What geographic area should Labor Market Surveys be conducted?

In the recent case of Rebecor v. W.C.A.B. (Eckerd), the Commonwealth Court ruled on where a labor market survey must be completed. A labor market survey is where the workers' compensation insurance carrier hires a vocational specialist to do a job search for the injured worker. Once the search find jobs for the claimant in the general geographic area that is vocationally appropriate for the claimant as well as physical appropriate, the carrier will attempt to modify the claimant's benefits based upon the assumed wages of those jobs.

However, under labor market surveys, the jobs don't actually have to be offered to the claimant. The jobs are mere examples of the work available to the claimant in the general job market that the injured worker COULD be performing.

But what happens when the injured worker moves away from the area where the injury took place? What about another state? In this case, the Court held that the labor market survey must be done in the area where the work injury happened, and not the area where the claimant currently lives.

Treatment Options for Scarring After an Accident

Many of our clients suffer from work related accidents that leave visible scarring. Over the years I have represented Pennsylvania workers' compensation claimants that have suffered from work related burns, cuts, etc., that can leave horrible looking scars.

I have blogged about how the Pennsylvania Workers' Compensation Act treats scarring. An injured worker who suffers a scar is entitled to receive a specific amount of money based upon the severity of the scare, its location and your weekly compensation rate. You can only receive these types of scarring benefits for scars that are on the head or neck-- nothing for any other body part scarring such as on the hands or legs.

Over at the main Carroll & Carroll blog I've posted an article about the various treatments for scarring. Check it out here. Obviously, because the treatment is for a scar that is work related, then the workers' compensation insurance company must pay for whatever treatment is necessary.

Low wage workers are often cheated, study says

Attached is a link to a New York Times article detailing a new study based upon workers in New York, Los Angeles and Chicago. The gist of the study is that low wage workers are routinely denied proper overtime pay and are often paid less than the minimum wage, which is against the law.

Some of the specifics of the study indicate that sixty eight percent (68%) of the workers interviewed had experienced at least one pay related violation in the previous work week. The typical worker had lost Fifty One Dollars ($51.00) the previous week through wage violations, out of average weekly earnings of Three Hundred and Thirty Nine Dollars ($339.00) per week. That translates into a fifteen percent (15%) loss of pay for that specific week. For low wage workers, this is a significant amount of loss.

The survey included 4,387 workers from various low wage industries including para manufacturing, child care and discount retailing.

One of the most surprising findings that relate to the workers' compensation practice at Carroll & Carroll, P.C. was that only eight percent (8%) of those who suffered serious injuries on the job filed for workers' compensation to pay for medical care and missed days of work. This is obviously due to the fact that employers are very good at pressuring low wage workers into not filing claims or just completely misleading their injured employees.

Some of the other findings in the study: seventy six percent (76%) of those who had worked overtime the week before were not paid their proper overtime. Twenty six percent (26%) of the workers had been paid less than the minimum wage the week before being surveyed. Further, one in seven had worked off the clock the previous week.

In instances where the employee was injured and workers' compensation should have been applied, the study found that one third (1/3) of all injured workers had to pay the work related medical bills out of their own pocket and that workers' compensation insurance paid medical expenses for only six percent (6%) of the injured workers surveyed.

This study clearly demonstrates the need for more enforcement of wage and hour laws. It also clearly demonstrates why our workers' compensation practice is so busy.

The 5 Most Common Building Site and Construction Accidents

Many of our Pennsylvania workers' compensation clients are construction workers. In my years as a workers' compensation lawyer, I've seen just about every type of work injury there is to get on a construction or building site. This article explores some of the more common construction accidents in the workplace.

Ladders.

Ladders always carry a danger. When ladders are used to move between different levels on a construction site injury can be caused in a number of ways. One of the more serious injuries we have seen was when someone had failed to secure a ladder to the next level. As the user ascended the ladder it came away from the scaffolding causing him to fall over 30 feet to the floor, shattering his heel in the process.

Other injuries using ladders occur when someone is carrying equipment which is too heavy, causing them to fall away from the ladder, or when there is insufficient ladder protruding above the next level causing the user to miss their footing with nothing to hold onto.Falling Debris.

