PA Workers Compensation Bureau Update

July 30, 2020

PA Workers’ Compensation Hearings Primarily Still Being Done Telephonically

As we noted in our June 2020 update, the Pennsylvania Bureau of Workers’ Compensation began to (technically) allow limited in-person hearings, in counties which have been declared to be in the “Green” phase by Governor Wolf. This announcement was made on June 12, 2020, to take effect June 19, 2020. As a practical matter, we have yet to have an in-person hearing scheduled. Regular hearings continue to operate by telephone conference, with video conference as the other option.

There appear many different feelings among Workers’ Compensation Judges (WCJs) regarding the taking of testimony of an injured worker or fact witness. Some WCJs have expressed an interest in video conferencing for the testimony of the injured worker and fact witnesses (for which the Bureau appears to be using Skype for Business primarily, though I understand there is discussion of other platforms). On the other hand, since the WCJ cannot know who else is in the room, other WCJs want simply deposition testimony of the injured worker or fact witnesses, feeling they get no advantage by watching the video. I tend to agree with a WCJ who told me that, as long as he can watch the eyes of a witness, he can tell if they are being coached or reading notes. Another WCJ explained that she did not want in-person testimony of my client, since the required use of a mask took away from the WCJ’s ability to fully evaluate the demeanor of my client. This would not be an issue with video conference.

While we, as attorneys for the injured workers, really want the WCJ to personally see our client while he or she testifies, antagonizing a judge is never a good idea in litigation. For the most part, WCJs will generally agree to videoconferencing of the injured worker testimony, since in-person is not commonly available. This seems to be the most reasonable alternative.

June 26, 2020

PA Workers’ Compensation System Will Not Fully Open, Even as Each County in Pennsylvania Reaches the Green Phase

by Glenn Neiman

As more counties across Pennsylvania reach the “Green” phase in the COVID-19 recovery process, attorneys involved in the PA workers’ compensation process were curious to know how this will impact the operations of the Bureau of Workers’ Compensation. Yesterday, we were advised by the Bureau that, “(t)he designation of counties as ‘green’ does not automatically signal a return to in-person hearings.” Instead, live, in-person hearings will only be permitted in limited situations. This will be at the discretion of the Workers’ Compensation Judge (WCJ), where the WCJ feels it critical to have in-person testimony of a witness to properly assess credibility. In-person hearings will only be permitted in counties that are in the “Green” phase of COVID recovery.

Either party can request that testimony of a witness be taken in-person, but the WCJ will have complete latitude to grant or deny the request. Such a request should “include a justification and the position of the opposing party on the request.” The WCJ can also determine, on his or her own motion, that in-person testimony will be necessary.

Significant changes will be made to prior procedures in the workers’ compensation hearing offices. Only one Judge will hold hearings per day, and there will be a scheduled break between cases, so that an interim cleaning can be performed. As the Bureau notes, “Each individual who enters the office has a personal responsibility to follow the CDC and DOH guidelines for handwashing, social distancing, wearing masks, and staying home if sick.” All attendees to a hearing will be screened by security (to ask about wellness, in addition to the typical security screening). No persons will be permitted to enter a workers’ comp hearing location without a mask (sadly, the new normal).

May 6, 2020

Novel Coronavirus (COVID-19) Continues to Impact PA Workers’ Compensation System

by Brilliant & Neiman

Yesterday, our attorneys participated in a webinar dealing with the continuing impact the Novel Coronavirus (COVID-19) is having on the Pennsylvania workers’ compensation system. We have already participated in hearings using Skype for Business, and understand some Workers’ Compensation Judges (WCJs) are experimenting with the WebX platform. Zoom had been used on occasion, but apparently some security concerns have rendered that unusable for our purposes.

Depending on the case and the situation, some attorneys, and the WCJs, are agreeing to simply delay the testimony of an injured worker for later in the case, hoping we will be able to have in-person hearings again in the somewhat near future. However, given the uncertainty in timing, there is often a need to move forward, at least with video, in addition to audio. We believe it is critical for the WCJ to actually see the injured worker testify, since so much comes down to simply whether the WCJ believes the injured worker or not.

Even in ordinary circumstances, the procedures followed by a WCJ vary widely, sometimes even in the same workers’ compensation hearing office. For this reason, there is a “Judge Book,” detailing the practices and procedures for each WCJ in the Commonwealth. Now, on the page for each WCJ, you will see “CLICK HERE TO VIEW THE JUDGE’S SPECIAL PROCEDURES DURING THE GOVERNOR’S EMERGENCY DECLARATION DUE TO COVID-19.” Here you will find how any particular WCJ is handling cases in the current COVID-19 era.

April 16, 2020

Coronavirus (COVID-19) Workers’ Compensation Legislation in PA

by Glenn Neiman

Today, our attorneys participated in a conference call (so as to maintain social distancing) with workers’ compensation attorneys across the State of Pennsylvania, as well as lobbyists, regarding the status of the workers’ comp system in PA as we all deal with the Coronavirus (COVID-19). We discussed pending legislation in the Pennsylvania House and Senate, as well as how we are all handling cases under the shutdown as ordered by Governor Wolf.

There is legislation being worked upon by PA House Democrats, but nothing substantial is expected to be passed. The issue that appears most concerning to legislators is making sure those essential workers on the front lines, the doctors, nurses, first responders, and the like, are protected should they develop the Coronavirus (COVID-19). While this is a noble goal, the Pennsylvania Workers’ Compensation Act already does provide protection in such a situation. As we note on our website, when an employee is exposed to a substance (or disease) in the workplace, and is rendered disabled by the exposure, there exists a valid workers’ compensation case. We would also note that the healthcare workers are not the only employees on the front lines in this situation. Workers in grocery stores, like stockers and cashiers, restaurant workers, warehouse people and delivery drivers, just to name a few, are also at risk for catching COVID-19 through workplace exposure.

