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.
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.
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).
The injured worker in Pennsylvania already has enough to worry about. Is my back injury a bulging or herniated disc? Is the nerve root involved (called “radiculitis” or “radiculopathy”)? Now, the injured worker in PA, and throughout the Country, has to worry about whether the treatment for his or her back injury is endangering their life.
According to CBS News, as of yesterday, 323 people have contracted fungal meningitis as a result of receiving a tainted epidural steroid injection. Of those 323 cases, 24 patients have died. Epidural steroid injections are routinely provided to injured workers for back pain, often radiating to the patient’s leg. The epidural steroid injection is designed to reduce the swelling and inflammation in the area around the nerves, in an effort to provide relief to the patient. While the vast majority of the victims in this outbreak did contract the fungal meningitis from an epidural steroid injection into the spine, a handful of patients actually developed the meningitis from an injection into a joint (such as the hip, knee, shoulder or ankle).
This situation is currently being monitored by the Centers for Disease Control and Prevention, as well as by some of the individual States involved, such as New Jersey.
The internet is a competitive arena for many things, including legal information. There are excellent resources all across the World Wide Web for various workers’ compensation issues, including Pennsylvania workers’ comp matters. That is why we take true pleasure and appreciation in again being selected by LexisNexis as one of the Top 25 Blogs for Workers’ Compensation and Workplace Issues for 2012. At the risk of sounding immodest, we are especially proud, since this is our third consecutive such recognition, and fourth in the past five years.
We again thank LexisNexis, and our loyal readers, for this providing us the opportunity to serve. We will make every effort over the ensuing months, and years, to show that we are worthy of this recognition.
Once workers’ compensation benefits in PA are started, usually by issuance of a Notice of Compensation Payable (NCP), under the Pennsylvania Workers’ Compensation Act, generally a workers’ comp insurance carrier cannot stop the payment of such benefits without a Supplemental Agreement, a Notice of Benefits Offset or a judicial order. Typically, if a workers’ comp insurance carrier uses “self help” and stops the payment of benefits in this situation, without proper basis, penalties will be assessed.
In a recent decision by the Commonwealth Court of Pennsylvania, however, the majority of the judges permitted such an unlawful stoppage of benefits with no consequences. The injured worker in Krushauskas v. Workers’ Compensation Appeal Board (General Motors) hurt his shoulder and an NCP was issued. While receiving workers’ compensation benefits, the injured worker accepted a retirement pension. We already know from prior case law that acceptance of a retirement pension can lead to a suspension of workers’ compensation wage loss benefits (a switching of burdens which continues to annoy and confuse us, but that is another blog entry for another day).
Rather than file a Petition for Suspension, which would almost certainly have been successful, the workers’ comp insurance carrier simply stopped paying the workers’ compensation benefits without any legal basis to do so. The injured worker then filed a Petition for Penalties.
It has certainly been a busy time for Workers’ Compensation Judges (WCJs) in Pennsylvania. We just recently discussed filling the vacancy in the Allentown Workers’ Compensation Hearing Office, and now we have learned of three additional WCJs on the move.
Leaving the bench will be The Honorable Nancy Goodwin, who had been stationed in the Philadelphia Workers’ Compensation Hearing Office, and The Honorable Thomas Hines, from the Malvern (Montgomery County) Workers’ Compensation Hearing Office. We have further learned, all of this unofficially, that The Honorable Kelly Melcher will be moving from the Reading Workers’ Compensation Hearing Office to the Malvern office to replace Judge Hines. We have not heard any information regarding a replacement for Judge Goodwin.
We wish Judge Goodwin and Judge Hines well in their retirements, and we thank them for their years of dedicated service to the PA workers’ comp community. We also congratulate Judge Melcher on the move, and wish her well in Malvern.
Since our main office is located in Bucks County, PA, we decided it would be nice for us to be a good corporate citizen to the area. To that end, Brilliant & Neiman LLC is proud to announce that we have joined Adopt-A-Highway and have specifically adopted an area on Route One South, in the Feasterville, Bensalem, Trevose area. Our spot is just north of the Pennsylvania Turnpike interchange, and south of the I-95 interchange. This, of course, is near our Trevose office, located at Five Interplex Drive, Suite 205, Trevose, PA 19053.
We also have a satellite office in Allentown, in the Sovereign Executive Offices, 609 Hamilton Street, Allentown, PA 18101. For injured workers in other parts of Central and Southeastern Pennsylvania, we have meeting locations spread throughout the region, for the convenience of our clients.
The Pennsylvania Workers’ Compensation Act, in Section 306(b)(3), requires that an insurance carrier provide notice (in the form of a “Notice of Ability to Return to Work”) to an injured worker when the carrier receives information that the injured worker is able to work in any capacity. This notice is generally a threshold requirement before the carrier can move to modify or suspend workers’ compensation benefits based on a job offer or a Labor Market Survey.
Therefore, if a Notice of Ability to Return to Work is not issued, typically, the carrier cannot prevail on a Petition to Modify or Suspend workers’ comp benefits. There are exceptions to this rule, including a situation where an injured worker has already returned to gainful employment. Recently, the Commonwealth Court of Pennsylvania dealt with another situation where the injured worker did not receive the Notice of Ability to Return to Work before a job offer was made.
In Smith v. Workers’ Compensation Appeal Board (Caring Companions, Inc.), the injured worker’s attorney received a medical report releasing the injured worker to light duty work. Since there was currently litigation (Claim Petition) pending, the attorney then properly sent a copy of this report to the workers’ comp insurance carrier. A job offer letter was sent to the injured worker after the receipt of this report, but a Notice of Ability to Return to Work was not issued.
While we limit our practice to representing injured workers in Pennsylvania workers’ compensation cases, We could not help but notice a recent PA unemployment compensation case decided by the Commonwealth Court of Pennsylvania.
Unemployment compensation benefits are generally available in Pennsylvania when an employee involuntarily loses his or her job, provided there was no “willful misconduct.” What constitutes “willful misconduct,” as is so often in the law, varies from case to case.
In the case of Brown v. Unemployment Compensation Board of Review, the employee was a battery machine operator. When he placed a sign on a defective battery stating “do not use,” the sign had been ignored. He then put signs on defective batteries, stating, “To the moron who can’t read do not use this,” “do not use this battery” and “Not charging you moron.” The employee was promptly terminated for his use of the word “moron.”
Pennsylvania Workers' Compensation Lawyer Blog