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

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.

As more counties across Pennsylvania reach the “Green” phase in the COVID-19 recovery process, attorneys involved in the PA workers’ compensation process were curious to know how this will impact the operations of the Bureau of Workers’ Compensation.  Yesterday, we were advised by the Bureau that, “(t)he designation of counties as ‘green’ does not automatically signal a return to in-person hearings.”  Instead, live, in-person hearings will only be permitted in limited situations.  This will be at the discretion of the Workers’ Compensation Judge (WCJ), where the WCJ feels it critical to have in-person testimony of a witness to properly assess credibility.  In-person hearings will only be permitted in counties that are in the “Green” phase of COVID recovery.

Either party can request that testimony of a witness be taken in-person, but the WCJ will have complete latitude to grant or deny the request.  Such a request should “include a justification and the position of the opposing party on the request.”  The WCJ can also determine, on his or her own motion, that in-person testimony will be necessary.

Significant changes will be made to prior procedures in the workers’ compensation hearing offices.  Only one Judge will hold hearings per day, and there will be a scheduled break between cases, so that an interim cleaning can be performed.  As the Bureau notes, “Each individual who enters the office has a personal responsibility to follow the CDC and DOH guidelines for handwashing, social distancing, wearing masks, and staying home if sick.”  All attendees to a hearing will be screened by security (to ask about wellness, in addition to the typical security screening).  No persons will be permitted to enter a workers’ comp hearing location without a mask (sadly, the new normal).

Yesterday, our attorneys participated in a webinar dealing with the continuing impact the Novel Coronavirus (COVID-19) is having on the Pennsylvania workers’ compensation system.  We have already participated in hearings using Skype for Business, and understand some Workers’ Compensation Judges (WCJs) are experimenting with the WebX platform.  Zoom had been used on occasion, but apparently some security concerns have rendered that unusable for our purposes.

Depending on the case and the situation, some attorneys, and the WCJs, are agreeing to simply delay the testimony of an injured worker for later in the case, hoping we will be able to have in-person hearings again in the somewhat near future.  However, given the uncertainty in timing, there is often a need to move forward, at least with video, in addition to audio.  We believe it is critical for the WCJ to actually see the injured worker testify, since so much comes down to simply whether the WCJ believes the injured worker or not.

Even in ordinary circumstances, the procedures followed by a WCJ vary widely, sometimes even in the same workers’ compensation hearing office.  For this reason, there is a “Judge Book,” detailing the practices and procedures for each WCJ in the Commonwealth.  Now, on the page for each WCJ, you will see “CLICK HERE TO VIEW THE JUDGE’S SPECIAL PROCEDURES DURING THE GOVERNOR’S EMERGENCY DECLARATION DUE TO COVID-19.”  Here you will find how any particular WCJ is handling cases in the current COVID-19 era.

Today, our attorneys participated in a conference call (so as to maintain social distancing) with workers’ compensation attorneys across the State of Pennsylvania, as well as lobbyists, regarding the status of the workers’ comp system in PA as we all deal with the Coronavirus (COVID-19).  We discussed pending legislation in the Pennsylvania House and Senate, as well as how we are all handling cases under the shutdown as ordered by Governor Wolf.

There is legislation being worked upon by PA House Democrats, but nothing substantial is expected to be passed.  The issue that appears most concerning to legislators is making sure those essential workers on the front lines, the doctors, nurses, first responders, and the like, are protected should they develop the Coronavirus (COVID-19).  While this is a noble goal, the Pennsylvania Workers’ Compensation Act already does provide protection in such a situation.  As we note on our website, when an employee is exposed to a substance (or disease) in the workplace, and is rendered disabled by the exposure, there exists a valid workers’ compensation case.  We would also note that the healthcare workers are not the only employees on the front lines in this situation.  Workers in grocery stores, like stockers and cashiers, restaurant workers, warehouse people and delivery drivers, just to name a few, are also at risk for catching COVID-19 through workplace exposure.

As to the Pennsylvania workers’ compensation system, cases are continuing to be litigated.  Often this is being done by telephone conference, though some Workers’ Compensation Judges (WCJs) are using videoconference (which is important when an injured worker, or critical witness, is testifying, so the WCJ can better determine whether to believe such testimony).  Since none of us know how long the government-ordered shutdown will continue, it is critical to the system (and the lives of injured workers throughout PA) that cases continue to be litigated.

As we have previously discussed, within the Pennsylvania Workers’ Compensation Act, there lies a trap for unwary injured workers.  Actually, there are many traps in the Act, but for today, we’ll just deal with this one.

When a workers’ comp insurance carrier thinks (and this is a critical word) that an injured worker has returned to work, the insurance company can file a Notification of Modification (if there remains a partial wage loss) or a Modification of Suspension (wages are believed to be at or higher than the pre-injury wages).  If there is no “challenge” filed by the injured worker, within the allotted time period, the Notification of Modification or Suspension has the same legal effect as if the injured worker has agreed to the change in status.  This is certainly a trap for an injured worker who knows better than to sign a document without legal counsel, but is unaware that not signing a document can also have dire consequences.

The PA Bureau of Workers’ Compensation announced that:

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