Pennsylvania Workers' Compensation Lawyer Blog

June 6, 2014

Supreme Court Vacates Keene Decision, but Commonwealth Court Reaches Same Conclusion on Remand

We previously discussed the decision in Keene v. Workers’ Compensation Appeal Board (Ogden Corp.). Here, the Commonwealth Court of Pennsylvania reversed the Workers’ Compensation Appeal Board (WCAB), which had reversed the Workers’ Compensation Judge (WCJ). Essentially, the Court had found that the workers’ comp insurance carrier had failed to prove the injured worker had “voluntarily removed herself from the labor market.”

Subsequently, after the Supreme Court of Pennsylvania decided the City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) case in 2013, the Supreme Court vacated the decision of the Commonwealth Court in Keene, and remanded back to the Commonwealth Court to reconsider the decision in light of the Robinson case.

Upon remand, in a recent decision, the Commonwealth Court of Pennsylvania again reversed the WCAB, and again found the workers’ comp insurance carrier had failed to prove the injured worker had “voluntarily removed herself from the labor market.” This result is not surprising when one considers that the decision in Robinson also found that the injured worker had not “retired.” Indeed, it seems a bit odd that the Supreme Court even vacated the decision in Keene to begin with – the previous decision seemed perfectly consistent with Robinson anyway. Regardless, the result is again comforting to injured workers, as it is more difficult for a workers’ comp insurance carrier to stop benefits merely by alleging that an injured worker retired or voluntarily left the labor market.

June 4, 2014

Work Injury in NY Found Not Subject to PA Workers’ Comp

by Glenn Neiman

You probably knew that almost any injury at work which takes place in PA can lead to benefits under the Pennsylvania Workers’ Compensation Act (other than those employees who work for the Federal Government, U.S. Military, or in the maritime or railroad industries). But, did you know that, under certain circumstances, one can receive PA workers’ comp benefits for an injury which takes place in a State other than Pennsylvania?

This is called “extraterritorial jurisdiction,” and can happen when one of three situations apply. Either the injured worker’s employment is “principally localized” in Pennsylvania, the injured worker is working under a contract of hire made in PA in

employment not principally localized in any state, or the injured worker is working under a contract of hire made PA in employment principally localized in another state whose

May 27, 2014

Time to File UEGF Claim in PA Not Triggered Until Injured KNEW of Insurance Status

by Glenn Neiman

A frequent topic of blog entries here is the Uninsured Employers Guaranty Fund (UEGF), which steps in for an employer who (in direct violation of Pennsylvania law) fails to carry PA workers’ compensation insurance. There are many hoops through which an injured worker must jump successfully to obtain benefits from the UEGF.

The PA Workers’ Compensation Act was amended in 2007 to create the UEGF. Under this scheme, when an injured worker knows his or her employer does not have Pennsylvania workers’ comp insurance, he or she must first file a Notice of Claim against the UEGF, then file a Claim Petition against the UEGF. There are time limitations within this process which can derail an otherwise compensable claim, making this area very dangerous for the injured worker who does not have an attorney.

For example, under the Act, an injured worker has 45 days from when he or she “knows” that his or her employer failed to carry workers’ comp insurance. This time limit can be devastating to a case, as was the situation in Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Lyle and Walt & Al’s Auto & Towing Service). Here, the injured worker, a mechanic, suffered a compression fracture of his thoracic spine while doing his job on July 14, 2008. The injured worker filed the Notice of Claim against the UEGF on October 7, 2008, a few days after receiving a letter from the PA Bureau of Workers’ Compensation, suggesting his employer may have not had insurance coverage.

May 19, 2014

More Movement of PA Workers’ Compensation Judges

by Glenn Neiman

It now is appearing to be a refreshing change in the way the Pennsylvania Bureau of Workers’ Compensation communicates changes in the staffing of the workers’ comp hearing offices across the State. Not long ago, we learned of changes among Workers’ Compensation Judges (WCJ) either through the grapevine, or from the mouths of the WCJs directly involved. Lately, however, much to our delight, the Bureau has begun to communicate news of additions and transfers of WCJs to the attorneys who practice in the area.

