Pennsylvania Workers' Compensation Lawyer Blog

April 24, 2020

Late Issuance of NSTC After Last Workers’ Compensation Check Does Not Convert NTCP to NCP

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.

April 16, 2020

Coronavirus (COVID-19) Workers’ Compensation Legislation in PA

by Glenn Neiman

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.

April 6, 2020

Dina Brilliant, of Brilliant & Neiman LLC, Named Co-Chair of BCBA Solo & Small Practice Section

by Brilliant & Neiman

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.

April 1, 2020

Affidavit No Longer Required for Notification of Modification or Suspension in PA Workers’ Compensation

by Glenn Neiman

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:

March 23, 2020

Coronavirus (COVID-19) Can Be Work Injury in PA

by Glenn Neiman

We are all struggling through an unprecedented time due to the novel coronavirus (COVID-19). This global pandemic has infected thousands, and forced the sheltering of millions and closure of businesses across the world (including our offices). In Pennsylvania, hundreds have already been infected, with experts predicting the spread to get worse, before it gets better.

This condition attacks the respiratory system, and can cause grave bodily harm, especially in those particularly vulnerable. Disability, and death, can result from this condition.

We have started to receive telephone calls on whether being infected with COVID-19 can be a “work injury” under the Pennsylvania Workers’ Compensation Act. The short answer is yes, potentially, such an infection could be considered a “work injury” in PA. Basically, the typical analysis we use for any potential workers’ comp case would be applied in this type of case.

March 20, 2020

Brilliant & Neiman LLC to Close Due to Coronavirus Pandemic

by Glenn Neiman

By now, most Pennsylvanians have heard that Governor Tom Wolf has ordered all non-life-sustaining businesses in PA to close their physical locations, as of 8:00 p.m. on March 19, 2020. Along with this announcement, the Governor’s office released a list of what businesses qualify as “life-sustaining.” Law firms are specifically excluded from this list. Obviously, we all want to see the end of the Coronavirus pandemic, and we all must do our part. As such, Brilliant & Neiman LLC will abide by the orders of the Governor and close our physical offices until further notice.

Please be advised that our attorneys will still be working remotely, and are available to both existing clients, as well as any injured workers needing assistance at this difficult time. You can call us at 215-638-7500, or 610-740-1002, and leave a message on the voicemail of either Dina Brilliant or Glenn Neiman, or you can e-mail them at dbrilliant@bnlegal.com or gneiman@bnlegal.com. We will get back to you as soon as possible.

We ask for your patience in these trying times. We are working hard to serve the needs of our clients, as well as help contain the spread of the Coronavirus. We will provide updates as they are available.

March 16, 2020

Update on Coronavirus Impact on PA Workers’ Compensation System

by Glenn Neiman

***UPDATE 3/17/20*** A statement was issued by Joseph DeRita, Director of the Pennsylvania Workers’ Compensation Office of Adjudication:

“As you are all aware, Governor Wolf ordered the closure of all Pennsylvania state government offices for 14 days effective Tuesday, March 17, 2020. All hearings and mediations scheduled during that time are cancelled and will be rescheduled as soon as practicable. Some of the WCJ’s, who are already equipped to work from home, have already reached out to discuss rescheduling arrangements for mediations. Those will go forward. In addition, in an effort to provide some adjudicatory services, I have authorized the use of telephone hearings on a limited basis for Petitions to Approve C & R Agreements. Requests to schedule C & R hearings will be accepted beginning March 17, 2020 in the Southeastern and Eastern district offices only as described below. We hope to expand this limited service to the Central and Western districts by week’s end. Beyond that, we will be expanding WCJ telework capabilities generally to conduct telephone hearings on other types of petitions.

For now, the protocol to request a special C & R telephone hearing during the time of government shutdown is as follows: send an e-mail request to the Judge Manager of the district in which the case is pending (JM Karen Wertheimer, Eastern District,kwertheime@pa.gov and JM Holly San Angelo, Southeastern District, hsanangelo@pa.gov). Your request must include the case caption, dispute #, names and e-mail addresses of counsel and whether the case requires translation services (include language of testimony to be translated). WCOA staff will schedule the court reporter. The JM will re-assign the case to a specially selected WCJ who will then schedule and conduct the C & R hearing telephonically. Claimant must be present in Claimant’s counsels office. The C & R agreement must be notarized. The WCJ assigned to hear the case will advise how the telephone conference is to be arranged and how the C & R documents are to be transmitted prior to the telephone hearing.

