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How To Use This Section Of Our Wesbite

If you have a question about Workers Compensation or Social Security, you’ve come to the right place.

We have answered hundreds of questions our clients have asked us over the years right on this site.

Just look to the right and you’ll see a section that says “Have A Question?”. Just type your question in the box and click Search.

If we have an answer and other information related to your question on this site, it will show on the screen for you.

If we do not have your answer, it’s okay. Just pick up the phone and call us at 877-291-9675.

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I could not have made a better choice.

I had the pleasure of being represented by Calhoon and Assoc., specifically Thomas Cook. A few years back I realized I would need an attorney to help me through the complicated Workers Comp. and disability system. Since I never had the need for an attorney, I was at a lose on how to go about hiring representation. I googled the best attorneys in Pennsylvania. From this list I read the reviews and pulled Calhoon and Assoc. out of the hat. I could not have made a better choice. Tom stood by me, always available to answer questions and offering advice that didn’t always make sense to me. I am so glad I followed his instructions. Tom’s experience was invaluable. I have finally settled my case with a much better outcome than I had hoped for. Joan R, Shamokin, PA

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No one wants to have to call a lawyer. It seems like opening a can of worms. But let’s examine some of your potential concerns. . .

I don’t want to lose my job. . .

It is not in the employer’s best interest to fire an injured worker simply because he or she sought legal guidance regarding a workers’ compensation claim. The whole idea of workers’ compensation insurance is to avoid costly lawsuits.

Firing an injured worker would encourage a lawsuit, and the employer knows it. In fact, the employer will be even more careful with an employee who is getting legal advice on his rights.

In addition to anti-discrimination and anti-retaliation laws, the employer knows that failing to provide work to an injured worker exposes them to payment of wage loss workers’ compensation benefits.

I just want my medical bills to be paid. . .

In the case of a civil lawsuit, you have to pay your medical bills and make do with lost wages until the settlement. Not so with workers’ compensation cases.

Workers’ Compensation Insurance should pay for your medical care as long as you need it, and send you a weekly wage payment while you are unable to work due to your work-related injury.

You are entitled to compensation for lost wages. These costs can continue after the medical bills stop. An experienced workers’ compensation attorney will make sure that you receive ALL of the benefits that you are entitled to.

I don’t want to sue my employer. . .

Good, because you can’t. Not unless your employer intentionally injured you.

An experienced workers’ compensation attorney will make sure that you are given all the benefits that you are entitled to under the law. If benefits are being denied or inappropriately delayed, the attorney will take that up with the insurance company, not with your employer. The employer will not be sued.

The adjuster seems nice enough. . .

That is his job. He gets paid by the insurance company to keep the payouts low. He does this by making you feel comfortable, so that you will not ask too many questions and will just “go with the flow.” It is not his job to advise you on additional benefits you may be entitled to.

I can’t afford a lawyer. . .

At Calhoon & Associates, P.C., your initial consultation is free. You may even discover that you do not need a lawyer.

If you do decide to continue with legal representation, the fees will be set by a workers’ compensation judge, and deducted from your benefits once we have won your case. There is NO FEE if we are unable to secure benefits for you. However, you may be responsible for expenses, which we strive to keep at a minimum, and often waive.

No one wants to have to call a lawyer. But the road to justice starts with finding out the facts. It starts with understanding your rights under the law.

The law firm of Calhoon & Associates, P.C., has been helping people in Pennsylvania, for over seventy (70) combined years. We are committed to protecting your rights and protecting you in your time of need.

There’s no cost to speak with us, and absolutely no obligation.
Call Us Today: 877-291-9675

Come in for a free consultation. It will be a whole lot less painful than you think. We may even swap a few jokes! The road to protecting your rights under the law starts right here.

Serving injured workers throughout Pennsylvania.

FREE CONSULTATION • FREE CASE MANAGEMENT • NO RECOVERY, NO FEE

1-877-291-WORK (9675)

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I had a difficult workmans comp case. We did not have concrete proof that my acquired illness was a direct cause from my work injury three months prior. The specialists who treated the illness would not back my case because they had not treated the initial injury. Mr Cook told me right from the start this would be difficult to win. Mr. Cook and Lindsay Hahn (Paralegal) were at all times professional, friendly, personable, and patient. They kept me informed of what was going on with the case. They explained and reexplained when I didn’t understand the legal terminology or things that were happening with the case. Lindsay was extremely thorough and if I emailed her 10 times in one day she would answer each email within a timely fashion. Mr. Cook ALWAYS left the decisions up to me without trying to sway my decision. I was able to make informed decisions because he explained the possible outcomes and the pros and cons of each decision. The rest of the staff at the office were always friendly And courteous when I had to call the office number.
So with much heartfelt gratitude…They WON my case!!! My $50,000 worth of medical bills will now be paid and I received a check for the time out of work. Mr. Cook did not gain financially on my case. Yet was sincerely happy for me and told me he felt happy and had the satisfaction of winning such a challenging case. So that shows me that Mr. Cook is genuine and decent person who loves his work. I most definitely recommend Mr. Cook and if you can hook Lindsay Hahn then you’ve got an excellent chance to win your case with these two on your side! Jackie, Chambersburg 2-18-15

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Dr LevinThe Professional of the Year honor is highly competitive and is granted based upon evaluation of individual credentials, innovation in one’s industry, outcome scores and in-house review and recommendation. Dr. Bruce Levin placed very highly among the over 1,400 qualifying physicians nominated. Furthermore, following a rigorous three-level screening process and a waiting period, PR Newswire felt it entirely appropriate to recognize his achievements on their Times Square Digital Billboard. Incidentally, Healthcare is by far the largest industry profiled in our Who’s Who and America’s Registry editions, and has been so for nearly 25 years. Hence, this naturally is among the most competitive. To attain the exclusive position of Doctor of the Year a physician must secure an unanimous vote from all seven board members. Calhoon & Associates congratulates Dr. Levin on his accomplishments and wish him ongoing success.

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They will find out.

If you have had prior accidents or injuries, the insurance company WILL know about them. Attempting to hide the information could, in all likelihood, shatter your case.

Prior to injury in the workplace, most workers think that Workers’ Compensation Insurance is a benefit provided by their employer to protect them. Once they are injured and “in the system,” they learn that battle lines have been drawn, and that the employer is not engaged in the combat. It is you versus the insurance company.

How does an insurance company make money?
1. Charge clients the highest premium possible (limited by competition and, in the case of workers’ compensation, by legislation)
2. Sell to new clients (i.e. employers)
3. LIMIT PAYOUTS
The insurance company has a huge staff of well-trained, expensive professionals hired solely to find ways to pay out the least amount possible on workers’ compensation claims. They begin their quest the minute your case hits their desks.

Don’t Make It Easy For Them. . .

We live in an information age. Your history will become available to the insurance company. You can take that to the bank. Prior accidents and/or injuries can complicate a claim if not properly presented to the Judge. Failing to disclose them will annihilate it.

An experienced workers’ compensation attorney will help you present your past experiences in the proper form, with the proper details, and at the proper time. We, at Calhoon & Associates, P.C., are committed to protecting your rights and to safeguarding our clients by guiding them through the jungle that the insurance companies have created.

The road to protecting your rights under the law starts with Calhoon & Associates, P.C.

A single mistake could COST you. Find out what you need to know.

The call is Free, so why wait? 877-291-9675

Very truly yours,

Ronald L. Calhoon
rcalhoon@pa-workers-comp-lawyers.com

Serving injured workers throughout Pennsylvania.

