PA Workers Compensation Bureau Update

June 9, 2017

PA Bureau of Workers’ Compensation Seminar

As we have done in the past, our attorneys will be at the Pennsylvania Bureau of Workers’ Compensation Conference in Hershey, PA, on June 12^th and 13^th. This is the one annual program run by the Bureau itself. There is a large attendance by adjusters, risk management and safety officials, attorneys (from both sides of the fence) and Workers’ Compensation Judges from all across PA.

While we regret being out of town, and unable to serve our clients on these two days, we believe attending this seminar is beneficial to ultimately represent injured workers in Pennsylvania. By listening to updates in case law and legislation, we stay current on trends and developments (as followers of our blog know, of course, we already stay pretty close anyway!).

Perhaps just as significant as the seminar, is hearing the topics being discussed by attorneys for the insurance carriers, and, even more so, the Workers’ Compensation Judges (WCJs). It is invaluable to have some insight into how any particular situation, or any set of facts, will be viewed by our opponent, or by the WCJ.

May 22, 2017

Findings of Fact, and Determinations of Credibility, Made by PA Workers’ Compensation Judge Difficult to Change on Appeal

by Glenn Neiman

As attorneys representing the injured worker in Pennsylvania, there is a call we get far too often. It starts with the injured worker telling us that they lost their case before the Workers’ Compensation Judge (WCJ) and need assistance in litigating an appeal before the Workers’ Compensation Appeal Board (WCAB). Unfortunately, in the vast majority of these cases, we are simply unable to offer help to the injured worker.

The role of the WCJ in Pennsylvania workers’ compensation is something we have discussed on this blog in the past. Essentially, the WCJ is the ultimate Finder of Fact. When a credibility determination has to be made, it is the province of the WCJ to do so. As long as there is support in the evidentiary record, and the WCJ explains his or her reasoning, these credibility determinations cannot be reversed or changed on appeal. Even if the appellate body, whether the WCAB, the Commonwealth Court of Pennsylvania, or even the Pennsylvania Supreme Court, admits it would have concluded otherwise, it still cannot change the Findings of Fact or credibility determinations rendered by the WCJ.

So, you may be wondering, if an appellate court cannot change the Findings of Fact or determinations of credibility of a WCJ, what is required then on appeal? Basically, a successful appeal requires that it be shown the WCJ made an error of law. An appellant would have to show that there is no substantial basis to support the ultimate Conclusion of Law made by the WCJ. In other words, accepting the facts as found by the WCJ, the appellant should still have won. For better or worse (depending if you win before the WCJ), it is pretty rare to find a true “error of law” made by the WCJ. This is why we can rarely help an injured worker with an appeal, when the injured worker does not contact us until he or she loses in front of the WCJ.

May 2, 2017

Utilization Review in PA Workers’ Compensation Will Have to be Filed Electronically

by Glenn Neiman

We have discussed the role of Utilization Review (UR) both on our website and on our blog. This helps demonstrate how important this concept is in the Pennsylvania workers’ compensation system. As the Bureau’s Workers’ Compensation Automation and Integration System (WCAIS) takes an increasingly bigger role in the practice of workers’ comp in PA, there are changes which must be made. One of those deals with the UR process.

UR is, of course, the process to determine whether a given course of medical treatment is reasonable and necessary. If treatment is found to not be reasonable and necessary by the Utilization Review Organization (URO), the workers’ comp insurance carrier is not liable for the payment of that treatment (nor, by the law, is the patient). A determination by a URO can be appealed to a Workers’ Compensation Judge (WCJ).

Typically, a UR is initiated by the workers’ compensation insurance carrier, to try and avoid paying for a specified medical treatment. Frequent targets in these URs are physical therapy, chiropractic treatment and medications. However, there are often situations where we file a UR, prospectively (for some future treatment), so our client can more easily get a specific treatment, whether it be a diagnostic study (such as an MRI or EMG), surgical procedure, or unusual medication.