Given the communication from the Bureau, we can now advise you folks that Pennsylvania has two new WCJs, Erin Young and Audrey Timm, both of whom will be assigned to the Philadelphia Workers’ Compensation Hearing Office (Southeastern District). This will become official on June 2, 2014. We congratulate each of the new members of the judiciary, and wish them well on the bench.

Additionally, we have been advised that The Honorable Debra Bowers, who had been in the Philadelphia Workers’ Compensation Hearing Office, will be transferring to the Montgomery County office (Eastern District). While Montgomery County is one of the few counties with two hearing offices, it is our understanding that Judge Bowers will be assigned to the workers’ comp hearing office located in Malvern (the other is in Dresher). We wish success to Judge Bowers in her new location.

May 16, 2014

Scranton Workers’ Comp Office Moving

by Glenn Neiman

We just received word from the Pennsylvania Bureau of Workers’ Compensation that, as of May 20, 2014, the Scranton Workers’ Compensation Hearing Office will be moving from 400 Spruce Street, Suite 500 in Scranton, down the street to 321 Spruce Street, 3rd Floor, Scranton. The zip code (and the telephone and fax numbers) will remain the same. Anyone with an active case in the Scranton Office (Central District) should make a note of this change to avoid any issues with locating a hearing, or submitting correspondence.

May 15, 2014

Acetaminophen Limited by FDA to Prevent Liver Damage

by Glenn Neiman

For some time now, it has been known, or at least suspected, that high doses of pain-relieving agent acetaminophen can lead to serious liver damage. Acetaminophen is sold over the counter on its own (Tylenol), or as an ingredient in more powerful pain medications, such as Percocet (oxycodone and acetaminophen) and Vicodin (hydrocodone and acetaminophen). Back in 2011, the Food and Drug Administration (FDA) issued a release, taking steps to reduce the risk of liver damage from acetaminophen.

Essentially, the FDA called for two things of medicines containing acetaminophen. First, there must be a clear warning on the box, detailing the potential risk for “severe liver injury.” Second, prescription medications should be limited to a maximum of 325 milligrams of acetaminophen per tablet, pill or capsule.

Recently, the FDA issued a statement that all manufacturers of medications containing more than 325 milligrams of acetaminophen per dosage unit have stopped marketing such products. Additionally, the FDA also issued a statement reminding health care providers not to prescribe such products, and pharmacists to stop dispensing them. In short, the position of the FDA is that “(t)hese products are no longer considered safe by FDA and have been voluntarily withdrawn.”

May 8, 2014

Retroactive Recoupment of Overpayment Allowed in PA Workers’ Comp

by Glenn Neiman

In 1996, major changes were made to the Pennsylvania Workers’ Compensation Act. One of them was providing a credit to the workers’ compensation insurance carrier for unemployment compensation benefits, “old age” (their words, not ours!) Social Security benefits, and pension and severance benefits (to the extent funded by the employer directly responsible for the payment of the workers’ compensation benefits). We occasionally see litigation on when an offset can be taken, and in what amount.

A previous decision by the Commonwealth Court of Pennsylvania in 2007, called Maxim Crane Works v. Workers’ Compensation Appeal Board (Solano), denied a workers’ compensation insurance carrier a retroactive credit for Social Security retirement benefits. This was because the insurance carrier failed to send a form to the injured worker called “Employee’s Report of Benefits for Offsets.” By not sending this form to the injured worker every six months, the Court reasoned, the delay in knowing of the existence of the Social Security retirement benefits was the fault of the insurance carrier. An ongoing credit was permitted, but retroactive was not.

Recently, there was another issue with the application of a retroactive credit, this time regarding a pension plan. In City of Pittsburgh v. Workers’ Compensation Appeal Board (Wright), the injured worker was a firefighter who hurt his right knee fighting a blaze. When the knee did not heal, the injured worker filed for a disability pension from his employer, the City of Pittsburgh. Oddly, because the injured worker first received “Heart and Lung benefits” (a program for police, fire and related professions), the Notice of Compensation Payable was issued about two weeks AFTER the disability pension was requested.