FREE CONSULTATION • FREE CASE MANAGEMENT • NO RECOVERY, NO FEE

1-877-291-WORK (9675)

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A Brief History of PA Workers’ Compensation Law

“I was injured at work. I have insurance through my employer – workers’ comp insurance that will cover me. Why would I need a Lawyer?”

I have heard this line of reasoning from my clients on a number of occasions. Sounds logical, and it may be true. However, it could also be a naïve and costly position to take.

I believe that a rudimentary understanding of the history and intent of Workers’ Compensation Insurance (known for years as Workman’s Compensation), its strengths, as well as its limitations, will help you make sound decisions regarding your workplace injury or accident.

Workers’ Compensation is a compromise between employees and employers. . .

• Employees receive compensation for medical bills, lost wages (indemnity), and disability caused by a work-related event or experience, regardless of fault.

• Employers receive protection from having to spend time and money defending lawsuits and from disproportionate awards.

Although there is evidence of some form of insurance protecting workers as well as employers as far back as 3000 B.C. (in ancient China, ship owners got together and agreed to split cargo and share losses as an early form of insurance), that insurance protected employers, not workers.

The U.S. Workers’ Compensation Insurance program is a product of the Industrial Revolution. Beginning in Germany in the early 19th century and then moving to other European countries, the program replaced a system that was heavily biased in favor of the employer.

Prior to Workers’ Compensation, an employee’s only recourse was to sue the employer, and an employer could avoid payment by demonstrating any of three defenses:

1. The employee knew of the inherent risk before he took the job;
2. The employee caused the accident himself;
3. Another employee, not the employer, was negligent.

Obviously, changes were needed. In 1914 Pennsylvania, the average work related death case settled for 9 months pay!!! The United States entered the workers’ compensation arena in 1911 in the State of Wisconsin. One hundred years ago, Pennsylvania followed suit in 1915. In 1934, FDR presided over sweeping social insurance programs at the federal level, including Social Security and Unemployment programs.

However, the Workers’ Compensation program was already entrenched at the state level, and it was not politically expedient to institute a federal program. So it remains a state run program.

Today, each state requires employers to provide Workers’ Compensation Insurance to their employees. Although details vary from state to state, employers must select to:

• Purchase insurance from an insurance company; or
• Set aside funds to self-insure; or
• Contribute to a state-run insurance fund in case of bankruptcy.

The vast majority of employers purchase insurance policies from private insurance companies. Additionally, each state has a Bureau of Workers’ Compensation that attempts to provide efficient resolution of disputes between employees and insurance companies (always represented by experienced lawyers). Even if a case is settled between the injured party and the insurance company, it must be presented to a Workers’ Compensation Judge for approval.

Insurance Companies Know the Rules of the Game. . .

So, the insurance companies have been at this for one hundred years. They are experts. They know how to save money by limiting benefits, curtailing treatment, avoiding long-term benefit programs, and questioning circumstances and health conditions. (To be fair, they also raise insurance rates or deny coverage if the employer does not adhere to the best of safety standards, so, in this way, we all enjoy safer work environments.)

Unfortunately, without representation, it is you against the insurance company. Specialized workers’ compensation attorneys are experts, also. We, too, understand the system, and we are here to protect your rights.

We at Calhoon & Associates, P.C. have been serving injured workers and their families for over seventy (70) combined years. We are recognized as being among the best. Call us to discuss your case, and we will give you the advice you need to determine whether you need legal representation.

How is the insurance company going to limit YOUR case? Find out now. . .

Call us for a FREE phone consultation and get the facts.
Call 877-291-9675

Information is always the first key to justice.

Ronald L. Calhoon
rcalhoon@pa-workers-comp-lawyers.com

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Local Doctor Accused of Rape

Dr. Jay Cho, a Pennsylvania pain management doctor with offices in Cumberland and Franklin County is facing charges including sexual assault and rape. His alleged victims are stating that Dr. Cho overprescribed prescription pain killers to his patients with the intent of getting them addicted. He would then use this addiction to make his patients perform sexual favors. Twelve patients are stating that they were afraid that if they did not perform these sexual advances, he would stop prescribing the pain medications. Dr. Cho is currently out on bail facing rape charges. Police believe their are more victims and are asking anyone with information to call 717-850-8273.

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Harold Binder of Millerstown injuries when he was electrocuted at work in June of 2013. The injury to his head had severe and pervasive lingering effects on his memory and concentration abilities. He was diagnosed with post-concussive syndrome and has not been ready to re-enter gainful employment due to his workers’ compensation injuries.

Four months after the work related accidental electrocution, the Employer initiated litigation by filing a Suspension/Termination Petition alleging that Mr. Binder had unreasonably refused to return to work in two positions offered within his medical restrictions. The restrictions were based upon a release of a nurse at Hershey Medical Center that was provided by the Employer when she examined him in September of 2013.

Mr. Binder testified his memory was poor, he suffers from headaches daily, is sensitive to noise, experiences ringing in his ears, has nightmares and only drives on a limited basis. The job offered by his employer would have required him to take inventory, and ride along with a team leader.

Dr. Stanton E. Sollenberger, a Board Certified neurologist, testified on Mr. Binder’s behalf. His diagnosis was that Mr. Binder suffered from traumatic brain injury with post-traumatic encephalopathy and post-traumatic headaches. Dr. Sollenberger definitively and unequivocally testified that Mr. Binder’s problems all started with the electrical jolt in June of 2013 and that he condition from the work injury would not permit him to perform the light duty job offered. The nurse at Hershey Medical Center and her supervising doctor testified he should be able to do the job assuming his condition improves.

The Judge found Mr. Binder’s testimony credible and found Dr. Sollenberger’s testimony to be more credible and persuasive the medical witnesses for the workers’ compensation carrier. He found that Mr. Binder was not able to return to the offered job and found that there was no evidence that his symptoms improved after September of 2013.

The Judge ordered the Employer to pay the injured worker attorney fees for unreasonably contesting Mr. Binder’s workers’ compensation benefits. The Employer’s Suspension and Modification Petitions were denied. Mr. Binder continued to receive his full total disability benefits as a result.

The law firm of Calhoon & Associates represents injured workers and those seeking Social Security Disability throughout Pennsylvania, including but not limited to, Altoona, Harrisburg, Pottsville, Allentown, Reading, Bloomsburg, Easton, Bethlehem, Norristown, Bristol, Williamsport, State College, Wilkes-Barre, Scranton, Lancaster, Waynesboro, York and all cities in Bucks County, Chester County, Columbia County, Dauphin County, Delaware County, Lackawanna County, Lancaster County, Lebanon County, Lehigh County, Luzerne County, Lycoming County, Montgomery County, Monroe County, Montour County, Northampton County, Northumberland County, Philadelphia County, Pike County, Schuylkill County, Wyoming County and York County, PA. Our offices are located at 2411 North Front Street, Harrisburg, PA and 14 North Main Street, Suite 300, Chambersburg, PA, and we can arrange for meeting locations at law offices throughout the State.
Calhoon & Associates
2411 North Front Street
Harrisburg, PA 17110
1-877-291-9675

