If I Lose My Pennsylvania Workman’s Comp Case Can I Appeal It?

Yes. If you wish to appeal part of all of a Decision that was unfavorable to you,  you can file an appeal to the Pennsylvania Workers’ Compensation Appeal Board within 20 days of the Decision from the Workers’ Compensation Judge.

It is strongly recommended that you review the Decision with your PA Work Comp Lawyer to determine if they will be taking an appeal and why or why not. If  you were represented by an attorney who does not wish to appeal,  you may appeal it yourself or try to find another attorney. However, this can be a difficult task because of several reasons: 1) A new attorney is unlikely to want a case that has already been rejected by a Work Comp Judge, 2) 20 days can go by quickly and it is difficult to catch up to speed on a case that fast, and 3) the legal burden to overturn a decision from a Work Comp Judge is fairly strenuous. This is not to say that you should simply accept the Decision of the Work Comp Judge, but it is to say that it is usually difficult to find a new attorney who will want to jump onboard.

Does the Appeal Board frequently overturn a Decision from a Work Comp Judge? I don’t know the statistics, but my experience is that it is quite difficult to get an unfavorable Decision overturned. It is more common to see a “remand” where the Appeal Board sends back a case to the Work Comp Judge to re-issue the Decision, with a more detailed review of specific evidence or a more detailed analysis of the reasoning behind a credibility determination. Some cases get overturned, but I imagine the number to be a small percentage.

What happens if the Appeal Board doesn’t agree with my appeal- can I take another appeal to a higher court? Yes. You can appeal the Decision of the Workers’ Compensation Appeal Board to the Commonwealth Court of Pennsylvania, and beyond that, to the Supreme Court of Pennsylvania- but the Supreme Court isn’t required to hear the case.

I get a few calls every month from injured workers who lost their case, but who were unrepresented (“pro se”) or had another attorney, and want me to file an appeal. I do not take many of these cases but I will review the case with an injured worker and share my thoughts. The key is to listen to your attorney during the litigation process and to ask him or her to tell you the strengths and weaknesses of the case and to give an approximate range as to the odds of success. Given the highly deferential nature of the appeal law, the time to communicate carefully with your Pennsylvania Work Injury Lawyer is before a Decision is rendered- and to take any recommendation of settlement seriously. Litigation is always unpredictable. That doesn’t mean you should settle just to settle- the settlement, of course, has to be fair given the facts of your case. But counting on a victory is never a wise thing to do either.

If you want information about how Pennsylvania Workers’ Compensation works, call experienced PA Workplace Injury Attorney Michael W. Cardamone TOLL FREE at (877) 560-7090 or LOCAL (215) 206-9068 for free consults 7 days a week; or email mcardamone@krasno.com

City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson)- Totality Of The Circumstances And Voluntary Retirement

On March 25, 2013, the Pennsylvania Supreme Court affirmed a Commonwealth Court ruling that in a petition to suspend compensation benefits upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of the circumstances that the claimant has chosen not to return to the workforce.

The Employer maintained that Claimant’s application for and receipt of pension disability benefits after her work-related injury demonstrated that she had retired. It argued that the seminal cases of Henderson and Republic Steel (citations omitted) established a presumption that a claimant who separates from employment and receives a pension has voluntarily withdrawn from the workforce- and therefore, the indemnity benefits should cease. Employer argued that a pension, by definition, is a benefit paid based upon retirement (citing Black’s Law Dictionary). The Supreme Court declined to adopt the extra-statutory presumption of retirement urged by Employer.  The Court recognized that it is not self evident, or even logical, to presume from the mere fact that a a claimant accepts a pension that claimant has voluntarily withdrawn from the workforce- as this specific case demonstrates that Claimant did not simply retire to an able-bodied pension, but was entitled to a disability pension because of her prior service and a work-related condition which disabled her from her time-of-injury job. In a well-reasoned statement, the Court said, “At most, Claimant’s approved receipt of a disability pension necessarily shows that she could not perform her time-of-injury position; it does not necessarily follow that she, and all workers similarly situated to her, decided to forgo all employment”.  The Court went on to note that the receipt of a disability pension is not devoid of evidentiary weight; it may well be probative of a claimant’s desire to retire. But it is just one fact of many possible probative facts which must be analyzed.

Employer tried to assert that the Henderson case established a rebuttable presumption that a claimant has retired if the claimant accepts any type of pension. The Court rejected and went on the discuss Henderson, Dugan, and a host of other cases. The Supreme Court of Pennsylvania found that the Commowealth Court plurality properly evaluated Henderson insofar as it determined that the Workers’ Compensation Judge must consider other evidence in addition to the claimant’s simple receipt of a pension to determine whether an injured worker has actually retired from the workforce totally.

Importantly, if the employer does produce sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power.

In justifying its holding, the Court reasoned, “Our holding will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant’s state of mind. Nor are we convinced that the dire consequences predicted by Employer- that claimants will impermissably benefit by supplementing their retirements with workers’ compensation benefits, and that the cost containment goal of the Act will be undermined- will result. If an employer is convinced that a claimant has retired, the employer may present evidence to establish that status. As the Commonwealth Court suggested, the employer may do so by objective facts, including the claimant’s receipt of a pension, the claimant’s own statement relating to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.”

