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Disclaimer: This article serves as a brief general guide for injured workers in York, PA, as well as other Pennsylvania counties. This is general information only and does not represent legal advice that may apply in specific workers’ compensation cases. Injured workers are strongly encouraged to discuss questions and concerns regarding Pennsylvania workers’ compensation law with a well-qualified workers’ compensation attorney in Pennsylvania.

Workers’ Compensation in Pennsylvania is a no-fault system that provides benefits for injured workers. You don’t have to show that the injury was somebody’s fault, just that the injury was work-related.

Let’s assume that you suffer a work-related injury in the course and scope of your employment with a company. What should you do? Some of the questions running through your mind could include:

  1. Will my employer ensure I get all of the benefits to which I may be entitled?
  2. Do I need to do anything to protect my rights to recover wage loss benefits or medical benefits as a result of a work injury?
  3. Do I need to do anything at all?

Yes, you need to act promptly and if your injury is serious, you should immediately seek the assistance of an experienced Workers’ Compensation attorney.

Coverage Under the PA Work Comp Act:

Pennsylvania employees are covered for the entire period of employment. Coverage begins the first day on the job. Injuries or diseases caused or aggravated by employment are covered under workers’ compensation, regardless of the employee’s previous physical condition.

However, injured workers must take affirmative steps to protect their right to recover benefits under the Pennsylvania Workers’ Compensation Act.

Benefits are available for:

  1. Acute injuries
  2. Repetitive use injuries
  3. Wage loss
  4. Medical benefits
  5. Loss of certain body parts and disfiguring scars

Key Stages of Filing a Workers’ Compensation Claim

Here is how an average workers’ compensation claim goes from start to finish.

Providing the Notice of Injury

Perhaps the most important first step is to provide notice of your injury to your employer. Section 311 of the PA Workers’ Compensation Act provides that notice of injury must be provided within 120 days of injury.

Where the employee is exposed to continuing, multiple traumas, the injury does not take place until the last exposure or trauma occurs, which is usually the last day of work.

However, the date of diagnosis, not the last date of work, can also be determined to be the date of injury for beginning notice, even where the employee continues to work.

It’s critical to remember that your notice must go to the employer — telling a fellow employee you got injured at work does constitute an official notice under the Act. Notice should be given to the employee’s supervisor or other management personnel.

The employee has the burden to prove that proper notice was given, so it’s always best to send notice by email and print out the notice so that it can later be proven that adequate notice was given.

Make sure that the notice states that the injury is work-related. Merely stating that your back began to hurt while at work does not provide sufficient notice to your employer that you’re claiming a work-related injury. You should generally describe when the injury occurred, how it happened, and what body parts were injured.

Whether the employee gave adequate notice of an injury is frequently disputed and is based on the totality of the circumstances. You don’t need to provide your employer with an exact diagnosis. However, a reasonably precise description of the injury is required.

An experienced workers’ compensation attorney, in York, PA, can guide you through this process.

Seeking Immediate Medical Help

You should seek prompt medical treatment for your injuries. For the first 90 days, you must be treated by doctors on your employer’s designated list of medical providers if proper notice was provided to you at the time of hire and following injury.

You may be treated by the doctors of your choice following the expiration of 90 days.

As always, keep all billing and medical records sorted and saved in case your claim gets disputed or denied.

Receiving Notices from the Employer’s Insurer

After the employer receives notice of a work-related injury, the employer must report all employee injuries to its workers’ compensation insurer. Within 21 days, the insurance adjuster must issue a Notice of Compensation Payable, accepting the injury, or a Notice of Denial, denying that the employee has suffered a work-related injury.

Employers may also choose to issue a Medical Only Notice of Compensation Payable if the employer has chosen to pay related medical bills, but not wage loss.

An employer may also decide to issue a Notice of Temporary Compensation Payable for a period not exceeding 90 days, without admitting liability, where there is uncertainty regarding compensability. A notice of temporary compensation payable may convert to a notice of compensation payable if an employer does not subsequently issue a Notice Stopping Compensation Payable.

