Pennsylvania Workers Compensation Attorney Blog

Before you hire a law firm or non-attorney advocate to represent you in your Disability/SSI Claim, you should three important questions:

1. Will I be represented by an attorney at my hearing?

The Social Security Administration changed their regulations so that people can be represented by a non-attorney (lawyer). If you are told that you will be represented by an "advocate" at your hearing, keep in mind that that the term "advocate" does not necessarily mean that you will be represented by an attorney; although you may well be charged the same amount that you would pay to a lawyer. Our firm has received telephone calls from people who were represented at the hearing by an "advocate" or a paralegal and did not learn that this person was not an attorney until the Judge informed them. At that point they were given the option as to whether or not they wanted to proceed with the hearing. After waiting a year or more for hearing. it became a very difficult decision. You should know up front whether or not you will be
represented by an attorney/lawyer at the hearing.

2. Do I have to pay costs even if I lose my case?

Some law firms/advocate groups are requiring either an up front payment for costs in representing you to reimburse such things as parking. gas money or the cost of copies of medical records. At Kunkel & Fink, LLP, we do not require you to provide any up front costs and, if you lose your claim, you will not be required to pay anything to our firm. including any costs that we incurred to obtain your medical records

3. Does the attorney or non-attorney advocate that will represent me at my hearing have experience practicing before the Judges sitting in western Pennsylvania?

There are many nationwide law firms that do not have offices in Pennsylvania that are sending in a "representative" from another state to appear at your bearing. Our firm has received several complaints from individuals who did not realize that their attorney/lawyer did not even have an office in Pennsylvania and were not necessarily experienced practicing before the social security Judges hearing cases in western Pennsylvania. Before you sign a fee agreement or an Appointment of Representative form with any lawyer or non-lawyer advocate, it is crucial that you understand exactly who will be representing you at your hearing and whether the lawyer or advocate maintains an office in Pennsylvania so you do not have any surprises on the day of your hearing.

Kunkel & Fink, LLP has been representing Social Security Disability and Supplemental Security Income Claimants for over 20 years. You will be represented by either Attorney Fink or Attorney Kunkel, both of whom have had years of experience practicing before the Judges that hear social security disability cases in western Pennsylvania.. As always, feel free to call our office at 800-467-5272 or e-mail us at info@kunkelfink.com if you have any questions regarding your application for social security disability benefits.

My parnter Leah Fink and I were recently interviewed for a newspaper article that recently appeared in the Pittsburgh Post Gazette regarding the rise in social security disability claims. You can read the article here. Although the article deals mainly with how law firms are handling the increase in disability cases, Leah also raised the issue about non-attorney representatives and out-of-state attorneys handling disability cases in Pennsylvania. As Leah points out in the article, we recommend that individuals who are seeking representation in a social security disability case carefully research the attorney's or the non-attorney representative's background to determine how many disability cases that they have handled and whether they have experience practicing before Administrative Law Judges sitting in Pennsylvania.

Continue reading "Kunkel & Fink, LLP In The News" »

The Pennsylvania Commonwealth Court recently handed down another decision addressing the ability of injured workers to correct the description of the work injury in a Notice of Compensation Payable ("NCP"). The NCP is the form completed by the employer and filed with Bureau of Workers' Compensation that officially recognizes and describes the work injury. Employers and insurance carriers are notorious for essentially underreporting the severity of the injury to limit future liability. For example, an injury to the neck and shoulder may only be described as "right shoulder strain" in effort to avoid liability for a potentially more serious cervical disc injury. In other cases, if the injured worker subsequently develops a "consequential" injury as a result of the work injury. For example, a worker with an injured knee may later develop a serious infection following surgery that requires additional treatmnt or a permanently disabled worker with a back injury may become clincially depressed due to the work injury.

In Fitzgibbons v. WCAB (City of Philadelphia), an en banc panel of the Commonwealth Court held that injured workers who want to correct the description of the injury in the NCP have three years after the date of the most recent payment of compensation to file a review petition seeking to add new "consequential' injuries or to correct the description of the injury provided by the employer. The Fitzgibbons case puts the burden squarely on the injured worker to take action to correct the NCP to correct the injury description or to have a new consequential condition added to the NCP or risk having a later claim for certain conditions excluded. While employers have always tried to minimize the injury in the NCP, the Fitzgibbons case puts teeth in the employer's limited injury description if the injured worker fails to take the necessary action to correct the injury description in a timely manner. Fitzgibbons underscores the need for injured workers to seek legal advice from a an experienced workers' compensation attorney at the earliest opportunity.

