Articles Posted in PA Workers Compensation Bureau Update

As we have noted in the past, generally, the Pennsylvania Bureau of Workers’ Compensation does not publicize when Workers’ Compensation Judges (WCJs) move from county to county, or even when they change into a different role in the Bureau.  So, it falls to us to share with injured workers what seems to be happening from our view.  Since none of this has actually been confirmed by the Bureau, all of what we are saying here is purely rumor.

Perhaps the most significant change is the appointment of Judge Joseph DeRita (who had been hearing cases in Easton and Doylestown) to the role of Director of Adjudication for the Bureau.  We offer sincere congratulations to Judge DeRita in his new role.  While we will miss his intelligent and patient view from the bench, his leadership will now benefit the entire Bureau of Workers’ Compensation.

It appears that the Easton workers’ compensation hearing office will now feature Judge Brian Puhala, along with Judge Bruce Doman.  Judge Thomas Kuzma, who had been in Reading, will assume half a case load in Allentown (and the remainder still in Reading).  The Doylestown workers’ compensation hearings will be conducted by Judge Karen Wertheimer (who is the Judge Manager for the Eastern District), and Judge Robert Benischeck, who had been stationed in Bristol.

We have been following the status of the Impairment Rating Evaluation (IRE) process in PA closely, ever since the Supreme Court of Pennsylvania declared the IRE process unconstitutional in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  This has included interpretations by the Commonwealth Court of PA in the  Whitfield and Timcho cases.

As we long suspected, though, the real response would come from the Pennsylvania legislature.  In their ever-present desire to bend to the wishes and desires of the insurance industry, the legislature passed Act 111 (formerly known as House Bill 1840).  This was signed into law by Governor Thomas Wolf on October 24, 2018.  This immediately reinstates the IRE aspect of the Pennsylvania Workers’ Compensation Act.

Since we have previously discussed what the IRE process involves, we will not again detail that information.  If you would like to see more of that discussion, we would suggest reviewing the prior blog entries regarding the Protz, Whitfield and Timcho cases.

We had heard on the grapevine that The Honorable Joseph Hagan, the current Judge Manager for the Southeastern District for the Pennsylvania Bureau of Workers’ Compensation, would be stepping down in the near future.  We have now heard confirmation of this change from the Bureau.  We are pleased to relate that Judge Hagan will, indeed, be retiring in the middle of April.  While we will miss practicing before Judge Hagan, we wish him health and happiness in his retirement.

Meanwhile, since the cases keep coming, no matter who leaves, the Judge Manager position must be filled.  We are also pleased to let everyone know that the new Judge Manager for the Southeastern District will be The Honorable Holly San Angelo.  From practicing in front of Judge San Angelo for several years, we are sure that she will do a terrific job in this role.  This will be effective as of March 16, 2018.  For reference, the Southeastern District includes the workers’ compensation hearing offices in Philadelphia and Upper Darby.

As we have previously mentioned, the Pennsylvania Bureau of Workers’ Compensation rarely provides official or formal notice regarding the addition or subtraction of Workers’ Compensation Judges (WCJs) in the Commonwealth.  As usual, it is up to us to point out these changes, from our contact with other attorneys, and from our appearances in the many workers’ compensation hearing offices across PA.

Along these lines, we announce, with mixed feelings, the retirement of The Honorable Paul Baker.  Over his illustrious career, Judge Baker has presided over cases in Philadelphia, Pottsville and Harrisburg (at least these are the courts where we have appeared before him over the years).  Judge Baker was always known for his thoughtful and thorough handling of his cases, and we will miss his intelligence and compassion from the bench.  On the other hand, we are thrilled for him personally, in that he can step away from the bench, and enjoy his retirement.

Please join us in congratulating Judge Baker on a wonderful career as a jurist, and wishing him well in his retirement!

In past blog posts, we have discussed the Uninsured Employers’ Guaranty Fund (UEGF).  This is the safety net available for workers who have been injured while working for an employer who (in violation of Pennsylvania law) fail to carry PA workers’ compensation insurance.  While the UEGF does give these injured workers an avenue to pursue to get wage loss and medical benefits, there are hurdles to clear which are not present with a typical PA workers’ compensation case.

Ordinarily, when a worker gets hurt in Pennsylvania, he or she simply files a Claim Petition and can seek benefits from the date of the work injury.  When a claim is being made against the UEGF, however, one must first file a Notice of Claim Against Uninsured Employer (the form is LIBC-551).  Unless the Notice is filed within 45 days of the injured worker knowing the employer failed to carry PA workers’ compensation insurance, no medical or wage benefits are payable until the Notice is filed.

Once the Notice is filed, the injured worker must wait at least 21 days to file a Claim Petition for Benefits from the Uninsured Employer and the Uninsured Employer’s Guaranty Fund (form LIBC-550).  In contrast, there is no requirement (in a typical PA workers’ comp case) of waiting any time before filing a regular Claim Petition.

When a party to a PA workers’ compensation litigation receives a decision of the Workers’ Compensation Judge (WCJ), the party can file an appeal to the Workers’ Compensation Appeal Board (WCAB).  If a party is not successful before the WCAB, then the party can file an appeal to the Commonwealth Court of Pennsylvania.  The losing party at that level can request an appeal to the Supreme Court of PA, but whether the appeal is accepted by the Supreme Court is discretionary with the Court.