As to the Pennsylvania workers’ compensation system, cases are continuing to be litigated. Often this is being done by telephone conference, though some Workers’ Compensation Judges (WCJs) are using videoconference (which is important when an injured worker, or critical witness, is testifying, so the WCJ can better determine whether to believe such testimony). Since none of us know how long the government-ordered shutdown will continue, it is critical to the system (and the lives of injured workers throughout PA) that cases continue to be litigated.

April 1, 2020

Affidavit No Longer Required for Notification of Modification or Suspension in PA Workers’ Compensation

by Glenn Neiman

As we have previously discussed, within the Pennsylvania Workers’ Compensation Act, there lies a trap for unwary injured workers. Actually, there are many traps in the Act, but for today, we’ll just deal with this one.

When a workers’ comp insurance carrier thinks (and this is a critical word) that an injured worker has returned to work, the insurance company can file a Notification of Modification (if there remains a partial wage loss) or a Modification of Suspension (wages are believed to be at or higher than the pre-injury wages). If there is no “challenge” filed by the injured worker, within the allotted time period, the Notification of Modification or Suspension has the same legal effect as if the injured worker has agreed to the change in status. This is certainly a trap for an injured worker who knows better than to sign a document without legal counsel, but is unaware that not signing a document can also have dire consequences.

The PA Bureau of Workers’ Compensation announced that:

March 20, 2020

Brilliant & Neiman LLC to Close Due to Coronavirus Pandemic

by Glenn Neiman

By now, most Pennsylvanians have heard that Governor Tom Wolf has ordered all non-life-sustaining businesses in PA to close their physical locations, as of 8:00 p.m. on March 19, 2020. Along with this announcement, the Governor’s office released a list of what businesses qualify as “life-sustaining.” Law firms are specifically excluded from this list. Obviously, we all want to see the end of the Coronavirus pandemic, and we all must do our part. As such, Brilliant & Neiman LLC will abide by the orders of the Governor and close our physical offices until further notice.

Please be advised that our attorneys will still be working remotely, and are available to both existing clients, as well as any injured workers needing assistance at this difficult time. You can call us at 215-638-7500, or 610-740-1002, and leave a message on the voicemail of either Dina Brilliant or Glenn Neiman, or you can e-mail them at dbrilliant@bnlegal.com or gneiman@bnlegal.com. We will get back to you as soon as possible.

We ask for your patience in these trying times. We are working hard to serve the needs of our clients, as well as help contain the spread of the Coronavirus. We will provide updates as they are available.

March 16, 2020

Update on Coronavirus Impact on PA Workers’ Compensation System

by Glenn Neiman

***UPDATE 3/17/20*** A statement was issued by Joseph DeRita, Director of the Pennsylvania Workers’ Compensation Office of Adjudication:

“As you are all aware, Governor Wolf ordered the closure of all Pennsylvania state government offices for 14 days effective Tuesday, March 17, 2020. All hearings and mediations scheduled during that time are cancelled and will be rescheduled as soon as practicable. Some of the WCJ’s, who are already equipped to work from home, have already reached out to discuss rescheduling arrangements for mediations. Those will go forward. In addition, in an effort to provide some adjudicatory services, I have authorized the use of telephone hearings on a limited basis for Petitions to Approve C & R Agreements. Requests to schedule C & R hearings will be accepted beginning March 17, 2020 in the Southeastern and Eastern district offices only as described below. We hope to expand this limited service to the Central and Western districts by week’s end. Beyond that, we will be expanding WCJ telework capabilities generally to conduct telephone hearings on other types of petitions.

For now, the protocol to request a special C & R telephone hearing during the time of government shutdown is as follows: send an e-mail request to the Judge Manager of the district in which the case is pending (JM Karen Wertheimer, Eastern District,kwertheime@pa.gov and JM Holly San Angelo, Southeastern District, hsanangelo@pa.gov). Your request must include the case caption, dispute #, names and e-mail addresses of counsel and whether the case requires translation services (include language of testimony to be translated). WCOA staff will schedule the court reporter. The JM will re-assign the case to a specially selected WCJ who will then schedule and conduct the C & R hearing telephonically. Claimant must be present in Claimant’s counsels office. The C & R agreement must be notarized. The WCJ assigned to hear the case will advise how the telephone conference is to be arranged and how the C & R documents are to be transmitted prior to the telephone hearing.

March 13, 2020

PA Workers’ Compensation System and Coronavirus

by Glenn Neiman

By now, we are all too familiar with the Coronavirus (COVID-19). At this point, governments, individuals and businesses are still evaluating how best to protect each other and ourselves against this pandemic.

The Bureau of Workers’ Compensation is largely still open and operating on a normal basis. Hearings are generally still taking place, though the situation is being monitored. One hearing office, however, has been closed for at least a two week period. The Dresher Workers’ Compensation Hearing Office will be closed from March 13 through March 27, 2020. We are told that all hearings and mediations scheduled there are cancelled and will be rescheduled. The Dresher office serves injured workers who live in Eastern Montgomery County (or cases otherwise based in that region); cases based in Western Montgomery County, in the Malvern Workers’ Compensation Hearing Office, will take place as scheduled.

Brilliant & Neiman LLC will remain open, and our attorneys are available to injured workers. However, we will be trying to abide by CDC recommendations, and avoiding personal contact, including hand shaking. We also ask visitors to our offices to use hand sanitizer at our door.

March 4, 2020

PA Workers’ Compensation Hearings Moving From Bucks County Courthouse

by Glenn Neiman

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.

December 17, 2019

PA Workers’ Compensation Maximum Rate Raised to $1,081.00 for 2020

by Glenn Neiman

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).