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.


In Pennsylvania workers’ compensation, physical and mental injuries are treated very differently.  Is that fair?  Probably not, but that is the law with which we are left.

A physical injury, like a herniated disc in the neck or back, a rotator cuff tear in the shoulder or a ligament tear in a knee, are compensable under the PA Workers’ Compensation Act (Act), as long as the injured worker was within the scope and course of his or her employment at the time of the injury.  A mental injury, like post-traumatic stress disorder (PTSD), anxiety or depression, on the other hand, must be due to “abnormal working conditions” to be compensable (unless resulting from a physical injury).

It is the interpretation of this phrase, “abnormal working conditions,” upon which such a case turns.  As the court decisions have taught us, that phrase is very fact specific.

We often have issues regarding whether a particular medical expense is payable by the workers’ compensation insurance carrier.  The issue could be whether it is a “medical” treatment at all, whether it is related to the work injury, or whether it is “reasonable or necessary.”  A recent case from the Commonwealth Court of Pennsylvania examined a few of these issues.

In M.R. Schmidt v. Schmidt, Kirifides and Rassias, PC (Workers Compensation Appeal Board), the injured worker (Claimant) suffered an “aggravation of a preexisting degenerative disc disease at the levels of L4-5 and L5- S1 with radiculopathy” while he was loading files into a bag.  The injured worker litigated, and won, a Claim Petition to have this injury accepted as compensable.  Despite his injury, Claimant continued to work with the assistance of pain management.  In an effort to avoid increasing the amount of Oxycodone and/or OxyContin he was taking, the pain management physician prescribed cannabinoid (CBD) oil.  Since the dosages of the opioids has not been increased again, and Claimant has been able to avoid surgery, the use of CBD oil appears to have been successful.

The Pennsylvania Workers’ Compensation Act (Act) requires that the insurance carrier pay for all reasonable and necessary medical treatment related to the work injury.  As such, Claimant provided the insurance carrier with the prescription for the CBD oil, as well as his out-of-pocket receipts.  The insurance carrier refused to reimburse these expenses, alleging that CBD oil is not a “pharmaceutical drug.”  As a result, Claimant filed a Petition for Penalties.

We are often asked why an injured worker in Pennsylvania needs an attorney.  “They know I got hurt on the job,” the injured worker might say, “Why would I need a lawyer?”  Well, the Commonwealth Court of Pennsylvania recently issued a decision that demonstrates why every injured worker in PA should have an attorney protecting his or her rights.

In Keffer v. Colfax Corporation and Phoenix Insurance Company (Workers’ Compensation Appeal Board) it appears the injured worker did everything his employer and the insurance carrier asked.  And, he lost all of his rights in the process.  This case is a very important lesson for every injured worker in Pennsylvania.

The injured worker in this case hurt his low back lifting a box of metal rods on December 18, 2014.  The insurance carrier issued a Notice of Temporary Compensation Payable (NTCP), accepting the injury as a “low back strain,” and the payment of workers’ compensation benefits began.  These benefits continued until the injured worker returned to full-duty work on March 9, 2015.  The insurance carrier then issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP) on March 12, 2015.

There are two situations when an employee hurt at work in Pennsylvania is entitled to workers’ compensation benefits.  The first, which encompasses the vast majority of cases, is when the employee is “actually engaged in the furtherance of the [employer’s] business or affairs . . . .”  This is true whether the injury takes place on or off the premises of the employer.  On the other hand, the second is when the employee is not actually engaged in the furtherance of the employer’s business or affairs.  In that situation, the analysis is one based on a 1977 Pennsylvania Commonwealth Court case called Workmen’s Comp. Appeal Bd. (Slaugenhaupt) v. United States Steel Corp (and generally known as the “Slaugenhaupt test”).

Under the Slaugenhaupt test, the injured worker must prove that he or she “(1) is on a premises under the control of the employer; (2) is required by the nature of his employment to be on such premises; and (3) sustains an injury or injuries due to a condition of the premises or operation of the business.”  All three of these requirements must be met.  Parking lot cases (so, before or after work) are always fact-specific, given this analysis.

A recent case decided by the Commonwealth Court of PA addressed this issue.  In Lewis v. Lehigh Asphalt Paving & Construction Co. (Workers’ Compensation Appeal Board), the employee felt some pain and weakness in his left calf and ankle while working.  He finished his shift and clocked out.   About 15 minutes after clocking out, he got into his work truck to go home.  As he pushed off his left foot to get into the truck, he felt a pop in his lower leg (which was the Achilles tendon tearing).  He sought medical care, and provided notice to his employer, that same day.

When an injured worker in Pennsylvania hurts his or her spine, there are many diagnostic tests that a doctor may prescribe.  Sometimes, the doctors do not fully explain what a test is, or what it may show.  We believe that an injured worker should be fully informed, whether as to the legal aspects of his or her case, or the medical aspects.  While we are certainly not doctors, and would never suggest or recommend treatment, if the doctor will not educate his or her patient, that responsibility can fall to us.  We believe our clients are best served by being fully informed about what is happening in their case, both medically and legally.

From our experience, the first thing a doctor does when seeing a patient for a work injury to the neck or back is get x-rays.  An x-ray will show bone, such as a fracture (including, potentially, a stress fracture), but will not visualize soft tissue, like discs, muscles, tendons or ligaments.  This would be to rule out the presence of a fracture (though, if a fracture is still suspected, a bone scan can be done to better analyze the presence or absence of a fracture).

If the injured worker has pain, numbness or tingling into one or both arms, or one or both legs, a doctor may suspect the presence of “radiculopathy” or “radiculitis”, meaning that a nerve is possibly being pinched or touched by another structure, either a bulging or herniated disc, or due to “stenosis,” a narrowing of the spine which can be degenerative (though stenosis can be “aggravated” by an injury at work).  To assess the discs, and degree of stenosis, doctors often prescribe an MRI, with or without contrast.  The results of the MRI may help the doctor determine whether surgery can help reduce the pressure on the nerve, to potentially relieve the radiating symptoms to the arm or leg.

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