Worker Comp Generally

April 17, 2018

Which Workers’ Comp Appellate Decisions Count in PA?

On our blog, as you probably noticed, we like to share court opinions which are of interest to the injured worker in PA. Typically, of course, these opinions deal with interpretations of the Pennsylvania Workers’ Compensation Act (Act). Also, typically, these are opinions rendered by the Commonwealth Court of Pennsylvania. Why that court? And are all decisions of Commonwealth Court the same? Glad you asked!

Once a Workers’ Compensation Judge (WCJ) renders a decision, the next level of appellate review is the Workers’ Compensation Appeal Board (WCAB). This is a process we have discussed on this blog in the past. Decisions rendered by the WCAB can be cited to WCJs, by attorneys, in future cases, but the WCAB opinions are only “persuasive” not “binding.” This means that a WCJ need not follow a decision of the WCAB. For this reason, we rarely devote a blog posting to a WCAB decision.

After the WCAB issues a decision, an appeal can be taken to the Commonwealth Court of Pennsylvania. Like with the WCAB, an appeal to Commonwealth Court is a right, so the Commonwealth Court cannot decline an appeal. The Commonwealth Court will then make a decision. This is either “reported” or “unreported.” These terms have their usual meaning – a “reported” decision is published in a law reporter; an “unpublished” one may not. More importantly, as a practical matter, a “reported” decision can be cited in future cases (and is binding on both the WCJ and the WCAB). While an “unreported” case can be cited in future cases, like a WCAB opinion, it is not binding on a WCJ (only persuasive). Though they are far more plentiful, “unpublished” decisions are not typically made blog posts by us. They simply are not as significant, since they need not be followed. Note that an “unpublished” on “unreported” decision, upon motion of a party, could be changed to “published” or “reported.”

February 21, 2018

The Importance of Selecting the Right PA Workers’ Compensation Lawyer

by Glenn Neiman

We have often discussed the importance of winning a case before the Workers’ Compensation Judge (WCJ). This is because the WCJ is the “ultimate finder of fact.” Determinations of credibility made by a WCJ cannot be challenged on appeal. Indeed, appellate courts can only change the decision of a WCJ if there has been an “error of law.” Given this great power held by the WCJ, it is critical that an injured worker’s case be litigated as well as possible before the WCJ.

We say this to point out that it really does matter what PA workers’ comp attorney an injured worker selects. Certainly, one can simply search on the internet and find many attorneys from which to choose. But, therein lies the difficulty – how should an injured worker in Pennsylvania choose his or her workers’ compensation attorney?

To try to bring some common sense to this situation, we have added a page to our website, intended to help an injured worker make this important selection. Obviously, we would like an injured worker to call us, but whether you do or not, these are some things an injured worker can consider when making this important decision.

January 31, 2018

New Proposed Legislation Could Keep Necessary Medications From Injured Workers in PA

by Glenn Neiman

Pennsylvania’s legislators try their best to represent their constituents; I believe this is true the vast majority of times. But, there are certainly times when the results of their actions are very difficult to reconcile with the best interests of those they have sworn to protect.

Currently pending in the PA legislature is House Bill 18/Senate Bill 936. If passed, this legislation would completely change how an injured worker in Pennsylvania can receive medications. A “drug formulary” would be set up. This means that no longer would a patient be treated based on the individual needs of the patient, and the individual judgement of his or her doctor. Nope. Instead, decisions would be based on “evidence-based medicine.” That means that what medications would generally be prescribed for a given condition, for the period generally prescribed, would be all that an injured worker in PA could receive.

Therefore, the individual judgment of the doctor is totally irrelevant. The needs of the patient? Not a factor. This is an absurd system, since medicine is not an exact science. Indeed, any physician will openly admit that not every patient will react to every condition in the same way. Some heal faster than others. Not every patient has exactly the same symptoms or limitations, even from the same condition.

January 12, 2018

The Honorable Paul Baker Retired

by Glenn Neiman

As we have previously mentioned, the Pennsylvania Bureau of Workers’ Compensation rarely provides official or formal notice regarding the addition or subtraction of Workers’ Compensation Judges (WCJs) in the Commonwealth. As usual, it is up to us to point out these changes, from our contact with other attorneys, and from our appearances in the many workers’ compensation hearing offices across PA.

Along these lines, we announce, with mixed feelings, the retirement of The Honorable Paul Baker. Over his illustrious career, Judge Baker has presided over cases in Philadelphia, Pottsville and Harrisburg (at least these are the courts where we have appeared before him over the years). Judge Baker was always known for his thoughtful and thorough handling of his cases, and we will miss his intelligence and compassion from the bench. On the other hand, we are thrilled for him personally, in that he can step away from the bench, and enjoy his retirement.

Please join us in congratulating Judge Baker on a wonderful career as a jurist, and wishing him well in his retirement!

December 4, 2017

Attorney Glenn Neiman Acting as Moderator for Continuing Legal Education Seminar

by Brilliant & Neiman

We are proud when our attorneys are asked to participate in continuing legal education seminars. Being invited to help educate other lawyers can only be viewed as a tremendous compliment. And, so we are pleased to relay that one of our attorneys, Glenn Neiman, has been invited by the Workers’ Compensation Section of the Bucks County Bar Association to act as a moderator in a continuing legal education seminar the Section is presenting later this month.

The topic of the seminar will be addressing the interplay between the Heart & Lung Act (a benefit program to which police, firefighters and other first responders qualify) and the Pennsylvania Workers’ Compensation Act. Since these two laws can both impact cases in different ways, it is important for attorneys who handle either of these types of cases to be aware of both laws.

