Pennsylvania Workers' Compensation Lawyer BlogLast 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!
Workers’ Comp Claimants Face More Risk in Surgery Than They Think?
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.
Pennsylvania Workers’ Compensation Lawyer Blog Honored By LexisNexis as One of Top 25 Blogs For Workers’ Compensation in 2008
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.
Lumbar Discectomy May be of Benefit to Injured Workers in PA
One of the most common work injuries we see in PA is to the back, whether it is a herniated or bulging lumbar disc, an aggravation of degenerative disc disease, or a soft tissue injury, such as a strain or sprain. These injuries run from a minor strain, which can be cured by rest and medication, to a herniated disc encroaching on a lumbar nerve root, which can require injections and surgery.
When an injured worker has suffered a herniated lumbar disc, and is having pain or numbness down one or both legs (“radicular symptoms” or “lumbar radiculopathy”), surgery may be discussed. One of the more common procedures to relieve the pressure of a herniated lumbar disc pressing on a nerve root is called a discectomy, where the disc material is simply removed.
A recent article published in the Journal of Bone & Joint Surgery examined some previous studies regarding the timing and effectiveness of lumbar discectomies. One of the more interesting findings was that pain relief occurs first after a lumbar discectomy, followed by recovery of motor function (strength), then improvement in sensation. In other words, it is not unusual for the injured worker to continue to have abnormal sensation after surgery. This is an important thing to keep in mind after surgery, so that the injured worker does not feel as if his or her recovery is not going well.
Pennsylvania Employer Barred From Using Alleged Failed Drug Test in Subsequent Workers’ Comp Case
In Erisco Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), decided by the Commonwealth Court of Pennsylvania on September 3, 2008, an employer unsuccessfully tried to defend a Claim Petition by saying Claimant failed a drug test and that the drug use led to the work injury. Under the PA Workers’ Compensation Act, intoxication of the injured worker can be an “affirmative defense” by the workers’ compensation insurance company. This means that the burden is on the workers’ comp insurance carrier to prove not only that the injured worker was intoxicated (by drug or alcohol), but that the intoxication caused the injury.
When Mr. Luvine filed his Claim Petition, the workers’ compensation insurance company tried to submit the results of a drug test that they alleged was positive for an illegal substance. Part of the evidence required by the workers’ comp insurance company is to show “chain of custody” regarding the drug test; basically, they must show the sample was properly collected, authenticated and controlled throughout the testing process. This is primarily applicable when the laboratory which tests the sample is not the party who obtained the sample. The Workers’ Compensation Judge (WCJ) rejected the drug test results because the workers’ compensation insurance carrier failed to prove chain of custody, and the WCJ granted the Claim Petition.
Eventually, Mr. Luvine was released back to work, but his employer refused to offer him a job, since he had (in their eyes) failed the drug test. The workers’ comp insurance carrier filed a Petition to Suspend the workers’ compensation benefits, because they said the reason the injured worker was having wage loss now was that he failed a drug test (and no longer was due to the work injury).
Philadelphia Workers Compensation Hearing Office To Reopen December 1, 2008
In a developing situation we have discussed here back in May 2008, and then again in July 2008, the Philadelphia Workers’ Compensation Hearing Office will be moving to a new location. In our July 2008 blog entry, we told you of the new address of the Philadelphia Workers’ Comp Hearing Office (110 North 8th Street, Philadelphia, PA 19107). We have now been advised of the date this relocation is scheduled to take place.
We have been told that the move to the new Philadelphia Workers’ Compensation Hearing Office will take place the week of November 17, 2008. Hearings will not be held from November 17, 2008, through November 30, 2008. The new office is then scheduled to open for business on December 1, 2008. We are told that any hearings currently scheduled for the Philadelphia Workers’ Comp Hearing Office from November 17, 2008 through November 30, 2008, will be cancelled and rescheduled.
Reinstating in PA Workers’ Comp After Benefits are Terminated
One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”
A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”
Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.
Injured Worker in PA Can Be a “Traveling Employee” Even if Worker Has Multiple Employers
Under the PA Workers’ Comp Act, generally speaking, a worker is not eligible for Pennsylvania workers’ compensation benefits when he or she is commuting to work. Under the law, the worker is not “in the scope of employment” at that time. One exception to this rule is for “traveling employees,” who are usually in the scope and course of their employment while moving from place to place. Obviously, it is advantageous for an injured worker who is hurt commuting to work to be found to be a “traveling employee.”
In a recent case, Jamison v. WCAB (Gallagher Home Health), the Commonwealth Court of Pennsylvania held that a home health nurse, who was hurt commuting to her assignment, was a traveling employee, despite the fact she worked for three different employers (sometimes all on the same day). The Workers’ Compensation Judge (WCJ) had found that Claimant was not a traveling employee, because she could be working for any of her three employers on any given day. As such, the WCJ denied the Claim Petition.
In reversing the WCJ, the Court found that claimant was a traveling employee with regard to her home health nurse job (the issue of multiple employers was essentially irrelevant). Once found to be a traveling employee, claimant was entitled to a presumption that she was working for her employer at the time she was driving from her home to the patient’s house. To prevail and defeat the claim, the workers’ compensation insurance company would have to prove the claimant abandoned her duties for the employer (for instance, by proving that claimant was actually on her way to work at one of her other jobs). Since the workers’ comp insurance carrier failed to prove this, the WCJ erred in denying workers’ compensation benefits to claimant.
IRE in PA Workers’ Comp Cannot be Done Until Injured Worker Reaches MMI
Under the most recent amendments to the Pennsylvania Workers’ Compensation Act, passed in 1996, once an injured worker in PA has received total disability benefits for 104 weeks, the workers’ comp insurance company can obtain an Impairment Rating Evaluation (IRE). If the work-related injury results in a whole body impairment rating of less than 50% (as almost all injuries do – this is an impossibly high standard), the PA Workers’ Compensation Act says the injured worker is changed from “total” disability status to “partial” disability status.
While this change from total to partial disability status does not change the amount of workers’ compensation benefits the injured worker receives, it does start the clock running regarding how long the benefits can be received. Partial disability benefits in PA are payable for a maximum of 500 weeks.
I go through this background, so that you understand the significance of a recent case decided by the Commonwealth Court of Pennsylvania, Combine v. WCAB (National Fuel Gas Dist. Co.). In this case, the Court held that a PA workers’ compensation insurance company cannot get an impairment rating until the IRE doctor first determines that a claimant has reached “maximal medical improvement” (MMI). Any obstacle in the path of the insurance carrier is certainly a benefit to claimants.
Expert Medical Evidence Necessary to Prove Disability in PA Workers’ Comp
A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.
In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).
On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.