Articles Posted in Worker Comp Generally

The Uninsured Employers’ Guaranty Fund (UEGF), and its role in the Pennsylvania workers’ compensation system, has been discussed previously in this Blog.  While the UEGF plays under different rules than every insurance carrier that writes PA workers’ compensation insurance coverage, and the UEGF can be incredibly difficult and frustrating to litigate against, there is no argument that the UEGF is an improvement over how things were, before the UEGF was enacted.

The different rules which apply to the UEGF were further set when the legislature passed, and Governor Thomas Wolf signed, Act 132 in October, 2018 (has it been a year already?).  This new legislation provided new protections for the UEGF to enjoy, in an effort to protect limited resources in the face of the increasing number of claims (perhaps a more effective method of protecting UEGF assets, rather than leave injured workers without remedy, would be to focus on the employers who violate PA law by failing to carry PA workers’ compensation insurance).

Among the changes to the UEGF rules in Act 132 are:

The vast majority of work injuries in Pennsylvania heal with conservative treatment, allowing the injured worker to return both to work, as well as to activities of normal life.  However, there are certainly the more serious injuries, where more invasive medical treatment is required.

Often the more invasive treatment options entail surgery.  When we are talking about work injuries to the neck and back, the procedures we usually see are laminectomy, microdiscectomy and traditional lumbar fusion.  For a description of each of these, and more information regarding these procedures, check out this post from Penn Medicine.  For our purposes today, we are looking at the traditional lumbar fusion.  As explained in the Penn Medicine article:

Traditional spinal fusions are used to treat instability of the spine, scoliosis, severe degeneration of the discs, or a combination of these issues.  A fusion involves using bone from the patient’s body to fuse one vertebrae to another.  Often, metal screws (pedicle screws) are placed into the vertebrae to assist with the fusion process.”

While we are very conscious of being available to our clients as much as possible, the practice of PA workers’ compensation law, and the litigation process, means we are not always in our offices.  Sometimes, in addition to being at workers’ compensation hearings and depositions, our attorneys attend events or presentations that may help us better perform our job protecting the injured worker in PA.

And, so it follows, our attorneys were invited by Rothman Institute to attend their Workers’ Compensation Conference, being held all day on Friday, October 24, 2019.  We sincerely apologize if this means we are not available to help our clients on that day directly, though our office staff certainly remains available (and can reach the attorneys for any emergencies).  As our clients know, it is the practice of Brilliant & Neiman LLC for the clients to speak directly to the attorney, rather than being forced to always speak to support staff.  We apologize for this deviation from our regular course of business.

The Workers’ Compensation Conference will no doubt provide our attorneys with additional tools to help us best protect the rights of injured workers in PA.  Topics being presented will include 3-D printing in orthopedic surgery, issues with complex rotator cuff surgery, as well as general updates regarding treatment options for injuries to the neck, back and knees.  The Workers’ Compensation Conference will be moderated by Dr. Nicholas Taweel, and will include presentations from Dr. Pedro Beredjiklian, Dr. Mark Lazarus, Dr. Michael Molter, Dr. Howard Yeon and Dr. Paul Steinfield.

For years, we have had an office in the center of Allentown, and represented injured workers all along the Allentown-Bethlehem-Easton corridor.  We have attended workers’ compensation hearings at the Workers’ Compensation Judge office in Allentown (on Tilghman Street), as well as at the Northampton County Courthouse (where Northampton County workers’ compensation hearings are held).  Indeed, both Allentown and Bethlehem/Easton appears on our website as communities we proudly serve.  Recently, it occurred to us that we have never become members of the Northampton County Bar Association (NCBA).  We have been members of the Bucks, Lehigh and Philadelphia County Bar Associations, so it certainly seemed like a logical step for us to join the NCBA.

While other bar associations simply welcome new members by having them complete an application, the NCBA handles these things in a more dignified and traditional fashion.  Indeed, both of our attorneys (Dina Brilliant and Glenn Neiman) had to obtain sponsors, attend a quarterly NCBA meeting, and be formally approved to become members of the NCBA.  And so, at the meeting on September 12, 2019, both Ms. Brilliant and Mr. Neiman were approved as members of the NCBA.  We are proud to have been admitted into the NCBA, and we look forward to becoming further involved in the wonderful work the NCBA does in the community, as we have done with the other Bar Associations of which we are members.

We will continue striving to serve injured workers in the Allentown-Bethlehem-Easton community through our Center City Allentown office, as we do with injured workers in the Bucks, Montgomery and Philadelphia areas through our offices in Trevose and Warminster.  And, for those injured workers elsewhere in the Southeastern to Central areas of PA, we also are happy to meet clients in various other locations conveniently located throughout the region.

We have talked before on this blog about how an injured worker can go about choosing a Pennsylvania workers’ compensation attorney.  Since this is such a common question, the issue is so important, and there are so many choices, we even have a page on our website devoted to the topic.  So, this blog post is not about how to choose a workers’ comp lawyer.  Instead, this entry will talk about one of the more important jobs we, as attorneys who represent injured workers, have in the process.

