What happens at Pennsylvania Workers' Compensation hearings?

Many clients often ask and wonder what a Pennsylvania workers' compensation hearing is like...what happens, etc. There are general rules the Judges must follow, but those rules are non-specific. Each Judge can handle their hearings a little differently.

To help claimants and attorneys, the Pennsylvania Workers' Compensation Bureau has compiled a resource that details what each Judge expects at hearings, what rules attorneys should follow, etc. The resource is set up by answering a list of questions that are provided below:

1. What will occur at the first meeting with the judge?
2. Is a pre-hearing memorandum required at the first meeting with the judge?
3. Is a pre-hearing stipulation required at the first meeting with the judge?
4. Do you require counsel to provide bureau documents relating to the claim?
5. Do you use a one-day/one-hearing format or a serial hearing?
6. What are your rules regarding the taking of testimony?
7. What procedure do you follow if a party fails to appear at the first hearing?
8. What are your procedures for supersedeas hearings?
9. What is your procedure regarding the order of testimony with respect to submission of medical evidence, particularly when cross petitions are filed?
10. What is your procedure regarding continuances, changes in hearing times and extensions?
11. To what extent do you follow the time limits in the special rules?
12. What is your procedure for handling discovery disputes, e.g., do you employ telephone conferences, do you prefer to attend certain depositions, etc.?
13. Under what circumstances will you permit a party or witness (including an expert witness) to testify by deposition or by phone, rather than appear at the
hearing?
14. Are you willing to allow counsel to participate in hearings by telephone?
15. Do you require that counsel pre-mark or provide lists of exhibits?
16. Must counsel bring copies to the hearing or may they be made at the judge's office?
17. Are you willing to close a case by mail or is a final hearing required?
18. Do you accept faxes and e-mails from the parties?
19. What are your procedural rules regarding the review of Compromise and Release Agreements?
20. Do you have any special procedures for trial of psychological injury cases?
21. What procedures should the parties follow regarding motions for recusal?
22. What is the latest date as of which the parties may file written preservations of deposition objections?
23. What are the time requirements for the submission of briefs and other post-hearing submissions?
24. Please describe your preferences for the format and content of post-trial submissions.

Each Judge's answer to these questions can be found here. All you need to do is search by the Judge's individual name. This is an excellent resource for attorneys who handle Pennsylvania Workers' Compensation cases as well as injured workers who want to educate themselves on what actually happens at a workers' compensation hearing.

Why can't you get your mileage paid for when you see your doctor for a work related treatment?

During these times when gas prices are so high, the question of getting paid for mileage for travelling to treatment is often brought up. The general rule is that when you have to see the defense medical expert (DME or IME), then the insurance company must either provide transportation for you or, at the very least, pay you the IRS mileage rate which is currently $.50.5 cents/mile.

So, what do you do when you have to travel quite a distance just to see your treating doctors? You normally don't receive mileage payments for this.

The controlling case law is fairly straight forward and only involves primarily three Commonwealth Court cases. The first, Harbinson-Walker Refractories v. WCAB (Huntsman), 513 A.2d 566 (Pa.Cmwlth. 1986), created various factors to be considered in assessing the reasonableness of travel expenses for medical treatment:

1) whether the employer was aware of the long distance treatments;

2) whether the claimant was specifically referred to the distant location for the treatment;

3) whether the treatment was available at a closer location; and

4) whether the long distance treatment comprised an integral part of the ongoing medical treatment.

In Helen Mining Co. v. WCAB (Tantlinger), 616 A.2d 759 (Pa.Cmwlth. 1992), the court summarized the Harinson-Walker elements into three distinct rules:

1) if treatment is available locally, the claimant is not entitled to reimbursement for travel expenses except in exceptional circumstances;

2) if treatment is available locally and the claimant chooses a physician outside the local area, the claimant is not entitled to reimbursement for travel expenses;

3) if treatment is not available locally, the claimant is entitled to reimbursement for travel expenses as long as the claimant travels to a facility where others are or would be
referred.

