Pennsylvania Workers' Compensation Lawyer Blog

June 14, 2019

Brilliant & Neiman LLC join Bucks County Lawyers in Social Event

As proud members of the Bucks County Bar Association (BCBA), the attorneys at Brilliant & Neiman LLC joined other members of the BCBA last night for the annual Judge John J. Rufe Softball Game. Playing for the “seasoned” lawyers team (that is, of course, the most diplomatic way one can say “old”), Glenn Neiman helped secure a win for the team. Dina Brilliant cheered on the team from the safe confines of the bench. This was the first win for the old . . . seasoned . . . lawyer team in three years.

Aside from enjoying the comradery of the event, these types of occasions are important for our attorneys to interact with other attorneys across Bucks County. Since our firm limits its practice to just handling Pennsylvania workers’ compensation cases, we do not handle other legal matters. However, we have occasions when our clients, or people who contact our firm, need an attorney for another matter, whether that is a car accident, divorce or support issues, criminal defense, real estate, bankruptcy, employment law or any other area of law. By being active in the BCBA, we have the luxury of having many fine attorneys in various areas of the law to which we can refer clients.

And, it is not just Bucks County. The attorneys at Brilliant & Neiman LLC are also members of the Lehigh and Northampton County Bar Associations, and attend events for the Philadelphia and Montgomery County Bar Associations. This provides our firm with a rich diversity of attorneys for a referral network, in many areas of the law, and many geographic areas.

June 5, 2019

Brilliant & Neiman LLC Attorneys Attend PA Bureau of Workers’ Compensation Annual Conference

by Glenn Neiman

Our attorneys were out of the office earlier this week, to attend the annual Pennsylvania Bureau of Workers’ Compensation Conference, in Hershey, PA. While we hate to have our attorneys both unavailable to help our clients, we feel it is important for us to attend these seminars. This conference is presented by the Bureau itself, so there is an opportunity to obtain information allowing us to stay current on all topics of interest in Pennsylvania workers’ compensation.

While there are not many attorneys, like us, who represent injured workers in attendance, we think listening in is helpful. Most of the attendees at this conference are not attorneys at all; they are adjusters, risk management and safety officials from all across PA. Additionally, many of the Workers’ Compensation Judges (WCJs) are in attendance. We can hear what these folks are being told regarding different aspects of the PA workers’ compensation system. This can help us anticipate issues and avoid some pitfalls that could pertain to our clients.

Topics addressed at the different sessions ranged from medical issues (including medical marijuana, the future of “telehealth,” and the role of nurse case managers), to internet surveillance, to Workers Compensation Medicare Set-Asides (WCMSAs), to different insights on how WCJs feel about varying issues.

May 29, 2019

PA Workers’ Comp Cannot Be Terminated By Serial Petitions

by Glenn Neiman

Previously, we have discussed “reported” cases versus “non-reported” cases, and how each can be used (the Courts have now started to use the terms “precedential” versus “non-precedential”). Since they are not binding on a Workers’ Compensation Judge (WCJ), we rarely discuss non-precedential (or “non-reported”) cases on our blog. However, when we see a decision in an important area of law, it can be helpful to explore how Courts are treating the law (and the previous cases).

Several years ago, the Supreme Court of Pennsylvania decided the case of Lewis v. Workers’ Compensation Appeal Board (WCAB). This case was critical for the rights of injured workers in Pennsylvania, as it kept the workers’ comp insurance carriers from being able to file Termination Petition after Termination Petition, for little purpose other than to harass and annoy the injured worker. Instead, as logic would dictate, the insurance company would have to show that there was actually a change in the condition of the injured worker before the insurance carrier could win a subsequent Petition for Termination (after litigating, and losing, a previous Petition for Termination).

As we noted on our blog, this was followed by some indication that PA Courts would undermine the concept, and allow a Termination of workers’ compensation benefits, even after litigation of a previous Termination Petition.

