Under Bush, OSHA Mired in Inaction

Why does this not surprise me. From WashingtonPost.com:

In early 2001, an epidemiologist at the Occupational Safety and Health Administration sought to publish a special bulletin warning dental technicians that they could be exposed to dangerous beryllium alloys while grinding fillings. Health studies showed that even a single day's exposure at the agency's permitted level could lead to incurable lung disease.

After the bulletin was drafted, political appointees at the agency gave a copy to a lobbying firm hired by the country's principal beryllium manufacturer, according to internal OSHA documents. The epidemiologist, Peter Infante, incorporated what he considered reasonable changes requested by the company and won approval from key directorates, but he bristled when the private firm complained again.

"In my 24 years at the Agency, I have never experienced such indecision and delay," Infante wrote in an e-mail to the agency's director of standards in March 2002. Eventually, top OSHA officials decided, over what Infante described in an e-mail to his boss as opposition from "the entire OSHA staff working on beryllium issues," to publish the bulletin with a footnote challenging a key recommendation the firm opposed.

Current and former career officials at OSHA say that such sagas were a recurrent feature during the Bush administration, as political appointees ordered the withdrawal of dozens of workplace health regulations, slow-rolled others, and altered the reach of its warnings and rules in response to industry pressure.

The result is a legacy of unregulation common to several health-protection agencies under Bush: From 2001 to the end of 2007, OSHA officials issued 86 percent fewer rules or regulations termed economically significant by the Office of Management and Budget than their counterparts did during a similar period in President Bill Clinton's tenure, according to White House lists.

More Bradford County Layoffs

From the Towanda Daily Review:

The economic downturn is affecting the work force at most of the larger manufacturing plants in the Bradford County through temporary furloughs, permanent layoffs or reductions in work hours. Here is how the economy is affecting the work force at some of the larger local businesses:

— In response to reduced demand for its products, the Ingersoll-Rand’s plant in Athens, which employs 253, will temporarily shut down during this holiday season, said Susan Jaramillo, a company spokesman. Specifically, the plant will be shut down from Dec. 19 to Dec. 28, and again from Dec. 31 to Jan. 4, she said.

— The Mill’s Pride plant in Athens Township has in place a number of temporary, voluntary layoffs of its employees, which began Nov. 28 and which will end Jan. 26, said Kathleen Vokes, director of communications for the plant’s parent company, Masco Corp. Attempts to find out from the company how many employees were participating in the voluntary layoff program were unsuccessful. Mill’s Pride produces cabinets for kitchens and other locations in people’s homes, Vokes said.

— At the end of November, Penndu Manufacturing Inc. laid off most of the employees at its plant in Tuscarora Township, reducing the number of employees at the plant from 25 to "about 10," said Dwylan Lefever, general manager of the company. Because business at sawmills has dropped off, "they are not purchasing capital equipment," which has reduced the demand for products made at Penndu, such as saws and conveying equipment, he said. A nationwide slump in manufacturing is also affecting Penndu, because there is not as much demand for wood pallets, he said. Consequently, pallet manufacturers are not buying as much equipment from Penndu, Lefever said.

— A total of 70 employees in two businesses in Troy Township that are owned by the Cummings family — Cummings Lumber and Barefoot Flooring — have been laid off this month as lumber sales slow, company officials said.

— At the CraftMaster Manufacturing plant in Wysox Township, which makes wood products used in home construction and remodeling, there have been temporary reductions in work hours of production workers on certain weeks in recent months, said plant CraftMaster Vice President and mill Manager Bob Andzulis. "It’s not a wholesale cutback" of hours, but does occur from time to time, he said. Also, 46 employees were laid off at the plant in March, and, in addition, a number of employees took offers of early retirement at that time, he said. Andzulis declined to say how many employees took the early retirement offers.

— Almost 200 of the 975 employees at Global Tungsten & Powders Corp. (GTP) in Towanda have elected to take voluntary furloughs, which could last a week or several weeks, company spokesman Craig Rieder said. The furloughs began in November and are scheduled to end at the end of December, he said.

— DuPont Corp. in Towanda is in the process of laying off 42 contract workers at the plant, which will leave 538 employees at the plant, company officials said.

— The newspaper industry also is affected by the downturn in the economy. At The Daily & Sunday Review, for example, a wage freeze and a hiring freeze have been imposed.

I think it's going to get worse before it gets better.

Bradford County Employers Laying Off Workers

In today's Towanda Daily Review, there are two articles about local employers laying off workers. Because of this, I wanted to again stress my last blog post: "What do I do when I'm working light duty but laid off?"

As detailed in the Towanda Daily Review, employees from the former Osram Sylvania, now Global Tungsten & Powders Corp. (GTP), were offered a voluntary layoff. See the article here.

Also in the same edition of the paper, two Troy, Pennsylvania companies owned by the Cummings Family, have laid off workers. 22 employees from Cummings Lumber and 48 employees from Barefoot Flooring have been laid off. See the article here.

As stressed in my last post, if you're working a light duty job due to a work related injury and you're laid off, you should contact an experienced workers' compensation attorney immediately. At that point, your total disability wage benefits should be reinstated immediately upon lay off.

What do I do when I'm working light duty but laid off?

During tough economic times, many employees face layoffs. One of the first types of employees that a company would layoff, for economic reasons, are the ones that are working light duty due to a work related injury. It is imperative that, if you are in this situation and you are facing a layoff, but you are currently working in a light duty status due to a work related injury, you need to talk to an experienced workers’ compensation lawyer immediately.

If you are laid off while working a light duty job, due to a work related injury, then your total disability wage benefits should be immediately reinstated. Despite the fact that this is clearly the law, many employers do not know this and will not reinstate workers’ compensation wage benefits once the employee is laid off.

Also, in many instances, the employer and/or workers’ compensation insurance company has not even officially accepted the work related injury. Then, once the injured worker is laid off, the insurance company will claim that they never officially accepted the work injury and, therefore, you will be completely out of luck.

