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.

Pennsylvania workers’ compensation hearings are generally held in each county in the Commonwealth.  Some smaller counties may share hearing facilities, while more populous counties may have a second location.  The county in which the injured worker resides is typically the county in which hearings will be held, provided the injured worker lives in PA.

For several years, hearings in Bucks County have been divided between Bristol (for Lower Bucks County) and Doylestown (for Central and Upper Bucks County).  While that will still be the case, hearings in Doylestown which had been held at the Bucks County Courthouse will now be moved to the Bucks County Administrative  Building (which is across the street from the Courthouse).  For those unfamiliar with Doylestown, the Bucks County Administrative  Building is actually the former courthouse.  While the two buildings are across the street from one another, injured workers should be sure they are heading to the correct hearing location.

Bucks County is not the only one with multiple hearing locations.  Several others split their cases between two offices.  Montgomery County spreads its caseload between Malvern (for Western Montgomery County) and Dresher (for Eastern Montgomery County).  Injured workers who reside in Northampton County may have hearings in Tannersville (North) or Easton (South).  Philadelphians used to have the convenience of hearing locations in both Center City Philadelphia and Northeast Philadelphia, but the latter was closed several years ago.

Ordinarily, reinstating PA workers’ compensation benefits for an injured worker is not a high burden.  As we have previously discussed, usually benefits can be reinstated when the reason for the suspension of workers’ comp benefits no longer exists.  When the injured worker once again suffers a loss in earnings due to the work injury, through no fault of the injured worker. benefits are to be reinstated.  Case law tells us that a medical deposition is not even required in such a situation.

However, the relative burden of proof changes drastically when there has been a finding of “bad faith” with regard to a modified job offer.  Pennsylvania’s appellate courts have consistently held that all work is equal and that an injured worker cannot refuse a job offer for reasons unrelated to the work injury.  To do so would entail a finding of “bad faith,” which will stick to the injured worker for the life of the work injury.  A recent case in the Commonwealth Court of Pennsylvania demonstrated the drastic effect a “bad faith” finding can have on an injured worker in PA.

In Tyson Shared Services, Inc. v. Workers’ Compensation Appeal Board (Perez), the injured worker suffered a significant injury to his right shoulder on December 3, 2014.  This required two surgical procedures.  Shortly after the second surgery, the injured worker was offered a modified-duty janitorial position, which was consistent with the physical restrictions set by the treating surgeon.  For reasons not discussed in the decision, the injured worker refused this job offer.  A Claim Petition was litigated, resulting in a decision by a Workers’ Compensation Judge (WCJ) granting temporary total disability benefits, but then suspending the benefits as of the date of the modified-duty job offer.

Usually, if the testimony of an injured worker, and that of the medical expert offered by the injured worker, is not found credible by the Workers’ Compensation Judge (WCJ), there is no way to win the case.  This highlights just how important it is to have a “presumption” under the law, such as that available to firefighters.  As a recent decision of the Commonwealth Court of Pennsylvania shows, having the “presumption” can be the difference between winning and losing a workers’ comp case in PA.

We have previously discussed the presumption that cancer suffered by a firefighter is related to his or her work duties and work exposure.  We have addressed the different types of cancer implicated in this presumption, as well as who can use the presumption.  What we have not addressed is how important it is to actually have this presumption.  And that is what is clearly seen in Deloatch v. Workers’ Compensation Appeal Board (City of Philadelphia), decided recently by the Commonwealth Court of Pennsylvania.

The injured worker here was a firefighter who was diagnosed with lung cancer.  He filed a Claim Petition, which was litigated before a WCJ.  The injured worker testified that he was exposed to diesel fumes and smoke from fires throughout his years of service with the Fire Department. Though he stopped smoking years before, the injured worker agreed he had a 30 to 35-year-long history of smoking cigarettes.  The medical evidence presented by the injured worker connected the lung cancer to his occupational exposure as a firefighter.  Medical evidence offered by the workers’ compensation insurance company showed that the lung cancer was not due to his work as a firefighter, but was “most likely” from personal factors (primarily smoking).

