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While many folks know what happens when an Employer violates Pennsylvania law and fails to carry PA workers’ compensation insurance (this is governed by the Uninsured Employers’ Guaranty Fund [UEGF]), few know what happens when a PA workers’ compensation insurance carrier goes bankrupt or ceases to exist.  This is where the Security Fund (Fund) steps in and pays the appropriate compensation.

Much like the UEGF, it is well settled that the Fund is not an “insurance company,” and therefore immune from penalties for a violation of the Act.  The Fund also cannot be assessed counsel fees for maintaining an unreasonable contest.  But, the Fund, like the UEGF, is responsible for paying for wage loss and medical treatment related to a work injury, and for the reimbursement of reasonable costs of litigation incurred by the injured worker in procuring such benefits.

On this blog, we discussed the landmark Lorino case, where the Supreme Court of Pennsylvania held that a Workers’ Compensation Judge (WCJ) can order a payment to an injured worker’s attorney of a counsel fee, even in there was a reasonable contest, and that such a fee is considered a litigation cost.

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Just recently, we discussed a case which addressed mental/mental work injuries in Pennsylvania.  This type of injury occurs when a mental stimulus creates a psychic injury.  As we reviewed in that posting, these mental/mental injuries have a higher burden in the PA workers’ compensation system – to be compensable, such injuries must result from “abnormal working conditions.”

But, mental/mental is only one of three types of mental injuries we see in PA workers’ comp.  We also see physical/mental (where a physical cause leads to a mental injury) and mental/physical (where a mental stimulus causes a physical reaction).

Recently, the Commonwealth Court of PA dealt with both the physical/mental and mental/mental situations in the matter of Russo v. Upper Darby Township (Workers’ Compensation Appeal Board).

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As we have discussed previously on this blog, physical injuries in Pennsylvania are treated differently than mental ones.  Provided that a physical injury was suffered in the scope and course of the job, benefits should be payable.  Mental injuries, though, have a different and additional requirement – the injury must have resulted from “abnormal working conditions.”

There should not be much surprise, then, that many cases have dealt with whether a particular fact pattern reaches the standard of “abnormal working conditions.”  This determination is very dependent on the exact facts of each case.  And, of course, what would be expected in that particular job.  What a police office, fire fighter or EMT might expect on a normal day at work is very different from that of an accountant, warehouse worker or a secretary.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Ganley v. Upper Darby Township (Workers’ Compensation Appeal Board).  Here, the injured worker was a firefighter/EMT, who was forced to perform CPR on infants twice in less than two years (with neither infant surviving).  As a result of those events, the injured worker suffered post-traumatic stress disorder (PTSD).

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The Pennsylvania Workers’ Compensation Act (Act) is very specific – a workers’ comp insurance carrier is responsible for the payment of all reasonable and necessary medical expenses, which are related to a work injury.  As always, the devil is in the details.  For example, is the payment of medical bills something which can only be addressed by Fee Review and not by a Workers’ Compensation Judge (WCJ)?

As the Commonwealth Court of Pennsylvania indicated in the recent case of Day-Timers, Inc. v. Rhonda Horton (Workers’ Compensation Appeal Board), a WCJ does, indeed, have jurisdiction to address the nonpayment of medical bills.  But, initially, let’s examine the confusion.

Under the Act, a PA workers’ compensation insurer has 30 days to either pay a medical bill related to a work injury, or file for Utilization Review (UR), which challenges whether such treatment was reasonable and necessary.  If a healthcare provider is not satisfied with the timing or amount of the payment for medical treatment, the provider has the ability to file for Fee Review.  This statutory scheme could lead an insurance carrier to argue that an injured worker cannot file a Petition for Penalties, for the nonpayment of a medical bill, since that is a subject solely for Fee Review.

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Back in 2008, we discussed the decision of the Commonwealth Court of Pennsylvania in the matter of Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.) [Note that the formatting, with the WCAB listed as the party and the Employer in parentheses, has been reversed since this decision].  This decision terrified attorneys who represent injured workers in Pennsylvania.

Essentially, Weney stood for the proposition that if a work injury is in litigation, and there is an aspect of the injury that was either raised, or should have been raised, the injured worker is barred from trying to bring it up in a subsequent litigation (what the court calls “technical res judicata”).  The consequence of barring a condition from being added in the future, even if it was never even litigated in the past, is both a great fear and a terrible injustice to us in the workers’ comp Claimant bar.

However, the Commonwealth Court of Pennsylvania does recognize limits to this concept.  This was addressed by the Court in the recent case of Michael N. Lewis, Sr. v. City of Philadelphia (Workers’ Compensation Appeal Board).  The injured worker here was a police officer, who in 2017, sustained injuries to his hand/wrist, low back, chest wall, and thoracic spine while attempting to subdue a burglary suspect.  The injury was properly accepted by issuance of a Notice of Compensation Payable (NCP).

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We are excited to relay the news that the Pennsylvania Bureau of Workers’ Compensation, Office of Adjudication, has announced that there will be three new additions to the workers’ comp bench.  Two will be serving the Philadelphia Workers’ Compensation Hearing Office and one will be in the Williamsport Workers’ Compensation Hearing Office.

