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Back in 2017, we shared the exciting news (hey, we attorneys have a unique sense of excitement!) that the entire Impairment Rating Evaluation (IRE) section of the Pennsylvania Workers’ Compensation Act (Act) was declared unconstitutional by the Supreme Court of PA (The Protz case) and stricken from the Act.  This, of course, stopped attempts by the insurance industry to get an IRE at all.

Not able to live with themselves in a world without IREs (oh, the horror), the Pennsylvania legislature passed Act 111.  This brought back the IRE process, albeit with a specific identification of which version of the Guides to the Evaluation of Permanent Impairment, put forth by the American Medical Association, need be used (the failure to so identify was largely the reason the prior IRE law was stricken).  Act 111 also lowered the threshold for continued total disability from 50% to 35% whole body impairment (for a better explanation of the IRE process, see our website).

Recently, the Commonwealth Court of PA addressed to what extent Act 111, which was enacted on   October 24, 2018, would be retroactive.  The case of Rose Corporation v. Workers’ Compensation Appeal Board (Espada) involved a work injury of September 6, 2006.  On May 22, 2013, the insurance carrier had obtained an IRE under the old (stricken) IRE law.  The IRE used the correct edition of the AMA Guides, and found a whole body impairment rating of less than 35%.  As a result, the insurance carrier wanted to use the 2013 IRE to obtain a change of benefit status, from total to partial, under Act 111.

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We have previously discussed on this blog the difficulties in differentiating shoulder injuries to injured workers, noting that according to medical literature, several conditions can account for similar symptoms in a similar area.  Some recent articles have now shed light on some difficulties in diagnosing a concussion versus a whiplash injury, given the similar presentation between the two conditions.

According to an article in the Journal of Orthopedic & Sports Physical Therapy, since the presenting symptoms of concussion and whiplash can be similar (neck pain, headache, dizziness, and concentration deficits), and the causes of both conditions (biomechanically) is similar, there is a very real risk of misdiagnosis.  This is seems especially prevalent in the workers’ compensation system where panel physicians hesitate to refer injured workers to specialists, or for diagnostic testing, to avoid angering either the employer or the workers’ compensation insurance carrier.  The very nature of the panel physician/employer relationship unfortunately creates an incentive for the panel physician to undertreat the injured worker and return him or her to full duty before the injured worker is ready to do so.

While many times either a concussion or whiplash will resolve within a three month period, in those cases where it does not, misdiagnosis can be very dangerous.  Paul Lagerman (“a Physiotherapist with 20 years of experience in pain management, musculoskeletal injury and rehabilitation”), posted a deep analysis of this problem, along with the dangers and effects of not understanding what condition is actually in need of medical treatment.  This can cause the problem to linger far longer than necessary.

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As we noted in our June 2020 update, the Pennsylvania Bureau of Workers’ Compensation began to (technically) allow limited in-person hearings, in counties which have been declared to be in the “Green” phase by Governor Wolf.  This announcement was made on June 12, 2020, to take effect June 19, 2020.  As a practical matter, we have yet to have an in-person hearing scheduled.  Regular hearings continue to operate by telephone conference, with video conference as the other option.

There appear many different feelings among Workers’ Compensation Judges (WCJs) regarding the taking of testimony of an injured worker or fact witness.  Some WCJs have expressed an interest in video conferencing for the testimony of the injured worker and fact witnesses (for which the Bureau appears to be using Skype for Business primarily, though I understand there is discussion of other platforms).  On the other hand, since the WCJ cannot know who else is in the room, other WCJs want simply deposition testimony of the injured worker or fact witnesses, feeling they get no advantage by watching the video.  I tend to agree with a WCJ who told me that, as long as he can watch the eyes of a witness, he can tell if they are being coached or reading notes.  Another WCJ explained that she did not want in-person testimony of my client, since the required use of a mask took away from the WCJ’s ability to fully evaluate the demeanor of my client.  This would not be an issue with video conference.

While we, as attorneys for the injured workers, really want the WCJ to personally see our client while he or she testifies, antagonizing a judge is never a good idea in litigation.  For the most part, WCJs will generally agree to videoconferencing of the injured worker testimony, since in-person is not commonly available.  This seems to be the most reasonable alternative.

