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As mentioned in a previous blog post, Pennsylvania Courts have become increasingly strict with regard to cutting off PA workers’ compensation benefits to retired injured workers, even when the retirement is due to the work injury.

Those of us who represent injured workers’ in PA workers’ comp were surprised and excited when the Supreme Court of Pennsylvania issued a terse, one paragraph, Order in the case of Gray v. Workers’ Compensation Appeal Board (WCAB), reversing Commonwealth Court of PA, the WCAB and the Workers’ Compensation Judge (WCJ), and demanding that the claimant’s workers’ comp benefits be reinstated, “in light of the competent, uncontroverted evidence presented by Petitioner that her retirement from the work force was involuntary, and her increased, debilitating shoulder pain prevented her from continuing to work.” We can only hope that the very strict punishment for retired injured workers in PA is lessening. As always, we will keep you updated on developments in this area.

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As a Claimant’s lawyer, practicing exclusively in PA workers’ comp, I was thrilled when the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board (WCAB) in 2007. The Court in Lewis limited a PA workers’ comp insurance company’s ability to continually file petitions to terminate a claimant’s workers’ comp benefits. Specifically, the Court held that a workers’ compensation insurance carrier in PA had to prove there was an actual change in condition from the previous adjudication of disability (again, for this case to be important, the injured worker had to have previously defended a Termination Petition).

There was some concern, however, with how the Commonwealth Court of Pennsylvania would interpret the Lewis decision. As we posted in a previous blog entry, the Commonwealth Court initially did properly follow Lewis. Last month, the Commonwealth Court of Pennsylvania set claimant’s workers’ comp attorneys’ minds at ease, when they issued a decision in Delaware County v. Workers’ Compensation Appeal Board. Here, like in Lewis, the workers’ comp insurance company lost a Termination Petition, then filed another Termination Petition. Finding the workers’ compensation insurance carrier’s doctor credible when he testified the injured worker had fully recovered from the work-related injury, the Workers’ Compensation Judge (WCJ) granted the Termination Petition.

On appeal, the Commonwealth Court of PA, vacated the termination and remanded to the WCJ (sent the case back to the WCJ for additional findings). The Court found that the WCJ had granted the Termination Petition in error, because it was not enough to simply find the workers’ compensation insurance carrier’s doctor was credible when he testified that the injured worker had fully recovered from her work injury. Instead, the Court said the WCJ must first decide whether the workers’ comp insurance company proved that the claimant’s condition had changed from the time of the first Termination Petition to the time of the second. Only after that finding is made can the WCJ decide whether the workers’ compensation insurer proved the injured worker had fully recovered.

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In an interesting study, posted on www.medscape.com, patients with lumbar disc herniations have been found to recover better than those patients who refuse surgery to concentrate on medications, exercise and physical therapy. An injured worker suffering a herniated disc in his or her back (or neck, for that matter) is a frequent condition we see in PA workers’ comp cases. Often, the injured worker is undecided regarding whether to have surgery performed. This study should be interesting, and enlightening, reading for those injured workers.

The study, known as the Spine Patient Outcomes Research Trial (SPORT), appeared in the December 1, 2008 issue of Spine. This trial reviewed 1244 patient cases, from 13 American spine clinics, over a period of four years. Each patient had at least a six-week history of a herniated disc in the lumbar spine, causing both back and leg pain. The patients either underwent a surgical procedure (standard open diskectomy), or a course of medications, home exercises and physical therapy.

After the four-year period, the patients who had the lumbar surgery were statistically happier, and better recovered, than those who did not. The surgical patients had better relief of pain (by about 15 points on a 100-point scale), greater physical functioning (also by about 15 points) and lesser disability (by about 13 points). Overall, 79.2% of the surgical patients, and 51.7% of the nonsurgical patients, reported major improvements in their condition. The benefits of surgery were seen as soon as six weeks after the surgical procedure, and were found to last through the four years of the study.

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A recent article on www.emaxhealth.com noted that the U.S. Food & Drug Administration (FDA) has approved an extended-release version of the chronic pain medication, Ryzolt (sold under the name of “Tramadol”). Though Tramadol has previously been available, this simplified dosage is new. Unfortunately, chronic pain is something we see all too often in PA workers’ compensation cases.

This drug is used for managing moderate to moderately severe chronic pain. The extended-release form of the drug should allow patients to better control their pain over the course of the day. With both immediate-acting, and extended-release, parts, Tramadol hopes to provide better relief to chronic pain sufferers.

