Pennsylvania Workers' Compensation Lawyer Blog

Can Potential Carpal Tunnel Syndrome be Predicted?

Fri, 17 May 2013 10:21:15 -0500

In the Pennsylvania workers’ compensation system, we frequently see cases involving carpal tunnel syndrome (CTS). As many of you know, this condition occurs when the median nerve is entrapped in the wrist. There are many potential causes of CTS, including familial history, certain medical conditions, trauma and certain physical activities. CTS can also occur “idiopathically” (without a known cause). Frequently, we see litigation regarding whether CTS in any given case is related to the work activities.

Are we all at the same risk to develop CTS? According to a recent study published in the Archives of Physical Medicine and Rehabilitation, and referenced in The Wall Street Journal recently, the size and shape of a person’s hand and wrist can show whether that person is predisposed to the development of CTS. Specifically, if a person has a “short and wide hand with square wrist matching to narrow and deep tunnel entrance,” that person has an increased likelihood for developing CTS. Of course, that leads us into an examination of what causes CTS, and whether CTS in any given case can be accepted as a work-related injury.

According to the University of Maryland Medical Center, “Work that involves high force or vibration is particularly hazardous (to developing CTS), as is repetitive hand and wrist work in cold temperatures.” They also note that repetitive use of the hands and wrists can cause repetitive stress disorder, overuse syndrome and chronic upper limb pain syndrome. Similarly, the National Health Service in the United Kingdom relates that CTS can be triggered by activities with “strenuous grip, repetitive wrist flexion and exposure to vibration,” including motions associated with manual labor. This is consistent with the view of the National Safety Council, who noted that “(r)epetitive manual work tasks requiring a forceful grip and use of vibrating tools can damage the median nerve in the arm, contributing to CTS.”

As you are reading this, also understand that for an injury to be compensable under the Pennsylvania Workers’ Compensation Act, the work duties do NOT need to have CAUSED the CTS. It is sufficient if the work duties “aggravated” the underlying condition, rendering the injured worker disabled. Whether the injured worker may have eventually developed CTS, even without the work activities, is irrelevant. Similarly, whether the injured worker had the size and shape of his or her hand and wrist to be predisposed to CTS has no meaning. We simply take what we actually know – the injured worker performed his or her work duties and developed CTS as a result.

Certified as Specialists in the Practice of Workers’ Compensation Law

Tue, 07 May 2013 09:26:05 -0500

One of the most difficult decisions faced by an injured worker in PA is how to decide who to hire as their worker’s compensation attorney. Many sites, or publications, have a list of attorneys they tout. Maybe they are called “Super” attorneys or “Awesome” lawyers, or some other cleaver marketing name. What standards do they use? Are they objective? Is there really merit in being named? Who knows. Now, however, there is an objective, regulated selection process authorized by the Pennsylvania Supreme Court.

As we mentioned before, Pennsylvania has created a Workers’ Compensation Law Certification process. First, an attorney is screened to be certain he or she possesses the requisite experience to sit for the examination (a minimum of five years practicing in workers’ comp is required). Specific cases must be provided, including briefs and written arguments. The attorney must certify that at least half of his or her practice is devoted to PA workers’ comp matters. Only then is the attorney even allowed to sit for the examination test.

This test was given for the first time in March, 2013. The grueling four hour assessment covered every aspect of PA workers’ compensation law, thoroughly testing each applicant’s knowledge of the workers’ comp system. Both multiple choice and essay questions were involved.

Brilliant & Neiman LLC is proud to report that both of its attorneys, Dina Brilliant and Glenn Neiman, qualified for, and then passed, the examination process. Each is now “Certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court.”

Importantly, at Brilliant & Neiman LLC, no client is handled by an associate, or anyone other than one of the two partners. No matter whether you are represented by Ms. Brilliant or by Mr. Neiman, you are certain to receive the level of care which can be expected by an attorney certified as an expert in the field. Whether they are “Super” or “Awesome” may be a subjective conclusion; however, it cannot be debated that Ms. Brilliant and Mr. Neiman are now certified as specialists in the practice of workers’ compensation law.

