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Over the past several years, PA has legalized the use of medical marijuana.  Given the current difficulties in dealing with the opioid epidemic, this would seem to be a reasonable tool to help injured workers (and anyone else suffering from chronic pain) deal with their conditions without the use of narcotic medications.  The controversial status of marijuana, and both PA and Federal law, however, gave us great uncertainty as to whether use of medical marijuana would be covered under the Pennsylvania Workers’ Compensation Act.  Two recent decisions by the Commonwealth Court of Pennsylvania answer this question quite clearly in the affirmative.

Notably, the Medical Marijuana Act [MMA] specifically states that “Nothing in [the MMA] shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.”  Additionally, marijuana remains illegal under Federal law.  These two factors have made payment for medical marijuana under the PA Workers’ Compensation Act (Act) nearly impossible.  Until now.

The two companion cases on this issue of first impression are Appel v. GWC Warranty Corporation (Workers’ Compensation Appeal Board) and Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board).  Both of these injured workers suffered from severe pain, one from multiple back surgeries and the other from several conditions, including “herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease.”

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If you are a football fan, you may have been following the story about Von Miller, star linebacker for the Buffalo Bills.  The story is also of interest, however, to injured workers, including those in PA.  (Parenthetically, we should note that Miller is, in fact, an injured worker, though the Pennsylvania Workers’ Compensation Act has special provisions for professional athletes – that said, the point of this article is that the care given to Miller is not the care received by the typical injured worker in PA).

On November 24, 2022, Miller injured his knee in a game against the Detroit Lions.  Being a star NFL player, Miller had access to the best medical tools possible, and was not required to have any kind of delay.  An MRI done the day after the injury showed the Anterior Cruciate Ligament (ACL) remained intact.  This meant the injury was not as severe as the team and player initially feared.

But, then an interesting thing happened.  Miller underwent exploratory surgery on the knee earlier this week.  A tear of the ACL was discovered, and repaired, during the procedure.  A tear that was not seen on the MRI.  Rather than missing a couple of weeks, suddenly Miller’s season was over.

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The Pennsylvania Bureau of Workers’ Compensation has announced that the Statewide Average Weekly Wage (SAWW), for the fiscal year ending June 30, 2022, is $1,273.00.  Under the PA Workers’ Compensation Act, this means the maximum compensation rate for work injuries sustained on or after January 2, 2023, will be $1,273.00.  This represents a 5.7% increase over the maximum compensation rate for 2022.

 

 

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Under the Pennsylvania Workers’ Compensation Act, once an injured worker establishes that he or she has suffered a work-related injury, benefits continue until something happens.  That “something” may be the injured worker returning to gainful employment, a doctor finding the injured worker fully recovered, or another change in situation.  But, a doctor could not possibly find the injured worker fully recovered before the date a workers’ compensation insurance carrier accepts a claim, right?  According to the Commonwealth Court of PA, that suspicion would be wrong.

In Danielle Wolfe v. Martellas Pharmacy (Workers’ Compensation Appeal Board), the injured worker was employed as a cashier, when on June 10, 2017, a metal gate came down on top of her head.  The workers’ comp insurance company issued a Notice of Temporary Compensation Payable (NTCP, also referred to as TNCP)) on June 28, 2017, accepting a “skull contusion.”  Rather than revoking the NTCP, the insurance carrier issued a Medical-Only Notice of Compensation Payable (MO-NCP) on September 8, 2017.  This stopped wage loss benefits (the Court also dealt with whether the insurer can dispense with the statutorily-required Notice Stopping Temporary Compensation (NSTC), finding that they can).

On August 10, 2017, the injured worker underwent a Defense Medical Examination (DME; humorously referred to by the Court as an Independent Medical Examination (IME) – nothing “independent” about these).  When the DME physician opined that the injured worker had fully recovered, the insurance company filed a Petition for Termination.

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One of the pitfalls in the Pennsylvania workers’ compensation system is the concept of “withdrawal from the labor market.” Without intending to do anything but receive additional income, an injured worker in PA can easily cause his or her workers’ compensation benefits to stop accidentally. This is one of the many reasons we urge every injured worker to have the representation of an attorney Certified as a Specialist in Workers’ Compensation law (as are both of the attorneys at Brilliant & Neiman LLC).

A recent decision from the Commonwealth Court of Pennsylvania, Hi-Tech Flooring, Inc. v. Workers’ Compensation Appeal Board (Santucci), reminds us of the perils of an alleged “withdrawal from the labor market.” Here, the injured worker suffered what was initially accepted as a “right knee contusion.” Later litigation expanded the injury to a more accurate injury description of “ongoing progressive degenerative changes of the right knee as a result of the August 18, 2014 work incident.”

A few years after the injury, seeking to have additional income, the injured worker filed for pension benefits from his union and filed for Social Security Disability (SSD) benefits. Each application was accepted. The decision approving the SSD application noted that Claimant had the following ailments or conditions, “lumbar and cervical disc disease, status post C5-6 cervical discectomy and fusion; bilateral knee degenerative osteoarthritis, status post bilateral arthroscopic procedures; right hip degenerative joint disease; and status post total hip replacement.” According to the Court, the determination granting the SSD benefits did also mention “resulting synovitis in Claimant’s right knee and ongoing right knee pain.”

