Workers Compensation Litigation

March 21, 2023

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

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.”

December 9, 2022

MRI Results Not Foolproof to Show Extent of Work Injury

by Glenn Neiman

If you are a football fan, you may have been following the story about Von Miller, star linebacker for the Buffalo Bills. The story is also of interest, however, to injured workers, including those in PA. (Parenthetically, we should note that Miller is, in fact, an injured worker, though the Pennsylvania Workers’ Compensation Act has special provisions for professional athletes – that said, the point of this article is that the care given to Miller is not the care received by the typical injured worker in PA).

On November 24, 2022, Miller injured his knee in a game against the Detroit Lions. Being a star NFL player, Miller had access to the best medical tools possible, and was not required to have any kind of delay. An MRI done the day after the injury showed the Anterior Cruciate Ligament (ACL) remained intact. This meant the injury was not as severe as the team and player initially feared.

But, then an interesting thing happened. Miller underwent exploratory surgery on the knee earlier this week. A tear of the ACL was discovered, and repaired, during the procedure. A tear that was not seen on the MRI. Rather than missing a couple of weeks, suddenly Miller’s season was over.

July 8, 2022

When to Settle a PA Workers’ Compensation Case

by Glenn Neiman

Perhaps the most frequent question we, as attorneys who represent injured workers in PA workers’ compensation cases, receive is, “When can I settle my case?” Such a simple question for such a complicated issue. An entire page of our website is devoted to this “Big” question, as is part of the FAQs.

Initially, we should note that not every Pennsylvania workers’ compensation case ends in a settlement. Sometimes, the best interests of the injured worker do not result in such a conclusion to a case. This may be secondary to the injured worker having returned to the same employer after the injury (most workers’ comp cases require a resignation as part of the settlement), or it may be due to a substantial future medical exposure (which often has drastically different calculations between reasonable expectation and what the workers’ compensation insurance carrier would offer), or it may be some other issue unique to that particular case.

There is no “magic” time to settle a PA workers’ comp case. We have reached a settlement in a Claim Petition, mere months after an injury, and we have reached a settlement many years after an injury. Though it sounds like a cliché, it is true – every case is different and must be judged by its own facts and circumstance.

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.

April 11, 2022

Two Additional Workers’ Compensation Judges Named by the PA Bureau of Workers’ Compensation

by Glenn Neiman

Coming on the heels of last month’s announcement from the Pennsylvania Bureau of Workers’ Compensation, advising that two new Workers’ Compensation Judges (WCJs) would be taking the bench, we were surprised to hear more hiring news from the Bureau this month. In addition to the two new WCJs we discussed in March (The Honorable Debra Matherne and The Honorable Cassi Martin), there are now two more WCJs taking the bench in the near future.

Having two announcements so close in time is unusual, though there has been an unusual amount of retirement and turnover among the WCJs recently. We are now welcoming Angela Lorenz and Angel Torres to the bench.

The official statement released by the Bureau states:

March 21, 2022

PA Bureau of Workers’ Compensation Names Two New Workers’ Compensation Judges

by Glenn Neiman

In recent years, the Pennsylvania Bureau of Workers’ Compensation has been more transparent with the hiring of new Workers’ Compensation Judges (WCJs). While we generally have to rely on word of mouth for the retirement or transfer of a WCJ (to a different workers’ comp hearing office), we can usually count on the Bureau to let us know when a new WCJ is appointed to the bench. Along these lines, we are happy to congratulate Debra Matherne and Cassi Martin on becoming WCJs.

According to the Bureau, “Ms. Matherne has most recently been employed by Cipriani and Warner as a partner doing primarily WC defense work. Prior to that, she practiced on the Claimant’s side as a partner with Michael O’Connor and Associates. She has set a tentative start date of 3/28 to begin Act 57 training.”

Cassi Martin is an active member of the Bucks County Bar Association (BCBA), and the Workers’ Compensation Section of the BCBA, so we are well-acquainted with her talents and experience. She had been working for Hill Wallack LLP, handling primarily workers’ compensation defense work for employers, self-insureds and insurance carriers. Having earned her undergraduate degree at Marist College, Ms. Martin received her J.D. degree from Fordham University School of Law. On April 11, 2022, Ms. Martin will begin her WCJ training. Upon the completion of her training, Ms. Martin will be assigned to the Philadelphia Workers’ Compensation Hearing Office.

March 2, 2022

PA Bureau of Workers’ Compensation Finally Announces Reopening

by Glenn Neiman

Nearly two full years after COVID-19 briefly shut down the Pennsylvania workers’ compensation system, and then created a dramatic shift in how litigation was done, the PA Bureau of Workers’ Compensation has announced measures to return to some level of our prior (the old “normal”) operation.

It has been since March, 2020, that most of us in the workers’ compensation bar have physically been inside of a workers’ comp hearing room. Nearly every hearing and mediation since that time has taken place in a virtual format.

The Workers’ Compensation Office of Adjudication (WCOA) has officially announced that mask mandates have been lifted and live (in person) hearings and mediations may again commence. While the virtual hearings which have become the new “normal” will continue in some respects, it appears that live testimony will once again be taking place. You may recall that the PA workers’ comp courts were permitted to be “open” as of August 16, 2021, though very few Workers’ Compensation Judges (WCJs) actually held live hearings. At Brilliant & Neiman LLC, we have not been involved in a live hearing since March, 2020.

December 23, 2021

Supreme Court of Pennsylvania Reverses Commonwealth Court of Pennsylvania; Allows Fees Charged to Workers’ Compensation Insurance Carrier

by Glenn Neiman

One of the most unfair aspects of Pennsylvania Workers’ Compensation has always been how injured workers must defend petitions which address only medical benefits. While injured workers receiving total disability benefits can easily retain an attorney (paying a portion, usually 20%, of such benefits as the fee), injured workers who continue to work, and lose no wages, must decide whether to pay an attorney from their pocket or risk losing access to medical benefits for the work injury. However, this situation has now changed, thanks to a decision by the Supreme Court of Pennsylvania.

The PA Workers’ Compensation Act (“Act”) has typically been interpreted to allow attorney fees to only be assessed against the workers’ comp insurance carrier if there is a showing that the petition at issue was “unreasonable.” Thus, the award of attorney fees, chargeable to the insurance company, was the exception to the rule. This despite the fact that Section 440 of the Act says:

“In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.” [Emphasis added]

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 22, 2021

New Pennsylvania Workers’ Compensation Judge Announced For Philadelphia Hearing Office

by Glenn Neiman

The Pennsylvania Bureau of Workers’ Compensation has announced that The Honorable Ashley Drinkwine will be a new Workers Compensation Judge (WCJ) assigned to the Philadelphia Workers’ Compensation Hearing Office. Judge Drinkwine will be taking the place of Judge Scott Olin, who has retired after many successful years on the bench. The decorum and wisdom of Judge Olin will be missed and we wish him well in his retirement.

Specifically, the release states:

“The WCOA is pleased to announce the hiring of new Workers’ Compensation Judge Ashley Drinkwine who will replace the recently retired Judge Scott Olin in the Philadelphia hearing office. Judge Drinkwine will begin her statutorily mandated training beginning June 1, 2021. Congratulations Judge Drinkwine!”