Brilliant & Neiman LLC Involved in Mediation Working Group with Bureau

Wed, 01 May 2013 10:00:54 -0500

Mediation is a growing area in Pennsylvania workers’ comp. As we have previously discussed, a mediation is when an independent party, in this context usually a Workers’ Compensation Judge [WCJ] (other than the assigned WCJ), meets with the parties in an informal setting in an effort to resolve the differences between the parties. The ultimate goal is to achieve a settlement to the case (usually done by “Compromise & Release Agreement”).

Since we at Brilliant & Neiman LLC work with injured workers every day, having constant contact with the Pennsylvania workers’ compensation system, we are well-versed in most aspects of how the system functions from day to day. We are proud that our knowledge and experience will be used by the PA Bureau of Workers’ Compensation, as the Bureau adjusts the system to change with the times.

Since the start of “Mandatory Mediation,” added to the Pennsylvania Workers’ Compensation Act in the 1996 amendments to the Act, the system has been relatively stagnant. Recently, the Bureau has sought a small working group to evaluate the mediation system and see what, if any, changes could be beneficial to the mediation process.

In the near future, a small group of attorneys will meet with Elizabeth Crum, the Bureau’s Director of Adjudication, The Honorable David Cicola (Judge Manager for the Western District), The Honorable Joseph Hagan (Judge Manager for the Southeastern District [Philadelphia and Upper Darby (Delaware and Chester Counties)]) and The Honorable Karen Wertheimer (Judge Manager for the Eastern District [Allentown (Lehigh County), Bristol (Bucks County), Lancaster (Lancaster County), Malvern (Montgomery County), and Reading (Berks County)]).

Both attorneys of Brilliant & Neiman LLC, Dina Brilliant and Glenn Neiman, will be involved in this meeting. The intention of the meeting will be to have an open discussion about the mediation process, where thoughts and concerns of the attorneys can be voiced and addressed, hopefully leading to the entire mediation system being improved.

Failed Drug Test Damaging to PA Injured Worker

Wed, 24 Apr 2013 09:24:03 -0500

The general rule in Pennsylvania workers’ compensation is that if a work injury makes you unable to work, you should be entitled to workers’ compensation benefits. One of the exceptions to this rule is when the loss of wages is due to some reason unrelated to the work injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Brewer v. Workers’ Compensation Appeal Board (E2 Payroll & Staffing Solutions). The Claimant injured his low back when he was pinned by a forklift. As is their known policy, the employer had the hospital take a drug test of Claimant after the injury. Claimant failed the drug test, and admitted he used cocaine and marijuana a few days before the work injury. Since the employer has a zero-tolerance policy on drug use, Claimant was fired immediately.

Claimant filed a Claim Petition, seeking payment of his lost wages. In the litigation, the doctor secured by the workers’ compensation insurance carrier testified that the incident at work had caused a herniated disc in the lumbar spine, and that this damaged disc was irritating a nerve (a condition called “radiculopathy”), but that Claimant was capable of working at a light duty position. The employer had a representative testify that light duty work would have been available to Claimant, if he had not been terminated for failing the drug test. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended wage loss payments, finding the loss in earnings to be unrelated to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. Initially, Claimant argued that benefits cannot be suspended here because the workers’ comp insurance carrier failed to issue a Notice of Ability to Return to Work. While the Court agreed that this document is generally a threshold requirement before the workers’ comp insurance carrier can try to suspend benefits based on a job offer or a Labor Market Survey, the Court found this issue different:

“Here, the WCJ found that although Claimant had suffered a work-related injury, his loss of earnings was caused by his misconduct, not his injury. A notice of ability to return to work was not required because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. The Board did not err in suspending benefits as of the day of Claimant’s work injury.”

The injured worker then argued that being fired from work was not proof that he did not have a loss in earnings. The Court rejected this contention similarly, noting that the loss in earnings here was the result of the misconduct of the injured worker, having nothing to do with the work injury. An argument that there was not sufficient evidence that Claimant actually failed the drug test was also rejected, since the WCJ credited evidence, including Claimant’s own admission of drug use, that corroborated the drug test. A final argument was not addressed by the Court, since the injured worker failed to raise this argument in the appeal to the WCAB (an argument is waived if not raised in the initial appeal).