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Samuel Newton (name changed for this summary) was injured in the course of his employment in Waynesboro, PA. Mr. Newton testified that he had been receiving both total temporary disability (TTD) benefits and total partial disability (TPD) benefits per the Pennslyvania Workers’ Compensation Act based upon a Supplemental Agreement dated November 5, 2013. On January 29, 2014, Neil P. O’Malley, M.D., placed Mr. Newton off from work. Mr. Newton testified that he contacted the insurance adjuster to receive his workers’ compensation check but did not receive it until the second week of March 2014. We filed a Penalty Petition against Underwriters Safety & Claims, the workers’ compensation insurance carrier for their violation of the Act in failing to pay workers’ compensation checks on a timely basis. The payment history revealed that Mr. Newton’s payment for TTD benefits for the time period January 29, 2014 through March 9, 2014 was issued on March 5, 2014 and that his payment for TPD benefits for the time period January 20, 2014 to January 28, 2014 was issued on March 7, 2014. The Penalty Petition was heard by a Workers’ Compensation Judge in State College, PA. Due to the insurance company’s untimely late payments of Mr. Newton’s TPD and TTD benefits, the Judge assessed penalties of 50% on the amount of compensation due to Mr. Newton that was over 30 days late and assessed penalties of 10% on the amount of compensation due to him which was less than 30 days late. The Judge also ordered that the Insurer pay Mr. Newton’s attorney’s fees for unreasonable contest because they did not have a reasonable basis to contest the Penalty Petition.

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Wage Loss Benefits and 50% Penalty Awarded to Laborer

Mr. Nonan suffered from a work injury on January 5, 2010 when he was throwing Christmas trees into a dump truck. At that time, he had shoulder and back pain. The Pennsylvania workers’ compensation insurance company only accepted medical liability for a left shoulder aggravation of tendinitis/bursitis. Mr. Biller continued to work on light duty restrictions; however, because he was on restrictions he did not work as many hours and was not offered overtime. Therefore, he was not making the same amount or more than he was at the time of injury. In 2014, the carrier filed a petition to review his chiropractic treatment as being not reasonable or necessary. That caused him to consult with Calhoon & Associates who filed a petition to retroactively recover Mr. Biller’s lost wages. We also filed a penalty petition for failure of the Pennsylvania workers’ compensation insurance company to pay reasonable and necessary medical bills related to Mr. Biller’s work injury and to add the back injury to the accepted claim. The Pennsylvania workers’ compensation insurance company filed a termination petition alleging that he was fully recovered from his work injury.

After over a year of litigation, in 2015, the Pennsylvania workers’ compensation judge found Mr. Biller to be credible and awarded him partial wage loss benefits. It was also found that he was not recovered from his work injury and the termination petition was denied. The Judge awarded a 50% (maximum amount) penalty for failure to pay both the wage loss benefits as well as the medical bills and added the back injury to the accepted claim for life time medical coverage.

The law firm of Calhoon & Associates represents injured workers and Social Security Disability applicants throughout Pennsylvania, including (but not limited to): Allentown, Altoona, Bellefonte, Bethlehem, Bloomsburg, Carlisle, Chambersburg, Easton, Enola, Fayetteville, Gettysburg, Harrisburg, Hazelton, Hollidaysburg, Huntingdon, Lancaster, Lebanon, Lewisburg, Lewistown, McConnellsburg, Mechanicsburg, Mifflintown, Millersburg, Milton, New Bloomfield, Newport, Philadelphia, Pittsburgh, Pottsville, Reading, Scranton, Shippensburg, State College, Sunbury, Uniontown, Washington, Wellsboro, Wilkes-Barre, Williamsport, York and all cities and towns in Adams County, Allegheny County, Berks County, Blair County, Bucks County, Centre County, Chester County, Clinton County, Columbia County, Cumberland County, Dauphin County, Fayette County, Franklin County, Fulton County, Huntingdon County, Juniata County, Lancaster County, Lebanon County, Lehigh County, Luzerne County, Lycoming County, Mifflin County, Montgomery County, Northumberland County, Perry County, Philadelphia County, Schuylkill County, Tioga County, Union County, Washington County and York County, Pennsylvania.

Calhoon & Associates
2411 North Front Street
Harrisburg, PA 17110
1-877-291-9675

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Jesus Arellano settled his Pennsylvania workers’ compensation case for a broken hip. That settlement included a Medicare Set Aside for his future medical treatment. A Medicare Set Aside, or MSA is money that is put in a separate interest bearing account to be used by the injured worker to pay for future medical costs, expenses, and bills related to the injury. The Centers for Medicare strongly recommend that the money is used for this purpose; however, Mr. Arellano decided to buy a truck and two properties with the money. (*If an MSA is not properly used, Medicare will deny payment of any medical expenses they feel are related to a work injury. We strongly suggest you contact an experienced Pennsylvania workers’ compensation attorney before you consider this option)

When Mr. Arellano filed for bankruptcy, he argued that the truck and properties should be exempted from the proceedings. The bankruptcy judge agreed and found that a MSA should not be included in bankruptcy proceedings because it was slated for medical expenses and not property of the bankruptcy estate.

If You Are Involved in a Work-Related Accident, Call Our Experienced Pennsylvania Worker’s Compensation Attorneys
If you would like to speak personally to us about your Pennsylvania or Harrisburg work-related accident, injury, or benefits, please fill out our confidential online contact form or call Calhoon & Associates toll-free at 1-877-291-WORK (or 9675). Whether you wish to begin the claims process, or are encountering problems and concerns while on workers’ compensation, Calhoon & Associates will fight to obtain the benefits you are entitled to receive, guide you in the right direction, and obtain a fair settlement if that is in your best interest. There is no fee for us answering your questions or advising you of your rights so you head in the right direction.

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In April 2008, a Pennsylvania state store manager, Gregory Kochnowicz was robbed by a masked man who put a gun to Gregory’s head and then duck tapped him to the chair. Kochnowicz was diagnosed with post traumatic stress disorder and was unable to work since that robbery. He filed for Pennsylvania workers’ compensation benefits. In Pennsyvlania, in order to be awarded workers’ compensation benefits for a mental disability, the claimant must prove that an abnormal work condition caused the psychological injury. In this case, the Defendant argued that this was a normal work condition for a state store employee. They stated that there were 99 robberies in the Philadelphia area in state stores from 2002-2008 and that state store employees are trained on how to respond to robberies. After several years of litigation and appeals, the Pennsylvania Supreme Court recently decided that Mr. Kochnowicz was entitled to Pennsylvania workers’ compensation benefits due to an abnormal work condition.

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If you’re looking for an attorney who is knowledgable, honest, and not afraid to push for what is right for you, call Ron. Any issue that I faced, he knew exactly what to do to quickly resolve it so that my well being was never compromised. Being on Worker’s Comp is very stressful, I couldn’t have handled it without a great attorney who has a great staff behind him! Trena 1-4-2015

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The Kids’ Chance of PA scholarship application is now available for 2015-2016!

The mission of Kids’ Chance of Pennsylvania, Inc. (Kids’ Chance of PA) is to provide scholarship grants for college and vocational education to children of Pennsylvania workers who have been killed or seriously injured in a work-related accident resulting in financial need.

The scholarship application is available online through the Kids’ Chance website. Please follow this link to complete an application.

Contact them at 610-970-9143 or by email info@kidschanceofpa.org if you have any questions.

The application deadline is April 15, 2015. Please share this information so eligible students do not miss out on this opportunity.

