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.

Articles Posted in PA Workers Compensation Bureau Update

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.

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.

As we have noted previously, all hearings in Pennsylvania workers’ compensation matters have been held virtually, either by telephone or video, since last Spring.  We have now been told that the hearing offices within the PA Bureau of Workers’ Compensation will be reopening as of August 16, 2021.

However, this does not mean the system will return to how it functioned prior to the pandemic.  As with many things, we will be learning a “new normal.”  We have been told that “virtual hearings” will continue for certain things, though exactly when hearings will be live, as opposed to virtual, remains unclear.  Likely, we will have live hearings for the testimony of an injured worker, or an important witness, but that virtual hearings will continue for “status hearings.”  Whether a hearing is live or virtual, ultimately, will come down to the discretion of the Workers’ Compensation Judge.

Meanwhile, the Workers’ Compensation Appeal Board will continue to hold oral argument virtually.  As is the case now, the parties can request oral argument be done live.  Provided the request is made in a timely fashion, it will generally be granted.  In the special case of disfigurement/scarring, the hearing will be done in person.

 

The Pennsylvania Bureau of Workers’ Compensation has announced that The Honorable Ashley Drinkwine will be a new Workers Compensation Judge (WCJ) assigned to the Philadelphia Workers’ Compensation Hearing Office.  Judge Drinkwine will be taking the place of Judge Scott Olin, who has retired after many successful years on the bench.  The decorum and wisdom of Judge Olin will be missed and we wish him well in his retirement.

Specifically, the release states:

The WCOA is pleased to announce the hiring of new Workers’ Compensation Judge Ashley Drinkwine who will replace the recently retired Judge Scott Olin in the Philadelphia hearing office.  Judge Drinkwine will begin her statutorily mandated training beginning June 1, 2021.  Congratulations Judge Drinkwine!

We apologize for having such infrequent posts these past several months.  Like much of society, things have slowed down since the pandemic arrived.  There seem to be fewer appellate decisions coming down, and those that do seem more frequently to be unreported decisions.  This makes it more difficult to find things to share with our readers.

Similarly, the Pennsylvania Workers’ Compensation Office of Adjudication is continuing to have the parties litigate matters remotely, using either telephone or videoconferencing for hearings and depositions.  Unlike family conversations, Zoom is a platform we cannot use, apparently due to security concerns.  Instead, some Workers’ Compensation Judges (WCJs) use WebEx and others use Teams (what was Skype for Business).

The advantages of litigating cases remotely, obviously, are vast.  We eliminate the need to travel to hearings in various counties across the State (we represent clients as far west as Carlisle, Harrisburg and Mechanicsburg, as far south as Delaware County and as far north as the Scranton/Wilkes-Barre area).  Basically, we handles cases throughout the Southeastern, Northeastern and Central parts of PA.

As happens every year around this time, the Pennsylvania Bureau of Workers’ Compensation has released the Statewide Average Weekly Wage (SAWW) for the coming year.  For 2021, the SAWW is $1,130.00, an increase over the $1,081.00 of 2020.  The SAWW represents the maximum weekly workers’ compensation rate an injured worker can receive in PA (for injuries taking place in 2021).

Unfortunately, those injured before 2021 do not see any change in their workers’ compensation rate with this change.  While other benefit programs, such as Social Security Disability, feature an annual cost-of-living increase, the Pennsylvania Workers’ Compensation Act contains no such option.  The rate in place at the time of the work injury is the rate that will remain for the life of that injury, no matter the extent of the disability.

The calculation of the workers’ compensation rate is provided for in the Pennsylvania Workers’ Compensation Act.  First, we must determine the Average Weekly Wage (AWW).  From this figure, we compute the temporary total disability rate, which we generally call the workers’ compensation rate.  Depending on the figures, the workers’ compensation rate is usually two-thirds of the AWW, though that is just the general rule.  Mid-range AWW can result in a workers’ compensation rate of half of the maximum rate.  A lower AWW can lead to a workers’ compensation rate at 90% of the AWW.  On the other hand, an injured worker earning a very high wage would create a workers’ compensation rate limited by the maximum compensation rate (the SAWW discussed above), which would mean he or she would receive less than 2/3 of the AWW.

The Pennsylvania Bureau of Workers’ Compensation rarely announces the coming or going of Workers’ Compensation Judges (WCJs).  Recently, the Bureau veered from its normal procedure and announced the following release:

The Workers’ Compensation Office of Adjudication is pleased to announce the hiring of two new Judges:  Anthony Salvino, Esq. and Jeffrey Mills, Esq.  They will begin training on November 23, 2020 and will be assigned to the Reading office.  Both Tony and Jeff bring a wealth of experience and knowledge in the Pennsylvania workers’ compensation law, practice and procedure.”

What was not mentioned was the departure to retirement of two existing WCJs.  First, we will be losing The Honorable Joseph McManus (who was on the bench in the Bristol Workers’ Compensation Office, serving Lower Bucks County).  Additionally, The Honorable Brian Eader, who was in the Central District of PA, will also be stepping down.  Having appeared in front of both of these WCJs on many occasions, we thank them for their years of service and wish them good luck and health in their retirements.

As we noted in our June 2020 update, the Pennsylvania Bureau of Workers’ Compensation began to (technically) allow limited in-person hearings, in counties which have been declared to be in the “Green” phase by Governor Wolf.  This announcement was made on June 12, 2020, to take effect June 19, 2020.  As a practical matter, we have yet to have an in-person hearing scheduled.  Regular hearings continue to operate by telephone conference, with video conference as the other option.

There appear many different feelings among Workers’ Compensation Judges (WCJs) regarding the taking of testimony of an injured worker or fact witness.  Some WCJs have expressed an interest in video conferencing for the testimony of the injured worker and fact witnesses (for which the Bureau appears to be using Skype for Business primarily, though I understand there is discussion of other platforms).  On the other hand, since the WCJ cannot know who else is in the room, other WCJs want simply deposition testimony of the injured worker or fact witnesses, feeling they get no advantage by watching the video.  I tend to agree with a WCJ who told me that, as long as he can watch the eyes of a witness, he can tell if they are being coached or reading notes.  Another WCJ explained that she did not want in-person testimony of my client, since the required use of a mask took away from the WCJ’s ability to fully evaluate the demeanor of my client.  This would not be an issue with video conference.

While we, as attorneys for the injured workers, really want the WCJ to personally see our client while he or she testifies, antagonizing a judge is never a good idea in litigation.  For the most part, WCJs will generally agree to videoconferencing of the injured worker testimony, since in-person is not commonly available.  This seems to be the most reasonable alternative.

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