May 22, 2019

No Credit For Workers’ Comp Insurer For “Time Served” Before Conviction

by Glenn Neiman

Once an injured worker proves an entitlement to workers’ compensation benefits in PA, only certain things allow a Pennsylvania workers’ comp insurance company to stop paying those benefits. Some of the more common things would be convincing a Workers’ Compensation Judge (WCJ) that the injured worker has fully recovered, has returned to working at pre-injury wages, or has left the labor market for reasons unrelated to the work injury. Another basis for the stoppage of workers’ compensation benefits in PA is incarceration.

Under Section 306(a.1) of the Pennsylvania Workers’ Compensation Act (Act), “Nothing in this act shall require payment of compensation under clause (a) or (b) for any period during which the employe is incarcerated after a conviction . . . “ While this sounds simple, as with many things, there can be disagreements on the application.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the case of Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola). Here, the injured worker was receiving PA workers’ compensation benefits. He was charged with a crime, and could not afford bail. As such, he was incarcerated. This, of course, would not allow a stoppage of workers’ comp benefits, since the incarceration did not come “after a conviction.”

May 8, 2019

We Are The Law Firm For The Injured Worker In PA

by Glenn Neiman

We are not the official workers’ compensation law firm of the NFL. Or of any major sport. What does that even mean? We do not have a slick marketing department, which puts our faces on billboards or TV. What we ARE is the law firm for injured workers. Our focus is not on fancy marketing; it is on delivering the best personal attention to your case.

We do not have multiple paralegals for each attorney, nor do we have more attorneys than you can count. We have two attorneys that will actually handle your case. What does that mean for you? It means that both of our attorneys are experienced and certified as specialists in workers’ compensation law. Each of our attorneys has over 25 years of experience in the field. You will never have your case handled by a junior attorney with little or no experience. You can be confident that every step of your case will be handled by an experienced and qualified attorney.

Some firms have paralegals and assistants handle the day-to-day things on a case. The injured worker doesn’t speak to his or her attorney; the injured worker speaks to the attorney’s “team.” That is not how we operate. At Brilliant & Neiman LLC, one of our two attorneys is personally handling your case. You can speak directly to your attorney to have any concerns addressed or questions answered.

May 2, 2019

Scarring or Disfigurement is Compensable in Pennsylvania Workers’ Compensation

by Glenn Neiman

We were talking to a potential client the other day, and the client mentioned in passing about a scar that she had from the work injury. Like many injured workers, she did not know that a scar can actually be compensable. She believed, as many injured workers do, that one must be disabled to receive any workers’ compensation benefits in PA. This is simply not correct.

We have discussed scarring and disfigurement on this blog in the past. Under the Pennsylvania Workers’ Compensation Act, in Section 306(c)(22), “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment” is compensable, regardless of whether there is or was any disability involved in the work injury. This is one of the few areas of the law (along with determination of penalties) where a Workers’ Compensation Judge (WCJ) has wide latitude to make an award. A WCJ can order payment of anywhere from zero to 275 weeks of benefits for disfigurement.

The three key aspects to a disfigurement, or scarring, claim, is that the disfigurement be “permanent,” that it be “unsightly,” and that it be on the head, face or neck. Generally, we start talking about permanence after about six months. As to “unsightly,” it can be helpful to simply interpret that as “noticeable.” And, as noted, scarring on the back, chest, or an extremity is not compensable – the disfigurement must be of the head, face or neck. The appellate courts in PA have interpreted this to mean the scarring must be above the collarbone.

April 11, 2019

Withdrawal From Labor Market Ends PA Workers’ Comp Wage Loss Benefits

by Glenn Neiman

One of the common questions we hear from injured workers is “What happens if I retire?” or, more than you may imagine, “What happens if I move out of this Country?” In either case, the answer is that your wage loss benefits are placed in serious jeopardy. Medical benefits are not impacted by these things; this is just a risk to wage loss (“indemnity”) benefits.

