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 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:

By now, most Pennsylvanians have heard that Governor Tom Wolf has ordered all non-life-sustaining businesses in PA to close their physical locations, as of 8:00 p.m. on March 19, 2020.  Along with this announcement, the Governor’s office released a list of what businesses qualify as “life-sustaining.”  Law firms are specifically excluded from this list.  Obviously, we all want to see the end of the Coronavirus pandemic, and we all must do our part.  As such, Brilliant & Neiman LLC will abide by the orders of the Governor and close our physical offices until further notice.

Please be advised that our attorneys will still be working remotely, and are available to both existing clients, as well as any injured workers needing assistance at this difficult time.  You can call us at 215-638-7500, or 610-740-1002, and leave a message on the voicemail of either Dina Brilliant or Glenn Neiman, or you can e-mail them at dbrilliant@bnlegal.com or gneiman@bnlegal.com.  We will get back to you as soon as possible.

We ask for your patience in these trying times.  We are working hard to serve the needs of our clients, as well as help contain the spread of the Coronavirus.  We will provide updates as they are available.

***UPDATE 3/17/20*** A statement was issued by Joseph DeRita, Director of the Pennsylvania Workers’ Compensation Office of Adjudication:

As you are all aware, Governor Wolf ordered the closure of all Pennsylvania state government offices for 14 days effective Tuesday, March 17, 2020. All hearings and mediations scheduled during that time are cancelled and will be rescheduled as soon as practicable. Some of the WCJ’s, who are already equipped to work from home, have already reached out to discuss rescheduling arrangements for mediations. Those will go forward.  In addition, in an effort to provide some adjudicatory services, I have authorized the use of telephone hearings on a limited basis for Petitions to Approve C & R Agreements.  Requests to schedule C & R hearings will be accepted beginning March 17, 2020 in the Southeastern and Eastern district offices only as described below.  We hope to expand this limited service to the Central and Western districts by week’s end.  Beyond that, we will be expanding WCJ telework capabilities generally to conduct telephone hearings on other types of petitions.

For now, the protocol to request a special C & R telephone hearing during the time of government shutdown is as follows:  send an e-mail request to the Judge Manager of the district in which the case is pending (JM Karen Wertheimer, Eastern District,kwertheime@pa.gov and JM Holly San Angelo, Southeastern District, hsanangelo@pa.gov). Your request must include the case caption, dispute #, names and e-mail addresses of counsel and whether the case requires translation services (include language of testimony to be translated).  WCOA staff will schedule the court reporter.  The JM will re-assign the case to a specially selected WCJ who will then schedule and conduct the C & R hearing telephonically.  Claimant must be present in Claimant’s counsels office.  The C & R agreement must be notarized.  The WCJ assigned to hear the case will advise how the telephone conference is to be arranged and how the C & R documents are to be transmitted prior to the telephone hearing. 

By now, we are all too familiar with the Coronavirus (COVID-19).  At this point, governments, individuals and businesses are still evaluating how best to protect each other and ourselves against this pandemic.

The Bureau of Workers’ Compensation is largely still open and operating on a normal basis.  Hearings are generally still taking place, though the situation is being monitored.  One hearing office, however, has been closed for at least a two week period.  The Dresher Workers’ Compensation Hearing Office will be closed from March 13 through March 27, 2020.  We are told that all hearings and mediations scheduled there are cancelled and will be rescheduled.  The Dresher office serves injured workers who live in Eastern Montgomery County (or cases otherwise based in that region); cases based in Western Montgomery County, in the Malvern Workers’ Compensation Hearing Office, will take place as scheduled.

Brilliant & Neiman LLC will remain open, and our attorneys are available to injured workers.  However, we will be trying to abide by CDC recommendations, and avoiding personal contact, including hand shaking.  We also ask visitors to our offices to use hand sanitizer at our door.

Pennsylvania workers’ compensation hearings are generally held in each county in the Commonwealth.  Some smaller counties may share hearing facilities, while more populous counties may have a second location.  The county in which the injured worker resides is typically the county in which hearings will be held, provided the injured worker lives in PA.

For several years, hearings in Bucks County have been divided between Bristol (for Lower Bucks County) and Doylestown (for Central and Upper Bucks County).  While that will still be the case, hearings in Doylestown which had been held at the Bucks County Courthouse will now be moved to the Bucks County Administrative  Building (which is across the street from the Courthouse).  For those unfamiliar with Doylestown, the Bucks County Administrative  Building is actually the former courthouse.  While the two buildings are across the street from one another, injured workers should be sure they are heading to the correct hearing location.

