one or two sentences out of context,” the Court concluded that the testimony of the injured worker’s medical expert did not rise to the level of “reasonable degree of medical certainty,” and could not support the granting of the Claim Petition.

The vast majority of work injuries in Pennsylvania heal with conservative treatment, allowing the injured worker to return both to work, as well as to activities of normal life.  However, there are certainly the more serious injuries, where more invasive medical treatment is required.

Often the more invasive treatment options entail surgery.  When we are talking about work injuries to the neck and back, the procedures we usually see are laminectomy, microdiscectomy and traditional lumbar fusion.  For a description of each of these, and more information regarding these procedures, check out this post from Penn Medicine.  For our purposes today, we are looking at the traditional lumbar fusion.  As explained in the Penn Medicine article:

Traditional spinal fusions are used to treat instability of the spine, scoliosis, severe degeneration of the discs, or a combination of these issues.  A fusion involves using bone from the patient’s body to fuse one vertebrae to another.  Often, metal screws (pedicle screws) are placed into the vertebrae to assist with the fusion process.”

While we are very conscious of being available to our clients as much as possible, the practice of PA workers’ compensation law, and the litigation process, means we are not always in our offices.  Sometimes, in addition to being at workers’ compensation hearings and depositions, our attorneys attend events or presentations that may help us better perform our job protecting the injured worker in PA.

And, so it follows, our attorneys were invited by Rothman Institute to attend their Workers’ Compensation Conference, being held all day on Friday, October 24, 2019.  We sincerely apologize if this means we are not available to help our clients on that day directly, though our office staff certainly remains available (and can reach the attorneys for any emergencies).  As our clients know, it is the practice of Brilliant & Neiman LLC for the clients to speak directly to the attorney, rather than being forced to always speak to support staff.  We apologize for this deviation from our regular course of business.

The Workers’ Compensation Conference will no doubt provide our attorneys with additional tools to help us best protect the rights of injured workers in PA.  Topics being presented will include 3-D printing in orthopedic surgery, issues with complex rotator cuff surgery, as well as general updates regarding treatment options for injuries to the neck, back and knees.  The Workers’ Compensation Conference will be moderated by Dr. Nicholas Taweel, and will include presentations from Dr. Pedro Beredjiklian, Dr. Mark Lazarus, Dr. Michael Molter, Dr. Howard Yeon and Dr. Paul Steinfield.

Left Fielder Corey Dickerson, of the Philadelphia Phillies, was just diagnosed with a broken foot.  Why is that relevant to injured workers?  Because it confirms that an injury is not always what it initially appears.  Unlike a major league baseball player, however, an injured worker is not always given the benefit of the doubt.

On September 4, 2019, Dickerson fouled a ball off his left foot.  They took x-rays that night, which were negative for a fracture.  Since he was diagnosed with just a bruise (or, the fancy word, “contusion”), Dickerson then played, in pain, in the next several games.  When the pain continued, additional testing was performed.  Only then did a CT scan reveal a fracture of the left foot.  Indeed, Dickerson may now require surgery.

Too often in PA workers’ compensation cases, we see an insurance carrier grab on to an initial negative test like a dog with a bone.  Unlike a professional athlete, however, an injured worker can have great difficulty getting additional diagnostic testing.  With the workers’ comp insurance carrier failing to provide pre-approval, getting an MRI, CT scan or bone scan, can be problematic.

For years, we have had an office in the center of Allentown, and represented injured workers all along the Allentown-Bethlehem-Easton corridor.  We have attended workers’ compensation hearings at the Workers’ Compensation Judge office in Allentown (on Tilghman Street), as well as at the Northampton County Courthouse (where Northampton County workers’ compensation hearings are held).  Indeed, both Allentown and Bethlehem/Easton appears on our website as communities we proudly serve.  Recently, it occurred to us that we have never become members of the Northampton County Bar Association (NCBA).  We have been members of the Bucks, Lehigh and Philadelphia County Bar Associations, so it certainly seemed like a logical step for us to join the NCBA.

While other bar associations simply welcome new members by having them complete an application, the NCBA handles these things in a more dignified and traditional fashion.  Indeed, both of our attorneys (Dina Brilliant and Glenn Neiman) had to obtain sponsors, attend a quarterly NCBA meeting, and be formally approved to become members of the NCBA.  And so, at the meeting on September 12, 2019, both Ms. Brilliant and Mr. Neiman were approved as members of the NCBA.  We are proud to have been admitted into the NCBA, and we look forward to becoming further involved in the wonderful work the NCBA does in the community, as we have done with the other Bar Associations of which we are members.