These options can be rather confusing and obtaining the assistance of a well-qualified workers’ compensation attorney in York, PA can be invaluable to make sure you are getting all of the benefits to which you are entitled.

Dealing with a Notice of Denial

Your employer’s insurance company may send you a Notice of Denial stating that your injury was not work-related. In that case, should you accept this as a final decision and find other means to pay your medical bills and to have some other source of income while you’re unable to work?

The answer is a resounding NO!

Insurance companies are in business to make money, not to pay out money if they can avoid it. If you receive a Notice of Denial, it’s extremely important to consult a Pennsylvania Workers’ Compensation Lawyer to determine whether you have grounds to file a Claim Petition with the Bureau of Workers’ Compensation.

Hiring an Attorney

During this complex process, you may start to wonder if you could do it yourself. Will it be possible to file your own claim petition and handle your case?

The answer is yes, but it would be a huge mistake! Workers’ compensation litigation is complex and your employer or your employer’s insurance carrier will be represented by an experienced attorney.

During workers’ compensation litigation, you will usually need to retain a medical expert, take a formal deposition of your medical expert (which usually costs several thousands of dollars), cross-examine the insurance company’s medical expert, and write various motions and briefs.

It takes many years of experience as a workers’ compensation attorney to acquire and sharpen these skills, and the workers’ compensation judge will normally advise an unrepresented Claimant to obtain an experienced workers’ compensation attorney to handle the complexities of litigation.

Generally, workers’ compensation claim petitions must be filed within three years of the date of injury or the claim will be barred.

Aren’t lawyers expensive? How can I afford an attorney if I’m not working? Pennsylvania Workers’ Compensation Attorneys generally work on a contingency basis—we don’t get paid until we get you benefits! Generally, we get 20% of any indemnity benefits that we can recover on your behalf.

Understanding Wage Loss Benefits

If you suffer a work-related injury and are unable to work, you can expect to recover between 2/3 and 90% of your pre-injury average weekly wage.

If you suffer reduced wages because of your work injury, you generally can recover 2/3 of the difference between your weekly wages and the reduced wages if you’re able to perform part-time or light-duty work.

All benefits are non-taxable!

Filing a Claim Petition After a Claim is Denied

If a case is denied and not settled during litigation, it generally will take about one year before the parties will get a Decision from a Workers’ Compensation Judge.

After a Claim Petition is filed, the Bureau generally assigns the petition to a Judge within several days. The insurance carrier then has 20 days to file an Answer to the Claim Petition. A pre-trial hearing is generally held about a month after the assignment of the Petition. The Judge will then give the parties a scheduling order that directs the parties to take the Claimant’s factual deposition within 30 days.

Within 45 days thereafter, the insurance company is allowed to have the Claimant examined by a doctor of their choice. Claimants must generally take the deposition of their medical witness within 90 days of the first hearing.

Employers then have 90 days thereafter to take their medical deposition. The parties then have about 60 days thereafter to submit Proposed Findings and Briefs to the Judge and the Judge will then usually file a Decision within a month or two later.

Mediation for a Workers’ Comp Case

A workers’ compensation judge will usually require the parties to agree to mediation of the case with another workers’ compensation judge to see whether the parties can come to terms with a settlement unless it is determined that mediation would be futile.

This is usually done after the insurance company has had a chance to obtain a medical report after the defense medical exam. Neither party is obligated to accept the recommendations of the Mediating Judge, but many cases settle once the parties sit down with a neutral judge who can point out the strengths and weaknesses of the claim and the benefits of settlement to avoid the uncertainties of litigation.

After the Judge writes a Decision, either side may file an appeal to the Workers’ Compensation Appeal Board. However, the Board may not reweigh the evidence or the Judge’s credibility determinations, and therefore, most Decisions are affirmed by the Board.

Cardamone Law Can Help You Fight This Uphill Battle

Work injuries can have a very serious impact on a worker’s life as well as the lives of the worker’s family. You may be suffering painful physical injuries as well as emotional injuries that often accompany physical injuries. We know that our clients are also suffering financially, especially when a claim is denied and the worker no longer has an income.