That is why it is imperative that if you have a work injury, you need to report it and make sure that the workers’ compensation insurance company officially accepts the specific work injury so everything is official and formal. Then, if you do face a layoff for economic reasons, it will be easier to have your total disability wage benefits reinstated.

New case law on unreasonable contest attorneys fees

There is a new case from the Commonwealth Court of Pennsylvania on the issue of what constitutes an "unreasonable contest" thus allowing the claimant's attorney to get paid attorney's fees from the insurance company. In Costa v. Workers’ Compensation Appeal Board (Carlisle Corp.), decided on October 14, 2008, the workers’ comp insurance carrier was found to have a reasonable basis to contest a claim even though their own doctor agreed a work injury had taken place.

I've already blogged about the background and law allowing unreasonable contest attorneys fees. You can see that May 2008 post here. As I stated in that post:

The awarding of attorney’s fees in workers’ compensation cases is the rule
not the exception. See Section 440(a) of the Workers’ Compensation Act (Act). 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.

Despite the fact that the awarding of fees should be the norm, the courts generally think differently, as in the above cited Costa case. There, the court noted that the insurance company doctor had a different opinion as to the extent of the work injury as compared to the claimant's treating doctor (a neck strain vs. a herniated disc that require surgery). The court held that because of this difference, that was enough to demonstrate a reasonable contest by the insurance company. It did not matter that the defense doctor clearly indicated a work injury. However, in this case, the insurance company denied the entire claim from day one. It didn't accept the claim of a work related neck strain. It just issued a notice of denial from the start.

This decision is completely wrong and unfair to claimants. If an insurance company denies a claim totally and right in the beginning, it should not have the ability to come back later, during litigation, with new evidence to "boot strap" a reasonable contest. If their medical expert gives the opinion that a work injury occurred, then that's the ball game and claim should be accepted and unreasonable contest attorneys fees should be issued. Only then should the parties litigate the issue of what type of work injury occurred.

The court in this case basically gave the insurance company a "get out of jail free" card.

Unseen Crash Not Abnormal Working Condition

A claimant can prove that he suffered a psychological injury (just like a physical injury) that was caused my work. However, the law states that he/she has to prove that the incident that caused the injury was an abnormal working condition.

In the case of Norton v. J.B. Hunt Transport, PICS Case 08-1569 (Pa. Workers' Compensation Appeal Board Aug. 28, 2008), the Workers' Compensation Appeal Board dealt with this very issue. In this case, the facts were as follows:

On Sept. 16, 2005, a tandem, or a pair of wheels bolted together, separated from the rear of the truck he was driving for J.B. Hunt. Norton said he noticed passing a New Jersey State Police car and then a short time later heard yelling over the citizens band radio that someone's tandem had hit a police car. When Norton heard that the wheels had come from one of J.B. Hunt's trucks, Norton "instantly started panicking," according to the opinion. He stopped in a rest area and checked his truck. When he saw that it was missing a set of wheels, Norton called a police dispatcher. Police arrived and took Norton to a police barracks where he was kept for five or six hours. There, police told Norton that the officer had been air lifted for medical treatment. Norton testified that he believed the officer had been killed. Norton testified that when he returned to work three days later, he felt very uncomfortable driving his tractor-trailer and began having a panic attack. Norton sought psychiatric treatment the following day but continues to suffer nightmares, headaches and panic attacks, which he believes are a result of the accident.

The Workers' Compensation Appeal Board, in their infinite wisdom, ruled that this occurrence was NOT an abnormal working condition. Therefore, given their logic, they believed this type of thing happened to truck drivers often.

The appeal board cited prior case law for the holding that incidents involving death and serious injury may not be abnormal working conditions in certain types of work. "In this case, it is difficult to conclude that a situation where an object falls from a truck and causes an accident with another vehicle constitutes an abnormal working condition for one employed as a truck driver," Commissioner Robert A. Krebs wrote in an opinion for the board. The board found further fault with the driver's argument in the fact that he did not personally witness the wheels of his truck strike the parked police car, which "further removes him from any alleged abnormal working condition," Krebs wrote.

Go to Pennsylvania Law Weekly to see the entire article.

How will the increase in natural gas drilling change our area?

I have heard several people in the community discuss the changes that are coming to our area due to the gas drilling in the Marcellas shale fields. Bradford County Pennsylvania is in the heart of the fields. Community leaders and business people are trying to determine some of the positive as well as the negative changes that will be coming to our communities due to the influx in money as well as traffic and workers.

With this in mind, I recently saw a news article from the Associated Press indicating that oil field and gas field worker deaths are on the rise sharply. At least 598 workers died on the job between 2002 and 2007 according to the US Bureau of Labor and Statistics. During that period, the number of deaths per year rose by around 70% from around 72 victims in 2002 to 125 in 2006 and a preliminary count of 120 in 2007.

Many of the deaths happened in Texas which is the nation’s largest producer of crude oil and natural gas. There are several factors to blame for the increase in work related oil field and gas field deaths, including: a dramatic increase in drilling spurred by the record breaking oil and natural gas prices; an influx of new workers hired to operate all the new rigs: a high pressure environment where workplace safety lapses are common; rampant drug and alcohol use among workers.

Many experienced oil field workers left the industry in the mid 1980's during the oil bust, when a barrel sold for less than $10.00. Now, with prices over $100.00 a barrel, many drilling companies are hiring workers with little or no experience.

SURPRISING POLICY CHANGE IMMEDIATELY IMPACTING MEDICARE SET-ASIDE ACCOUNTS

On August 25, 2008, the Centers for Medicare & Medicaid Services ("CMS"), issued a Memorandum immediately rescinding a previous policy pertaining to claimants requesting termination of Workers' Compensation Medicare Set-Aside ("WCMSA") funds.

