Worker Comp Generally

September 22, 2023

Injured Worker in PA Must Prove Nonexistence of a Job at Employer

Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits. We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.

A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA. In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer. Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.

Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced. The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer. The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.

August 8, 2023

Injured Worker in Pennsylvania Must Give Notice of Work Injury Within 120 Days

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer. If notice is not given within this time, a Claim Petition may be barred. The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker (“The Discovery Rule”).

Recently, in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), the Commonwealth Court of Pennsylvania looked at what constitutes sufficient “notice” to meet the legal requirement. Here, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital. Subsequently, the injured worker sent an e-mail to his employer that he had emergency foot surgery. A below-the-knee amputation was performed on the right leg. The e-mail did not mention any relation to work.

On December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.”

August 2, 2023

Description of Work Injury in Claim Petition Matters in PA Workers’ Comp

by Glenn Neiman

When a person is injured at work in Pennsylvania, and the injury is not accepted by the workers’ compensation insurance carrier, the injured worker must file a Claim Petition to seek benefits. Once the Claim Petition is filed, the insurance carrier has 20 days to file an Answer, responding to the allegations of the Claim Petition. If the workers’ comp insurance company does not file an Answer within those 20 days, the injured worker can file what is (informally) called a “Yellow Freight Motion.”

If this Motion is granted, all well-pled facts in the Claim Petition are deemed admitted. The appellate courts in PA have told us that this Motion is not the same as a default judgement. Ongoing disability can still be challenged by the insurance carrier, and proofs by the injured worker can be required by the WCJ.

A recent case decided by the Commonwealth Court of Pennsylvania, Hollis v. C&R Laundry Services LLC (Workers’ Compensation Appeal Board), addressed what constitutes a “well-pled fact” when it comes to the description of injury. Here, the employee was a truck driver who was involved in a motor vehicle accident while working. When the injury was denied, a Claim Petition was filed. The injury was alleged to be “left rotator cuff pathology/cervical left side radiculopathy, [Cervical, Thoracic, Lumbar] sprain/strain.”

July 25, 2023

The Opinion of a Medical Expert in PA Workers’ Compensation Need Not Have Magic Words

by Glenn Neiman

To prevail in a PA workers’ compensation case, typically the successful party presents the testimony of a medical expert, whose opinion is accepted by a Workers’ Compensation Judge (WCJ). This expert opinion must be “to a reasonable degree of medical certainty.” What is encompassed by those words is a bit of an art.

A recent case from Commonwealth Court of PA, UPMC Pinnacle Hospitals v. Renee Orlandi (Workers’ Compensation Appeal Board) [albeit an unreported case], touched on this issue, which may be of some interest to our readers. When we present the testimony of a medical expert, the opinion of that expert need not be to concrete one-hundred precent certainty. Few things in medicine reach that level, as a practical matter. Instead, the opinions must simply be to a “reasonable degree of medical certainty.”

Pennsylvania courts have specifically found that there are no “magic words” that must be uttered by a medical expert for the opinion of that expert to be competent and be a sufficient foundation for the WCJ to base findings. A reviewing court, such as the Workers’ Compensation Appeal Board (WCAB), or the Commonwealth Court of PA, cannot pick a sentence here or there from a medical deposition, out of context. Instead, the appellate court must see if the testimony, as a whole, contains “a requisite level of certainty necessary to deem it unequivocal.”

June 8, 2023

Specific Loss Benefits Awarded Under PA Workers’ Compensation Not Always Paid

by Glenn Neiman

There are several types of benefits which can be received by an injured worker in Pennsylvania. A comprehensive review of these benefits can be seen here on our website. One of those benefits is called “specific loss,” which contains things like loss of use of a body part and disfigurement of the head, face or neck (though House Bill 930 could expand disfigurement beyond the head, face or neck).

Importantly, specific loss benefits cannot be received while the injured worker is still receiving “temporary total disability” benefits (essentially, what we call total wage loss benefits). Again, at least as far as disfigurement, this could change with House Bill 930.

What if the injured worker dies before the temporary total disability benefits stop? Surely, the specific loss benefits, since already “awarded” would be paid to the estate, right? Nope, wrong. The full answer is that it depends what caused the death of the injured worker.

June 5, 2023

When “Accepted” Means “Denied” – Only in Pennsylvania Workers’ Compensation

by Glenn Neiman

When an employee in Pennsylvania gets injured, the PA Workers’ Compensation Act allots the workers’ compensation insurance carrier 21 days to investigate and accept or deny the claim. If 21 days is not sufficient, the insurance carrier can opt to issue a Notice of Temporary Compensation Payable (NTCP or TNCP), and continue the investigation for up to 90 days more. If the TNCP is not properly revoked within those 90 days, according to the Act, the TNCP becomes a regular Notice of Compensation Payable (NCP), and the injury can no longer be denied. Simple, right?

Not so fast. When a TNCP has been issued (for both wage loss and medical benefits), an insurance carrier can simply file a Medical-Only NCP, accepting liability solely for the medical aspect of the case (thus, denying liability for wage loss), without ever revoking that TNCP or issuing a Notice of Denial (NCD) for wage loss. While this seems contrary to the words, if not the spirit, of the Act, the Commonwealth Court of Pennsylvania says this is perfectly fine.

