Articles Posted in Worker Comp Generally

Anyone who follows our blog, or the Pennsylvania workers’ compensation system, knows that one of the fastest changing areas these days is that of Impairment Rating Evaluations (IREs).  To keep pace with these changes, and continue our goal of educating the injured worker throughout PA, we have updated the IRE section of our website.  The new page can be accessed here.

For those unfamiliar with the IRE process, this was something the insurance industry lobbied hard for when major changes were made to the Pennsylvania Workers’ Compensation Act (Act) in 1996.  As seen with other States in the Country, an IRE process can change the status of an injured worker from “total” disability to “partial” disability.  While this may not (and in PA does not) change the amount of the weekly benefit received by an injured worker, it does start the clock ticking on the number of weeks of partial disability benefits an injured worker can receive (in Pennsylvania, an injured worker can only receive a maximum of 500 weeks of partial disability benefits; there is no limit to the number of weeks of total disability benefits that can be received).

In 2017, the Supreme Court of Pennsylvania declared the IRE process, as set forth in the Act, unconstitutional.  This set the powerful insurance lobby into full panic mode (though, frankly, the actual financial impact of the loss of the IRE process on the insurance industry is in dispute).  As a result, the PA legislature capitulated to the lobby and passed Act 111, reinstating the IRE process.  To the surprise of very few, the elected representatives chose to side with the insurance industry over the injured worker.

The last free seminar of the Continuing Education Series presented by Brilliant & Neiman LLC will take place on Thursday, November 29, 2018 at 7:00 p.m., at the headquarters of the firm, 260 West Street Road in Warminster, PA.

This program will talk about the medical issues involved with an injured worker, the types of treatment seen with different conditions, and the insurance and billing issues that can arise. We will also address dealing with chronic pain, in the current environment where prescriptions for opioids have drastically dropped.

While the Community Education Series is free, and we want every injured worker (and those who care about him or her) to attend, reservations are required. To reserve a seat for the program on November 29, 2018, call (215) 638-7500 or e-mail gneiman@bnlegal.com.

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.

Did you know that an injured worker in Pennsylvania can choose his or her own doctor?  There is a common misunderstanding in the general public that the workers’ compensation insurance carrier can dictate the medical treatment of an injured worker.  While a workers’ comp insurance company MAY be able to have some limitation on the choice of a doctor for an injured worker, that control is narrow.

If an employer posts a valid list of healthcare providers for an injured worker to select (called a “panel posting”), the workers’ compensation insurance carrier may only have to pay for treatment with one of the listed providers (for the first 90 days).  This would only be true if the list is a valid one (there are rules of what providers can or cannot be on a list), the list is posted in a prominent location, and the injured worker signs an acknowledgement that he or she has seen the list, both before and after the injury.  Employers frequently do not meet all of these requirements, allowing an injured worker to treat with a doctor of his or her own choosing (and having the workers’ comp insurance carrier responsible for payment).

As the PA Bureau of Workers’ Compensation notes on its website, “The PA Workers’ Compensation Act gives employers the right to establish a list of designated health care providers.”  Many Employers simply do not take advantage of this “right,” giving them no control over the medical treatment for an injured worker.  Again, even if an Employer has a properly posted “panel,” this control over medical treatment only lasts for the first 90 days of treatment.

For better or worse, there has not been much happening in the Pennsylvania appellate court system, so we have not be able to post any case law updates.  However, we would like to remind everyone that the next seminar in Brilliant & Neiman LLC’s Continuing Education Series is scheduled for Wednesday, October 24, 2018 at 7:00 p.m. at the firm’s Warminster office (260 West Street Road, Warminster, PA 18974).

Following up on the successful September topic (“Settling a PA Workers’ Compensation Case – What the Injured Worker Has to Know”), October’s subject will be the PA workers’ compensation process.  Come learn about how a case progresses through the system.  What happens after a work injury, including the time frames and details.  What rights and obligations an injured worker has under the Pennsylvania Workers’ Compensation Act.  And, how what you don’t know may actually hurt you.

As with all of our Continuing Education Series, the program is absolutely free, and we want every injured worker (and those who care about him or her) to attend.  However, since space is limited, reservations are required.  To reserve a seat for the program on October 24, 2018, or for any of the additional programs, call 215-638-7500 or e-mail gneiman@bnlegal.com.

Brilliant & Neiman LLC is proud to announce a Continuing Education Series, with topics of interest to the injured worker in Pennsylvania.  The initial seminar in the series will take place on Tuesday, September 25, 2018 at 7:00 p.m., at the headquarters of the firm, 260 West Street Road in Warminster, PA.

The program on September 25, 2018 will be entitled “Settling a PA Workers’ Compensation Case – What the Injured Worker Has to Know.”  We selected this topic to start the series, since we are often asked questions regarding the settlement of workers’ comp cases in Pennsylvania.  Specifically, we will be discussing the timing of a settlement, the factors that go into determining the value of a PA workers’ compensation case (and the factors that, for reasons we will explain, do not), and the process (from the start of the settlement negotiations to the final approval of the Compromise & Release Agreement).

