Workers Compensation Litigation

November 5, 2009

PA Workers‘ Compensation Appeal Board Reduced

When an aggrieved party wants to appeal a decision of a Workers’ Compensation Judge in PA, the first step is to the Pennsylvania Workers’ Compensation Appeal Board (WCAB). Until recently, the WCAB was comprised of a total of 15 commissioners, who would travel throughout the State of Pennsylvania, holding oral arguments in Philadelphia, Pittsburgh, Harrisburg, Scranton, Johnstown and Erie.

Unfortunately, due to budget difficulties faced by PA, the total of 15 commissioners on the WCAB has been drastically reduced. Right now, only five commissioners remain. Apparently, there will be another three commissioners named, when they are approved by the PA Senate.

This reduction in staffing is almost certain to have a negative effect on the speed with which WCAB decisions are issued. While we would love to provide a link for more information, there has been no official word on this development from the PA Bureau of Workers’ Compensation (other than to change the listed commissioners to the current total of five).

March 10, 2009

Appeal to PA Supreme Court Sought in PGW v. Workers’ Comp Appeal Board

by Glenn Neiman

As you may recall, in a recent blog entry, we mentioned the case of PGW v. Workers’ Compensation Appeal Board (Amodei). This was the case where the Commonwealth Court of Pennsylvania stated, unequivocally, that credit against pension benefits in PA workers’ comp is to be done on the net amount of the benefit, rather than the gross.

It has now come to our attention that the workers’ compensation insurance carrier in this case has filed a Petition for Allocatur with the Supreme Court of Pennsylvania, asking the State’s highest Court to accept an appeal in this matter.

As always, we will keep everyone posted on developments in this, and any other, PA workers’ comp matter. We also want to remind folks that we are happy to answer questions regarding any Pennsylvania workers’ compensation issues. You can contact us by telephone or e-mail, through our firm website.

January 15, 2009

Termination Petition Requires Proof of Actual Change of Condition in PA

by Glenn Neiman

As a Claimant’s lawyer, practicing exclusively in PA workers’ comp, I was thrilled when the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board (WCAB) in 2007. The Court in Lewis limited a PA workers’ comp insurance company’s ability to continually file petitions to terminate a claimant’s workers’ comp benefits. Specifically, the Court held that a workers’ compensation insurance carrier in PA had to prove there was an actual change in condition from the previous adjudication of disability (again, for this case to be important, the injured worker had to have previously defended a Termination Petition).

There was some concern, however, with how the Commonwealth Court of Pennsylvania would interpret the Lewis decision. As we posted in a previous blog entry, the Commonwealth Court initially did properly follow Lewis. Last month, the Commonwealth Court of Pennsylvania set claimant’s workers’ comp attorneys’ minds at ease, when they issued a decision in Delaware County v. Workers’ Compensation Appeal Board. Here, like in Lewis, the workers’ comp insurance company lost a Termination Petition, then filed another Termination Petition. Finding the workers’ compensation insurance carrier’s doctor credible when he testified the injured worker had fully recovered from the work-related injury, the Workers’ Compensation Judge (WCJ) granted the Termination Petition.

On appeal, the Commonwealth Court of PA, vacated the termination and remanded to the WCJ (sent the case back to the WCJ for additional findings). The Court found that the WCJ had granted the Termination Petition in error, because it was not enough to simply find the workers’ compensation insurance carrier’s doctor was credible when he testified that the injured worker had fully recovered from her work injury. Instead, the Court said the WCJ must first decide whether the workers’ comp insurance company proved that the claimant’s condition had changed from the time of the first Termination Petition to the time of the second. Only after that finding is made can the WCJ decide whether the workers’ compensation insurer proved the injured worker had fully recovered.

November 28, 2008

Injured Worker in PA Barred From Coverage for Additional Work Injuries

by Glenn Neiman

Generally speaking, an injured worker in PA can ask a Workers’ Compensation Judge (WCJ) to review an accepted description of a work injury “at any time” (within the statute of limitations, of course) to amend those conditions for which the workers’ compensation insurance carrier should be responsible. In other words, usually, an injured worker, under the Pennsylvania Workers’ Compensation Act, can try to add more injuries to an accepted workers’ compensation case.

