Worker Comp Generally

December 23, 2021

Supreme Court of Pennsylvania Reverses Commonwealth Court of Pennsylvania; Allows Fees Charged to Workers’ Compensation Insurance Carrier

One of the most unfair aspects of Pennsylvania Workers’ Compensation has always been how injured workers must defend petitions which address only medical benefits. While injured workers receiving total disability benefits can easily retain an attorney (paying a portion, usually 20%, of such benefits as the fee), injured workers who continue to work, and lose no wages, must decide whether to pay an attorney from their pocket or risk losing access to medical benefits for the work injury. However, this situation has now changed, thanks to a decision by the Supreme Court of Pennsylvania.

The PA Workers’ Compensation Act (“Act”) has typically been interpreted to allow attorney fees to only be assessed against the workers’ comp insurance carrier if there is a showing that the petition at issue was “unreasonable.” Thus, the award of attorney fees, chargeable to the insurance company, was the exception to the rule. This despite the fact that Section 440 of the Act says:

“In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.” [Emphasis added]

December 2, 2021

Maximum Workers’ Compensation Rate for PA in 2022 Will Be $1,205.00

by Glenn Neiman

The Pennsylvania Department of Labor & Industry recently announced that the “statewide average weekly wage” (SAWW) for 2022 will be $1,205.00. This represents a 6.6% increase over the SAWW for 2021 of $1,130.00. Under the PA Workers’ Compensation Act, the SAWW represents the maximum workers’ compensation rate which can be received by an injured worker in Pennsylvania.

June 30, 2021

PA Bureau of Workers’ Compensation System Reopening Announced

by Glenn Neiman

As we have noted previously, all hearings in Pennsylvania workers’ compensation matters have been held virtually, either by telephone or video, since last Spring. We have now been told that the hearing offices within the PA Bureau of Workers’ Compensation will be reopening as of August 16, 2021.

However, this does not mean the system will return to how it functioned prior to the pandemic. As with many things, we will be learning a “new normal.” We have been told that “virtual hearings” will continue for certain things, though exactly when hearings will be live, as opposed to virtual, remains unclear. Likely, we will have live hearings for the testimony of an injured worker, or an important witness, but that virtual hearings will continue for “status hearings.” Whether a hearing is live or virtual, ultimately, will come down to the discretion of the Workers’ Compensation Judge.

Meanwhile, the Workers’ Compensation Appeal Board will continue to hold oral argument virtually. As is the case now, the parties can request oral argument be done live. Provided the request is made in a timely fashion, it will generally be granted. In the special case of disfigurement/scarring, the hearing will be done in person.

April 22, 2021

New Pennsylvania Workers’ Compensation Judge Announced For Philadelphia Hearing Office

by Glenn Neiman

The Pennsylvania Bureau of Workers’ Compensation has announced that The Honorable Ashley Drinkwine will be a new Workers Compensation Judge (WCJ) assigned to the Philadelphia Workers’ Compensation Hearing Office. Judge Drinkwine will be taking the place of Judge Scott Olin, who has retired after many successful years on the bench. The decorum and wisdom of Judge Olin will be missed and we wish him well in his retirement.

Specifically, the release states:

“The WCOA is pleased to announce the hiring of new Workers’ Compensation Judge Ashley Drinkwine who will replace the recently retired Judge Scott Olin in the Philadelphia hearing office. Judge Drinkwine will begin her statutorily mandated training beginning June 1, 2021. Congratulations Judge Drinkwine!”

April 9, 2021

PA Workers’ Compensation System Still Operating Remotely

by Glenn Neiman

We apologize for having such infrequent posts these past several months. Like much of society, things have slowed down since the pandemic arrived. There seem to be fewer appellate decisions coming down, and those that do seem more frequently to be unreported decisions. This makes it more difficult to find things to share with our readers.

Similarly, the Pennsylvania Workers’ Compensation Office of Adjudication is continuing to have the parties litigate matters remotely, using either telephone or videoconferencing for hearings and depositions. Unlike family conversations, Zoom is a platform we cannot use, apparently due to security concerns. Instead, some Workers’ Compensation Judges (WCJs) use WebEx and others use Teams (what was Skype for Business).

