Since the Supreme Court of Pennsylvania set the PA workers’ compensation system abuzz in the Protz case by striking the entire Impairment Rating Evaluation (IRE) section from the Pennsylvania Workers’ Compensation Act (Act), we have waited to see some appellate decision interpreting Protz.  The Commonwealth Court of PA has now weighed in on the issue.

In Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), the Court reversed the decision of the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB), and found that the injured worker was potentially able to reinstate her total disability benefits after an IRE.  The Court remanded for the injured worker to prove she remains totally disabled.

As attorneys for injured workers in PA, we were thrilled with the primary decision rendered by the Court – that being an injured worker whose 500 week maximum of partial disability benefits (which was obtained by IRE) has ended can still seek reinstatement to total disability benefits.  In so finding, the Court rejected arguments by the workers’ compensation insurance carrier that the injured worker could not pursue reinstatement because she had failed to challenge the status of the IRE provisions of the Act initially.

Unfortunately, due to what appears to be a problem with Comcast business phone service across several states, we currently cannot be reached by telephone.  Please try to contact us by e-mail at gneiman@bnlegal.com or dbrilliant@bnlegal.com or by messaging us at our Facebook page.  We deeply regret this inconvenience, and hope Comcast has our service restored in the near future.

***I should note that the phones were back by that afternoon around 3:00***

 

“Notice” of a Pennsylvania work injury is an issue which we have previously addressed in this blog.  Essentially, an injury must be reported to the employer within 21 days to have benefits date back to the first day, and within 120 days of the injury to have an entitlement to PA workers’ compensation benefits at all.  Often, the disputed aspect of a case is whether the notice provided to an employer is sufficient under the Pennsylvania Workers’ Compensation Act.

Importantly, proper notice does not mean that an employee must give a report with specifics or certainty.  What matters is whether the notice provided makes the employer aware that there is a possibility of a work-related injury.  Recently, the Commonwealth Court of Pennsylvania dealt with this very issue in City of Pittsburgh and UPMC Benefit Management Services, Inc. v. Workers’ Compensation Appeal Board (Flaherty).

Here, the injured worker (Claimant) was a firefighter for 16 years.  She was diagnosed with breast cancer in 2004, and was no longer able to continue performing the required duties of the position.  After Act 46 was enacted in 2011, creating a presumption dealing with cancer and firefighters, Claimant received a letter from her union describing the benefit to the new law.  Shortly thereafter, she filed a Claim Petition giving her employer notice that her condition may have been work-related.  She did not receive an opinion from her doctor, that her condition was, in fact, related to work, until a few months later.

Recently, an injured worker from Lower Bucks County, PA, called us.  When we discussed our Bucks County office locations, I mentioned our main office in Warminster and our satellite location in Trevose.  To our surprise, the injured worker was not familiar with Warminster.  As a proud commercial resident of Warminster Township, we wanted to make sure more folks knew about our town.

Warminster Township is less than four miles northwest of Philadelphia, and conveniently accessible to the Pennsylvania Turnpike and I-95.  SEPTA bus service runs throughout Warminster, and we have our own regional rail station.  Over 32,000 residents call Warminster Township home.

While Warminster Township may be less than 11 square miles in size, it features “420 acres of active and passive recreation areas in 13 parks.”  The largest of the parks is Warminster Community Park, located between Street Road and Bristol Road, adjacent to Jacksonville Road.  This park boasts over five miles of trails, and features playground equipment, basketball courts and a unique “little city” area for kids to play.

Thoracic Outlet Syndrome (TOS) and Brachial Plexopathy are two conditions we see representing injured workers in Pennsylvania.  These conditions were recently in the news in the Philadelphia area, with the report that Phillies pitcher Vince Velasquez underwent surgery for TOS in the previous offseason.  Indeed, it is not an uncommon injury for a professional baseball pitcher; our firm has represented a former major league pitcher with the condition (of course, we have represented many more types of injured workers with this condition than professional athletes!).

Both TOS and brachial plexopathy are sort of general terms, each regarding issues in the brachial plexus area (think of it like a big city train station, where it is many branches of nerves coming together rather than railroad tracks).  There are many forms of these conditions, making diagnosis difficult.  As we have mentioned previously on this blog, brachial plexopathy can be confused for conditions in the shoulder and/or neck of the injured worker.  This difficulty is also mentioned in the Medical FAQs on our website.  In the PA workers’ compensation system, we are often litigating to have TOS or brachial plexopathy accepted as part of the work injury (since such conditions are rarely, if ever, voluntarily accepted by the workers’ compensation insurance carrier).

