Articles Posted in Worker Comp Generally

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.

Though it caused our attorneys to be out of town for a couple of days earlier this week, Brilliant & Neiman LLC felt it important that our attorneys attend the annual Pennsylvania Bureau of Workers’ Compensation Annual Conference in Hershey. This two-day seminar allowed our attorneys to discuss the law with other attorneys across the State of Pennsylvania, as well as with many Workers’ Compensation Judges (WCJs).

Topics that were covered included an update on recent cases coming through the Pennsylvania appellate courts, some information on traumatic brain injuries, a status of pain management treatment options and goals, the impact of social media on a workers’ compensation case, how employment laws interact with workers’ compensation cases, and how different WCJs run their practices and procedures.

While we hate to be unavailable to our clients for a two-day period, the exposure and information obtained by our attorneys is invaluable, and allows us to far better serve them.

Recently, we attended a seminar to be briefed on changes in the rules, formally known as the Special Rules of Administrative Practice and Procedure before Workers’ Compensation Judges or the Workers’ Compensation Appeal Board (each has a separate set of rules). Since our practice is limited to representing injured workers in Pennsylvania workers’ compensation cases, it is critical that we be aware of all aspects of the system.

Perhaps it would be wise first to understand where the Rules of Administrative Practice and Procedure fit into the system. As we have mentioned before in this blog, workers’ compensation laws vary widely from State to State. Here, the law starts with the Pennsylvania Workers’ Compensation Act, which was created back in 1915 and amended many times since. This law, and its amendments, were written and enacted by the PA legislature. The law is then interpreted by the appellate courts in Pennsylvania. The process by which we litigate these cases, through the Workers Compensation Judge (WCJ) and Workers’ Compensation Appeal Board (WCAB), are dictated by these Rules of Administrative Practice and Procedure.

Included in the changes to the Rules of Administrative Practice and Procedure before Workers’ Compensation Judges are how cases are litigated against the Uninsured Employers’ Guaranty Fund (UEGF), the fund that is available when an employer fails to carry PA workers’ comp insurance. There were also changes or amendments to what must be contained within Stipulations of Fact, to the timing of the serving of subpoenas, to the availability of a motion like a Motion for Summary Judgment (as in civil law), and changes to initial hearing procedures and pleadings.

The Pennsylvania Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries suffered in 2015 will be $951.00 per week. This is an increase over the $932.00 for injuries suffered in 2014. While we applaud the increase, we continue to be mindful of the general unfairness that workers’ comp benefits in PA are calculated as of the date of injury . . . and then forever fixed at that level. Unfortunately, some work injuries are very severe and require the injured worker to be on workers’ compensation for years. We long for the day when cost-of-living adjustments are made, as they are in Social Security Disability. It seems only the fair way to handle long term, chronic, injuries.

The workers’ compensation rate calculation can be a complicated process, depending on the situation. Generally speaking, the wages of the injured worker from the day before the injury going back one year are gathered. We divide this into four quarters, then take the average of the highest three quarters. This is the “Average Weekly Wage” (AWW). Depending on the amount, the workers’ comp 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. For those workers above the maximum compensation rate, the percentage can be less than 2/3.

Making sure the AWW is properly calculated, to be sure you are getting the fullest extent of compensation possible, is yet another reason to come to an attorney certified as a specialist in workers’ compensation law, as are the attorneys at Brilliant & Neiman LLC.

Last night, attorneys Dina Brilliant and Glenn Neiman were guest speakers on the television show hosted by Injured Workers of PA on Berks County Television. Prior to addressing the specific topic of the show, “The Most Frequently Asked Questions We Hear,” the two spoke a little about the prospective legislation which would tax many legal services in PA, including contingent fee agreements in Pennsylvania workers’ compensation matters (Senate Bill 76).

After dealing with this “Legislative Alert,” the two addressed such questions as:

“Can I get workers’ compensation benefits in Pennsylvania if I am not legally able to work in this Country?”

If the State of Pennsylvania has its way, soon injured workers, and others who badly need legal services, will have to pay tax on top of those legal services. We find this to be a totally unnecessary kick in the pants to the entire labor market by a government who it would seem no longer cares about the average tax payer. Senate Bill 76, if enacted, would place a tax on those who can least afford it.

First an employee gets injured and has to deal with the pain, and disability, often following a work injury. Soon thereafter, especially if the entitlement to workers’ comp benefits is contested, the injured worker begins to suffer desperate financial harm. To have the best chance of succeeding, the injured worker often has to hire an attorney.

Once the injured worker waits what can be a year, or more, while a case winds its way through the PA workers’ compensation system, he or she may be successful in the litigation. Typically, an attorney in Pennsylvania receives a fee of 20% of the benefits due to the injured worker. If Senate Bill 76 is passed, the injured worker would have to then pay taxes, of 7% or more, on those legal services, further depleting the recovery.

You may have noticed that we have not updated our blog as frequently in the past month or so as we had been. For better or worse, there have been no cases from the Commonwealth Court of Pennsylvania or the Supreme Court of Pennsylvania dealing with PA workers’ compensation issues. Also, we have not come across any recent medical developments, which would be of interest to injured workers in Pennsylvania. Even the normally volatile PA Bureau of Workers’ Compensation has been rather quiet of late.

While we will continue to keep our eye on the Courts, on developments in medicine and on happenings within the Bureau of Workers’ Compensation, we invite you to help us with this blog. Feel free to e-mail us at with any topics you think would be of interest to the readers of our blog. Perhaps there are questions that you have, or parts of the Pennsylvania Workers’ Compensation Act that could be explained better. Chances are, if there is something you are wondering, other injured workers may wonder as well.

Contact Information