Pennsylvania Workers' Compensation Lawyer BlogAs mentioned in our blog previously, the Workers’ Compensation office in Allentown, PA, has moved. No longer will hearings be held at 160 Hamilton Street. Now, the Pennsylvania Bureau of Workers’ Compensation has opened up the new Allentown location at 7248 Tilghman Street, Allentown, PA. The new offices feature four hearing rooms, along with several attorney conference rooms and mediation rooms. Our compliments go out to the Bureau on the spacious new quarters.
Notice Given by Injured Worker in PA Need Not be Specific for Award of PA Workers’ Compensation Benefits
Under Section 312 of the Pennsylvania Workers’ Compensation Act, an injured worker must provide notice to his or her employer that he or she “received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.” This notice, under Section 311, must be given within 120 days of the injury, or the claim may be precluded. In reality, giving notice to an employer may not be so simple.
Take, for example, the facts in Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), a decision recently rendered by the Supreme Court of Pennsylvania. The injured worker toiled on an assembly line for many years, repetitively using her hands. Eventually, she began to have pain and swelling in her hands, and her fingers would become “stuck.”
Finally, on January 17, 2005, Ms. Morack told her boss that her hands were hurting so bad, she did not know what to do. The injured worker saw a doctor that same day and got a note keeping her out of work. According to the company policy, Ms. Morack called her employer every day for the first five days she was out, advising the employer each day that she could not work because of the swelling in her hands. She did not specifically tell the employer that the swelling was from her work duties, because she was not sure what caused the problem. A short-term disability application was made, indicating the condition was the result of “sickness” rather than “injury,” since, at that time, Ms. Morack believed her condition was related to pre-existing fibromyalgia, not her work duties.
Seminar – Changing Description of Injury in PA Workers’ Comp
Guiding PA workers’ compensation attorneys in how and why to expand the description of injury in a Pennsylvania workers’ comp case was the topic of the most recent seminar given by one of our partners, Glenn C. Neiman, for Lawline.com on July 22, 2011. Unlike the previous work Mr. Neiman has done for Lawline.com, this recent seminar was streamed live to attorneys across Pennsylvania (and the rest of the Country as well). In addition to discussing the nuts and bolts of changing a description of injury, Mr. Neiman also gave a brief update regarding some recent decisions from PA Courts of interest to the Pennsylvania workers’ comp lawyer community.
“The description of injury is really what drives a workers’ comp claim in Pennsylvania,” Mr. Neiman explained, when asked why this topic is important, “When we look at whether a work injury is fully recovered, or whether an injured worker can go back to work, or whether medical treatment is related to the work injury, we are always looking at the accepted work injury.”
While the seminar was performed live, it will also be added to the Lawline.com catalogue, so other attorneys across PA can learn about this important topic. “Not every firm limits its practice to Pennsylvania workers’ compensation cases like we do,” said Mr. Neiman, “so this seminar is of special benefit to those attorneys who do not handle PA workers’ comp matters on a regular basis.”
Pennsylvania Firefighters Now Protected Against Risk of Cancer Under PA Workers’ Comp
On July 7, 2011, Governor Tom Corbett signed House Bill 797 into law, as Act 46 of 2011, amending the Pennsylvania Workers’ Compensation Act by giving firefighters protection against the risk of cancer. The legislation adds a presumption that cancer suffered by veteran firefighters is related to their work duties. More information can be found in the related press release.
This new law, of course, has been well received by groups associated with firefighters in Pennsylvania, such as Delaware County Firemen’s Association, Pennsylvania Professional Fire Fighters Association, International Association of Firefighters Local 2781 and Firehouse.com.
As attorneys representing injured workers in PA, we applaud the Pennsylvania legislature for passing this measure, and providing support to the brave men and women who put their lives on the line for us every day of the week.
Bulging Disc in Lumbar Spine Can Cause Nerve Problem
Often, physicians who perform Independent Medical Examinations (IMEs), hired by the PA workers’ compensation insurance carrier, seem less than truly independent (I know, shocking, huh?). I have heard IME doctors over the years testify that a bulging disc is a natural finding, one that cannot cause symptoms, and cannot lead to nerve impingement. This, of course, is not the only view, as an article on Laser Spine Institute’s website demonstrates.
I also know another person who would disagree with the view shared by these doctors in the IME community. While Phillies pitcher Roy Oswalt does not have to worry about the Pennsylvania workers’ comp system (unlike most of us, he gets paid whether he works or not), he does have to live with the symptoms of a bulging disc.
