Pennsylvania Workers' Compensation Lawyer Blog

January 28, 2011

Metal Hip Replacements May Wear Better, But Have Dangerous Potential Effects

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.

January 18, 2011

PA Workers’ Comp Benefits Suspended Before NCP issued

by Glenn Neiman

**Update – This opinion was vacated (withdrawn) by the Commonwealth Court of Pennsylvania on February 24, 2011.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?

January 11, 2011

PA Workers’ Comp Law Expands Definition of “Employee”

by Glenn Neiman

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.

January 3, 2011

Wage Loss in PA Workers’ Comp Must be Related to Work Injury to be Compensable

by Glenn Neiman

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).

December 20, 2010

IRE in PA Workers’ Comp Must Use Most Recent Edition of AMA Guides

by Glenn Neiman

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.).

December 10, 2010

AMA Guides Poor Indication of Disability in PA Workers’ Comp Matters

by Glenn Neiman

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

December 2, 2010

Hearing Loss in PA Not Compensable if Less Than 10% Binaurally

by Glenn Neiman

It is funny how, after relatively few PA workers’ compensation hearing loss cases were decided by the Commonwealth Court of Pennsylvania, now, all of a sudden, it seems like every case decided by the Court is on this issue.

In our previous blog post, we mentioned that an injured worker in PA must have at least a 10% “binaural” (both ears) hearing impairment to receive any workers’ compensation benefits for a work-related loss of hearing. Since the statute clearly states that the loss of hearing is to be evaluated by looking at the effect on both ears, what happens if the loss is just in one ear? Recently, the Court addressed this very issue in Duncannon Borough v. Workers’ Compensation Appeal Board (Bruno).

Here, the injured worker, a police officer, was in a motor vehicle accident while in the scope and course of his employment. As a result of this accident, in addition to other injuries, he suffered a 31.88% hearing impairment to his right ear. Calculated “binaurally,” the hearing impairment was below the 10% threshold. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the injury to the single ear did not need to be calculated binaurally. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

November 24, 2010

Hearing Loss in PA Workers’ Comp

by Glenn Neiman

Though, generally speaking, Pennsylvania’s workers’ compensation system is based purely on wage loss, there are exceptions to the rule. With most work-related injuries in PA, workers’ comp is paid only if the injured worker is disabled from his or her job by the work injury.

One large exception is the category of injuries called “specific loss.” This encompasses when an injured worker permanently loses the use of certain body parts or senses. In this event, benefits are paid under the Pennsylvania Workers’ Compensation Act, whether or not there is any disability resulting from the injury. This covers fingers, toes, hands, feet, arms and legs, in addition to the senses of sight and hearing.

Loss of hearing has had many changes in PA workers’ compensation law over the years. In fact, the entire way hearing loss is compensated under PA workers’ comp was changed with Act 1, passed in 1995. For all hearing loss since then, the amount of workers’ compensation benefits paid varies according to the percentage of binaural (both ears) hearing impairment. To receive any workers’ comp benefits, there must be at least a 10% hearing impairment; while, on the other hand, an impairment over 75% is deemed to be a complete loss of hearing.

November 17, 2010

Utilization Review Petition in PA Workers’ Comp Allows New Evidence

by Glenn Neiman

When either party to a PA workers’ compensation case wants an opinion on whether medical treatment is reasonable and necessary (and this is usually requested by the workers’ comp insurance carrier, rather than the injured worker), the procedure is to file a Request for Utilization Review (UR).

The Pennsylvania Bureau of Workers’ Compensation then assigns a Utilization Review Organization (URO) randomly from a list. Following submission of records, and frequently a personal statement from the injured worker, the URO issues a Utilization Review Determination. The party against whom the URO finds has the right to appeal, by filing a Petition for Review of Utilization Review Determination.

This Petition will be assigned to a Workers’ Compensation Judge (WCJ). The litigation of a Petition for Review of Utilization Review Determination is called a “de novo” proceeding. That translates to, roughly, “from the start.” In this situation, it means the parties are not limited to the evidence before the URO; instead, the parties can submit whatever evidence to the WCJ that they desire.

November 9, 2010

PA Workers Comp and Retirement – Again?

by Glenn Neiman

The impact of pensions and “retirement” on PA workers’ compensation cases seems to be a frequent issue visited by the Commonwealth Court of Pennsylvania. Just last month, we told you about the decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) [Where the Court found that a “disability” pension does not create a presumption that an injured worker has voluntarily left the work force, while a “retirement” pension does].

Now, the Commonwealth Court of Pennsylvania has decided the Day v. Workers’ Compensation Appeal Board (City of Pittsburgh) case and further complicated the matter. A basic reading of the case could be consistent with the decision in the Robinson case. In Day, the Court found the injured worker took a “regular” pension from the employer, and applied for (and received) Social Security benefits. Further, the Court found that the injured worker testified he was capable of some kind of work, but he was not looking for work. In this case, unlike in Robinson, the Court found the injured worker did retire (and, as such, his workers’ compensation benefits should be suspended).

The problem is what does not appear in the case (and we only know this from the workers’ compensation attorney who litigated the case before the Commonwealth Court of Pennsylvania). The Social Security “benefits” being received by the injured worker were DISABILITY benefits, not RETIREMENT benefits, as the Court made it sound. Also, the pension at issue was not a regular (old age) pension, but a DISABILITY pension. Based on the true facts of the case (which, again, do not appear in the written opinion), one would think the same result should have been reached as in Robinson, denying the Petition for Suspension.

Pennsylvania Workers’ Compensation Lawyer Blog