Finally, in Holly v. WCAB (Lutheran Home), 735 A.2d 153 (Pa.Cmwlth. 1999), the court addressed the Helen Mining elements and created another distinct rule. In Holly, the court summarized the holdings in the previous cases. The court further stated that the initial inquiry in any case involving reimbursement for travel expenses is whether the treatment sought is available locally. Id. at 155. After an in-depth analysis, the court made the general rule that under Helen Mining, “travel exceeding 100 miles one way for medical treatment is “long distance” travel, not “local” travel” as a matter of law. Id. at 156.

In no way did the court ever state that the general “100 mile” rule is to be applied in every case no matter what the facts. Actually, in reading the Holly decision, you can tell that the court attempted to limit the issue depending on the facts of every case. If the travel was over 100 miles one way, then the general rule would apply. However, if the travel was less than 100 miles one way, then a court would have to filter the facts through the three elements in Helen Mining to make a decision on whether to grant travel expenses.

America’s Surprisingly Unhealthy Jobs

Forget stuntmen. Some of the country’s least healthy jobs are in cubicles, hospitals, and restaurants. Are you at risk?

According to the Bureau of Labor Statistics (BLS), it’s not just farm laborers or police officers who have high rates of some common – and seemingly benign – professions have high rates of injury and illnesses that were severe enough of work in 2006.

Danger in Some Workplaces

The following professions are among the highest in terms of injuries and illnesses, listed in descending order ---BLS (in parentheses).

Construction Worker (125,120)
“Falls and problems from repeated hammering are the biggest problems,” says Garrett Brown, an industrial hygienist ….Administration.

Office/Administrative Staff (83,320)
The biggest risk is repetitive strain injuries from typing, as well as illnesses from inhaling toxic printing inks and other ….

Sales Staff (76,210)
These jobs may seem innocent, but Brown says salespeople fall from ladders while gathering merchandise, strain their repetitive strain from typing reports, and even suffer injuries from malfunctioning displays.

Nursing Aides, Orderlies, and Attendants (49,480)
These workers can be exposed to everything from toxic chemical in hospitals and nursing homes to strains from lifting

Janitors and Housekeepers (46,540)
The heavy carts many housekeepers push can injure their backs and potent cleaning supplies can cause illnesses,

Registered Nurses (20,500)
Lifting heavy patients, getting hit by gurneys, or attacked by family members can cause injuries.

Waiters (9,520)
“Those heavy trays don’t carry themselves,” says Dr. Davis Liu, author of “Stay Healthy, Live Longer, Spend Wisely…Healthcare System.” He continues, “Everything is super-sized, and waiters are carrying 5-10 pound trays repeatedly in hand.”

Computer Specialists (2,720)
“The ergonomic problem her is not only typing, but also workplace design,” says Brown. “Sometimes they squeeze”

What You Can Do

Experts offer four simple suggestions for preventing illness and injury that apply to most professions.

1. Work it out.

Even if you sit at a desk all day, treat yourself like an athlete, suggests Liu.

“When you get overuse injuries, your body is saying, ‘If you want me to do this, you’ve got to make me really strong…hurting.”

Work with a physical therapist, get regular exercise, and work on strengthening the muscles you job uses most.

2. Take breaks.

A lot of injuries result from not stretching or relaxing. Set a timer to go off every hour and take a break. Stretch shoulders…by you work, suggests Liu. Then do deep breathing to de-stress before returning to work.

3. Double up.

If your work requires protective gear, keep spares with you always. Store extra gloves, goggles, and other supplies ….

4. Follow your office’s safety program. “If it doesn’t have one, report your employer to OSHA (Occupational Safety). No one should sit on their hands and hope for the best. Even though it can be difficult financially, say …no to your boss.

Frequently Asked Questions About Pennsylvania Workers' Compensation

Q: What is Workers' Compensation?

A: Workers' Compensation is insurance your employer must carry in the event an employee is injured on the job, becomes ill due to circumstances surrounding their job or even if death. Benefits include medical expenses, lost wages, specific loss benefits for amputation or loss of the use of an extremity, disfigurement benefits, and death benefits.

Q: Who provides the benefits under the Workers' Compensation Act?

