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Back in July, we warned about potential legislation which is being pushed by the Pennsylvania Chamber of Commerce, and PA insurance carriers, to reform the Pennsylvania Workers’ Compensation System. We discussed several areas which we anticipate will be targeted. Proposed legislation is likely to appear in early 2013.

One area we did not mention seems to be getting more traction. That is the process of Utilization Review (UR), the tool either party can use to have a determination made as to whether the medical treatment at issue is reasonable and necessary. As the process now stands, on appeal from an initial UR, a Workers’ Compensation Judge (WCJ) considers the UR determination made by the Utilization Review Organization (URO). The WCJ is not bound by the determination made by the URO. This makes sense, since other evidence is required to determine whether treatment is reasonable or necessary, predominantly the testimony of the injured worker.

The proposal being raised by the insurance industry and the Chamber of Commerce appears to be that the WCJ would be bound by the determination of the URO, effectively making the UR reviewer the ultimate finder of fact, a role the PA Workers’ Compensation Act strictly leaves to the WCJ. Moreover, since the UR reviewer only assesses records, and never actually examines the injured worker personally, the injured worker would effectively be removed from the entire evaluation. This result would be ludicrous, given that whether the treatment relieves symptoms or provides greater function to the injured worker is, and should be, a critical element to determine whether medical treatment is truly reasonable and necessary.

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As mentioned here previously, Glenn C. Neiman, Partner at Brilliant & Neiman LLC, was featured in a seminar yesterday in Center City Philadelphia. The seminar was presented by renowned CLE provider Lawline. While Lawline typically specializes in internet CLE programs, this presentation was live (as well as webcast). The program, discussing updates in PA workers’ comp law as well as trends in Pennsylvania workers’ compensation, was done with Lawline’s program attorney, Kyle Robinson, in an interview format. The program will shortly be added to Lawline’s online course catalog, where attorneys from around the Country will have access.

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As we have previously discussed on this blog, generally speaking, Pennsylvania workers’ compensation benefits are available to every totally disabled injured worker, regardless of whether that injured worker has legal status to work in this Country or not. The issue of legal status does matter, however, when the injured worker retains some ability to perform gainful employment.

Last year, the Commonwealth Court of Pennsylvania decided Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz), finding that the legal status of an injured worker cannot be proven by a workers’ comp insurance carrier solely by having a Workers’ Compensation Judge (WCJ) take a negative inference because the injured worker refuses to answer questions regarding his legal status.

The Supreme Court of Pennsylvania accepted appeal of this case, and recently heard oral arguments from the respective attorneys. As always, we will advise you when a decision is rendered by the Court.

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Loyal readers of our blog know that it can be very difficult to have a psychological injury accepted as compensable in Pennsylvania workers’ compensation. However, what you may not realize is that psychological injuries are divided into three classes, and only one of those classes carries this higher burden of proof.

Under PA workers’ comp, a psychological injury is referred to as either mental/physical, physical/mental or mental/mental. The first meaning a mental stimulus causes a physical injury (like stress causing a heart attack), the second meaning a physical injury causes a mental injury (like depression from chronic pain), and the third meaning a psychological stimulus causes a psychological injury.

Only the mental/mental class has that increased burden of proof. As we have discussed in the past, these types of cases require a showing that the mental stimulus comes from an exposure to “abnormal working conditions.” Obviously, then, it would be very beneficial if an injured worker could move his or her case into the physical/mental category. Recently, Commonwealth Court of Pennsylvania addressed the distinction between the two.

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Lawline.com has announced its speakers for the seminar the organization will be holding in Philadelphia on December 13, 2012. Discussing current trends in Pennsylvania workers’ compensation, and providing an update on decisions from PA Courts on such issues, will be Brilliant & Neiman LLC partner, Glenn Neiman. This will be the third speaking engagement for Mr. Neiman with Lawline.com, a well-respected continuing legal education provider. As was done in the previous seminar, Lawline.com’s program attorney, Kyle Robinson, will do an interview-style presentation with Mr. Neiman. The prior effort, from July 2011, was extremely well-received, garnering a 97% recommendation from seminar participants

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The holiday season means many things to many people. To most of us, it means creating lasting memories with friends and family. It means the joys of exchanging gifts and good will. And, of course, it means eating too much of the wonderful food which surrounds us during the holiday season.