Retirement in Workers’ Comp Again Addressed in PA

Tue, 16 Apr 2013 09:31:19 -0500

Fresh from the PA Supreme Court decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), comes a decision from the Commonwealth Court, again addressing the interplay between the concept of “retirement” and the continued entitlement to workers’ compensation benefits in Pennsylvania.

In the matter of Fitchett v. Workers' Compensation Appeal Board (School District of Philadelphia), the primary issue was actually procedural, rather than whether the “retirement” was proven, or which side had the burden of proof. Though other Petitions were pending, the relevant one was a Petition for Termination, alleging that Claimant had fully recovered from her work injury. Notably, in an “interlocutory” order (a temporary order, not usually subject to appeal), the Workers’ Compensation Judge (WCJ) granted Defendant an offset for both a pension and Social Security Retirement (SSR) benefits being received by the Claimant.

While testifying in defense to the Petition for Termination, Claimant was asked whether she considered herself retired. Claimant had responded, “Well, I’m collecting retirement.” In subsequent testimony, she clarified that if not for her work injuries, she had planned to continue working. When asked directly whether she was retired, however, Claimant responded, simply, “yes.” Again, Claimant later clarified that she meant she had to leave her employer due to her injuries. Claimant testified she had not looked for any work, and forms from her treating doctors, wherein Claimant described her occupation as “retired,” were offered into evidence.

The WCJ reviewed deposition testimony of two doctors who had performed Independent Medical Examinations (more accurately known as Defense Medical Exams), and also a deposition of Claimant’s treating neurologist. The WCJ concluded that the work injury was limited to a sprain of the left shoulder, left thumb, neck and lumbar spine, and that all but the left shoulder had healed.

Since Claimant had not fully recovered from the entire work injury, the standard in a Petition for Termination, the WCJ properly denied the Termination. However, though the Defendant never filed a Petition for Suspension, or even placed on record an allegation of Suspension, the WCJ granted a Suspension, based on Claimant’s “retirement” and resulting voluntary withdrawal from the labor market.

In the Findings of Fact, WCJ said:

"The evidence at bar establishes [Claimant] applied for and receives her [Employer] pension and age-related Social Security benefits (N.T., November 2, 2004, p. 59-61), acknowledged to [Neurologist] that she had retired, indicated on an intake sheet of [Second IME Physician] that she retired (N.T. exhibit E-3, p. 11), acknowledged on December 30, 2008 that she “retired” (N.T. December 30, 2008, p. 29) and has not applied for any position in the local economy nor looked for any type of work."

The WCJ did not find the Claimant credible with regard to her intention to work, and did not believe the work injury, consisting only of a sprain, was sufficient to make Claimant disabled from all gainful employment. This decision was affirmed by the Workers’ Compensation Appeal Board.

The Commonwealth Court of Pennsylvania affirmed the WCJ on this issue (the matter was actually reversed in part, but not on any issue relevant to this discussion). Claimant should have been on notice through the proceedings that a suspension of benefits was possible. The “retirement” of Claimant was discussed, and a credit was being taken for pension and SSR benefits. The Court said the parties “fully litigated the issue of whether Claimant voluntary retired from the workforce.”

Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, an insurance carrier must file a Notice of Offset before it can take an offset against certain benefits, such as pension and SSR. In this case, Claimant then argued that Defendant could not take an offset, since no Notice of Offset was filed. The Court rejected this argument, saying the requirements of Section 204(a) only apply when an insurance carrier wishes to take the offset unilaterally; here, the WCJ had issued the interlocutory order, granting the offset. It was also noted that the amounts of each benefit being received were testified to by the Claimant.

One Judge dissented, not agreeing the issue of suspension, of retirement, was ever truly at issue, sufficient to lead to a suspension of benefits. In relevant part, the dissent observed:

“The matter regarding whether Claimant had voluntarily retired from the workforce was incidentally raised, as explained in the majority opinion, on cross-examination and was never the focus of the proceeding. The issue of whether Claimant had voluntarily retired was never raised by Employer either by petition or motion. Based on that scant testimony, the WCJ suspended benefits finding that Claimant had voluntarily retired from the workforce. I respectfully dissent because, based on the “totality of the circumstances,” that issue was not sufficiently raised for the WCJ to be able to consider it.”