What is the moral of the story for injured workers? First, this is a good, well reasoned Decision by the Supreme Court of Pennsylvania. The mere receipt of a disability pension shouldn’t dicate the outcome and a totality approach leaves flexibility to analyze entire fact patterns, which will result in fairer outcomes dictated by the specific facts of each case. As the Court said, “the judicial branch, faced with discrete factual patterns in individually-contested cases, is not particularly suited to make such empirical judgments to govern an entire set of cases.” It is strongly advised that injured workers speak to an experienced PA Work Comp Lawyer before applying for any type of benefits so that the attorney can analyze how, if at all, the application and/or receipt of such benefits will impact his/her case.

Injured workers are encouraged to speak with an experienced Pennsylvania Work Comp Lawyer to analyze their specific situations whether it involves a pension disability or not. I am available 7 days a week for injured workers across Pennsylvania for free consults. TOLL FREE (877) 560-7090, Local (215) 206-9068, or via email mcardamone@krasno.com

“Notes On Assessing Credibility, The Value Of Surveillance Evidence, And Attorney Performance”- By Work Comp Judge David B Torrey

This article, written by Pennsylvania Workers’ Compensation Judge and Law Professor, David B. Torrey, is an excellent overview of his thoughts on 1) how a work comp judge assesses the credibility of an injured worker and other law witnesses, 2) whether surveillance evidence is effective, and 3) what behaviors of counsel can actually hurt his client’s chances of success in a case.

One particular part of his article which I want to highlight is the demeanor of a witness. Judge Torrey notes that due to the artificial environment of a courtroom, many people may be nervous or acting unnaturally. He stated that some claimants will be angry and/or depressed- naturally- because they are a class of people who are by definition injured and often without money.  Judge Torrey also pointed out, and correctly so, that many injured workers have never been to a business meeting or even worn a tie.

His point, in highlighting these facts, was to say that the fact finder- that is, the judge, must set aside any prejudice that is present as a result of seeing these behaviours and wait until all of the evidence surfaces, before making any credibility assessments.

I couldn’t agree more. I sometimes have clients, (100% injured workers) who, in our preparation, seem calm, coherent, and credible, but then when they are in the witness stand in court, they appear shaky, insecure, and so nervous that it appears as if they don’t really know what happened during the work accident- because their nerves got a hold of them. But something that was not discussed in this portion of his article is the demeanor of the judge. Some judges are naturally friendlier than others. This can make a big difference to someone who is really nervous. A little small talk, before the hearing, can go a long way to break the ice and show the injured worker that there is nothing to be afraid of. Similarly, the attitude of defense counsel can play a role in an injured worker’s behavior. Some are abrasive and this can rattle a claimant into being obsequious, angry, or defensive.

You can read the article in its entirety below by clicking on the link.

TorreyCredibility

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The Firm For Injured Workers In Pennsylvania

Alfred Napierski v. Workers’ Compensation Appeal Board (Scobell Company, Inc.)- What Must Claimant Show For A Reinstatement Of Benefits After A Bad Faith Refusal Of An Available Job?

In January 2013, the Commonwealth Court of Pennsylvania, in Napierski v. WCAB (Scobell Company, Inc.), held that once a claimant has refused an available job in bad faith, his employer’s obligation to show job availability ceases. The claimant “must live with the consequences of [his] decision”, meaning he cannot remedy the situation by “subsequent action” such as attempting to accept the job that was previously offered and declined. Instead, the claimant must show a worsening of his medical condition to be awarded a reinstatement to total disability.

Some factual context: Claimant was a plumber who injured his left leg on July 28, 1995 when a ditch collapsed. Employer accepted his claim and began paying him temporary total disability benefits. Subsequently, Employer referred Claimant to Expediter- a company that aids employees to return to work. They found Claimant a full-time, sedentary (seated) job with a company called IDI, Inc. working 40 hours per week in telephone customer service.  The job was funded by the Employer and paid less than Claimant’s pre-injury average weekly wage. Claimant’s own doctor approved the job.

Claimant began working this job in October 2004 but in March 2005, IDI moved him to a second office and then to a third office in August 2005.  The moves were allegedly necessitated by problems in the offices, including heating issues and rodents. When Claimant observed mouse feces in paperwork that had been imported from the second office, he quite immediately, claiming the Employer was “playing games” with him. Employer filed a Petition to Modify and the Workers’ Compensation Judge found the IDI job fell within his physical capacities but became “unavailable” to Claimant in January 2005 when the heat malfunctioned. But, it became “available” once again by August 19, 2005 at the third office location. Thus, the WCJ modified his benefits based on what he could have earned at IDI from August 19, 2005 into the future.

On June 30, 2010, Claimant asked Employer to fund the job for him again so that he could return to work. Employer didn’t respond. He then filed the Reinstatement Petition asking for total disability benefits because the funded employment was no longer available to him.