Another common cause of accidents is debris falling from a height landing on workers on lower levels or working on the ground levels. Depending on the item that is dropped (from wooden planks to brickwork) and the height it is falling these accidents can cause severe injuries.Falling From Heights.

Due the nature of a construction site many workers are working at several stories high. Roofers particularly are at risk from falling from a great height. If the fall is as a result of poorly constructed scaffolding or a defective roof you may be able to make a claim for compensation. This could also be the case if you have not been provided with the correct safety equipment or the right level and amount of training.

Machinery.

If you are using power tools on a construction site these can lead to injury either through defects in the machinery itself, inadequate training or failure to provide the correct safety equipment.

Trips and Slips.

Due to the amount of equipment on a construction site it is quite common for workers to slip or trip over discarded equipment or debris and suffer injury. This can be particularly hazourdous if the trip or slip leads the victim to fall into holes on the site. Trips and slips are a common hazard on a building site, and whilst each employee must take all necessary action to prevent injury, if the employer has failed to take the necessary steps you will be able to make a claim for compensation.Summary.

A construction site is a dangerous place to work, but your employer must do all that they can to keep you safe. If they fail to discharge their duty to protect you and you suffer injury, you can make a claim for compensation for your pain and suffering, loss of earnings and any other expenses.

Thanks to Nick Jervis for this information. You can read more about being Injured At Work? Find out more about Work Accidents generally and read our Free Work Accident Claims Guide. Nick Jervis is a solicitor (non-practising) and a consultant to Work Accident Solicitors who specialise in Work Accident Claims.

5 Of The Most Common Accidents At Work

1.Wet floors.

Wet floors in the working environment can be treacherous. They are particularly dangerous in restaurants and hotels when waiting staff are normally walking quickly from tables to the kitchen and returning. Often spillages can be left on the floor unattended and waiting staff, not knowing about them, return to the kitchen with their sight blocked by the items they are carrying and slip on the floor.

Whilst most slipping injuries thankfully do not lead to serious injuries, if the waiter or waitress is carrying items, this often prevents them from softening their fall with their hands meaning that they can fall on elbows or on their hips. This can lead to serious fractures.Often the leak on the floor in the first place could have been cleared more quickly or if it was caused by faulty machinery this should have been repaired. It is the failure to repair or clean up the leak that often leads to a successful accident at work claim.

2. Factory Accidents.

Factories can be particularly dangerous places to work. This section does not deal with the common machinery accidents that feature later as one of the top five, but more to do with the people involved and the materials used in factories. The most common type of factory accident normally involve workers tripping over discarded packaging. Every employer must ensure that the packaging used is placed in safe containers and not thrown on to the floor. However, if an employer does not ensure the staff are trained correctly or provide facilities for disposal of packaging, this can lead to it being discarded and workers tripping over it.

Once again, as with tripping accidents, quite frequently no serious injury is sustained. However, sometimes fractures to legs and arms lead to serious pain, time away from work and an accident at work claim being made.

3. Warehouse Accidents.

There are many different types of warehouse accidents, but one of the most common forms involves storage facilities. If warehousemen are constantly stacking and unstacking shelves any weakness in the shelf can lead to them collapsing. In the worst cases this can actually lead to a trapping injury when shelving comes away from the wall and falls on to the warehouse person. These can lead to serious injuries and long term complications.

If the shelving was not correctly positioned in the first place or was not maintained, this can lead to a successful accident at work compensation claim.

4. Forklift Truck Accidents.

These are frequently the cause of accidents. Every forklift truck driver must receive training and the employer must ensure that only trained people use the forklift truck. If they do not supervise sufficiently and untrained handlers use the forklift truck, or even trained handlers use the forklift truck but drop pallets or cause items to fall on to other co-workers, this can lead to a successful claim for compensation.

5. Machinery Accidents.

Although left until last, the injuries sustained during the use of machinery can be extremely severe. If staff are not properly trained, or the machinery is not maintained, or guards are not fitted, workers can suffer severe injuries leading to amputations and even in some cases death. Machinery is by its nature, dangerous and the utmost care must be exercised by workers and by employers.