A: By law the employer is responsible for providing Workers' Compensation Insurance. In some instances the employer provides benefits directly by being self-insured otherwise the employer provides the benefit indirectly through a Workers' Compensation insurance company. A worker cannot be charged for benefits provided or any portion of their employer's Workers' Compensation insurance premium.

Q: What are the rights and responsibilities of the injured worker?

A: An injured worker may be entitled to: receive wage benefits; receive medical care reasonable and necessary to treat a work-related injury or illness without any specific time limit; initially choose a doctor under certain circumstances; hire an attorney to help get benefits or to help resolve disputes; confidentiality. If you are injured, you may be responsible to: inform his or her employer about a work-related injury or illness; complete a claim form and submit it to the employer; tell his or her doctor how the injury occurred and if it was work related.

Q: What are the most important things an injured individual should know about workers' compensation rights?

A: Always report a work injury even if you might not lose time from work or need immediate medical care. It is critical that you require your employer to complete an accident report; Remember to keep an independent record of the date, time, and nature of your work injury. In addition, make a list of witnesses as well as the person to whom the injury is reported; Be sure to provide a complete and accurate account of the type of injury you sustained and how your injury occurred as well as your past medical history; If your employer fails to accept your claim within 21 days of the date you notify them, seek legal assistance and file a petition for compensation; Should your employer accept your injury, be certain that the wages upon which your compensation is based are accurate. In most cases your compensation should be 66 2/3% of your gross wages from all sources of employment; If, after receiving compensation, your employer or the insurance company asks you to see another physician, seek legal advice immediately as this is your employer's first step in their attempt to either terminate your compensation or modify your benefits; It is possible that your employer may offer you modified work based on medical proof that you are able to perform that work. This can cause you to lose your benefits by failing to accept the newly defined work; You might be contacted by a vocational rehabilitation firm attempting to find you a new job. Your compensation can be effected if you fail to cooperate with the vocational firm; Should you receive a petition in the mail to terminate, suspend or modify your compensation, seek legal advice; NEVER sign a supplement agreement or final receipt without having it reviewed by an attorney.

Q: What injuries are covered by the Act?

A: Any worker who has sustained an injury arising out of and in the course of their employment has a potential Workers' Compensation claim. As long as your injury is job-related, it's covered. You are covered if you are injured while traveling on business, doing a work-related errand or even attending a required business-related social function. Any injury or illness that occurs due to employment is considered a workers' compensation injury. Under workers' compensation law, you may receive benefits if you are injured no matter who was at fault. Some types of workers' compensation injuries are: broken/fractured bones, back problems/pain, knee problems/injuries, grip loss, heart attacks, hypertension, wrist injuries including carpal tunnel syndrome, burns, shoulder pain, neck pain, headaches, etc. You may be entitled to benefits even if you are still working.

Q: Does an injury have to have a specific date of onset in order to be covered?

A: Your injury does not need to be caused by a specific accident such as a fall. Many workers receive compensation for repetitive trauma injuries such as back problems that are caused by overuse or misuse over a long period of time in the performance of their normal work activity. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions such as lung disease. Due to the fact that symptoms with these types of injuries reveal themselves over a period of time, the worker might not associate the eventual diagnosis of the injury as being work-related.

Q: What workers are covered by the Act?

A: Many states require an employer to carry Workers' Compensation insurance only if they have a minimum number of employees such as 3 or 5. As a general rule though, if a company has employees, then they should have Workers' Compensation insurance. Each state has its own workers' comp laws, as well as its own administrative and legal structure for handling claims and disputes. Some states also require workers' comp only for employees in "hazardous" occupations. What is considered a "hazardous" category can vary widely from state to state. Most employees are also covered if they are injured while working in another state or injured while working in another state for an employer whose principle place of business is in their home state. Without Workers' Compensation coverage, an employer can be sued by an injured worker for medical and disability costs, plus damages. Federal government employees are also excluded from state workers' compensation coverage. Employees of the federal government receive workers' compensation benefits under a separate federal law.

Q: What should I do if I get injured on the job?