Continue reading "Commonwealth Court Adopts Strict Time Limits To Amend/Correct Injury Descriptions" »

One of the biggest challenges facing injured and disabled workers is the long wait for a hearing on their social security applications. It's no secret that most applications for social security disability benefits are denied at the initial level which means that most applicants must file an appeal and request a hearing before an Administrative Law Judge ("ALJ"). The Social Security Administration periodically releases data on the length of time that it takes for a hearing to be held from the date of the appeal of the initial denial for the various hearing offices throughout the country. Unfortunately, for injured and disabled workers living in Western Pennsylvania, the average wait is usually over one year. Here are the latest statistics for the hearing offices that have jurisdiction over much of Western, Pennsylvania: Morgantown, West Virginia - 398 days; Pittsburgh - 482 days, Seven Fields, PA - 363 days; and Johnstown, PA - 501 days.

Continue reading "The Long Winding Road - Waiting For Your Social Security Hearing" »

As a lawyer who regularly represents workers who have been injured or discriminated against in the workplace, I was interested to read a recent study published in the Journal of Empirical Legal Studies, that analyzed the outcomes in employment discrimination cases filed in federal court from 1988 through 2003. The study, entitled "Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States," concluded that most employment discrimination cases are settled for relatively small amounts of money, and that plaintiffs won only two percent of the cases that were filed at trial. According to the study, most employment discrimination claims involve single plaintiffs (as opposed to class actions) and most plaintiffs are outgunned by their employers in a litigation process that tends to favor repeat players in the systems such as large corporations.

The study confirms what most plaintiff-side employment lawyers already know: employment discrimination plaintiffs often face an uphill battle in federal court and greatly increase their chances of obtaining a favorable result if they are represented by a lawyer with experience in employment rights litigation. You can read an abstract of the article here.

Continue reading "Study Documents Challenges Faced By Workers In Federal Court" »

The Pennsylvania Commonwealth Court recently handed down a decision in Struthers Wells v. WCAB (Skinnner), 990 A.2d 176 (Pa. Commw. March 12, 2010) which makes clear that employers are required to provide injured workers with a Notice of Ability to Return Work as a prerequisite to obtaining a modification or suspension of benefits.

In the Skinner case, the claimant injured his low back in 1989 and also had developed a number of serious non-work related medical conditions, including diabetic neuropathy, atrial fibrillation, COPD, coronary artery disease and congestive heart failure. In 2004, the employer filed a Modification/Suspension Petition alleging that the claimant was capable of sedentary work due to his work-related back injury but was totally disabled as a result of the non-work related medical conditions. The Workers' Compensation Judge ("WCJ") granted the employer's petition finding that claimant failed to follow through on a job referral in good faith considering only his work-related back injury and that claimant was totally disabled due to non-work related medical conditions.

On appeal, claimant argued that employer's petition should have been denied because it failed to issue a Notice of Ability to Return to Work. Section 306(b)(3) of the Pennsylvania Workers' Compensation Act requires employers to provide the injured worker with a Notice of Ability to Return to Work form as prerequisite to obtaining a modification or suspension of benefits. The Notice of Ability to Return to Work provides the injured worker with notice stating: (1) the nature of his physical condition or change of condition; (2) that he has an obligation to look for available employment; (3) that proof of available employment opportunities may jeopardize his right to receipt of ongoing benefits; and (4) that he has the right to consult with an attorney in order to obtain evidence to challenge the employer's position.

Reversing the WCJ, the Commonwealth Court agreed with claimant and held that the employer was not entitled to a modification of benefits because it failed to provide the Notice of Ability to Return to Work. In reaching its decision, the Court acknowledged the severity of the claimant's non-work related conditions but held that the employer was still required to provide the claimant with a Notice of Ability to Return to Work form because claimant may have been able to perform some level of work in the future.

The Skinner case demonstrates that in most cases employers must meet their threshold burden of proving that they provided the injured worker with a Notice of Ability to Return to Work form before they can be granted a modification or suspension of benefits.