The vast majority of injured workers are not familiar with the Pennsylvania workers’ compensation system.  From the outside, it can appear to be a complex and complicated arena.  Indeed, it can even be complicated for those of us who work with the system every day.  Perhaps the scariest aspect of this for the injured worker is simply the vast unknown.

We regularly participate in various injured worker message boards on the internet, providing general legal information to those who ask (we, of course, cannot provide legal advice to someone we do not represent).  Many of the questions we see, from injured workers who are already represented by an attorney, as well as those who are not, deal with the PA workers’ compensation process and how it works.

Our attorneys were out of the office earlier this week, to attend the annual Pennsylvania Bureau of Workers’ Compensation Conference, in Hershey, PA.  While we hate to have our attorneys both unavailable to help our clients, we feel it is important for us to attend these seminars.  This conference is presented by the Bureau itself, so there is an opportunity to obtain information allowing us to stay current on all topics of interest in Pennsylvania workers’ compensation.

While there are not many attorneys, like us, who represent injured workers in attendance, we think listening in is helpful.  Most of the attendees at this conference are not attorneys at all; they are adjusters, risk management and safety officials from all across PA.  Additionally, many of the Workers’ Compensation Judges (WCJs) are in attendance.  We can hear what these folks are being told regarding different aspects of the PA workers’ compensation system.  This can help us anticipate issues and avoid some pitfalls that could pertain to our clients.

Topics addressed at the different sessions ranged from medical issues (including medical marijuana, the future of “telehealth,” and the role of nurse case managers), to internet surveillance, to Workers Compensation Medicare Set-Asides (WCMSAs), to different insights on how WCJs feel about varying issues.

We are not the official workers’ compensation law firm of the NFL.  Or of any major sport.  What does that even mean?  We do not have a slick marketing department, which puts our faces on billboards or TV.  What we ARE is the law firm for injured workers.  Our focus is not on fancy marketing; it is on delivering the best personal attention to your case.

We do not have multiple paralegals for each attorney, nor do we have more attorneys than you can count.  We have two attorneys that will actually handle your case.  What does that mean for you?  It means that both of our attorneys are experienced and certified as specialists in workers’ compensation law.  Each of our attorneys has over 25 years of experience in the field.  You will never have your case handled by a junior attorney with little or no experience.  You can be confident that every step of your case will be handled by an experienced and qualified attorney.

Some firms have paralegals and assistants handle the day-to-day things on a case.  The injured worker doesn’t speak to his or her attorney; the injured worker speaks to the attorney’s “team.”  That is not how we operate.  At Brilliant & Neiman LLC, one of our two attorneys is personally handling your case.  You can speak directly to your attorney to have any concerns addressed or questions answered.

We were talking to a potential client the other day, and the client mentioned in passing about a scar that she had from the work injury.  Like many injured workers, she did not know that a scar can actually be compensable.  She believed, as many injured workers do, that one must be disabled to receive any workers’ compensation benefits in PA.  This is simply not correct.

We have discussed scarring and disfigurement on this blog in the past.  Under the Pennsylvania Workers’ Compensation Act, in Section 306(c)(22), “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment” is compensable, regardless of whether there is or was any disability involved in the work injury.  This is one of the few areas of the law (along with determination of penalties) where a Workers’ Compensation Judge (WCJ) has wide latitude to make an award.  A WCJ can order payment of anywhere from zero to 275 weeks of benefits for disfigurement.

The three key aspects to a disfigurement, or scarring, claim, is that the disfigurement be “permanent,” that it be “unsightly,” and that it be on the head, face or neck.  Generally, we start talking about permanence after about six months.  As to “unsightly,” it can be helpful to simply interpret that as “noticeable.”  And, as noted, scarring on the back, chest, or an extremity is not compensable – the disfigurement must be of the head, face or neck.  The appellate courts in PA have interpreted this to mean the scarring must be above the collarbone.

One of the common questions we hear from injured workers is “What happens if I retire?” or, more than you may imagine, “What happens if I move out of this Country?”  In either case, the answer is that your wage loss benefits are placed in serious jeopardy.  Medical benefits are not impacted by these things; this is just a risk to wage loss (“indemnity”) benefits.

Normally, to reduce or eliminate workers’ compensation wage loss benefits, the insurance carrier must prove that the injured worker’s condition has changed, such that he or she is physically capable of some kind of work, and that this kind of work is available to the injured worker.  The standard is different, however, if the insurance company can prove either that the injured worker has “retired,” or has relocated out of the Country.  If they are able to prove one of these things, a Workers’ Compensation Judge (WCJ) can find that the injured worker has withdrawn from the labor market, leading to a suspension of the wage loss benefits.  One of the tools we have, as attorneys who represent injured workers, is to show that work is not “available” to the injured worker.  In these situations, that is not even relevant.

There are strategies to deal with these situations, provided that the injured worker obtain timely legal advice.  This is yet another instance when acting without legal counsel can dramatically impact your rights.  Once benefits are suspended in these situations, it can be difficult, if not impossible, for us to fix the problem.  The best way to fix the problem, is to avoid it happening.

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.