Pennsylvania Workers' Compensation Lawyer Blog

November 26, 2008

Psychological Injuries Require “Abnormal Working Conditions” in PA Workers’ Comp

Under the Pennsylvania Workers’ Compensation Act, physical injuries, like carpal tunnel syndrome, low back strain or a fractured arm, are treated differently than emotional/psychological injuries, like post-traumatic stress disorder (PTSD), depression or anxiety. To obtain workers’ comp benefits in PA for emotional/psychological injuries, the injury must result from an “abnormal working condition,” rather than a person’s subjective response to a normal working condition. What constitutes an “abnormal working condition” under Pennsylvania workers’ comp law varies depending on the job at issue and is the subject of many court decisions.

Recently, the courts in PA have been very demanding in what constitutes an “abnormal working condition.” For some professions, such as firemen, policemen and other emergency first responders, the courts have set the threshold extremely high, finding very little in those jobs could possibly be “abnormal.” Essentially, some jobs should expect the unexpected, the courts seem to say.

Typically, harassment or bad behavior by a boss will not reach the level of an “abnormal working condition.” In fact, one of my favorite quotes on this subject comes from a 1996 decision of the Supreme Court of Pennsylvania, “In assessing whether work conditions are abnormal, we must recognize that the work environment is a microcosm of society. It is not a shelter from rude behavior, obscene language, incivility, or stress.”

November 3, 2008

PA Workers’ Compensation – Where “Yes” Can Mean “No”

by Glenn Neiman

Though the case of Armstrong v. Workers’ Compensation Appeal Board was decided by the Commonwealth Court of Pennsylvania over a year ago, on August 27, 2007, this decision continues to both amaze and irritate those of us who limit our practice to representing the injured worker in PA workers’ comp cases.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier has 21 days to accept or deny a claim. Typically, and logically, acceptance of a claim is done by issuing a Notice of Compensation Payable (NCP) [or an Agreement for Compensation], and denial of a claim is done by issuing a Notice of Denial (NCD). Since this seems to make perfect sense, naturally, this is not necessarily how things work.

On a Notice of Denial, there are six boxes, or “bases of denial.” Essentially, the workers’ comp insurance company checks one or more of those boxes, indicating the reason or reasons for the denial. Box number four on an NCD states, “Although an injury took place, the employee is not disabled as a result of this injury within the meaning of the Pennsylvania Workers’ Compensation Act.” This is rather unnecessary, since there is also a “medical only” NCP, to be issued when the workers’ comp insurance carrier feels there is no disability from the work injury.

October 23, 2008

Notice of a Work Injury in PA May be Given Even After 120 Days

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, an injured worker must give notice of his or her injury within 120 days of the injury. If this notice is not given within 120 days, a claim petition for workers’ comp benefits is barred.

When an injury is not known to be related to work, this time period may be extended. This is known as a “discovery rule.” In that case, notice must be given within 120 days of when the injured worker knows he or she has suffered a work injury.

A recent decision by the Commonwealth Court of PA, The Bullen Companies v. Workers’ Compensation Appeal Board (Hausmann), explored this issue. In this case, the injured worker was employed at a chemical plant for 17 years. The worker started getting treatment for kidney ailments in 2002, but did not notify his employer of a work injury until 2004, which the employer said was more than 120 days after the “injury” was suffered.

October 15, 2008

Another Case Shows Unreasonable Contest Attorney Fees in PA a Rare Occurrence

by Glenn Neiman

As we explained in a recent blog entry, under the Pennsylvania Workers Compensation Act, Section 440(a) to be exact, reasonable attorney fees are to be paid by the PA workers’ compensation insurance carrier, unless the workers’ comp insurance carrier proves it had a reasonable basis to contest the claim. By design, this was to be the rule; the exception would be when attorney fees were charged to the injured worker.

Unfortunately, this is not how things work in practice. In Costa v. Workers’ Compensation Appeal Board (Carlisle Corp.), decided by the Commonwealth Court of Pennsylvania on October 14, 2008, the workers’ comp insurance carrier was found to have a reasonable basis to contest a claim when their own doctor agreed a work injury had taken place.

How could the Court accomplish such a feat, you ask? Well, the workers’ compensation insurance carrier’s doctor felt the injured worker had suffered a neck strain, while the injured worker’s doctor felt he had herniated a disc in the cervical spine (this would help explain why the injured worker had neck surgery after the work injury). Thus, the Court felt that because the parties’ medical experts disagreed what diagnoses were related to the work injury, the workers’ comp insurance carrier had a reasonable basis to contest the injury.

September 29, 2008

Unreasonable Contest Attorney Fees in PA Workers’ Comp

by Glenn Neiman

Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

September 26, 2008

PA Workers’ Comp Verification Forms

by Glenn Neiman

Claimants receiving, or attempting to receive, workers’ compensation benefits in PA are required to report receipt of various income. There are three what we call “verification forms,” which workers’ compensation insurance companies can send to these claimants. If these forms, which were approved by the Pennsylvania Bureau of Workers’ Compensation, are not completed by the claimants, and returned to the workers’ comp insurance carrier within 30 days, workers’ compensation benefits can be stopped.

