Worker Comp Generally

May 23, 2011

Utilization Review in PA Workers’ Comp Can Cause Medication Dangers

On many occasions over the years, we have addressed the Utilization Review (UR) process in Pennsylvania workers’ compensation cases. This is the process either party, usually the workers’ comp insurance carrier, uses to obtain a determination as to whether a treatment at issue is “reasonable and necessary” such that the insurance company must pay for the treatment.

What is sometimes lost in this abstract analysis is the impact a UR has on real live people. When a Request for Utilization Review is filed by a workers’ compensation insurer, the insurance carrier is immediately relieved of payment of bills for the treatment at issue, unless and until the treatment at issue is found to be “reasonable and necessary.”

Being in business for profit, or at least to make a living, not all providers are able, or willing, to continue to provide treatment once a UR is filed. One of the most dangerous areas this problem hits home is with medications.

May 20, 2011

Injured Workers in PA Can Sometimes Get Compensation for Pain and Suffering

by Glenn Neiman

While the Pennsylvania Workers’ Compensation Act generally precludes an injured worker in PA from suing his or her employer, the injured worker does have the ability to sue a third party, if that party is responsible for the injury. Since workers’ compensation in PA does not provide any payment for pain and suffering, the ability to file a civil action against a third party is a valuable option. Answers to this, and other questions regarding the PA workers’ comp system, can be found on the Brilliant & Neiman LLC website.

As can be seen from a recent article in the Legal Intelligencer, verdicts in cases involving work injuries can be significant. This again demonstrates the importance of having an experienced PA workers’ comp attorney, who knows what to be looking for in such a case.

May 9, 2011

Supreme Court of Pennsylvania Accepts Appeal in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap)

by Glenn Neiman

Previously, we posted a blog entry on the Commonwealth Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). This was the decision where the Commonwealth Court was unmoved when the injured worker applied for every job in a Labor Market Survey and found none available to him. The Court said the workers’ compensation insurance carrier can still obtain a Modification or Suspension of workers’ comp benefits in this situation.

Thankfully, the Supreme Court of Pennsylvania accepted appeal in this matter on April 27, 2011. We will certainly keep our readers informed when the Supreme Court of PA reaches a decision.

April 27, 2011

PA Supreme Court Accepts Appeal in Robinson

by Glenn Neiman

Back in October, we blogged about the decision of the Commonwealth Court of Pennsylvania in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), which addressed what caused a presumption that an injured worker “retired,” entitling the workers’ comp insurance carrier to a suspension of workers’ compensation benefits.

The decision of the Commonwealth Court arguably made a murky area of the law even more confusing, but it also attempted to inject some compassion and logic into an aspect of law short on both.

For better or worse, the Supreme Court of Pennsylvania has accepted an appeal in this matter. Specifically, the issue for the Court to determine is:

April 22, 2011

PA Bureau of Workers’ Compensation Issues New Notice of Compensation Denial; Employers No Longer Able to Accept Claims by Using Denial

by Glenn Neiman

Readers of this blog, from previous blog entries, know our frustration with the developing practice of workers’ comp insurance carriers “accepting” medical-only claims by issuing a Notice of Denial (NCD).

Aside from the logical problem, there are procedural issues this creates for attorneys representing injured workers in PA. For example, this practice lets the workers’ comp insurance carrier deny the wage aspect of a claim and avoid unreasonable contest fees, and would often wreak havoc with an injured worker’s attempt to obtain medical treatment for the work injury. There is also concern that the NCD would not stop the statute of limitations, meaning a claim could be barred if the injured worker did not know to file a Claim Petition within three years of the injury.

The PA Bureau of Workers’ Compensation recognized the problem years ago, and created a medical-only Notice of Compensation Payable (NCP). This document would properly preserve the statute of limitations, and let everybody know the true status of the claim. The Courts in Pennsylvania, however, as noted in our previous blog entries above, continued to allow workers’ comp insurance carriers to “accept” claims by using an NCD, making the medical-only NCP useless.

January 11, 2011

PA Workers’ Comp Law Expands Definition of “Employee”

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, to be eligible for PA workers’ comp benefits, the disabled person must be an “employee.” Often, this is obvious and not even in question. There are times, however, when a case turns on whether, in fact, the injured person was truly an “employee.” We most often see this situation when the issue is whether the injured worker was an “employee” or an “independent contractor.”

The analysis, to determine whether someone was an “employee” or an “independent contractor,” depends on the facts in each case. It frequently becomes a very complicated issue, requiring multiple depositions and extensive litigation.