As you may recall, CMS had previously issued a Memorandum date July 11, 2005, establishing guidelines and allowing for requests for the reduction of WCMSAs. If the treating physician concluded that the beneficiary's medical condition had substantially improved, then the beneficiary (or the beneficiary's representative) may submit a new WCMSA proposal covering future expected medical expenses.

That policy has now been eliminated. Pursuant to the recent CMS Memorandum:

Effective immediately, the July 11, 2005 memorandum at Question and Answer 10, entitled "Beneficiaries that Request Termination of a WCMSA Account," is rescinded. Section 1862(b)(2) of the Social Security Act (the Act) (42 USC 1395y(b)(2)) requires that Medicare payment may not be made for any item or service to the extent that payment has been made under a workers' compensation (WC) law or plan. Medicare does not pay for an individual's WC related medical services when that individual received a WC settlement, judgment or award that includes funds for future medical expenses, until all such funds are properly expended.

The ramifications of this Memorandum is that CMS will no longer consider a reduction of the funds required to be "Set-Aside" to protect Medicare's interests, at least in Workers' Compensation cases, once the proposal has been submitted and a determination has been issued, even if the client's condition substantially improves and can be documented by medical records. The funds must remain in the WCMSA account as originally proposed. Time will tell if this policy will also be extended to "liability only" cases, but practitioners should be forewarned of same.

Now, more so than ever, it is critical that Plaintiff's counsel consider the timing of the submission of a WCMSA proposal, based upon not only a client's current medical condition, but also the future prognosis for improvements which may eliminate costly surgical procedures and/or cause the "weaning off" and discontinuance of prescription medications.

This information has been provided by Settlement Professionals, Inc.

Employee Free Choice Act

Funny video posted at C&C Law's main blog. You can see it here.

New procedure as alternative to lumbar fusion surgery

Many of our clients suffer from back injuries and symptoms emanating from their spine. Also, many of our clients treated at the Southern New York Neurosurgical Group, specifically by Dr. Bajwa or Dr. Sethi.

I just noticed an ad in a free health magazine from Dr. Bajwa and Dr. Sethi requesting patients to be enrolled in a new study. The doctors are conducting an investigational research trial with a surgically implanted motion restoring device that replaces the facet joints of the spine as an alternative to fusion surgery.

They are asking for anyone to contact them that has experienced chronic leg pain with or without back pain, have been diagnosed with spinal stenosis and are considering surgery as a treatment option. The participants must be between 50 and 85 years of age and can not have a history of fusion surgery of the lumbar spine.

People who are interested are urged to call the Southern New York Neurosurgical Group at (607) 754-6247

Use of pre-paid debit cards in workers' compensation cases

Some of the major issues that our workers’ compensation clients face on a daily basis is the payment of medical bills, the payment for prescriptions and the timely receipt of their bi-weekly or weekly wage benefit checks. Often, the staff at C&C law take care of what is normally a minor issue of red tape but is a major issue for injured workers who either cannot get prescribed medications or cannot pay their bills because their workers compensation check is late.

Our friends at Ziff Law pointed this out on their blog:

J.P. Morgan announced that they are issuing prepaid debit cards so insurance companies can deliver workers’ compensation benefits to injured or disabled workers in a timely and effective way. From the press release from J.P. Morgan, “card holders benefit from efficient, economical and reliable access to insurance payments without having to wait for a check to arrive in the mail.” One of the “benefits” of having this type of debit card, as per the press release, is that the injured worker would be able to receive cash back at ATM machines and retail locations and also pay bills on-line and make purchases that accept Visa debit cards.

Although this seems, at first glance, a benefit, it certainly has the risk of being abused and/or misunderstood. If we ever see these cards in our practice area, I am sure that a separate letter and counseling to the injured worker would be in order to ensure the cards are not a credit card and provide credit. They are merely a debit card and will only work if there are funds in the account.

In any event, it is certainly a intriguing use of current technology for a burdened workers’ compensation system.

New case law on "travelling employees"

The case of Jamison v. W.C.A.B. (Gallagher Home Health Services) was issued by the Commonwealth Court of Pennsylvania on August 19, 2008. This decision addressed the issue of “a traveling employee.”

In this case, the claimant was a home health nurse who traveled around for Gallagher Home Health Services to various in-home clients that needed home health care. The employer paid the claimant a fixed wage for the time that she spent with the patients but was also reimbursed the claimant for mileage expenses. The employer did not reimburse the claimant for mileage incurred driving to the first patient’s home or for mileage incurred returning to her own home from the last patient’s home. Also, it was known and allowed by the employer for claimant to do personal errands during the day and during her travels.

Also, the claimant worked for two other employers on a part time basis. On any given day, the claimant could be working for all three of her employers.

The claimant was involved in an automobile accident where she suffered an aggravation of a preexisting complex regional pain syndrome in her left arm and chest. This accident occurred while traveling from her home to her first client’s home.

The Workers’ Compensation Judge agreed with the employer and denied the Claim Petition. The denial was based on the holding that the claimant was not a traveling employee because on any given day she could be working for any one of, or all three of, her employers. Because the Judge found that claimant was not a traveling employee, her commute from her home to her first job site, was not in the course of employment.

A standard rule in Pennsylvania workers’ compensation is that, if you are injured while traveling from home to work and you are a stationary employee (meaning you have one place where you work) you cannot be compensated for any injuries while commuting to and from work. However, if you are a “traveling employee” you may be compensated for injuries that occur while you are traveling, even if it is on your daily commute to and from work.

On appeal, the Commonwealth Court indicated that, when considering whether an individual is a traveling employee, each case is determined on a case by case basis. The Court found that because claimant did not work on the employer’s premises, but treated patients in their homes, the claimant had to travel to the various homes and that travel was an essential element of the claimants work for the employer. Further, but for the multiple employer issue, there would be little reason to doubt that claimant was a traveling employee with respect to her job with Gallagher.