We have many decades of experience working to get our clients all of the benefits that they deserve. You need to concentrate on getting better, while we concentrate on getting you the medical benefits and wage loss benefits you need and deserve. We want to help ease your pain. You need York, PA lawyers you can trust on your side, fighting for you!

Yes it is still possible. Here is one scenario: Perhaps you are back to work with the same employer after your injury. But you’re working light duty or with some type of restrictions due to the work injury. The Employer may start running out of light duty work and the insurer may be nervous about you being put back on TTD- Temporary Total Disability- where you get a full work comp check. Or, perhaps your time of injury employer didn’t have any work after your injury to accommodate your restrictions from the doctor. Then you return to work somewhere else, but start making less than your pre- injury wages. The insurer may get sick of paying partial work comp checks (2/3 of the difference between your pre-injury average weekly wage, and the post injury weekly gross earnings). Like the first scenario, the insurer may want to try to buy your claim in exchange for a release of all liability. These are just a few of the scenarios where Workers’ Compensation may want to settle your case even if you have returned to work after your work injury.

How is the Settlement Accomplished?

Normally, in Pennsylvania, the settlements are accomplished via Compromise & Release Agreement. The parties spell out the deal in this document and a hearing is held so that a Pennsylvania Workers’ Compensation Judge can hear brief testimony, to decide whether the injured worker understands the full legal significance of the Compromise & Release Agreement. At this hearing, the injured worker is asked a host of questions such as “did you read this Agreement?, did you sign it?, did you enter into it voluntarily?, you’re going to receive X amount of dollars to settle your case, correct?” etc. Sometimes the parties can enter into a Stipulation where they resolve some issues, but don’t close down the entire case. A Stipulation must also be approved by a Workers’ Compensation Judge, and the Judge will issue a Decision approving it. Beware- if your case is in litigation, and you don’t settle, you are leaving your case in the Judge’s hands. The good news with our firm is that we win at a very high rate. But that doesn’t guarantee a victory in every single situation. To settle means both sides have to compromise. So don’t go into negotiations thinking you’re going to get everything you want. It doesn’t work that way. Each side has to give up some things to make a deal happen.

It’s Critical To Hire a Certified Pennsylvania Work Comp Specialist

Remember to hire a Certified Pennsylvania Work Comp Lawyer– not a jack of all trades. There are only about 100 lawyers across Pennsylvania who focus their practice on helping injured workers and who are Certified by the Pennsylvania Supreme Court! Even if you return to work, the claim isn’t over. You may be working at regular pre injury wages, or even greater, after a work-related injury, and the insurer may still want to try to offer money to settle. Why? Your medical benefits have value and the insurers like to close out their files completely. Now, the truth is, the wage loss part of a case is what yields the greatest value in most cases, but still, the medical exposure can entice the adjustor for your case, to want to offer money to close it down. Importantly, many lawyers who don’t handle Workers’ Comp cases on a daily basis, will often forget about Specific Loss benefits- if you had a work-related neck surgery, did you know you can get extra money for the scarring, if certain elements are met? This is why you want a Certified Specialist- to maximize your case.

Ask Your Attorney What Your Case is Worth- Not a Friend!

Also, it’s important to remember that every case has its own value. And, you’ll net much more money with an experienced Pennsylvania Work Comp Lawyer fighting for you. Those who do it alone make so many mistakes and lose money. You pay us nothing from your pocket. It’s a contingent fee system meaning we only get 20% of what we obtain for you and most injured workers will triple their money with an attorney negotiating for them. Don’t look to a neighbor and ask what they settled for. Your case will have its own value based on many factors. We often hear this:

“But my neighbor got $225,000″ in his case so why is my case value in the $100,000 range?” You’re simply wasting time by comparing your case to theirs when there are so many differences. And while we encourage clients to do research, it’s often the case that they have the wrong state, or wrong section of the Pennsylvania Workers’ Compensation Act, when trying to make a point. Trust in your lawyer- this is what we do every day. We’re on the same team and want what’s in YOUR best interest.

