Pennsylvania Workers' Compensation Lawyer Blog

May 13, 2008

Specific Loss Benefits Require Medical Evidence in PA Workers’ Comp

An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

May 12, 2008

Prescription Advice for Injured Workers in Pennsylvania

by Glenn Neiman

It seems like such a basic thing. An injured worker goes to the doctor and gets a prescription. Big deal, right? What is there to think about? Well, maybe it isn’t so simple after all. Maybe there are some questions an injured worker should be asking when getting a prescription. When I came across this article, I started thinking that some of these ideas make a great deal of sense. The article seemed like a valuable resource to both my injured clients and the general public. I guess you could sum up some of these hints by reminding yourself to know what medication you are taking, why you are taking it, how to take it and how your body reacts to the medication. I would suggest anyone getting a prescription filled review this article.

May 10, 2008

Reflex Sympathetic Dystrophy (RSD) and Complex Regional Pain Syndrome (CRPS) Often Seen in PA Workers’ Comp

by Glenn Neiman

Reflex Sympathetic Dystrophy (RSD), also known as Complex Regional Pain Syndrome (CRPS) is a horrible condition we see all too often resulting from work injuries. This condition can develop from a traumatic work injury, even what previously seemed to be a relatively minor one. Scientists still do not seem to know why RSD or CRPS develops.

The hallmark symptom of RSD or CRPS is unrelenting, often burning, pain. This character of pain, called “neuropathic” pain, is caused by irritation of the nerves in the affected area. Frequently, there are also changes in the skin or fingernails of the area as well (known as “trophic” changes). Sadly, there is no cure for RSD or CRPS, and doctors simply try to manage the symptoms of the patient as best they can.

Research is continuing in this area, and there are some promising things on the horizon. A recent study, led by local RSD/CRPS specialist Dr. Robert Schwartzman, found that the drug ketamine, given in an anesthetic dosage, may relieve pain in RSD/CRPS patients who have failed with other treatments. Administration of ketamine while the patient is placed in a five-day coma has been successfully performed in other countries, but has not been approved as yet in the United States. Obviously, in the workers’ comp setting, treatment not approved by the FDA probably does not need to be paid for by the PA workers’ compensation insurance carrier.

May 8, 2008

Workers’ Compensation Appeal Process in Pennsylvania

by Glenn Neiman

Even when an injured worker receives a decision from the Workers’ Compensation Judge (WCJ) in Pennsylvania, the case is not over. Either side may appeal the decision to the next level, the Workers’ Compensation Appeal Board (WCAB). Such an appeal must be filed within 20 days of the decision of the WCJ.

An appeal must allege that the Workers’ Compensation Judge committed an “error of law” or that the decision issued by the Judge is not a “reasoned decision.” Simply disagreeing with the decision is not a proper basis of appeal. An appeal cannot challenge who the Judge believed (called “determination of credibility”), since this is solely at the discretion of the Judge.

The WCAB schedules oral argument at various locations throughout the year. At the time oral argument is made, the WCAB also expects a brief to be filed by the appealing party (though a party can request additional time to submit a brief).

May 6, 2008

Employer Need Not Show Job Not Available to Injured Worker in PA

by Glenn Neiman

One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

May 5, 2008

Workers Compensation Benefits Available to Illegal Aliens in PA

by Glenn Neiman

Recently, Hazleton, Pennsylvania, was in the news for its efforts to crack down on undocumented, illegal aliens. We also are hearing the Presidential candidates speak about their views on how to handle these people. It might make one wonder how an undocumented, illegal worker is treated under the Pennsylvania Workers’ Compensation Act.

The short answer is that an undocumented, illegal worker is entitled to workers’ compensation benefits in PA. The Supreme Court of Pennsylvania decided The Reinforced Earth Company v. W.C.A.B. (Astudillo) in 2002, answering this question with certainty.

Since that time, however, the Courts in PA have not been so kind to undocumented workers. While access to medical treatment for the work injury has continued undisturbed, the illegal worker’s right to wage loss (also known as “indemnity”) benefits has been reduced. As long as the undocumented worker is totally disabled, he or she is entitled to both medical and indemnity benefits. On the other hand, once the illegal alien worker is capable of ANY type of employment, the workers’ compensation insurance carrier can file a petition before a Workers’ Compensation Judge to have the indemnity benefits stopped (again, the medical benefits for the work injury would still continue).

May 4, 2008

Workers ‘ Comp Laws Vary Widely From State to State

by Glenn Neiman

Pennsylvania workers’ compensation law is like no other State. I mean no disrespect by that statement; truly, PA workers comp is unique, like in every other State. Unlike Federal laws which may be of concern to an injured worker, such as Social Security Disability (SSD) or the Americans with Disabilities Act (ADA), which apply to any injured worker in the United States, each State has its own set of workers’ compensation laws.

