Workers Comp Appeals

June 15, 2022

Changes Coming to Pennsylvania Workers’ Compensation Appeal Board (WCAB)

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.

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 17, 2018

Which Workers’ Comp Appellate Decisions Count in PA?

by Glenn Neiman

On our blog, as you probably noticed, we like to share court opinions which are of interest to the injured worker in PA. Typically, of course, these opinions deal with interpretations of the Pennsylvania Workers’ Compensation Act (Act). Also, typically, these are opinions rendered by the Commonwealth Court of Pennsylvania. Why that court? And are all decisions of Commonwealth Court the same? Glad you asked!

Once a Workers’ Compensation Judge (WCJ) renders a decision, the next level of appellate review is the Workers’ Compensation Appeal Board (WCAB). This is a process we have discussed on this blog in the past. Decisions rendered by the WCAB can be cited to WCJs, by attorneys, in future cases, but the WCAB opinions are only “persuasive” not “binding.” This means that a WCJ need not follow a decision of the WCAB. For this reason, we rarely devote a blog posting to a WCAB decision.

After the WCAB issues a decision, an appeal can be taken to the Commonwealth Court of Pennsylvania. Like with the WCAB, an appeal to Commonwealth Court is a right, so the Commonwealth Court cannot decline an appeal. The Commonwealth Court will then make a decision. This is either “reported” or “unreported.” These terms have their usual meaning – a “reported” decision is published in a law reporter; an “unpublished” one may not. More importantly, as a practical matter, a “reported” decision can be cited in future cases (and is binding on both the WCJ and the WCAB). While an “unreported” case can be cited in future cases, like a WCAB opinion, it is not binding on a WCJ (only persuasive). Though they are far more plentiful, “unpublished” decisions are not typically made blog posts by us. They simply are not as significant, since they need not be followed. Note that an “unpublished” on “unreported” decision, upon motion of a party, could be changed to “published” or “reported.”

February 21, 2018

The Importance of Selecting the Right PA Workers’ Compensation Lawyer

by Glenn Neiman

We have often discussed the importance of winning a case before the Workers’ Compensation Judge (WCJ). This is because the WCJ is the “ultimate finder of fact.” Determinations of credibility made by a WCJ cannot be challenged on appeal. Indeed, appellate courts can only change the decision of a WCJ if there has been an “error of law.” Given this great power held by the WCJ, it is critical that an injured worker’s case be litigated as well as possible before the WCJ.

We say this to point out that it really does matter what PA workers’ comp attorney an injured worker selects. Certainly, one can simply search on the internet and find many attorneys from which to choose. But, therein lies the difficulty – how should an injured worker in Pennsylvania choose his or her workers’ compensation attorney?

To try to bring some common sense to this situation, we have added a page to our website, intended to help an injured worker make this important selection. Obviously, we would like an injured worker to call us, but whether you do or not, these are some things an injured worker can consider when making this important decision.

September 19, 2017

WCAB to Change Oral Arguments

by Glenn Neiman

When a party to a PA workers’ compensation litigation receives a decision of the Workers’ Compensation Judge (WCJ), the party can file an appeal to the Workers’ Compensation Appeal Board (WCAB). If a party is not successful before the WCAB, then the party can file an appeal to the Commonwealth Court of Pennsylvania. The losing party at that level can request an appeal to the Supreme Court of PA, but whether the appeal is accepted by the Supreme Court is discretionary with the Court.

Oral argument is available on every case before the WCAB, even before briefs are submitted (though the parties can waive the right to oral argument if they wish). At the Commonwealth Court and Supreme Court levels, however, the Courts decide whether they want oral argument (typically requested only on novel or complicated issues), and the arguments would be after the briefs are submitted.

At least, that’s how it was. We were just notified by the Pennsylvania Department of Labor & Industry that a change is being proposed to the rules regarding oral argument before the WCAB. There are two basic elements looking to be changed. First, the briefs would be submitted before any oral argument would be done (so the WCAB Commissioners could know the case before hearing the oral arguments cold). Second, mirroring the higher courts, the use of oral argument would be discretionary with the WCAB, reserved for novel or complex issues.