What’s the Value of My Pennsylvania Workers Comp Case?

Some of the factors that determine the value of a Pennsylvania Work Comp case are:

-Claimant’s age
-Extent of injury/disability
-How far in school they went
-Whether surgery is needed
-Average Weekly Wage of the Claimant
-Vocational background and skills
-If in litigation, who the Judge is, who the IME doctor is, the treating doctor, etc

There are many more factors- there are just a few. But the bottom line is that yes, the insurers are almost always interested in settling a Pennsylvania Work Comp case. Just don’t be foolish and negotiate your loss of earning power, and/or the value of future medical treatment, on your own. Call us (215) 206-9068 7 days a week to get a free consult on your case. We are a rare firm in Pennsylvania that focuses 100% on Workers’ Compensation for injured workers. We have your back.

In Terry Brown vs. WCAB (City of Philadelphia), No 154 CD 2022, Justice Patricia A. McCullough, in a Memorandum Opinion for the Commonwealth Court of Pennsylvania on July 26, 2023, wrote that Act 111 is constitutional. In this case, an IRE per Act 111 of 2018 was conducted on June 4, 2020. The detailed particulars of the case are as follows:

Background

In this case, the IRE physician found a whole body impairment of 13%, which is under the 35% threshold. As such, the Workers’ Compensation Judge granted Employer’s Petition to Modify, modifying benefits to partial status as of June 4, 2020.

PA Work Comp Benefits
Image Source: freepik.com/jcomp

Appeal Against WCJ’s Decision

Claimant appealed, asserting that the WCJ erred in granting the Petition to Modify, asserting that Act 111 is not constitutional. (pointing to the Due Process Clause in the 5th and 14th Amendments and various provisions of the Pennsylvania Constitution, including the Ex Post Facto Clause in Article 1).

The Common Wealth’s Decision

The Court held that Act 111 is indeed constitutional, as it held in previous cases on this issue. They noted that as long as the IRE doesn’t pre-date Act 111 (of 2018), then it’s constitutional. While attempts have been made to challenge Act 111, at this point, it seems settled that it’s here to stay.

Conclusion

The Impairment Rating Process in this writer’s opinion is perhaps the most unfair aspect of the Pennsylvania Workers’ Compensation Act. There are many people who fall under the threshold requirement, but who cannot work due to their work injuries. We realize it’s a way to keep insurance companies alive- giving them a light at the end of the proverbial tunnel with respect to indemnity benefits. By way of reminder, remember if you fall under the 35% whole body impairment, your status changes from total to partial disability and that gives the insurer a 500 week cap on wage loss/indemnity benefits. The good news is many insurers forget to scheduled the Impairment Rating Exams, yielding more weeks of TTD payments for injured workers.

Our firm represents a young man who suffered an amputation of his left ring finger when his hand got stuck in a mixing machine.  Despite the fact that he gave immediate notice of his injury to his employer and immediately went to the ER, the employer failed to accept the injury and failed to file the required Bureau documents accepting or denying the injury.

In addition to a Claim Petition seeking medical and indemnity benefits as well as specific loss benefits for the loss of the finger, we filed a Penalty Petition for failing to issue Bureau documents.  The injured worker testified about his injury on three separate occasions and explained that he continues to suffer pain and that he was unable to perform his pre-injury job that required lifting up to 70 pounds with both hands.

The employer retained as an expert witness a hand surgeon who admitted on cross-examination that she did not have a job description for Claimant’s pre-injury work duties and admitted that Claimant at most was capable of medium-duty work.

The employer refused to settle the case, and after extensive litigation, the Workers’ Compensation Judge awarded past due benefits from the date of injury with 10% statutory interest and ongoing indemnity benefits.  The Judge also awarded specific loss benefits for the amputation and, moreover, granted Claimant’s penalty petition and awarded a fifty percent (50%) penalty on top of the indemnity benefits.  In addition, the judge awarded unreasonable contest counsel fees to be paid in addition to the attorney fees to be paid from Claimant’s indemnity benefits.