Erica Burry, Esquire and Robert Rachlin, Esquire, will each begin training in June, 2025.  Each will then be hearing cases in the Philadelphia hearing office.  Meaning, Robert Rachlin, Esquire, will also begin his training in June, 2025, but will be assigned to preside over cases in the Williamsport hearing office.

We welcome these additions to the PA workers’ compensation bench, and wish them well in their careers as Workers’ Compensation Judges!

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When a party files a document in the world of Pennsylvania workers’ compensation, it means something.  As with most areas of the law, parties are bound by what is filed.  So, a recent decision by the Commonwealth Court of Pennsylvania, addressing an attempt by a workers’ comp insurance carrier to withdraw a Notice of Compensation Payable, is significant.

In City of Philadelphia and PMA Management Corp. v. John Bell (Workers’ Compensation Appeal Board), the injured worker was a firefighter for the City of Philadelphia who was diagnosed with colon cancer.  Believing his cancer was caused by exposure to toxic fumes and compounds over his 17-year career, the injured worker reported this suspected work injury to his employer, as required under the law.

The City of Philadelphia investigated the allegation and then decided to deny the claim.  However, an inexperienced adjuster accidentally caused a Medical-Only Notice of Compensation Payable (MONCP) to be issued, which accepted a work-related injury in the nature of colon cancer.

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As we have addressed in a previous blog post, discussing the case of City of Philadelphia v. Turner (Workers’ Compensation Appeal Board), a Workers’ Compensation Judge (WCJ) cannot allow the conditions considered by an Impairment Rating Evaluation (IRE) to be only those conditions formally accepted by the workers’ compensation insurance company.  Instead, the IRE physician must consider all conditions “due to” the work injury (in his or her medical opinion).

Just to refresh your recollection, an IRE is a tool available to PA workers’ compensation insurance carriers, which allows the status of workers’ comp benefits to be switched from “total” (for which there is no specific time limit) to “partial” (for which there is a maximum of 500 weeks available), if the “whole body impairment” (WBI) of the injured worker is found to be less than 35% (an extremely difficult standard to reach).  More detail on the IRE process can be found on our website here.

In a recent case, the Commonwealth Court of Pennsylvania faced this issue again, though in a slightly different context.  In the Turner case, the only medical evidence was the IRE physician, who was presented by the workers’ comp insurer.  Since that physician did not consider all conditions he believed to be “due to” the work injury, the Court was able to simply affirm the decision of the WCJ, and find that the insurer failed to meet its burden under the Pennsylvania Workers’ Compensation Act.

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Though we loved having our headquarters in Warminster, Pennsylvania, for more than the past decade, we strive to be accessible to injured workers across PA.  Accordingly, we will no longer have an office in Warminster.  We will be keeping our offices in Trevose/Feasterville, as well as Allentown, and opening a presence in Pineville (Bucks County).  Stay tuned for more exciting news regarding new Brilliant & Neiman offices!  We believe this will bring us closer to our goal of representing injured workers throughout Southeastern and Central Pennsylvania.

Given our multiple offices, we have centralized our mail to a post office box.  So, please direct all future correspondence to us at P.O. Box 196, Pineville, PA 18946-0196.  This will make our mail available to all of our office locations, allowing us to best represent our clients.

Consultations, intakes and meetings can be scheduled not only at any of our office locations, but also at various other locations throughout Southeastern and Central.  If you would like to meet with us, call or e-mail us to learn about all of our available meeting locations.

 

 

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Back in November, 2023, we discussed the case of M.R. Schmidt v. Schmidt, Kirifides and Rassias, PC (Workers Compensation Appeal Board).  As you may recall, this case addressed an issue regarding payment for CBD oil used in conjunction with treatment for a work-related injury.  The Workers’ Compensation Judge (WCJ) ordered such bills paid, though the Workers’ Compensation Appeal Board (WCAB) reversed that decision.  The Commonwealth Court of Pennsylvania then reversed the WCAB, determining that the initial decision authored by the WCJ was correct.

Since that time, the matter was appealed to the highest Court in the State, the Supreme Court of Pennsylvania.  Recently, that Court issued an opinion which affirmed the decision of the Commonwealth Court of PA (saying the WCJ was correct in requiring coverage for the CBD oil).

The Court was very specific in its opinion, stating, “we hold that any item that is part of a health care provider’s treatment plan for a claimant’s work-related injury falls within the purview of the broad-encompassing phrase ‘medicines and supplies’ as provided in Section 306(f.1)(1)(i). We further hold that, in such circumstances, the cost containment provisions of the (Pennsylvania Workers’ Compensation Act) and the attendant Pennsylvania Department of Labor regulations, both of which apply to a health care provider, do not apply to a claimant.”

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Contact Information
Trevose
5 Neshaminy Interplex Dr, #205
Trevose, PA 19053
Phone: (215) 638-7500 [Formerly (215) 244-8101]Fax: (267) 803-6298
Lehigh Valley
609 Hamilton Mall
Allentown, PA 18101
Phone: (610) 740-1002Fax: (267) 803-6298
Pineville P.O. Box
P.O. Box 196
Pineville, PA 18946-0196

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