Workers’ Comp in Michigan – Guest Blog

Fri, 12 Apr 2013 09:26:47 -0500

Our blog generally contains information regarding workers’ compensation in Pennsylvania, since that is the only type of case we handle. It is interesting, however, for our readers to learn about how the workers’ compensation systems in other States compare to that in PA. To that end, we are proud to present a guest blog from Alex Berman, Esquire, who practices workers’ compensation law in MI:

Guest Blog Post: Beware The Labor Market Survey

I want to thank Glenn Neiman for the opportunity to write today's blog post. It's always a pleasure to speak with an attorney who has devoted his practice to helping people who are injured at work.

While Pennsylvania and Michigan have different workers' comp systems, we can still learn from each other. Here is some information about wage loss benefits and why you should watch out for the "Labor Market Survey."

Both Pennsylvania and Michigan provide wage loss benefits to a person who is injured on the job. The amount and duration will depend upon individual circumstances. One important similarity is the use of vocational data to cut-off the payment of benefits.

Glenn tells me that Pennsylvania law allows an insurance company to reduce or stop ongoing benefits by showing that work is available. It does not matter whether the person is actually earning these wages. This is similar to what occurs in Michigan and presents serious challenges for our clients.

Insurance companies hire vocational counselors to complete Labor Market Surveys. These reports examine a specific geographical area and determine if jobs exist taking into consideration a person's restrictions, qualifications, and training. Controversy arises when the insurance company attempts to use the Labor Market Survey in an unfair way. A person may be told that he or she can work in an occupation never performed before. Some jobs might pay less than advertised or not really exist.

I tell my clients to watch out for certain red flags. Receiving a notice to meet with a vocational counselor is one of those warning signs. You should call an experienced workers' comp attorney if this occurs. You can challenge an unfair Labor Market Survey with your own vocational data. You can also present evidence of a good faith job search to demonstrate that work is not reasonably available.

- Alex Berman is the founder of Michigan Workers Comp Lawyers. He’s been representing injured and disabled workers exclusively for more than 35 years. Alex has helped countless people obtain workers comp benefits and never charges a fee to evaluate a case. He can be reached toll-free at (855) 221-COMP.

PA Workers’ Comp Insurance Rates Decline Again

Mon, 08 Apr 2013 09:29:08 -0500

Sometimes, one thing naturally follows another. Day follows night. Spring follows Winter. The relationship between the two things makes sense. Then we enter politics, and, as usual, logic and reason seem to trail behind.

We mentioned in previous postings that both the Pennsylvania insurance industry, and the Chamber of Commerce, has been heavily lobbying PA representatives and senators for reform to the Pennsylvania workers’ compensation system. Specific proposals and issues have been raised. One could reasonably draw from this angst that PA workers’ compensation insurance rates were steadily rising out of control. Indeed, one would imagine, given the effects of inflation, that the rates must be significantly increasing beyond normal inflationary levels.

It is most curious, then, that the Insurance Commissioner in Pennsylvania, Mike Consedine, recently proclaimed that workers’ comp insurance rates would actually DECREASE 4.01 percent as of April 1, 2013. For those imagining that this decrease must have followed some enormous increase, Commissioner Consedine noted that this “is the second workers’ compensation decrease in a row.”

Obviously, a decrease in workers’ compensation premiums will reduce the cost of doing business in the State of Pennsylvania, a result to the benefit of employers, employees and citizens of PA. According to the information provided by the Pennsylvania Insurance Department, this reduction in premiums represents a savings of $110 million to employers in PA.

So, given the decreasing cost of workers’ comp insurance in PA, one might ask why
the insurance industry and the Chamber of Commerce remain so focused on taking away the rights of the injured worker in Pennsylvania. Perhaps it is that they are so fixated on reforming workers’ comp in general that they failed to even notice rates are declining? Or, could it be that they value the health and safety of their employees so little that saving even more dollars is a higher priority?

People ask us why our firm limits its practice to representing the injured worker in Pennsylvania. The behavior of the Pennsylvania insurance industry, and the Chamber of Commerce, in trying to fix what isn’t broken, at the expense of their own employees, is the reason. Somebody has to stand behind those who have been injured. We want to be the ones to protect the injured worker from the insurance industry and the Chamber of Commerce.