Thanks to Attorney Nick Jervis for this information. Read more about being Injured At Work? Find out more about Work Accidents generally and read our Free Work Accident Claims Guide. Nick Jervis is a solicitor (non-practising) and a consultant to Work Accident Solicitors who specialise in Work Accident Claims.

IME Doctor Owes Duty of Care to Injured Worker, Arizona Court Rules

The Arizona Court of Appeals has recently ruled that an independent medical examiner, who is performing an examination on an injured worker on behalf of the insurance company, has a duty of care to that injured worker.

In the case of Ritchie v Krasner, the Plaintiff, Jeremy Ritchie, hurt his back at work, suffering a bruised spinal cord and compression of the cervical spinal cord. The workers' compensation insurance carrier hired Dr. Scott Krasner to perform an independent medical examination on Mr. Ritchie, which is the standard procedure in almost every state. Dr. Krasner basically concluded that Mr. Ritchie was fine and he was able to perform unrestricted work.

However, after 8 months of continued pain and his condition worsening, Mr. Ritchie treated with a neurologist who found that his cervical spinal cord had compressed and could not be fixed by surgery. Thus, this condition was permanent and painful.

Ritchie filed suit against Dr. Krasner, against the doctor who performed the original medical examination of behalf of the workers' compensation insurance carrier. Ultimately, the appeals court held that IME doctors have a duty to perform at the normal standard of care for all doctors of their specialty.

Mr. Ritchie's lawyer indicated that "the signs and symptoms Ritchie had should have alerted the doctor. But they didn't. Either he missed them, or - depending on how cynical you want to be - he was given his marching orders to terminate Ritchie's benefits, which is what he did."

Most likely, the doctor was basically following orders from the insurance company. In our practice, there are several insurance company doctors who are used often because the carriers know that the doctor will rule in the employer's favor and against the employee. These doctors are used over and over and over again. Although this is not the law currently in Pennsylvania, it certainly demonstrates the possibility that IME doctors can be held accountable for their actions.

Worker Compensation Grows by Lowest Amount On Record

From the Department of Labor:

Employment compensation for U.S. workers has grown over the past 12 months by the lowest amount on record, reflecting the severe recession that has gripped the country.

The Labor Department said Friday that employment costs rose by 1.8 percent for the 12 months ending in June, the smallest annual gain on records that go back to 1982. The department said that for the April-June quarter, its Employment Cost Index rose by just 0.4 percent, just slightly above the 0.3 percent rise in the first quarter, which had been the smallest quarterly gain on record.

I, personally, believe this recession is not nearly over, despite what the main stream media has to say about it.

Rumors of Ingersoll-Rand Athens, Pa Plant Closing

Once again, there are rumors circulating throughout the Valley that the Athens, PA Ingersoll-Rand plant is going to completely shut its doors. Every few years this rumor seems to pop up. But this time around, there's more to the story.

As detailed in a recent Morning Times article, there are approximately 174 people employed at the Athens, PA plant. Compare this to the plant's heyday in 1967 when 1800 people were employed at the plant.

According to an anonymous source inside the plant, 110 employees were let go since the beginning of 2009.

I would still bet against the plant closing, especially given the almost yearly rumors of a shut down. However, if you're an employee there and have a possible work injury that has not been officially accepted by IR's workers' compensation insurance company, now is the time to get it done. I have blogged about this before with regard to being laid off while on light duty work restrictions due to a work related injury. If so, you should be automatically put back on total disability and receive your full disability rate. However, this will not happen if your claim has not been officially accept.

As for comment by corporate headquarters on the possible plant closing:

“We don’t ever comment on anything in the future,” said Susan Jaramillo, director of communication for the corporate headquarters."

Acupuncture may help reduce back pain, research finds

A vast majority of our workers' compensation cases at Carroll & Carroll, P.C. involve clients who have suffered a back injury. Over the years of practicing workers' compensation law, the alternative medical procedure of "acupuncture" has gradually gained prominence.

I remember the early days when acupuncture was considered a bogus procedure. Now, most insurance companies will pay for acupuncture treatment.

