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Not long ago, we discussed our belief that the Pennsylvania Chamber of Commerce and PA workers’ comp insurance industry will soon be gearing up to have legislation introduced to curtail the rights of injured workers in PA. As we mentioned, the Utilization Review (UR) process is squarely on their radar for reform. Considering the Commonwealth Court of Pennsylvania recently denied an injured worker’s access to strong pain medication she testified she needed to relieve her intense pain, one must wonder how much more reform they would like.

In Bedford Somerset MHMR v. Workers Compensation Appeal Board (Turner), the injured worker was hurt in 1987 and underwent two surgeries on her lumbar spine as a result of her work injury. She was left with several diagnoses, including arachnoiditis, failed spinal fusion surgery, small fiber neuropathy, chronic pain syndrome, discitis, osteomyelitis and spinal stenosis, any or all of which can account for tremendous pain.

Given her severe pain, the injured worker was understandably taking heavy-duty medications. As has become custom in such situations, the ever-sympathetic insurance carrier filed a UR, alleging the mediations were not reasonable and necessary. The UR reviewer issued a determination finding that Fentanyl patches, and periodic office visits to the prescribing physician, were reasonable and necessary, but that the use of Fentanyl lozenges were not.

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A few months ago, we learned that the Northeast Philadelphia Workers’ Compensation Hearing Office would be closing shortly. We were advised that all hearings for Philadelphia would then be held at the Center City Philadelphia Workers’ Compensation Hearing Office located at 110 North 8th Street.

Today, I had a hearing in Northeast Philadelphia and learned that today was the last day of hearings for this office. When hearings resume, after the New Years holiday, this office will be closed.

We are saddened with this development, as we know folks who live in Northeast Philadelphia have no great desire to venture into Center City Philadelphia unless it is absolutely necessary. As you are crawling along on I-95, journeying to your hearing, know that we are stuck in the same traffic, feeling your pain!

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Too often in representing injured workers in Pennsylvania, we see lives deeply impacted by severe spinal cord injuries causing paraplegia. For this reason, we are extremely excited by the research being done in this area.

A new study was published in the November 2012 issue of the American Journal of Physical Medicine & Rehabilitation, which assessed the safety and performance of the ReWalk device. The ReWalk mechanism is a motorized exoskeleton, which allows paraplegics to regain their upright mobility. Though the device looks and seems like something from a science fiction movie, this study suggests it is ready for the here and now.

Not only can the ReWalk device give paraplegics a feeling of being upright, it can also lead to improvements in pain, bowel and bladder function, and spasticity. Additionally, we are proud to report that this study was based in Pennsylvania. Obviously, we look forward to increased use of devices like the ReWalk, which can lend some semblance of normalcy to an injured worker’s traumatically altered life.

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Granted, the decision is not from a Court in Pennsylvania, but, instead, one in Australia. At the same time though, a Court finding that a worker injured while having sex is entitled to workers’ compensation benefits, is one which cries out to be explored. And, the result is not as bizarre as one might think.

As we have previously addressed, employees in PA are either “stationary” or “travelling,” depending on whether they have a fixed place of employment. A travelling employee, one who is without a fixed place of employment, has greater latitude for a finding that an injury is within the scope and course of his or her employment.

In the Australian case, according to the article, the unidentified female employee was on a business trip in 2007. While engaged in sexual relations in her hotel room, “a glass light fitting was torn from its mount above the bed and landed on her face.” The injury resulted in her being disabled from performing her job.

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Back in July, we warned about potential legislation which is being pushed by the Pennsylvania Chamber of Commerce, and PA insurance carriers, to reform the Pennsylvania Workers’ Compensation System. We discussed several areas which we anticipate will be targeted. Proposed legislation is likely to appear in early 2013.

One area we did not mention seems to be getting more traction. That is the process of Utilization Review (UR), the tool either party can use to have a determination made as to whether the medical treatment at issue is reasonable and necessary. As the process now stands, on appeal from an initial UR, a Workers’ Compensation Judge (WCJ) considers the UR determination made by the Utilization Review Organization (URO). The WCJ is not bound by the determination made by the URO. This makes sense, since other evidence is required to determine whether treatment is reasonable or necessary, predominantly the testimony of the injured worker.