To others, it means a chance to trap an unsuspecting injured worker. One investigative firm sent out an e-mail to its potential customers, noting that “Black Friday is the weekend to hire a P.I. for surveillance.” We all tend to overdo things during the holiday season, whether it is shopping or eating. Often, we pay the price for either the next day.

Unfortunately, however, a surveillance tape only shows that day. A Workers’ Compensation Judge (WCJ) will not see the injured worker in bed for the next three days because he or she was trying to live a somewhat normal life for a day. Many in the insurance industry feel that if a worker is disabled, he or she must be bed-ridden. They fail to realize the toll a work injury takes, not only on the injured worker, but on his or her entire family.

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While most employees in PA are covered by the Pennsylvania Workers’ Compensation Act, there are some who are not. One group of employees not covered under Pennsylvania’s system are workers employed by the United States Government. Federal employees are instead covered by the Federal Employees’ Compensation Act (FECA), administered by the Office of Workers’ Compensation Programs (OWCP).

As the PA Workers’ Compensation Act differs from the laws in other States, the Federal Workers’ Comp system is a completely different set of laws. There are major differences in the type and amount of benefits available, as well as in the procedures necessary to obtain such benefits.

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We have learned over the years that one cannot run from technology. Anything that helps us connect better with our community, and with injured workers, is something we will embrace.

In that spirit, we are now on Twitter (@GlennNeiman). This will enable us to post quick tidbits ahead of our blog entries, and, of course, to let you all know when there is a new entry on the blog. We hope our readers will find this to be of use to them.

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Limiting our practice to PA workers’ comp cases, we see all kinds of injured workers, necks, backs, knees, elbows, wrists, ankles, shoulders . . . you name it. One thing that is consistent, unfortunately, is pain. And, a new study says an injured worker may find some relief in an unexpected place.

A recent article on MedPageToday.com addressed a study linking increased knee pain (from osteoarthritis) to a deficiency of Vitamin D. Much more work has to be done, to confirm there really exists such a connection, but as the article notes, if there truly exists a relationship between the vitamin deficiency and the level of pain, this could represent “a safe and inexpensive way of easing the chronic pain of osteoarthritis.”

While osteoarthritis is not necessarily related to trauma, such as that suffered in a work injury, we frequently see injured workers whose work injury aggravated pre-existing (not symptomatic) osteoarthritis, leading to his or her inability to work any longer.

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We were recently asked by an injured PA worker, and not for the first time, “Why is my employer making me see another doctor if I am already being treated by the doctor my employer sent me to?” The answer to the question requires that we look at two different parts of the Pennsylvania Workers’ Compensation Act (Act). Essentially, we are looking at the difference between a “panel physician” and an “Independent Medical Examination (IME)” [More realistically termed a “Defense Medical Examination (DME)” since there is often nothing “objective” about it].

Under the Act, an employer may only be responsible for payment to a medical provider on a “panel posting,” for the first 90 days of treatment, provided the panel posting meets the requirements as contained within the Act. Though there is a widely held belief that an employer controls medical treatment for the first 90 days, this is a vast overstatement, and employers frequently have an improper panel (meaning that the injured worker may be able to treat with any provider, and have the employer pay for such treatment, from the start).

A proper panel posting must contain at least six providers, at least three of which are physicians (the remainder could be therapy facilities or other healthcare providers who are not doctors). No more than four of the six on the posting may be from the same “coordinated care organization” (one could simply say “practice”). This posting must be displayed in a prominent location. The employer must have the injured worker sign an acknowledgement, both at the time of hire and as soon as practical after the injury, that the injured worker is aware of the panel posting. All of these requirements can be found in Section 306(f.1)(1)(i) of the Act. Frankly, very few employers actually achieve all of these requirements (yet, sadly, injured workers are unfairly saddled with treatment at a location chosen by their employer because the injured worker is not aware of his or her rights).

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