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As more counties across Pennsylvania reach the “Green” phase in the COVID-19 recovery process, attorneys involved in the PA workers’ compensation process were curious to know how this will impact the operations of the Bureau of Workers’ Compensation.  Yesterday, we were advised by the Bureau that, “(t)he designation of counties as ‘green’ does not automatically signal a return to in-person hearings.”  Instead, live, in-person hearings will only be permitted in limited situations.  This will be at the discretion of the Workers’ Compensation Judge (WCJ), where the WCJ feels it critical to have in-person testimony of a witness to properly assess credibility.  In-person hearings will only be permitted in counties that are in the “Green” phase of COVID recovery.

Either party can request that testimony of a witness be taken in-person, but the WCJ will have complete latitude to grant or deny the request.  Such a request should “include a justification and the position of the opposing party on the request.”  The WCJ can also determine, on his or her own motion, that in-person testimony will be necessary.

Significant changes will be made to prior procedures in the workers’ compensation hearing offices.  Only one Judge will hold hearings per day, and there will be a scheduled break between cases, so that an interim cleaning can be performed.  As the Bureau notes, “Each individual who enters the office has a personal responsibility to follow the CDC and DOH guidelines for handwashing, social distancing, wearing masks, and staying home if sick.”  All attendees to a hearing will be screened by security (to ask about wellness, in addition to the typical security screening).  No persons will be permitted to enter a workers’ comp hearing location without a mask (sadly, the new normal).

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Once an injured worker in Pennsylvania establishes an entitlement to workers’ compensation benefits (when out of work, the benefits are known as “temporary total disability benefits” or TTD), the workers’ comp insurance carrier cannot just stop paying the benefits at its discretion.  This is one of the advantages of the workers’ compensation system in PA.

Unless the injured worker settles the case, or agrees that he or she has returned to gainful employment at (or above) the pre-injury earnings, there are very few situations an insurance company can stop the TTD benefits without an order of a Workers’ Compensation Judge (WCJ).  Indeed, even an order of a WCJ can only be obtained in certain circumstances, such as when the insurance carrier proves the injured worker has fully recovered from the work injury, or that work is available to the injured worker within his or her physical capabilities.

Given the difficulties workers’ comp insurance carriers face in PA trying to stop the payment of TTD benefits, the companies are always searching for new ways to accomplish this goal.  One of the relatively recent ways to attack the payment of benefits is by alleging an injured worker has voluntarily removed him or herself from the labor market.  Proving such an allegation allows the stoppage of TTD payments without having to demonstrate any job availability.

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Yesterday, our attorneys participated in a webinar dealing with the continuing impact the Novel Coronavirus (COVID-19) is having on the Pennsylvania workers’ compensation system.  We have already participated in hearings using Skype for Business, and understand some Workers’ Compensation Judges (WCJs) are experimenting with the WebX platform.  Zoom had been used on occasion, but apparently some security concerns have rendered that unusable for our purposes.

Depending on the case and the situation, some attorneys, and the WCJs, are agreeing to simply delay the testimony of an injured worker for later in the case, hoping we will be able to have in-person hearings again in the somewhat near future.  However, given the uncertainty in timing, there is often a need to move forward, at least with video, in addition to audio.  We believe it is critical for the WCJ to actually see the injured worker testify, since so much comes down to simply whether the WCJ believes the injured worker or not.

Even in ordinary circumstances, the procedures followed by a WCJ vary widely, sometimes even in the same workers’ compensation hearing office.  For this reason, there is a “Judge Book,” detailing the practices and procedures for each WCJ in the Commonwealth.  Now, on the page for each WCJ, you will see “CLICK HERE TO VIEW THE JUDGE’S SPECIAL PROCEDURES DURING THE GOVERNOR’S EMERGENCY DECLARATION DUE TO COVID-19.”  Here you will find how any particular WCJ is handling cases in the current COVID-19 era.