Pain Relief For the Injured Worker Coming?

Tue, 02 Apr 2013 08:42:16 -0500

As attorneys who limit their practice to representing injured workers in Pennsylvania, we see many different conditions which affect various parts of the body. We see injuries to the feet, ankles and knees, the hands, arms and shoulders, the neck, back and the head. The constant? Well, that’s easy – pain. Often severe and devastating, the vast majority of injuries we see cause various degrees of pain.

Given our experience in dealing with folks in debilitating pain, we always have an eye on medical developments and research, especially when it comes to new ways of dealing with pain. And that is what makes the concept of a wearable pain patch being developed by Thimble Bioelectronics, and reported on Gizmag.com, so interesting.

This device is not your typical pain patch, like Duragesic or Fentanyl, which delivers regulated dosages of pain medication through the skin. This new device would actually be a miniature TENS unit (Transcutaneous Electrical Nerve Stimulation). A TENS unit delivers low voltage electrical stimulation, which provides relief without the use of heavy duty narcotic medications, which contain dangerous side-effects.

Instead of needing to use a full size TENS unit for relief, with this device, the injured worker would merely stick on a patch, roughly the size of a band-aid. Unfortunately, this device is still being developed, so it does not appear to be of any immediate help. However, it is always good to see things on the horizon which can potentially provide relief to the injured worker in PA.

Suspension for “Retirement” Not So Easy for PA Workers’ Comp Insurance Carriers; PA Supreme Court Affirms Robinson

Wed, 27 Mar 2013 09:30:35 -0500

As readers of our blog surely know by now, the relationship between the “retirement” of an injured worker and continued entitlement to Pennsylvania workers’ compensation disability benefits is a frequent topic in appellate litigation. The decisions in both the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania are regular enough that we, as attorneys who limit our practice to representing injured workers in PA, need to stay informed to best protect our clients.

Back in 2010, we discussed the decision of the Commonwealth Court of PA in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). In that case, the Commonwealth Court established that the taking of a disability pension, as opposed to a retirement pension, was not an indication of retirement. Therefore, the Court held that the workers’ compensation insurance carrier still had to prove that work was available to the injured worker in order to obtain a suspension of her workers’ compensation disability benefits. In 2011, we reported that the workers’ comp insurance carrier had filed a petition for review with the Supreme Court (Requested “allocatur”) and the Court granted the allowance of appeal.

Recently, the Supreme Court of Pennsylvania issued a decision, affirming the decision rendered by the Commonwealth Court. However, whereas the Commonwealth Court drew a distinction between a “disability” pension (as in this case) and a “retirement” pension, the Supreme Court held that the taking of a pension, regardless of what type of pension, does not (by itself) trigger any type of presumption (or in other words, a workers’ comp insurance carrier must prove more than that the injured worker took a pension to show that the injured worker “retired,” to obtain a suspension of the workers’ compensation disability benefits).

As the Supreme Court observed, the argument advanced by the workers’ comp insurance carrier did not make sense to lead to a presumption of retirement:

“Furthermore, we do not believe it self-evident, or even logical to presume, from
the simple fact that a claimant accepts a pension, a conclusion that the claimant has
completely and voluntarily withdrawn from the workforce, or is prohibited from working
in any capacity.”

The Court went on to say that the taking of a pension is still relevant. It may be used by a Workers’ Compensation Judge (WCJ) as a “permissive inference” that an injured worker is retired, but it is only a single factor in the analysis. As the Court said, “the receipt of
a pension is not sufficient evidence, in and of itself, to discharge the employer’s burden
of proof.” The proper course for a WCJ is to examine all of the evidence, not just that single fact, and consider the taking of the pension in the context of the totality of the circumstances. According to the Court, relevant factors may include, “the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.”

Here, the WCJ found that the injured worker was seeking employment, and that she would have been working had the Employer not terminated her modified-duty job. Thus, the totality of the circumstances indicated that the injured worker had not “retired,” so the workers’ comp insurance carrier was not entitled to a suspension of benefits.