At least some of this situation will be easier to determine, now that the Pennsylvania Legislature passed Act 72 of 2010, on October 13, 2010 (This is listed as House Bill 400). The law will take effect 2/11/11. While this law applies only to the construction industry, we expect that to be read broadly, to include roofing, plumbing and other related areas.

December 10, 2010

AMA Guides Poor Indication of Disability in PA Workers’ Comp Matters

by Glenn Neiman

In Pennsylvania workers’ comp, as in workers’ compensation systems throughout the U.S., the American Medical Association’s Guides to the Evaluation of Permanent Impairment is being used to assess disability. In other words, an injured worker’s condition and ability to work is being determined by referencing a book, distancing any subjectivity at all. The Guides are now in the Sixth Edition (some States use a specific edition of the Guides, while others, like PA, use the most recent edition).

As discussed in a previous blog entry, PA has a ridiculously high standard to maintain total disability. In Pennsylvania, an injured worker can be deemed only “partially disabled” if they do not reach 50% “whole body impairment.” For point of comparison, as an example, a “very severe,” “approaching total functional loss,” of the cervical spine can reach a maximum whole body impairment of 30%. For the lumbar spine, the whole body impairment can be as high as 33%. Obviously, a devastating injury to the neck or low back, by these figures, will fall short of 50%. It is completely unrealistic, and just plain mean spirited, however, to suggest that an injured worker with this degree of impairment is capable of employment.

Fortunately, the debate is living on, at least on the Federal level. On November 17, 2010, testimony was given by Emily A. Spieler, J.D., Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston, Massachusetts, before the Subcommittee on Workforce Protections Committee on Education and Labor in the

November 24, 2010

Hearing Loss in PA Workers’ Comp

by Glenn Neiman

Though, generally speaking, Pennsylvania’s workers’ compensation system is based purely on wage loss, there are exceptions to the rule. With most work-related injuries in PA, workers’ comp is paid only if the injured worker is disabled from his or her job by the work injury.

One large exception is the category of injuries called “specific loss.” This encompasses when an injured worker permanently loses the use of certain body parts or senses. In this event, benefits are paid under the Pennsylvania Workers’ Compensation Act, whether or not there is any disability resulting from the injury. This covers fingers, toes, hands, feet, arms and legs, in addition to the senses of sight and hearing.

Loss of hearing has had many changes in PA workers’ compensation law over the years. In fact, the entire way hearing loss is compensated under PA workers’ comp was changed with Act 1, passed in 1995. For all hearing loss since then, the amount of workers’ compensation benefits paid varies according to the percentage of binaural (both ears) hearing impairment. To receive any workers’ comp benefits, there must be at least a 10% hearing impairment; while, on the other hand, an impairment over 75% is deemed to be a complete loss of hearing.

November 2, 2010

Pennsylvania Workers Compensation Lawyer Blog selected as Top 25 in Country

by Brilliant & Neiman

We were humbled and appreciative to learn that our blog has been selected by LexisNexis as one of the Top 25 Blogs for Workers’ Compensation and Workplace Issues. Considering all of the excellent blogs covering just Pennsylvania workers’ comp issues, it was incredibly rewarding for us to be selected to such an elite group, not only for PA, but for blogs covering the issue across the entire Country. We are especially proud, since this is our second such recognition in the past three years.

The entire list of the Top 25 Blogs for Workers’ Compensation and Workplace Issues can he found here.

We again thank LexisNexis, and our loyal readers, for this tremendous honor. Over the ensuing months, and years, we will strive to be worthy of this recognition.

October 25, 2010

PA Workers’ Comp Seminar Last Week

by Glenn Neiman

Last week, we attended a PA Workers’ Compensation seminar in Hershey, Pennsylvania. This is the “Fall Section Meeting of the Pennsylvania Bar Association’s Workers’ Compensation Section.” For years, workers’ comp attorneys from across the entire State of PA have gathered at this seminar to learn and discuss new cases and trends in PA workers’ compensation.

As you know, from reading our blog, we stay very current on workers’ comp cases coming out of the Commonwealth Court of PA and the Pennsylvania Supreme Court. But, we recognize the importance of attending seminars like this one, so that we can interact with other workers’ compensation attorneys across PA, as well as the Workers’ Compensation Judges, and stay on top of trends and developments.

We believe it is this desire to stay current in all aspects of PA workers’ compensation law which makes Brilliant & Neiman LLC able to help injured workers as well as possible. Sometimes, general practice attorneys, who do not limit their entire practice to PA workers’ comp cases, as we do, are not able to stay as current on all aspects of cases they handle. We believe this is the primary benefit to us limiting our practice to just representing injured workers in their PA workers’ compensation cases.