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.

When one receives a decision issued by a Workers’ Compensation Judge (WCJ) in Pennsylvania, one has the right to file an appeal.  The first level for this appeal is the PA Workers’ Compensation Appeal Board (WCAB).  For about the last 50 years, litigating an appeal before the WCAB has been unchanged.  Starting July 11, 2022, however, there will be substantial changes taking place.

Until now, the person filing an appeal, formerly called the Appellant (now called the Petitioner), would file his or her brief (written argument) on or before the date of the oral argument.  This oral argument would be held in person at various locations across the State of Pennsylvania (Philadelphia, Pittsburgh, Harrisburg, Scranton and Erie).  The Respondent (formerly called the Appellee) would typically submit his or her brief 30 days after the oral argument.

Even before the COVID-19 pandemic turned the entire PA workers’ compensation system into a largely virtual affair, there had been discussion of making oral argument before the WCAB into a virtual event.  Since the virtual method ran so smoothly during the pandemic, the WCAB will be retaining this as the primary method of conducting oral argument.

Coming on the heels of last month’s announcement from the Pennsylvania Bureau of Workers’ Compensation, advising that two new Workers’ Compensation Judges (WCJs) would be taking the bench, we were surprised to hear more hiring news from the Bureau this month.  In addition to the two new WCJs we discussed in March (The Honorable Debra Matherne and The Honorable Cassi Martin), there are now two more WCJs taking the bench in the near future.

Having two announcements so close in time is unusual, though there has been an unusual amount of retirement and turnover among the WCJs recently.  We are now welcoming Angela Lorenz and Angel Torres to the bench.

The official statement released by the Bureau states:

In recent years, the Pennsylvania Bureau of Workers’ Compensation has been more transparent with the hiring of new Workers’ Compensation Judges (WCJs). While we generally have to rely on word of mouth for the retirement or transfer of a WCJ (to a different workers’ comp hearing office), we can usually count on the Bureau to let us know when a new WCJ is appointed to the bench. Along these lines, we are happy to congratulate Debra Matherne and Cassi Martin on becoming WCJs.

According to the Bureau, “Ms. Matherne has most recently been employed by Cipriani and Warner as a partner doing primarily WC defense work. Prior to that, she practiced on the Claimant’s side as a partner with Michael O’Connor and Associates. She has set a tentative start date of 3/28 to begin Act 57 training.”

Cassi Martin is an active member of the Bucks County Bar Association (BCBA), and the Workers’ Compensation Section of the BCBA, so we are well-acquainted with her talents and experience. She had been working for Hill Wallack LLP, handling primarily workers’ compensation defense work for employers, self-insureds and insurance carriers. Having earned her undergraduate degree at Marist College, Ms. Martin received her J.D. degree from Fordham University School of Law. On April 11, 2022, Ms. Martin will begin her WCJ training. Upon the completion of her training, Ms. Martin will be assigned to the Philadelphia Workers’ Compensation Hearing Office.

Nearly two full years after COVID-19 briefly shut down the Pennsylvania workers’ compensation system, and then created a dramatic shift in how litigation was done, the PA Bureau of Workers’ Compensation has announced measures to return to some level of our prior (the old “normal”) operation.

It has been since March, 2020, that most of us in the workers’ compensation bar have physically been inside of a workers’ comp hearing room.  Nearly every hearing and mediation since that time has taken place in a virtual format.

The Workers’ Compensation Office of Adjudication (WCOA) has officially announced that mask mandates have been lifted and live (in person) hearings and mediations may again commence.  While the virtual hearings which have become the new “normal” will continue in some respects, it appears that live testimony will once again be taking place.  You may recall that the PA workers’ comp courts were permitted to be “open” as of August 16, 2021, though very few Workers’ Compensation Judges (WCJs) actually held live hearings.  At Brilliant & Neiman LLC, we have not been involved in a live hearing since March, 2020.

A topic often litigated in the Pennsylvania Workers’ Compensation system is whether an injured worker was within the scope and course of his or her employment at the time of the incident.  Accordingly, this is a topic that is no stranger to this blog.  Though this area continues to depend drastically on the facts within each case, a recent decision by the Commonwealth Court of Pennsylvania does shed some additional guidance on such cases.

In Henderson v. WP Ventures, Inc. (Workers’ Compensation Appeal Board), a custodian was waiting to be able to perform his usual tasks.  He was being prevented from doing so by the facility being cleaned and ventilated after a roof leak.  Taking advantage of his down time, the injured worker stepped out for a cigarette and to grab a sandwich from a nearby shop.  While outside of the facility, the injured worker fell and hurt his head.

A Claim Petition was filed, and litigated, before a Workers’ Compensation Judge (WCJ).  The injured worker testified that if his supervisor was not around (as was the case that day), he was permitted to take limited breaks without express permission when there was idle time.  This was not disputed by the employer.  After hearing the evidence, the WCJ granted the Claim Petition.  Specifically, the WCJ found, “Claimant was taking a cigarette break when he slipped and fell on the walkway outside of the building in which he was working, and this was a minor deviation from employment that would fall under the personal comfort doctrine.”

