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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.

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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.

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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.

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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.

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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.

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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.

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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.”

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Several months ago, we reported that four PA Workers’ Compensation Judges (WCJs) had stepped down from the bench, while only two new WCJs had been named by the Pennsylvania Bureau of Workers’ Compensation. This left a difficult void in some hearing offices, such as that in Allentown.

We are now pleased to report that a new WCJ has been named to the bench in Allentown. She is The Honorable Cathleen A. Sabatino, who most recently was practicing as a Senior Associate at the law firm of Del Collo & Mazzanti LLP in Paoli, PA. Since graduating from Villanova University School of Law, Ms. Sabatino has been active in the Workers’ Compensation section of the Philadelphia Bar Association where she has served as chair of the section’s annual charity auction. In her community, Ms. Sabatino volunteers as an adult mentor with Spring-Ford Community Theatre’s Youth Ensemble (She holds a B.A. in Theatre from DeSales University).

It is with warm thoughts that we greet The Honorable Cathleen A. Sabatino, and we wish her well in her new career as a WCJ in Allentown.

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For some time now, the Pennsylvania Bureau of Workers’ Compensation has been working on a new electronic system to make interacting with a Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) a more efficient and accessible process. The Bureau is unveiling the process, known as the Workers’ Compensation Automation and Integration System (WCAIS), in two stages.

The first stage, which went “live” on September 17, 2012, deals just with the WCAB. As the Bureau stated, with this release:

“Parties will be able to file appeals, petitions and documents online with the WCAB and to upload documents, and search, view and obtain information on the status of appeals in WCAIS.”

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Settling a workers’ compensation case in PA, generally referred to as a “Compromise & Release,” is a big decision. There are many factors which go into not only the value of the case, but whether settlement is even advisable. The advice of an attorney who is experienced with PA workers’ comp cases can be very valuable. This goes for the settlement itself, as well as the documents carrying out the settlement.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Hoang v. Workers’ Compensation Appeal Board (Howmet Aluminum Casting, Inc.). In this case, the injured worker settled his case (by executing a Compromise & Release Agreement). Sometime after the settlement, the injured worker learned that his treating doctor had an outstanding bill for over $37,000.00.

An appeal of the Compromise & Release Agreement could not be filed (since one only has 20 days to file such an appeal), so the injured worker filed Review and Penalty Petitions, seeking payment of this medical bill. The Workers’ Compensation Judge (WCJ) noted that the Compromise & Release Agreement failed to state that the workers’ compensation insurance carrier would be responsible for any medical bills. Since this is a somewhat common statement in a PA workers’ comp settlement, the WCJ called this “telling.” The injured worker argued there was a “mutual mistake of fact,” so the settlement should be reopened. Ultimately, the WCJ denied the Petitions, finding that the workers’ compensation insurance carrier did not violate the Pennsylvania Workers’ Compensation Act because the Compromise & Release Agreement did not require payment of this bill. No mutual mistake of fact was seen by the WCJ. The decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

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Contact Information
Philadelphia & Surrounding Areas
260 W Street Rd
Warminster, PA 18974
Phone: (215) 638-7500
Fax: (267) 803-6298
Trevose
5 Neshaminy Interplex Dr, #205
Trevose, PA 19053
Phone: (215) 638-7500
[Formerly (215) 244-8101]
Fax: (267) 803-6298
Lehigh Valley
609 Hamilton Mall
Allentown, PA 18101
Phone: (610) 740-1002
Fax: (267) 803-6298

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