Continue reading "Commonwealth Court Holds That Employers Must Provide a Notice of Ability to Return to Work Form To Obtain Modification of Benefits" »

We are often asked whether an individual is eligible for social security disability benefits ("SSDI") even though the invidual is still working. The answer typically depends on how much the individual is earning every month. In order to qualify for SSDI, you must establish that you are unable to perform "substantial gainful activity" ("SGA"), which is basically defined as gainful work activity performed for pay or profit, whether or not any profit is realized. The Social Security Administration ("SSA") considers an individual who is earning more than a certain monthly amount to be engaged in SGA and ineligible for SSDI. The SSA annually sets the SGA amounts for blind and non-blind individuals based on the national average wage index. The monthly SGA amount for 2010 is $1,000 for non-blind individuals and $1,640 for statutorily blind individuals. The SGA amounts change every year and the amounts for past years can be found here.

I just returned from the annual Pennsylvania Bar Association Workers' Compensation Fall Section Meeting which is held every September in Hershey, Pennsylvania. I always look forward to attending the Fall Section Meeting because it provides a great opportunity for Pennsylvania workers' compensation attorneys to review new developments in the law and to catch up with our colleagues. This year's topics included presentations on legal ethics, recent developments in workers' compensation law, Medicare Set Aside Agreements, and employment law for the workers' compensation practitioner.

The Fall Section Meeting is consistently one of the best continuing legal education programs that I attend and the faculty did another excellent job this year The highlight of this year's meeting was a presentation by Professor Samuel D. Hodge, Jr on the anatomy of the spine. Professor Hodge is the Chair of Legal Studies at Temple University and specializes in teaching anatomy to lawyers. I've actually lost count of how many depositions of doctors that I have attended that involve neck and back injuries, and Professor Hodge provided the best overview of the anatomy of the spine that I've ever heard, and really provided some useful information that I think I can use in future depositions with physicians who tend to minimize or ignore evidence of ongoing work-related disability.

The program was excellent and a hat tip goes to the faculty and course planners for another excellent seminar.

Workers injured on the job in Pennsylvania often end up litigating the scope and extent of the work injury, even when the employer voluntarily accepts the work injury by issuing a Notice of Compensation Payable ("NCP"). For example, an employer may try to minimize the work injury by incorrectly describing an injury to the low back as a "low back stain/sprain" even though the worker has suffered a disc herniation at L4-5 or some other more serious condition. If the employer recognizes the injury and begins to pay benefits, however, the worker has little incentive to immediately pursue litigation to correct the NCP. Instead, the issue often arises months or even years after the work injury when the employer is seeking to terminate workers' compensation benefits alleging a full recovery and the injured worker responds with evidence of ongoing disability related to additional conditions not identified in the NCP.

Employers frequently argue in termination proceedings that the injured worker must first file a formal petition known as a Review Petition in order to have the NCP corrected or modified and that failure to file the Review Petition bars any attempt to change the NCP. Of course, this created a potential trap for unwary workers and their counsel who might present strong evidence that the worker remains disabled as a result of the work injury but failed to file a formal petition to correct the NCP.

The Pennsylvania Supreme Court addressed this issue in the recent case Cinram Mfg., Inc. v. WCAB(Hill), 37 MAP 2008 (July 21, 2009) and provided some much needed guidance in this area. In the Cinram case, the employer recognized the injury as a "lumbar strain/sprain" and several months later filed a Termination Petition alleging a full recovery. The injured worker presented evidence, however, that he had suffered an aggravation of a pre-existing disc herniation which was beyond the condition that was accepted by the employer. Although the injured worker did not file a Review Petition to correct or amend the NCP, the Workers' Compensation Judge accepted the worker's evidence over the employer's objections and dismissed the Termination Petition.

On appeal, the Pennsylvania Supreme Court has now affirmed the the Judge's decision and announced that it is not necessary for an injured worker to file a Review Petition in order to seek a "corrective amendment" to an NCP. Rather, the Court held that the workers' compensation judge has the authority to amend the NCP during litigation on any type of petition, including a termination petition. The Court, however, carefully distinguished a corrective amendment, which simply adds a condition which had been present since the original work injury, and a "consequential amendment" which seeks to add a new condition that arises after the work injury but is still nevertheless related to the work injury. The Court held that if the worker is seeking to make a consequential amendment, the worker must still file a Review Petition.