A recent case in the Commonwealth Court of Pennsylvania touched on two interesting aspects of the PA workers’ compensation system.  First, the Court dealt with the offset for Social Security Old Age benefits (personally, I find “Social Security Retirement” benefits a bit less offensive), under Section 204(a) of the Pennsylvania Workers’ Compensation Act.  Second, the role and importance of a post-injury conviction, in the context of the vocational process, was considered.

The case we are discussing is Sadler v. Philadelphia Coca-Cola (Workers’ Compensation Appeal Board).  Obviously a serious injury, the workers’ comp insurance carrier accepted “’a right pinky finger amputation,’ ‘distal radioulnar joint subluxation, ECU tendinopathy, pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ resection’ and ‘right transverse process fractures of L2-3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib and right leg radiculitis, . . . and low back sprain.’” After the injury, while receiving temporary total disability (TTD) benefits, the injured worker applied for Social Security Retirement (SSR) benefits (and, in turn, the insurance company filed a Notice of Offset, reducing the TTD payments based on 50% of the SSR benefits).  Also subsequent to the work injury, the injured worker was convicted of a Class II Felony and incarcerated for some period of time.

As frequently happens, the workers’ compensation insurance carrier had the injured worker evaluated for an “Independent Medical Examination” (IME; the word “independent” being dubious, since it is the carrier who unilaterally selects the physician).  After the IME doctor releases the injured worker to gainful employment, the insurance company retains a vocational counselor to prepare a Labor Market Survey (LMS), also known as an Earning Power Assessment (EPA).  The insurer then files a Petition for Modification, based on the jobs found in the LMS/EPA (in addition to a Petition for Termination, which is not relevant to our discussion).  Among other petitions not directly relevant, the injured worker filed a Petition to Review Benefit Offset.

One of the most unfair aspects of Pennsylvania Workers’ Compensation has always been how injured workers must defend petitions which address only medical benefits.   While injured workers receiving total disability benefits can easily retain an attorney (paying a portion, usually 20%, of such benefits as the fee), injured workers who continue to work, and lose no wages, must decide whether to pay an attorney from their pocket or risk losing access to medical benefits for the work injury.  However, this situation has now changed, thanks to a decision by the Supreme Court of Pennsylvania.

The PA Workers’ Compensation Act (“Act”) has typically been interpreted to allow attorney fees to only be assessed against the workers’ comp insurance carrier if there is a showing that the petition at issue was “unreasonable.”  Thus, the award of attorney fees, chargeable to the insurance company, was the exception to the rule.  This despite the fact that Section 440 of the Act says:

“In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.” [Emphasis added]

The Pennsylvania Department of Labor & Industry recently announced that the “statewide average weekly wage” (SAWW) for 2022 will be $1,205.00.  This represents a 6.6% increase over the SAWW for 2021 of $1,130.00.  Under the PA Workers’ Compensation Act, the SAWW represents the maximum workers’ compensation rate which can be received by an injured worker in Pennsylvania.

Back in July, 2019, we blogged, unhappily, about the Commonwealth Court of Pennsylvania decision in Peters v. Workers’ Compensation Appeal Board (Cintas Corporation).  This decision found a traveling employee to not be in the scope and course of his employment when he was injured in a motor vehicle accident after leaving a work-sponsored event.  Today, it is our pleasure to report that the Supreme Court of Pennsylvania has issued a decision vacating the decision of Commonwealth Court.  Essentially, the Supreme Court agreed (as did we) with the two dissenting judges on the Commonwealth Court.

Just to give a quick recap, the injured worker (“Claimant”) was a salesman, who went to various sites in his day.  There was no dispute that he was a “travelling” employee for the purposes of the PA Workers’ Compensation Act (Critical, since commuting to work is not generally covered with a stationary employee, absent some other factor, such as “a special mission”).

One day, after completing his work, Claimant drove to a bar, where his employer was sponsoring an event, typical of an after-sales blitz.  The employer paid for the food and drink.  To get to this bar, Claimant had to actually pass the exit for his home.  After the event, Claimant was injured in a car accident.

One frequently litigated part of PA workers’ compensation law is whether an injured worker is within the “scope and course” of his or her employment at the time of the injury.  Often, this question is dealing with a situation where an employee is injured just before or after his or her work day.  Since these cases are very limited by the exact facts, we like to see how the courts address each and every instance.  Recently, the Commonwealth Court of Pennsylvania issued a decision on this issue, though it is “unreported.”

We have previously discussed that not all Pennsylvania appellate cases, including ones that address PA workers’ compensation issues, are created equal.  Only “reported” appellate cases can be used as precedent.  However, “unreported” cases can still be cited by the parties, as persuasive, though such decisions are not binding on a Workers’ Compensation Judge (WCJ).  For these reasons, we obviously prefer to use reported cases, but we never ignore the unreported ones.

The recent case is Lombardi v. Workers’ Compensation Appeal Board (UPMC Health Plan, Inc.).  Here, the injured work arrived for her shift about 30 minutes early.  Her work takes place in an office building, not owned by her employer.  The injured worker went to the food court on the ground floor, intending to purchase breakfast to take to her cubicle.  While doing so, she tripped and fell, fracturing her right forearm and wrist.

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