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In a very disturbing decision by the Commonwealth Court of Pennsylvania, in Watson v. W.C.A.B. (Special People in Northeast), reported by the Court on May 30, 2008, the injured worker was denied reimbursement of litigation costs, even though the injured worker was successful in part of her Claim Petition.

Claimant filed a Claim Petition three days after her injury (a fact for which the injured worker was chided by the Court, who, seemingly would prefer the injured worker sit and wait with no assurance her claim would ever be accepted by the workers’ comp insurance carrier). An Answer was filed by the workers’ comp insurance carrier admitting Claimant suffered a head contusion in the work injury.

The Workers’ Compensation Judge eventually found the doctors offered by the workers’ comp insurance carrier more credible and denied the wage loss aspect of the Claim Petition (Under the Pennsylvania Workers’ Compensation Act, no wage loss benefits are payable unless there are more than seven days of disability; here the Workers’ Compensation Judge found only three days of disability).

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Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

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In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

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In Philadelphia, we recently heard of “prolotherapy” because Philadelphia Flyers’ player, Simon Gagne, who injured his head and neck, has said this treatment method has greatly improved his condition. When I saw that, I wondered if prolotherapy may be beneficial to an injured worker, especially one who has hurt the neck or the back. Workers’ compensation cases are littered with patients taking an abundance of medications, or getting multiple steroid, or other, injections into their spines. We could certainly use a less invasive treatment option.

Prolotherapy seems to involve injecting a substance into the injured area, causing an irritation in the area. This certainly seems an odd step to take (purposely irritating an already injured area), but the idea is that the irritation being caused leads to the area repairing itself. The substance being injected can vary by the type of prolotherapy being done.

As with any potential treatment option, workers’ compensation patients should always discuss the step with their doctor. While it is always good to have options for treatment, some treatment methods may be better than others for any given condition or patient, and your doctor is the best one to guide which treatment would be greatest treatment option.

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It happens all too often. A worker suffers an injury to his or her neck or back. Though the injured worker never had neck or back pain before the injury, the workers’ compensation insurance company questions the claim. According to the workers’ compensation insurance carrier, the injured worker is suffering from “degenerative disc disease,” not a work injury. In reality, of course, it is the work injury which has made the degenerative disc disease start to cause pain. In Pennsylvania, an “aggravation” of a pre-existing condition, like degenerative disc disease, is considered a “new injury,” allowing an injured worker to collect PA workers’ comp benefits.

That is only half the battle, unfortunately. Once the degenerative disc disease has been made symptomatic by the work injury, the symptoms often do not stop. Frequently, the injured worker will try many “conservative” treatment options, such as medications and physical therapy. Failing that, doctors might try various types of injections, including epidural steroid injections. Sadly, though, time and again, the injured worker remains in pain despite these efforts.

Once the pain has continued for longer than six months, and various conservative treatment options have failed to reduce the symptoms, doctors start to talk about surgery as an option. There is no doubt that spinal surgery, whether for the neck or the back, is a last resort. As with any major surgical procedure, there are serious consequences which can result from such an operation. Moreover, there is no guarantee the injured worker will be any better after surgery.

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On May 14, 2008, the Workers’ Compensation Section of the Philadelphia Bar Association received an e-mail that all pleadings (including briefs and stipulations resolving disputes between parties) addressed to Workers’ Compensation Judge Aida Louise Harris, in the Northeast Philadelphia Workers’ Compensation Office must be submitted on CD in Microsoft Word format, 12 point font.

Though this new procedure was revoked in a later e-mail on May 19, 2008, this is clearly the direction that office is taking. Indeed, the e-mail revoking the new procedure specifically stated that the procedure was being revoked only because “due to technological issues, the electronic submission initiative cannot be implemented as yet.”

Other courts, in recent years, have been moving to electronic submissions, so this is not a surprising development. We will, of course, keep you up to date if this new procedure does go into effect. Also, be aware that you can review the procedures of any participating Workers’ Comp Judge at the website of the Pennsylvania Department of Labor & Industry.

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A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

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As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said:

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On November 9, 2006, the most recent amendment to the Pennsylvania Workers’ Compensation Act, known as Act 147 of 2006, was signed into law. Several of the provisions of Act 147 were designed to quicken the litigation process in PA workers’ comp. One of those provisions created what is known as “Mandatory Mediation.”

Mediation, generally speaking, is a process where an independent person meets with the parties to a dispute and helps the parties reach a resolution to their quarrel. This is a process used in all types of litigation, and even in disputes outside of litigation. Usually, this is a very informal process. The mediator will meet with the parties separate and together, working to try and bring them together on common ground. There is no court reporter present, and things said in mediation are not admissible in the litigation (encouraging the parties to be honest about the strengths and weaknesses of their position).

Mediation has been used in Pennsylvania workers’ compensation matters as long as I can recall. In the past, mediation only happened in PA workers’ comp when the parties so requested. The process was entirely voluntary, and did not occur that often.

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Regardless of whether we are seeing an injured worker suffering from a trauma to his or her arm, leg, neck, back, shoulder or any other part of the body, the common thing we are seeing is pain. Often, this is a chronic, unrelenting, pain. These are usually the cases when surgery either has been attempted and has not been successful, or when the doctors do not feel surgery would relieve the pain. Frequently, the only way to even take the edge off this excruciating pain is by taking pain-relieving medications, often narcotics.

One of the more “popular” narcotic medications used in Pennsylvania workers’ compensation matters is OxyCodone (OxyContin). The manufacturer of OxyContin, Purdue Pharma, has recently developed three new dosage strengths. These three new dosage levels now make a total of seven dosage strengths of OxyContin. In theory, this makes prescribing the proper dosage for every injured worker much easier.

With more usage of OxyCodone, and OxyContin, comes more abuse. Unfortunately for those injured workers who actually need this type of pain medication for relief, many people are using such drugs recreationally. Purdue Pharma has attempted to change the type of the OxyContin tablet, to make it less “useful” for recreational use, but so far, the FDA has not approved the changes. According to this article, there were 42.2 million prescriptions written last year for Oxycodone.

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