The Court dealt with an issue of first impression. No Court had addressed the issue of whether a claimant must work for a single employer in order to be considered a traveling employee. In this case, the court ruled in favor of the claimant. The Court held that there was no evidence that supported the Workers’ Compensation Judge’s finding that the claimant had abandoned her employment with Gallagher and was doing work for one of her other employers at the time of the motor vehicle accident.

Worker who lost leg in construction accident receives $13M

A construction worker whose leg had to be amputated after it was crushed by falling beams recovered a $13 million settlement.

In 2005, Timothy McGuire was standing near an 80-foot I-beam on the Harrah's casino construction site in Chester when an aerial boom operator hit the beam, causing a chain reaction of falling beams. They landed on McGuire's right leg, crushing it. After 16 surgeries, his leg ultimately had to be amputated above-the-knee.

McGuire and his wife blamed general contractor T.N. Ward and subcontractors Samuel Grossi & Sons and E&R Erectors, arguing that they failed to ensure workers' safety. The plaintiffs also alleged the beams were improperly stored. Lawsuits against Harrah's Entertainment and Chester Downs were dismissed after the other parties agreed to the settlement. The case was filed in Philadelphia County.

To see the full report on this case, go to VerdictSearch.com.

At C&C Law, we have handled many construction site accidents in both Pennsylvania and New York. See more information on the website relating to construction site accidents here and here.

New case law on IRE's

The Commonwealth Court of Pennsylvania issued a new decision in the case Combine v. WCAB (National Fuel Gas Distribution Corp.) on August 14, 2008. This case dealt with the issue of whether or not the Claimant needs to be at maximum medical improvement (MMI) before his benefits can be modified pursuant to an impairment rating evaluation (IRE).

In this case, the IRE physician did not render an opinion that the Claimant was at MMI and thought that a finding of MMI was not required by the Workers' Compensation Act. The Workers' Compensation Judge accepted this interpretation as well as the Appeal Board. However, the Commonwealth Court reversed.

The Court basically followed the language of the AMA Guides which are used to determine impairment ratings. The Fifth Edition of the AMA Guides requires that to determine an impairment rating, the Claimant’s condition must be permanent, thus the Claimant’s condition must be at MMI.

To see the full decision, click here.

How much is your arm worth?

Because the last post dealt with specific loss benefits, I thought I would provide a quick primer on what this means. Under the Pennsylvania Workers' Compensation Act, if you lose a particular extremity, or lose the use of that extremity, then you can be compensated for that loss. Basically, if you get your arm chopped off at work, you are entitled to a set amount of weeks of total disability benefits based upon your average weekly wage.

Here is a list directly from the statute listing what each body part is worth.

As you can see from the list, for example, an arm is worth 410 weeks of benefits plus a 20 week healing period. Therefore, if you lost your arm (or lost the use of it for every day practical purposes) then you would receive a total of 430 weeks. You would multiply your total disability compensation rate (TTD) by 430 and that is how much your arm is worth.

It is obvious that this type of system is not fair at all. A person who works at a desk and shuffles papers but earns a high salary (er...eh...like me....) would get a significant payment if I lost my arm, even though I could pretty much do my normal job of shuffling papers with a few minor modifications. However, a construction worker earning $15.00/hour, for example, probably would NEVER be able to do his/her normal job with only one arm, but he would receive less money than I. That just is not fair. The person who needs their arm the most to support themselves and their family gets the least amount of money.

A rich person's arm is worth more than a poor person's arm.

New case law on allowing total disability benefits even when the injured employee is back to work

In Allegheny Power Service Corp. v. WCAB, the Pennsylvania Commonwealth Court ruled that the WCAB has discretion under the Workers' Compensation Act to award total disability benefits even when an injured worker is able to return to a job and earn wages.

In 1995, the injured worker suffered severe electrical burns when he came in contact with a charged electrical line. His right arm was amputated at the elbow and his left hand was badly damaged to the point of being almost useless.

The claimant eventually returned to light duty work at his normal wages so the insurance company stopped his total disability wage benefits. Claimant's counsel, though, filed a penalty petition contending that under Section 306(c)(23), Claimant should continue to receive total disability wage benefits despite him returning the work.

The workers' compensation judge determined that the matter was governed by section 306(c)(23) of the Workers’ Compensation Act (Act), which creates a statutory presumption of total disability for individuals who suffer specified bilateral losses: “Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability, to be compensated according to the provisions of [section 306(a) of the Act, 77 P.S. §511].” 77 P.S. §513(23) (emphasis added).

On appeal, the Employer argued that the WCAB erred in interpreting section 306(c)(23) of the Act as mandating an award of total disability benefits without regard to evidence of Claimant’s post-injury earning power. Specifically, the Employer argued that, because awards under section 306(a) are premised upon a loss of earning power, the principle that specific loss benefits are payable without regard to a claimant’s earning power is not applicable to awards under section 306(c)(23). The Commonwealth Court disagreed.

The Court held that a claimant who sustains an injury adjudged compensable under section 306(c) (specific loss) is not entitled to compensation beyond that provided by section 306(c), even though he may be totally disabled by his injury. Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976). It always has been recognized that the right to compensation under section 306(c) is measured by the extent of the injury, regardless of the degree of disability. Morrow v. James S. Murray & Sons, 7 A.2d 109 (Pa. Super. 1939).

In cases where there is a bi-lateral loss, the claimant's future earning power should not be considered. Also, the sole discretion lies with the WCAB and cannot be overturned on appeal. Thus, if the WCAB determined, as it did in this case, that the claimant should receive ongoing total disability benefits, despite working, then the appellate courts cannot overturn that decision.

New Case Law on Serial Termination Petitions

In Prebish v. WCAB, decided on July 14, 2008, the Commonwealth Court of Pennsylvania handed down a decision dealing with facts which we often see where an insurance company files termination petition after termination petition over several years on the same claimant.

