Pennsylvania Workers' Compensation Lawyer Blog

May 24, 2013

Law Protecting Firefighters Creating Workers’ Comp Insurance Issues

As we discussed previously, premiums for workers’ compensation insurance in Pennsylvania have been reduced for the second consecutive period. Apparently, all is not well for the insurance carriers in PA however. It appears a change in the law has made several insurance carriers refuse to cover fire departments in Pennsylvania.

In 2011, the PA legislature passed Act 146. As we discussed on our blog, this law created a presumption that cancer in a firefighter was related to his or her employment for the purposes of workers’ compensation benefits (meaning the burden of proof would fall to the employer to prove the cancer was not related to work activities). The period within which a claim can be reported was also significantly extended.

According to a recent article on Firehouse.com, these changes to the Pennsylvania Workers’ Compensation Act made several insurance carriers drop the workers ‘ compensation coverage for fire departments in PA. Of course, communities or townships can self-insure for workers’ comp, or they, like any employer, can turn to the State Workers’ Insurance Fund (SWIF), a quasi-government insurance carrier which will offer coverage to any employer in PA.

May 17, 2013

Can Potential Carpal Tunnel Syndrome be Predicted?

by Glenn Neiman

In the Pennsylvania workers’ compensation system, we frequently see cases involving carpal tunnel syndrome (CTS). As many of you know, this condition occurs when the median nerve is entrapped in the wrist. There are many potential causes of CTS, including familial history, certain medical conditions, trauma and certain physical activities. CTS can also occur “idiopathically” (without a known cause). Frequently, we see litigation regarding whether CTS in any given case is related to the work activities.

Are we all at the same risk to develop CTS? According to a recent study published in the Archives of Physical Medicine and Rehabilitation, and referenced in The Wall Street Journal recently, the size and shape of a person’s hand and wrist can show whether that person is predisposed to the development of CTS. Specifically, if a person has a “short and wide hand with square wrist matching to narrow and deep tunnel entrance,” that person has an increased likelihood for developing CTS. Of course, that leads us into an examination of what causes CTS, and whether CTS in any given case can be accepted as a work-related injury.

According to the University of Maryland Medical Center, “Work that involves high force or vibration is particularly hazardous (to developing CTS), as is repetitive hand and wrist work in cold temperatures.” They also note that repetitive use of the hands and wrists can cause repetitive stress disorder, overuse syndrome and chronic upper limb pain syndrome. Similarly, the National Health Service in the United Kingdom relates that CTS can be triggered by activities with “strenuous grip, repetitive wrist flexion and exposure to vibration,” including motions associated with manual labor. This is consistent with the view of the National Safety Council, who noted that “(r)epetitive manual work tasks requiring a forceful grip and use of vibrating tools can damage the median nerve in the arm, contributing to CTS.”

May 7, 2013

Certified as Specialists in the Practice of Workers’ Compensation Law

by Brilliant & Neiman

One of the most difficult decisions faced by an injured worker in PA is how to decide who to hire as their worker’s compensation attorney. Many sites, or publications, have a list of attorneys they tout. Maybe they are called “Super” attorneys or “Awesome” lawyers, or some other cleaver marketing name. What standards do they use? Are they objective? Is there really merit in being named? Who knows. Now, however, there is an objective, regulated selection process authorized by the Pennsylvania Supreme Court.

As we mentioned before, Pennsylvania has created a Workers’ Compensation Law Certification process. First, an attorney is screened to be certain he or she possesses the requisite experience to sit for the examination (a minimum of five years practicing in workers’ comp is required). Specific cases must be provided, including briefs and written arguments. The attorney must certify that at least half of his or her practice is devoted to PA workers’ comp matters. Only then is the attorney even allowed to sit for the examination test.

This test was given for the first time in March, 2013. The grueling four hour assessment covered every aspect of PA workers’ compensation law, thoroughly testing each applicant’s knowledge of the workers’ comp system. Both multiple choice and essay questions were involved.

