Workers Comp Appeals

May 22, 2017

Findings of Fact, and Determinations of Credibility, Made by PA Workers’ Compensation Judge Difficult to Change on Appeal

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.

March 6, 2017

Supreme Court of Pennsylvania to Determine Whether Commonwealth Court of Pennsylvania Applied Firefighter Presumption Correctly

by Glenn Neiman

Back in August, 2016, we discussed the case of City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek). For those who do not recall, this was the case (well, one of several recent cases actually) which determined that a firefighter must prove the cancer he or she developed was of a type caused by the listed carcinogen, before the firefighter could use the presumption in Section 108 (making the obtaining of workers’ compensation benefits easier for the firefighter). The Commonwealth Court of Pennsylvania had vacated the decision of the Workers’ Compensation Judge (WCJ), which granted the Claim Petition.

While an aggrieved party has the right to appeal any decision of a WCJ to Commonwealth Court (after first appealing to the Workers’ Compensation Appeal Board (WCAB)), the Supreme Court of Pennsylvania has the power to decide which appeals it will accept. The fact the Court has now accepted appeal in this matter suggests that they wish to clarify the reading of Section 108(r). Which way they will find is anyone’s guess at this point, though we will be following the developments closely.

February 3, 2017

PA Workers’ Compensation Appeal Board Commissioner, Past Chair, Retires

by Glenn Neiman

According to a memo released by Alfonso Frioni, Jr., Esquire, Chairman of the Pennsylvania Workers’ Compensation Appeal Board (WCAB), Commissioner Susan M. McDermott has decided to retire after spending over twenty years on the WCAB, including a stint as the very first female Chairperson of the WCAB. The entire text of the memo is:

“On behalf of the Pennsylvania Workers’ Compensation Appeal Board, we extend our special thanks and congratulations to Commissioner Susan M. McDermott on her retirement from the Board.

Commissioner McDermott was appointed to the Appeal Board by Governor Tom Ridge in 1996, serving over twenty years until her recent retirement in January 2017. Susan was one of the first two women appointed to the Board in its one-hundred-year history, and was the very first woman Chairperson of the Workers’ Compensation Appeal Board serving from 1996 to 2010. Susan’s contributions to the professionalism of the Board were extensive with her instituting many of the Board’s internal operating procedures, particularly with regard to the circulation of opinions, adopted from The Commonwealth Court.

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.

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.

January 18, 2012

Workers’ Compensation Specialty Coming to Pennsylvania

by Glenn Neiman

As attorneys who limit their practice to representing the injured worker in PA workers’ comp cases, we are thrilled by the recent announcement that the Supreme Court of Pennsylvania has approved the process of creating a “certified workers’ compensation attorney” in Pennsylvania (or, in other words, a workers’ compensation specialist).

We have seen the damage done to cases when an injured worker trusts a general practitioner to handle a Pennsylvania workers’ comp case. The Pennsylvania Workers’ Compensation Act is a complicated piece of legislation. As loyal readers of our blog know, this is a frequent topic of cases decided by the appellate courts in PA. Trusting a workers’ compensation case to an attorney not experienced in that area of law is akin to having an orthopedist handle your coronary artery bypass surgery. Just not a good idea.

A work-related injury can cause tremendous disruption, and loss, to both the injured worker and his and her family; we are thrilled that in the near future, that injured worker can have the confidence that he or she is selecting a “certified workers’ compensation attorney.” We, of course, look forward to becoming “certified workers’ compensation attorneys” as soon as the process for the testing and certification is completed.

October 26, 2011

Election of Commonwealth Court of Pennsylvania Judges

by Glenn Neiman

Over the years, we have had blog entries on many different topics of interest to the injured worker in PA. One theme we have never dealt with, however, is the emotionally-charged area of politics. While we generally try to avoid politics, we would be remiss if we did not comment about one of the candidates for Judge on the Commonwealth Court of Pennsylvania.

