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.