Additional programs will be held in October and November (for those marking their calendars, the dates will be October 24, 2018 and November 29, 2018).  The program in October will examine and explain the PA workers’ compensation litigation process, from the origin of a claim, and the starting of benefits, through litigation when an insurance carrier seeks to reduce or end the benefits.  We felt this topic would be helpful to address the stress an injured worker faces about the direction and future of his or her case.  Finally, the November program will talk about the medical issues involved with an injured worker, specifically, as dealing with chronic pain.  Depending on the level of interest, there could be additional programs added to this series.

Recently, we discussed the status of Senate Bill 936, which was passed by the House.  We are pleased to relate that Governor Thomas Wolf has vetoed this legislation, recognizing that it was a thinly disguised attack on injured workers and not a solution to any problem.

As discussed in the Morning Call, Gov. Wolf said:

Make no mistake, Senate Bill 936 is not a bill designed to fight the opioid crisis. Senate Bill 936 threatens health care for millions of workers who could be injured on the job, including police, corrections officers, and firefighters, who put their lives on the line every day, and whose injuries can be unique, debilitating and severe. It is wrong to sacrifice health care for our first responders to protect the bottom-line for insurance companies and corporations.”

A critical stage of a workers’ compensation case in PA can happen if the injured worker is offered a job by his or her employer.  This may be the regular job, with or without modifications, or a different job entirely.  This is when an injured worker really needs to get representation by an attorney Certified as a Specialist in Workers’ Compensation Law (if he or she has not already done so – many injured workers do not realize that being represented by an attorney DOES NOT COST A DIME unless and until the case goes to court, or the case settles).

Whether (and how) to respond to the employer, and whether to go back and try the job, will always depend on the circumstances in each case.  Keep in mind that case law is not friendly to the injured workers in many areas of workers’ compensation law in PA, including this one.  For example, the modifications an employer would be willing to make to a job may not need to be stated in the job offer.

This time in a workers’ comp case is a critical one.  If the injured worker makes a rash decision, without the benefit of advice from an attorney Certified as a Specialist in Workers’ Compensation Law, the case may be irreparably damaged.  Since obtaining the services of an attorney will not cost anything, is there really a reason to handle these things without counsel?

Previously, we have warned of the pending legislation that will restrict the access of injured workers across the State of Pennsylvania to get medications they need.  Now, thanks to the House passing Senate Bill 936, the legislation heads to the Governor.  It is not bad enough that innocent people suffered injuries at work, now they have to deal with the reality that they will be treated different than patients who are not in the Pennsylvania workers’ compensation system.

As noted in an article on Pennlive.com, this legislation “was drawn up in response to reports in the Philadelphia Inquirer and Daily News about doctors and law firms specializing in worker’s compensation that were operating their own pharmacies.”  Perhaps someone would be kind enough to explain why the legislation did not simply prohibit the ownership of pharmacies by these groups?  Instead, this legislation does not even deal with this issue.  At all.  Rather, the legislation makes medications (all medications, not just the opioids that caused all of the supposed angst) more difficult for an injured worker in PA to obtain.

And, again we ask, is this fair?  Is this how our elected representatives protect us?  By making sure that we have difficulty getting medications if we are unlucky enough to be injured at work?  We urge all injured workers, those who care about injured workers and those who care about fairness and justice, to reach out to their legislators, and reach out to the Governor’s office, and let everyone know this will not be done without a fight!

On our blog, as you probably noticed, we like to share court opinions which are of interest to the injured worker in PA.  Typically, of course, these opinions deal with interpretations of the Pennsylvania Workers’ Compensation Act (Act).  Also, typically, these are opinions rendered by the Commonwealth Court of Pennsylvania.  Why that court?  And are all decisions of Commonwealth Court the same?  Glad you asked!

Once a Workers’ Compensation Judge (WCJ) renders a decision, the next level of appellate review is the Workers’ Compensation Appeal Board (WCAB).  This is a process we have discussed on this blog in the past.  Decisions rendered by the WCAB can be cited to WCJs, by attorneys, in future cases, but the WCAB opinions are only “persuasive” not “binding.”  This means that a WCJ need not follow a decision of the WCAB.  For this reason, we rarely devote a blog posting to a WCAB decision.

After the WCAB issues a decision, an appeal can be taken to the Commonwealth Court of Pennsylvania.  Like with the WCAB, an appeal to Commonwealth Court is a right, so the Commonwealth Court cannot decline an appeal.  The Commonwealth Court will then make a decision.  This is either “reported” or “unreported.”  These terms have their usual meaning – a “reported” decision is published in a law reporter; an “unpublished” one may not.  More importantly, as a practical matter, a “reported” decision can be cited in future cases (and is binding on both the WCJ and the WCAB).  While an “unreported” case can be cited in future cases, like a WCAB opinion, it is not binding on a WCJ (only persuasive).  Though they are far more plentiful, “unpublished” decisions are not typically made blog posts by us.  They simply are not as significant, since they need not be followed.  Note that an “unpublished” on “unreported” decision, upon motion of a party, could be changed to “published” or “reported.”