The difference between workers’ comp laws from State to State is tremendous. For instance, in Pennsylvania, once an injured worker is receiving workers’ compensation benefits, the workers’ compensation insurance carrier usually must get the permission of a Workers’ Compensation Judge to stop the benefits. In some other States, the workers’ compensation insurance company can simply stop paying benefits on its own. Also, in PA, the Employer, or workers’ compensation insurance company, can only control treatment, at most, for the first 90 days. After that time, if not before, an injured worker in Pennsylvania can select his or her own doctor.

On the down side, in PA, once an injured worker returns to work with no loss in wages, there is usually no more money due the injured worker. There is no compensation for the injured worker who can no longer take part in pleasurable activities (as long as the injured worker can do his or her job, according to PA law, no compensation is payable). In some other States, an injured worker who returns to work can still get money for his “percentage of impairment.”

May 2, 2008

Injured Worker Can be Terminated From Job While Receiving Workers Comp in PA

by Glenn Neiman

There are many things in life that are not fair. At least one of those things rears its ugly head in Pennsylvania workers’ comp. Unless an employee has a contract, or is a member of a union, there is very little protection for the employee from being fired from his or her job while out of work on workers’ compensation in PA. While an employee cannot legally be fired in Pennsylvania for pursuing a workers’ compensation claim [Shick v. Shirey, 716 A.2d 1231 (Pa. 1998)], it is often difficult to prove the reason for the termination is the pursuit of a workers’ comp case (as opposed to just the absenteeism of the injured worker). Please note, also, that workers’ compensation benefits in PA continue regardless of whether a totally disabled injured worker has been terminated from his or her job or not.

Federal laws do offer some protections for the injured worker caught in this position. The Family and Medical Leave Act (FMLA) can provide some job protection for a period of time. If an injured worker is terminated from his or her job, COBRA may allow the private health insurance coverage to continue, with the injured worker able to assume the payments at the group rate used by his or her employer.

Unfortunately, though, there is often very little that we, as Pennsylvania workers’ compensation attorneys, can do to protect our clients from being terminated from their jobs while they are disabled from work and receiving workers’ compensation benefits.

May 1, 2008

Philadelphia Workers Compensation Hearing Office Moving

by Glenn Neiman

Typically, in Pennsylvania, workers’ compensation hearings are held in the County in which the injured worker lives. Many Counties in PA have a single hearing location (Allentown for Lehigh County, Reading for Berks County, Easton for Northampton County), while others have multiple locations. For instance, in Montgomery County, hearings are divided between hearing offices in Malvern and Dresher. Similarly, in Bucks County, there are hearing offices in Bristol and Doylestown.

Another County with multiple locations is Philadelphia County, where there is an office in Northeast Philadelphia and one in Center City Philadelphia. The Center City hearing office has been in the State Office Building at Broad and Spring Garden Streets for as long as I can remember (and I have been handling workers’ compensation cases in PA for over 15 years). As you may have heard, however, the State Office Building has been sold and the Philadelphia workers’ compensation hearing office will be moving.

Though details are hard to come by, we believe the new Philadelphia workers comp office will be located at 8th and Arch Streets in Center City Philadelphia. The move is expected to take place by the end of 2008. We will certainly be updating this information as we learn more!

April 29, 2008

Impairment Rating Evaluation (IRE) in PA Workers’ Compensation

by Glenn Neiman

To answer an often asked question, in Pennsylvania, there is no limit to how long an injured worker can receive total disability workers’ compensation benefits. However, as a practical matter, it is difficult to receive total disability benefits in PA for more than two years. After an injured worker in Pennsylvania has received total disability benefits for 104 weeks, the workers’ compensation insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE).

An IRE is somewhat different than an Independent Medical Examination (IME), as the doctor who performs an IRE is selected by the Pennsylvania Bureau of Workers’ Compensation (the workers’ compensation insurance carrier selects the doctor in an IME). The doctor who performs the IRE will examine the injured worker and review records. Subsequently, the doctor will decide what percentage the injured worker is impaired from the work injury. This percentage is determined by guidelines developed by the American Medical Association.

If the injured worker is found to be less than 50% impaired by the work injury, the workers’ compensation insurance carrier may be able to have the status of the disability changed from “total” to “partial.” While this change does not effect the amount of workers’ compensation benefits the injured worker receives, it does put a time limit on how long the benefits can be received. An injured worker in PA can only receive partial disability benefits for a maximum of 500 weeks.

Pennsylvania Workers’ Compensation Lawyer Blog