Articles Posted in Worker Comp Generally

Once an injured worker in PA establishes a right to workers’ compensation benefits, such benefits can only be stopped by the workers’ comp insurance carrier under certain circumstances.  Two of the most common involve litigation before a Workers’ Compensation Judge (WCJ) – proving to the WCJ that the injured worker is fully recovered from the work injury (termination of benefits), or that work is available to the injured worker at equal to, or higher, wages (suspension of benefits).

An interesting circumstance happens when an injured worker is released back to his or her pre-injury position, without restriction, but the job (for some reason) is no longer available.  What relief is available to the PA workers’ comp insurance carrier in this situation?  Assuming the injured worker has not fully recovered from the work-related injury, there is no relief available to the insurance company.

This issue came up in a recent unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner) [We should note, as we have covered in a previous blog, that an “unreported” case can be cited to a WCJ for persuasive purposes, but it is not binding on a WCJ, as a “reported” decision would be].  Here, the injured worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy.  In fact, spinal fusion surgery was required.  However, the medical treatment was successful, and the injured worker was released back to the time of injury job, without restriction.  There was not, however, a full recovery from the work-related injury.

Okay, so you get injured at work.  You get treatment with a doctor, maybe have a course of physical therapy, then you start to feel a little better.  You are not all better yet, and you cannot go back to your regular job, but maybe you could do some kind of work.  So the doctor releases you to light duty work.  What then?

First, let’s talk about what does not happen.  If you are receiving workers’ compensation benefits, as you should be if you are disabled by the work injury, then benefits cannot just be stopped (unless you are being paid under a Notice of Temporary Compensation Payable, which can be revoked within 90 days).  Unless work is shown to be available to you (within your physical restrictions), temporary total disability benefits should continue.

Work could be shown to be “available” to you with your employer, perhaps at a modified version of your former job, or a different job entirely.  Or, work could be shown to be available to you with a totally different employer.  This can be done through a “Labor Market Survey” or “Earning Power Assessment.”  In this situation, the light duty job need not actually be offered to you, it just needs to be generally available (like listed in the “help wanted” section in a newspaper or online).  There is also a tool used by workers’ compensation insurance carriers called “funded employment,” where the insurance carrier actually pays you to work at a charity.

On our blog, and our website, we talk of how to help the injured worker, both through legal rights under the Pennsylvania Workers’ Compensation Act, and through news and developments in the medical field.  But, maybe the most helpful thing is to avoid the work injury in the first place.

While typically, we keep things local to Pennsylvania work injuries, we were contacted by a site in the United Kingdom, which has a guide to help reduce the occurrence of injuries in the workplace.  Obviously, some of the legal and governmental things that are mentioned are not true for PA, but the guide does have some things employers can consider as they try to reduce the frequency of work injuries.

According to the site:

Though the Pennsylvania Workers’ Compensation Act does not have a cost-of-living increase, as seen with Social Security Disability benefits, the maximum workers’ compensation rate does increase every year.  This, of course, does not impact existing injuries, only those that take place in this calendar year.  The PA Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries taking place in 2019 will be $1,049.00 per week.  This is up from the $1,025.00 maximum rate for 2018 work injuries.

Calculating the specific workers’ compensation rate in a case can become complicated.  Essentially, we look at the wages earned by the injured worker in the year prior to the work injury. This year is then split into four quarters, and an average is taken of the highest three of the quarters.  We are then left with the Average Weekly Wage (AWW).  Depending on the figures, the workers’ compensation 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. Those workers earning very high wages, creating a rate that would be above the  maximum compensation rate, will receive less than 2/3 of the AWW.

There can also be confusion over what is allowed to be included in an AWW calculation.  Another job held by the employee (called “concurrent employment”) is certainly includable, as is overtime and most bonuses.  Fringe benefits and self-employment earnings are two things that are not part of the AWW.

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.