Bucks County is not the only one with multiple hearing locations.  Several others split their cases between two offices.  Montgomery County spreads its caseload between Malvern (for Western Montgomery County) and Dresher (for Eastern Montgomery County).  Injured workers who reside in Northampton County may have hearings in Tannersville (North) or Easton (South).  Philadelphians used to have the convenience of hearing locations in both Center City Philadelphia and Northeast Philadelphia, but the latter was closed several years ago.

As we have mentioned in the past, unlike Social Security Disability benefits, PA workers’ comp benefits have no cost-of-living increase.  However, the maximum rate of workers’ compensation benefit that an injured worker can receive does increase annually.  Unfortunately, this only affects injuries taking place in the new calendar year.  The Pennsylvania Bureau of Workers’ Compensation has announced that the maximum workers’ compensation rate for injuries taking place in 2020 will be $1,081.00.  This is increased from the maximum rate for 2019 of $1,049.00.

The Pennsylvania Workers’ Compensation Act sets forth the procedure for the calculation of the Average Weekly Wage (AWW).  From this figure, we determine the temporary total disability rate, often just referred to as the workers’ compensation rate.  Depending on the figures, the workers’ compensation rate is usually 2/3 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, which would mean he or she would receive less than 2/3 of the AWW.

This can be a complicated area in the PA workers’ comp system, both through the calculation of the AWW and the workers’ compensation rate, as well as what can be included within the AWW calculation. Insurance carriers frequently make mistakes in these calculations (yet, rarely are these “mistakes” to the benefit of the injured worker).

The Uninsured Employers’ Guaranty Fund (UEGF), and its role in the Pennsylvania workers’ compensation system, has been discussed previously in this Blog.  While the UEGF plays under different rules than every insurance carrier that writes PA workers’ compensation insurance coverage, and the UEGF can be incredibly difficult and frustrating to litigate against, there is no argument that the UEGF is an improvement over how things were, before the UEGF was enacted.

The different rules which apply to the UEGF were further set when the legislature passed, and Governor Thomas Wolf signed, Act 132 in October, 2018 (has it been a year already?).  This new legislation provided new protections for the UEGF to enjoy, in an effort to protect limited resources in the face of the increasing number of claims (perhaps a more effective method of protecting UEGF assets, rather than leave injured workers without remedy, would be to focus on the employers who violate PA law by failing to carry PA workers’ compensation insurance).

Among the changes to the UEGF rules in Act 132 are:

Our attorneys were out of the office earlier this week, to attend the annual Pennsylvania Bureau of Workers’ Compensation Conference, in Hershey, PA.  While we hate to have our attorneys both unavailable to help our clients, we feel it is important for us to attend these seminars.  This conference is presented by the Bureau itself, so there is an opportunity to obtain information allowing us to stay current on all topics of interest in Pennsylvania workers’ compensation.

While there are not many attorneys, like us, who represent injured workers in attendance, we think listening in is helpful.  Most of the attendees at this conference are not attorneys at all; they are adjusters, risk management and safety officials from all across PA.  Additionally, many of the Workers’ Compensation Judges (WCJs) are in attendance.  We can hear what these folks are being told regarding different aspects of the PA workers’ compensation system.  This can help us anticipate issues and avoid some pitfalls that could pertain to our clients.

Topics addressed at the different sessions ranged from medical issues (including medical marijuana, the future of “telehealth,” and the role of nurse case managers), to internet surveillance, to Workers Compensation Medicare Set-Asides (WCMSAs), to different insights on how WCJs feel about varying issues.

Though the Pennsylvania Workers’ Compensation Act does not have a cost-of-living increase, as seen with Social Security Disability benefits, the maximum workers’ compensation rate does increase every year.  This, of course, does not impact existing injuries, only those that take place in this calendar year.  The PA Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries taking place in 2019 will be $1,049.00 per week.  This is up from the $1,025.00 maximum rate for 2018 work injuries.

Calculating the specific workers’ compensation rate in a case can become complicated.  Essentially, we look at the wages earned by the injured worker in the year prior to the work injury. This year is then split into four quarters, and an average is taken of the highest three of the quarters.  We are then left with the Average Weekly Wage (AWW).  Depending on the figures, the workers’ compensation rate is usually 2/3 of the AWW, though that can vary. For lower wages, the rate can be as high as 90% of the AWW. Those workers earning very high wages, creating a rate that would be above the  maximum compensation rate, will receive less than 2/3 of the AWW.

There can also be confusion over what is allowed to be included in an AWW calculation.  Another job held by the employee (called “concurrent employment”) is certainly includable, as is overtime and most bonuses.  Fringe benefits and self-employment earnings are two things that are not part of the AWW.

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.