Hopefully, this type of Decision will impress upon insurance companies the need to recognize legitimate work injuries or suffer serious monetary penalties for failure to do so.

In a landmark Opinion rendered on March 17, 2023, the Commonwealth Court of Pennsylvania, in T.L. Fegley vs. WCAB, held that a claimant can seek reimbursement for out-of-pocket expenses relating to medical marijuana that were reasonable, necessary, and related to the work injury.

The Case: Reimbursement for Medical Marijuana Expenses for Work Injuries

The claimant suffered a serious work injury in 1977. He was prescribed opiates and narcotics for pain relief and used them for decades.

In 2019, his doctor prescribed medical marijuana to reduce the need for opiates and narcotics. Medical marijuana helped him tremendously. In September 2019, a Utilization Review found medical marijuana to be reasonable and necessary.

In October 2019, the Claimant filed a Petition for Penalties alleging that the Employer violated the Act by failing to pay for his medical marijuana. The Workers’ Compensation Judge denied the Penalty Petition. The WCAB affirmed, and an appeal was taken to the Commonwealth Court of Pennsylvania.

The Question: Is Medical Marijuana Legal For Medical Conditions?

The Court first reminded us that the Act Pennsylvania Workers’ Compensation Act is remedial in nature and has a humanitarian objective. The Court then turned its attention to the Federal Controlled Substance Act, noting that it’s unlawful to knowingly distribute, dispense, or manufacture a controlled substance. However, the Court noted that the FCSA leaves room for a state to enact its own law where the two can stand together consistently.

The Court then stated the Medical Marijuana Act contains language from the General Assembly, in part:

  • Scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance the quality of life.
  • The Commonwealth is committed to patient safety. Carefully regulating the program which allows access to medical marijuana will enhance patient safety while research into its effectiveness continues.
  • It is the intent of the General Assembly to:
    • Provide a program of access to medical marijuana which balances the need of patients to have access to the latest treatments with the need to promote patient safety.
    • Provide a safe and effective method of delivery of medical marijuana to patients.

Essentially, the Court, here, was reminding us that medical marijuana is legal in Pennsylvania for serious medical conditions.

The Verdict: Insurers Must Reimburse The Claimant For Medical Marijuana Expenses Incurred

Having summarized the relevant statutes at play, the Court turned to analyze who an “insurer” is under the Medical Marijuana Act. It concluded because Work Comp carriers are insurers under the Insurance Law, “this Court cannot hold that they are not insurers for purposes of the MMA.”

Then it addressed the Claimant’s argument that the MMA only prohibits insurers be compelled to provide coverage for medical marijuana, not reimbursement for out-of-pocket expenses already incurred.

This is really the key point in this case: the claimant was not asking for coverage, but instead, reimbursement.

This was a clever argument that the Court agreed with. If the General Assembly wished that insurers be prohibited from reimbursing medical marijuana costs, it would have said so in the statute. It didn’t.

Indeed, as the Court said, “Under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. Similarly, [the Pennsylvania Supreme] Court has long recognized that as a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says[,] one must also listen attentively to what it does not say.”

Finally, the Employer argued that reimbursement of medical marijuana would cause them to violate Federal Law. The Court disagreed here, citing the fact that the Employer would not be “knowingly or intentionally–[] to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” under the Federal Drug Act.

This Case Has Paved The Way for More Doctors To Prescribe Medical Marijuana

This well-written, well-reasoned, precedential Opinion has now paved the way for more injured workers to pursue medical marijuana for their chronic, intractable pain. If you have any questions, please let us know!,

Here is a link to the written Opinion in Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz vs. Firestone Tire and Rubber (WCAB).