Oral argument is available on every case before the WCAB, even before briefs are submitted (though the parties can waive the right to oral argument if they wish).  At the Commonwealth Court and Supreme Court levels, however, the Courts decide whether they want oral argument (typically requested only on novel or complicated issues), and the arguments would be after the briefs are submitted.

At least, that’s how it was.  We were just notified by the Pennsylvania Department of Labor & Industry that a change is being proposed to the rules regarding oral argument before the WCAB.  There are two basic elements looking to be changed.  First, the briefs would be submitted before any oral argument would be done (so the WCAB Commissioners could know the case before hearing the oral arguments cold).  Second, mirroring the higher courts, the use of oral argument would be discretionary with the WCAB, reserved for novel or complex issues.

The fallout from the decision rendered by the Supreme Court of Pennsylvania in the Protz case is only just beginning.  Since this decision will change how workers’ compensation cases are handled in PA (at least for the moment), the PA Bureau of Workers’ Compensation has now issued a statement on the front page of its official website (WCAIS).  In its entirety, the statement reads:

On June 20, 2017, the Pennsylvania Supreme Court issued its decision in Protz v. WCAB (Derry Area School District), Nos 6 WAP 2016, 7 WAP 2017, holding that Section 306(a.2) of the Workers’ Compensation Act (77 P.S. § 511.2) is an unconstitutional delegation of legislative authority.  The Court’s opinion makes clear that the entirety of Section 306(a.2) is unconstitutional.  Therefore, effective immediately, the Bureau of Workers’ Compensation will no longer designate physicians to perform Impairment Rating Evaluations.”

As the Protz decision has rocked the PA workers’ compensation system, we will be closely following developments.  Check our blog often for updates!

House Bill 18 has made it out of committee and is expected to be voted on early next week (Tuesday).  This bill would drastically change how injured workers in Pennsylvania would get their medications (and what medications they could get).  Basically, the Bill introduces “Evidence-Based Medicine” to PA workers’ compensation prescriptions.  This means that patients of a work injury would no longer be able to have care (or at least medicine usage) dictated by treating physicians; instead, the use of medications would be through established guidelines (amassing statistical data).  This, of course, ignores the simple fact that every patient is different and requires different care.  One cannot treat every person identically the same.

This could just be the first step in making “Evidence-Based Medicine” the care for every aspect of a work injury.  Imagine that your treating doctor is powerless to order care as he or she feels best, but is instead limited to what statistics say should be done for the majority of patients.  It is an absolute disgrace that Pennsylvania legislators think so little of injured workers to subject them to this kind of dangerous and substandard care.

Call your State legislators and tell them how you feel, before this Bill becomes reality!

As we have done in the past, our attorneys will be at the Pennsylvania Bureau of Workers’ Compensation Conference in Hershey, PA, on June 12th and 13th.  This is the one annual program run by the Bureau itself.  There is a large attendance by adjusters, risk management and safety officials, attorneys (from both sides of the fence) and Workers’ Compensation Judges from all across PA.

While we regret being out of town, and unable to serve our clients on these two days, we believe attending this seminar is beneficial to ultimately represent injured workers in Pennsylvania.  By listening to updates in case law and legislation, we stay current on trends and developments (as followers of our blog know, of course, we already stay pretty close anyway!).

Perhaps just as significant as the seminar, is hearing the topics being discussed by attorneys for the insurance carriers, and, even more so, the Workers’ Compensation Judges (WCJs).  It is invaluable to have some insight into how any particular situation, or any set of facts, will be viewed by our opponent, or by the WCJ.

As attorneys representing the injured worker in Pennsylvania, there is a call we get far too often.  It starts with the injured worker telling us that they lost their case before the Workers’ Compensation Judge (WCJ) and need assistance in litigating an appeal before the Workers’ Compensation Appeal Board (WCAB).  Unfortunately, in the vast majority of these cases, we are simply unable to offer help to the injured worker.

The role of the WCJ in Pennsylvania workers’ compensation is something we have discussed on this blog in the past.  Essentially, the WCJ is the ultimate Finder of Fact.  When a credibility determination has to be made, it is the province of the WCJ to do so.  As long as there is support in the evidentiary record, and the WCJ explains his or her reasoning, these credibility determinations cannot be reversed or changed on appeal.  Even if the appellate body, whether the WCAB, the Commonwealth Court of Pennsylvania, or even the Pennsylvania Supreme Court, admits it would have concluded otherwise, it still cannot change the Findings of Fact or credibility determinations rendered by the WCJ.

So, you may be wondering, if an appellate court cannot change the Findings of Fact or determinations of credibility of a WCJ, what is required then on appeal?  Basically, a successful appeal requires that it be shown the WCJ made an error of law.  An appellant would have to show that there is no substantial basis to support the ultimate Conclusion of Law made by the WCJ.  In other words, accepting the facts as found by the WCJ, the appellant should still have won.  For better or worse (depending if you win before the WCJ), it is pretty rare to find a true “error of law” made by the WCJ.  This is why we can rarely help an injured worker with an appeal, when the injured worker does not contact us until he or she loses in front of the WCJ.