Pennsylvania Workers' Compensation Lawyer Blog

April 11, 2019

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

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If they are able to prove one of these things, a Workers’ Compensation Judge (WCJ) can find that the injured worker has withdrawn from the labor market, leading to a suspension of the wage loss benefits.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.

February 14, 2019

PA Workers’ Comp Insurer Assessed Penalty for Non-Payment of Medical Bills

by Glenn Neiman

When an injured worker in PA gets medical treatment for his or her work injury, and a bill is submitted to the workers’ compensation insurance carrier, the insurance carrier has three choices. They can pay the bill (within 30 days), initiate the Utilization Review process (to challenge whether the treatment is reasonable and necessary), or it can dispute relatedness by filing a Petition to Review Medical Treatment. Or, it would seem, there is a fourth option – just ignore the bills. This one, however, often ends poorly for the workers’ comp insurance carrier.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Mason v. Workers’ Compensation Appeal Board (Philadelphia AFL-CIO Hospital Association and Rodriguez), where this issue was addressed. It is important to note, right from the start, that this is an “unreported” decision. Previously on this blog, we mentioned that “unreported” decisions are not binding on a Workers’ Compensation Judge (WCJ), but can be persuasive and are still sometimes helpful to see how the Court views an issue.

In this case, the injured worker twisted his low back while doing his job. The injury was accepted as “low back strain.” The injured worker began to receive medical treatment, and the providers coded the bills for diagnoses of “lumbosacral strain/sprain, lumbosacral radiculopathy, and lumbar HNP (herniated nucleus pulposus).” The workers’ compensation insurance company elected to not pay the medical bills, taking the position that the injured worker did not prove the work injury consisted of more than a low back strain. Since the treatment was for diagnoses other than the accepted diagnosis, the insurance carrier felt the medical treatment was unrelated to the work injury.

February 11, 2019

Too Many Total Knee Replacements Being Performed?

by Glenn Neiman

As far back as 2008, our blog reported on a marked increase in the number of total knee replacements that were being performed. This trend seems to have been continuing, and, perhaps, not for the best. According to a recent article in The Intelligencer, a rather high number of patients who elected to have a total knee replacement performed, were dissatisfied with the results. According to the article:

“Research suggests that up to one-third of those who have knees replaced continue to experience chronic pain, while 1 in 5 are dissatisfied with the results. A study published last year in the BMJ found that knee replacement had “minimal effects on quality of life,” especially for patients with less severe arthritis.”

In Pennsylvania workers’ compensation, a total knee replacement is a procedure with see with some regularity. Whether the injured worker had a preexisting arthritic condition, which was aggravated by a work injury, or whether the work injury itself led directly to the procedure, a total knee replacement is not uncommon in a workers’ comp case.

February 5, 2019

When the First Day of Disability is not the First Day of Disability – Welcome to the Wacky World of PA Workers’ Comp

by Glenn Neiman

In litigating a workers’ compensation case in Pennsylvania, we fight about many aspects of a case. Certainly, we have had disputes over when an injured worker was actually “disabled” from his or her job. As highlighted in a recent decision by the Commonwealth Court of PA, though, sometimes the exact date on which disability begins can have great consequence.

In Valley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), the injured worker hurt his back while performing his job, and was taken to the hospital by ambulance, on Friday, March 27, 2015. The employer paid him for the day of the injury, on the paystub calling it “COMP TM.”

On April 13, 2015, the workers’ compensation insurance carrier filed a Notice of Temporary Compensation Payable (NTCP). As we have previously discussed in our blog, this document allows an insurance carrier to begin to pay workers’ compensation benefits while still investigating a claim. The NTCP is valid for a maximum of 90 days (if it is not revoked within those 90 days, it converts into a full Notice of Compensation Payable (NCP), which cannot be revoked). If the NTCP is revoked within those 90 days, the claim can be denied in full.

January 25, 2019

PA Commonwealth Court Sheds Light on Preexisting Conditions and Average Weekly Wage Calculation

by Glenn Neiman

When the Commonwealth Court of Pennsylvania decides a case in the PA workers’ compensation arena, we often get some insight into an aspect of the law, or an interpretation of a section of the Pennsylvania Workers’ Compensation Act (Act). Rarely do we see a case address two areas of significance. So, when the Commonwealth Court issued a decision recently in the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.) case, we were very excited. We get to talk about preexisting conditions as well as calculation of the Average Weekly Wage.

Let us start first with the issue of preexisting conditions. There is no doubt that you are entitled to workers’ compensation benefits in PA if your work duties, or work injury, aggravate a preexisting condition, whether that underlying condition is work-related or not. We see this often with asthma, allergic reactions, arthritis and degenerative disc disease in the neck or back. Indeed, this is such a basic concept, and comes up so often, that it is covered in the Medical FAQ section of our website.

Where things get messy is when the workers’ compensation benefits will be terminated. As described in a previous blog post, generally speaking, the Courts will say benefits stop when an injured worker returns back to baseline with the underlying preexisting condition (even if that baseline leaves the injured worker advised not to return to his or her regular job, due to a fear of another aggravation). The exception to the rule is when the underlying condition is also work-related, as in the previous blog about the Little case. In that situation, workers’ comp benefits continue, since it is the work injury (not a non-work-related underlying condition) which prevents a return to the regular employment.

January 17, 2019

An Injured Worker Being Released to Light Duty

by Glenn Neiman

Okay, so you get injured at work. You get treatment with a doctor, maybe have a course of physical therapy, then you start to feel a little better. You are not all better yet, and you cannot go back to your regular job, but maybe you could do some kind of work. So the doctor releases you to light duty work. What then?

First, let’s talk about what does not happen. If you are receiving workers’ compensation benefits, as you should be if you are disabled by the work injury, then benefits cannot just be stopped (unless you are being paid under a Notice of Temporary Compensation Payable, which can be revoked within 90 days). Unless work is shown to be available to you (within your physical restrictions), temporary total disability benefits should continue.

Work could be shown to be “available” to you with your employer, perhaps at a modified version of your former job, or a different job entirely. Or, work could be shown to be available to you with a totally different employer. This can be done through a “Labor Market Survey” or “Earning Power Assessment.” In this situation, the light duty job need not actually be offered to you, it just needs to be generally available (like listed in the “help wanted” section in a newspaper or online). There is also a tool used by workers’ compensation insurance carriers called “funded employment,” where the insurance carrier actually pays you to work at a charity.

December 18, 2018

One Way to Help Injured Workers is to Prevent Work Injuries

by Glenn Neiman

On our blog, and our website, we talk of how to help the injured worker, both through legal rights under the Pennsylvania Workers’ Compensation Act, and through news and developments in the medical field. But, maybe the most helpful thing is to avoid the work injury in the first place.

While typically, we keep things local to Pennsylvania work injuries, we were contacted by a site in the United Kingdom, which has a guide to help reduce the occurrence of injuries in the workplace. Obviously, some of the legal and governmental things that are mentioned are not true for PA, but the guide does have some things employers can consider as they try to reduce the frequency of work injuries.

According to the site:

Pennsylvania Workers’ Compensation Lawyer Blog