Contact a Workers’ Compensation Lawyer Experienced with Medical Marijuana

We are here to help you, 7 days a week. Contact Cardamone Law, LLC for a free consult and analysis of your case at (215) 206-9068 or email Michael@CardamoneLaw.com We have offices in Eastern and Central PA or will come visit you, or we’re happy to do a Zoom call of course. Call the Pennsylvania Work Comp Medical Marijuana Lawyers at (215) 206-9068

Now that you may be on Pennsylvania Workers’ Compensation benefits, you will naturally wonder when will your weekly or bi- weekly checks stop. Here are the most common scenarios:

Workers’ Compensation Judge Finds a Full Recovery

Here, the insurer’s/employer’s attorney will file a Petition to Terminate benefits alleging that a doctor, whether theirs or yours, has opined that you’ve made a full recovery from your work-related injuries. The case will be litigated and both sides can present their evidence. If you lose, the checks will stop upon the Court Order finding a recovery.

Workers’ Compensation Judge Finds an Earning Power Equal To or Exceeding Your Pre-Injury Earning Power

Here, the insurer’s/employer’s attorney will file a Petition to Suspend benefits alleging that you have your pre-injury earning power back. This doesn’t affect medical benefits, only wage loss benefits. The case will be litigated and both sides can present their evidence. If you lose, the checks will stop upon the Court Order finding that you have your pre-injury earning power back. In this scenario, you will either be working and making the same or more as your pre-injury Average Weekly Wage, or a Judge will find that you could be earning the same or more as your pre-injury Average Weekly Wage, whether that be a job with the pre-injury employer that was offered, or from a Labor Market Survey/Vocational Assessment.

Failure to Send Back LIBC Reporting Forms Within 30 Days

Periodically, the insurer will send you forms to fill out. They are called LIBC forms. They will ask about your work status, whether you’re receiving any benefits like Unemployment Comp, Severance, Social Security Old Age benefits, or a Pension, whether you’re physical condition has changed, etc.  If you don’t fill them out and send them back within 30 days, the insurer can stop your checks until they’re sent back.

Incarceration After a Conviction

If you have been incarcerated after a conviction of a crime, the insurer can stop your Pennsylvania Workers’ Compensation checks.  So if an injured worker served time prior to a conviction, it doesn’t count. It must be after a conviction.

A Settlement Has Been Reached and Approved

Many injured workers will settle their entire case for a lump sum payment in a Compromise and Release Agreement. If the injured worker is receiving work comp wage loss benefits, those benefits will normally cease as of the day prior to the Compromise and Release Hearing at which the Judge approves the settlement. There are some cases where wage loss benefits will continue by agreement of the parties.

Death for Reasons Unrelated to Work Injury

If an injured workers dies for a reason unrelated to the work injury, the workers’ compensation checks will cease.

If You Refuse to Attend an Independent Medical Exam or Refuse Reasonable Treatment

Sometimes, a Judge can suspend your wage loss benefits if you miss an Independent Medical Exam, or if your doctor offers treatment that has a high likelihood of helping your condition and you decline.

The above scenarios are the most common ways that an injured worker’s wage loss benefits will stop in a Pennsylvania Workers’ Compensation case. For more information, always feel free to contact a Pennsylvania Workers’ Comp Attorney for a free analysis of your case. (215) 206-9068, 7 Days a Week.

There is a huge trust deficit when it comes to Pennsylvania’s injured workers and doctors who perform independent medical examinations (IMEs).

Not many people believe that these exams are independent or in the best interest of the injured workers. A major reason for this is the fact that the work comp insurance carrier/employer gets to handpick whomever they wish to examine the injured worker.

Their goal is to garner an opinion that the injured worker is either fully recovered, or at least to minimize their restrictions. Sometimes, IME doctors even challenge the diagnoses of the treating physician and claim that it isn’t work-related.

Understandably, injured workers feel a lot of apprehension going for IMEs.

However, the good news for injured workers is that the IMEs often lead to litigation which can then mean getting their case settled for a lump sum compensation. Albeit it happens sometimes, yet in cases where things seem to be at a standstill, the independent medical exam can get things moving.