November 28, 2017

Injured Workers’ Rights to Medical Treatment in PA

by Glenn Neiman

Just the other day, an injured worker called us, complaining that their employer refused to send them to a “workers’ compensation doctor.” It seems that there is more confusion in this area than in many within the complicated world of Pennsylvania workers’ compensation.

While medical treatment for the work injury is one of the benefits available to an injured worker under the Pennsylvania Workers’ Compensation Act (Act), this is not necessarily treatment with a doctor with any connection to the employer or the employer’s workers’ comp insurance carrier. In fact, the ability to direct and control medical treatment is a BENEFIT to the employer, and a DETRIMENT to the injured worker. As such, this control is only available if an employer complies with specific steps.

Under the Act, an employer may only be responsible for payment to a medical provider on a “panel posting” within the first 90 days of treatment. Such a “panel posting” must be prominently displayed in the work place. To be a valid “panel posting,” the posting must contain at least six providers, at least three of which are physicians (the remainder could be therapy facilities or other healthcare providers who are not doctors). No more than four of the six on the posting may be from the same practice. The employer must have the injured worker sign an acknowledgement, both at the time of hire and as soon as practical after the injury, that the injured worker is aware of the panel posting. All of these requirements can be found in Section 306(f.1)(1)(i) of the Act.

November 3, 2017

Settling a PA Workers’ Compensation Case

by Glenn Neiman

One of the frequent questions we are asked is regarding the settlement of a Pennsylvania workers’ compensation claim. In fact, there is a page on our website just devoted to settlements. When considering whether to settle his or her case, there are several things an injured worker should consider. Initially, it is important to note that not every workers’ comp case settles. Workers’ compensation benefits can end for a variety of reasons, other than a settlement. Therefore, just because you have had a work injury in PA, do not believe you are simply entitled to a settlement.

The timing of the case is always an important consideration when considering whether to settle a case. We do not mean timing in a strict calendar sense, as there is no magic number of months or years which must go by before a case can settle. Instead, we are looking at the posture of the case. Is the injured worker still in active treatment? Is surgery, or other invasive treatment still being planned? Is there other health coverage available? As to the case legally, we ask whether there is a current threat to the benefits? Whether there is current litigation, and the chances of success? What is the employability of the injured worker? (Considering that encompasses both physical restrictions, as well as educational and work backgrounds). As you can see, there are many factors going into whether now is the right time to settle.

Next, the question may be the value of the case. Again, there is no magic formula. A settlement only works if both sides agree. It has to be voluntary for everyone. Unlike a personal injury case, there is no pain and suffering in a PA workers’ compensation case. A settlement purely reflects loss of earnings, and, if applicable, future medical treatment. Obviously, the settlement figure is something to be negotiated.

September 25, 2017

UEGF Forms Now Available on WCAIS System

by Glenn Neiman

In past blog posts, we have discussed the Uninsured Employers’ Guaranty Fund (UEGF). This is the safety net available for workers who have been injured while working for an employer who (in violation of Pennsylvania law) fail to carry PA workers’ compensation insurance. While the UEGF does give these injured workers an avenue to pursue to get wage loss and medical benefits, there are hurdles to clear which are not present with a typical PA workers’ compensation case.

Ordinarily, when a worker gets hurt in Pennsylvania, he or she simply files a Claim Petition and can seek benefits from the date of the work injury. When a claim is being made against the UEGF, however, one must first file a Notice of Claim Against Uninsured Employer (the form is LIBC-551). Unless the Notice is filed within 45 days of the injured worker knowing the employer failed to carry PA workers’ compensation insurance, no medical or wage benefits are payable until the Notice is filed.

Once the Notice is filed, the injured worker must wait at least 21 days to file a Claim Petition for Benefits from the Uninsured Employer and the Uninsured Employer’s Guaranty Fund (form LIBC-550). In contrast, there is no requirement (in a typical PA workers’ comp case) of waiting any time before filing a regular Claim Petition.

July 20, 2017

Injured Workers Receive Practically No Value From Personal Injury Cases

by Glenn Neiman

Ordinarily, workers’ compensation in Pennsylvania is an “exclusive remedy.” That means, the typical injured worker in PA cannot sue anyone for his or her injuries, and only has benefits under the Pennsylvania Workers’ Compensation Act (Act) available. There are exceptions when the injury was caused by the negligence of a third party (a party other than the employer).

However, as we have noted in the past, the Act is designed so that the injured worker receives none of the benefits of the damages recovered in the personal injury (“third party” case). This concept is called “subrogation.” We recently observed this happening to one of our clients.

One of our clients suffered significant injuries, which were caused by a third party. A civil suit was filed (in addition to the workers’ compensation action). This civil suit was handled by a law firm other than us (our firm limits its practice to PA workers’ compensation cases, though we can certainly refer clients to excellent attorneys for any aspect of the law).

June 14, 2017

Prescriptions for Pennsylvania Injured Workers Under Attack

by Glenn Neiman

House Bill 18 has made it out of committee and is expected to be voted on early next week (Tuesday). This bill would drastically change how injured workers in Pennsylvania would get their medications (and what medications they could get). Basically, the Bill introduces “Evidence-Based Medicine” to PA workers’ compensation prescriptions. This means that patients of a work injury would no longer be able to have care (or at least medicine usage) dictated by treating physicians; instead, the use of medications would be through established guidelines (amassing statistical data). This, of course, ignores the simple fact that every patient is different and requires different care. One cannot treat every person identically the same.

This could just be the first step in making “Evidence-Based Medicine” the care for every aspect of a work injury. Imagine that your treating doctor is powerless to order care as he or she feels best, but is instead limited to what statistics say should be done for the majority of patients. It is an absolute disgrace that Pennsylvania legislators think so little of injured workers to subject them to this kind of dangerous and substandard care.

Call your State legislators and tell them how you feel, before this Bill becomes reality!