In reaching its conclusion, noted above, the Commonwealth Court reviewed the burdens of proof in reinstatement contexts. First, it noted that typically a partially disabled claimant can reinstate to total disability by showing that his earning power is once again adversely affected by his work injury. (Piper v. Ametek-Thermox Instruments, 526, Pa. 25, 33, 584 A.2d 301, 304 (1990)). Yet it noted that a claimant’s burden of proof is different where his benefits have been modified because of his bad faith conduct. (Ward v. Workers’ Compensastion Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 (Pa Cmwlth. 2009)). The Pennsylvania Supreme Court, in Pitt Ohio Express v. Workers’ Compensation Appeal Board (Wolff), 590 Pa. 99, 912 A.2d 206 (2006), held that a claimant’s bad faith refusal of employment relieves the employer of the need to show that a job continues to be available. The Court reasoned that if a claimant rejects a job in bad faith and then puts the burden on the employer, it would reward bad faith conduct and circumvent the purpose of the Pennsylvania Workers’ Compensation Act.

In a footnote, the Commonwealth Court pointed out something quite significant. That is, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act, an employer could obtain a modification if it could show that suitable employment was made available to the claimant. Once the employer referred claimant to an available job, the burden shifted to the claimant to prove that he followed through on the job referral in good faith. (this modification landscape was pursuant to a case called “Kachinski“) After 1996, employers have most frequenly used Labor Market Surveys to establish an earning power- this scheme does NOT require a referral to an actual job, but instead, it is a survey of allegedly available jobs that exist in the local economy where a claimant lives (or was injured) that are allegedly within the claimant’s physical and vocational abilities.

In today’s Pennsylvania Workers’ Compensation world, we do not see many Kachinski type Petitions to Modify. But they still exist, as this case demonstrates, and it is important, as a practitioner- and as a claimant- to understand the burdens of proof in various situations.

For more information or a free analysis of your PA Work Comp claim, call or email Experienced PA Work Injury Lawyer Michael W. Cardamone 7 days a week TOLL FREE at (877) 560-7090 or mcardamone@krasno.com

 

 

Earning Power Determinations Under The Pennsylvania Work Comp Law

For injuries suffered on or after June 24, 1996, an insurer may demonstrate an employee’s earning power by providing expert opinion evidence relative to the employee’s capacity to work. The evidence (See Section 123.302 of the Act 57 Regulations) shall include job listings with agencies of the Department, private job placement agencies and advertisements in the usual employment area within Pennsylvania. Partial disability applies if the employee is able to perform his previous work, or can, considering the employee’s residual productive skill, education, age, and work experience, engage in any other kind of substantial gainful employment in the usual employment area in which the employee lives within Pennsylvania. (123.302).

However, if a specific job vacancy exists with the pre-injury employer in Pennsylvania, which the employee is capable of performing, the employer SHALL offer that job to the employee prior to seeking a modification or suspension of benefits based on earning power.

The specific job vacancy element is extremely important because if the employer fails to confirm that no work is available for the employee within his restrictions before seeking to modify or suspend wage loss benefits based on a Labor Market Survey, then the petition will fail. This is a tool for claimant’s attorneys to attack a Labor Market Survey. I will sometimes hire my own vocational expert to research the issue as to whether any jobs existed at the time -of- injury employer within my client’s restrictions at the time the employer is performing its earning power assessment. Another area to attack is whether the job, if offered, is actually within the employee’s restrictions. There are usually differences of opinion between the medical experts.

But when does the employer’s obligation to offer a specific job vacancy to the employee commence? If the petition to modify or suspend is based on a change in the employee’s medical condition, the obligation commences when the insurer provides the Notice of Ability to Return to Work (per section 306(b)(3)) and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. If the petition is not based on a change in medical condition, the obligation to offer a specific job vacancy commences at least 30 days prior to the filing of the petition.

There are circumstances in which the employer’s duty may be satisfied. A few examples are when the employee was notified of a job vacancy and failed to respond or refused it, or when no job vacancy exists within the usual employment area.

As you can see, this section of the Pennsylvania Workers’ Compensation Law is complex and technical. If your employer or insurer is seeking to reduce your Pennsylvania Work Comp benefits, based on an earning power argument, call or email PA Work Injury Lawyer Michael W. Cardamone at 215-206-9068 or mcardamone@krasno.com for a free consult 7 days a week. All I Do Is Fight For Injured Workers.

Information About Pennsylvania Workers’ Compensation Law

Below is a link that will give you the very basics about Pennsylvania Workers’ Compensation. This area of the law is quite complex, however, and it is strongly recommended that you speak to an experienced Pennsylvania Work Comp Lawyer– not someone who dabbles in it, but whose entire practice is dedicated to protecting injured workers.

I am available 7 days a week for a free consult- 215-206-9068 or mcardamone@krasno.com

 

 

http://www.portal.state.pa.us/portal/server.pt/community/workers’_compensation/10386/about_workers’_compensation/552721