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In Pennsylvania, if you are receiving workers’ compensation benefits for 104 weeks, the Pennsylvania workers’ compensation insurance company is entitled to have you submit to an IRE (Independent Ratings Evaluation). An IRE is a series of tests you are asked to perform by a doctor qualified by the Bureau of Workers’ Compensation and selected by the Bureau. At the end of the evaluation, the doctor calculates a score or percentage of how disabled you are felt to be under the Pennsylvania workers’ compensation system. If that score is greater than 50%, then you can continue receiving your full (TOTAL) Pennsylvania workers’ compensation wage loss benefits. If it is 50% or less, then your benefits are reduced to a partial but your weekly rate is not impacted. If the score comes back at over 50%, the Pennsylvania workers’ compensation insurance company is allowed to send you to another IRE within a 12 month period from the last evaluation. They are only allowed to request two IRE’s within a 12 month period. If you have bee scheduled for an IRE, you need to contact a Pennsylvania workers’ compensation attorney right away. We will not charge you for phone calls, advice or a review of your case. We can be reached at 1-877-291-9675.

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INTRODUCTION TO The Almost Hassle-Free Way to Collect PA Workers’ Compensation Medical Bills authored by Calhoon & Associates, P.C.
What follows is a guide on the basics of obtaining payment for medical bills in Pennsylvania workers’ compensation matters. Medical billing in workers’ compensation matters can be an unfamiliar and uncertain task. What is the process? What forms are to be used? What happens if payment is not timely or is denied? What are the time limits? Some common complaints are: workers’ compensation never pays on time, denies submissions, fails to pre-approve treatment, or just ignores the bill. Sometimes, it just seems easier to avoid dealing with workers’ compensation. However, this book is here to help you. Knowledge makes all the difference.

STEP 1:
PROPERLY SUBMIT THE BILLS

When a patient first presents to you stating they suffered a work injury, you must get some crucial information from them. Ask them for their employer’s name, address, and phone number. Next, ask for the workers’ compensation carrier’s name, address, and phone number. You will also need the claim number and the date of injury.

The patient should be asked to provide their Notice of Compensation Payable, Notice of Temporary Compensation Payable or a Workers’ Compensation Judge’s award recognizing the work injury. These documents will provide all of the above crucial information and, more importantly, confirm that the patient has an accepted workers’ compensation injury.

If the injury has been accepted, workers’ compensation pays for all reasonable, necessary and work-related medical treatment by “practitioners of the healing arts”. The Notice of Compensation Payable issued by the workers’ compensation insurance carrier describes the injury under the heading “Description of Injury” and “Body Parts” on the top left side of the form. Please keep in mind that workers’ compensation is only required to pay for treatment which falls within the “Description of Injury” and “Body Parts”. For example, if the injury is described as a cervical strain, workers’ compensation must pay for treatment to the neck. However, if the treatment being billed to workers’ compensation is to the right shoulder, workers’ compensation is not automatically responsible for payment. Some exceptions exist, such as when a test is performed to another body part to rule out causes for the work injury or pre-surgical testing. Knowledgeable counsel can help when such questions arise. Further, if the patient’s doctor feels that a condition not described on the Notice of Compensation Payable is work related, there are legal methods available to have the treatment paid for by workers’ compensation.

If the treatment or injury is denied as not work related, you may bill the patient’s private health insurance, Medicare or other government-sponsored health insurance. This is prudent for many reasons; most importantly, it protects the patient’s health and workers’ compensation claim by allowing them to continue treatment during denial by workers’ compensation. Besides lower reimbursement rates, drawbacks to billing sources other than workers’ compensation include:

• Unnecessary and costly co-pays to patient;

• Unnecessary and costly deductibles to patient; and

• Maximum private health insurance benefits attained prematurely, precluding further treatment for any condition over the patient’s lifetime.

If a medical bill is denied by workers’ compensation as not work related, a provider can then bill other insurance. The Commonwealth of Pennsylvania issued two (2) memorandums regarding the Insurance Department’s regulations governing the use of exclusions for workers’ compensation insurance in accident and health insurance (attached). These regulations require health insurance companies to pay claims if the workers’ compensation insurance company refuses coverage. If the health insurance company refuses to pay “because the treatment is work-related,” a letter enclosing these two (2) memos almost always causes quick payment. If private health insurance and/or government-sponsored insurance is billed during the course of litigation, in the event of a favorable Decision, workers’ compensation will be required to repay the private health insurance. Sometimes this is done by the workers’ compensation insurance carrier issuing a check directly to the private health insurance. The workers’ compensation insurance carrier can also make payments directly to the medical provider, who, in turn, will need to reimburse the patient’s private health insurance accordingly.

A sample letter to the health insurance provider and the two memorandums addressing the use of exclusions for workers’ compensation and a sample of a Notice of Compensation Payable and a Temporary Notice of Compensation Payable can be seen in the PDF or hard copy of our free book at www.pa-workers-comp-lawyers.com/doctors

After the patient has been seen by the physician and a HCFA 1500 or UB has been created, you need to fill out an LIBC-9. Remember, this is a two-sided form even though you are only filling in one side. You should then mail the bill, LIBC-9, itemized bill, and medical records to the workers’ compensation carrier. An itemized statement or standard billing summary means nothing to the workers’ compensation insurance carrier! The itemized statement or billing summary are not sufficient requests for payment, and can legally be ignored. Compliance with the requirement that a completed LIBC-9 be sent with the bills is a almost always a prerequisite to the carriers’ obligation to process and pay the medical bill!

STEP 2: TAKE ACTION

In Pennsylvania, workers’ compensation carriers have thirty
(30) days (plus 6 days for mailing) to respond to a billing. If the response is late, compensation carriers have to pay 10% per annum interest. They can respond in the following manners:
1. Payment;

2. Denial (If denied as not work related, contact attorney);

3. Filing a utilization review request; or

4. Silence.

FEE REVIEW(Amount of Payment)

If the carrier does not respond in the allotted amount of time or a payment amount is incorrect, the medical provider can then file a fee review. The Fee Schedule is on the Bureau of Workers’ Compensation Website at www.dli.state.pa.us. Fee Review is the procedure to review the amount of the payment. This can be due to improper downcoding. If the carrier does not strictly comply with the downcoding procedures mandated by Section 127.207 of the regulations, the provider is entitled to reimbursement for the actual charges. A Fee Review can also be used to challenge the timeliness of payment as can a penalty petition.

Fee reviews must be filed within ninety (90) days of the original bill date OR within thirty (30) days after a denial or disputed payment is received, whichever occurs later. These time limits are strictly enforced and any fee review filed late will be dismissed.

The Department of Labor and Industry, Healthcare Services Review Section governs these reviews. Only a medical provider can file a Fee Review. A tutorial is available at the Bureau of Workers’ Compensation website at www.dli.state.pa.us, Workers’ Compensation Medical Treatment Information, Healthcare Services Form Tutorials. FAQS are also available at www.dli.state.pa.us, Workers’ Compensation, FAQS, Healthcare Services Review FAQS. You may call the PA Workers’ Compensation Hotline at (717) 772-4447 to obtain a Fee Review form for filing.

It is important to remember that to file a fee review you must fill out a LIBC-507 (see above sample form) and send it with a copy of the original bill, itemized bill, LIBC-9 (with original bill date) and medical records. Include a summary of why you are filing the review. Send a copy of the packet to the compensation carrier and keep a copy for your records. The original gets mailed to the Bureau of Workers Compensation. They will notify you of a decision within thirty (30) days of receipt of all necessary documents. The party unsatisfied with the fee review determination may file an appeal by filing a Request For Hearing To Contest Fee Review Determination (see Form on next page). The appeal must be filed within thirty (30) days of the administrative determination and will be assigned to a hearing officer who will issue a decision within ninety (90) days of the close of the evidentiary record. Further appeal will now be assigned to a workers’ compensation judge.