Normally, to reduce or eliminate workers’ compensation wage loss benefits, the insurance carrier must prove that the injured worker’s condition has changed, such that he or she is physically capable of some kind of work, and that this kind of work is available to the injured worker. The standard is different, however, if the insurance company can prove either that the injured worker has “retired,” or has relocated out of the Country. If they are able to prove one of these things, a Workers’ Compensation Judge (WCJ) can find that the injured worker has withdrawn from the labor market, leading to a suspension of the wage loss benefits. One of the tools we have, as attorneys who represent injured workers, is to show that work is not “available” to the injured worker. In these situations, that is not even relevant.

There are strategies to deal with these situations, provided that the injured worker obtain timely legal advice. This is yet another instance when acting without legal counsel can dramatically impact your rights. Once benefits are suspended in these situations, it can be difficult, if not impossible, for us to fix the problem. The best way to fix the problem, is to avoid it happening.

March 27, 2019

Court Refuses to Allow PA Workers’ Comp Insurer to Avoid Benefits for Work-Related Cancer

by Glenn Neiman

Several years ago, we related that the Pennsylvania legislature passed Act 46, which created a presumption that cancer suffered by veteran firefighters is related to their work duties. This amendment to the Pennsylvania Workers’ Compensation Act was largely cheered by all (other than workers’ comp insurers, of course!). The Supreme Court of Pennsylvania explained the presumption threshold as:

“(A) firefighter-claimant asserting a cancer claim under Section 108(r) of the Act, 77 P.S. §27.1(r), must first establish that he was diagnosed with a type of cancer possibly caused by one or more IARC Group 1 carcinogens.”

As with any legislation, there were differences in how the law should be interpreted. Certainly, we have had litigation regarding the types of cancer involved. But, another area of confusion developed due to the difference in how the law treats career firefighters, as opposed to volunteer firefighters. We discussed the 2017 decision of the Commonwealth Court in Steele v. Workers’ Compensation Appeal Board (Findlay Township) previously in our blog. The dispute in that case boiled down to the requirement that a volunteer firefighter must prove exposure to the carcinogen through reports filed under the Pennsylvania Fire Information Reporting System (PennFIRS).

March 1, 2019

Domestic Service Workers Excluded From PA Workers’ Compensation Act

by Glenn Neiman

As we discuss in our FAQs on our website, not every person who works in the State of Pennsylvania is covered by the PA Workers’ Compensation Act (Act). Certain categories of employees are excluded from the protections of the Act for various reasons. One of those exclusions applies to those employed in “domestic service.” This area was recently addressed by the Commonwealth Court of PA.

In Van Leer v. Workers’ Compensation Appeal Board (Hudson), the Commonwealth Court of Pennsylvania was faced with a case where the injured worker was employed as a caretaker for a woman suffering from mild dementia. The patient with the dementia was the only person in the household. Though the case did not address how, the injured worker suffered very significant injuries.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). After hearing the testimony of the injured worker, the WCJ made the following Findings of Fact:

February 25, 2019

What Does a PA Workers’ Comp Insurance Company Get When an Injured Worker is Released to His or Her Full-Duty Job? Not a Thing!

by Glenn Neiman

Once an injured worker in PA establishes a right to workers’ compensation benefits, such benefits can only be stopped by the workers’ comp insurance carrier under certain circumstances. Two of the most common involve litigation before a Workers’ Compensation Judge (WCJ) – proving to the WCJ that the injured worker is fully recovered from the work injury (termination of benefits), or that work is available to the injured worker at equal to, or higher, wages (suspension of benefits).

An interesting circumstance happens when an injured worker is released back to his or her pre-injury position, without restriction, but the job (for some reason) is no longer available. What relief is available to the PA workers’ comp insurance carrier in this situation? Assuming the injured worker has not fully recovered from the work-related injury, there is no relief available to the insurance company.

This issue came up in a recent unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner) [We should note, as we have covered in a previous blog, that an “unreported” case can be cited to a WCJ for persuasive purposes, but it is not binding on a WCJ, as a “reported” decision would be]. Here, the injured worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy. In fact, spinal fusion surgery was required. However, the medical treatment was successful, and the injured worker was released back to the time of injury job, without restriction. There was not, however, a full recovery from the work-related injury.

Pennsylvania Workers’ Compensation Lawyer Blog