Articles Posted in Worker Comp Generally

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.

We have discussed the role of Utilization Review (UR) both on our website and on our blog.  This helps demonstrate how important this concept is in the Pennsylvania workers’ compensation system.  As the Bureau’s Workers’ Compensation Automation and Integration System (WCAIS) takes an increasingly bigger role in the practice of workers’ comp in PA, there are changes which must be made.  One of those deals with the UR process.

UR is, of course, the process to determine whether a given course of medical treatment is reasonable and necessary.  If treatment is found to not be reasonable and necessary by the Utilization Review Organization (URO), the workers’ comp insurance carrier is not liable for the payment of that treatment (nor, by the law, is the patient).  A determination by a URO can be appealed to a Workers’ Compensation Judge (WCJ).

Typically, a UR is initiated by the workers’ compensation insurance carrier, to try and avoid paying for a specified medical treatment.  Frequent targets in these URs are physical therapy, chiropractic treatment and medications.  However, there are often situations where we file a UR, prospectively (for some future treatment), so our client can more easily get a specific treatment, whether it be a diagnostic study (such as an MRI or EMG), surgical procedure, or unusual medication.

While I apologize to my clients for not being available for the last couple of days, I think you will agree that the absence was for a good cause.  For the last several years, I have attended the Annual Pennsylvania Bureau of Workers’ Compensation Seminar, which was held earlier this week in Hershey, PA.  Not only does this seminar allow me to earn many of the continuing legal education credits I need every year, but it also allows us a window into what employers and adjusters are being told regarding the law (I am in the vast minority as an attorney who represents injured workers – the seminar is primarily attended by claims personnel (from both employers and insurance carriers) with some defense attorneys sprinkled in).

Like having the playbook for the other team, we believe it is incredibly valuable to hear what is being told, and how, to these workers’ comp claims personnel.  This allows us to have an idea about how a claim or a situation may be viewed, and what steps may, or may not, be taken.  We hope this allows us to be one step ahead in protecting our clients.

So, now we are back, armed with this insight and ready to once again provide each injured worker with the best representation possible.  If you are not already being protected by us, give us a call today at 215-638-7500 and let our knowledge and experience work for you too.

We have previously discussed things an injured worker in Pennsylvania may wish to consider when selecting a PA workers’ compensation attorney.  Of course, you would want an attorney experienced handling PA workers’ comp cases.  Having practiced primarily in the area of PA workers’ compensation for over 20 years, each of our attorneys has extensive experience in the field.

Since the availability of such a certification in 2013, you may now want to make sure your attorney is Certified as a Specialist in the Practice of Workers’ Compensation Law.  Both of our attorneys, Dina Brilliant and Glenn Neiman, are so certified.  In fact, Brilliant & Neiman LLC is proud to state that our attorneys were two of the first group of attorneys ever to be certified in this area.

But, it is more than just having experience or qualifications.  The true test is using those skills for the benefit of our clients.  Why, just today, Mr. Neiman argued before the Commonwealth Court of Pennsylvania.  This is something not every workers’ compensation attorney gets to do.  We at Brilliant & Neiman LLC go that extra step for our clients, backing them as far as it takes.

Generally, for most employees, the commute to and from work is not a time in which the employee is covered under the Pennsylvania workers’ compensation system (this is known as the “going and coming rule”).  As with many of the principles we touch on with this blog, there are exceptions.  (One critical one, which we are not discussing in this blog post, is the “traveling employee,” which can be seen in this blog post).  Here we are going to look at a recent case on what happens with an injury in the employer’s parking lot.

In Quality Bicycle Products, Inc. v. Workers’ Compensation Appeal Board (Shaw), the employee was running out of the building to his car due to a family emergency.  On his way to his car, in the employer’s parking lot, the employee felt a pop in his knee (later diagnosed as a fractured patella). A Claim Petition was filed and granted by a Workers  Compensation Judge (WCJ).  This was affirmed on appeal by the Workers’ Compensation Appeal Board (WCAB).  [Note that other aspects of the decision were reversed by the WCAB, but are not relevant to our discussion].

Upon appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was reversed.  The Court felt that the WCJ, and the WCAB, erred in finding that the injury took place in the scope and course of employment.

As we discussed back in September, the Commonwealth Court of Pennsylvania rendered an important decision for the IRE process when the Court decided the matter of M.A. Protz v. Workers’ Compensation Appeal Board (Derry Area SD).  The delegation of power by the PA legislature, as we noted, was found to be unconstitutional.  We were left with several questions, the main one being whether appeal would be accepted by the Supreme Court of Pennsylvania.

The answer to this question has now been found – the Supreme Court of Pennsylvania has accepted the appeal filed by both sides.  The issues to be decided can be seen here and here.

We look forward to the clarification by the Supreme Court of Pennsylvania, and we hope that the decision rendered answers most, if not all, of our remaining questions.  We will certainly report of this development when it happens.

Contact Information