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As attorneys who limit their practice to representing people who have been injured at work in PA, we often have the misfortune to see a potential new client who has already lost his or her case with another attorney.

Previously, in a blog entry, we have discussed the appeals process in Pennsylvania workers’ compensation. As discussed in that blog entry, often there is nothing we can do to help the injured worker at that point. The Workers’ Compensation Appeal Board (WCAB) can usually only disturb the opinion of a Workers’ Compensation Judge (WCJ) if the WCJ committed an error of law. Simply disagreeing with the WCJ is not sufficient.

This principle was tested somewhat recently in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Wilson), decided by the Commonwealth Court of Pennsylvania. Here, the injured worker was hurt and the Notice of Compensation Payable (NCP) described the injury as “thoracic strain.” The injured worker sought to amend the description of the injury to include a cervical strain, an aggravation of her pre-existing cervical degenerative disc disease and a rotator cuff tear. The workers’ compensation insurance carrier agreed to accept the cervical strain, but refused to accept the other conditions.

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Dealing with victims of work-related injuries every day, we understand that many of our clients need pain medications just to get through their days. Some of those prescriptions, however, are going to be changing, in an effort to make them safer.

Many pain medications combine an opioid, such as codeine, oxycodone or hydrocodone, with acetaminophen. In high doses, acetaminophen can cause liver damage, or even liver failure. Trying to combat these dangerous side effects, the U.S. Food & Drug Administration recently announced a limit on the amount of acetaminophen that can be used in these pain medicines (no more than 325 milligrams).

This change will be phased in over a period of three years, and no shortages of pain medicine are anticipated. Over the counter medications containing acetaminophen would not be effected by this action. If you have any questions about this action, or anything regarding the medications you take, you should always discuss such concerns with your doctor or pharmacist.

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Since our entire practice is limited to representing injured workers in PA workers’ compensation cases, we occasionally get a call from an injured worker who has already lost their case with another attorney, and wanting us to handle an appeal. Unfortunately, frequently, there is nothing we can do to help at that point.

Once a Workers’ Compensation Judge (WCJ) renders a decision, provided it is a “reasoned decision” (generally that is defined as a decision which is capable of appellate review), only an “error of law” can be properly appealed. The determinations of credibility, and findings of fact, rendered by the WCJ are not usually subject to appeal.

This concept was recently reinforced by the Commonwealth Court of Pennsylvania in Shannopin Mining Company v. Workers’ Compensation Appeal Board (Sereg). Essentially, when a WCJ makes findings of fact, and explains the basis for determinations of credibility, an appellate Court, whether the Workers’ Compensation Appeal Board (WCAB) or the Pennsylvania Court System, cannot “second guess” those determinations of credibility, or substitute their own determinations of credibility. Even if the appellate body feels they would have decided the case differently, the determinations of the WCJ are final and binding. This, of course, highlights the importance of litigating the case before the WCJ.

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We have discussed psychological injuries in the Pennsylvania workers’ compensation system in previous blog entries. We have even discussed our own cases in this area. The theme throughout this aspect of the Pennsylvania Workers’ Compensation Act is the requirement that the psychological injury be caused by “abnormal working conditions.”

Whether the injured worker was exposed to “abnormal working conditions” depends on the type of job the injured worker performs. What may be common and expected in one field, may be abnormal to another.

As you may expect, police officers, firemen, rescue workers and other first responders are held to a higher standard, since they can be expected to face conditions far more traumatic or upsetting than an accountant or a secretary, for example.

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According to the American Academy of Orthopedic Surgeons, recent advances in hip replacements have made the procedure easier, and made the results last longer. All of the news is not good, however, as these advances may come with potential consequences.

Metal-on-metal hip replacements can dramatically improve a patient’s quality of life, and return an injured worker to gainful employment. Unfortunately, the metal-on-metal hip replacements can also lead to cobalt toxicity. Patients getting metal-on-metal hip replacements may require some monitoring, or testing, after the procedure, to make sure cobalt levels are not unusually elevated.

The type of hip replacement performed, and, of course, whether a patient should even get a hip replacement at all, are discussions we encourage our clients to have with their orthopedic surgeons.