A Termination Petition is used by an insurance company to argue that the claimant’s injury is no longer present, i.e., that it has healed and is no longer there. If successful on these petitions, the claimant’s workers’ compensation wage and medical benefits should be stopped or "terminated." In order to defeat this kind of petition, the claimant merely has to show that the condition or the injury is still present. This is usually done through testimony from the medical expert in the case.

In some circumstances, the insurance company will file a Termination Petition but then lose and then they will wait six months to file another Termination Petition and lose again and then in six months file another one. This is called a serial termination case.

The Commonwealth Court ruled that in serial termination cases, the Judge has to find that the claimant’s condition changed from the prior litigation in order to grant the new Termination Petition. This means that in a case where the medical testimony and the Judge finds facts that the claimant’s condition has not changed since the previous termination petition was lost, then the insurance company cannot prove that the injury has healed or is over. In order to prevail on a serial termination case, the insurance company will have to prove that the claimant’s condition has changed to the better, to the point where there is no injury.

Hopefully, this will somewhat limit these serial termination cases, which can be quite annoying and harassing to injured workers.

U.S. Rushes to Change Workplace Toxin Rules

Once again, the Bush Administration doing everything it can to help Big Business and hurt workers.

Political appointees at the Department of Labor are moving with unusual speed to push through in the final months of the Bush administration a rule making it tougher to regulate workers' on-the-job exposure to chemicals and toxins.

The text of the proposed rule has not been made public, but according to sources briefed on the change and to an early draft obtained by The Washington Post, it would call for reexamining the methods used to measure risks posed by workplace exposure to toxins. The change would address long-standing complaints from businesses that the government overestimates the risk posed by job exposure to chemicals.

The rule would also require the agency to take an extra step before setting new limits on chemicals in the workplace by allowing an additional round of challenges to agency risk assessments.

You got that? They want to make it harder to protect workers from toxic exposure at work. See the full article here.

Waivers Limiting Workers' Time to Sue Draws Fire

I wonder when we will be seeing this type of thing in Pennsylvania workers' compensation claims?

A growing number of employers are adding a controversial element to their job applications: a waiver in tiny print that says employees can sue the company only within six months of a particular incident. That waives their rights to any contrary statute of limitations provided under state and federal laws, a tactic that is stirring yet more workplace controversy and litigation.

See the full article here.

Emergency Unemployment Compensation

President Bush signed into law H.R. 2642, the supplemental appropriations bill that provides up to 13 weeks of extended unemployment insurance (UI) benefits in all states.

Over the next two weeks, potentially eligible claimants will be contacted by the Department of Labor & Industry by mail with information and instructions on filing for EUC benefits. The earliest individuals can file for EUC weeks, either by PAT or on the Internet, is during the week of July 20, 2008. The first payable week is July 12, 2008. We ask that claimants wait to receive this information in the mail. Please do not call the Unemployment Compensation Service Center.

General Provisions of the EUC Program:

1. The first week of EUC that may be paid is the week ending July 12, 2008.

2. To be eligible for EUC, a claimant must meet the following requirements:

--The claimant had a regular UC claim with a benefit year that ended on or after May 1, 2007, OR, the claimant currently has a regular UC claim on which the claimant received the maximum amount of benefits.

--The claimant is ineligible for regular UC from Pennsylvania, any other state, the federal government or Canada.

--The total amount of wages in the claimant’s base year is equal to or greater than 1½ times the amount of wages in claimant’s highest quarter of the base year.

--The claimant is totally or partially unemployed.

--The claimant is legally authorized to work in the United States.

3. The EUC weekly benefit amount is the same as the regular UC weekly benefit amount payable for a week of total unemployment.

4. A claimant’s EUC maximum amount is 13 times his or her weekly benefit amount if the claimant qualified for 26 times the weekly benefit amount on the claimant’s regular UC claim.

5. The EUC maximum amount is 8 times the claimant’s weekly benefit amount if the claimant qualified for 16 times the weekly benefit amount on the regular UC claim.

6. The eligibility provisions of the Pennsylvania UC Law also apply to eligibility for EUC benefits.

7. EUC Phase-out - A claimant may not begin to receive EUC later than the week ending March 28, 2009. The last week of EUC that can be paid is the week ending July 4, 2009.

You can find frequently asked questions on this extra benefit here.

Sayre Borough: Workers compensation claim filed against Sayre Borough

I'm in the news!! To see the front page story on the Morning Times website, go here.

Workers’ compensation litigation has been filed against Sayre Borough by former secretary Jo Ann Daly, who resigned from her position with the borough July 9 and is now working in a position at Keystone College. The litigation was filed against the borough on June 9, a month prior to her resignation, according to James Carroll, Esq., who is representing her in the matter.

Daly had worked for the borough in various capacities for nearly 12 years, according to Carroll, and had suffered with a long-standing work related injury prior to her resignation. “She truly enjoyed her job but felt that continuing to work in the building under the requirements established by her employer would be detrimental to her health,” said Carroll. The litigation was filed due to the borough’s alleged refusal to change these working conditions, despite several attempts, that caused Daly’s injury.

Sayre Borough Council President Henry Farley noted that the injury referred to is a skin condition, but didn’t have any further comment on the issue since the borough hadn’t officially received her letter of resignation. She’s currently receiving workers’ compensation, Farley added, and he hopes they can address the issue at the borough’s regular monthly meeting on Thursday at 6 p.m.Borough solicitor Jonathan Foster, Esq., was unable to comment on the issue due to it being a personnel matter.

Court Holds Workers Compensation Employer May Enter Judgment In Common Pleas Court

Below is a link to the Superior Court decision from July 8, 2008 where the court holds 2-1 in United Parcel Service v. Hohider (Klein dissenting) that an employer is allowed to enter a judgment in the court of common pleas based upon a Workers Compensation Judge's order that a certain amount of a workers compensation lien had not been paid back.

The trial court struck the request to enter the judgment because it held that Section 428 of the Pennsylvania Workers Compensation act only provides the right to enter an automatic judgment to the employee and not the employer.