IMEs: A Bitter Pill To Swallow

The bad news is the medical opinions in IME reports can cause great stress and worry among injured workers. To hear that they are suddenly recovered, and that they are “malingering” is a tough pill to swallow. The natural reaction is anger. But I always remind our clients that they know the truth and we know the truth and that we’ll have a good chance at demonstrating to the Judge that the IME doctor’s opinions are not credible.

Thank God for Due Process — the ability for each side to present their evidence. In most cases, our clients tell us the exam was shallow: 10 minutes, tops. Plus, usually, the physician has an attitude that injured employees do not find very helpful.

Granted, it doesn’t mean that their treating physician is spending an hour with them. But when you have one bite at the proverbial apple, you would think the physician would ask a lot more questions and perform longer exams.

The upside of this is the deposition. We get to expose the fact that the doctor had one shot and didn’t ask this or didn’t ask that, etc.

Are IMEs Mandatory?

Do injured workers have to attend the Independent Medical Examinations? Generally speaking, yes. The rule of thumb is that the exam can take place every 6 months or so. Sometimes there are exceptions to this. The consequence for missing the exam is likely going to be a Petition to Compel, filed by the insurance company’s attorney. This petition seeks a Court Order from a Pennsylvania Workers’ Compensation Judge to compel the injured worker to attend the next examination. If they don’t, that wage loss benefits, if applicable, will be suspended.

Remember, if you drive yourself to the exam, you can get reimbursed for miles and tolls/parking. If you want the insurance company to arrange transportation for you, let us know (if we represent you) ahead of time or whomever your attorney is.

How Do IME Doctors Undermine Work Injuries?

What are some of the common ways the Independent Medical Doctors undermine injured workers?

One common method is to spy on them as they walk into the building, then later claiming they walked differently in the office.

Another dynamic we often see is blaming the physical condition on “age-related” findings or “arthritis”. Indeed, arthritis may be the single biggest reason there is so much litigation in America in Work Comp, Personal Injury, or Medical Malpractice cases. A doctor can always hang their hat on this, that the MRI findings didn’t occur from the event, but from aging.

They’ll say this sometimes even when an injured worker is in their 20s.

In other cases, we read that the injured workers’ examination didn’t make sense, because they couldn’t do one maneuver, but when “distracted”, they could do it without any issues. And the most popular claim? “There are no objective findings to support the subjective complaints”. When you dig deep in a deposition with some of the IME doctors, they will tend to stumble over what objective findings could have been present. That’s a story for another day.

How to Make IME Work for You

We need balance in the system. The insurance companies are paying the benefits ultimately, so we aren’t arguing for no checks and balances. But the idea that these exams are objective or independent is a farce in the majority of cases.

To maximize compensation benefits for injured workers, educating our clients is essential so they know how the process works, and to prepare them mentally for the opinions that may soon be rendered about them. That being said, attending with an open mind, with 100% honesty, and without a chip on the shoulder, is the way to go. Don’t change yourself or how you behave just because you suspect the doctor may be biased and trying to take food off your table. Authenticity rules the day.

 

Cardamone Law, LLC, with main offices in Philadelphia and Lansdale, has agreed to pay $4,500.00 for the new “Diversity, Equity & Inclusion Scholarship, given to a deserving law student vis-a-vis the Philadelphia Bar Association. “We are so happy to be in a position to help as we do our part in leveling the playing field”, said Cardamone Law’s President, Michael W. Cardamone, a Certified Pennsylvania Work Comp Specialist. This money will go to a minority law student to pay for their Spring tuition bill.

Cardamone Law has a history of giving back and has supported Manna on Main Street in Lansdale, the Whitpain Recreation Association, North Penn Football and Baseball, Lansdale Catholic Football, St. Joe’s Prep Football, Wissahickon Valley Watershed Association, and many other causes.

For more information about Cardamone Law, see our website at www.Cardamonelaw.com[:]

In an Opinion dated August 9, 2022, Justice Jubelirer for the Commonwealth Court, held that the mere receipt of Social Security Disability benefits, and a pension, and not looking for work, wasn’t enough, given the “totality of circumstances” test to find that Claimant had voluntarily retired such that his wage loss benefits should be suspended. (Hi-Tech Flooring, Inc. vs. WCAB) (Santucci).