A: Seek emergency medical attention if needed. Immediately report your injury to your employer. An injured worker must report any accident to their employer or any employee of the employer who is in a supervisory capacity (foreman, superintendent, company nurse, etc.). Notification must be done within a set amount of time as set by state law. If an injury occurs over time (for example, a breathing problem or carpel tunnel syndrome), you must report your condition soon after you discover and realize that it is caused by your work. Your employer will provide you with a claim form on which you must describe your injury and how, when, and where it occurred. Make sure you save copies of all correspondence with your employer, its insurance carrier and your doctor concerning your workers' comp claim.

Q: How long after an injury do I have to report it to my employer?

A: Immediately report your injury or illness to your supervisor. To be eligible for benefits, in Pennsylvania you must report the injury within 21 days. If you have received medical benefits, the statutory time limit to file a petition for benefits is usually three years from the date of the last payment [to file a claim for medical benefits]. If you have not received any medical benefits, the statutory time limit to file a petition is three years from the date of your injury or illness. Your employer is then required to make a report of the injury and notify its insurance company and/or the Workers' Compensation Commission. If no disability benefits are paid to the injured worker by the employer or carrier within the statutory time limit, and no petition is filed, then the right to any and all benefits may be barred.

Q: Can I lose my job because of a workers' compensation injury?

A: Laws prohibit your employer from discharging or discriminating against you because of your workers' compensation injury. If it is proven that an employer fires or forces you to resign in retaliation for filing a Workers' Compensation claim, the worker could file a civil lawsuit against his employer seeking damages in court.

Q: If I receive workers' compensation, can I also sue my employer in court?

A: Generally, no. In exchange for giving up the right to sue an employer in court, you get Workers' Compensation benefits no matter who was at fault. [You may be able to sue in court if your injury was caused by someone other than your employer or a co-employee, such as a visitor or outside contractor, some third party or if it was caused by a defective product.]

Q: What workers' compensation benefits am I entitled to?

A: You may be entitled to receive all reasonable and necessary medical treatment, benefits for lost wages, benefits for specific injuries resulting in permanent losses such as loss of use of an extremity and/or disfigurement (scars). You may also qualify to participate in certain physical and vocational rehabilitation programs. If the injury causes the death of an injured worker, burial expenses are covered and the spouse and/or dependents of the deceased worker may be entitled to certain benefits. If you become temporarily unable to work, you'll generally receive two-thirds of your average wage up to a fixed ceiling. These benefits are tax-free. You will be eligible for these wage-loss replacement benefits as soon as you've lost a set amount of work because of an injury or illness that is covered by workers' compensation as set by state law.

Q: What medical benefits does the Act provide to a worker after they have sustained an on-the-job injury?

A: An injured worker is entitled to receive 100% of all reasonable and necessary medical expenses incurred as a result of a job-related injury. These include first aid, emergency room services, inpatient and/or outpatient hospital care, doctor's fees, prescriptions and other related expenses.

Q: Should an injured worker apply for unemployment benefits?

A: In applying for unemployment benefits during the period a worker is off work due to an on-the-job injury, the worker must state in writing that they are willing and able to work. The Workers' Compensation insurance company could argue that the injured worker's statement to unemployment is contrary to their claim that they are unable to work. Recent court decisions have recognized the financial difficulties facing an injured worker who is not receiving Temporary Disability benefits under the Act and have ruled that a worker who has applied for unemployment benefits, in certain circumstances, is not barred from claiming they are entitled to certain workers' compensation benefits. It is advisable that an injured worker discuss the circumstances of their accident with a Workers' Compensation attorney before attempting to apply for unemployment benefits.

Q: If I am injured on the job can I choose the doctor who treats me?

A: Under Pennsylvania Workers' Compensation laws, the employer may restrict an injured worker's medical treatment, during the initial 90 days following an injury, to a set list of at least six medical providers. These providers are known as "panel providers." However, in order to compel an employee to treat with a panel provider, the employer must fulfill certain specific requirements [which are to]: Have a posted list or providers; and Have the employee sign an acknowledgement of receipt of the list at the time of hire and after the injury.

Q: If I am unable to return to the type of work I did before I was injured, what happens?