One of the important aspects to the Pennsylvania Workers’ Compensation Act (“Act”) is Section 309, which deals with the calculation of the Average Weekly Wage (AWW), controlling the amount of benefits an injured worker in PA will receive.  We have discussed these calculations in previous blog posts.  Additionally, the concept of a “seasonal employee” has been addressed here.  Recently, the Commonwealth Court of PA has again touched on the meaning of “seasonal employee.”

Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board (Trucks) deals with a shoulder injury suffered by a player for the Pittsburgh Steelers.  The compensability of the work injury was not in dispute; in fact, the only issue to be decided was whether the National Football League (NFL) player was a “seasonal employee” for the purposes of determining the AWW (Note that highly paid professional athletes have a special section of Act, for calculating the AWW; the player in this case did not rise to that level).

After hearing the evidence, the first Workers’ Compensation Judge (WCJ) granted the Claim Petition and set the AWW at $3,846.15 (concluding that the player was NOT a “seasonal employee” and that the AWW was determined by dividing the yearly salary by 52 weeks (this was appealed and remanded for unrelated reasons, which I will not bother addressing).  The Workers’ Compensation Appeal Board (WCAB) affirmed.

As we have mentioned in the past, unlike Social Security Disability benefits, PA workers’ comp benefits have no cost-of-living increase.  However, the maximum rate of workers’ compensation benefit that an injured worker can receive does increase annually.  Unfortunately, this only affects injuries taking place in the new calendar year.  The Pennsylvania Bureau of Workers’ Compensation has announced that the maximum workers’ compensation rate for injuries taking place in 2020 will be $1,081.00.  This is increased from the maximum rate for 2019 of $1,049.00.

The Pennsylvania Workers’ Compensation Act sets forth the procedure for the calculation of the Average Weekly Wage (AWW).  From this figure, we determine the temporary total disability rate, often just referred to as the workers’ compensation rate.  Depending on the figures, the workers’ compensation rate is usually 2/3 of the AWW, though that is just the general rule.  Mid-range AWW can result in a workers’ compensation rate of half of the maximum rate.  A lower AWW can lead to a workers’ compensation rate at 90% of the AWW.  On the other hand, an injured worker earning a very high wage would create a workers’ compensation rate limited by the maximum compensation rate, which would mean he or she would receive less than 2/3 of the AWW.

This can be a complicated area in the PA workers’ comp system, both through the calculation of the AWW and the workers’ compensation rate, as well as what can be included within the AWW calculation. Insurance carriers frequently make mistakes in these calculations (yet, rarely are these “mistakes” to the benefit of the injured worker).

We have discussed the Utilization Review (UR) process many times in this blog.  Indeed, UR is such a big issue in the world of Pennsylvania workers’ compensation that we have a section on our website devoted to just this topic.  Basically, UR is the tool used by either an injured worker, or the workers’ compensation insurance carrier (usually the latter) to determine whether medical treatment is “reasonable and necessary.”

A somewhat related process is that for Fee Review.  Since this is something that is done by healthcare providers (rather than the injured worker), we have rarely addressed Fee Review in this blog.  The healthcare providers often have their own legal counsel handle these matters (rather than obtaining relief through the efforts of the injured worker’s attorney, as in other areas of workers’ comp).  Fee Review is the means a healthcare provider uses to obtain payment for reasonable and necessary medical treatment, related to the work injury.  Recently, the Commonwealth Court of Pennsylvania issued a decision which dealt with both Utilization Review and Fee Review.

In Keystone Rx LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Compservices Inc./AmeriHealth Casualty Services), the injured worker hurt his left knee.  As part of the treatment for the knee, the physician ordered medications, which were dispensed by Keystone Rx LLC.  The workers’ compensation insurance carrier filed for Utilization Review of the treatment rendered by the physician, including these prescriptions.  A Utilization Review Determination found all treatment of the physician, including the medications, to be unreasonable and unnecessary.  This meant the insurance company was not responsible for payment of the treatment found unreasonable and unnecessary (including the prescriptions).

How many times must an injured worker in PA hear something like, “Why are you still out of work – it was just a bruise?”  What is not widely understood is that a bruise, or a contusion, can, indeed, be a serious injury with very severe consequences.  Recently, we saw an example of this in the sports world.

