Workers Compensation Litigation

May 19, 2008

Mandatory Mediation in PA Workers Compensation

On November 9, 2006, the most recent amendment to the Pennsylvania Workers’ Compensation Act, known as Act 147 of 2006, was signed into law. Several of the provisions of Act 147 were designed to quicken the litigation process in PA workers’ comp. One of those provisions created what is known as “Mandatory Mediation.”

Mediation, generally speaking, is a process where an independent person meets with the parties to a dispute and helps the parties reach a resolution to their quarrel. This is a process used in all types of litigation, and even in disputes outside of litigation. Usually, this is a very informal process. The mediator will meet with the parties separate and together, working to try and bring them together on common ground. There is no court reporter present, and things said in mediation are not admissible in the litigation (encouraging the parties to be honest about the strengths and weaknesses of their position).

Mediation has been used in Pennsylvania workers’ compensation matters as long as I can recall. In the past, mediation only happened in PA workers’ comp when the parties so requested. The process was entirely voluntary, and did not occur that often.

May 15, 2008

Job Referrals Must Be Actually Available to PA Workers’ Compensation Claimant

by Glenn Neiman

Experienced Pennsylvania workers’ compensation attorneys frequently are involved in cases where an injured worker, no longer able to perform his or her pre-injury job, is referred to other jobs in the community by a vocational counselor, at the request of the workers’ compensation insurance carrier. As lawyers who limit our practice to PA workers’ comp, we love to see cases reduce the power of the workers’ compensation insurance carriers to abuse this process.

Recently, on May 12, 2008, the Commonwealth Court of Pennsylvania decided PA Department of Corrections v. WCAB (Zvara). In this case, the claimant, who does not drive, was referred to five jobs, which were said by the workers’ compensation insurance carrier to be within the physical limitations of claimant. Claimant did not apply for any of the jobs (Often, the failure to apply for any of the referred jobs is nearly certain to cause the case to be lost). In this situation, however, the Court found that the workers’ compensation insurance carrier did not meet its burden of proof. Specifically, the workers’ compensation insurance carrier failed to prove public transportation was compatible with the hours of the offered jobs, or that the prospective employers would modify the hours of the jobs to accommodate the schedules of public transportation. The mere fact that the referred jobs were accessible by public transportation, without more, was not enough. Since the workers’ compensation insurance carrier did not meet its burden of showing jobs “available” to the claimant, the burden never shifted to claimant, to prove he or she applied for each job in good faith. As such, the Petition for Modification was denied.

May 13, 2008

Specific Loss Benefits Require Medical Evidence in PA Workers’ Comp

by Glenn Neiman

An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

May 8, 2008

Workers’ Compensation Appeal Process in Pennsylvania

by Glenn Neiman

Even when an injured worker receives a decision from the Workers’ Compensation Judge (WCJ) in Pennsylvania, the case is not over. Either side may appeal the decision to the next level, the Workers’ Compensation Appeal Board (WCAB). Such an appeal must be filed within 20 days of the decision of the WCJ.

An appeal must allege that the Workers’ Compensation Judge committed an “error of law” or that the decision issued by the Judge is not a “reasoned decision.” Simply disagreeing with the decision is not a proper basis of appeal. An appeal cannot challenge who the Judge believed (called “determination of credibility”), since this is solely at the discretion of the Judge.

The WCAB schedules oral argument at various locations throughout the year. At the time oral argument is made, the WCAB also expects a brief to be filed by the appealing party (though a party can request additional time to submit a brief).

May 6, 2008

Employer Need Not Show Job Not Available to Injured Worker in PA

by Glenn Neiman

One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

April 29, 2008

Impairment Rating Evaluation (IRE) in PA Workers’ Compensation

by Glenn Neiman

To answer an often asked question, in Pennsylvania, there is no limit to how long an injured worker can receive total disability workers’ compensation benefits. However, as a practical matter, it is difficult to receive total disability benefits in PA for more than two years. After an injured worker in Pennsylvania has received total disability benefits for 104 weeks, the workers’ compensation insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE).

An IRE is somewhat different than an Independent Medical Examination (IME), as the doctor who performs an IRE is selected by the Pennsylvania Bureau of Workers’ Compensation (the workers’ compensation insurance carrier selects the doctor in an IME). The doctor who performs the IRE will examine the injured worker and review records. Subsequently, the doctor will decide what percentage the injured worker is impaired from the work injury. This percentage is determined by guidelines developed by the American Medical Association.

If the injured worker is found to be less than 50% impaired by the work injury, the workers’ compensation insurance carrier may be able to have the status of the disability changed from “total” to “partial.” While this change does not effect the amount of workers’ compensation benefits the injured worker receives, it does put a time limit on how long the benefits can be received. An injured worker in PA can only receive partial disability benefits for a maximum of 500 weeks.