A: If your employer has employment available to you within your medical restrictions and you decline, your employer may request a suspension, modification or termination of your benefits. If you do return to work and wages are less than what you earned before the injury, you may be entitled to partial disability. Wage benefits usually will equal approximately 2/3 of the difference between your current earnings and what you earned before your injury, not exceeding the maximum compensation rate for the year you were injured.

Q: What happens if I return to a modified duty job and then I am laid off?

A: If you are still suffering from your work injury, you may be entitled to reinstatement to full disability.

Q: My employer has denied my claim, what do I do?

A: Immediately contact an attorney to discuss whether the facts of your circumstances entitle you to workers' compensation benefits. If so, a Claim Petition should be immediately filed on your behalf to obtain a hearing before a Workers' Compensation Judge.

Q: When is a Workers' Compensation claim considered settled and permanently closed?

A: A Workers' Compensation claim is considered settled only after a Compromise & Release Agreement is prepared and signed by both the employer and employee and approved by a Workers' Compensation Judge at a hearing.

Q: Do I need an attorney?

A: You have the right to be represented by an attorney for your work- related injury. Your attorney will assist you in seeing that your benefits are properly protected. While individuals can sometimes represent themselves in these matters, it is advised to contact a Workers' Compensation Attorney as soon as possible after an accident or diagnosis of a disease or condition in order to protect your legal rights. Workers' Compensation laws are constantly changing and an attorney will be in a better position to advise you in order to protect your rights.
Q: How do I find out my state's workers' comp requirements?

A: Since the state government sets Workers' Compensation requirements, they can vary greatly from state to state. You can consult the Pennsylvania Bureau of Workers' Compensation website or contact an attorney.

Work Injuries Due to Inadequate Machine Guarding

In the United States, there are millions of workers that endure hard labor jobs, which require physical interaction with machines to build, develop, construct or weld together buildings, cars, etc. However, thousands of those workers are injured on the job annually. One of the most common types of workplace injuries occurs when machine operators suffer amputations, lacerations, de-gloving or other serious injuries from the operation of machinery, which is not properly guarded.

Moving machine parts can cause severe injuries. Machine guards are essential to protect workers from preventable injuries. Whenever the operation of a machine can injure the operator or others, the hazards must be either eliminated or designed out of a product.If this is not possible and the hazard cannot be eliminated, it must be guarded against and a warning must be provided to avoid the hazard. This is often referred to as the "Engineering Hierarchy": design out, guard against and warn.

Many guarding principles have been in use in the industry for over 100 years. For example, the first patent for an interlocking guard was awarded in 1899 for a power press. However, while guarding technology has been readily available for decades, many manufacturers fail to avail itself of basic safety engineering that could save lives and prevent needless suffering and tragedy. Because of this neglect or disregard for a company's employees, the creation of a employee compensation lawsuit may occur to bring safety to a workplace and dissolve remaining threats.

There are many types of guards that are appropriate for different products depending on the use for which the product is intended. Some examples of guards include fixed barrier guards, movable interlocking guards, and light curtains and sensors that detect the entry of fingers or the operator's hands.

Machine guarding cases involving serious injury due to improper guarding often involve situations where a product had a poorly designed guard that was removed exposing the operator to serious injury. If the manufacturer could have, and should have reasonably expected that the guard would be removed, the removal of the guard does not shield the manufacturer from liability.

Additionally, if a company does not fit hazardous machines with safety gear, workers should be advised to contact a law firm that is experienced in developing employee safety lawsuits. When an employer refuses to ensure the safety of its workers, or merely disregards the safety of its workers, they can be held responsible.

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Do you really have to see the company doctor? Exploding the Myth of the 90 Day Rule

Here is an excellent article by Attorney Dan Siegel regarding whether an injured employee really has to treat with the company doctor.

I often tell my clients that it is not necessary and they can treat with whomever they want. Seriously, wouldn't you be more comfortable treating with your family physician or receiving a referral to a specialist from your family physician? 9 out of 10 times the employer's doctor has the employer's best interest in mind instead of the patient.

