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

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.

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.

We have been following the status of the Impairment Rating Evaluation (IRE) process in PA closely, ever since the Supreme Court of Pennsylvania declared the IRE process unconstitutional in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  This has included interpretations by the Commonwealth Court of PA in the  Whitfield and Timcho cases.

As we long suspected, though, the real response would come from the Pennsylvania legislature.  In their ever-present desire to bend to the wishes and desires of the insurance industry, the legislature passed Act 111 (formerly known as House Bill 1840).  This was signed into law by Governor Thomas Wolf on October 24, 2018.  This immediately reinstates the IRE aspect of the Pennsylvania Workers’ Compensation Act.

Since we have previously discussed what the IRE process involves, we will not again detail that information.  If you would like to see more of that discussion, we would suggest reviewing the prior blog entries regarding the Protz, Whitfield and Timcho cases.

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.

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