May 22, 2017

Findings of Fact, and Determinations of Credibility, Made by PA Workers’ Compensation Judge Difficult to Change on Appeal

by Glenn Neiman

As attorneys representing the injured worker in Pennsylvania, there is a call we get far too often. It starts with the injured worker telling us that they lost their case before the Workers’ Compensation Judge (WCJ) and need assistance in litigating an appeal before the Workers’ Compensation Appeal Board (WCAB). Unfortunately, in the vast majority of these cases, we are simply unable to offer help to the injured worker.

The role of the WCJ in Pennsylvania workers’ compensation is something we have discussed on this blog in the past. Essentially, the WCJ is the ultimate Finder of Fact. When a credibility determination has to be made, it is the province of the WCJ to do so. As long as there is support in the evidentiary record, and the WCJ explains his or her reasoning, these credibility determinations cannot be reversed or changed on appeal. Even if the appellate body, whether the WCAB, the Commonwealth Court of Pennsylvania, or even the Pennsylvania Supreme Court, admits it would have concluded otherwise, it still cannot change the Findings of Fact or credibility determinations rendered by the WCJ.

So, you may be wondering, if an appellate court cannot change the Findings of Fact or determinations of credibility of a WCJ, what is required then on appeal? Basically, a successful appeal requires that it be shown the WCJ made an error of law. An appellant would have to show that there is no substantial basis to support the ultimate Conclusion of Law made by the WCJ. In other words, accepting the facts as found by the WCJ, the appellant should still have won. For better or worse (depending if you win before the WCJ), it is pretty rare to find a true “error of law” made by the WCJ. This is why we can rarely help an injured worker with an appeal, when the injured worker does not contact us until he or she loses in front of the WCJ.

March 6, 2017

Supreme Court of Pennsylvania to Determine Whether Commonwealth Court of Pennsylvania Applied Firefighter Presumption Correctly

by Glenn Neiman

Back in August, 2016, we discussed the case of City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek). For those who do not recall, this was the case (well, one of several recent cases actually) which determined that a firefighter must prove the cancer he or she developed was of a type caused by the listed carcinogen, before the firefighter could use the presumption in Section 108 (making the obtaining of workers’ compensation benefits easier for the firefighter). The Commonwealth Court of Pennsylvania had vacated the decision of the Workers’ Compensation Judge (WCJ), which granted the Claim Petition.

While an aggrieved party has the right to appeal any decision of a WCJ to Commonwealth Court (after first appealing to the Workers’ Compensation Appeal Board (WCAB)), the Supreme Court of Pennsylvania has the power to decide which appeals it will accept. The fact the Court has now accepted appeal in this matter suggests that they wish to clarify the reading of Section 108(r). Which way they will find is anyone’s guess at this point, though we will be following the developments closely.

February 3, 2017

PA Workers’ Compensation Appeal Board Commissioner, Past Chair, Retires

by Glenn Neiman

According to a memo released by Alfonso Frioni, Jr., Esquire, Chairman of the Pennsylvania Workers’ Compensation Appeal Board (WCAB), Commissioner Susan M. McDermott has decided to retire after spending over twenty years on the WCAB, including a stint as the very first female Chairperson of the WCAB. The entire text of the memo is:

“On behalf of the Pennsylvania Workers’ Compensation Appeal Board, we extend our special thanks and congratulations to Commissioner Susan M. McDermott on her retirement from the Board.

Commissioner McDermott was appointed to the Appeal Board by Governor Tom Ridge in 1996, serving over twenty years until her recent retirement in January 2017. Susan was one of the first two women appointed to the Board in its one-hundred-year history, and was the very first woman Chairperson of the Workers’ Compensation Appeal Board serving from 1996 to 2010. Susan’s contributions to the professionalism of the Board were extensive with her instituting many of the Board’s internal operating procedures, particularly with regard to the circulation of opinions, adopted from The Commonwealth Court.

March 23, 2016

PA Supreme Court Grants Appeal in Protz

by Glenn Neiman

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.

February 19, 2015

Pennsylvania has New Rules for Practice and Procedure in Workers’ Compensation Matters

by Glenn Neiman

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.