The proposal being raised by the insurance industry and the Chamber of Commerce appears to be that the WCJ would be bound by the determination of the URO, effectively making the UR reviewer the ultimate finder of fact, a role the PA Workers’ Compensation Act strictly leaves to the WCJ. Moreover, since the UR reviewer only assesses records, and never actually examines the injured worker personally, the injured worker would effectively be removed from the entire evaluation. This result would be ludicrous, given that whether the treatment relieves symptoms or provides greater function to the injured worker is, and should be, a critical element to determine whether medical treatment is truly reasonable and necessary.

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As mentioned here previously, Glenn C. Neiman, Partner at Brilliant & Neiman LLC, was featured in a seminar yesterday in Center City Philadelphia. The seminar was presented by renowned CLE provider Lawline. While Lawline typically specializes in internet CLE programs, this presentation was live (as well as webcast). The program, discussing updates in PA workers’ comp law as well as trends in Pennsylvania workers’ compensation, was done with Lawline’s program attorney, Kyle Robinson, in an interview format. The program will shortly be added to Lawline’s online course catalog, where attorneys from around the Country will have access.

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As we have previously discussed on this blog, generally speaking, Pennsylvania workers’ compensation benefits are available to every totally disabled injured worker, regardless of whether that injured worker has legal status to work in this Country or not. The issue of legal status does matter, however, when the injured worker retains some ability to perform gainful employment.

Last year, the Commonwealth Court of Pennsylvania decided Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz), finding that the legal status of an injured worker cannot be proven by a workers’ comp insurance carrier solely by having a Workers’ Compensation Judge (WCJ) take a negative inference because the injured worker refuses to answer questions regarding his legal status.

The Supreme Court of Pennsylvania accepted appeal of this case, and recently heard oral arguments from the respective attorneys. As always, we will advise you when a decision is rendered by the Court.

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Loyal readers of our blog know that it can be very difficult to have a psychological injury accepted as compensable in Pennsylvania workers’ compensation. However, what you may not realize is that psychological injuries are divided into three classes, and only one of those classes carries this higher burden of proof.

Under PA workers’ comp, a psychological injury is referred to as either mental/physical, physical/mental or mental/mental. The first meaning a mental stimulus causes a physical injury (like stress causing a heart attack), the second meaning a physical injury causes a mental injury (like depression from chronic pain), and the third meaning a psychological stimulus causes a psychological injury.

Only the mental/mental class has that increased burden of proof. As we have discussed in the past, these types of cases require a showing that the mental stimulus comes from an exposure to “abnormal working conditions.” Obviously, then, it would be very beneficial if an injured worker could move his or her case into the physical/mental category. Recently, Commonwealth Court of Pennsylvania addressed the distinction between the two.

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Lawline.com has announced its speakers for the seminar the organization will be holding in Philadelphia on December 13, 2012. Discussing current trends in Pennsylvania workers’ compensation, and providing an update on decisions from PA Courts on such issues, will be Brilliant & Neiman LLC partner, Glenn Neiman. This will be the third speaking engagement for Mr. Neiman with Lawline.com, a well-respected continuing legal education provider. As was done in the previous seminar, Lawline.com’s program attorney, Kyle Robinson, will do an interview-style presentation with Mr. Neiman. The prior effort, from July 2011, was extremely well-received, garnering a 97% recommendation from seminar participants

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The holiday season means many things to many people. To most of us, it means creating lasting memories with friends and family. It means the joys of exchanging gifts and good will. And, of course, it means eating too much of the wonderful food which surrounds us during the holiday season.

To others, it means a chance to trap an unsuspecting injured worker. One investigative firm sent out an e-mail to its potential customers, noting that “Black Friday is the weekend to hire a P.I. for surveillance.” We all tend to overdo things during the holiday season, whether it is shopping or eating. Often, we pay the price for either the next day.

Unfortunately, however, a surveillance tape only shows that day. A Workers’ Compensation Judge (WCJ) will not see the injured worker in bed for the next three days because he or she was trying to live a somewhat normal life for a day. Many in the insurance industry feel that if a worker is disabled, he or she must be bed-ridden. They fail to realize the toll a work injury takes, not only on the injured worker, but on his or her entire family.

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