The advantages of litigating cases remotely, obviously, are vast. We eliminate the need to travel to hearings in various counties across the State (we represent clients as far west as Carlisle, Harrisburg and Mechanicsburg, as far south as Delaware County and as far north as the Scranton/Wilkes-Barre area). Basically, we handles cases throughout the Southeastern, Northeastern and Central parts of PA.

December 21, 2020

PA Workers’ Compensation System Impacted by USPS Delays

by Glenn Neiman

It is a frequent call we receive. “My check is late.” Nobody wants to deal with a delay in getting their check, especially around the holidays. Indeed, getting a check late means more than just difficulty in holiday shopping – it means late rent, mortgage payments, phone bills, credit card payments, car payments, etc. Getting checks from the workers’ compensation insurance carrier in an untimely fashion can cause late fees, eviction proceedings and repossessions.

The Pennsylvania Workers’ Compensation Act contains a provision wherein a Workers’ Compensation Judge (WCJ) can order a penalty of up to 50% of the amount paid untimely. Typically, this is seen only in cases where checks are significantly late (more than a few days), or when the checks are regularly issued in an untimely fashion. For a WCJ to entertain thoughts of a penalty, however, the fault must lie with the workers’ compensation insurance carrier.

Increasingly, we are seeing these late checks where the workers’ compensation insurance carrier actually mails the check in a timely fashion, but the beleaguered United States Postal Service (USPS) cannot deliver the check promptly. A recent article in The Philadelphia Inquirer touches on the delays in the delivery of packages by USPS, but we can attest that the delays apply to letters, as well. We are seeing situations (sadly on a frequent basis) where it is taking 7-9 days for a letter from the Bureau of Workers’ Compensation in Harrisburg, PA to get to our main office in Warminster, PA. A brief we filed with the Commonwealth Court was lost within the USPS (despite the presence of a tracking number) requiring that we mail it again.

July 30, 2020

PA Workers’ Compensation Hearings Primarily Still Being Done Telephonically

by Glenn Neiman

As we noted in our June 2020 update, the Pennsylvania Bureau of Workers’ Compensation began to (technically) allow limited in-person hearings, in counties which have been declared to be in the “Green” phase by Governor Wolf. This announcement was made on June 12, 2020, to take effect June 19, 2020. As a practical matter, we have yet to have an in-person hearing scheduled. Regular hearings continue to operate by telephone conference, with video conference as the other option.

There appear many different feelings among Workers’ Compensation Judges (WCJs) regarding the taking of testimony of an injured worker or fact witness. Some WCJs have expressed an interest in video conferencing for the testimony of the injured worker and fact witnesses (for which the Bureau appears to be using Skype for Business primarily, though I understand there is discussion of other platforms). On the other hand, since the WCJ cannot know who else is in the room, other WCJs want simply deposition testimony of the injured worker or fact witnesses, feeling they get no advantage by watching the video. I tend to agree with a WCJ who told me that, as long as he can watch the eyes of a witness, he can tell if they are being coached or reading notes. Another WCJ explained that she did not want in-person testimony of my client, since the required use of a mask took away from the WCJ’s ability to fully evaluate the demeanor of my client. This would not be an issue with video conference.

While we, as attorneys for the injured workers, really want the WCJ to personally see our client while he or she testifies, antagonizing a judge is never a good idea in litigation. For the most part, WCJs will generally agree to videoconferencing of the injured worker testimony, since in-person is not commonly available. This seems to be the most reasonable alternative.

June 26, 2020

PA Workers’ Compensation System Will Not Fully Open, Even as Each County in Pennsylvania Reaches the Green Phase

by Glenn Neiman

As more counties across Pennsylvania reach the “Green” phase in the COVID-19 recovery process, attorneys involved in the PA workers’ compensation process were curious to know how this will impact the operations of the Bureau of Workers’ Compensation. Yesterday, we were advised by the Bureau that, “(t)he designation of counties as ‘green’ does not automatically signal a return to in-person hearings.” Instead, live, in-person hearings will only be permitted in limited situations. This will be at the discretion of the Workers’ Compensation Judge (WCJ), where the WCJ feels it critical to have in-person testimony of a witness to properly assess credibility. In-person hearings will only be permitted in counties that are in the “Green” phase of COVID recovery.