We will continue striving to serve injured workers in the Allentown-Bethlehem-Easton community through our Center City Allentown office, as we do with injured workers in the Bucks, Montgomery and Philadelphia areas through our offices in Trevose and Warminster.  And, for those injured workers elsewhere in the Southeastern to Central areas of PA, we also are happy to meet clients in various other locations conveniently located throughout the region.

We have talked before on this blog about how an injured worker can go about choosing a Pennsylvania workers’ compensation attorney.  Since this is such a common question, the issue is so important, and there are so many choices, we even have a page on our website devoted to the topic.  So, this blog post is not about how to choose a workers’ comp lawyer.  Instead, this entry will talk about one of the more important jobs we, as attorneys who represent injured workers, have in the process.

The vast majority of injured workers are not familiar with the Pennsylvania workers’ compensation system.  From the outside, it can appear to be a complex and complicated arena.  Indeed, it can even be complicated for those of us who work with the system every day.  Perhaps the scariest aspect of this for the injured worker is simply the vast unknown.

We regularly participate in various injured worker message boards on the internet, providing general legal information to those who ask (we, of course, cannot provide legal advice to someone we do not represent).  Many of the questions we see, from injured workers who are already represented by an attorney, as well as those who are not, deal with the PA workers’ compensation process and how it works.

While workers in Pennsylvania are generally all covered by the PA Workers’ Compensation Act (other than certain classes, such as Federal workers, some of those in the shipping industry, and others), not all are treated equally.  There is a stark difference between “stationary” employees (who go to the same job location each day) and “travelling” employees (who do not).  But, as we see in a recent decision of the Commonwealth Court, even the additional latitude of the travelling employee is not always enough.

In Peters v. Workers’ Compensation Appeal Board (Cintas Corporation), the employee was undisputedly a “traveling” employee.  As a salesman, most of his time was spent out on the road, travelling to various accounts.  One day, after working his full day out in the field, he came back toward his house, passed the exit for his house, and continued on to a bar, where he attended what the Commonwealth Court of Pennsylvania termed “a celebration with coworkers.”  When he went home, after the “celebration,” he was injured in a car accident.

The employee (the “Claimant”) filed a Claim Petition, alleging his injury took place while in the scope and course of his employment.  After litigating before the Workers’ Compensation Judge (WCJ), the Claim Petition was denied.  The WCJ found that Claimant was not in the scope and course of his employment at the time of the injury.  This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

As many of our readers know, we are very connected to the Lehigh Valley.  This is something we feature on our website.   We have an office in Center City Allentown, at 609 Hamilton Street, just blocks away from the PPL Center, to serve our clients throughout the Lehigh Valley area.  We are also proud members of the Bar Association of Lehigh County.

So, it seemed an obvious decision for us to partner with the Lehigh Valley IronPigs, the AAA minor league affiliate of the Philadelphia Phillies.  You can now see our advertising when you come out to Coca-Cola Park in Allentown to root on the IronPigs this Summer.

Here are some photos from a game this week, showing our ads:

As proud members of the Bucks County Bar Association (BCBA), the attorneys at Brilliant & Neiman LLC joined other members of the BCBA last night for the annual Judge John J. Rufe Softball Game.  Playing for the “seasoned” lawyers team (that is, of course, the most diplomatic way one can say “old”), Glenn Neiman helped secure a win for the team.  Dina Brilliant cheered on the team from the safe confines of the bench.  This was the first win for the old . . . seasoned . . . lawyer team in three years.

Aside from enjoying the comradery of the event, these types of occasions are important for our attorneys to interact with other attorneys across Bucks County.  Since our firm limits its practice to just handling Pennsylvania workers’ compensation cases, we do not handle other legal matters.  However, we have occasions when our clients, or people who contact our firm, need an attorney for another matter, whether that is a car accident, divorce or support issues, criminal defense, real estate, bankruptcy, employment law or any other area of law.  By being active in the BCBA, we have the luxury of having many fine attorneys in various areas of the law to which we can refer clients.

And, it is not just Bucks County.  The attorneys at Brilliant & Neiman LLC are also members of the Lehigh and Northampton County Bar Associations, and attend events for the Philadelphia and Montgomery County Bar Associations.  This provides our firm with a rich diversity of attorneys for a referral network, in many areas of the law, and many geographic areas.