A new study appears to show that acupuncture can be an effective treatment for chronic back pain with sufferers reporting a 20% reduction in pain.

Attached is a link to a telegraph article on the study.

Cell Phone Elbow

Just in case you haven't heard of the new condition, it's called cell phone elbow or, more commonly referred to in medical terms as "cubital tunnel syndrome."

Here's a story about it from CBS News.

"The latest over use or repetitive motion injury to join the digital age list is cell phone elbow. It is caused by too much bending of your arm to put a cell phone to your ear. This bending compresses the ulnar nerve, which runs along the bony bump on the inside of the elbow."

I have seen many "cubital tunnel" cases in my practice, but none using the theory of too much cell phone use. However, I can see how this might easily be a winnable case. In my own experience of holding a cell phone while driving (before I purchased a "hands free" unit) it would only take about 5 to 10 minutes before my arm became sore.

Some of our successful case results

Please note that every case is different and these workers' compensation lump sum settlements, while accurate, do not represent what we may obtain for you in your case. Every injured worker is different given the type of injury, the amount of disability, your average weekly wage and weekly compensation benefit rate.

Nor does it mean that we win all of our cases - we don't. Our clients tell us that knowing that we have achieved significant results is one factor that many of them used to decide to hire us. You certainly should ask any prospective attorney whether he or she has obtained significant verdicts and lump sum or compromise and release settlements but the decision to hire an attorney should not be made on this factor alone. We would be more than happy to discuss any of these cases, and many others, with you.

Bridge Construction worker with herniated discs in neck - $385,000.00

43 year old male who was a highly paid bridge construction worker injured his neck while lifting on the job. He ultimately had to undergo two cervical surgeries to repair herniated discs in his neck. Thereafter, he developed RSD or Complex Regional Pain Syndrome in his left arm. He ultimately lost the use of his left arm for every, practical uses. He also started experiencing the same symptoms in his right arm, all stemming from the neck injury.Carroll & Carroll, P.C. filed litigation. The insurance company accepted responsibility for the work injury and even agreed that the claimant lost the use of his left arm. However, the workers' compensation insurance company disputed the relatedness of the right arm.The case settled for $385,000.00 which is a record settlement for Carroll & Carroll, P.C. in a workers' compensation case. Also part of the settlement is that the insurance company has agreed to pay whatever medicare set aside amount is required by Medicare.

Repatative Use Injury to Arms - $175,000.00

53 year old woman had worked at a label making plant for over 20 years. Several years ago, she began having pain in her right arm when she would perform her highly repetitive duties making labels for clothing. When she was restricted to one arm work, she had to use her "good" arm too much and began suffering the same symptoms in the left arm. Carroll & Carroll, P.C. filed a claim petition against the employer and won the case. The workers' compensation judge ruled that the claimant first suffered a right arm epicondylitis and then, due to over-use, suffered the same condition in her left arm later in her employment. An interesting twist in this case was that each "arm injury" was covered by a different insurance company due to the time the injuries arose.

Eventually, Carroll & Carroll, P.C. was able to secure a settlement for the claimant that protected her future medical bills and allowed her to retire with no financial worries.

Loss of use of arm for lumber yard worker - $150,000.00

27 year old male who was working at a local lumber yard injured his arm on a piece of the industrial machinery used to plane wood. While clearing out pieces of debris from the machine, another employee turned it on, locking the client's arm in the machine and causing injury. The client's arm was significantly injured, needing many surgeries.Carroll & Carroll, P.C. filed a petition to force the workers' compensation insurance company to pay the client specific loss benefits. These are benefits an injured employee receives when he/she loses the use of a body part. We argued that the client lost the use of his arm due to the injury. We eventually settled the case for a lump sum payment of $150,000.00. Also, the client is on social security disability. Carroll & Carroll, P.C. has also filed a product liability lawsuit against the manufacturer of the machine due to it being defective for not having proper safeguards designed into the machine.