UTILIZATION REVIEW
(Reasonableness & Necessity)

If the workers’ compensation carrier has filed a Utilization Review (UR), you should check to be certain that the UR was filed within thirty (30) days of the workers’ compensation insurance carrier’s receipt of the medical bill(s) being re- quested for review. It can be argued that the failure of the carrier to timely challenge a bill waives their right to challenge the reasonableness and necessity of the treatment.

When requested by the assigned utilization review organization (URO), you should do the following:

1. Timely provide your records to the URO!;

2. Insist on a telephone conference with the UR’er;

3. Encourage the patient to continue reasonable treatment;
and

4. Encourage the patient to provide a written statement to the UR’er when requested.

When the medical provider is requested to provide medical records to the URO, the URO shall provide reimbursement to the medical provider for copying costs at the rate specified by Medicare, along with payment for actual postage costs. Also, reproduction of radiographic films (x-rays, MRI’s, CT Scans, etc.) shall be reimbursed at the usual and customary charge. (See Section 127.463(a) and (b) of the Rules and Regulations governing actions under the Pennsylvania Workers’ Compensation Act).

If the UR determines that the treatment was unreasonable and/or unnecessary, contact the Attorney to file an appeal of the UR determination.

The appeal will be a brand “new” review of the treatment by a Workers’ Compensation Judge. Also, most importantly, the workers’ compensation insurance carrier will now have the BURDEN to prove that the treatment was unreasonable and unnecessary. The petition to review the UR determination will be assigned to a workers’ compensation judge and will not be binding on the judge.

How long does the UR process take? When a UR request if filed, it takes about five (5) days for the Bureau to assign the petition to a URO. The URO will then collect the medical records and is prohibited from giving opinions on causation. A request for UR shall be deemed compete upon receipt of the medical records from the provider, or thirty (35) days after the notice of assignment of the review to a URO, whichever comes first. The provider will be given thirty (30) days to provide the records. Failure of the medical provider to timely provide records will cause the treatment to be denied as not reasonable and necessary! Filing an appeal will not help. Once deemed completed, the URO has thirty (30) days to render their decision.

If a provider, an employee or an employer disagrees with the UR determination, they can file a request for review of the UR determination. The medical provider is not dependent on the injured worker filing an appeal. The medical provider has standing to file the appeal. We represent many treating doctors who hire us directly to file the appeal and to get their bills paid after a negative UR determination is issued.

STEP 3 SILENCE

In the event that you receive NO RESPONSE to your original submission of your bill(s) to the workers’ compensation insurance carrier or receive some excuse like “the check is in the mail,” then you should immediately contact the Attorney, who will review the matter to determine which of the following petitions should be filed:

1. FILE PROSPECTIVE UR: a quick and effective method of obtaining pre approval to guarantee payment of medical bills before the treatment is even rendered (don’t believe the myth that there is no such thing as pre-approval in PA workers’ comp);

2. FILE REVIEW PETITION for the payment of medical bills and an additional 10% interest on the unpaid bills;

3. FILE PENALTY PETITION requesting the additional payment of up to 50% penalties for the carrier’s violation of the PA Workers’ Compensation Act by delaying payment of medical bills.

A review petition is needed when the treatment is for a condition not clearly related to the injury accepted in the Notice of Compensation Payable. A Penalty Petition can be filed when payment is not made within thirty (30) days, or if payment is received well past the 30-day time frame. A Penalty Petition is most often used when workers’ compensation ignores medical bills which are properly submitted and clearly related to the work injury. When filing a Penalty Petition, the medical bill must be clearly work-related, i.e., the medical documentation that was submitted with the

bill clearly identifies treatment to the injury/body part described on the Notice of Compensation Payable or Judge’s Award.

Often times the mere filing of the Penalty Petition will be enough to effectuate payment from the workers’ compensation insurance carrier. If not, a Judge will issue a Decision as to whether the workers’ compensation insurance carrier failed to make timely payment and, if so, order payment to be made. The Judge can also order penalties to be paid by the workers’ compensation insurance carrier, up to 50% of the outstanding medical bills plus 10% interest.

Lastly, if a bill is denied because it was within the first ninety (90) days of treatment and the doctor is not on the company posted list, call us to see if any of the many exceptions apply. Usually, one does and the compensation carrier must pay the bill. It is a myth that injured workers cannot treat with a doctor of their own choice during the first ninety days.

CONCLUSION

Payment of medical bills under the Pennsylvania Workers’ Compensation system can be confusing and complicated. It is the desire of the attorneys at Calhoon & Associates that this guide book, the flow chart and the sample forms contained herein will assist you in an organized and simplified fashion to collect your medical bills in an almost hassle free fashion. However, hassles are bound to occur. When they do, feel free to contact the attorneys at Calhoon & Associates to assist you with this process and achieve the ultimate goal of providing medical care to your patients and getting your BILLSPAID. If you have any questions regarding workers’ compensation feel free to call or to email Ron Calhoon at rcalhoon@pa-workers-comp-lawyers.com.
A copy of all the forms and petitions referred to herein can be seen in the PDF or hard copy of our free book at www.pa-workers-comp-lawyers.com/doctors

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What Should I Do If Injured at Work?

First, read your copy of Seven Deadly Sins That Can Destroy Your Pennsylvania Workers’ Compensation Case. . .

. . . And NOW you know that the insurance company is going to want the flow of information to be a one-way street. They are under no pressure whatsoever to resolve your case and, in fact, they are making an enormous profit while YOU wait.

The insurance adjuster’s job and duty is to seek out and find as many defenses and arguments as possible against your case. This all starts when the adjuster pretends to be your friend and wants to “take a statement” or have you “sign a few forms.”

There are four things you should be doing right now. . .

These four steps are the most important things that you can be doing right now, and surprisingly, many people miss at least one step.

1) Seek Medical Care

It’s always important to seek medical care. A lot of people will injure themselves and think, “Oh, it’s not too big.” Then they take some Tylenol and worry about it later. That could be okay for some things, but what happens if that particular injury or condition gets worse down the road, and you have never seen a doctor?

I always encourage people by what I call my “Treat and Forget Rule.” See a doctor, get some treatment, and if you do not think it is anything worse, then you can forget about it. We then know that you have had some type of medical situation, so that if something happens down the road, there is a paper trail (proof) for all your injuries – not just for the one that currently hurts the most.

2) Notify Your Employer

You should always notify your employer if you have been hurt at work. Do not make the assumption that because you were injured while you were working, a supervisor or an employer would know about it automatically. Unless you inform your employer about the injury being work-related, they most likely will not know.

3) File Your Claim

After getting medical care, and after telling your boss about your accident, you have to file a Claim Petition if no Notice of Compensation Payable has been issued or if you have not received wage loss benefits under the Workers’ Compensation Act.

Even though you have told your employer, even though your employer’s insurance company contacts you, and even though they may have paid for some medical treatment, that is not enough. that does NOT legally accept the injury as work related and provides absolutely no protection against future earning loss or future medical expenses.

If you do not file your case within a certain period of time (generally three years in Pennsylvania), you could permanently lose significant benefits.

4) Review Accepted Injury and Compensation Rate

Once the insurance carrier has issued a Notice of Compensation Payable, make sure the accepted injury is correct (i.e. a herniated disc is not a strain) and make sure the Statement of Wages used to calculate your compensation rate used ALL of your gross wages and earnings.