While the Cinram case is clearly a victory for injured workers, the Court warned workers and their counsel that employers should be given fair notice of the grounds for any corrective amendment so that the issue can be fairly litigated before the judge. For injured workers, the Cinram case illustrates one of the many traps for injured workers and underscores the importance of seeking advice from an experienced Pennsylvania workers' compensation attorney early in the process so that the NCP can be reviewed and any necessary action taken to protect the worker's rights under the law.

The lawyers at Kunkel & Fink, LLP are pleased to announce that by order dated July 24, 2009, United States District Court Judge David S. Cercone approved a $480,000.00 settlement of a class action lawsuit alleging a violation of the Worker Adjustment Retraining and Notification Act (“WARN Act”) with respect to the closing of the Anchor Glass plant located in Connellsville, Pennsylvania on November 4, 2004. Kunkel & Fink, LLP filed the lawsuit on behalf of the former Anchor Glass employees in a lawsuit that was captioned: Douglas P. Wissler and Gregory A. Vinoski v. Cerberus Capital Management, L.P., Cerberus International Ltd., Cerberus Institutional Partners, L.P., Cerberus Institutional Partners (America) L.P., and Stephen A. Feinberg, Civil Action No. 06-1042.

The WARN Act is a federal law that prohibits covered employers from ordering a plant closing or a mass layoff without first providing affected employees with sixty days notice of the closing or layoff. The policy underlying the WARN Act is to ensure that workers receive advance notice of plant closures and mass layoffs that affect their jobs so that they have time to adjust to their loss of employment and to obtain other employment.

The plaintiffs initially filed suit against Anchor Glass Container Corporation but that suit was dismissed when Anchor Glass filed for bankruptcy in August 2005. Subsequently, the plaintiffs filed suit against Cerberus Capital Management, L.P. and related entities that the plaintiffs alleged were the largest shareholders of Anchor Glass at that time of the Connellsville plant closing. The lawsuit charged that Anchor Glass failed to provide sixty days advance notice of the closing of its plant located in Connellsville, Pennsylvania on November 4, 2004, as required by the WARN Act, and that the Cerberus defendants could be held liable under the WARN Act based on their alleged de facto control over the corporation.

The settlement class covers approximately 275 former hourly employees who were notified on November 4, 2004 that the Connellsville plant was closing and that they were permanently laid off from their jobs. Under the terms of the Court-approved settlement, the settlement fund will be distributed equally to those members of the class who submitted timely claim forms in equal shares after a deduction for attorneys’ fees and costs as well premium payments for the named class representatives. While agreeing to the settlement, the Cerberus defendants denied at all times that they could be held liable under the WARN Act by virtue of their stock ownership or that Anchor Glass violated the WARN Act when it closed the Connellsville plant.

Utilization Review ("UR") is the exclusive method under the Pennsylvania Workers' Compensation Act for an employer to challenge the reasonableness and necessity of medical or chiropractic treatment related to a work injury. Under the administrative regulations, the employer initiates the UR process by filing a "Request for Utilization Review" with the Bureau of Workers' Compensation which, in turn, assigns the Request to a "Utilization Review Organization"("URO"). The URO is required to make reasonable efforts to obtain all of the worker's available medical records related to the treatment received for the work injury and to review those records within thirty (30) days. If the health care provider under review fails to provide the records to the URO within thirty (30) days of the request, then the URO shall find that the treatment under review is not reasonable or necessary. 34 Pa. Code Section 127.464(a).

As a lawyer representing injured workers in the Pittsburgh, Pennsylvania area, I'm always concerned about my clients' health care providers forwarding copies of their records to the URO within thirty days and try to notify physicians and chiropractors who may not be familiar with the utilization review process to submit their records in a timely manner. In Sexton v. WCAB(Forest Park Health Center), No. 1225 C.D. 2009 (May 22, 2009) , Commonwealth Court recently made it abundantly clear that it requires strict compliance with the utilization reveiw procedure. In the Sexton case, the claimant injured her low back in April 1999 and she began to receive "myoblock" injections to relieve her pain in 2004 from a Dr. Kosenko. The employer filed a request for utilization review that was assigned to a URO, which, in turn, requested Dr. Kosenko's records. The Court states in its opinion that the records were submitted to the URO within thirty-days of the request, but that Dr. Kosenko failed to submit a signed verification form with the records as required by the administrative regulations. Instead of simply forwarding the records on to a reviewer, the URO returned the records to Dr. Kosenko and requested that the records be resubmitted with a signed verification form. The Court further states in its opinion that although Dr. Kosenko signed the verification form, the Carlisle Regional Medical Center failed to forward the signed verification form and the URO ultimately concluded that the treatment was not reasonable and necessary.