PA Workers’ Comp Paid by Check

Thu, 14 Mar 2013 09:30:24 -0500

One of the important jobs we have, as attorneys who represent injured workers in Pennsylvania, is to educate our clients about the PA workers’ compensation system. It is vital to us that our clients fully understand their rights and responsibilities under the PA Workers’ Compensation Act, and the appellate cases which have interpreted the Act. Sometimes one of the biggest obstacles we face is the mass of disinformation floating out there.

For example, recently there was an article on a local Philadelphia news affiliate about how those on unemployment compensation and workers’ compensation benefits would be saving money due to the development of new debit cards, which would have fewer fees.

The article said that, “About 150,000 people – or a bit more than 40-percent of Pennsylvanians who get workers comp or unemployment benefits – get them through debit cards.”

Just one problem with that . . . we have never seen a single workers’ compensation recipient get paid by debit card. This may take place in the unemployment compensation arena, but not in workers’ comp. Almost universally, injured workers receive their workers’ comp benefits by check. Unfortunately, it is articles like this which can create unrealistic expectations for injured workers.

Yet another reminder of why an injured worker should be represented by attorneys who are experienced in PA workers’ compensation law.

Developments in “Walking” for Paralyzed Injured Workers

Tue, 12 Mar 2013 13:06:53 -0500

A few months ago, we shared our excitement about the ReWalk motorized exoskeleton. We are now proud to note that one of our very own clients is working with another of these devices, called Ekso, through Good Shepherd Rehabilitation Hospital in Allentown, PA.

According to Susan Golden, Director of Neurorehabilitation at Good Shepherd, the facility became the first rehabilitation center in the entire Country to be trained in the upgraded Ekso device. They had been the third center in the Country to receive the Ekso unit back in March, 2012.

Working with Good Shepherd, our client, Jason A., has been an inspiration to other injured workers. Back in June of 2010, a farming injury left Jason paralyzed from the waist down. A young man, only 33 years old at that time, Jason has never stopped working and hoping for further recovery. When the doctors told him he had irreparable damage to his spinal cord, and that he would never walk again, Jason simply took that as a challenge rather than a sentence.

As Jason explained:

“It is exciting to be part of something so new in technology. Gives you hope to keep on working for something. Many people I have seen in my situation at Good Shepherd just give up and fall off the face of the earth. If something good has come out of this, it is that I am using my hard work and positive attitude to inspire others at Good Shepherd to keep working towards their goals.”

In May, 2012, Jason began working with the Ekso device. Through his efforts and perseverance, Jason became only the third person to do a step up a single stair with the new unit. Seeing progress like this is beyond exciting for the paralyzed injured worker. It spells hope, which had never been there before. Jason is continuing to work with the Ekso unit and continuing to make progress.

We hope that Jason’s dedication and hard work can be an inspiration to all injured workers, not just those who have suffered catastrophic spinal injuries. The fact that his great effort has given Jason hope should be a motivation to every injured worker in Pennsylvania. The commitment and determination shown by Jason makes us proud to be his attorneys.

ACL Tear Does Not Automatically Mean Surgery

Tue, 19 Feb 2013 11:44:25 -0500

A frequent injury we see in PA workers’ compensation cases is a tear of the anterior cruciate ligament (ACL) in the knee of the injured worker. In the past, this type of injury automatically required extensive reconstructive surgery to repair the tear. As we mentioned in a blog a few years ago, the thought process was changing to recommend rehabilitation before resorting to surgery.

Recently, the website for Andrews Institute for Orthopaedics & Sports Medicine referenced a study performed on skiers, which showed that approximately a quarter of those patients with a torn ACL can avoid surgery entirely, instead just rehabilitating the knee with physical therapy. Many sports fans are no doubt familiar with Dr. James Andrews, the head of this facility, who serves as orthopedic consultant for many college and professional sports teams.

The ACL is one of four ligaments in the knee. The others are medial collateral ligament (MCL), lateral collateral ligament (LCL) and posterior cruciate ligament (PCL). The primary function of the ACL is to prevent the shin bone from sliding out in front of the thigh bone. When this ligament is torn, the injured ACL is less able to control knee movement, and the bones are more likely to rub against each other. This can damage adjacent structures and can lead to osteoarthritis in the knee.