The Superior Court decision by Judge Bender recognizes that Section 428 only provides the right to enter a judgment to the employee but also notes that there is an absolute right under section 319 of the Act for the employer to be reimbursed. Thus, it finds that disallowing an employer to enter a judgment in the common pleas court would render the workers compensation judge order a nullity so it allows the judgment.

Judge Klein dissents and indicates that there may be valid reasons to challenge the order that should be litigated and since the legislature has not given the employer the right then the court should not allow it.

This decision basically turns Section 428 on its head. Another case where an appellate judge reads something in a statute that is not there merely to support the ultimate decision that is desired. Hopefully the Supreme Court will take care of this one.

See the full decision here.

Deadliest job in America: Working on cell phone towers

According to a story in this week's RCR Wireless News (no online link yet), building and climbing towers (which can be hundreds of feet tall) is more dangerous than ranching, fishing, logging, and even ironworking. The fatality rate is currently 183.6 deaths per 100,000 workers: Five tower workers died during one 12-day span earlier this year alone. 18 tower workers died on the job in 2006.

The cause for the runup in tower worker deaths isn't completely clear, but it's likely a combination of careless working practices (workers not using safety gear 100 percent of the time, or not using it correctly) and network operators pushing to build out and upgrade their networks too quickly. Hard to blame carriers for wanting to get faster networks up and running, but not at the cost of human life. (RCR is careful to note that the investigation into the rise in fatalities is too early to attribute to any specific source.)

Oddly, a loophole in OSHA rules may make it difficult for changes to happen quickly: Towers are often constructed by small contractors instead of the carriers or the owners of the towers. Since the carrier isn't on site during the construction of the tower, the contractor receives the fine and the carrier and owner face no sanctions. (That hasn't stopped the families of some of the deceased workers from suing carriers, though.)

Up next: Workers and their unions are hoping to push through federal legislation which could lead to more thorough regulations covering safety in this largely ignored industry.

Protecting Mine Workers

Mine-safety bill gets OK from union, mine owners

Legislation to improve safety in the state's approximately 200 bituminous coal mines was poised to become law after a marathon negotiation yielded a compromise bill endorsed Monday by both the coal companies and mine workers union.

The state Senate unanimously approved the bill and it was headed to the House, where leaders of the Democratic majority have pledged to pass it this week. It is the first major rewrite of the state's mining law in nearly 50 years.

The 250-page bill was in the making since 2002, when nine miners were rescued from the flooded Quecreek Mine in western Pennsylvania. Even the number, Senate Bill 949, is an echo of the "nine-for-nine" cry that former Gov. Mark Schweiker made famous during the rescue.

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Under the measure, state inspectors for the first time could impose fines for safety infractions on mine owners, instead of just supervisors. The bill also would establish a seven-member safety board which, among other things, would be tasked with keeping the law in step with advances in mine safety technology and practices.

Go here to see the whole story from PennLive.com.

The IRE system is back in action...at least temporarily

The Commonwealth Court granted the Respondent's petition for reargument and vacated the prior decision in T. Diehl v. WCAB (IA Construction, et al.). The case will be listed for reargument. I expected something like this. The original decision in Diehl was quite a shocker. It basically wiped out the entire IRE scheme. And the insurance industry just can't have that.

Can I settle my Pennsylvania workers' compensation case?

Sure! (Well, most of the time.) At C&C Law, we represent injured workers who receive PA workers’ comp. Sometimes, a case is just right to “settle” - or “put an end to” - either your medical benefits, wage benefits or even both.

Settling a Workers’ Comp case means that the injured worker and the insurance company, after negotiation, have come to an agreement as to just how much ‘value’ (or ‘money’) the case is worth when considering medical bills and treatment as well as any past or future lost wages. Once everyone agrees on a value for the case, a Workers’ Comp Judge reviews the terms of the settlement (in Comp lingo, called a ‘Compromise and Release Agreement’). Then, the Judge issues a Decision approving the C&R and the insurance company pays you the ‘value’ you agreed upon. Here is .pdf version of a blank Compromise and Release Agreement that must be filled out and submitted to the Judge for review.


Do we settle every case? Definitely not! In most cases we start thinking about settling only after our client is finished treating with his/her doctor and once we know the client’s long-term prognosis. It makes no sense to settle your case if you are unsure about the need for future surgery, therapy or the like. It also makes no sense to settle the case if you are unsure whether you’ll be returning to work at the same wage you earned before the injury or whether you might not return to work at all.

And then there are the times that settling the case is the right thing to do despite the medical or wage issues. Based on our years of experience in litigating Pennsylvania Workers’ Comp cases, we may have reason to believe that your chances of winning before the Judge are slim. If this is
the case, it may be in your best interest to settle the case rather than risk losing before the Judge and getting no Comp benefits at all.

It is important to remember that each case is different. You need to evaluate your case based on these and other factors to determine if settlement is appropriate. More likely than not, there is value in your case and many times the insurance company can be motivated to pay “top dollar” to clear their books of open claims. Because every case is different, there is no way to give you a "value " for a lump sum settlement of your case by using an easy equation. You may have heard of an equation of 10 years' worth of wage benefits. Or another one often cited is 3 to 5 years worth of wage benefits. Although some times cases settle within these general guidelines, often times cases settle for more or even less, depending on many circumstances.

At C&C Law, we will evaluate your case to determine if it’s ready to settle, and if so, the fair ‘value’ of your case so you can move on in your life and support your family. Send us an email, give us a call or just stop by if we can help with your PA Workers’ Comp case.

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.

Work Related Back Pain

There's a new post at the Carroll & Carroll, P.C. blog on back pain-- the causes, the remedies, what the experts know and what they don't know. Check it out.

The most common form of work related injury is an injury to one's spine. Either by lifting, twisting or a work related automobile accident, back and neck injuries are what we see most at C&CLaw.

New case law on obtaining UIM from your employer for a work related auto accident.

