Worker Comp Generally

November 5, 2009

PA Workers‘ Compensation Appeal Board Reduced

When an aggrieved party wants to appeal a decision of a Workers’ Compensation Judge in PA, the first step is to the Pennsylvania Workers’ Compensation Appeal Board (WCAB). Until recently, the WCAB was comprised of a total of 15 commissioners, who would travel throughout the State of Pennsylvania, holding oral arguments in Philadelphia, Pittsburgh, Harrisburg, Scranton, Johnstown and Erie.

Unfortunately, due to budget difficulties faced by PA, the total of 15 commissioners on the WCAB has been drastically reduced. Right now, only five commissioners remain. Apparently, there will be another three commissioners named, when they are approved by the PA Senate.

This reduction in staffing is almost certain to have a negative effect on the speed with which WCAB decisions are issued. While we would love to provide a link for more information, there has been no official word on this development from the PA Bureau of Workers’ Compensation (other than to change the listed commissioners to the current total of five).

November 2, 2009

MRI Does Not Always Explain Pain And Other Symptoms

by Glenn Neiman

In the PA Workers’ Compensation system, we often see the workers’ comp insurance company doctors employ a fanatical reliance on “objective” diagnostic studies, at least when the results are negative. These doctors who perform Independent Medical Examinations (IMEs)[More accurately known as Defense Medical Examinations (DMEs)] use a negative study to say the injured worker must be fully recovered.

This view, of course, is far too simplistic and quite flawed. One could ask Kevin Curtis for confirmation. As many of you know, Kevin Curtis is a wide receiver for the Philadelphia Eagles. He has not been able to play football this year due to persistent pain in his knee. Repeated MRI studies of the knee were negative for any structural damage at all. Had Mr. Curtis been an injured worker, the IME/DME doctors would have said there is nothing wrong with him, and he can return to unrestricted work.

Yet, with millions of dollars hanging in the balance, Mr. Curtis remains unable to return to the field. In fact, the symptoms were so troubling to Curtis that he underwent arthroscopic surgery on his knee. This type of case should serve as a reminder to Workers’ Compensation Judges (WCJs), as well as to those doctors performing IMEs and DMEs, that no diagnostic test, whether x-ray, MRI or CT scan, is infallible. And, sometimes, when an injured worker says his or her knee (or shoulder, or back, or whatever) really hurts, even in the face of a negative study, maybe it really does still hurt.

July 9, 2009

PA Workers’ Comp Claim Denied – Armed Robbery Part of the Job?

by Glenn Neiman

Since we limit our practice to representing injured workers’ in PA workers’ compensation cases, we see frequent situations when an injured worker is treated poorly by the workers’ comp insurance carrier. Sometimes, though, the situation seems way beyond common sense and logic. I am currently litigating one of those cases, against the Commonwealth of Pennsylvania/Liquor Control Board.

When a work injury in PA is emotional or psychological in nature, the condition must have been caused by an “abnormal working condition” to be eligible for Pennsylvania workers’ comp benefits. In other words, the emotional or psychological condition must be cause by something other than a subjective response to normal working conditions. What determines “normal working conditions” depends on the occupation in question.

Firefighters, police, emergency medical technicians and other first responders are normally expected to face much more stressful conditions than a secretary, accountant, factory worker or construction worker, for example. An event happening to a policeman may be a normal working condition, but if the same event happened to an automobile mechanic, that would be an abnormal working condition. These cases often depend greatly on the facts involved in each case.

April 2, 2009

Trust in Workers’ Compensation Insurance Company Doctors Misplaced?

by Glenn Neiman

An article in the New York Times, talking about how insurance company’s “Independent Medical Examiners” (IME) may not be acting truthfully, hit home to me. Though the article deals specifically with New York workers’ comp, their system is close enough to Pennsylvania’s that comparisons are valid.

While I urge folks to read the entire article, the part that was my absolute favorite was the insurance company doctor who said, “If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

January 6, 2009

Select an Experienced PA Workers’ Comp Lawyer

by Glenn Neiman

It still amazes me when I see an injured worker represented by a general practice attorney. As you folks can see from the frequent postings on our blog, the law in Pennsylvania workers’ comp frequently changes. Lawyers who do not handle PA workers’ compensation cases on a regular basis can be at a severe disadvantage.

When you break your leg, you do not seek the medical opinion of a heart doctor. Instead, you want to be treated by a doctor who sees conditions like yours everyday. A doctor who remains informed about changes in areas of medicine as it concerns your condition. Do not treat your legal needs any less. Make sure when selecting a PA workers’ compensation attorney, the lawyer you pick has extensive Pennsylvania workers’ comp experience and practices frequently in this area.

