Articles Posted in Worker Comp Generally

Pennsylvania’s legislators try their best to represent their constituents; I believe this is true the vast majority of times.  But, there are certainly times when the results of their actions are very difficult to reconcile with the best interests of those they have sworn to protect.

Currently pending in the PA legislature is House Bill 18/Senate Bill 936.  If passed, this legislation would completely change how an injured worker in Pennsylvania can receive medications.  A “drug formulary” would be set up.  This means that no longer would a patient be treated based on the individual needs of the patient, and the individual judgement of his or her doctor.  Nope.  Instead, decisions would be based on “evidence-based medicine.”  That means that what medications would generally be prescribed for a given condition, for the period generally prescribed, would be all that an injured worker in PA could receive.

Therefore, the individual judgment of the doctor is totally irrelevant.  The needs of the patient?  Not a factor.  This is an absurd system, since medicine is not an exact science.  Indeed, any physician will openly admit that not every patient will react to every condition in the same way.  Some heal faster than others.  Not every patient has exactly the same symptoms or limitations, even from the same condition.

As we have previously mentioned, the Pennsylvania Bureau of Workers’ Compensation rarely provides official or formal notice regarding the addition or subtraction of Workers’ Compensation Judges (WCJs) in the Commonwealth.  As usual, it is up to us to point out these changes, from our contact with other attorneys, and from our appearances in the many workers’ compensation hearing offices across PA.

Along these lines, we announce, with mixed feelings, the retirement of The Honorable Paul Baker.  Over his illustrious career, Judge Baker has presided over cases in Philadelphia, Pottsville and Harrisburg (at least these are the courts where we have appeared before him over the years).  Judge Baker was always known for his thoughtful and thorough handling of his cases, and we will miss his intelligence and compassion from the bench.  On the other hand, we are thrilled for him personally, in that he can step away from the bench, and enjoy his retirement.

Please join us in congratulating Judge Baker on a wonderful career as a jurist, and wishing him well in his retirement!

We are proud when our attorneys are asked to participate in continuing legal education seminars.  Being invited to help educate other lawyers can only be viewed as a tremendous compliment.  And, so we are pleased to relay that one of our attorneys, Glenn Neiman, has been invited by the Workers’ Compensation Section of the Bucks County Bar Association to act as a moderator in a continuing legal education seminar the Section is presenting later this month.

The topic of the seminar will be addressing the interplay between the Heart & Lung Act (a benefit program to which police, firefighters and other first responders qualify) and the Pennsylvania Workers’ Compensation Act.  Since these two laws can both impact cases in different ways, it is important for attorneys who handle either of these types of cases to be aware of both laws.

Just the other day, an injured worker called us, complaining that their employer refused to send them to a “workers’ compensation doctor.”  It seems that there is more confusion in this area than in many within the complicated world of Pennsylvania workers’ compensation.

While medical treatment for the work injury is one of the benefits available to an injured worker under the Pennsylvania Workers’ Compensation Act (Act), this is not necessarily treatment with a doctor with any connection to the employer or the employer’s workers’ comp insurance carrier.  In fact, the ability to direct and control medical treatment is a BENEFIT to the employer, and a DETRIMENT to the injured worker.  As such, this control is only available if an employer complies with specific steps.

Under the Act, an employer may only be responsible for payment to a medical provider on a “panel posting” within the first 90 days of treatment.  Such a “panel posting” must be prominently displayed in the work place.   To be a valid “panel posting,” the posting must contain at least six providers, at least three of which are physicians (the remainder could be therapy facilities or other healthcare providers who are not doctors). No more than four of the six on the posting may be from the same practice.  The employer must have the injured worker sign an acknowledgement, both at the time of hire and as soon as practical after the injury, that the injured worker is aware of the panel posting. All of these requirements can be found in Section 306(f.1)(1)(i) of the Act.

One of the frequent questions we are asked is regarding the settlement of a Pennsylvania workers’ compensation claim.  In fact, there is a page on our website just devoted to settlements.  When considering whether to settle his or her case, there are several things an injured worker should consider.  Initially, it is important to note that not every workers’ comp case settles.  Workers’ compensation benefits can end for a variety of reasons, other than a settlement.  Therefore, just because you have had a work injury in PA, do not believe you are simply entitled to a settlement.

The timing of the case is always an important consideration when considering whether to settle a case.  We do not mean timing in a strict calendar sense, as there is no magic number of months or years which must go by before a case can settle.  Instead, we are looking at the posture of the case.  Is the injured worker still in active treatment?  Is surgery, or other invasive treatment still being planned?  Is there other health coverage available?  As to the case legally, we ask whether there is a current threat to the benefits?  Whether there is current litigation, and the chances of success?  What is the employability of the injured worker?  (Considering that encompasses both physical restrictions, as well as educational and work backgrounds).  As you can see, there are many factors going into whether now is the right time to settle.

Next, the question may be the value of the case.  Again, there is no magic formula.  A settlement only works if both sides agree.  It has to be voluntary for everyone.  Unlike a personal injury case, there is no pain and suffering in a PA workers’ compensation case.  A settlement purely reflects loss of earnings, and, if applicable, future medical treatment.  Obviously, the settlement figure is something to be negotiated.

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.

Ordinarily, workers’ compensation in Pennsylvania is an “exclusive remedy.”  That means, the typical injured worker in PA cannot sue anyone for his or her injuries, and only has benefits under the Pennsylvania Workers’ Compensation Act (Act) available.  There are exceptions when the injury was caused by the negligence of a third party (a party other than the employer).

However, as we have noted in the past, the Act is designed so that the injured worker receives none of the benefits of the damages recovered in the personal injury (“third party” case).  This concept is called “subrogation.”  We recently observed this happening to one of our clients.

One of our clients suffered significant injuries, which were caused by a third party.  A civil suit was filed (in addition to the workers’ compensation action).  This civil suit was handled by a law firm other than us (our firm limits its practice to PA workers’ compensation cases, though we can certainly refer clients to excellent attorneys for any aspect of the law).

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.

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