Claimant filed a Petition to Review the UR Determination and the Workers' Compensation Judge ('WCJ") concluded that the URO erred in failing to conduct a review of the treatment on the merits. The Workers' Compensation Appeal Board reversed, holding that the claimant's doctor failed to submit a timely verification form. On appeal to Commonwealth Court, the claimant argued that the URO did not have authority to return the medical records and should have forwarded the records to a reviewer even though the doctor did not submit a signed verification. Unfortunately for injured workers, the Commonwealth Court held that the failure to submit a signed verification with the records was the same as an outright failure to submit the records and that the URO was required to find the treatment unreasonable and unnecessary. In dissent, Judge Butler pointed out that Workers' Compensation Act is humanitarian legislation that is meant to be interpreted in favor of the injured worker. He also noted that the Court's ruling penalizes the claimant even though her medical records were submitted to the URO and further noted that the claimant is not permitted to submit the records herself directly to the URO. Thus, in Judge Butler's view, the employer was permitted to escape responsibility for the pain relief treatments based on a procedural technicality. While Judge Butler's points are certainly well taken, the decision was issued by a full panel of the Commonwealth Court sitting en banc so the only way this decision is going to be reversed is by a change in the administrative regulations or by the Pennsylvania Supreme Court.

The Sexton case makes clear tha now, more than ever, injured workers must make sure that their treating doctors fully comply with the UR procedural regulations or risk being cut off from treatment with no realistic ability to appeal the adverse UR determination.

We often get telephone calls from injured workers complaining that the workers' compensation insurance carrier has threatened to suspend their benefits because the company doctor has released them back to work without restrictions even though the employer has not called the injured worker back to work. As general rule, a workers' compensation insurance carrier is not entitled to a suspension of benefits simply because a doctor has released the injured worker back to work unless the insurance carrier also produces evidence of job availability.

This principle was recently reaffirmed by the Commonwealth Court in Consol Pa Coal Company - Enlow Fork Mine v. WCAB (Whitfield), No. 971 C.D. 2008 (March 10, 2009). In the Consol case, the injured worker suffered a fractured left forearm on April 30, 2005, which Consol accepted as work injury by issuing a Notice of Compensation Payable. On August 10, 2006, the injured worker's treating physician, Dr. Schmidt, released him back to work with no restrictions, with the caveat that he would re-evaluate him if he encountered any problems after he returned to work. The Claimant testified that he did not believe that he was able to return to work and that he did not believe that his position was available because Consol maintained a policy of terminating employees who were off work for more than one year. Consol did not dispute that Claimant's job was no longer available but argued that it was entitled to a suspension of benefits because the Claimant's loss of earning power was no longer attributable to the work injury since Dr. Schmidt had released Claimant to full duty work without restrictions. Under these circumstances, Consol argued on appeal to Commonwealth Court that it should not be required to produce evidence of job availability.

Commonwealth Court flatly rejected Consol's argument and held that where the injured worker had not returned to work, the employer is not entitled to a suspension of benefits unless it also produces evidence of job availability. In reaching its decision, the Court distinguished the facts presented in the Consol case from a prior decision in which the Pennsylvania Supreme Court held that the employer was entitled to a suspension of benefits where the injured worker returned to his pre-injury job with no restrictions and then lost his job when the plant closed. Under those narrow circumstances, the employer is entitled to a supsension of benefits since the injured worker's wage loss cannot be attributed to the work injury.

Thus, except for a few rare exceptions, an employer is not entitled to a suspension of benefits simply because a treating physician has released an injured worker back to work without restrictions. The employer still has the burden of producing evidence of job availability. The employer can meet this burden by producing evidence that it has offered suitable employment to the injured worker or by evidence establishing that the injured worker has the ability to secure other suitable employment that provides equal or greater compensation.