Will The Judge Make A Decision At My First Pennsylvania Workers’ Compensation Hearing?

Generally speaking, the answer is NO.

If your claim was denied by the Employer/Insurer, then you will be litigating what’s called a Claim Petition before a Pennsylvania Workers’ Compensation Judge. The judge, in this context, does not make any Decision at the first hearing. Most judges will hear the injured worker’s testimony at the first hearing, although some judges hold a “Pre-Trial” where they simply confer with the attorneys about the landscape of the case and evidentiary matters. After the first hearing, most judges will follow the Special Rules and allow each side 90 days to present their medical and factual evidence. That accounts for 6 months between both sides and doesn’t include possible extensions as a result of the unavailability or scheduling conflict of witnesses. After the record closes, the parties have to submit written arguments, called Briefs. The workers’ compensation judges will usually allow approximately 90 days or so for these to be submitted after the record closes. Then, it’s a waiting game for the Decision to arrive in the mail- that can take a few weeks to several months depending on the judge’s case load.

If you are already receiving Pennsylvania Workers’ Compensation benefits, your first hearing is likely to be a Supersedeas Hearing after the Employer/Insurer has filed a Petition to Terminate, Suspend, or Modify benefits. Even at these hearings, the judges do not make any Decisions. They will issue an Interlocutory Order within a few weeks of the Supersedeas Hearing, which is an Order that is not subject to appeal, and it will advise the parties as to whether the wage loss benefits will continue as the rest of the litigation unfolds. Supersedeas can be a tricky concept so feel free to call me for further explanation as it applies to your case.

It can be extremely frustrating for an injured worker to comprehend how long the litigation process takes. There are many reasons why it takes this long. First, in the United States, we are lucky to have Due Process- the right to be heard. Both sides- that is, the injured worker and the Employer, have the right to present evidence supporting their respective positions. Second, Pennsylvania Workers’ Compensation is a high volume area of the law with many cases and only so many judges to hear them. Third, it is not easy obtaining deposition dates from a doctor when trying to coordinate it with the busy schedules of two or more attorneys, a court reporter, etc. These are just some of the reasons why it can take a year or more to reach a conclusion in a PA Work Comp case. Remember, however, that the majority of cases will settle. The settlements can be effectuated by a Compromise & Release- a “global” settlement if you will, or by a Stipulation, or even by a Supplemental Agreement.

The key for injured workers is cash flow. If your claim was denied, and if the litigation can take up to a year to resolve, finding a way to survive financially is paramount. A few options to look into are: short and long term disability, unemployment compensation, and social security disability. I will be happy to discuss how to apply for these benefits and what impact, if any, the receipt of such benefits will have on your case.

I am available 7 days a week for a free consult. I am one of approximately 75 attorneys across the entire State of Pennsylvania, who represents injured workers and who is a Certified Specialist in Pennsylvania Workers’ Compensation. I don’t dabble in many types of cases like most attorneys- I only handle Pennsylvania Work Comp cases for injured workers.

Free Consults, The Cardamone Law Firm 215-206-9068 or email MyPhillyWorkersComp@Gmail.com

Do I Have To Return To Work If I Get A Notice Of Ability To Return To Work In A Pennsylvania Work Comp Case?

I discussed this hot topic in a previous post in January 2013. I re-post it below as I am getting more and more questions from clients and prospective clients about a Notice of Ability To Return To Work.

I get many phone calls from clients and prospective clients about the peculiar document, called a Notice of Ability To Return To Work. This is a form, LIBC 757, sent to an injured worker pursuant to Section 306(b) (3) of the Pennsylvania Workers’ Compensation Act. That provision states, “If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:

1) The nature of the employe’s physical condition or change of condition.

2) That the employe has an obligation to look for available employment.

3) That proof of available employment opportunities may jeopardize the employe’s right to receipt of ongoing benefits.

4) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions. (emphasis added)

The Notice of Ability To Return To Work Form is often misinterpreted as an actual offer by the time of injury Employer for the Claimant to return to work. This is not true- unless the form is actually accompanied by a job offer letter. The Notice of Ability To Return To Work is simply what is says- it’s a notice. Be careful to make sure a job offer isn’t enclosed with the Notice.

What is the purpose of the Notice? The Commonwealth Court of Pennsylvania, in Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282, held that “the purpose of the notice requirement is to require the employer to share new medical information about a claimant’s physical capacity to work and its possible impact on existing benefits”. The Court in Burrell also noted that formal notice is not required where a claimant is actually performing the work.

Another source of confusion regarding the Notice of Ability To Return To Work is that the Notice often comes on the heels of an independent medical exam- that is, an exam by a doctor which the work comp insurer chooses. The IME doctors frequently claim that an injured worker is either fully recovered from her work injuries or that the injured worker has the ability to work within certain restrictions. This opinion often conflicts with the injured worker’s own doctor. The treating physician may believe the injured worker cannot work at all, or that she needs more restrictions than the IME doctor imposed.

Therefore, the injured employee may be confused about what restrictions the Employer will utilize is making a possible job offer- the IME doctor’s restrictions or her own doctor’s restrictions. It is strongly recommended that the injured workers calls an experienced Pennsylvania Work Injury Lawyer to discuss this situation. The next move taken by the injured worker can make or break a case.

The failure of an insurer to send the Notice of Ability To Return To Work will sometimes, by itself, defeat an attempt by the employer/insurer to reduce benefits. For an employer to successfully reduce benefits, it must send out this Notice promptly. There are some exceptions, however. For example, in Smith v. Worker’s Compensation Appeal Board (Caring Companions, Inc.), No. 417 C.D. 2012, the Commonwealth Court found that the Notice of Ability To Return To Work was not required because Claimant herself had provided her employer with a copy of her doctor’s restrictions. The purpose of Section 306 (b)(3) had already been achieved.

If you get a Notice of Ability To Return To Work, call me and I will discuss with you how it affects your case. I am available 7 days a week at 215-206-9068 (direct dial) or via email at mcardamone@krasno.com

Pennsylvania Workers’ Compensation Certified Attorney

Certified Pennsylvania Workers’ Compensation Attorney For Injured Workers

Michael W. Cardamone has passed a first of its kind and challenging Pennsylvania Workers’ Compensation certification exam that only a small number of Pennsylvania Work Comp Attorneys sat for. As a result of this achievement, Cardamone is now Certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court.

This achievement stems from Cardamone’s years of dedication to injured workers. Unlike most other PA Work Comp Attorneys, Cardamone only practice in PA Work Comp Law- and only represents injured workers- never employers or insurance companies.

If you are looking for a top PA Work Comp Attorney, call or email Michael W. Cardamone to fight for you. Look around on the internet- you will see that the vast majority of attorneys handle different types of cases- not Michael! He only represents injured workers!

(215) 206 9068 or mcardamone@krasno.com

7 Days A Week