Construction worker broke leg requiring surgery - $145,000.00

While on a job site, a 45 year old construction worker tripped over some boards, breaking his leg. The break was so bad that surgery had to be done to place screws and plates to mend the bones. Unfortuneately, the client's leg was so disabled that he could not return to construction work. Further, the client developed RSD or what is now referred to as Complex Regional Pain Syndrome. Carroll & Carroll, P.C. was able to win the client's comp benefits after the insurance company denied him what was owed to him. Further, we were able to secure Social Security Disability benefits for the client, then settle his workers' compensation claim for $145,000.00. After the comp settlement, the client will continue to receive his monthly SSD check plus have all of his medical bills paid for through Medicare.

Shop Teacher Amputates Fingers on Table Saw - $125,000.00

A Vocational Tech teacher for a local school severely injured his hand while using a table saw in shop class. Even though the teacher returned to work after a brief period, Carroll & Carroll, P.C. filed a claim for the "specific loss" of use of several fingers. We were able to prove that the teacher had loss the use of three fingers either through outright amputation or severe damage. The case was ultimately settled for a lump sum of $125,000.00 including the payment of all medical bills and the waiver of the workers' compensation lien against any recovery from the product liability case against the table saw manufacturer.

Lumbar Surgery - $110,000.00

38 year old male injured his lower back while lifting something heavy at work. He eventually had lumbar spine surgery and was totally disabled. He had been on workers' compensation for many years before coming to Carroll & Carroll, P.C. for help in getting some medical bills paid. We made sure he was approved for Social Security Disability and Medicare. Then we settled his workers' compensation case for $110,000.00. Now the claimant does not have to worry about his benefits being cut off or looking over his shoulder all the time worrying that someone was watching him. He did not have to go to hearings anymore and could move on with his life.

Loss of Use of Hand - $110,000.00

60 year old woman had her hand trapped in a conveyor belt while working at a local cabinet making plant. After several surgeries on her hand and a partial amputation of her index finger, she no longer had much use of the hand. The lawyers at C&C Law filed a petition for specific loss of use of her hand. We put on such a good case that we were able to settle her case for a $110,000.00 lump sum payment plus continued medical coverage for 2 years.

Blister On Foot Nets Big Comp Settlement - $90,000.00

45 year old male who injured his foot at work causing swelling. Because he continued to keep working with the swelled foot, a blister appeared due to his tight fitting shoe. Unfortunately, the blister became infected with MSR. The employee went through many surgeries and loss of a few toes due to the infection. Complicating matters was the fact that the employee had pre-existing diabetes that was obviously not related to work and that contributed to the infection not healing. So, the insurance company argued that the employee's current condition was not related to the original work injury but to his diabetes.

Carroll & Carroll, P.C. filed a Specific Loss petition claiming that due to the many surgeries and infection and loss of a few toes, the claimant had loss the use of his entire foot as if it was actually amputated. Also, there was a question as to jurisdiction of the case. The insurance company wanted to have the case heard in either Maryland (where the original foot injury occurred) or New Jersey (where the employer's corporate headquarters was located) or in New York (where claimant lived), three states that are not as good for injured workers as Pennsylvania. We were able to negotiate with the insurance company to have the case heard in Pennsylvania. Also, we were able to get all of the medical bills paid. Further, we were able to convince the insurance company that the claimant actually loss the use of his foot. The case was settled for a lump sum of $90,000.00. Also, the claimant was approved for Social Security Disability so he will be receiving monthly benefits in order to pay his living expenses. Further, he was approved for medicare so his future medical bills will be paid.

Work related back injury but no surgery - $80,000.00

A 26 year old man injured his back lifting something heavy while working at Proctor and Gamble in Meshoppen, Pennsylvania. The client was off work due to his injuries despite the fact that P&G wanted him to come back to work on light duty. The client did not have surgery on his lumbar spine.

OSHA not doing its job

OSHA has come under significant criticism in a report from the Department of Labor’s inspector general for inadequately enforcing safety laws against high risk employers. As you may know, OSHA is the Occupational Safety & Health Administration and they are tasked with enforcing the country’s safety and health laws as it relates to employers and the conditions under which employees work.

You can see more information about this report at Workers’ Comp Insider here. You can also see a copy of the report here.

