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.

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.

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.

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 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.

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.

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.

The new regulations take effect on January 16, 2009. President-Elect Obama, however, has indicated a desire to expand the protections affforded to working people under the FMLA so stayed tuned for further developments in this important area for workers and their families.

The social security disability claims process is complicated and time consuming. The Social Security Administration follows a complex set of regulations that govern the claims procedure and disability determinations. Most claims submitted to the Social Security Administration are initially denied and, therefore, it is necessary to present your case before at a hearing before and an Administrative Law Judge ("ALJ"). Our lawyers have successfully represented hundreds of individuals residing in Allegheny, Cambria, Fayette, Greene, Indiana, Lawrence, Washington, and Westmoreland, counties in their claims for social security disability benefits.

To learn more about the Kunkel & Fink, LLP social security practice, please visit our website. If you or a loved one has a question about social security disability benefits, please call our office for a free evaluation of your claim.

Workers in Pennsylvania are injured in workplace accidents on a daily basis. According to the Pennsylvania Bureau of Workers' Compensation, Pennsylvania employers reported a total of 108,979 injuries during the 2005-2006 fiscal year alone. For the vast majority of individuals injured at work, the Pennsylvania Workers' Compensation Act provides the only means of recovering compensation for workplace injuries against an employer. Under the Workers' Compensation Act, an employee need only prove that he was employed and was injured in the course of his employment and that his injury was related to his work to be covered under the Workers' Compensation Act. Consequently, the injured worker need not prove that he was injured due to the negligence of the employer or a co-worker. The injured worker, however, is typically limited to collecting two-thirds of his lost wages for any time that he or she misses from work and reasonable and necessary medical expenses related to the injury.

The Pennsylvania Workers' Compensation Act establishes an entire administrative process for adjudicating disputed workers' compensation claims. A claim is initiated when the injured worker (known as the "Claimant") or the employer/insurance carrier files a petition with the Bureau of Workers' Compensation in Harrisburg, Pennsylvania. The petition is then assigned to the nearest Workers' Compensation Judge is located nearest to the employee. Hearings before a WCJ are not as formal as a trial before state court judge; however, the Workers' Compensation Judges take testimony and review medical evidence when deciding a disputed claim. Our firm regularly represents injured workers at hearings before Workers' Compensation Judges sitting in Uniontown, Washington, Greensburg, Pittsburgh, Butler and New Castle, Pennsylvania. Although each case is different, some of the tasks that we preform include interviewing you and any witnesses, gathering all of your relevant medical records, working with your doctor to obtain a narrative report, presenting testimony at hearing, and cross-examining the employer witnesses. Perhaps even more importantly, we regularly provide guidance and advice to injured workers before any petitions are filed so that our clients are in the best possible position to defend their right to ongoing benefits or to have their work injury recognized.

I know from experience that dealing with the workers' compensation system can be frustrating and intimidating for injured workers and their families. Employers and insurance claims adjusters know how the system works and will use that knowledge to their advantage. That's why I believe that it is important for injured workers to have some basic knowledge of their rights and to call for legal advice as soon as they are injured at work. If you have any questions about your rights to Pennsylvania workers' compensation benefits, please e-mail our office or call for a free evaluation of your claim.

We created this Blog because we believe that knowledge is indeed power and our goal is to level the playing field for injured workers in Pennsylvania who have questions about their rights to workers' compensation benefits. Despite the name of our blog, we plan to discuss a variety of topics that will be of interest to workers in Pennsylvania, including injured workers' rights to social security disability benefits and employment rights laws prohibiting discrimination in the workplace, mandating overtime pay, and family medical leave for eligible employees. So, welcome aboard, and stayed tuned for more information.