You are hurt at work.  What do you do now?  Keep in mind that not every injury is a sudden event, like injuring your low back picking up a box or falling down steps at work.  Some injuries are harder to determine and understand, even for the person who is hurt.  Things like repetitive stress injuries, such as  carpal tunnel syndrome, tendinitis or bursitis, or chemical/smoke exposure, or even an illness, for example, COVID, can appear over a period of days or weeks.

Regardless of the type of injury, or how it happened, the first thing to do is report the injury.  I cannot tell you how many times a client has told us that he or she did not report an injury immediately because “I didn’t think it was anything serious.”  The fact is, all injuries should be reported immediately.  It is far better to report something and then learn it is nothing serious than to fail to do so, and then discover it is worse than you initially suspected.  A delayed reporting of an injury is often used by a workers’ compensation insurance insurer as a basis to deny the workers’ comp claim.  Don’t make this mistake!

Once you have reported the injury, attention turns toward getting medical treatment.  Many people think the employer, or the workers’ compensation insurer, controls what doctor the injured worker can see for a work injury.  The truth is the employer, or the workers’ comp insurer, can limit the treatment options for a maximum of 90 days (and even then, certain steps have to have been met).

Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits.  We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.

A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA.  In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer.  Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.

Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced.  The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer.  The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.

Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer.  If notice is not given within this time, a Claim Petition may be barred.  The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker (“The Discovery Rule”).

Recently, in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), the Commonwealth Court of Pennsylvania looked at what constitutes sufficient “notice” to meet the legal requirement.  Here, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital.  Subsequently, the injured worker sent an e-mail to his employer that he had emergency foot surgery.  A below-the-knee amputation was performed on the right leg.  The e-mail did not mention any relation to work.

On December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.”

When a person is injured at work in Pennsylvania, and the injury is not accepted by the workers’ compensation insurance carrier, the injured worker must file a Claim Petition to seek benefits.  Once the Claim Petition is filed, the insurance carrier has 20 days to file an Answer, responding to the allegations of the Claim Petition.  If the workers’ comp insurance company does not file an Answer within those 20 days, the injured worker can file what is (informally) called a “Yellow Freight Motion.”

If this Motion is granted, all well-pled facts in the Claim Petition are deemed admitted.  The appellate courts in PA have told us that this Motion is not the same as a default judgement.  Ongoing disability can still be challenged by the insurance carrier, and proofs by the injured worker can be required by the WCJ.

A recent case decided by the Commonwealth Court of Pennsylvania, Hollis v. C&R Laundry Services LLC (Workers’ Compensation Appeal Board), addressed what constitutes a “well-pled fact” when it comes to the description of injury.  Here, the employee was a truck driver who was involved in a motor vehicle accident while working.  When the injury was denied, a Claim Petition was filed.  The injury was alleged to be “left rotator cuff pathology/cervical left side radiculopathy, [Cervical, Thoracic, Lumbar] sprain/strain.”

To prevail in a PA workers’ compensation case, typically the successful party presents the testimony of a medical expert, whose opinion is accepted by a Workers’ Compensation Judge (WCJ).  This expert opinion must be “to a reasonable degree of medical certainty.”  What is encompassed by those words is a bit of an art.

A recent case from Commonwealth Court of PA, UPMC Pinnacle Hospitals v. Renee Orlandi (Workers’ Compensation Appeal Board) [albeit an unreported case], touched on this issue, which may be of some interest to our readers.  When we present the testimony of a medical expert, the opinion of that expert need not be to concrete one-hundred precent certainty.  Few things in medicine reach that level, as a practical matter.  Instead, the opinions must simply be to a “reasonable degree of medical certainty.”

Pennsylvania courts have specifically found that there are no “magic words” that must be uttered by a medical expert for the opinion of that expert to be competent and be a sufficient foundation for the WCJ to base findings.  A reviewing court, such as the Workers’ Compensation Appeal Board (WCAB), or the Commonwealth Court of PA, cannot pick a sentence here or there from a medical deposition, out of context.  Instead, the appellate court must see if the testimony, as a whole, contains “a requisite level of certainty necessary to deem it unequivocal.”

There are several types of benefits which can be received by an injured worker in Pennsylvania.  A comprehensive review of these benefits can be seen here on our website.  One of those benefits is called “specific loss,” which contains things like loss of use of a body part and disfigurement of the head, face or neck (though House Bill 930 could expand disfigurement beyond the head, face or neck).

Importantly, specific loss benefits cannot be received while the injured worker is still receiving “temporary total disability” benefits (essentially, what we call total wage loss benefits).  Again, at least as far as disfigurement, this could change with House Bill 930.