May 1, 2013

Brilliant & Neiman LLC Involved in Mediation Working Group with Bureau

by Brilliant & Neiman

Mediation is a growing area in Pennsylvania workers’ comp. As we have previously discussed, a mediation is when an independent party, in this context usually a Workers’ Compensation Judge [WCJ] (other than the assigned WCJ), meets with the parties in an informal setting in an effort to resolve the differences between the parties. The ultimate goal is to achieve a settlement to the case (usually done by “Compromise & Release Agreement”).

Since we at Brilliant & Neiman LLC work with injured workers every day, having constant contact with the Pennsylvania workers’ compensation system, we are well-versed in most aspects of how the system functions from day to day. We are proud that our knowledge and experience will be used by the PA Bureau of Workers’ Compensation, as the Bureau adjusts the system to change with the times.

Since the start of “Mandatory Mediation,” added to the Pennsylvania Workers’ Compensation Act in the 1996 amendments to the Act, the system has been relatively stagnant. Recently, the Bureau has sought a small working group to evaluate the mediation system and see what, if any, changes could be beneficial to the mediation process.

April 24, 2013

Failed Drug Test Damaging to PA Injured Worker

by Glenn Neiman

The general rule in Pennsylvania workers’ compensation is that if a work injury makes you unable to work, you should be entitled to workers’ compensation benefits. One of the exceptions to this rule is when the loss of wages is due to some reason unrelated to the work injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Brewer v. Workers’ Compensation Appeal Board (E2 Payroll & Staffing Solutions). The Claimant injured his low back when he was pinned by a forklift. As is their known policy, the employer had the hospital take a drug test of Claimant after the injury. Claimant failed the drug test, and admitted he used cocaine and marijuana a few days before the work injury. Since the employer has a zero-tolerance policy on drug use, Claimant was fired immediately.

Claimant filed a Claim Petition, seeking payment of his lost wages. In the litigation, the doctor secured by the workers’ compensation insurance carrier testified that the incident at work had caused a herniated disc in the lumbar spine, and that this damaged disc was irritating a nerve (a condition called “radiculopathy”), but that Claimant was capable of working at a light duty position. The employer had a representative testify that light duty work would have been available to Claimant, if he had not been terminated for failing the drug test. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended wage loss payments, finding the loss in earnings to be unrelated to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

April 16, 2013

Retirement in Workers’ Comp Again Addressed in PA

by Glenn Neiman

Fresh from the PA Supreme Court decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), comes a decision from the Commonwealth Court, again addressing the interplay between the concept of “retirement” and the continued entitlement to workers’ compensation benefits in Pennsylvania.

In the matter of Fitchett v. Workers’ Compensation Appeal Board (School District of Philadelphia), the primary issue was actually procedural, rather than whether the “retirement” was proven, or which side had the burden of proof. Though other Petitions were pending, the relevant one was a Petition for Termination, alleging that Claimant had fully recovered from her work injury. Notably, in an “interlocutory” order (a temporary order, not usually subject to appeal), the Workers’ Compensation Judge (WCJ) granted Defendant an offset for both a pension and Social Security Retirement (SSR) benefits being received by the Claimant.

While testifying in defense to the Petition for Termination, Claimant was asked whether she considered herself retired. Claimant had responded, “Well, I’m collecting retirement.” In subsequent testimony, she clarified that if not for her work injuries, she had planned to continue working. When asked directly whether she was retired, however, Claimant responded, simply, “yes.” Again, Claimant later clarified that she meant she had to leave her employer due to her injuries. Claimant testified she had not looked for any work, and forms from her treating doctors, wherein Claimant described her occupation as “retired,” were offered into evidence.

April 12, 2013

Workers’ Comp in Michigan – Guest Blog

by Glenn Neiman

Our blog generally contains information regarding workers’ compensation in Pennsylvania, since that is the only type of case we handle. It is interesting, however, for our readers to learn about how the workers’ compensation systems in other States compare to that in PA. To that end, we are proud to present a guest blog from Alex Berman, Esquire, who practices workers’ compensation law in MI:

Guest Blog Post: Beware The Labor Market Survey

I want to thank Glenn Neiman for the opportunity to write today’s blog post. It’s always a pleasure to speak with an attorney who has devoted his practice to helping people who are injured at work.