Claimant was a tile setter- and a union member since 1985. He injured his knee at work in August 2014. He received a pension from the union in October 2017 and he received Social Security Disability benefits, in part due to his knee injury. (and due to other conditions). Employer filed a Petiton to Review the Workers’ Compensation Appeal Board’s Order that reversed the WCJ (Worker’ Compensation Judge) Decision, which granted Employer’s Petition to Suspend, finding that Claimant voluntarily left the workforce by accepting the pension, by obtaining SSD benefits, and by not looking for new employment.

Benefits Voluntary Retirement
Image Source: unsplash/Sebastian Pichler

The Commownealth Court first reminds us that the Pennsylvania Work Comp Act is remedial and based on humanitarian principles. Next, it stressed that it’s Employer’s burden to show a claimant has retired. It then reminded us from prior case law that the receipt of a pension isn’t sufficient evidence that someone has withdrawn from the labor market. It then discussed the “totality of the circumstances” test, which applies here, to determine whether Claimant has chosen not to return to the workforce.

The Court, as part of the totality of circumstances test, also analyzed the SSD Decision which found that the knee injury- the work injury in this case, was at least a part of why he was awarded SSD benefits, and the knee alone caused him to be unable to do his pre-injury work. As such, he was essentially forced out of the workforce. Moreoever, Claimant testified that he didn’t know what other type of work he could do since he was a tile setter for 30 years- and that therefore, he didn’t know how his skills would transfer, and not that he had any intent to retire. This distinction was pivotal for the Court.

This was a fantastic Opinion that claimants can utilize as a roadmap, assuming the facts fit, to challenge a Petition to Suspend based on an allegation of a voluntary retirement. It was well reasoned and highlights the heavy burden for employers.

In a Commonwealth Court Opinion handed down today, written by Judge Dumas, (No. 1010 CD 2021), the Court affirmed a Workers’ Compensation Appeal Board and WCJ Decision that granted Employer’s Petition to Modify based on an IRE (Impairment Rating Evaluation) done per Act 111 for an injury that pre-dated the passage of Act 111. The Court, by doing this, noted the case is controlled by Pierson v. WCAB (252 A3d. 1169) (Cmwlth, PA 2021).

In Wescoe v WCAB, the case at hand, Claimant injured his back on September 8, 2011. On November 5, 2019, Employer filed a Petition to Modify based on an IRE that found a whole body impairment of 13%. Remember, after receipt of 104 weeks of TTD, an insurer can request an IRE- now performed under Act 111 which requires the 6th Edition of the AMA Guides and which reduced the threshold from 50% to 35%. The idea of an IRE in Pennsylania is to get an injured workers’ benefits to a partial status- and once on a partial, there is a 500 week limit/cap. It’s a way to limit their exposure on the wage loss end- and to see the proverbial light at the end of the tunnel.

Pennsylvania Workers Comp Impairment Rating
Image Source: unsplash/Saúl Bucio

The Claimant tried to argue that Act 111 cannot be retroactively applied because it represents a substantive, not procedural, change in the law and by applying Act 111 to injuries that pre-date the enactment would impair his vested disability rights in violation of the Remedies Clause. (of the PA Constitution) The Commownealth Court, however, said that this is not a vested right. Again, they noted, that the Pierson case is directly controlling here. (see Opinion for more discussion about vested right concept)

This isn’t a great Opinion for injured workers, but it’s not the first on this issue. I agree with the Claimant’s arguments here, but unfortunately the Court isn’t seeing this the same way.

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$2.2 Million
Spinal Injury
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Lower Back Injury
$650,000
Lower Back Injury
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Leg Injury
$375,000
Knee Injury
$325,000
Ankle Injury
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$2.2 Million
Spinal Injury
$897,000
Lower Back Injury
$650,000
Lower Back Injury
$550,000
Neck Injury
$425,000
Leg Injury
$375,000
Knee Injury
$325,000
Ankle Injury
& Hundreds More Cases

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