What if the injured worker dies before the temporary total disability benefits stop?  Surely, the specific loss benefits, since already “awarded” would be paid to the estate, right?  Nope, wrong.  The full answer is that it depends what caused the death of the injured worker.

When an employee in Pennsylvania gets injured, the PA Workers’ Compensation Act allots the workers’ compensation insurance carrier 21 days to investigate and accept or deny the claim.  If 21 days is not sufficient, the insurance carrier can opt to issue a Notice of Temporary Compensation Payable (NTCP or TNCP), and continue the investigation for up to 90 days more.  If the TNCP is not properly revoked within those 90 days, according to the Act, the TNCP becomes a regular Notice of Compensation Payable (NCP), and the injury can no longer be denied.  Simple, right?

Not so fast.  When a TNCP has been issued (for both wage loss and medical benefits), an insurance carrier can simply file a Medical-Only NCP, accepting liability solely for the medical aspect of the case (thus, denying liability for wage loss), without ever revoking that TNCP or issuing a Notice of Denial (NCD) for wage loss.  While this seems contrary to the words, if not the spirit, of the Act, the Commonwealth Court of Pennsylvania says this is perfectly fine.

This happened recently in an unreported case, Moretti v. County of Bucks (Workers’ Compensation Appeal Board), though prior reported decisions of the Commonwealth Court, supporting such a situation, were cited by the Court.

On May 6, 2023, the Eastern PA-Delaware Region of The Leukemia & Lymphoma Society held “Big Climb Philly” at Lincoln Financial Field. The event has raised over $500,000.00 for this important cause. We at Brilliant & Neiman LLC are proud to have one of our attorneys, Glenn Neiman, participate in the event with the team from Angeion Group (a major class action administration firm in Philadelphia). We know that being a good corporate citizen means getting involved with worthy causes. As such, we are proud to support the noble efforts of LLS to help find cures and treatment options for this devastating disease. To learn more about The Leukemia & Lymphoma Society, or make a donation, you can visit LLS.org.

An injured worker in PA is entitled to certain benefits under the Pennsylvania Workers’ Compensation Act.  We discuss these benefits in great detail here, on our website.  Basically, these benefits include wage loss (called “indemnity”), medical, “specific loss” and fatal claim benefits.  Given some pending legislation, we will be discussing the “specific loss” benefits today.

“Specific Loss” benefits encompass any type of benefit other than wage loss, medical or fatal claim.  It includes loss of use of a body part and scarring, as was addressed in a previous blog post.   Under the Pennsylvania Workers’ Compensation Act, only scarring of the head, face or neck is compensable.  A Workers’ Compensation Judge (WCJ) can award from zero to 275 weeks for the scarring, depending on the level of disfigurement.  And, this payment is to be made only after the injured worker is no longer receiving total or partial disability benefits.

But, House Bill 930 would change all of that, if it were to become law.  First, scarring would be compensable anywhere on the body, not just the head, face or neck.  Which, of course, is logical, since most areas of the body can be seen by others and potentially cause embarrassment if there was some level of disfigurement.  Second, the WCJ would be able to award up to 400 weeks, since significant disfigurement should entitle the victim to significant compensation.  Lastly, House Bill 930 would allow the scarring award to be paid while the injured worker remains on total or partial disability.  Which, again, makes sense, since the scarring does not wait to appear.

On June 1, 2023 and June 2, 2023, the Pennsylvania Bureau of Workers’ Compensation will hold its 22nd annual “Workers’ Compensation Conference.” Here, attorneys, Workers’ Compensation Judges (WCJs), employer representatives, adjusters, risk management/safety employees and others who work in the world of workers’ comp from across the entire State of PA, gather to discuss and learn changes and trends of which they should be aware.

Our attorneys attend this conference nearly every year, and will do so again this year. While we, as attorneys who represent injured workers, are in the vast minority (most of the attorneys who attend this conference are seeking work from the workers’ compensation insurance company representatives in attendance), we feel it is critical to the representation we provide.

By being in the room while the insurance industry representatives are told about the state of the workers’ comp laws, we are getting a peek into their thought processes. This helps us understand and anticipate steps and strategies the workers’ compensation insurance carriers may take. We are also able to have informal conversations with WCJs and defense attorneys, building relationships that may improve communication in future dealings. Not to mention, we are also learning, attending the seminars on such topics as return to work, payment of medical bills, employee mental health (especially post-injury), medical advancements and negotiation strategies.

Contact Information