Specifically, the report indicated that OSHA did not take the appropriate enforcement action in 29 sample cases-and those employers subsequently experienced 20 fatalities, of which 14 deaths shared similar violations. This basically means that it is quite possible that if OSHA did its job then at least 14 people might still be alive today.

Scariest work place safety video EVER!

After viewing this video you will want to crawl up in a fetal position and cry for your mommy.

See it here.

New York Times article on biased insurance company doctors

Here's a link to a post at the main Carroll & Carroll, P.C. blog about recent NY Times article about the use of biased doctors by the insurance companies in the NY Workers' Compensation system.

We face the same problem here in Pennsylvania, but it's a little different. Doctors here, unlike in NY, don't even have to be certified by the State to perform examinations. So, really, any medical doctor can perform IMEs.

But just like in NY, here in the Pennsylvania Workers' Compensation system, insurance adjusters know which doctors are biased and which doctors are straight shooters. You don't have to be a genius to figure out that the more biased doctors get the most work from insurance companies.

Pa. court to police officer: No sense of smell, no job

I read an interesting article in the Associated Press regarding a Pennsylvania Appellate Court holding that police officers who lose their sense of smell might also risk losing their jobs.

The Pennsylvania Commonwealth Court ruled that a suburban Pittsburgh township had the right to terminate one of its police officers after he lost his sense of smell in an off duty motorcycle accident. The reasoning for the termination was because police officers must be able to detect drugs, alcohol, hazardous materials, natural gas and other substances.

Obviously, if the loss of smell was related to a work related injury then the officer could still be fired, but his workers' compensation weekly wage benefits would have to be paid. Unfortunately for this officer, the accident was not work related.

You can see the article here.

No Work Jobs

Every once in awhile I have a case where the employer offers a sedentary job to one of my clients but the job is really not a “job.” It is referred to as a “no work” job where the claimant merely shows up and sits there and basically does nothing. But, the injured worker gets paid his normal wage for his time.

You may ask why would an employer do this, basically pay someone their normal wage for producing no work? In many instances there are unseen costs of having the employee out of work and receiving workers’ compensation wage benefits. Some employers want to keep the employee at the job site so they can keep an eye on him/her. Some employers think it is too expensive to have a wage claim open with their insurance company because their workers’ compensation premiums will rise. Other employers merely want to set the employee up for failure so that they can fire the employee and stop his workers’ compensation benefits.

In a new case from the Commonwealth Court of Pennsylvania, Channel Lock, Inc. v. W.C.A.B. (Reynolds), the Court addressed one of these “no work” jobs. The court ultimately held that the job was not within the injured employee's physical capabilities.

The facts are pretty simple. The injured employee was offered a job where he basically came in to work and sat there. The employee actually tried to do this but fell asleep one day because the medication that he was taking made him drowsy. The employer threatened to fire him if he did it again. At that point, the employee’s attorney filed a petition to allege that the job was not available within his physical restrictions. During the hearing process, the claimant’s doctor testified that the medication could cause drowsiness and the claimant himself testified that every time he took this prescribed medication he became sleepy.

Ultimately, the Commonwealth Court held that the job was not within the claimants physical restrictions due to the fact that he could easily fall asleep while performing these “no work” jobs.

I believe that the underlying lesson in this case is that the courts do not look kindly on these “no work” jobs and, if possible, will always rule on the side of the claimant if they believe that there are other motives that the employer has offered these sham jobs.

McDonald's: No workers comp for employee shot protecting patron

Do they have no sense of decency?

Fast food giant McDonald's has denied workers compensation benefits to a minimum wage employee who was shot when he ejected a customer who had been beating a woman inside the restaurant.

A representative of the administrator for McDonald's workers compensation plan explained that "we have denied this claim in its entirety as it is our opinion that Mr. Haskett's injuries did not arise out of or within the course and scope of his employment.

"Nigel Haskett, then aged 21, was working at a McDonald's in Little Rock, Arkansas last summer when he saw a patron, later identified as Perry Kennon, smacking a woman in the face. A surveillance video of the incident, which had been posted to YouTube, was taken down after McDonald's charged copyright infringement, but according to written descriptions of the video, Haskett tackled Kennon, threw him out, and then stood by the door to prevent him from reentering.