The article notes that chronic pain impacts approximately 75 million people in the United States, “more than diabetes, heart disease and cancer combined.”

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It still amazes me when I see an injured worker represented by a general practice attorney. As you folks can see from the frequent postings on our blog, the law in Pennsylvania workers’ comp frequently changes. Lawyers who do not handle PA workers’ compensation cases on a regular basis can be at a severe disadvantage.

When you break your leg, you do not seek the medical opinion of a heart doctor. Instead, you want to be treated by a doctor who sees conditions like yours everyday. A doctor who remains informed about changes in areas of medicine as it concerns your condition. Do not treat your legal needs any less. Make sure when selecting a PA workers’ compensation attorney, the lawyer you pick has extensive Pennsylvania workers’ comp experience and practices frequently in this area.

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A recent post on Workers’ Comp Insider, a blog devoted to workers’ compensation cost control, explores the problems being faced by FedEx and its workers. FedEx has managed to avoid having its workers join a union, by classifying them instead as “independent contractors” rather than “employees.” The blog entry points out that this arrangement may be on the way out, given the potential impact of a Democrat-controlled congress. Note was also made that State Courts have frequently found the FedEx drivers, who wear FedEx uniforms and drive FedEx trucks, to be “employees,” regardless of how they are described by FedEx.

This points out an important fact, one that may not be known by every injured worker – just because an employer terms its workers “independent contractors” does not make it so. In fact, for Pennsylvania workers’ compensation purposes, a Workers’ Compensation Judge (WCJ) will examine many elements of the relationship between the injured worker and the employer. How that relationship is described, and whether they are called “employee” or not, is only a minor factor.

The most important factor in determining whether an injured worker is truly an “employee” in PA is the degree of direction and control held by the employer. For example, is the employee told what to do and how to do it, or does the employee make these decisions on his or her own. Even if this control is not actually exercised by the employer, Pennsylvania Courts have found its mere existence proof enough.

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Recently, two pharmaceutical companies, Genzyme Corporation and Osiris Therapeutics,

announced that they have joined to develop two adult stem cell treatments. These medications, known as Prochymal and Chondrogen, may be a valuable resource to treat a wide variety of conditions. Benefits from these treatments may include control of inflammation, development of tissue regeneration and prevention of scar formation.

Clinical trials for Prochymal are currently underway for Crohn’s disease, diabetes, chronic obstructive pulmonary disease (COPD) and acute myocardial infarction. Chondrogen, to interest of those injured workers suffering from persistent knee pain, is in clinical trials to treat osteoarthritis of the knee.

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We are excited to report that Glenn C. Neiman, one of the partners at Brilliant & Neiman LLC, was approached by Lawline.com, a division of LAWLINE, with an invitation to join their esteemed faculty. LAWLINE is the longest running legal TV show in New York City. Lawline.com is a leading internet provider of continuing legal education and law-related programming for attorneys. The faculty of Lawline.com includes such notable lawyers as Benjamin Brafman, Gerry Shargel, Harvey Weitz, Herald Fahringer and Hal Lieberman.

“It is a great honor to even be invited to join a staff with lawyers as admired as these folks,” said Mr. Neiman, “It’s like a baseball player getting put in a group with Babe Ruth, Ted Williams and Stan Musial.”

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As we have mentioned in previous posts, the Philadelphia Workers’ Compensation Hearing Office has been in the process of moving. We are pleased to now report that the new hearing office has opened on schedule. Hearings on workers’ compensation cases will no longer be held at the State Office Building, 1700 Spring Garden Street, Philadelphia, PA. Hearings now will be held in the new office, located at 110 North 8th Street, Philadelphia, PA 19107.

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Generally speaking, an injured worker in PA can ask a Workers’ Compensation Judge (WCJ) to review an accepted description of a work injury “at any time” (within the statute of limitations, of course) to amend those conditions for which the workers’ compensation insurance carrier should be responsible. In other words, usually, an injured worker, under the Pennsylvania Workers’ Compensation Act, can try to add more injuries to an accepted workers’ compensation case.

However, a recent decision by the Commonwealth Court of Pennsylvania put a significant hurdle in the path of an injured worker. On November 25, 2008, the Court decided Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.).

In this case, the workers’ comp insurance company accepted a “left shoulder strain.” The injured worker filed a Petition to Review, to add a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis, all in the left shoulder. The workers’ compensation insurance carrier agreed, and the parties executed a stipulation, providing that the work injury now included this more descriptive injury.

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