You Do Not Have to Do This Alone. . .

It is essential that you know your rights, and it is important to have all of the information you need to be able to effectively deal with the insurance company and protect your rights under the law.

With over seventy (70) years of continued workers’ compensation experience, we are ready to help. We will discuss your case with you and decide together if Calhoon & Associates, P.C., is the right firm to represent you.

We are not a fit for everyone, but we do pride ourselves on helping our clients make the right choice. If we are not a good fit, we will be quite happy to refer you to other lawyers who will be a good fit.

Avoid potentially disastrous mistakes. Get experienced advice NOW at no cost.
Call Us at 877-291-9675

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Date Of Injury for Workmans Compensation Purposes

Occupational diseases and occupational hearing loss are complicated areas of workers’ compensation law. The fact that these injuries do not seem to have an easily ascertainable starting date may seem like a problem for an Employee but the law is generous in these situations. The Date of Injury is determined to be the date on which the Employee was last exposed to that hazard which caused the injury. When dealing with work-related hearing loss, a workers’ compensation court will look for four things: whether the claim was timely filed, whether the hearing loss is permanent, whether there is a binaural hearing loss of at least 10%, and whether the hearing loss was caused by the hazardous occupational noise. In a situation where an Employee does suffer a permanent, binaural hearing loss of at least 10%, the Employee will be entitled to an award of at least 26 weeks of the Employee’s compensation rate, not to exceed 260 weeks (or 5 years) of the Employee’s compensation rate.
In some situations the time limit for filing can be extended to start tolling when an employee knew (usually when a doctor tells you) or should have known the condition was related to working. In some cases, the injured employee is better off with an older date of injury for compensation rate purposes. You have 120 days to provide notice to your employer that you suffered a work injury and three (3) years to file a claim petition. Statute of limitations can be real tricky and there are many exceptions. If you have any questions, feel free to call us at 1-877-291-9675 at no cost.

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The Pennsylvania Workers Compensation Act specifically addresses disfigurements of the head, face or neck. Some injured workers find themselves with permanent scarring or disfigurement after a work related injury and they don’t realize that they could be entitled to workers’ compensation benefits as a result in addition to the wage loss benefits. Benefits for a scar or disfigurement are called specific loss benefits. They include scars caused by surgery.
In order for a disfigurement to qualify for PA Workers’ Compensation Benefits, it needs to be serious, permanent, unsightly and caused by something “not usually incident to the employment.” In addition, it must be above the clavicle area of the lower neck, so if the disfigurement or scar below the neck line it doesn’t qualify for benefits under the Pennsylvania Workers’ Compensation Act. If the disfigurement or scar is still present after 6 months, it would be reasonable to expect that it is going to be permanent. The unsightliness of a disfigurement is at the sole discretion of a Workers Compensation Judge to make that determine at a hearing. For an example of a case we handled in which the Judge awarded the maximum amount of workers’ compensation specific loss benefits allowed click here.
The period of the time that an injured worker will be compensated for the disfigurement is either by the Workers’ Compensation Judge after a hearing or by a settlement agreement of the parties. Determination of the proper amount of weeks for the disfigurement requires experience as there are no established guidelines. Trying to negotiate with the Workers’ Compensation Insurance Companies on your own is not recommended as the interplay between wage loss and specific loss benefits even confuses most experienced attorneys.
If you have suffered a scar or have been disfigured as a result of a work injury, call the Calhoon and Associates at 1-877-291-9675. Our experienced workers’ compensation attorneys will guide you and explain your rights at no cost.

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You need to carefully read and get legal advice on the “fine print” of the Long Term Disability (LTD) policy and you need to find out whether you paid the premium, the employer paid the premium or both paid. The WC insurance company is entitled to take a credit (deduction) for the part of the LTD they paid for. The fine print of the LTD policy may have language about additional credits or deductions. You have to be very careful to research these issues before you accept LTD in addition to workers’ compensation as it can actually cost you money (i.e., be a net loss) to collect both. There are also tax implications and destruction to your leverage for a lump sum settlement of the workers’ compensation benefits.
You also have to be careful not to retire from the time-of-injury employer since the WC insurance company can claim that you have taken yourself out of the workforce and are not entitled to WC. Sometmes an employer will want you to take LTD in conjunction with a separation from employment. Also, you should understand that the employer may be entitled to further credits from retirement or severance payments.
Generally, LTD carrriers want you to apply for SSD because their policy will say that they are entitled to pay you less LTD if you are receiving SSD.
It may be a good idea for you to receive SSD in addition to WC. WC does not have a credit for SSD; thus, you can receive full WC and partial SSD. This topic is covered in much more detail in other articles on this site. You need to be careful; however, if you are close to retirement age. At that point your SSD will turn into Social Security Retirement SSR). At that point, the credit situation reverses and WC can deduct the amount of your SSR from the WC.
Thus, while it is possible to receive WC, LTD and SSD; there may be credits or deductions which could lessen the amount of your WC check. The WC insurance carrier and the LTD carrier will not explain this to you . It is a good idea to get expert legal advice before proceeding. Call us at no cost for advice at 1-887-291-9675.

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Kyle Kenny was employed as a maintenance supervisor in Harrisburg, Pennsylvania (PA). He suffered a work injury to his back when he was moving 4 big and bulky mats that weighed over 100lbs. When he lifted the 4th mat, it jerked him badly. He sat down to take a break and started to feel a little back pain. Shortly after sitting down, his legs began to badly tingle and he was soon unable to move them. His co-workers called an ambulance for him and he was taken to the hospital. Kyle is currently paralyzed from the waist down. His work injury was accepted by Notice of Compensation Payable and his injury was described as “Lumbar Strain”. Often Workers’ Compensation Insurance carriers list a legally accepted injury simply as a “strain”. This is a tactic to minimize what disability and what medical expenses the workers’ comp carrier has to automatically pay.
15 months later, the workers’ compensation insurance company filed a Petition to Review Compensation Benefits claiming that the Paralysis was not the result of a Work Related Injury. Their claim was based on an Independent Medical Examination (IME) by Dr. Katz. This Petition sought to stop all benefits alleging he had recovered from the “strain.” Since he was no longer suffering from a strain, then compensation should be stopped unless he could prove from his motorized wheelchair that the paralysis was due to the injury. Ron Calhoon filed an Answer and the case was assigned to a workers’ compensation judge in Harrisburg, PA.
In support of their Petition, Defendant’s Insurance Carrier presented the testimony by Dr. Katz that injured worker’s Paralysis was not caused by the back injury suffered at work but rather was due to a viral condition that the paralysis would of happened at the very time no matter we he was at. Dr. Katz’s testimony was not found to be credible, competent or persuasive as the treating physicians’ testimony.
In defense of Petition to Review Compensation Benefits, the injured worker and his treating physicians, Drs. Edwards and Dr. Albert Skocik, testified and the Judge found their testimony credible. Dr. Edwards competently and persuasively testified that the small disc herniations shown on MRI were sustained during the work injury, which caused either a vascular tear resulting in hemorrhage or bleeding in the spinal cord with ischemia and a subsequent destruction of the cord; or a release of abnormal molecules from the disc, which triggered an autoimmune response and inflammatory system attack on the spinal cord. Dr. Skocik competently and persuasively testified that Claimant’s herniations noted on MRI were work-related and the cause of Claimant’s paralysis.
The Judge denied Defendant’s Petition to Review Compensation Benefits, finding that Kyle’s Paralysis was from his work injury. The Judge amended the description of injury to include Paralysis, and ordered Defendant to pay workers’ compensation medical benefits relating to Kyle’s Paralysis, the injured worker’s costs of litigation for defending the Petition to Review Compensation Benefits, and the attorney’s fees for unreasonable contest.

