Workers Compensation Litigation

September 29, 2008

Unreasonable Contest Attorney Fees in PA Workers’ Comp

Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

September 26, 2008

PA Workers’ Comp Verification Forms

by Glenn Neiman

Claimants receiving, or attempting to receive, workers’ compensation benefits in PA are required to report receipt of various income. There are three what we call “verification forms,” which workers’ compensation insurance companies can send to these claimants. If these forms, which were approved by the Pennsylvania Bureau of Workers’ Compensation, are not completed by the claimants, and returned to the workers’ comp insurance carrier within 30 days, workers’ compensation benefits can be stopped.

On the other hand, I recently received a copy of a “Claim Status Report,” which was sent by the workers’ comp insurance carrier to my client. Some of the questions were similar to those on the forms approved by the Pennsylvania Bureau of Workers’ Compensation, but there were other questions which a claimant would have no obligation to answer.

This is just another instance of why every Claimant should have access to an experienced PA workers’ comp attorney. Any time something is received by a workers’ compensation claimant, there should be a discussion with the attorney. There are so many rights and responsibilities the injured worker should know, that it just makes sense to have someone to watch their back.

September 3, 2008

Reinstating in PA Workers’ Comp After Benefits are Terminated

by Glenn Neiman

One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

August 8, 2008

Expert Medical Evidence Necessary to Prove Disability in PA Workers’ Comp

by Glenn Neiman

A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

July 22, 2008

Termination of Workers’ Compensation Benefits in PA May Require Change of Condition

by Glenn Neiman

Not that long ago, a Pennsylvania workers’ compensation insurance company could terminate the benefits of an injured worker anytime they found a doctor to say the injured worker had fully recovered from his or her work injury. This encouraged the workers’ compensation insurance carriers to file Termination Petition after Termination Petition, until they found a doctor the Workers’ Compensation Judge believed. Fortunately, this is no longer the case in PA. The case that allowed such a luxury by the workers’ compensation insurance carrier, King v. WCAB, was overruled by the Pennsylvania Supreme Court in Lewis v. WCAB.

The law now, confirmed by the Commonwealth Court of Pennsylvania in Prebish v. WCAB, decided on July 14, 2008, is that the workers’ comp insurance company must have an opinion that the condition of the injured worker has changed since the last termination was adjudicated. This keeps the workers’ compensation insurance carriers from harassing the injured worker by filing an endless stream of Termination Petitions. To learn how to avoid being the victim of continued litigation by the workers’ compensation insurance carriers, contact an experienced Pennsylvania workers’ comp attorney.

June 7, 2008

Expanded Description of Injury No Benefit to Injured Worker, Says Commonwealth Court of PA

by Glenn Neiman

In a very disturbing decision by the Commonwealth Court of Pennsylvania, in Watson v. W.C.A.B. (Special People in Northeast), reported by the Court on May 30, 2008, the injured worker was denied reimbursement of litigation costs, even though the injured worker was successful in part of her Claim Petition.

Claimant filed a Claim Petition three days after her injury (a fact for which the injured worker was chided by the Court, who, seemingly would prefer the injured worker sit and wait with no assurance her claim would ever be accepted by the workers’ comp insurance carrier). An Answer was filed by the workers’ comp insurance carrier admitting Claimant suffered a head contusion in the work injury.

The Workers’ Compensation Judge eventually found the doctors offered by the workers’ comp insurance carrier more credible and denied the wage loss aspect of the Claim Petition (Under the Pennsylvania Workers’ Compensation Act, no wage loss benefits are payable unless there are more than seven days of disability; here the Workers’ Compensation Judge found only three days of disability).

June 4, 2008

PA Injured Worker Can Lose Workers’ Comp Benefits When Receiving a Notice

by Glenn Neiman

Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

June 2, 2008

Supreme Court of PA accepts Appeal on Amending Description of Injury on NCP

by Glenn Neiman

In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

May 26, 2008

Northeast Philadelphia Workers’ Compensation Office Moving to Electronic Filings

by Glenn Neiman

On May 14, 2008, the Workers’ Compensation Section of the Philadelphia Bar Association received an e-mail that all pleadings (including briefs and stipulations resolving disputes between parties) addressed to Workers’ Compensation Judge Aida Louise Harris, in the Northeast Philadelphia Workers’ Compensation Office must be submitted on CD in Microsoft Word format, 12 point font.

Though this new procedure was revoked in a later e-mail on May 19, 2008, this is clearly the direction that office is taking. Indeed, the e-mail revoking the new procedure specifically stated that the procedure was being revoked only because “due to technological issues, the electronic submission initiative cannot be implemented as yet.”

Other courts, in recent years, have been moving to electronic submissions, so this is not a surprising development. We will, of course, keep you up to date if this new procedure does go into effect. Also, be aware that you can review the procedures of any participating Workers’ Comp Judge at the website of the Pennsylvania Department of Labor & Industry.

May 23, 2008

Bankruptcy of Workers’ Compensation Insurer in Pennsylvania Does Not Preclude Claim

by Glenn Neiman

A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.