Since having immediate surgery for a torn ACL may expose an injured worker to an unnecessary major operation, but waiting too long can cause damage to other parts of the knee and lead to a chronic debilitating condition, there is a need for quality medical treatment in the weeks after the work injury.

How long should an injured worker wait to see if surgery will be necessary? According to Dr. Robert Marx, an orthopedic surgeon in the Sports Medicine and Shoulder Service at the Hospital for Special Surgery in New York City who led the study, unless there is damage to other ligaments or parts of the knee, an injured worker should "wait and be reevaluated at six to 12 weeks unless there is some other obvious reason to do surgery . . .”

Change of Injury Description Barred by Court

Fri, 08 Feb 2013 11:02:45 -0500

Several years ago, we discussed the decision in Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.), wherein the Commonwealth Court of Pennsylvania precluded an injured worker from amending a description of injury, because the injured worker had previously filed a Petition to Review and did not address that body part or diagnosis.

We found that decision to be overly harsh, unfair to the injured worker, and counter-productive for the resolution of cases (in essence, the Court punished the injured worker for agreeing to resolve the first Petition to Review by Stipulation, rather than go through the litigation process). Now, for injured workers, things have gone from bad to worse.

Recently, the Commonwealth Court of Pennsylvania, in DePue v. Workers’ Compensation Appeal Board (N. Paone Construction, Inc.), had another opportunity to address this issue, and again elected to punish the injured worker for resolving some aspect of his case. We are again mystified as to why the appellate system insists on sending a message that resolution is full of dangers and is, perhaps, best avoided.

In DePue, the injured worker elected to settle the wage loss (“indemnity”) part of his case. This, as would be done typically, was accomplished by “Compromise & Release Agreement.” Since they were only resolving the wage loss part of the case, and the medical aspect was to remain open, the description of injury was not relevant to the proceedings.

When one settles a case by Compromise & Release Agreement, there is a specific form which must be used. The form has 19 numbered paragraphs. One of these paragraphs, Number Four, asks that the “nature of the injury” be stated. The Compromise & Release Agreement executed by Mr. DePue contained in this paragraph,“any and all injuries suffered at North Paone Construction Company, including but not limited to the accepted injuries of a severe closed head injury with seizure disorder and short term memory loss."

About two years later, Mr. DePue filed a Petition for Penalties, because the workers’ compensation insurance carrier refused to pay for medical treatment to the left shoulder (the insurance company had been paying for such treatment for years), and a Petition to Review, to add the left shoulder as an accepted injury. In opposition, the workers’ comp insurance carrier submitted a copy of the Compromise & Release Agreement, and written memos between the parties which discussed whether the left shoulder should be added to the Agreement. The Workers’ Compensation Judge (WCJ) denied both Petitions, since the left shoulder was not mentioned on the Compromise & Release Agreement (and was not otherwise accepted in any other document), and since Mr. DePue was barred from now adding any further diagnoses to the work injury, under Weney. This was affirmed by Workers’ Compensation Appeal Board.

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. The injured worker argued that this case was not like Weney – here there was no prior litigation involving a request to amend the description of his work injuries. In other words, the description of injury was never relevant to a decision in this matter. The Court found the written memos between the parties, discussing whether the left shoulder was to be included or not, to be critical. As the Court concluded:

“After negotiations with Employer, Claimant agreed to omit the left shoulder injury from the description of his injuries accepted by Employer in the C & R agreement.”

Thus, the Court found that, like in Weney, the nature of the injury was addressed in this litigation, and the injured worker had ample opportunity to litigate the issue, if he so chose (the Court neglects to note that the injured worker actually could not have litigated this issue in the context of the only pending process, a Petition for Approval of Compromise & Release Agreement). Under Weney, then, Mr. DePue is now barred from further expanding his injury.

This case does provide important information for those of us who represent injured workers every day. The Court took pains to note that Mr. DePue failed to “ . . . expressly reserve his right to add a new injury to the description of his work injuries.” Additionally, the Court also attached importance to the use of "any and all injuries" in the Compromise & Release Agreement. Situations like this one highlight the value of being represented by a firm, like Brilliant & Neiman LLC, which limits its practice to just handling PA workers’ compensation cases.