However, a recent decision by the Commonwealth Court of Pennsylvania put a significant hurdle in the path of an injured worker. On November 25, 2008, the Court decided Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.).

In this case, the workers’ comp insurance company accepted a “left shoulder strain.” The injured worker filed a Petition to Review, to add a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis, all in the left shoulder. The workers’ compensation insurance carrier agreed, and the parties executed a stipulation, providing that the work injury now included this more descriptive injury.

September 29, 2008

Unreasonable Contest Attorney Fees in PA Workers’ Comp

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

September 26, 2008

PA Workers’ Comp Verification Forms

by Glenn Neiman

Claimants receiving, or attempting to receive, workers’ compensation benefits in PA are required to report receipt of various income. There are three what we call “verification forms,” which workers’ compensation insurance companies can send to these claimants. If these forms, which were approved by the Pennsylvania Bureau of Workers’ Compensation, are not completed by the claimants, and returned to the workers’ comp insurance carrier within 30 days, workers’ compensation benefits can be stopped.

On the other hand, I recently received a copy of a “Claim Status Report,” which was sent by the workers’ comp insurance carrier to my client. Some of the questions were similar to those on the forms approved by the Pennsylvania Bureau of Workers’ Compensation, but there were other questions which a claimant would have no obligation to answer.

This is just another instance of why every Claimant should have access to an experienced PA workers’ comp attorney. Any time something is received by a workers’ compensation claimant, there should be a discussion with the attorney. There are so many rights and responsibilities the injured worker should know, that it just makes sense to have someone to watch their back.

September 3, 2008

Reinstating in PA Workers’ Comp After Benefits are Terminated

by Glenn Neiman

One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

August 8, 2008

Expert Medical Evidence Necessary to Prove Disability in PA Workers’ Comp

by Glenn Neiman

A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

July 22, 2008

Termination of Workers’ Compensation Benefits in PA May Require Change of Condition

by Glenn Neiman

Not that long ago, a Pennsylvania workers’ compensation insurance company could terminate the benefits of an injured worker anytime they found a doctor to say the injured worker had fully recovered from his or her work injury. This encouraged the workers’ compensation insurance carriers to file Termination Petition after Termination Petition, until they found a doctor the Workers’ Compensation Judge believed. Fortunately, this is no longer the case in PA. The case that allowed such a luxury by the workers’ compensation insurance carrier, King v. WCAB, was overruled by the Pennsylvania Supreme Court in Lewis v. WCAB.

The law now, confirmed by the Commonwealth Court of Pennsylvania in Prebish v. WCAB, decided on July 14, 2008, is that the workers’ comp insurance company must have an opinion that the condition of the injured worker has changed since the last termination was adjudicated. This keeps the workers’ compensation insurance carriers from harassing the injured worker by filing an endless stream of Termination Petitions. To learn how to avoid being the victim of continued litigation by the workers’ compensation insurance carriers, contact an experienced Pennsylvania workers’ comp attorney.

June 7, 2008

Expanded Description of Injury No Benefit to Injured Worker, Says Commonwealth Court of PA

by Glenn Neiman

In a very disturbing decision by the Commonwealth Court of Pennsylvania, in Watson v. W.C.A.B. (Special People in Northeast), reported by the Court on May 30, 2008, the injured worker was denied reimbursement of litigation costs, even though the injured worker was successful in part of her Claim Petition.

Claimant filed a Claim Petition three days after her injury (a fact for which the injured worker was chided by the Court, who, seemingly would prefer the injured worker sit and wait with no assurance her claim would ever be accepted by the workers’ comp insurance carrier). An Answer was filed by the workers’ comp insurance carrier admitting Claimant suffered a head contusion in the work injury.

The Workers’ Compensation Judge eventually found the doctors offered by the workers’ comp insurance carrier more credible and denied the wage loss aspect of the Claim Petition (Under the Pennsylvania Workers’ Compensation Act, no wage loss benefits are payable unless there are more than seven days of disability; here the Workers’ Compensation Judge found only three days of disability).