On June 4, in Heller v. Pennsylvania League of Cities, the Commonwealth Court reversed the trial court's decision that it is a violation of public policy to exclude anyone eligible for workers' compensation benefits from also recovering underinsured motorist benefits. In Heller, the injured victim was in the course and scope of his employment in his employer’s vehicle when a car accident occurred.

The injured worker recovered the third party coverage and then sought UIM coverage on his employer’s policy. There was an exclusion in the UIM provision of the employer's policy and instead of just ruling that the exclusion was not valid under the MVFRL, the trial court found that the exclusion violated public policy. The Commonwealth Court in this 2-1 decision holds that the exclusion does not violate public policy and reverses.

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.

New case law on when a Pennsylvania Workers' Compensation Judge can change the description of your work injury

In the case of City of Philadelphia v WCAB (Smith) the Pennsylvania Commonwealth Court issued a decision on April 25, 2008, addressing the issue of when a Workers’ Compensation Judge may amend the description of a work injury. The Court held that the Judge can amend a Notice of Compensation Payable if the description of the work injury is “materially incorrect” as long as the evidence supports such a conclusion. The Judge has the power to do this even if the Claimant has not specifically asked for the amendment in a Review Petition. A Judge can do this during any pending litigation.

Therefore, the WCJ did not commit an error of law upon affirming a WCJ’s denial of the employer’s Petition for Termination where the Notice of Compensation Payable recognized the injury of lumbar strain and the WCJ, upon issuing its second determination following a remand, determined that the Notice of Compensation Payable was materially incorrect at the time it was issued and amended the Notice of Compensation Payable to include “posttraumatic lumbar
radiculopathy and two herniated discs at L5-S1” as part of the original injury".

Ok, so why is this important? Many times the insurance company will deny the payment of bills because the treatment was NOT for the accepted work injury. So, if your doctor tells you that herniated disc surgery is necessary on your lumbar spine, the insurance company might refuse to pay the surgery because the accepted work injury was merely a low back strain.

This is where I come in.....

New case law on what constitutes "Reasonable Medical Certainty" by testifying doctors

In the case of Griffin v University of Pittsburgh, which is a May 19, 2008, Superior Court case, the court held that when a physician testifies that there was a 51-49% probability that the negligent act caused the injury, this was legally insufficient to offer an opinion to a “reasonable degree of medical certainty.” Although this is not a workers’ compensation case, most doctors spit out the phrase “to a reasonable degree of medical certainty” without actually defining its meaning.

Therefore, if you have a defense doctor who is a little less sure of the opinion he/she is offering, but also uses the magic language ask him/her to put a percentage on it. You might get lucky! The doctor could give some kind of split percentage as in this case and you can argue that based upon the Griffin case, the opinion is legally insufficient.

The Working Wounded: A New York Times Editorial

From The New York Times:

Mr. Elias wanted his workers to clean out a 25,000-gallon tank that contained cyanide waste. He refused to test the air or the waste inside the tank. He ignored the pleas of his workers for safety equipment. When the workers complained of sore throats and difficulty breathing, Mr. Elias told them to finish the job or find work somewhere else.

Mr. Dominguez, a 20-year-old high school graduate, wanted to keep his job. Wearing just jeans and a T-shirt, he used a ladder to descend into the tank. Two hours later, covered in sludge and barely breathing, he was removed from the tank, a victim of cyanide poisoning at the hands of a ruthless employer who would blame his “stupid and lazy” employees for the incident. Mr. Dominguez suffered severe and permanent brain damage. He now has the rigid body movement and stammering speech found in patients with Parkinson’s disease.

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Mr. Elias did not commit a crime under the Occupational Safety and Health Act, which is the primary federal worker-safety law in the United States. Why not? Because Mr. Dominguez did not die.

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Employers rarely face criminal prosecution under the worker-safety laws. In the 38 years since Congress enacted the Occupational Safety and Health Act, only 68 criminal cases have been prosecuted, or less than two per year, with defendants serving a total of just 42 months in jail. During that same time, approximately 341,000 people have died at work, according to data compiled from the National Safety Council and the Bureau of Labor Statistics by the A.F.L.-C.I.O.

It is long past time for Congress to change the law. First, Congress should amend the Occupational Safety and Health Act to make it a crime for an employer to commit violations that cause serious injury to workers or that knowingly place workers at risk of death or serious injury. Whether good fortune intervenes and prevents harm to workers should not determine whether an employer commits a crime.

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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.

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.

Former Welder's $1 Million Verdict Will Stand

Though the welding industry continues to vigorously defend itself against a growing tidal wave of welding rod litigation, it was dealt a serious blow in March 2006 when its repeated attempts to overturn a welding rod fumes case failed in the Illinois Supreme Court. The case is a landmark in welding rod litigation, in which former welders claim that exposure to fumes from welding rods caused manganism and even Parkinson's disease.

The Original Case

Though several welding rod cases have produced multi-million dollar settlements, the original case in question is a landmark because it is the only welding rod verdict ever decided in favor of the plaintiff. The case, entitled Elam v. A.O. Smith, contended that the plaintiff, a 64-year-old Illinois welder who worked in the profession for 30 years, suffered neurological damage from long-term exposure to the toxic fumes that are a byproduct of welding rods. The case was previously tried before a hung jury (Illinois law demands a unanimous jury); in its retrial, Jack Elam was awarded $1 million in "compensatory damages" for his welding rod-related Parkinson's disease. The jury found that A.O. Smith failed to provide adequate safety warnings about the dangers of manganese in welding rod fumes.

The verdict was a watershed in more ways than one - it unleashed a wave of welding rod litigation once attorneys knew that it was possible for a verdict to be awarded in the plaintiff's favor. The welding rod cases have become so numerous that a multi-district litigation is underway in Ohio; it numbers well over 3,000 plaintiffs.