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**Update – This opinion was vacated (withdrawn) by the Commonwealth Court of Pennsylvania on February 24, 2011. The en banc (all of the Judges) Court will review the case and issue a new decision**

Under the Pennsylvania Workers’ Compensation Act, an employer or, more likely, workers’ compensation insurance carrier, has 21 days to accept or deny a workers’ comp claim in PA. An acceptance can be accomplished by issuing a Notice of Compensation Payable (NCP), Notice of Temporary Compensation Payable (TNCP) or an Agreement for Compensation. A rejection of a claim requires that a Notice of Denial (NCD) be filed (there are, of course, nuances and exceptions, but this is generally the case).

The Supreme Court of Pennsylvania held back in 1983 (Beissel v. Workers’ Compensation Appeal Board (John Wanamaker, Inc.)) that, to obtain a termination of workers’ comp benefits, the workers’ compensation insurance carrier must prove there was a change of condition after the NCP was issued. But, what if an injured worker recovers before an NCP can be issued?

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Under the Pennsylvania Workers’ Compensation Act, to be eligible for PA workers’ comp benefits, the disabled person must be an “employee.” Often, this is obvious and not even in question. There are times, however, when a case turns on whether, in fact, the injured person was truly an “employee.” We most often see this situation when the issue is whether the injured worker was an “employee” or an “independent contractor.”

The analysis, to determine whether someone was an “employee” or an “independent contractor,” depends on the facts in each case. It frequently becomes a very complicated issue, requiring multiple depositions and extensive litigation.

At least some of this situation will be easier to determine, now that the Pennsylvania Legislature passed Act 72 of 2010, on October 13, 2010 (This is listed as House Bill 400). The law will take effect 2/11/11. While this law applies only to the construction industry, we expect that to be read broadly, to include roofing, plumbing and other related areas.

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In PA workers’ comp, when an injured worker returns to employment, there is a change in the workers’ compensation benefits he or she receives. If the injured worker is again earning the wages he or she earned before the work injury, then workers’ comp benefits are stopped completely (“suspended”). If the injured worker is earning less than before the injury, as a result of the injury, then workers’ comp benefits may only be “modified” to a lower rate.

Often the key to whether modified workers’ compensation benefits continue, in the case of an ongoing loss in wages, is whether the ongoing loss in wages is actually a result of the injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Trevdan Building Supply v. Workers’ Compensation Appeal Board (Pope). In this case, the employee ruptured his biceps tendon while unloading building material. Eventually, the injured worker was released to resume his regular duty employment, without any specific restriction, though his doctor noted that he may require some assistance with heavy lifting (which was also the case, on occasion, prior to the injury).

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As noted in the previous blog posting, the PA Workers’ Compensation Act mandates that an Impairment Rating Evaluation (IRE) must be performed using the “most recent edition” of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The most recent edition is the Sixth Edition, published around January 2008.

The Pennsylvania Bureau of Workers’ Compensation, in early 2008, stated that it would accept an IRE performed under the Fifth or Sixth Editions until September 1, 2008, to give IRE physicians a chance to become certified under the new edition.

Whether this pronouncement by the PA Bureau of Workers’ Compensation was consistent with the Pennsylvania Workers’ Compensation Act was addressed by the Commonwealth Court of Pennsylvania in Stanish v. Workers Compensation Appeal Board (James J. Anderson Construction Co.).

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In Pennsylvania workers’ comp, as in workers’ compensation systems throughout the U.S., the American Medical Association’s Guides to the Evaluation of Permanent Impairment is being used to assess disability. In other words, an injured worker’s condition and ability to work is being determined by referencing a book, distancing any subjectivity at all. The Guides are now in the Sixth Edition (some States use a specific edition of the Guides, while others, like PA, use the most recent edition).

As discussed in a previous blog entry, PA has a ridiculously high standard to maintain total disability. In Pennsylvania, an injured worker can be deemed only “partially disabled” if they do not reach 50% “whole body impairment.” For point of comparison, as an example, a “very severe,” “approaching total functional loss,” of the cervical spine can reach a maximum whole body impairment of 30%. For the lumbar spine, the whole body impairment can be as high as 33%. Obviously, a devastating injury to the neck or low back, by these figures, will fall short of 50%. It is completely unrealistic, and just plain mean spirited, however, to suggest that an injured worker with this degree of impairment is capable of employment.

Fortunately, the debate is living on, at least on the Federal level. On November 17, 2010, testimony was given by Emily A. Spieler, J.D., Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston, Massachusetts, before the Subcommittee on Workforce Protections Committee on Education and Labor in the

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