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Perhaps the most frequent question we, as attorneys who represent injured workers in PA workers’ compensation cases, receive is, “When can I settle my case?” Such a simple question for such a complicated issue. An entire page of our website is devoted to this “Big” question, as is part of the FAQs.

Initially, we should note that not every Pennsylvania workers’ compensation case ends in a settlement. Sometimes, the best interests of the injured worker do not result in such a conclusion to a case. This may be secondary to the injured worker having returned to the same employer after the injury (most workers’ comp cases require a resignation as part of the settlement), or it may be due to a substantial future medical exposure (which often has drastically different calculations between reasonable expectation and what the workers’ compensation insurance carrier would offer), or it may be some other issue unique to that particular case.

There is no “magic” time to settle a PA workers’ comp case. We have reached a settlement in a Claim Petition, mere months after an injury, and we have reached a settlement many years after an injury. Though it sounds like a cliché, it is true – every case is different and must be judged by its own facts and circumstance.

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When one receives a decision issued by a Workers’ Compensation Judge (WCJ) in Pennsylvania, one has the right to file an appeal.  The first level for this appeal is the PA Workers’ Compensation Appeal Board (WCAB).  For about the last 50 years, litigating an appeal before the WCAB has been unchanged.  Starting July 11, 2022, however, there will be substantial changes taking place.

Until now, the person filing an appeal, formerly called the Appellant (now called the Petitioner), would file his or her brief (written argument) on or before the date of the oral argument.  This oral argument would be held in person at various locations across the State of Pennsylvania (Philadelphia, Pittsburgh, Harrisburg, Scranton and Erie).  The Respondent (formerly called the Appellee) would typically submit his or her brief 30 days after the oral argument.

Even before the COVID-19 pandemic turned the entire PA workers’ compensation system into a largely virtual affair, there had been discussion of making oral argument before the WCAB into a virtual event.  Since the virtual method ran so smoothly during the pandemic, the WCAB will be retaining this as the primary method of conducting oral argument.

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Coming on the heels of last month’s announcement from the Pennsylvania Bureau of Workers’ Compensation, advising that two new Workers’ Compensation Judges (WCJs) would be taking the bench, we were surprised to hear more hiring news from the Bureau this month.  In addition to the two new WCJs we discussed in March (The Honorable Debra Matherne and The Honorable Cassi Martin), there are now two more WCJs taking the bench in the near future.

Having two announcements so close in time is unusual, though there has been an unusual amount of retirement and turnover among the WCJs recently.  We are now welcoming Angela Lorenz and Angel Torres to the bench.

The official statement released by the Bureau states:

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In recent years, the Pennsylvania Bureau of Workers’ Compensation has been more transparent with the hiring of new Workers’ Compensation Judges (WCJs). While we generally have to rely on word of mouth for the retirement or transfer of a WCJ (to a different workers’ comp hearing office), we can usually count on the Bureau to let us know when a new WCJ is appointed to the bench. Along these lines, we are happy to congratulate Debra Matherne and Cassi Martin on becoming WCJs.

According to the Bureau, “Ms. Matherne has most recently been employed by Cipriani and Warner as a partner doing primarily WC defense work. Prior to that, she practiced on the Claimant’s side as a partner with Michael O’Connor and Associates. She has set a tentative start date of 3/28 to begin Act 57 training.”

Cassi Martin is an active member of the Bucks County Bar Association (BCBA), and the Workers’ Compensation Section of the BCBA, so we are well-acquainted with her talents and experience. She had been working for Hill Wallack LLP, handling primarily workers’ compensation defense work for employers, self-insureds and insurance carriers. Having earned her undergraduate degree at Marist College, Ms. Martin received her J.D. degree from Fordham University School of Law. On April 11, 2022, Ms. Martin will begin her WCJ training. Upon the completion of her training, Ms. Martin will be assigned to the Philadelphia Workers’ Compensation Hearing Office.

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Nearly two full years after COVID-19 briefly shut down the Pennsylvania workers’ compensation system, and then created a dramatic shift in how litigation was done, the PA Bureau of Workers’ Compensation has announced measures to return to some level of our prior (the old “normal”) operation.

It has been since March, 2020, that most of us in the workers’ compensation bar have physically been inside of a workers’ comp hearing room.  Nearly every hearing and mediation since that time has taken place in a virtual format.

The Workers’ Compensation Office of Adjudication (WCOA) has officially announced that mask mandates have been lifted and live (in person) hearings and mediations may again commence.  While the virtual hearings which have become the new “normal” will continue in some respects, it appears that live testimony will once again be taking place.  You may recall that the PA workers’ comp courts were permitted to be “open” as of August 16, 2021, though very few Workers’ Compensation Judges (WCJs) actually held live hearings.  At Brilliant & Neiman LLC, we have not been involved in a live hearing since March, 2020.

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Warminster, PA 18974
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