See the full story from Rawstory.com here. See a news report and surveillance video of the event here.

The Commonwealth Court of Pennsylvania rendered a decision in the case of Philadelphia Gas Works v. WCAB (Amodei), dated February 4, 2009. The decision is highly technical but deals with the issue of pension offsets under Section 204 (a) of the Pennsylvania Workers’ Compensation Act.

Section 204 (a) allows the employer/workers’ compensation insurance carrier to take an offset or a credit for pension benefits paid. The question in this case was whether or not an offset gets taken by the net amount received by the employee or the gross amount received by the employee. There was prior case law that indicated that Section 204 (a) required the offset to be calculated via the gross amount. However, regulations were submitted by the Bureau which required the net amount to be considered.

In this case, The Commonwealth Court rules that the offset be based upon the net amount of pension benefits received. In layman’s terms, this means that it is the amount that the Claimant pockets from the pension, after all of the subsequent taxes are taken out, that would be the basis for the offset.

I am sure this case will be appealed to the Pennsylvania Supreme Court.

New Case Law on Serial Termination Petitions

There was a new Pennsylvania Commonwealth Court decision in the case of Delaware County v. WCAB (Browne) dated December 22, 2008. This case dealt with the issue of serial Termination Petitions by the insurance company. I have blogged about the issue of “serial termination petitions” previously, specifically about the case of Lewis v. WCAB (Giles & Ransome, Inc.) case. This blog post can be found here.

The Delaware County case involved the similar facts as in Lewis wherein a claimant previously defeated a termination petition and then a subsequent termination petition was filed. The Commonwealth Court held that the employer failed to establish that the Claimant’s physical condition had changed since the prior decision. The Commonwealth Court indicated that in order to show a “a change in the Claimant’s physical condition” before the employer can move forward with a Termination Petition, the employer could come forward with creditable medical evidence that the Claimant’s current physical condition is different than it was at the time of the last disability adjudication due to a total recovery from the recognized work injury. Such medical evidence, if found creditable by the WCJ and if referenced as a Finding of Fact in the Decision, would satisfy the employer’s burden of proving a change in the Claimant’s physical condition.

In other words, by accepting the employer’s medical evidence of a full recovery as creditable, a WCJ could properly make a finding that the employer has met the standards set forth in Lewis by demonstrating a change in Claimant’s condition.

I am sure this case will be appealed and we will receive more clarification on the burdens of proof in serial termination cases.

Prison Guard receives settlement in MRSA case

This is a news story about a prison guard who contracted a MRSA infection while at work. The infection caused significant scarring on her face. The case settled for $226,000.00. See the whole article here.

2009 Pennsylvania Average Weekly Wage Announced

Pursuant to the Workers' Compensation Act, Section 105.1, the Department of Labor & Industry has determined the statewide average weekly wage for injuries occurring on and after Jan. 1, 2009, shall be $836.00 per week. For purposes of calculating the update to payments for medical treatment rendered on and after Jan. 1, 2009, the percentage increase in the statewide average weekly wage is 3.6 percent.

Under the Workers' Compensation Act, injured workers are entitled to indemnity (wage-loss) benefits equal to two-thirds of their weekly wage for a work-related injury. However, there are minimum and maximum adjustments provided in the Act, and the benefit rate is set using the annual maximum in place at the time of injury. The maximum is based on the Department of Labor and Industry's calculation of the statewide average weekly wage.

The following schedules provide the weekly rates from calendar year 1993 to 2009. When referring to the schedules, read down the column for the calendar year during which the injury occurred.

For example, the maximum weekly compensation rate for calendar year 2009 is $836.00. The second block represents the weekly compensation rate to be 66 2/3 percent of the employee's average weekly wage if the average weekly wage falls between $1,254.00 and $627.01.

The third block reflects a weekly compensation rate of $418.00 if the employee's average weekly wage is between $627.00 and $464.44.

The last block is 90 percent of the employee's average weekly wage if his/her average weekly wage is $464.43 or less.

You can see the full schedule here.