Undocumented Worker Cut Off from PA Workers’ Comp Without Change in Condition

Fri, 01 Feb 2013 10:26:46 -0500

As we have previously noted, undocumented workers in Pennsylvania are eligible for workers’ compensation benefits, but such benefits can be stopped when the injured worker is no longer totally disabled.

What a workers’ comp insurance carrier must prove to stop benefits in this situation was examined recently in the matter of Ortiz v. Workers’ Compensation Appeal Board (Raul Rodriguez). Here, the injured worker fell from a ladder and fractured his leg and ankle. Since the employer had no workers’ comp insurance, the injured worker filed a Claim Petition against the Uninsured Employers’ Guaranty Fund (UEGF).

During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker went back to work, albeit on a part-time basis. The WCJ granted the Claim Petition and awarded ongoing workers’ comp benefits, based on the injured worker’s earnings. UEGF did not appeal this decision.

Subsequently, the UEGF filed a Petition for Suspension, alleging that the injured worker was not legally able to work in this Country, and was capable of some employment, making him ineligible for continued PA workers’ compensation benefits. In his Answer, the injured worker admitted that he was not legally able to work in this Country, but argued that a change in condition must be shown before benefits could be modified or suspended.

The WCJ agreed with the injured worker and denied the Petition for Suspension. Specifically, the WCJ noted that without having shown a change in the medical condition of the injured worker, the legal status alone was not enough and the Petition must be denied.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed, finding that the return to part-time work was the proof of a change in medical condition. Thus, the mere proof then that the injured worker was not legally able to work in the United States was enough to obtain the Suspension. This was affirmed by the Commonwealth Court of Pennsylvania.

Our problem with this decision is not so much the law, as the tortured way the Board, and the Court, achieved their desired result. The need to compromise, allowing benefits to undocumented workers only as long as they remain totally disabled is far from perfect, and a bit Draconian for our liking, but at least understandable. The result in THIS case is not.

The injured worker went back to this part-time work in the prior litigation. A WCJ specifically found that ongoing benefits should be paid with this return to work. The UEGF did not appeal, making that decision final. That issue had already been decided and could not be relitigated.

After all, when it came to the injured worker trying to come back and change something (in the Weney case in 2008), the Court held sternly that the injured worker was barred from doing so. Yet, here, the insurance carrier (or, more accurately, the UEGF) was free to have another bite at the apple. This is simply an untenable result to interpret the Pennsylvania Workers’ Compensation Act in this fashion. The PA Courts frequently talk about how the Act is a “humanitarian” Act, enacted for “remedial purposes” and that the benefit of the doubt should be in the favor of the injured worker. Results as in this case reveal these words to be mere lip service, totally devoid of meaning.

PA Workers’ Compensation Judge David Slom Retires

Tue, 29 Jan 2013 09:41:43 -0500

Last month, we mentioned that the Northeast Philadelphia Workers’ Compensation Hearing Office was now closed, forcing all residents of Philadelphia to have their cases heard in Center City Philadelphia. This change forced the Workers’ Compensation Judges (WCJs) at this location, and their staffs, to relocate as well. Though we cannot say they was any connection to the move, we have now learned that WCJ David Slom, who heard cases in the Northeast Philadelphia site, announced his retirement and has left the bench.

We have been aware of WCJ Slom since his days working for the State Workers’ Insurance Fund (SWIF), prior to becoming a Judge. Whether this dates him, or us, more is a matter of conjecture. On many occasions, over the ensuing years, we have been before Judge Slom. His meticulousness and diligence will be missed. We wish him a happy, healthy and peaceful retirement.

Even prior to the relocation of the Northeast Philadelphia Workers’ Compensation Hearing Office there has been some recent attrition to the field of WCJs stationed there. Before WCJ Slom retired, WCJ Ida Louise Harris and WCJ Michael Snyder stepped down. These two openings had been filled, unofficially, by WCJ Holly San Angelo and WCJ Marc Harrison.

Much to our consternation, the PA Bureau of Workers’ Compensation does not report or publish additions, or subtractions, to the WCJ ranks. There is never an “official” statement or notice. We are left to discover such information through the proverbial grapevine. To keep our readers informed, and to best serve our clients, we are always listening to the chatter, to determine any movement of WCJs.