As loyal readers of our blog know, the Commonwealth Court of Pennsylvania is the next appellate level, above the Workers’ Compensation Appeal Board (WCAB). This Court must address many issues directly impacting the lives of injured workers in PA. Judges on this Court are elected in the general election. We believe it is important for voters to be informed, allowing them to make the best decisions possible.

One of the candidates for Commonwealth Court Judge in the election coming up on November 8 is Kathryn Boockvar. Back in June of this year, we attended the 10th Annual Workers’ Compensation Conference in Hershey, PA, which is presented by The Pennsylvania Bureau of Workers’ Compensation. In addition to the many attorneys who practice in the area of PA workers’ comp, we noticed Ms. Boockvar in attendance. We were both impressed and encouraged that Ms. Boockvar was interested enough in the PA workers’ compensation system to attend such an event. In addition to her obvious interest in workers’ compensation, her resume shows that she spent much of her career representing disabled individuals.

May 9, 2011

Supreme Court of Pennsylvania Accepts Appeal in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap)

by Glenn Neiman

Previously, we posted a blog entry on the Commonwealth Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). This was the decision where the Commonwealth Court was unmoved when the injured worker applied for every job in a Labor Market Survey and found none available to him. The Court said the workers’ compensation insurance carrier can still obtain a Modification or Suspension of workers’ comp benefits in this situation.

Thankfully, the Supreme Court of Pennsylvania accepted appeal in this matter on April 27, 2011. We will certainly keep our readers informed when the Supreme Court of PA reaches a decision.

April 27, 2011

PA Supreme Court Accepts Appeal in Robinson

by Glenn Neiman

Back in October, we blogged about the decision of the Commonwealth Court of Pennsylvania in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), which addressed what caused a presumption that an injured worker “retired,” entitling the workers’ comp insurance carrier to a suspension of workers’ compensation benefits.

The decision of the Commonwealth Court arguably made a murky area of the law even more confusing, but it also attempted to inject some compassion and logic into an aspect of law short on both.

For better or worse, the Supreme Court of Pennsylvania has accepted an appeal in this matter. Specifically, the issue for the Court to determine is:

July 20, 2010

PA Workers’ Comp Judge Agrees Armed Robbery is “Abnormal Working Condition” in Pennsylvania; Employer Appeals

by Glenn Neiman

Some time ago, we made a brief deviation from our normal course of not blogging about own active cases, to discuss a liquor store clerk who was robbed at gunpoint. The PA Liquor Control Board (LCB) denied the claim, stating that being robbed at gunpoint was not an “abnormal working condition” for a PA LCB clerk (remember that the next time you think of stepping into a State Store in Pennsylvania – armed robbery is simply accepted as a normal course of a day by management). We filed a Claim Petition on the clerk’s behalf and litigated the case.

We are pleased to report that the Workers’ Compensation Judge (WCJ) did not buy Defendant’s argument, and did not believe that society has degraded far enough such that a clerk can expect armed robbery on his or her normal day at work. In granting our Claim Petition, the WCJ rejected the Defendant’s attempt to expand the Commonwealth Court of Pennsylvania’s disastrous decision in of McLaurin v. Workers’ Compensation Appeal Board (SEPTA), wherein the Court, in its infinite wisdom, found that a SEPTA driver’s normal workday includes being assaulted by a gun-wielding teen (sending the message, as we understand it, that anyone foolish enough to step on a SEPTA vehicle can expect to face such consequences).

Undaunted, however, the PA LCB has filed an appeal with the Pennsylvania Workers’ Compensation Appeal Board (WCAB). It appears the PA LCB’s argument is that the WCJ was incorrect and Pennsylvania liquor stores are just as deadly as SEPTA vehicles (how very proud they must feel while making these arguments). We find it amazing, not to mention disheartening, that our own governmental agencies would be stooping to such disgraceful antics to deny a case. Rather than address what they clearly view as a “normal working condition,” perhaps by improving security methods, the PA LCB instead is trying to use its stubborn ignorance and incompetence as a basis to deny an injury to one of its own employees. How can one put any word other than “disgraceful” on that?