Lost on Appeal

The defendants in the original case quickly appealed the case, contending that it did in fact adequately warn workers of the dangers of working with welding rod fumes. However, in December 2005, the 5th District Appellate Court of Illinois found that the company did not warn workers adequately, upholding the $1 million verdict. On second appeal, the court was taken up before the Illinois Supreme Court. However, it dealt a devastating blow to the welding industry - and gave an encouraging nod to former welders looking to get compensated for their own occupational welding rod-related illnesses - when it effectively upheld the verdict by declining to review the case.

Former Welders Cling to Hope; Continue to Litigate

Despite the fact that the $1 million verdict is the only one ever given to a welding rod litigant, former welders who are suffering from Parkinson's, manganism and other occupational illnesses related to their welding work are retaining hope. Welding rod attorneys hope that the Elam v. A.O. Smith will set a precedent that allows other litigants to collect damages for their occupational exposure to manganese. If you are suffering health problems due to your work as a welder, contact a doctor and then an experienced welding rod litigation attorney who can analyze your case and tell you whether you may be qualified to monetary damages.

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The Exclusivity Provision: Why You Can't Sue Your Employer For a Work Related Injury

The Pennsylvania Workers' Compensation Act provides that the exclusive remedy against your employer for work related injuries is the workers' compensation law. What this means is that when you are injured at work, all you are entitled to receive are the wage and medical benefits outlined in the Act. You cannot file a separate lawsuit for personal injuries against your employer, even if your employer was clearly negligent in causing the injury!

Section 303(a) of the Workers’ Compensation Act provides:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, . . . or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined [in the act]. 77 P.S. § 481(a).

This means that no matter how injured you are, and no matter how disabled you are, you cannot obtain pain and suffering compensation against your employer as you would in a regular personal injury case.

There are a few exceptions to this general exclusivity rule. One exception is if you can prove your employer engaged in some kind of fraud in causing the work injury.

Also, if you are involved in a work related automobile accident, you may be able to obtain compensation for pain and suffering from your employer's automobile insurance company under its Underinsurance/Uninsurance policy. Also, you may be able to obtain pain and suffering compensation against the automobile insurance of a co-worker if that co-worker caused an auto accident in which you were hurt.

Here is a link to a case, Safe Auto v. School District of Philadelphia, which provides a great summary of the case law in relation to work related auto accidents and obtaining pain and suffering compensation from your employer or co-worker.

Of course, remember that you can always file a lawsuit and receive pain and suffering compensation against negligent third parties.

Also, if your employer does NOT have workers' compensation insurance, you can file a lawsuit in the Court of Common Pleas to obtain benefits.

The Defense Base Act Protects American Workers Injured in Iraq and Afghanistan

In the wake of 9/11, thousands of Americans signed on with companies that had contracted with the U.S. federal government to provide services in support of the U.S. efforts in Iraq and Afghanistan. War zones are dangerous places, and they have sometimes proved as dangerous for our civilian workers as they have for our troops.

Tragically, many of these workers became injured while overseas. Just as tragically, many of the workers who where injured in support of American efforts abroad have been faced with overwhelming medical bills and loss of income as they recuperated. Some also lost their lives, leaving their families destitute. Many others who are unable to work watch their family's savings and assets dwindle, and their security disappear.

A law exists to ensure fair workers compensation for these people. It's called the Defense Base Act. Unfortunately, too few people in need of its protection understand their own rights under the law. Even fewer know what to do to guarantee those rights. Recuperation can be difficult enough without mounting bills, the threat of bankruptcy, and an inability to get proper medical care and rehabilitation. That's to say nothing of the financial threat to the families involved.

The Defense Base Act requires that contractors working with the U.S. Military in war zones carry worker's compensation insurance. This type of insurance is compulsory for organizations employing U.S. citizens or residents, and all employees or subcontractors hired on overseas government contracts. However, these companies sometimes fail to inform workers of their rights. Worse, the insurance carriers often refuse claims, abandoning injured Americans who supported the American mission to face crushing expenses and debt on their own.

Fortunately, Federal law provides a genuine solution, though unfortunately few injured workers know how to apply it. The Defense Base Act is part of the Longshoremen and Harbor Workers' Compensation Act, and covers to employees of government contractors working overseas under contract to the United States Government. Specifically, the Act covers workers employed by American contractors performing public works for the U.S. government in U.S. territories, or at U.S. military bases located outside the continental United States, in support of military aid programs within allied nations. Workers are protected under the Act, even if they are only employed to build embassies and other U.S. government buildings abroad.

The Act ensures medical treatment and compensation for employees of defense contractors injured in the course of employment. For thousands of American workers injured abroad, the Defense Base Act has provided support for them under devastating circumstances. Claims under the Act have been successfully filed by many individuals, including some contact workers injured in Korea, VietNam, both Iraq wars, Afghanistan, and elsewhere. All were protected under the general coverage of the Act.

The Defense Base Act mandates that any injured worker should be confident of having an attorney at his side to ensure a just outcome. Both injured workers and family member of someone who has died from job injuries overseas are covered. Compensation is also allowable for partial loss of earnings, and significant death benefits are commonly paid to spouses and family. Fortunately, injured workers or their families are not responsible for legal fees for a DBA injury claim. The Defense Base Act requires that all attorney fees depend entirely on the amount of money the claimant receives. No outrageous legal fees are possible. The fees are awarded by the Department of Labor,and are never included in any other compensation to the claimant. The injured party does not pay the lawyer out of his or her compensation. Instead,compensation is awarded to the attorney by the court, and paid by the insurance company or the original employer.

Civilians working in support of American military and U.S. State Department objectives continue to be injured to this day. For these injured civilians, the key to success in securing just compensation under the Defense Base Act is finding the right lawyer. This is a highly specialized area, and familiarity with standard Workman's Compensation Law is simply inadequate. Claimants are advised to find a Defense Base Act attorney with years of experience and success with these claims.

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William Prescott is web copy writer and researcher of health issues. This article is based on interviews with legal expert Kurt Gronau, a well-known Defense Base Act 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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