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INJURED WORKER WINS PRE APPROVAL FOR NURSING HOME CARE

On August 8, 2008, Fred Howe (name changed for this blog) suffered a work injury to the left ankle while loading a lawn mower onto a trailer. He was employed by Strange & Associates. The workers’ compensation carrier, Selective Insurance Company, accepted liability for the work injury by issuing a Notice of Compensation Payable.

Due to the work injury, the injured worker developed symptoms and pain in his left ankle and leg, radiating up the leg. He also developed numbness and swelling, jerking in his sleep, headaches, and muscle spasms. Over time, these symptoms began spreading to the right side. Medical treatment included pain medications, a brace/splint, and spinal cord stimulator. These symptoms were aggravated by activity, rest, or inactivity. The injured worker required frequent hospitalizations due to these symptoms. He also received medical treatment from his family doctor, Dr. Charles Lowe. Dr. Lowe felt FH suffered from reflex sympathy disorder (RSD) and/or complex regional pain syndrome. In early 2013, different living arrangements were being pursued to help with self-care and to avoid hospitalizations. He had also developed a sore on the back of his left thigh, which would not heal and required home health assistance.

In January, 2013 we filed a prospective Utilization Review Request, asking that an independent doctor decide whether nursing home care would be appropriate treatment for his work injury. Dr. Paul Doghramji of Margroff Review Services, stated that patients with RSD are known to become highly dependent on others for their activities of daily living, and need an assisted living environment. Dr. Doghramji felt that placement in a nursing home was reasonable and necessary due to Dr. Lowe’s documentation of great difficulty in performing activities of daily living. Winning the prospective utilization review grants him legal pre approval of the treatment and the treatment must immediately be paid for by the workers’ compensation carrier when the treatment commences. Even if the carrier appeals the unitization review determination, they must pay for the treatment while the case is on appeal.

If you would like to speak personally to us about your Pennsylvania or Harrisburg work related accident or injury, or benefits, please fill out our confidential online contact form or call Calhoon & Associates toll-free at 1-877-291-WORK (or 9675). Whether you wish to begin the claims process, or are encountering problems and concerns while on workers’ compensation, Calhoon & Associates will fight to obtain the benefits you are entitled to receive, guide you in the right direction, and obtain a fair settlement if that is in your best interest. There is no fee for us answering your questions or advising you of your rights so you head in the right direction.

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Did you know that the Washington State Department of Labor and Industry recently did a study on the link between certain careers, an employee’s obesity and potential to be a smoker? Truckers, movers, firefighters and policemen and women are the most likely to be obese. Doctors, teachers and scientists are the healthiest. The purpose of this study was to identify a need of workplace obesity prevention programs. The hope is that once these target professions are identified, this information can be used for prevention purposes. Interestingly enough, truckers were also amongst the highest percentage of employees that smoked. It is felt that truckers are influenced by the availability and convenience of food choices that they have available to them while working.

The full study can be found here: http://www.cdc.gov/pcd/issues/2014/13_0219.htm

Obesity and smoking can also be factors in your ability to fully recover from a work injury. If you were injured at work and still have not recovered from that injury, contact an experienced Pennsylvania Workers’ Compensation attorney right away. Defense attorney and IME doctors have recently been trying to blame ongoing disability on these factors in efforts to terminate benefits. Steps can be taken to help avoid these tactics before they happen.

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As workers’ compensation attorneys who only represents injured workers, we have had numerous clients call in a panic because brick and mortar pharmacies would not fill their prescription due to the fact that the insurance adjuster was not available to approve it or the adjuster denied pre approval for whatever whimsical dishonest reason they happen to come up with that day. Even adjuster’s admit the prescription cards issued by the workers’ compensation carriers are not worth the paper or plastic they are printed on. For those that do not use Injured Workers’ Pharmacy, www.iwpharmacy.com, this leads to unnecessary stress, denied treatment or high out of pocket expenses.
Some treating doctors have taken this issue into their own hands by issuing the necessary medications themselves right out of their own office. The carriers resent this practice as they have no ability to block treatment and argue that because the prices of these prescriptions are not regulated, physicians are taking advantage and charging more than a prescription dispensed by a pharmacy. State Rep. Marguerite Quinn introduced a bill to limit physician dispensing last year. This legislation passed in the House and was amended by a Senate committee. This amended legislation was recently voted on and passed in both the House and Senate on October 22, 2014 and is now on its way to Governor Corbett for his signature.
HB 1846 will effectively stop physician dispensing of all prescriptions to their workers’ compensation patients. Ultimately, it requires physicians to dispense only a limited day supply (depending on what type of drugs are being dispensed) of medications and must provide the original NDC code of the manufacturer drug so that the cost may not exceed 110% average wholesale price of the original drug. The dispensing of the medications by physicians is limited to a one-time supply and is limited to the first health care provider. No additional health care providers can seek reimbursement for drugs dispensed under the same workers’ compensation claim. Over the years, the legislature has expanded the “treat only with company doctor requirement” from a few days to 90 days. Now, they want to decide where an injured worker can obtain medications for the life of their injury.
The passage of this bill is troubling because not only was it quickly passed, but it is government interference with an injured workers’ right to obtain needed medical treatment.

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Injured worker Betty Thompson was employed by the Commonwealth of Pennsylvania, Department of Public Welfare, Selinsgrove Center, as a licensed practical nurse for seven (7) years. On September 30, 2012, she suffered a work injury to the right hip and low back when she slipped and fell on a wet floor at work. This work injury was accepted by Notice of Compensation Payable described as “right hip and low back strain”. The workers’ compensation insurance carrier is Inservco. Listing the legally accepted injury as merely a strain is an often used (almost universally used) tactic to minimize what disability and what medical expenses the workers’ comp carrier has to automatically pay. It can take well over a year for a judge to make a workers’ compensation carrier responsible for medical treatment not clearly related to the accepted “strain” injury (i.e., surgery, injections, etc.)

On June 25, 2013, Defendant Inservco filed a Termination Petition to stop workers’ compensation benefits as of April 12, 2013 based on an Independent Medical Examination (IME) by Dr. Richard G. Schmidt. This Petition was assigned to the a workers’ compensation judge sitting in Williamsport, PA.

In support of their Petition, Defendant Inservco presented the testimony of Dr. Richard G. Schmidt, and the Judge found his testimony not credible that injured worker was fully recovered from the work injury.

In defense of the Termination Petition, the injured worker and her treating physician, Dr. Matthew Eager, testified and the Judge found their testimony credible. Dr. Eager testified that injured worker has had continuous complaints of right sacroiliac joint, posterior hip and right leg pain and right leg numbness, that he imposed sedentary restrictions of no lifting over 10 lbs., that Betty was not fully recovered from the work injury, and that the description of injury should include right sacroiliitis, right trochanteric bursitis and lumbar spondylosis with right lower extremity radicular irritation. Betty testified that, since the work injury, she has experienced right leg and right buttock area pain aggravated by walking or sitting, and that she cannot perform her LPN duties as pushing a cart, bending and walking could aggravate her symptoms. Dr. Schmidt’s testimony was not found to be credible, competent or persuasive as the treating physician’s testimony.