February 3, 2017

PA Workers’ Compensation Appeal Board Commissioner, Past Chair, Retires

by Glenn Neiman

According to a memo released by Alfonso Frioni, Jr., Esquire, Chairman of the Pennsylvania Workers’ Compensation Appeal Board (WCAB), Commissioner Susan M. McDermott has decided to retire after spending over twenty years on the WCAB, including a stint as the very first female Chairperson of the WCAB. The entire text of the memo is:

“On behalf of the Pennsylvania Workers’ Compensation Appeal Board, we extend our special thanks and congratulations to Commissioner Susan M. McDermott on her retirement from the Board.

Commissioner McDermott was appointed to the Appeal Board by Governor Tom Ridge in 1996, serving over twenty years until her recent retirement in January 2017. Susan was one of the first two women appointed to the Board in its one-hundred-year history, and was the very first woman Chairperson of the Workers’ Compensation Appeal Board serving from 1996 to 2010. Susan’s contributions to the professionalism of the Board were extensive with her instituting many of the Board’s internal operating procedures, particularly with regard to the circulation of opinions, adopted from The Commonwealth Court.

November 2, 2016

PA Workers’ Comp Case Can be Precluded by Time Limitations

by Glenn Neiman

In law, almost every cause of action has a “statute of limitations.” This is simply a time within which a cause of action can be brought. Typically, if a suit or action is not filed within the applicable statute of limitations, the suit or action will be dismissed. Pennsylvania workers’ compensation cases are no different. Basically, the statute of limitations for a PA workers’ compensation case is three years. But that is only part of the story.

There are actually time constraints in PA workers’ comp other than the basic statute of limitations. These can be longer or shorter than the general statute of limitations. For example, notice of an injury must be provided within 120 days of the injury (though, in certain types of cases, that time can be extended under the “discovery rule”). Unless the case is covered by the discovery rule, the failure of the injured worker to provide notice to the employer within 120 days of the injury will cause the workers’ compensation claim to be denied.

On the other hand, there are types of workers’ comp cases in PA that have a statute of limitations longer than three years. When an injured worker dies subsequent to an injury, as a result of the work injury, we have what is known as a “fatal claim.” Under the Pennsylvania Workers’ Compensation Act, as stated in Section 301(c)(1), ” . . . wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury.” So, as long as the death takes place within 300 weeks of the work injury, fatal claim benefits may be obtained (these provide benefits to dependents, since general workers’ compensation benefits in PA end with the death of the injured worker).

May 18, 2016

Annual Pennsylvania Bureau of Workers’ Compensation Seminar

by Glenn Neiman

While I apologize to my clients for not being available for the last couple of days, I think you will agree that the absence was for a good cause. For the last several years, I have attended the Annual Pennsylvania Bureau of Workers’ Compensation Seminar, which was held earlier this week in Hershey, PA. Not only does this seminar allow me to earn many of the continuing legal education credits I need every year, but it also allows us a window into what employers and adjusters are being told regarding the law (I am in the vast minority as an attorney who represents injured workers – the seminar is primarily attended by claims personnel (from both employers and insurance carriers) with some defense attorneys sprinkled in).

Like having the playbook for the other team, we believe it is incredibly valuable to hear what is being told, and how, to these workers’ comp claims personnel. This allows us to have an idea about how a claim or a situation may be viewed, and what steps may, or may not, be taken. We hope this allows us to be one step ahead in protecting our clients.

So, now we are back, armed with this insight and ready to once again provide each injured worker with the best representation possible. If you are not already being protected by us, give us a call today at 215-638-7500 and let our knowledge and experience work for you too.

November 16, 2015

Mandatory Mediation Policy for Philadelphia Workers’ Compensation Judges’ Office

by Glenn Neiman

When litigation begins in a workers’ compensation case in Pennsylvania, by law, a “Mandatory Mediation” must be conducted (unless such a mediation would be “futile.”). The guidelines for these Mandatory Mediations can vary by the hearing office involved (generally, each county in Pennsylvania has a workers’ compensation hearing office).