On the other hand, I recently received a copy of a “Claim Status Report,” which was sent by the workers’ comp insurance carrier to my client. Some of the questions were similar to those on the forms approved by the Pennsylvania Bureau of Workers’ Compensation, but there were other questions which a claimant would have no obligation to answer.

This is just another instance of why every Claimant should have access to an experienced PA workers’ comp attorney. Any time something is received by a workers’ compensation claimant, there should be a discussion with the attorney. There are so many rights and responsibilities the injured worker should know, that it just makes sense to have someone to watch their back.

September 23, 2008

Total Ankle Replacement Technology Improving

by Glenn Neiman

While ankle injuries are common in PA workers’ comp cases, we do not hear about total ankle replacements as much as we hear of total knee replacements or total hip replacements. Unfortunately, sometimes a work injury causes such damage to the ankle, or triggers the development of arthritis in the ankle, such that a total ankle replacement is necessary.

A recent article on the American Academy of Orthopaedic Surgeons’ website talked of improvements in total ankle replacements. At this point, in the United States, only four types of implants are available for total ankle replacements. Each of these devices consists of only two components. This means there will not be much mobility in the ankle. Of course, the alternative, of fusing the ankle in one position, offers no movement at all.

Outside the United States, total ankle replacements are being done with a device containing three components, allowing greater mobility. FDA approval is being recommended for such devices to be approved for use in the U.S. The article suggests approval for these devices could come as soon as later this year.

September 22, 2008

PA Workers’ Comp Seminar in Hershey

by Glenn Neiman

Last Thursday and Friday, I attended the annual Fall Meeting of the Pennsylvania Bar Association’s Workers’ Compensation Section in Hershey, PA. While I hate to be out of the office for the two days, I think it is important to hear, and discuss, things that are happening in the Pennsylvania Courts, as well as with the Pennsylvania Bureau of Workers’ Compensation and its Workers’ Compensation Judges. In addition to reviewing recent Court Cases, we also discussed the status of the law regarding “retirement” (voluntary withdrawal from the labor market), “Labor Market Surveys” (also known as “Earning Power Assessments”), and the new 6th Edition of the AMA Guides to Evaluation of Permanent Impairment (which is going to be used to for Impairment Rating Evaluations (IRE)). Going to seminars such as this is what allows us to know the Pennsylvania Workers’ Compensation Act inside and out, ultimately, to the benefit of our clients. And, since the seminar is in Hershey, the fact chocolate bars are placed on every table never hurts either!

September 15, 2008

Workers’ Comp Claimants Face More Risk in Surgery Than They Think?

by Glenn Neiman

As if an injured worker needed another reason to think of surgery as only a last resort, a recent article in Annals of Surgery journal noted that there is a discrepancy in the count of surgical instruments (including sponges) in nearly 13% of surgical procedures. This, of course, does not mean an instrument, or a sponge, is left in a surgical patient in 13% of procedures (that percentage is closer to 0.02%, or one in 5,000). Still, this seems like a staggeringly high percentage to have a miscount.

An article in Amednews.com suggests some solutions to reducing this figure. One is putting bar codes on sponges, which would then be scanned in and out. The count would then be automatic. The article suggests this would add only about $9.00 per surgical case. Another option is placing tiny radio-frequency identification (RFID) tags in the sponges. A wand could then be used to locate missing sponges, either inside a patient, or around the operating room. This would cost an additional $25.00 to $45.00 per surgical procedure.

While certainly no injured worker wants to rush into surgery, sometimes a work injury requires surgical intervention, whether it is a back surgery, a total knee replacement, or any other procedure. The hope is that these new technologies can make surgery safer, and less risky, for every injured worker.

September 9, 2008

Pennsylvania Workers’ Compensation Lawyer Blog Honored By LexisNexis as One of Top 25 Blogs For Workers’ Compensation in 2008

by Glenn Neiman

Since we here at Brilliant & Neiman LLC only started publishing our Pennsylvania Workers’ Compensation Lawyer Blog in April, 2008, we were shocked and honored when we were selected by LexisNexis as one of the top 25 blogs for workers’ compensation (across the U.S.) for 2008.

“These blogsites contain some of the best writing out there on workers’ compensation and workplace issues in general,” says the LexisNexis Workers’ Compensation Law Center. “They contain a wealth of information for the workers’ compensation community with timely news items, practical information, expert analysis, tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers’ compensation and workplace issues.”

We fully intend to continue diligently blogging, to earn the praise we have been given. While national recognition is certainly nice, hopefully, we are achieving our actual goal of educating the injured worker in PA.