Workers Comp Appeals

November 7, 2023

Three Year Statute of Limitations Applies in PA Workers’ Comp With Medical-Only Notice of Compensation Payable

We are often asked why an injured worker in Pennsylvania needs an attorney. “They know I got hurt on the job,” the injured worker might say, “Why would I need a lawyer?” Well, the Commonwealth Court of Pennsylvania recently issued a decision that demonstrates why every injured worker in PA should have an attorney protecting his or her rights.

In Keffer v. Colfax Corporation and Phoenix Insurance Company (Workers’ Compensation Appeal Board) it appears the injured worker did everything his employer and the insurance carrier asked. And, he lost all of his rights in the process. This case is a very important lesson for every injured worker in Pennsylvania.

The injured worker in this case hurt his low back lifting a box of metal rods on December 18, 2014. The insurance carrier issued a Notice of Temporary Compensation Payable (NTCP), accepting the injury as a “low back strain,” and the payment of workers’ compensation benefits began. These benefits continued until the injured worker returned to full-duty work on March 9, 2015. The insurance carrier then issued a Notice Stopping Temporary Compensation (NSTC) and a medical-only Notice of Compensation Payable (NCP) on March 12, 2015.

September 22, 2023

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

by Glenn Neiman

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.

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.

June 15, 2022

Changes Coming to Pennsylvania Workers’ Compensation Appeal Board (WCAB)

by Glenn Neiman

When one receives a decision issued by a Workers’ Compensation Judge (WCJ) in Pennsylvania, one has the right to file an appeal. The first level for this appeal is the PA Workers’ Compensation Appeal Board (WCAB). For about the last 50 years, litigating an appeal before the WCAB has been unchanged. Starting July 11, 2022, however, there will be substantial changes taking place.

Until now, the person filing an appeal, formerly called the Appellant (now called the Petitioner), would file his or her brief (written argument) on or before the date of the oral argument. This oral argument would be held in person at various locations across the State of Pennsylvania (Philadelphia, Pittsburgh, Harrisburg, Scranton and Erie). The Respondent (formerly called the Appellee) would typically submit his or her brief 30 days after the oral argument.

Even before the COVID-19 pandemic turned the entire PA workers’ compensation system into a largely virtual affair, there had been discussion of making oral argument before the WCAB into a virtual event. Since the virtual method ran so smoothly during the pandemic, the WCAB will be retaining this as the primary method of conducting oral argument.

June 30, 2021

PA Bureau of Workers’ Compensation System Reopening Announced

by Glenn Neiman

As we have noted previously, all hearings in Pennsylvania workers’ compensation matters have been held virtually, either by telephone or video, since last Spring. We have now been told that the hearing offices within the PA Bureau of Workers’ Compensation will be reopening as of August 16, 2021.

However, this does not mean the system will return to how it functioned prior to the pandemic. As with many things, we will be learning a “new normal.” We have been told that “virtual hearings” will continue for certain things, though exactly when hearings will be live, as opposed to virtual, remains unclear. Likely, we will have live hearings for the testimony of an injured worker, or an important witness, but that virtual hearings will continue for “status hearings.” Whether a hearing is live or virtual, ultimately, will come down to the discretion of the Workers’ Compensation Judge.

Meanwhile, the Workers’ Compensation Appeal Board will continue to hold oral argument virtually. As is the case now, the parties can request oral argument be done live. Provided the request is made in a timely fashion, it will generally be granted. In the special case of disfigurement/scarring, the hearing will be done in person.

April 17, 2018

Which Workers’ Comp Appellate Decisions Count in PA?

by Glenn Neiman

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.

September 19, 2017

WCAB to Change Oral Arguments

by Glenn Neiman

When a party to a PA workers’ compensation litigation receives a decision of the Workers’ Compensation Judge (WCJ), the party can file an appeal to the Workers’ Compensation Appeal Board (WCAB). If a party is not successful before the WCAB, then the party can file an appeal to the Commonwealth Court of Pennsylvania. The losing party at that level can request an appeal to the Supreme Court of PA, but whether the appeal is accepted by the Supreme Court is discretionary with the Court.

Oral argument is available on every case before the WCAB, even before briefs are submitted (though the parties can waive the right to oral argument if they wish). At the Commonwealth Court and Supreme Court levels, however, the Courts decide whether they want oral argument (typically requested only on novel or complicated issues), and the arguments would be after the briefs are submitted.

At least, that’s how it was. We were just notified by the Pennsylvania Department of Labor & Industry that a change is being proposed to the rules regarding oral argument before the WCAB. There are two basic elements looking to be changed. First, the briefs would be submitted before any oral argument would be done (so the WCAB Commissioners could know the case before hearing the oral arguments cold). Second, mirroring the higher courts, the use of oral argument would be discretionary with the WCAB, reserved for novel or complex issues.

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.