As Mr. Oswalt described in this article on Philly.com, the bulging disc is sending pain down his leg. Interestingly, I have also heard IME doctors testify that a nerve being impinged or irritated by a disc (called “radiculopathy” or “radiculitis”) will cause pain along the entire course of the nerve, down to the foot. In this case, Mr. Oswalt noted that his pain has gradually gone all the way down the leg. Since he has no reason to magnify his symptoms (considering IME doctors would say injured workers always have a financial motivation to lie), this information from Mr. Oswalt is both reliable and persuasive.
PA Workers’ Comp Memorial Video a Moving Tribute and Reminder
As PA workers’ compensation attorneys, we appreciate the efforts of the Philadelphia Area Project on Occupational Safety and Health (PhilaPOSH), a group who is devoted to the safety and protection of workers across Southeastern Pennsylvania, as well as into New Jersey and Delaware.
PhilaPOSH conducted an event this past Memorial Day, to remember those workers who had been killed while performing their jobs. In addition to remembering those who had fallen, the organization also strove to increase the focus on making worksites across PA safer, so the list of fatal work injuries can be decreased, if not eliminated. A moving video, with clips from this event, is available on Youtube.
PA Workers’ Compensation Reform Bill Signed into Law
On June 30, 2011, Governor Tom Corbett signed House Bill 440, bringing the measure into law. While the Pennsylvania Bureau of Workers’ Compensation labelled this a “reform bill,” it appears it will have no real impact on injured workers in PA. Rather, the aim of the new law is to expand the availability of workers’ compensation insurance coverage to small businesses.
Offer of Modified Work to Injured Worker in PA Need Not Describe Duties
One of the ways a workers’ compensation insurance carrier in PA can be relieved of paying workers’ comp benefits to an injured worker in Pennsylvania is by showing that employment is “available” to the injured worker, as described previously in our blog.
Prior decisions by both the Supreme Court of Pennsylvania, and the Commonwealth Court of Pennsylvania, make clear that if an injured worker would not reasonably be aware of the duties involved with a modified job offer, the job offer is not sufficient. Typically, if the injured worker has not previously worked in the position to which he is being offered, “the employer must provide information related to the job duties and classification so that the claimant can make an informed decision regarding whether the position offered is within (his or) her capabilities.” [Quoting language in the decision of Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Mem’l Hospital) from the PA Supreme Court].
This brings us to the recent decision by the Commonwealth Court of Pennsylvania in Vaughn v. Workers’ Compensation Appeal Board (Carrara Steel Erectors). Here, Mr. Vaughn was a union ironworker, who injured his back while performing heavy duty work. Some time after the injury an “Independent” (Which we know is anything but) Medical Examination (IME), released Mr. Vaughn to light duty work.
Injured Worker in PA Not Entitled to Rate of Higher Paying Job
Under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is disabled from his or her job due to a work injury, the injured worker is entitled to workers’ compensation wage loss benefits. This rate is based on the earnings the injured worker had prior to the injury. Those earnings are called the Average Weekly Wage (AWW).
Assuming the injured worker had been working for his or her employer for more than a year before the work injury, the AWW is calculated by taking the average earnings of the injured worker for each of the four 13-week quarters immediately before the injury. The lowest quarter is disregarded and an average is taken of the remaining three quarters. The resulting number is the AWW. The workers’ compensation rate is typically two-thirds of the AWW (if the AWW is very low, the rate could be as high as 90%, if the AWW is very high, the rate is capped at a certain level each year).
Sometimes, these calculations result in a terrible injustice. The most egregious example was fixed by the Supreme Court of Pennsylvania in their decision in Hannaberry HVAC v. Workers’ Compensation Appeal Board (Snyder Jr.) in 2003. There, the injured worker was a part-time employee for most of the year preceding the injury. Shortly before the accident, the injured worker had graduated school and become a full-time employee, earning a wage four times what he had been earning. The accident (in which he was pinned under a forklift) left the injured worker a quadriplegic.
Contradictory Medical Testimony Cannot Support Finding of Fact by Workers’ Comp Judge
When a PA workers’ compensation claim is denied by the insurance carrier, it is up to the injured worker to file a Claim Petition. In litigating a Claim Petition before a Workers’ Compensation Judge (WCJ), the injured worker bears the burden to prove that he or she suffered an injury, which was related to his or her job, and was rendered disabled by such injury.
It is the WCJ who makes the critical determination of who is credible in this litigation. Neither the Workers’ Compensation Appeal Board (WCAB), nor the Pennsylvania system of Courts, can substitute their opinions on credibility of witnesses. However, the testimony of the credited witness must be “unequivocal.”
This area was highlighted recently by the Commonwealth Court of Pennsylvania in Potere v. Workers’ Compensation Appeal Board (KEMCORP). Here, the WCJ found the Independent Medical Examiner (IME; in reality, a Defense Medical Examiner [DME]) credible, and denied the Claim Petition filed by the injured worker. The WCAB affirmed.