April 8, 2013

PA Workers’ Comp Insurance Rates Decline Again

by Glenn Neiman

Sometimes, one thing naturally follows another. Day follows night. Spring follows Winter. The relationship between the two things makes sense. Then we enter politics, and, as usual, logic and reason seem to trail behind.

We mentioned in previous postings that both the Pennsylvania insurance industry, and the Chamber of Commerce, has been heavily lobbying PA representatives and senators for reform to the Pennsylvania workers’ compensation system. Specific proposals and issues have been raised. One could reasonably draw from this angst that PA workers’ compensation insurance rates were steadily rising out of control. Indeed, one would imagine, given the effects of inflation, that the rates must be significantly increasing beyond normal inflationary levels.

It is most curious, then, that the Insurance Commissioner in Pennsylvania, Mike Consedine, recently proclaimed that workers’ comp insurance rates would actually DECREASE 4.01 percent as of April 1, 2013. For those imagining that this decrease must have followed some enormous increase, Commissioner Consedine noted that this “is the second workers’ compensation decrease in a row.”

April 2, 2013

Pain Relief For the Injured Worker Coming?

by Glenn Neiman

As attorneys who limit their practice to representing injured workers in Pennsylvania, we see many different conditions which affect various parts of the body. We see injuries to the feet, ankles and knees, the hands, arms and shoulders, the neck, back and the head. The constant? Well, that’s easy – pain. Often severe and devastating, the vast majority of injuries we see cause various degrees of pain.

Given our experience in dealing with folks in debilitating pain, we always have an eye on medical developments and research, especially when it comes to new ways of dealing with pain. And that is what makes the concept of a wearable pain patch being developed by Thimble Bioelectronics, and reported on Gizmag.com, so interesting.

This device is not your typical pain patch, like Duragesic or Fentanyl, which delivers regulated dosages of pain medication through the skin. This new device would actually be a miniature TENS unit (Transcutaneous Electrical Nerve Stimulation). A TENS unit delivers low voltage electrical stimulation, which provides relief without the use of heavy duty narcotic medications, which contain dangerous side-effects.

March 27, 2013

Suspension for “Retirement” Not So Easy for PA Workers’ Comp Insurance Carriers; PA Supreme Court Affirms Robinson

by Glenn Neiman

As readers of our blog surely know by now, the relationship between the “retirement” of an injured worker and continued entitlement to Pennsylvania workers’ compensation disability benefits is a frequent topic in appellate litigation. The decisions in both the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania are regular enough that we, as attorneys who limit our practice to representing injured workers in PA, need to stay informed to best protect our clients.

Back in 2010, we discussed the decision of the Commonwealth Court of PA in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). In that case, the Commonwealth Court established that the taking of a disability pension, as opposed to a retirement pension, was not an indication of retirement. Therefore, the Court held that the workers’ compensation insurance carrier still had to prove that work was available to the injured worker in order to obtain a suspension of her workers’ compensation disability benefits. In 2011, we reported that the workers’ comp insurance carrier had filed a petition for review with the Supreme Court (Requested “allocatur”) and the Court granted the allowance of appeal.

Recently, the Supreme Court of Pennsylvania issued a decision, affirming the decision rendered by the Commonwealth Court. However, whereas the Commonwealth Court drew a distinction between a “disability” pension (as in this case) and a “retirement” pension, the Supreme Court held that the taking of a pension, regardless of what type of pension, does not (by itself) trigger any type of presumption (or in other words, a workers’ comp insurance carrier must prove more than that the injured worker took a pension to show that the injured worker “retired,” to obtain a suspension of the workers’ compensation disability benefits).

Pennsylvania Workers’ Compensation Lawyer Blog