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 Workers Compensation Litigation

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:

In recent years, the Pennsylvania Bureau of Workers’ Compensation has been more transparent with the hiring of new Workers’ Compensation Judges (WCJs). While we generally have to rely on word of mouth for the retirement or transfer of a WCJ (to a different workers’ comp hearing office), we can usually count on the Bureau to let us know when a new WCJ is appointed to the bench. Along these lines, we are happy to congratulate Debra Matherne and Cassi Martin on becoming WCJs.

According to the Bureau, “Ms. Matherne has most recently been employed by Cipriani and Warner as a partner doing primarily WC defense work. Prior to that, she practiced on the Claimant’s side as a partner with Michael O’Connor and Associates. She has set a tentative start date of 3/28 to begin Act 57 training.”

Cassi Martin is an active member of the Bucks County Bar Association (BCBA), and the Workers’ Compensation Section of the BCBA, so we are well-acquainted with her talents and experience. She had been working for Hill Wallack LLP, handling primarily workers’ compensation defense work for employers, self-insureds and insurance carriers. Having earned her undergraduate degree at Marist College, Ms. Martin received her J.D. degree from Fordham University School of Law. On April 11, 2022, Ms. Martin will begin her WCJ training. Upon the completion of her training, Ms. Martin will be assigned to the Philadelphia Workers’ Compensation Hearing Office.

Nearly two full years after COVID-19 briefly shut down the Pennsylvania workers’ compensation system, and then created a dramatic shift in how litigation was done, the PA Bureau of Workers’ Compensation has announced measures to return to some level of our prior (the old “normal”) operation.

It has been since March, 2020, that most of us in the workers’ compensation bar have physically been inside of a workers’ comp hearing room.  Nearly every hearing and mediation since that time has taken place in a virtual format.

The Workers’ Compensation Office of Adjudication (WCOA) has officially announced that mask mandates have been lifted and live (in person) hearings and mediations may again commence.  While the virtual hearings which have become the new “normal” will continue in some respects, it appears that live testimony will once again be taking place.  You may recall that the PA workers’ comp courts were permitted to be “open” as of August 16, 2021, though very few Workers’ Compensation Judges (WCJs) actually held live hearings.  At Brilliant & Neiman LLC, we have not been involved in a live hearing since March, 2020.

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]

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.

 

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!

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.

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.

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).

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.

Contact Information