Articles Posted in PA Workers Compensation Bureau Update

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.

We have discussed the role of Utilization Review (UR) both on our website and on our blog.  This helps demonstrate how important this concept is in the Pennsylvania workers’ compensation system.  As the Bureau’s Workers’ Compensation Automation and Integration System (WCAIS) takes an increasingly bigger role in the practice of workers’ comp in PA, there are changes which must be made.  One of those deals with the UR process.

UR is, of course, the process to determine whether a given course of medical treatment is reasonable and necessary.  If treatment is found to not be reasonable and necessary by the Utilization Review Organization (URO), the workers’ comp insurance carrier is not liable for the payment of that treatment (nor, by the law, is the patient).  A determination by a URO can be appealed to a Workers’ Compensation Judge (WCJ).

Typically, a UR is initiated by the workers’ compensation insurance carrier, to try and avoid paying for a specified medical treatment.  Frequent targets in these URs are physical therapy, chiropractic treatment and medications.  However, there are often situations where we file a UR, prospectively (for some future treatment), so our client can more easily get a specific treatment, whether it be a diagnostic study (such as an MRI or EMG), surgical procedure, or unusual medication.

According to a memo released by Alfonso Frioni, Jr., Esquire, Chairman of the Pennsylvania Workers’ Compensation Appeal Board (WCAB), Commissioner Susan M. McDermott has decided to retire after spending over twenty years on the WCAB, including a stint as the very first female Chairperson of the WCAB.  The entire text of the memo is:

On behalf of the Pennsylvania Workers’ Compensation Appeal Board, we extend our special thanks and congratulations to Commissioner Susan M. McDermott on her retirement from the Board.

Commissioner McDermott was appointed to the Appeal Board by Governor Tom Ridge in 1996, serving over twenty years until her recent retirement in January 2017.  Susan was one of the first two women appointed to the Board in its one-hundred-year history, and was the very first woman Chairperson of the Workers’ Compensation Appeal Board serving from 1996 to 2010.  Susan’s contributions to the professionalism of the Board were extensive with her instituting many of the Board’s internal operating procedures, particularly with regard to the circulation of opinions, adopted from The Commonwealth Court.

In law, almost every cause of action has a “statute of limitations.”  This is simply a time within which a cause of action can be brought.  Typically, if a suit or action is not filed within the applicable statute of limitations, the suit or action will be dismissed.  Pennsylvania workers’ compensation cases are no different.  Basically, the statute of limitations for a PA workers’ compensation case is three years.  But that is only part of the story.

There are actually time constraints in PA workers’ comp other than the basic statute of limitations.  These can be longer or shorter than the general statute of limitations.  For example, notice of an injury must be provided within 120 days of the injury (though, in certain types of cases, that time can be extended under the “discovery rule”).  Unless the case is covered by the discovery rule, the failure of the injured worker to provide notice to the employer within 120 days of the injury will cause the workers’ compensation claim to be denied.

On the other hand, there are types of workers’ comp cases in PA that have a statute of limitations longer than three years.  When an injured worker dies subsequent to an injury, as a result of the work injury, we have what is known as a “fatal claim.”  Under the Pennsylvania Workers’ Compensation Act, as stated in Section 301(c)(1), ” . . . wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury.”  So, as long as the death takes place within 300 weeks of the work injury, fatal claim benefits may be obtained (these provide benefits to dependents, since general workers’ compensation benefits in PA end with the death of the injured worker).

While I apologize to my clients for not being available for the last couple of days, I think you will agree that the absence was for a good cause.  For the last several years, I have attended the Annual Pennsylvania Bureau of Workers’ Compensation Seminar, which was held earlier this week in Hershey, PA.  Not only does this seminar allow me to earn many of the continuing legal education credits I need every year, but it also allows us a window into what employers and adjusters are being told regarding the law (I am in the vast minority as an attorney who represents injured workers – the seminar is primarily attended by claims personnel (from both employers and insurance carriers) with some defense attorneys sprinkled in).

Like having the playbook for the other team, we believe it is incredibly valuable to hear what is being told, and how, to these workers’ comp claims personnel.  This allows us to have an idea about how a claim or a situation may be viewed, and what steps may, or may not, be taken.  We hope this allows us to be one step ahead in protecting our clients.

So, now we are back, armed with this insight and ready to once again provide each injured worker with the best representation possible.  If you are not already being protected by us, give us a call today at 215-638-7500 and let our knowledge and experience work for you too.

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