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Last month, I wrote a blog entry explaining how every State, including Pennsylvania, had very different laws governing workers’ compensation systems within that State. One point I should clear up is that not every injured worker in Pennsylvania automatically qualifies for the PA workers’ compensation system. Whole occupations, or groups of workers, are subject to workers’ comp systems which vary from the Pennsylvania Workers’ Compensation Act.

For example, employees of the Federal Government must go under the Federal Employees’ Compensation Act (FECA), which is administered by the Office of Workers’ Compensation (OWCP). Railroad workers are usually subject to the Federal Employers’ Liability Act (FELA), which uses the Federal Court system for its procedure. The Longshore and Harbor Workers’ Compensation Act (“Longshore Act”) governs employees engaged in maritime activities (though these cases sometimes have “dual jurisdiction” in PA and can proceed either through the Longshore Act or the regular Pennsylvania workers’ comp system, often depending whether the injury took place on the water or on dry land). So, not every worker who is injured in PA will be proceeding through the Pennsylvania Workers’ Compensation Act.

On the other hand, there are times when a worker who is injured in another State can still proceed under the Pennsylvania workers’ compensation system (Like the example above with the Longshore Act, this is known as “dual jurisdiction,” since there would also likely be jurisdiction in the State in which the injury took place). In this situation, we look at where the injured worker was hired, where the injured worker usually worked (and where the injured worker expected to work), and other factors, to see what options the injured worker has for which workers’ comp system to use.

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The rotator cuff is where four muscles and several tendons form a covering around the top of the humerus, the upper arm bone, in the shoulder. While tears in this region of the shoulder can occur with the wear and tear of using the shoulder over years, a rotator cuff tear is also a common injury we see in Pennsylvania workers’ compensation cases. This type of injury can occur in many different ways, including lifting or falling on the shoulder. Even repetitive use of the shoulder at work over years can lead to a compensable work-related rotator cuff tear.

A torn rotator cuff is generally categorized as either small, medium, large or massive. Initial treatment for a tear usually consists of “conservative” (non-surgical) options, such as physical therapy, medications and/or injections. If these conservative methods do not relieve the problem, surgery may be indicated.

The problem comes with the “massive” rotator cuff tears. These tears used to be called irreparable. The injured worker was left with only two choices – either live with the pain and disability, or have a “debridement procedure” performed (this is a surgical procedure where the area is cleaned out, though the tear is not repaired). In the past, the injured worker remained on workers’ compensation benefits, and remained unable to perform ordinary daily activities of living, let alone work.

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There are many factors which have to be considered when an injured worker wants to settle his or her workers’ comp case in PA. Even aside from the primary things people think about, such as how much money will be involved, one has to determine if approval from the Centers for Medicare Services (CMS) will be required.

Under Federal Law, known as the Medicare Secondary Payer Act, all parties to workers’ compensation settlements in Pennsylvania must “consider the interests of Medicare” with regard to the settlement. This is regardless of whether the injured worker is entitled to Medicare or not. CMS does not want the burden of future medical treatment for the injured worker to simply be shifted from the workers’ compensation insurance carrier to Medicare.

CMS has certain guidelines for when their approval is needed. When a workers’ compensation settlement is more than $25,000.00 and the injured worker is entitled to Medicare, CMS must actually approve the terms of the settlement. Additionally, if the workers’ compensation settlement is over $250,000.00 (it is extremely rare for a workers’ comp settlement in PA to be more than $250,000.00) and the injured worker has a “reasonable expectation” that he or she will be entitled to Medicare within 30 months of the date of the workers’ compensation settlement, again, CMS must approve the settlement. In particular, CMS will want to approve the amount of the settlement which is allocated to future medical treatment.

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Many injured workers in Pennsylvania are not aware that they can apply for Social Security Disability (SSD), while still receiving workers’ comp benefits in PA. Though the two programs have different standards for what “disabled” means, and the injured worker may not be able to receive full benefits from both programs, there is no need to choose one or the other.

An injured worker qualifies for workers’ compensation benefits in Pennsylvania when he or she is disabled from work by an injury which took place in the scope and course of his or her employment. One qualifies for Social Security Disability benefits when one is disabled from all gainful employment, regardless of the cause of the disability. Many times, the workers’ comp claimant in PA qualifies for both, but is not aware they can receive both.

Between the two programs, a workers’ compensation claimant in Pennsylvania can only receive a certain percentage of their pre-injury earnings. Usually this amount will be more than the workers’ comp benefits alone. Plus, getting approved for SSD will lead to getting Medicare benefits, which can be a valuable resource. The Social Security Administration will withhold any SSD benefits a workers’ compensation claimant in Pennsylvania would otherwise be entitled to (the amount of SSD over that percentage of pre-injury earnings). There is no deduction from workers’ comp benefits in PA for SSD (contrary to Social Security Retirement benefits, for which the workers’ compensation insurance carrier gets a credit in Pennsylvania).

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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.

Contact Information
Philadelphia & Surrounding Areas
260 W Street Rd
Warminster, PA 18974
Phone: (215) 638-7500
Fax: (267) 803-6298
Trevose
5 Neshaminy Interplex Dr, #205
Trevose, PA 19053
Phone: (215) 638-7500
[Formerly (215) 244-8101]
Fax: (267) 803-6298
Lehigh Valley
609 Hamilton Mall
Allentown, PA 18101
Phone: (610) 740-1002
Fax: (267) 803-6298

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