Either party can request that testimony of a witness be taken in-person, but the WCJ will have complete latitude to grant or deny the request. Such a request should “include a justification and the position of the opposing party on the request.” The WCJ can also determine, on his or her own motion, that in-person testimony will be necessary.

Significant changes will be made to prior procedures in the workers’ compensation hearing offices. Only one Judge will hold hearings per day, and there will be a scheduled break between cases, so that an interim cleaning can be performed. As the Bureau notes, “Each individual who enters the office has a personal responsibility to follow the CDC and DOH guidelines for handwashing, social distancing, wearing masks, and staying home if sick.” All attendees to a hearing will be screened by security (to ask about wellness, in addition to the typical security screening). No persons will be permitted to enter a workers’ comp hearing location without a mask (sadly, the new normal).

May 6, 2020

Novel Coronavirus (COVID-19) Continues to Impact PA Workers’ Compensation System

by Brilliant & Neiman

Yesterday, our attorneys participated in a webinar dealing with the continuing impact the Novel Coronavirus (COVID-19) is having on the Pennsylvania workers’ compensation system. We have already participated in hearings using Skype for Business, and understand some Workers’ Compensation Judges (WCJs) are experimenting with the WebX platform. Zoom had been used on occasion, but apparently some security concerns have rendered that unusable for our purposes.

Depending on the case and the situation, some attorneys, and the WCJs, are agreeing to simply delay the testimony of an injured worker for later in the case, hoping we will be able to have in-person hearings again in the somewhat near future. However, given the uncertainty in timing, there is often a need to move forward, at least with video, in addition to audio. We believe it is critical for the WCJ to actually see the injured worker testify, since so much comes down to simply whether the WCJ believes the injured worker or not.

Even in ordinary circumstances, the procedures followed by a WCJ vary widely, sometimes even in the same workers’ compensation hearing office. For this reason, there is a “Judge Book,” detailing the practices and procedures for each WCJ in the Commonwealth. Now, on the page for each WCJ, you will see “CLICK HERE TO VIEW THE JUDGE’S SPECIAL PROCEDURES DURING THE GOVERNOR’S EMERGENCY DECLARATION DUE TO COVID-19.” Here you will find how any particular WCJ is handling cases in the current COVID-19 era.

April 16, 2020

Coronavirus (COVID-19) Workers’ Compensation Legislation in PA

by Glenn Neiman

Today, our attorneys participated in a conference call (so as to maintain social distancing) with workers’ compensation attorneys across the State of Pennsylvania, as well as lobbyists, regarding the status of the workers’ comp system in PA as we all deal with the Coronavirus (COVID-19). We discussed pending legislation in the Pennsylvania House and Senate, as well as how we are all handling cases under the shutdown as ordered by Governor Wolf.

There is legislation being worked upon by PA House Democrats, but nothing substantial is expected to be passed. The issue that appears most concerning to legislators is making sure those essential workers on the front lines, the doctors, nurses, first responders, and the like, are protected should they develop the Coronavirus (COVID-19). While this is a noble goal, the Pennsylvania Workers’ Compensation Act already does provide protection in such a situation. As we note on our website, when an employee is exposed to a substance (or disease) in the workplace, and is rendered disabled by the exposure, there exists a valid workers’ compensation case. We would also note that the healthcare workers are not the only employees on the front lines in this situation. Workers in grocery stores, like stockers and cashiers, restaurant workers, warehouse people and delivery drivers, just to name a few, are also at risk for catching COVID-19 through workplace exposure.

As to the Pennsylvania workers’ compensation system, cases are continuing to be litigated. Often this is being done by telephone conference, though some Workers’ Compensation Judges (WCJs) are using videoconference (which is important when an injured worker, or critical witness, is testifying, so the WCJ can better determine whether to believe such testimony). Since none of us know how long the government-ordered shutdown will continue, it is critical to the system (and the lives of injured workers throughout PA) that cases continue to be litigated.