December 19, 2008

“Independent Contractors” Often Are Actually “Employees” in PA Workers’ Comp

by Glenn Neiman

A recent post on Workers’ Comp Insider, a blog devoted to workers’ compensation cost control, explores the problems being faced by FedEx and its workers. FedEx has managed to avoid having its workers join a union, by classifying them instead as “independent contractors” rather than “employees.” The blog entry points out that this arrangement may be on the way out, given the potential impact of a Democrat-controlled congress. Note was also made that State Courts have frequently found the FedEx drivers, who wear FedEx uniforms and drive FedEx trucks, to be “employees,” regardless of how they are described by FedEx.

This points out an important fact, one that may not be known by every injured worker – just because an employer terms its workers “independent contractors” does not make it so. In fact, for Pennsylvania workers’ compensation purposes, a Workers’ Compensation Judge (WCJ) will examine many elements of the relationship between the injured worker and the employer. How that relationship is described, and whether they are called “employee” or not, is only a minor factor.

The most important factor in determining whether an injured worker is truly an “employee” in PA is the degree of direction and control held by the employer. For example, is the employee told what to do and how to do it, or does the employee make these decisions on his or her own. Even if this control is not actually exercised by the employer, Pennsylvania Courts have found its mere existence proof enough.

November 26, 2008

Psychological Injuries Require “Abnormal Working Conditions” in PA Workers’ Comp

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, physical injuries, like carpal tunnel syndrome, low back strain or a fractured arm, are treated differently than emotional/psychological injuries, like post-traumatic stress disorder (PTSD), depression or anxiety. To obtain workers’ comp benefits in PA for emotional/psychological injuries, the injury must result from an “abnormal working condition,” rather than a person’s subjective response to a normal working condition. What constitutes an “abnormal working condition” under Pennsylvania workers’ comp law varies depending on the job at issue and is the subject of many court decisions.

Recently, the courts in PA have been very demanding in what constitutes an “abnormal working condition.” For some professions, such as firemen, policemen and other emergency first responders, the courts have set the threshold extremely high, finding very little in those jobs could possibly be “abnormal.” Essentially, some jobs should expect the unexpected, the courts seem to say.

Typically, harassment or bad behavior by a boss will not reach the level of an “abnormal working condition.” In fact, one of my favorite quotes on this subject comes from a 1996 decision of the Supreme Court of Pennsylvania, “In assessing whether work conditions are abnormal, we must recognize that the work environment is a microcosm of society. It is not a shelter from rude behavior, obscene language, incivility, or stress.”

November 3, 2008

PA Workers’ Compensation – Where “Yes” Can Mean “No”

by Glenn Neiman

Though the case of Armstrong v. Workers’ Compensation Appeal Board was decided by the Commonwealth Court of Pennsylvania over a year ago, on August 27, 2007, this decision continues to both amaze and irritate those of us who limit our practice to representing the injured worker in PA workers’ comp cases.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier has 21 days to accept or deny a claim. Typically, and logically, acceptance of a claim is done by issuing a Notice of Compensation Payable (NCP) [or an Agreement for Compensation], and denial of a claim is done by issuing a Notice of Denial (NCD). Since this seems to make perfect sense, naturally, this is not necessarily how things work.

On a Notice of Denial, there are six boxes, or “bases of denial.” Essentially, the workers’ comp insurance company checks one or more of those boxes, indicating the reason or reasons for the denial. Box number four on an NCD states, “Although an injury took place, the employee is not disabled as a result of this injury within the meaning of the Pennsylvania Workers’ Compensation Act.” This is rather unnecessary, since there is also a “medical only” NCP, to be issued when the workers’ comp insurance carrier feels there is no disability from the work injury.

September 29, 2008

Unreasonable Contest Attorney Fees in PA Workers’ Comp

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

September 26, 2008

PA Workers’ Comp Verification Forms

by Glenn Neiman

Claimants receiving, or attempting to receive, workers’ compensation benefits in PA are required to report receipt of various income. There are three what we call “verification forms,” which workers’ compensation insurance companies can send to these claimants. If these forms, which were approved by the Pennsylvania Bureau of Workers’ Compensation, are not completed by the claimants, and returned to the workers’ comp insurance carrier within 30 days, workers’ compensation benefits can be stopped.

On the other hand, I recently received a copy of a “Claim Status Report,” which was sent by the workers’ comp insurance carrier to my client. Some of the questions were similar to those on the forms approved by the Pennsylvania Bureau of Workers’ Compensation, but there were other questions which a claimant would have no obligation to answer.

This is just another instance of why every Claimant should have access to an experienced PA workers’ comp attorney. Any time something is received by a workers’ compensation claimant, there should be a discussion with the attorney. There are so many rights and responsibilities the injured worker should know, that it just makes sense to have someone to watch their back.