New case law on what medical tests can be forced on the employee by the insurance company

Peters Township School District vs. W.C.A.B. (Anthony), is a new Pennsylvania Commonwealth Court case (decided on April 2, 2008) that addresses the issue of what diagnostic tests can the workers' compensation insurance company force an injured employee to undergo.

In this case, the Claimant suffered a 2000 right shoulder injury. In 2006, the employer/insurance company requested that the Claimant submit to a diagnostic test consisting of an EEG which was prescribed by the defense medical examiner (DME) petition. The Claimant refused to attend, so the insurance company filed a Petition for Physical Examination.

The original injury occurred when the Claimant was thrown off a truck and struck his right shoulder and head on the asphalt. As a result of the injury, the Claimant was diagnoses with a clinical seizure disorder after he showed evidence of post traumatic headaches, concussion with loss of consciousness, short term memory loss, post concussive syndrome and an abnormal EEG. This EEG was done on December 4, 2000. The claimant developed his first episode of clinical seizure activity around January of 2002. Of note, the Court indicated that the parties did not dispute the Claimant’s seizure disorder was related to the original work injury.

The whole issue came about when the DME, Doctor Bernstein, requested that the Claimant submit to a diagnostic test to discern whether he was having legitimate seizures verses pseudo seizures because of a high prevalence of pseudo seizures in patients with legitimate seizure disorder. The doctor commented that he could not determine whether Claimant’s seizure disorder was truly under control or whether Claimant was capable of returning to work and/or operating a motor vehicle without a new EEG. The doctor also stated that the test involved essentially no risk and was not unreasonably intrusive to the Claimant.

The claimant presented his own medical reports from the treating physician who opined that the EEG was not necessary and would not be of any diagnostic help. The test would not add anything to the Claimant’s treatment either. Further, the Claimant’s treating physician indicated that it was his opinion that the Claimant did not suffer from pseudo seizures.

The Workers’ Compensation Judge denied the employers Petition to Compel the diagnostic test. The employer appealed to the Workers’ Compensation Appeal Board which affirmed the Judge’s decision. On appeal to the Commonwealth Court, the employer contended that the Judge applied the improper standard.

The Commonwealth Court indicated that Section 314 of the Workers' Compensation Act (77 PS Section 651(a)) provides that “at any time after an injury, the employee, if so requested by his employer, must submit himself at some reasonable time and place for physical examination.” Also, the Court pointed out that “physical examination” includes all reasonable medical procedures and tests necessary to permit a provider to determine the extent of the employee’s disability.

The Commonwealth Court denied employers arguments. It stated that to the extent the diagnostic test was an “attempt to rule out pseudo seizures” and there was no persuasive evidence that suggested Claimant experienced such pseudo seizures, the Judge found the test was not necessary. The issue came down to whether the diagnostic test would yield useful information regarding Claimants seizure disorder, specifically pseudo seizures, against the Claimant’s right to avoid the intrusion of a seventy-two hour hospital confinement necessary to perform the test. The Court believed this was extreme given the risk of obtaining no useful information regarding the claimant's disability status.

Unresonable Contest Attorneys Fees in Pennsylvania Workers' Compensation Cases

Most (if not all) Pennsylvania Workers' Compensation attorneys charge their clients 20% of the benefits that are won as payment for their services. The Workers' Compensation Act limits the fees to 20%, so an attorney cannot charge the client more than that; however, in some instances I have charged LESS than 20%.

There are cases when the employer/insurance company must pay the attorney an hourly fee. These are called Unreasonable Contest Attorneys Fees. This does not happen very often, but in some cases, the insurance company's defense is so lame and lacks any basis in fact or law, that the judge declares that the carrier is unreasonably contesting the claim.


If this happens, the attorney usually submits a fee exhibit detailing the amount of hours spent in the case and charging their normal hourly rate. My hourly billable rate for my experience and geographic area is $250/hour. Once I get paid from the carrier, then the claimant receives a credit for the hourly fees I've received on the 20% that they will be paying me as the weekly checks roll in. This means that if the employer/insurance company has acted so bad in denying a claim or benefit, then they are punished by having to pay more and also the claimant receives more money in his/her pocket.


Here is the statute and case law that addresses this issue:

77 P.S. §996(a), which states in pertinent part:

In any contested case where the insurer has contested liability in whole or in part, … the employee … in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee …: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.

The awarding of attorney’s fees in workers’ compensation cases is the rule not the exception. Section 440(a) of the Workers’ Compensation Act (Act); General Carbide Corporation v. Workmen’s Compensation Appeal Board (Daum), 671 A.2d 268 (Pa. Cmwlth. 1996). Thus, the employer has the burden of presenting sufficient evidence to establish a reasonable basis for contesting a claim petition in order for the employer not to have to pay the claimant attorney’s fees. Lemon v. Workers’ Compensation Appeal Board (Mercy Nursing Connections), 742 A.2d 223 (Pa. Cmwlth. 1999), appeal denied, 562 Pa. 676, 753 A.2d 822 (2000). The existence of a reasonable contest is a question of law, based on the WCJ’s findings of fact, and is fully reviewable by the appellate courts. Id.

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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What to do when your employer does not have Workers' Compensation insurance?

The first thing to do is contact an experienced compensation lawyer. (Of course I was going to say that....) Second, if the lawyer is worth anything, he/she will know what to do.

In November 2006, the Pennsylvania's Workers' Compensation law was amended to create the Uninsured Employer Guaranty Fund.

You must file a Notice of Claim within 45 days after the employee learns that the employer does not have insurance. 34 Pa. Code 123.802. Here's a link to the Notice of Claim form: http://www.dli.state.pa.us/landi/lib/landi/bwc/libc-551.pdf

A claim petition may be filed against the Fund 21 days later. Here's a link to the specific form to be used: http://www.dli.state.pa.us/landi/lib/landi/bwc/libc-550.pdf

Here are the prerequisites for filing claim petition for benefits from Fund:

§ 123.803. Prerequisites for filing claim petition for benefits from Fund.

(a) Upon the filing of a completed ''Notice of Claim Against Uninsured Employer'' (Notice), the Uninsured Employer Guaranty Fund (Fund) will determine whether it will commence making payments.

(b) An injured worker may not seek an award against the Fund unless the worker completes and files the form designated as the ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund.''

(c) A ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' may not be filed until at least 21 days after the injured worker filed the Notice as required in § 123.802 (relating to notice to the Uninsured Employer Guaranty Fund).

(d) A completed ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' will be deemed filed upon the later of either of the following:

(1) The date of the petition's deposit in the United States Mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid; or, if no United States Postal Service Postmark is present, as of the Department's receipt of the petition.

(2) Twenty-one days after the filing of the Notice identified in § 123.802.

(e) The Department may reject any incomplete petition.

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.