Articles Posted in Workers Compensation Litigation

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.

We are proud when our attorneys are asked to participate in continuing legal education seminars.  Being invited to help educate other lawyers can only be viewed as a tremendous compliment.  And, so we are pleased to relay that one of our attorneys, Glenn Neiman, has been invited by the Workers’ Compensation Section of the Bucks County Bar Association to act as a moderator in a continuing legal education seminar the Section is presenting later this month.

The topic of the seminar will be addressing the interplay between the Heart & Lung Act (a benefit program to which police, firefighters and other first responders qualify) and the Pennsylvania Workers’ Compensation Act.  Since these two laws can both impact cases in different ways, it is important for attorneys who handle either of these types of cases to be aware of both laws.

In past blog posts, we have discussed the Uninsured Employers’ Guaranty Fund (UEGF).  This is the safety net available for workers who have been injured while working for an employer who (in violation of Pennsylvania law) fail to carry PA workers’ compensation insurance.  While the UEGF does give these injured workers an avenue to pursue to get wage loss and medical benefits, there are hurdles to clear which are not present with a typical PA workers’ compensation case.

Ordinarily, when a worker gets hurt in Pennsylvania, he or she simply files a Claim Petition and can seek benefits from the date of the work injury.  When a claim is being made against the UEGF, however, one must first file a Notice of Claim Against Uninsured Employer (the form is LIBC-551).  Unless the Notice is filed within 45 days of the injured worker knowing the employer failed to carry PA workers’ compensation insurance, no medical or wage benefits are payable until the Notice is filed.

Once the Notice is filed, the injured worker must wait at least 21 days to file a Claim Petition for Benefits from the Uninsured Employer and the Uninsured Employer’s Guaranty Fund (form LIBC-550).  In contrast, there is no requirement (in a typical PA workers’ comp case) of waiting any time before filing a regular Claim Petition.

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.

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.

We have discussed the role of Utilization Review (UR) both on our website and on our blog.  This helps demonstrate how important this concept is in the Pennsylvania workers’ compensation system.  As the Bureau’s Workers’ Compensation Automation and Integration System (WCAIS) takes an increasingly bigger role in the practice of workers’ comp in PA, there are changes which must be made.  One of those deals with the UR process.

UR is, of course, the process to determine whether a given course of medical treatment is reasonable and necessary.  If treatment is found to not be reasonable and necessary by the Utilization Review Organization (URO), the workers’ comp insurance carrier is not liable for the payment of that treatment (nor, by the law, is the patient).  A determination by a URO can be appealed to a Workers’ Compensation Judge (WCJ).

Typically, a UR is initiated by the workers’ compensation insurance carrier, to try and avoid paying for a specified medical treatment.  Frequent targets in these URs are physical therapy, chiropractic treatment and medications.  However, there are often situations where we file a UR, prospectively (for some future treatment), so our client can more easily get a specific treatment, whether it be a diagnostic study (such as an MRI or EMG), surgical procedure, or unusual medication.

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.

On Friday, January 24, 2014, our offices will be closed for part of the day so our attorneys, and our staff, can attend a seminar regarding the usage of the new computer system recently installed for the Pennsylvania Bureau of Workers’ Compensation. Called the WCAIS system, this program went live back in September.

Though we were involved in the early testing of the WCAIS system, each day has brought changes to the new program. To best handle our cases with the Bureau of Workers’ Compensation, we felt it important that we, and our staff, attend a seminar held to review the current status of WCAIS, and how best to use the system. The seminar is scheduled to have Hon. Elizabeth A. Crum, Director, Workers’ Compensation Office of Adjudication in Harrisburg, Hon. Susan B. Caravaggio, Central District Judge Manager for the Workers’ Compensation Office of Adjudication, and three of the lead programmers who worked on, and refined, the system.

While we apologize for any inconvenience caused by us closing the firm, we believe our attendance at this seminar this will better enable us to represent injured workers throughout Southeastern and Central Pennsylvania.

As a leading workers’ compensation firm in Pennsylvania, Brilliant & Neiman LLC has worked with the PA Bureau of Workers’ Compensation on issues, such as the mediation process, in the past. The Bureau is now getting ready to institute the final part of its overhaul, transitioning into the online Workers’ Compensation Automation and Integration System (WCAIS). Initially, last September, the Bureau started the transition to WCAIS, by putting the Workers’ Compensation Appeal Board (WCAB) onto the system. This next, and final, step will be to bring the rest of the Bureau, and the entire adjudication process, into WCAIS.

It was no surprise, then, that the attorneys at Brilliant & Neiman LLC were again invited by the Bureau to be among a select group of attorneys and legal professionals from across the State of Pennsylvania to assist the Bureau with the final stages of this development. This partnership is beneficial to the Bureau, by having the attorneys work on the new system under the watch of the Bureau – to further tweak the process and refine its efficiency, as well as to the attorneys involved, by having an early exposure to the new system and gaining valuable experience.

The WCAIS system will streamline the workers’ compensation process in PA, centralizing the filing of petitions, the scheduling of hearings and the entire litigation of cases. Currently, the system is scheduled to go live on September 9, 2013. This new process should greatly increase the efficiency of both the Bureau, and the parties involved in litigation. We at Brilliant & Neiman LLC were excited and honored to share our time and experience with the Bureau, to help make the system better for all involved.

We were recently asked by an injured PA worker, and not for the first time, “Why is my employer making me see another doctor if I am already being treated by the doctor my employer sent me to?” The answer to the question requires that we look at two different parts of the Pennsylvania Workers’ Compensation Act (Act). Essentially, we are looking at the difference between a “panel physician” and an “Independent Medical Examination (IME)” [More realistically termed a “Defense Medical Examination (DME)” since there is often nothing “objective” about it].

Under the Act, an employer may only be responsible for payment to a medical provider on a “panel posting,” for the first 90 days of treatment, provided the panel posting meets the requirements as contained within the Act. Though there is a widely held belief that an employer controls medical treatment for the first 90 days, this is a vast overstatement, and employers frequently have an improper panel (meaning that the injured worker may be able to treat with any provider, and have the employer pay for such treatment, from the start).

A proper panel posting must contain at least six providers, at least three of which are physicians (the remainder could be therapy facilities or other healthcare providers who are not doctors). No more than four of the six on the posting may be from the same “coordinated care organization” (one could simply say “practice”). This posting must be displayed in a prominent location. The employer must have the injured worker sign an acknowledgement, both at the time of hire and as soon as practical after the injury, that the injured worker is aware of the panel posting. All of these requirements can be found in Section 306(f.1)(1)(i) of the Act. Frankly, very few employers actually achieve all of these requirements (yet, sadly, injured workers are unfairly saddled with treatment at a location chosen by their employer because the injured worker is not aware of his or her rights).

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