Part of the problem in getting TOS or brachial plexopathy accepted as a work injury is the fact the conditions can be caused in various ways.  In fact, some occurrences are “idiopathic,” meaning that there is no known cause.  On the other hand, trauma is an established cause of the conditions.  It is also important to note that when we talk of “trauma” as a cause of TOS or brachial plexopathy in a work-related injury, we are speaking both of a single injury, as well as some type of repetitive motion kind of injury.  As we have discussed on this blog, repetitive motion injuries are just as much “work injuries” as single traumatic episodes.

Last week, we were fortunate enough to be in attendance as the Bucks County Bar Association presented a seminar addressing the three separate branches of government, as a celebration of Law Day.  Listening to presentations from each of the branches provided fascinating insight to see how government works, from the eyes of those who were there.  Sometimes, since we are litigation attorneys focused so deeply on each case, we lose sight of the bigger picture.

From the Judicial Branch, we heard from The Honorable Robert O. Baldi, with the Bucks County Court of Common Pleas in Doylestown.  Former Governor of Pennsylvania Mark Schweiker told us about his perspective from the Executive Branch.  Finally, Michael G. Fitzpatrick Esq. relayed his experiences in the Legislative Branch during his eight years with the U.S. House of Representatives before he retired.

While the Pennsylvania workers’ compensation system has its own Workers’ Compensation Judges, and holds hearings (depending on the county) in locations other than a county courthouse, the system still is a product of the three branches of government.  When the PA Workers’ Compensation Act was initially enacted in 1915, and in every addition, revision or amendment since, the three branches of government were involved.  Indeed, just recently, the Executive Branch kept the Legislative Branch from harming injured workers across the entire State of Pennsylvania (When Gov. Wolf vetoed the incredibly flawed SB 936).

Recently, we discussed the status of Senate Bill 936, which was passed by the House.  We are pleased to relate that Governor Thomas Wolf has vetoed this legislation, recognizing that it was a thinly disguised attack on injured workers and not a solution to any problem.

As discussed in the Morning Call, Gov. Wolf said:

Make no mistake, Senate Bill 936 is not a bill designed to fight the opioid crisis. Senate Bill 936 threatens health care for millions of workers who could be injured on the job, including police, corrections officers, and firefighters, who put their lives on the line every day, and whose injuries can be unique, debilitating and severe. It is wrong to sacrifice health care for our first responders to protect the bottom-line for insurance companies and corporations.”

A critical stage of a workers’ compensation case in PA can happen if the injured worker is offered a job by his or her employer.  This may be the regular job, with or without modifications, or a different job entirely.  This is when an injured worker really needs to get representation by an attorney Certified as a Specialist in Workers’ Compensation Law (if he or she has not already done so – many injured workers do not realize that being represented by an attorney DOES NOT COST A DIME unless and until the case goes to court, or the case settles).

Whether (and how) to respond to the employer, and whether to go back and try the job, will always depend on the circumstances in each case.  Keep in mind that case law is not friendly to the injured workers in many areas of workers’ compensation law in PA, including this one.  For example, the modifications an employer would be willing to make to a job may not need to be stated in the job offer.

This time in a workers’ comp case is a critical one.  If the injured worker makes a rash decision, without the benefit of advice from an attorney Certified as a Specialist in Workers’ Compensation Law, the case may be irreparably damaged.  Since obtaining the services of an attorney will not cost anything, is there really a reason to handle these things without counsel?

Previously, we have warned of the pending legislation that will restrict the access of injured workers across the State of Pennsylvania to get medications they need.  Now, thanks to the House passing Senate Bill 936, the legislation heads to the Governor.  It is not bad enough that innocent people suffered injuries at work, now they have to deal with the reality that they will be treated different than patients who are not in the Pennsylvania workers’ compensation system.

As noted in an article on Pennlive.com, this legislation “was drawn up in response to reports in the Philadelphia Inquirer and Daily News about doctors and law firms specializing in worker’s compensation that were operating their own pharmacies.”  Perhaps someone would be kind enough to explain why the legislation did not simply prohibit the ownership of pharmacies by these groups?  Instead, this legislation does not even deal with this issue.  At all.  Rather, the legislation makes medications (all medications, not just the opioids that caused all of the supposed angst) more difficult for an injured worker in PA to obtain.

And, again we ask, is this fair?  Is this how our elected representatives protect us?  By making sure that we have difficulty getting medications if we are unlucky enough to be injured at work?  We urge all injured workers, those who care about injured workers and those who care about fairness and justice, to reach out to their legislators, and reach out to the Governor’s office, and let everyone know this will not be done without a fight!

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.”