As per the Governor's shut down we are working remotely, however rest assured that we are still working to protect your rights! Please email us at dbrilliant@bnlegal.com for Dina Brilliant and gneiman@bnlegal.com for Glenn Neiman or call us at (215) 638-7500 and leave a message as we are checking our messages.

A new Frequently Asked Question has been, "I have the Coronavirus, can I get workers' compensation benefits?" The answer is that, yes, you may be entitled to workers compensation benefits depending on the facts. This can be whether you have contracted COVID-19 through work, or whether you have lost a modified duty job through an employer closing or layoff. Email or call us to discuss the specifics of your case in regard to the Coronavirus or any other work injury.

Articles Posted in Worker Comp Generally

There are several types of benefits which can be received by an injured worker in Pennsylvania.  A comprehensive review of these benefits can be seen here on our website.  One of those benefits is called “specific loss,” which contains things like loss of use of a body part and disfigurement of the head, face or neck (though House Bill 930 could expand disfigurement beyond the head, face or neck).

Importantly, specific loss benefits cannot be received while the injured worker is still receiving “temporary total disability” benefits (essentially, what we call total wage loss benefits).  Again, at least as far as disfigurement, this could change with House Bill 930.

What if the injured worker dies before the temporary total disability benefits stop?  Surely, the specific loss benefits, since already “awarded” would be paid to the estate, right?  Nope, wrong.  The full answer is that it depends what caused the death of the injured worker.

When an employee in Pennsylvania gets injured, the PA Workers’ Compensation Act allots the workers’ compensation insurance carrier 21 days to investigate and accept or deny the claim.  If 21 days is not sufficient, the insurance carrier can opt to issue a Notice of Temporary Compensation Payable (NTCP or TNCP), and continue the investigation for up to 90 days more.  If the TNCP is not properly revoked within those 90 days, according to the Act, the TNCP becomes a regular Notice of Compensation Payable (NCP), and the injury can no longer be denied.  Simple, right?

Not so fast.  When a TNCP has been issued (for both wage loss and medical benefits), an insurance carrier can simply file a Medical-Only NCP, accepting liability solely for the medical aspect of the case (thus, denying liability for wage loss), without ever revoking that TNCP or issuing a Notice of Denial (NCD) for wage loss.  While this seems contrary to the words, if not the spirit, of the Act, the Commonwealth Court of Pennsylvania says this is perfectly fine.

This happened recently in an unreported case, Moretti v. County of Bucks (Workers’ Compensation Appeal Board), though prior reported decisions of the Commonwealth Court, supporting such a situation, were cited by the Court.

An injured worker in PA is entitled to certain benefits under the Pennsylvania Workers’ Compensation Act.  We discuss these benefits in great detail here, on our website.  Basically, these benefits include wage loss (called “indemnity”), medical, “specific loss” and fatal claim benefits.  Given some pending legislation, we will be discussing the “specific loss” benefits today.

“Specific Loss” benefits encompass any type of benefit other than wage loss, medical or fatal claim.  It includes loss of use of a body part and scarring, as was addressed in a previous blog post.   Under the Pennsylvania Workers’ Compensation Act, only scarring of the head, face or neck is compensable.  A Workers’ Compensation Judge (WCJ) can award from zero to 275 weeks for the scarring, depending on the level of disfigurement.  And, this payment is to be made only after the injured worker is no longer receiving total or partial disability benefits.

But, House Bill 930 would change all of that, if it were to become law.  First, scarring would be compensable anywhere on the body, not just the head, face or neck.  Which, of course, is logical, since most areas of the body can be seen by others and potentially cause embarrassment if there was some level of disfigurement.  Second, the WCJ would be able to award up to 400 weeks, since significant disfigurement should entitle the victim to significant compensation.  Lastly, House Bill 930 would allow the scarring award to be paid while the injured worker remains on total or partial disability.  Which, again, makes sense, since the scarring does not wait to appear.

On June 1, 2023 and June 2, 2023, the Pennsylvania Bureau of Workers’ Compensation will hold its 22nd annual “Workers’ Compensation Conference.” Here, attorneys, Workers’ Compensation Judges (WCJs), employer representatives, adjusters, risk management/safety employees and others who work in the world of workers’ comp from across the entire State of PA, gather to discuss and learn changes and trends of which they should be aware.

Our attorneys attend this conference nearly every year, and will do so again this year. While we, as attorneys who represent injured workers, are in the vast minority (most of the attorneys who attend this conference are seeking work from the workers’ compensation insurance company representatives in attendance), we feel it is critical to the representation we provide.

By being in the room while the insurance industry representatives are told about the state of the workers’ comp laws, we are getting a peek into their thought processes. This helps us understand and anticipate steps and strategies the workers’ compensation insurance carriers may take. We are also able to have informal conversations with WCJs and defense attorneys, building relationships that may improve communication in future dealings. Not to mention, we are also learning, attending the seminars on such topics as return to work, payment of medical bills, employee mental health (especially post-injury), medical advancements and negotiation strategies.

What if an injured worker in Pennsylvanian is employed by a company who (in direct violation of PA law) fails to carry workers’ compensation insurance?  Back in the old days, the injured worker, through no fault of his or her own, would be stuck with whatever assets the employer had.  However, in recognizing the pure unfairness of such a situation, several years ago, the Pennsylvania legislature created the Uninsured Employers’ Guaranty Fund (UEGF), essentially functioning as an insurer for the uninsured employers.