As Dan's article explains, in order for the "90 Day Rule" to apply, employers and insurance carriers must jump through so many hoops that a vast majority always get it wrong. It's an extremely rare case that everything was done correctly that would require the injured worker to treat with the company doctor. I see it on a daily basis.

So, the next time your human resources rep tells you who you HAVE to treat with, show them a copy of this article and watch them spit and sputter. Then call me...or Dan. We'll set them straight.

Dan is an attorney in the Philly area. Check out his other websites if you get a chance.

New case law on allowing the treating physician to attend an IME or defense medical examination

The following is language from the case of Knechtel v. Workers' Comp. Appeal Bd. (Marriott Corporation), 934 A.2d 697, which is a November, 2007 decision from the Pennsylvania Supreme Court. The case deals with the issue of allowing a treating physician to attend an "IME" or defense medical examination. From the Court....
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"Today the Court affirms by per curiam order the Commonwealth Court's construction regarding the legislature's enactment of 77 P.S. § 651(b), n1 allowing a claimant's healthcare provider to "participate" in the examination conducted by an employer's physician. In so doing, we affirm the court's holding that the legislature intended to afford the opposing expert a first-hand view of the examination process, through attendance and observation, but did not intend to permit such expert to engage in any active conduct which might disturb the examining physician. I write to express my opinion that nothing in our affirmance of the Commonwealth Court's opinion, limiting a healthcare provider to attending and observing an employer's physician's examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam. Specifically, I believe that a workers' compensation judge retains the discretion to grant a claimant's reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer's physician's ability to conduct an examination."
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This decision confirms what was widely understood and used by Claimant's attorneys-- that the Claimant or a representative of the Claimant (like their attorney or a paralegal from the firm) could attend a DME and video or audio tape the examination. This is a great tactic to use, especially with doctors who basically perform these types of examinations for a living and are beholden to the insurance industry for the economic survival.

What is an Independent Medical Examination (IME)?

This article describes the term "Independent Medical Examination" or "IME" as used in injury, workers' compensation or disability cases. As pointed out in the article, these examinations are not really independent but are merely examinations performed by a doctor with a relationship with the insurance company or insurance industry. Here at Carroll & Carroll, P.C., we call them exactly what they are, Defense Medical Examinations, or "DME."

Please refer to another library item regarding "What to do at a DME." This is a standard letter that we send to all of our clients who have to attend a defense medical examination. These are when the insurance company hires a doctor to exam the plaintiff and render an opinion that the defense will use in a Pennsylvania workers' compensation case. These exams are more commonly referred to as IME's or Independent Medical Exams, but we and C&C Law think there's nothing independent about them.

The exams are for the defense so let's just call them that-- Defense Medical Exams. Usually, the doctor conducting the exam is well known with the insurance industry and makes hundreds of thousands of dollars a year conducting exams for the insurance industry. I ask you...how independent is that!?!? The attached documents are good rules to follow when you have to attend one of these exams.

What are the most important things an injured individual should do when they have a work injury?

Always report a work injury even if you might not lose time from work or need immediate medical care. It is critical that you require your employer to complete an accident report. Remember to keep an independent record of the date, time, and nature of your work injury.

In addition, make a list of witnesses as well as the person to whom the injury is reported; Be sure to provide a complete and accurate account of the type of injury you sustained and how your injury occurred as well as your past medical history.

If your employer fails to accept your claim within 21 days of the date you notify them, seek legal assistance and file a petition for compensation. Should your employer accept your injury, be certain that the wages upon which your compensation is based are accurate.

In most cases your compensation should be 66 2/3% of your gross wages from all sources of employment. If, after receiving compensation, your employer or the insurance company asks you to see another physician, seek legal advice immediately as this is your employer's first step in their attempt to either terminate your compensation or modify your benefits.

It is possible that your employer may offer you modified work based on medical proof that you are able to perform that work. This can cause you to lose your benefits by failing to accept the newly defined work; You might be contacted by a vocational rehabilitation firm attempting to find you a new job. Your compensation can be effected if you fail to cooperate with the vocational firm. Should you receive a petition in the mail to terminate, suspend or modify your compensation, seek legal advice.

NEVER sign a supplement agreement or final receipt without having it reviewed by an attorney.