March 13, 2020

PA Workers’ Compensation System and Coronavirus

by Glenn Neiman

By now, we are all too familiar with the Coronavirus (COVID-19). At this point, governments, individuals and businesses are still evaluating how best to protect each other and ourselves against this pandemic.

The Bureau of Workers’ Compensation is largely still open and operating on a normal basis. Hearings are generally still taking place, though the situation is being monitored. One hearing office, however, has been closed for at least a two week period. The Dresher Workers’ Compensation Hearing Office will be closed from March 13 through March 27, 2020. We are told that all hearings and mediations scheduled there are cancelled and will be rescheduled. The Dresher office serves injured workers who live in Eastern Montgomery County (or cases otherwise based in that region); cases based in Western Montgomery County, in the Malvern Workers’ Compensation Hearing Office, will take place as scheduled.

Brilliant & Neiman LLC will remain open, and our attorneys are available to injured workers. However, we will be trying to abide by CDC recommendations, and avoiding personal contact, including hand shaking. We also ask visitors to our offices to use hand sanitizer at our door.

March 4, 2020

PA Workers’ Compensation Hearings Moving From Bucks County Courthouse

by Glenn Neiman

Pennsylvania workers’ compensation hearings are generally held in each county in the Commonwealth. Some smaller counties may share hearing facilities, while more populous counties may have a second location. The county in which the injured worker resides is typically the county in which hearings will be held, provided the injured worker lives in PA.

For several years, hearings in Bucks County have been divided between Bristol (for Lower Bucks County) and Doylestown (for Central and Upper Bucks County). While that will still be the case, hearings in Doylestown which had been held at the Bucks County Courthouse will now be moved to the Bucks County Administrative Building (which is across the street from the Courthouse). For those unfamiliar with Doylestown, the Bucks County Administrative Building is actually the former courthouse. While the two buildings are across the street from one another, injured workers should be sure they are heading to the correct hearing location.

Bucks County is not the only one with multiple hearing locations. Several others split their cases between two offices. Montgomery County spreads its caseload between Malvern (for Western Montgomery County) and Dresher (for Eastern Montgomery County). Injured workers who reside in Northampton County may have hearings in Tannersville (North) or Easton (South). Philadelphians used to have the convenience of hearing locations in both Center City Philadelphia and Northeast Philadelphia, but the latter was closed several years ago.

February 5, 2020

Refusing a Modified Job Offer Haunts Injured Worker Years After

by Glenn Neiman

Ordinarily, reinstating PA workers’ compensation benefits for an injured worker is not a high burden. As we have previously discussed, usually benefits can be reinstated when the reason for the suspension of workers’ comp benefits no longer exists. When the injured worker once again suffers a loss in earnings due to the work injury, through no fault of the injured worker. benefits are to be reinstated. Case law tells us that a medical deposition is not even required in such a situation.

However, the relative burden of proof changes drastically when there has been a finding of “bad faith” with regard to a modified job offer. Pennsylvania’s appellate courts have consistently held that all work is equal and that an injured worker cannot refuse a job offer for reasons unrelated to the work injury. To do so would entail a finding of “bad faith,” which will stick to the injured worker for the life of the work injury. A recent case in the Commonwealth Court of Pennsylvania demonstrated the drastic effect a “bad faith” finding can have on an injured worker in PA.

In Tyson Shared Services, Inc. v. Workers’ Compensation Appeal Board (Perez), the injured worker suffered a significant injury to his right shoulder on December 3, 2014. This required two surgical procedures. Shortly after the second surgery, the injured worker was offered a modified-duty janitorial position, which was consistent with the physical restrictions set by the treating surgeon. For reasons not discussed in the decision, the injured worker refused this job offer. A Claim Petition was litigated, resulting in a decision by a Workers’ Compensation Judge (WCJ) granting temporary total disability benefits, but then suspending the benefits as of the date of the modified-duty job offer.

Pennsylvania Workers’ Compensation Lawyer Blog