Worker Comp Generally

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.

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.

May 3, 2016

How to Pick a PA Workers’ Compensation Attorney

by Brilliant & Neiman

We have previously discussed things an injured worker in Pennsylvania may wish to consider when selecting a PA workers’ compensation attorney. Of course, you would want an attorney experienced handling PA workers’ comp cases. Having practiced primarily in the area of PA workers’ compensation for over 20 years, each of our attorneys has extensive experience in the field.

Since the availability of such a certification in 2013, you may now want to make sure your attorney is Certified as a Specialist in the Practice of Workers’ Compensation Law. Both of our attorneys, Dina Brilliant and Glenn Neiman, are so certified. In fact, Brilliant & Neiman LLC is proud to state that our attorneys were two of the first group of attorneys ever to be certified in this area.

But, it is more than just having experience or qualifications. The true test is using those skills for the benefit of our clients. Why, just today, Mr. Neiman argued before the Commonwealth Court of Pennsylvania. This is something not every workers’ compensation attorney gets to do. We at Brilliant & Neiman LLC go that extra step for our clients, backing them as far as it takes.

April 25, 2016

Worker Injured in Employer’s Parking Lot After Work Not Entitled to Workers’ Compensation Benefits

by Glenn Neiman

Generally, for most employees, the commute to and from work is not a time in which the employee is covered under the Pennsylvania workers’ compensation system (this is known as the “going and coming rule”). As with many of the principles we touch on with this blog, there are exceptions. (One critical one, which we are not discussing in this blog post, is the “traveling employee,” which can be seen in this blog post). Here we are going to look at a recent case on what happens with an injury in the employer’s parking lot.

In Quality Bicycle Products, Inc. v. Workers’ Compensation Appeal Board (Shaw), the employee was running out of the building to his car due to a family emergency. On his way to his car, in the employer’s parking lot, the employee felt a pop in his knee (later diagnosed as a fractured patella). A Claim Petition was filed and granted by a Workers Compensation Judge (WCJ). This was affirmed on appeal by the Workers’ Compensation Appeal Board (WCAB). [Note that other aspects of the decision were reversed by the WCAB, but are not relevant to our discussion].

Upon appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was reversed. The Court felt that the WCJ, and the WCAB, erred in finding that the injury took place in the scope and course of employment.

March 23, 2016

PA Supreme Court Grants Appeal in Protz

by Glenn Neiman

As we discussed back in September, the Commonwealth Court of Pennsylvania rendered an important decision for the IRE process when the Court decided the matter of M.A. Protz v. Workers’ Compensation Appeal Board (Derry Area SD). The delegation of power by the PA legislature, as we noted, was found to be unconstitutional. We were left with several questions, the main one being whether appeal would be accepted by the Supreme Court of Pennsylvania.

The answer to this question has now been found – the Supreme Court of Pennsylvania has accepted the appeal filed by both sides. The issues to be decided can be seen here and here.

We look forward to the clarification by the Supreme Court of Pennsylvania, and we hope that the decision rendered answers most, if not all, of our remaining questions. We will certainly report of this development when it happens.

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.

February 19, 2015

Pennsylvania has New Rules for Practice and Procedure in Workers’ Compensation Matters

by Glenn Neiman

Recently, we attended a seminar to be briefed on changes in the rules, formally known as the Special Rules of Administrative Practice and Procedure before Workers’ Compensation Judges or the Workers’ Compensation Appeal Board (each has a separate set of rules). Since our practice is limited to representing injured workers in Pennsylvania workers’ compensation cases, it is critical that we be aware of all aspects of the system.

Perhaps it would be wise first to understand where the Rules of Administrative Practice and Procedure fit into the system. As we have mentioned before in this blog, workers’ compensation laws vary widely from State to State. Here, the law starts with the Pennsylvania Workers’ Compensation Act, which was created back in 1915 and amended many times since. This law, and its amendments, were written and enacted by the PA legislature. The law is then interpreted by the appellate courts in Pennsylvania. The process by which we litigate these cases, through the Workers Compensation Judge (WCJ) and Workers’ Compensation Appeal Board (WCAB), are dictated by these Rules of Administrative Practice and Procedure.

Included in the changes to the Rules of Administrative Practice and Procedure before Workers’ Compensation Judges are how cases are litigated against the Uninsured Employers’ Guaranty Fund (UEGF), the fund that is available when an employer fails to carry PA workers’ comp insurance. There were also changes or amendments to what must be contained within Stipulations of Fact, to the timing of the serving of subpoenas, to the availability of a motion like a Motion for Summary Judgment (as in civil law), and changes to initial hearing procedures and pleadings.

November 25, 2014

Maximum Workers’ Compensation Rate for 2015 in Pennsylvania is $951

by Glenn Neiman

The Pennsylvania Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries suffered in 2015 will be $951.00 per week. This is an increase over the $932.00 for injuries suffered in 2014. While we applaud the increase, we continue to be mindful of the general unfairness that workers’ comp benefits in PA are calculated as of the date of injury . . . and then forever fixed at that level. Unfortunately, some work injuries are very severe and require the injured worker to be on workers’ compensation for years. We long for the day when cost-of-living adjustments are made, as they are in Social Security Disability. It seems only the fair way to handle long term, chronic, injuries.

The workers’ compensation rate calculation can be a complicated process, depending on the situation. Generally speaking, the wages of the injured worker from the day before the injury going back one year are gathered. We divide this into four quarters, then take the average of the highest three quarters. This is the “Average Weekly Wage” (AWW). Depending on the amount, the workers’ comp rate is usually 2/3 of the AWW, though that can vary. For lower wages, the rate can be as high as 90% of the AWW. For those workers above the maximum compensation rate, the percentage can be less than 2/3.

Making sure the AWW is properly calculated, to be sure you are getting the fullest extent of compensation possible, is yet another reason to come to an attorney certified as a specialist in workers’ compensation law, as are the attorneys at Brilliant & Neiman LLC.