While the UEGF is wonderful in theory, it is less so in practice.  Funding for the UEGF comes from other insurance carriers, and it is seemingly consistently underfunded.  The law holds that the UEGF is NOT an insurance carrier, so it cannot be penalized for violations of the Pennsylvania Workers’ Compensation Act (Act), including the failure to pay an award as ordered by a Workers’ Compensation Judge (WCJ).  This makes collecting an award from the UEGF a delicate and diplomatic process.

In the past several years, to protect the limited funds of the UEGF, the PA legislature has tightened the requirements to obtain an award against the UEGF, and made such litigation much more difficult.  Timeframes have been drastically shortened and requirements of proof have been significantly increased.

Over the past several years, PA has legalized the use of medical marijuana.  Given the current difficulties in dealing with the opioid epidemic, this would seem to be a reasonable tool to help injured workers (and anyone else suffering from chronic pain) deal with their conditions without the use of narcotic medications.  The controversial status of marijuana, and both PA and Federal law, however, gave us great uncertainty as to whether use of medical marijuana would be covered under the Pennsylvania Workers’ Compensation Act.  Two recent decisions by the Commonwealth Court of Pennsylvania answer this question quite clearly in the affirmative.

Notably, the Medical Marijuana Act [MMA] specifically states that “Nothing in [the MMA] shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.”  Additionally, marijuana remains illegal under Federal law.  These two factors have made payment for medical marijuana under the PA Workers’ Compensation Act (Act) nearly impossible.  Until now.

The two companion cases on this issue of first impression are Appel v. GWC Warranty Corporation (Workers’ Compensation Appeal Board) and Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board).  Both of these injured workers suffered from severe pain, one from multiple back surgeries and the other from several conditions, including “herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease.”

If you are a football fan, you may have been following the story about Von Miller, star linebacker for the Buffalo Bills.  The story is also of interest, however, to injured workers, including those in PA.  (Parenthetically, we should note that Miller is, in fact, an injured worker, though the Pennsylvania Workers’ Compensation Act has special provisions for professional athletes – that said, the point of this article is that the care given to Miller is not the care received by the typical injured worker in PA).

On November 24, 2022, Miller injured his knee in a game against the Detroit Lions.  Being a star NFL player, Miller had access to the best medical tools possible, and was not required to have any kind of delay.  An MRI done the day after the injury showed the Anterior Cruciate Ligament (ACL) remained intact.  This meant the injury was not as severe as the team and player initially feared.

But, then an interesting thing happened.  Miller underwent exploratory surgery on the knee earlier this week.  A tear of the ACL was discovered, and repaired, during the procedure.  A tear that was not seen on the MRI.  Rather than missing a couple of weeks, suddenly Miller’s season was over.

Perhaps the most frequent question we, as attorneys who represent injured workers in PA workers’ compensation cases, receive is, “When can I settle my case?” Such a simple question for such a complicated issue. An entire page of our website is devoted to this “Big” question, as is part of the FAQs.

Initially, we should note that not every Pennsylvania workers’ compensation case ends in a settlement. Sometimes, the best interests of the injured worker do not result in such a conclusion to a case. This may be secondary to the injured worker having returned to the same employer after the injury (most workers’ comp cases require a resignation as part of the settlement), or it may be due to a substantial future medical exposure (which often has drastically different calculations between reasonable expectation and what the workers’ compensation insurance carrier would offer), or it may be some other issue unique to that particular case.

There is no “magic” time to settle a PA workers’ comp case. We have reached a settlement in a Claim Petition, mere months after an injury, and we have reached a settlement many years after an injury. Though it sounds like a cliché, it is true – every case is different and must be judged by its own facts and circumstance.

When one receives a decision issued by a Workers’ Compensation Judge (WCJ) in Pennsylvania, one has the right to file an appeal.  The first level for this appeal is the PA Workers’ Compensation Appeal Board (WCAB).  For about the last 50 years, litigating an appeal before the WCAB has been unchanged.  Starting July 11, 2022, however, there will be substantial changes taking place.

Until now, the person filing an appeal, formerly called the Appellant (now called the Petitioner), would file his or her brief (written argument) on or before the date of the oral argument.  This oral argument would be held in person at various locations across the State of Pennsylvania (Philadelphia, Pittsburgh, Harrisburg, Scranton and Erie).  The Respondent (formerly called the Appellee) would typically submit his or her brief 30 days after the oral argument.

Even before the COVID-19 pandemic turned the entire PA workers’ compensation system into a largely virtual affair, there had been discussion of making oral argument before the WCAB into a virtual event.  Since the virtual method ran so smoothly during the pandemic, the WCAB will be retaining this as the primary method of conducting oral argument.

Coming on the heels of last month’s announcement from the Pennsylvania Bureau of Workers’ Compensation, advising that two new Workers’ Compensation Judges (WCJs) would be taking the bench, we were surprised to hear more hiring news from the Bureau this month.  In addition to the two new WCJs we discussed in March (The Honorable Debra Matherne and The Honorable Cassi Martin), there are now two more WCJs taking the bench in the near future.

Having two announcements so close in time is unusual, though there has been an unusual amount of retirement and turnover among the WCJs recently.  We are now welcoming Angela Lorenz and Angel Torres to the bench.

The official statement released by the Bureau states:

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