Recently, the Philadelphia Workers’ Compensation Hearing Office issued a statement containing the policy of that office for Mandatory Mediations. By the law, the mediations will be scheduled in each case, unless the Workers’ Compensation Judge (WCJ) assigned to the case deems it futile. The date of the Mandatory Mediation will be determined with input from the attorneys on each case (as some cases require testimony or depositions to be completed before the parties are in a position to discuss settlement of a case). The policy makes clear that no continuances will be granted for Mandatory Mediations. If a Mandatory Mediation is cancelled, and the parties still wish to have a mediation done, the parties must approach another WCJ and schedule a Voluntary Mediation.

August 10, 2015

Papal Visit to Philadelphia Impacts Workers’ Compensation System

by Glenn Neiman

Unless you have been living under a rock, you are aware the Pope will be visiting Philadelphia late this September. With the throngs of people flooding Philadelphia for the festivities, the Pennsylvania Bureau of Workers’ Compensation realized that some adjustments to their scheduling will have to take place.

As such, we received an e-mail from the office of the Director of Adjudication, stating that, “No hearings or mediations will be scheduled or held at the Philadelphia Arch St. Office of Adjudication from Wednesday, September 23, 2015 through Friday September 25, 2015. Matters already scheduled during that time will be rescheduled. Notice of any other changes that may impact litigation or mediation during that week will be provided as soon as possible.”

Some of the Workers’ Compensation Judges (WCJs), individually, are expanding these adjustments even further. We have an upcoming hearing scheduled for September 21, 2015, and the WCJ has advised the parties that the hearing will be held in the Upper Darby Hearing Office, rather than in Philadelphia.

June 5, 2015

New Workers’ Compensation Judge in Philadelphia Hearing Office

by Glenn Neiman

The Pennsylvania Bureau of Workers’ Compensation has been much more open about changes in the hiring and assignment of Workers’ Compensation Judges (WCJs) than in years past. In fact, to the credit of the Bureau, we have received electronic notification regularly for additions or changes in the workers’ compensation hearing locations on a regular basis.

Today, we received notification that a new WCJ has been hired, and assigned to the Philadelphia hearing office, located at 110 North 8th Street, on the 4th Floor. By our count, the Honorable Nancy Harris Farese will be the 18th WCJ assigned to the Philadelphia hearing office. The high number of WCJs at this office is partially due to the closing of the Northeast Philadelphia hearing office in 2012.

Prior to entering the judiciary, according to the notification sent by the Bureau, Judge Farese “graduated from the University of Pittsburgh Law School and has been employed as a staff workers’ compensation attorney with PMA Insurance Co since 1996. Prior to her employment with PMA, she worked with several other law firms in Philadelphia and one in Pittsburgh.”

June 4, 2015

Brilliant & Neiman LLC Attorneys Attend PA Bureau of Workers’ Compensation Conference

by Brilliant & Neiman

Though it caused our attorneys to be out of town for a couple of days earlier this week, Brilliant & Neiman LLC felt it important that our attorneys attend the annual Pennsylvania Bureau of Workers’ Compensation Annual Conference in Hershey. This two-day seminar allowed our attorneys to discuss the law with other attorneys across the State of Pennsylvania, as well as with many Workers’ Compensation Judges (WCJs).

Topics that were covered included an update on recent cases coming through the Pennsylvania appellate courts, some information on traumatic brain injuries, a status of pain management treatment options and goals, the impact of social media on a workers’ compensation case, how employment laws interact with workers’ compensation cases, and how different WCJs run their practices and procedures.

While we hate to be unavailable to our clients for a two-day period, the exposure and information obtained by our attorneys is invaluable, and allows us to far better serve them.