May 5, 2014

Zohydro No More Dangerous Than Other Pain Relievers, Says FDA

by Glenn Neiman

A couple of months ago, we mentioned the FDA approval of a new pain medication, called Zohydro. The same properties which make Zohydro so exciting for the medical profession, and injured workers everywhere, caused great angst among government and addiction officials. Fast and effective relief of severe pain, unfortunately, also can lead to misuse and/or abuse of any substance. These concerns had officials lobbying the FDA to revoke its approval for this medication.

Recently, the FDA issued a Fact Sheet about Zohydro. After taking a close look at the benefits and risks of this medication, the FDA determined that its approval (for its intended usage) was correct. In fact, the FDA issued this release, in part, to correct some misconceptions about Zohydro.

Specifically, the FDA noted that Zohydro is available in varying strengths. Since it is designed to be a time-release medication, though Zohydro contains more hydrocodone than some other products, it is actually less potent than other opiate-based pain relievers currently on the market, as they are immediate-release products. Further, there is evidence that abuse-deterrent properties of some competing medications, such as Oxycontin, are not completely effective at preventing abuse or addiction. The FDA also recognized that, even if Oxycontin has some abuse-deterrent properties not found in Zohydro, Oxycontin “does not meet the medical needs of all people in severe pain.”

May 2, 2014

Using Nanotechnology in Anesthesia for Work Injuries?

by Glenn Neiman

Once limited to a role in science fiction books and movies, nanotechnology is getting ready to invade our lives in beneficial ways. Nanotechnology is the study of, or use of, extremely small things, often at the atomic level. How small? One nanometer is a billionth of a meter, or, in other words, there are 25,400,000 nanometers in an inch. Obviously, we cannot see these things with the naked eye (or even a basic microscope).

Scientists have discussed how nanotechnology could impact medicine for years. Or, at least, they have done so in theory. Nanobots could, in theory, perform surgical tasks in a human body; sort of a real version of the 1966 movie, Fantastic Voyage. Nanotechnology could also assist in prosthetics, medical tools and processes. The possibilities are truly endless.

But, some uses of nanotechnology have left the realm of “theory” and moved into that of “reality.” One recent example is an experiment conducted using an injection of magnetic nanoparticles in place of traditional anesthetic for an ankle block. The study was successful, demonstrating that this process does work (at least in rats). By identifying specific areas in which nanotechnology may benefit us, these researchers are helping other scientists refine realistic use of the nanotechnology.

April 24, 2014

New PA Workers’ Comp Judges Added, Others on the Move

by Glenn Neiman

Sometimes the Pennsylvania Bureau of Workers’ Compensation is hard to figure out. Typically, the hiring or transfer of Workers’ Compensation Judges (WCJs) is done behind the scenes with no formal notice or announcement. We usually discover the news through the grapevine. Indeed, yesterday, a member of the judiciary advised us of some impending transfers and new assignments. Yet, before we could even put pen to (virtual) paper for a blog entry, we were shocked and delighted by the receipt of an e-mail from the Bureau, announcing all of the new WCJ hirings and transfers.

There will be three new WCJs added to the judiciary, all in the Central District. In the Harrisburg Workers’ Compensation Hearing Office, Jeffrey Russell will be the New WCJ. Nathan Pogirski has been added to the bench in the Pottsville Workers’ Compensation Hearing Office, and Daniel Snyder will be taking the bench in the Wilkes-Barre Workers’ Compensation Hearing Office.

Additionally, several WCJs will be transferring to different hearing offices. Judge Kutz will remain in the Central District, moving from Pottsville to Harrisburg. Moving from the Central to the Eastern District, Judge Weyl goes from Harrisburg to Lancaster. Previously in Lancaster, Judge Hetrick will now be in Reading, both in the Eastern District. Also staying in the Eastern District will be Judge Puhala, who moves from Reading to Allentown. Judge Beach leaves the Eastern District’s Allentown office, going to the Philadelphia Workers’ Compensation Hearing Office, located in the Southeastern District. In the Western part of the State, Judge Jones moves from Washington to Pittsburgh, and Judge Santoro journeys across the State, leaving Philadelphia and heading for New Castle.

Pennsylvania Workers’ Compensation Lawyer Blog