As scheduled, the Workers’ Compensation Automation and Integration System (WCAIS) went live for the Pennsylvania Bureau of Workers’ Compensation on September 9, 2013. Having been in on the ground floor of this massive undertaking, we watched this transition with great interest. While we are excited with the possibilities this new system will offer, the change in systems did not start without some issues.

For several days after the launch, the system was shut down. Since the previous system had been stopped, in anticipation of WCAIS starting, this caused the workers’ comp system in PA to grind to a halt. Fortunately, WCAIS does appear to now be functioning (in fact, today we received our first Notices of Hearing using the system). Whether the system is fully functional is unknown to us.

Problems do remain to be addressed. One Workers’ Compensation Judge (WCJ) told us that there is no functioning scanner in that workers’ compensation hearing office. This means that no evidence received by a WCJ in that office can be entered into the system. A WCJ in another hearing office advised parties to use bench orders when pursuing a Compromise & Release (settlement), as that WCJ was not sure when the system would allow WCJs to issue decisions through WCAIS.

We at Brilliant & Neiman LLC are honored to announce that the Small Business Institute for Excellence in Commerce (SBIEC) has awarded our firm with the 2013 Pennsylvania Excellence Award. According to the press release:

“Each year the SBIEC conducts business surveys and industry research to identify companies that have achieved demonstrable success in their local business environment and industry category. They are recognized as having enhanced the commitment and contribution of small businesses through service to their customers and community. Small businesses of this caliber enhance the consumer driven stature that Pennsylvania is renowned for”.

We are obviously humbled and honored by being selected for this award, and we strive to serve our clients at the highest level every day, to make sure we are worthy of such recognition. It is this kind of recognition which reinforces our decision, from our firm’s creation, to limit our practice to simply representing injured workers in Pennsylvania workers’ compensation matters.

Sadly, we see many catastrophic injuries which occur on the job. While all such tragic situations are devastating to the family of an injured worker, the most devastating must be the cases where the worker is actually killed by the work injury. Though justice is important in every case, somehow it just seems that much more important when the injured worker is not here to fight for him or herself.

When a worker has a fatal injury, the key question is whether the incident at work was a “substantial contributing factor” in causing the death. Sometimes, the issue gets a bit confusing when some other medical condition, having nothing to do with work, also plays some role in the situation. Recently, in Manitowoc Co., Inc. and Sentry Insurance v. Workers’ Compensation Appeal Board (Cowan), the Commonwealth Court of Pennsylvania was confronted with such a case.

Here, the worker was killed when he fell about six feet from a crane platform. A witness described that the worker was on the platform and, while crouching, his eyes rolled back, and he fell off the platform striking his head on the floor. The worker initially had a pulse, but then stopped breathing. He was then resuscitated and transported to the hospital, where he passed away. An autopsy concluded that the cause of death was “cardiac dysrhythmia due to mitral valve prolapse.”

As we mentioned before, both of the partners of Brilliant & Neiman LLC, Dina Brilliant and Glenn Neiman, were invited to appear on a television show hosted by Injured Workers of Pennsylvania. This show was aired live on August 19, 2013, and broadcast throughout the Berks County region of PA. The website for Berks County Television has a copy of the show in its archives, and it can be viewed on the internet by clicking here.

We at Brilliant & Neiman LLC thank Injured Workers of Pennsylvania for giving us this opportunity to speak to the public on issues regarding workers’ compensation in Pennsylvania. The primary topic was the status of House Bill 1636, which would eliminate choice of doctor for all injured workers in Pennsylvania. One of the jobs we, as attorneys representing injured workers, have is to educate the public, so injured workers know their rights under the Pennsylvania Workers’ Compensation Act.

Previously, we have discussed when the Commonwealth Court of Pennsylvania has addressed whether an employee was in the “scope and course” of his or her job at the time of the work injury. This issue has once again risen on appeal.

In the case of Trigon Holdings, Inc. v. Workers’ Compensation Appeal Board (Griffith), the injured worker was a supervisor in a machine shop. After he made sure his guys were set up, and the machines were all running properly, he told them he would be in another room for a few minutes. Five minutes later, his left thumb was caught in a machine while he was polishing a part for his child’s go-cart, severely injuring the thumb. As a result of the thumb injury, the injured worker was disabled from his job.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). The injured worker, and witnesses he offered, testified that employees at the machine shop were permitted to work on personal things at the shop, and this was something done on a frequent basis. The general manager of the company testified that this action was never permitted and was totally unacceptable. In granting the Claim Petition, the WCJ found the testimony of the injured worker, and his witnesses, more credible than of the general manager. Specifically, the WCJ found that “a small temporary departure from work does not break the course of employment[,] and that an incident necessary to constitute a break in the course of employment must be of a pronounced character.'” On appeal, this decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

While an injured worker in Pennsylvania generally cannot sue his or her employer for causing a work injury (since Pennsylvania workers’ compensation is an “exclusive remedy”), the injured worker is able to sue a third party for causing a work injury. We see this situation with car accidents, slip and fall cases and products liability cases.

