Articles Posted in Worker Comp Generally

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.”

We have often discussed the importance of winning a case before the Workers’ Compensation Judge (WCJ).  This is because the WCJ is the “ultimate finder of fact.”  Determinations of credibility made by a WCJ cannot be challenged on appeal.  Indeed, appellate courts can only change the decision of a WCJ if there has been an “error of law.”  Given this great power held by the WCJ, it is critical that an injured worker’s case be litigated as well as possible before the WCJ.

We say this to point out that it really does matter what PA workers’ comp attorney an injured worker selects.  Certainly, one can simply search on the internet and find many attorneys from which to choose.  But, therein lies the difficulty – how should an injured worker in Pennsylvania choose his or her workers’ compensation attorney?

To try to bring some common sense to this situation, we have added a page to our website, intended to help an injured worker make this important selection.  Obviously, we would like an injured worker to call us, but whether you do or not, these are some things an injured worker can consider when making this important decision.

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.

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