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This blog does not address Coronavirus (COVID-19) and how it relates to PA workers’ compensation.  Which is good, because I think we are all tired of seeing the words “Coronavirus” or “COVID-19.”

Instead, we are looking at a recent decision from the Commonwealth Court of Pennsylvania, wherein the Court looked at the effect of a workers’ compensation insurance carrier issuing a Notice Stopping Temporary Compensation (NSTC) more than five days after the last payment of workers’ comp benefits under a Notice of Temporary Compensation Payable (NTCP).  The short answer is there is not much consequence to the insurance company.

When a workers’ comp insurance carrier is not sure whether a work injury claim in PA is compensable, the insurer has the option of issuing an NTCP, which allows the payment of workers’ compensation of benefits to start, while still allowing the insurer to complete its investigation and still have the option to deny the claim.  In theory, the NTCP is a win-win proposition.  In theory.

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Today, our attorneys participated in a conference call (so as to maintain social distancing) with workers’ compensation attorneys across the State of Pennsylvania, as well as lobbyists, regarding the status of the workers’ comp system in PA as we all deal with the Coronavirus (COVID-19).  We discussed pending legislation in the Pennsylvania House and Senate, as well as how we are all handling cases under the shutdown as ordered by Governor Wolf.

There is legislation being worked upon by PA House Democrats, but nothing substantial is expected to be passed.  The issue that appears most concerning to legislators is making sure those essential workers on the front lines, the doctors, nurses, first responders, and the like, are protected should they develop the Coronavirus (COVID-19).  While this is a noble goal, the Pennsylvania Workers’ Compensation Act already does provide protection in such a situation.  As we note on our website, when an employee is exposed to a substance (or disease) in the workplace, and is rendered disabled by the exposure, there exists a valid workers’ compensation case.  We would also note that the healthcare workers are not the only employees on the front lines in this situation.  Workers in grocery stores, like stockers and cashiers, restaurant workers, warehouse people and delivery drivers, just to name a few, are also at risk for catching COVID-19 through workplace exposure.

As to the Pennsylvania workers’ compensation system, cases are continuing to be litigated.  Often this is being done by telephone conference, though some Workers’ Compensation Judges (WCJs) are using videoconference (which is important when an injured worker, or critical witness, is testifying, so the WCJ can better determine whether to believe such testimony).  Since none of us know how long the government-ordered shutdown will continue, it is critical to the system (and the lives of injured workers throughout PA) that cases continue to be litigated.

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With all of the attention justifiably focused on the fear and severity of the COVID-19 pandemic, it might be nice for us to change gears, and have a blog post that does not mention COVID-19 (well, doesn’t mention it again!).

The attorneys at Brilliant & Neiman LLC have always been involved in Bar Associations in the counties in which they practice.  In particular, our attorneys are leaders in the Bucks County Bar Association (BCBA), the county in which two of our offices, including our headquarters in Warminster, are located (the other Bucks County office is in Trevose, near Bensalem and Philadelphia).  Both Dina Brilliant and Glenn Neiman are past co-chairs of the Workers’ Compensation Section of the BCBA.

So, it is with great excitement, and pride, that we announce that Dina Brilliant has been named co-chair of the BCBA Solo & Small Practice Section.  As a small firm, we understand the challenges faced by both solo practitioners, and small firms, and Ms. Brilliant looks forward to leading the Section in the coming months.

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As we have previously discussed, within the Pennsylvania Workers’ Compensation Act, there lies a trap for unwary injured workers.  Actually, there are many traps in the Act, but for today, we’ll just deal with this one.

When a workers’ comp insurance carrier thinks (and this is a critical word) that an injured worker has returned to work, the insurance company can file a Notification of Modification (if there remains a partial wage loss) or a Modification of Suspension (wages are believed to be at or higher than the pre-injury wages).  If there is no “challenge” filed by the injured worker, within the allotted time period, the Notification of Modification or Suspension has the same legal effect as if the injured worker has agreed to the change in status.  This is certainly a trap for an injured worker who knows better than to sign a document without legal counsel, but is unaware that not signing a document can also have dire consequences.

The PA Bureau of Workers’ Compensation announced that:

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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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