When an injured worker in PA does sue another party for causing his or her work injury (called a “third party”), and is awarded money, the workers’ compensation insurance carrier is entitled to be repaid money that it paid in medical expenses and wage loss benefits (this is called “subrogation”). Ultimately, unless the attorney negotiates something better (which is what happens normally), the injured worker ends up with no money from this third party case.

Not every law suit involving a work injury creates a right to subrogation, however. For example, a PA workers’ compensation insurance carrier is not entitled to subrogation in a medical malpractice award, if the work injury was not aggravated by the malpractice. The key is whether the award in the third party case is a direct result of what caused the disability.

As we mentioned previously, the Pennsylvania Legislature is planning another attack on injured workers in PA in 2013. This notion has now taken the form of House Bill 1636, which seeks to forever deny injured workers in PA the right to select their own physician.

Under the current provisions of the Pennsylvania Workers’ Compensation Act, if an employer follows the correct procedures and posts a proper list of at least six health care providers (at least three of which must be physicians), then the employer is only responsible for payment of medical treatment with the listed panel providers for the first 90 days of the injury.

If this Bill becomes law, however, an employer may list as few as a single Coordinated Care Organization (CCO) on a panel. Then, the injured worker would have to treat with this single organization, not for the first 90 days, but for the entire duration of the injury. That’s right – the legislature seeks to deny injured workers in PA from ever getting to select their own physicians.

Say you are coming home from work and you are injured; are you entitled to workers’ compensation benefits in Pennsylvania? As we have mentioned previously, generally, an employee is not eligible for injuries suffered in the commute to or from work (known as the “Going and Coming Rule”). Recently, the Commonwealth Court of Pennsylvania addressed this issue again in Mansfield Brothers Painting and Selective Insurance Company of America v. Workers’ Compensation Appeal Board (WCAB).

A union painter was assigned to work full-time for his employer at the University of Pennsylvania. While on his way home from the job one day, the painter fell near the train station, and hurt his left shoulder, neck and back. A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ).

The facts were not in dispute. The painter was hired to work at a specific building on the Penn campus, which only had a single entrance. He elected to commute to work by train. On the walk to the train station, about 150 feet from the exit of the building in which he worked, the painter fell on an uneven slate walkway and suffered these injuries. The fall took place while the painter was still on Penn’s campus.

We are excited to report that Dina Brilliant and Glenn Neiman have been invited to appear on the television program aired by Injured Workers of PA on Berks County Television, to discuss matters of interest to injured workers throughout Pennsylvania. This will be on a live call-in program on August 19, 2013 from 7:30 pm to 8:30 pm. We invite our clients, and anyone else out there wanting to discuss workers’ compensation issues, to call in during the program. The number is 610-378-0426.

Once an injured worker in Pennsylvania has an accepted work injury (whether by decision of a Workers’ Compensation Judge (WCJ), or the issuance of a Notice of Compensation Payable or Agreement for Compensation), such benefits can only be suspended for a limited number of reasons. A return to gainful employment, with no loss of wages, is obviously the most desirable reason. Other reasons can include incarceration after a conviction and proof of available employment at the pre-injury wages.

An additional reason, though rarely seen, is an intervening injury, not related to work, which renders the injured worker totally disabled. The case that first established this principle was Schneider, Inc. v. Workers’ Compensation Appeal Board (WCAB), decided by the Pennsylvania Supreme Court in 2000. This case involved a unique set of facts, and it was hoped the principle would be limited to facts so extreme.

The injured worker in the Schneider case was receiving benefits for a work injury involving his head and neck. He was then involved in a serious non-work-related incident which left him with severe brain damage and paralysis. A Petition for Suspension was granted, stopping the workers’ compensation benefits, without any requirement that the workers’ compensation insurance carrier show any jobs were available within the restrictions of the work injury. The WCJ found the opinion of the insurance carrier’s medical expert credible, that the injured worker was capable of some type of work (from the standpoint of the work-related injuries), though totally (and permanently) disabled by the non-work-related incident. The Court reasoned that it would be an “exercise in futility” to require the insurance company to show job availability, since the injured worker was totally disabled by a non-work-related cause.

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