This happened recently in an unreported case, Moretti v. County of Bucks (Workers’ Compensation Appeal Board), though prior reported decisions of the Commonwealth Court, supporting such a situation, were cited by the Court.

May 8, 2023

Big Changes to Scarring Claims Under PA Workers’ Compensation?

by Glenn Neiman

An injured worker in PA is entitled to certain benefits under the Pennsylvania Workers’ Compensation Act. We discuss these benefits in great detail here, on our website. Basically, these benefits include wage loss (called “indemnity”), medical, “specific loss” and fatal claim benefits. Given some pending legislation, we will be discussing the “specific loss” benefits today.

“Specific Loss” benefits encompass any type of benefit other than wage loss, medical or fatal claim. It includes loss of use of a body part and scarring, as was addressed in a previous blog post. Under the Pennsylvania Workers’ Compensation Act, only scarring of the head, face or neck is compensable. A Workers’ Compensation Judge (WCJ) can award from zero to 275 weeks for the scarring, depending on the level of disfigurement. And, this payment is to be made only after the injured worker is no longer receiving total or partial disability benefits.

But, House Bill 930 would change all of that, if it were to become law. First, scarring would be compensable anywhere on the body, not just the head, face or neck. Which, of course, is logical, since most areas of the body can be seen by others and potentially cause embarrassment if there was some level of disfigurement. Second, the WCJ would be able to award up to 400 weeks, since significant disfigurement should entitle the victim to significant compensation. Lastly, House Bill 930 would allow the scarring award to be paid while the injured worker remains on total or partial disability. Which, again, makes sense, since the scarring does not wait to appear.

May 5, 2023

Brilliant & Neiman Closed June 1 and June 2 to Attend PA Bureau of Workers’ Compensation Seminar

by Brilliant & Neiman

On June 1, 2023 and June 2, 2023, the Pennsylvania Bureau of Workers’ Compensation will hold its 22nd annual “Workers’ Compensation Conference.” Here, attorneys, Workers’ Compensation Judges (WCJs), employer representatives, adjusters, risk management/safety employees and others who work in the world of workers’ comp from across the entire State of PA, gather to discuss and learn changes and trends of which they should be aware.

Our attorneys attend this conference nearly every year, and will do so again this year. While we, as attorneys who represent injured workers, are in the vast minority (most of the attorneys who attend this conference are seeking work from the workers’ compensation insurance company representatives in attendance), we feel it is critical to the representation we provide.

By being in the room while the insurance industry representatives are told about the state of the workers’ comp laws, we are getting a peek into their thought processes. This helps us understand and anticipate steps and strategies the workers’ compensation insurance carriers may take. We are also able to have informal conversations with WCJs and defense attorneys, building relationships that may improve communication in future dealings. Not to mention, we are also learning, attending the seminars on such topics as return to work, payment of medical bills, employee mental health (especially post-injury), medical advancements and negotiation strategies.

April 3, 2023

The Difficulties in Handling Cases Against the PA Uninsured Employers Guaranty Fund

by Glenn Neiman

What if an injured worker in Pennsylvanian is employed by a company who (in direct violation of PA law) fails to carry workers’ compensation insurance? Back in the old days, the injured worker, through no fault of his or her own, would be stuck with whatever assets the employer had. However, in recognizing the pure unfairness of such a situation, several years ago, the Pennsylvania legislature created the Uninsured Employers’ Guaranty Fund (UEGF), essentially functioning as an insurer for the uninsured employers.

While the UEGF is wonderful in theory, it is less so in practice. Funding for the UEGF comes from other insurance carriers, and it is seemingly consistently underfunded. The law holds that the UEGF is NOT an insurance carrier, so it cannot be penalized for violations of the Pennsylvania Workers’ Compensation Act (Act), including the failure to pay an award as ordered by a Workers’ Compensation Judge (WCJ). This makes collecting an award from the UEGF a delicate and diplomatic process.

In the past several years, to protect the limited funds of the UEGF, the PA legislature has tightened the requirements to obtain an award against the UEGF, and made such litigation much more difficult. Timeframes have been drastically shortened and requirements of proof have been significantly increased.

March 21, 2023

Injured Worker in PA Entitled to Reimbursement by Workers’ Compensation Insurance for Medical Marijuana

by Glenn Neiman

Over the past several years, PA has legalized the use of medical marijuana. Given the current difficulties in dealing with the opioid epidemic, this would seem to be a reasonable tool to help injured workers (and anyone else suffering from chronic pain) deal with their conditions without the use of narcotic medications. The controversial status of marijuana, and both PA and Federal law, however, gave us great uncertainty as to whether use of medical marijuana would be covered under the Pennsylvania Workers’ Compensation Act. Two recent decisions by the Commonwealth Court of Pennsylvania answer this question quite clearly in the affirmative.

Notably, the Medical Marijuana Act [MMA] specifically states that “Nothing in [the MMA] shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” Additionally, marijuana remains illegal under Federal law. These two factors have made payment for medical marijuana under the PA Workers’ Compensation Act (Act) nearly impossible. Until now.

The two companion cases on this issue of first impression are Appel v. GWC Warranty Corporation (Workers’ Compensation Appeal Board) and Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board). Both of these injured workers suffered from severe pain, one from multiple back surgeries and the other from several conditions, including “herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease.”