Tyler Lockett, a wide receiver for the Seattle Seahawks in the NFL, suffered a bruised lower leg in a game on November 11, 2019.  According to an article in the Washington Post, Mr. Lockett was hospitalized overnight as a result of the injury.  In addition to causing pain and immobility, a bruise or contusion can also cause swelling.  This swelling, when in a small area, such as a lower leg, can instigate “compartment syndrome.”  According to the article, “Compartment syndrome is a rare but potentially dangerous condition in which pressure builds to extreme levels in a limb after it undergoes some sort of trauma, either from a big hit or simple exercise.”

On the website for the American Academy of Orthopaedic Surgeons (AAOS), it is reiterated that compartment syndrome can result from badly bruising a muscle, which we do often see in PA workers’ compensation cases.  When this compartment syndrome is the result of acute trauma, it is a medical emergency.  Immediate treatment is necessary to avoid permanent damage to muscle, nerve and tissue.  There is no non-surgical treatment for compartment syndrome.  Specifically, the treatment involved would be:

The Uninsured Employers’ Guaranty Fund (UEGF), and its role in the Pennsylvania workers’ compensation system, has been discussed previously in this Blog.  While the UEGF plays under different rules than every insurance carrier that writes PA workers’ compensation insurance coverage, and the UEGF can be incredibly difficult and frustrating to litigate against, there is no argument that the UEGF is an improvement over how things were, before the UEGF was enacted.

The different rules which apply to the UEGF were further set when the legislature passed, and Governor Thomas Wolf signed, Act 132 in October, 2018 (has it been a year already?).  This new legislation provided new protections for the UEGF to enjoy, in an effort to protect limited resources in the face of the increasing number of claims (perhaps a more effective method of protecting UEGF assets, rather than leave injured workers without remedy, would be to focus on the employers who violate PA law by failing to carry PA workers’ compensation insurance).

Among the changes to the UEGF rules in Act 132 are:

When we litigate a Claim Petition, to obtain PA workers’ compensation benefits for one who is injured at work, we must prove that the person was hurt while in the scope and course of his or her job, and that such injury renders the person disabled.  Almost always, this requires the testimony of a medical expert (usually the treating doctor).  The opinion the doctor provides must be to a “reasonable degree of medical certainty.”  What does that phrase mean?  Commonwealth Court of Pennsylvania recently examined that very thing.

In PetSmart, Inc. v. Workers’ Compensation Appeal Board (Sauter), the injured worker alleged that he had hurt his low back while doing his job.  A Claim Petition was filed, and the matter was litigated before a Workers’ Compensation Judge (WCJ).  In support of the Claim Petition, the injured worker presented expert medical testimony, from his treating physician, that “he had discogenetic [sic] low back pain, as well as nerve symptomatology of indeterminate etiology” and that it was his “presumption” that it was related to work.  Finding the injured worker, and his medical expert, credible, the WCJ granted the Claim Petition.  This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ.  While the Court was quick to point out that there are no “magic words” that need to be used by a medical expert, and that an appellate court is “not permitted to pick one or two sentences out of context,” the Court concluded that the testimony of the injured worker’s medical expert did not rise to the level of “reasonable degree of medical certainty,” and could not support the granting of the Claim Petition.

The vast majority of work injuries in Pennsylvania heal with conservative treatment, allowing the injured worker to return both to work, as well as to activities of normal life.  However, there are certainly the more serious injuries, where more invasive medical treatment is required.

Often the more invasive treatment options entail surgery.  When we are talking about work injuries to the neck and back, the procedures we usually see are laminectomy, microdiscectomy and traditional lumbar fusion.  For a description of each of these, and more information regarding these procedures, check out this post from Penn Medicine.  For our purposes today, we are looking at the traditional lumbar fusion.  As explained in the Penn Medicine article:

Traditional spinal fusions are used to treat instability of the spine, scoliosis, severe degeneration of the discs, or a combination of these issues.  A fusion involves using bone from the patient’s body to fuse one vertebrae to another.  Often, metal screws (pedicle screws) are placed into the vertebrae to assist with the fusion process.”

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