The Judge denied and dismissed Defendant Inservco’s Termination Petition, finding that Betty was not fully recovered from her work injury. The Judge amended the description of injury to include right hip bursitis and sacroiliitis, and ordered Defendant to continue paying workers’ compensation wage loss benefits, medical benefits, and ongoing attorney fees; along with the injured worker costs of litigation for defending the Termination Petition.

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What follows is a guide on the basics of obtaining payment for medical bills in Pennsylvania workers’ compensation matters. Medical billing in workers’ compensation matters can be an unfamiliar and uncertain task. What is the process? What forms are to be used? What happens if payment is not timely or is denied? What are the time limits? Some common complaints are: workers’ compensation never pays on time, denies submissions, fails to pre-approve treatment, or just ignores the bill. Sometimes, it just seems easier to avoid dealing with workers’ compensation. However, this book is here to help you. Knowledge makes all the difference.

STEP 1
When a patient first presents to you stating they suffered a work injury, you must get some crucial information from them. Ask them for their employer’s name, address, and phone number. Next, ask for the workers’ compensation carrier’s name, address, and phone number. You will also need the claim number and the date of injury.

The patient should be asked to provide their Notice of Compensation Payable, Notice of Temporary Compensation Payable or a Workers’ Compensation Judge’s award recognizing the work injury. These documents will provide all of the above crucial information and, more importantly, confirm that the patient has an accepted workers’ compensation injury.

If the injury has been accepted, workers’ compensation pays for all reasonable, necessary and work-related medical treatment by “practitioners of the healing arts”. The Notice of Compensation Payable issued by the workers’ compensation insurance carrier describes the injury under the heading “Description of Injury” and “Body Parts” on the top left side of the form. Please keep in mind that workers’ compensation is only required to pay for treatment which falls within the “Description of Injury” and “Body Parts”. For example, if the injury is described as a cervical strain, workers’ compensation must pay for treatment to the neck. However, if the treatment being billed to workers’ compensation is to the right shoulder, workers’ compensation is not automatically responsible for payment. Some exceptions exist, such as when a test is performed to another body part to rule out causes for the work injury or pre-surgical testing. Knowledgeable counsel can help when such questions arise. Further, if the patient’s doctor feels that a condition not described on the Notice of Compensation Payable is work related, there are legal methods available to have the treatment paid for by workers’ compensation.

If the treatment or injury is denied as not work related, you may bill the patient’s private health insurance, Medicare or other government-sponsored health insurance. This is prudent for many reasons; most importantly, it protects the patient’s health and workers’ compensation claim by allowing them to continue treatment during denial by workers’ compensation. Besides lower reimbursement rates, drawbacks to billing sources other than workers’ compensation include:

• Unnecessary and costly co-pays to patient;
• Unnecessary and costly deductibles to patient; and
• Maximum private health insurance benefits attained prematurely, precluding further treatment for any condition over the patient’s lifetime.

If a medical bill is denied by workers’ compensation as not work related, a provider can then bill other insurance. The Commonwealth of Pennsylvania issued two (2) memorandums regarding the Insurance Department’s regulations governing the use of exclusions for workers’ compensation insurance in accident and health insurance (attached). These regulations require health insurance companies to pay claims if the workers’ compensation insurance company refuses coverage. If the health insurance company refuses to pay “because the treatment is work-related,” a letter enclosing these two (2) memos almost always causes quick payment. If private health insurance and/or government-sponsored insurance is billed during the course of litigation, in the event of a favorable Decision, workers’ compensation will be required to repay the private health insurance. Sometimes this is done by the workers’ compensation insurance carrier issuing a check directly to the private health insurance. The workers’ compensation insurance carrier can also make payments directly to the medical provider, who, in turn, will need to reimburse the patient’s private health insurance accordingly.

After the patient has been seen by the physician and a HCFA 1500 or UB has been created, you need to fill out an LIBC-9. Remember, this is a two-sided form even though you are only filling in one side. You must then mail the bill, LIBC-9, itemized bill, and medical records to the workers’ compensation carrier. There are no exceptions to this rule. An itemized statement or standard billing summary means nothing to the workers’ compensation insurance carrier! The itemized statement or billing summary are not sufficient requests for payment, and can legally be ignored. Compliance with the requirement that a completed LIBC-9 be sent with the bills is a prerequisite to the carriers’ obligation to process and pay the medical bill!

STEP 2

In Pennsylvania, workers’ compensation carriers have thirty (30) days (plus 6 days for mailing) to respond to a billing. If the response is late, compensation carriers have to pay 10% per annum interest. They can respond in the following manners:

1.Payment;
2.Denial (If denied as not work related, contact attorney);
3.Filing a utilization review request; or
4.Silence.

FEE REVIEW (Amount of Payment)

If the carrier does not respond in the allotted amount of time or a payment amount is incorrect, you can then file a fee review. The Fee Schedule is on the Bureau of Workers’ Compensation Website at http://www.dli.state.pa.us. Fee Review is the procedure to review the amount of the payment. This can be due to improper downcoding. If the carrier does not strictly comply with the downcoding procedures mandated by Section 127.207 of the regulations, the provider is entitled to reimbursement for the actual charges. A Fee Review can also be used to challenge the timeliness of payment as can a penalty petition.

Fee reviews must be filed within ninety (90) days of the original bill date OR within thirty (30) days after a denial or disputed payment is received, whichever occurs later. These time limits are strictly enforced and any fee review filed late will be dismissed.

The Department of Labor and Industry, Healthcare Services Review Section governs these reviews. Only a medical provider can file a Fee Review. A tutorial is available at the Bureau of Workers’ Compensation website at www.dli.state.pa.us, Workers’ Compensation Medical Treatment Information, Healthcare Services Form Tutorials. FAQS are also available at www.dli.state.pa.us, Workers’ Compensation, FAQS, Healthcare Services Review FAQS. You may call the PA Workers’ Compensation Hotline at (717) 772-4447 to obtain a Fee Review form for filing.

It is important to remember that to file a fee review you must fill out a LIBC-507 (see above sample form) and send it with a copy of the original bill, itemized bill, LIBC-9 (with original bill date) and medical records. Include a summary of why you are filing the review. Send a copy of the packet to the compensation carrier and keep a copy for your records. The original gets mailed to the Bureau of Workers Compensation. They will notify you of a decision within thirty (30) days of receipt of all necessary documents. The party unsatisfied with the fee review determination may file an appeal by filing a Request For Hearing To Contest Fee Review Determination (see Form on next page). The appeal must be filed within thirty (30) days of the administrative determination and will be assigned to a hearing officer who will issue a decision within ninety (90) days of the close of the evidentiary record. Further appeal will now be assigned to a workers’ compensation judge.

UTILIZATION REVIEW (Reasonableness & Necessity)

If the workers’ compensation carrier has filed a Utilization Review (UR), you should check to be certain that the UR was filed within thirty (30) days of the workers’ compensation insurance carrier’s receipt of the medical bill(s) being requested for review. It can be argued that the failure of the carrier to timely challenge a bill waives their right to challenge the reasonableness and necessity of the treatment.

When requested by the assigned utilization review organization (URO), you must do the following:

1. Timely provide your records to the URO!;
2. Insist on a telephone conference with the UR’er;
3.Encourage the patient to continue reasonable treatment; and
4.Encourage the patient to provide a written statement to the UR’er when requested.

When the medical provider is requested to provide medical records to the URO, the URO shall provide reimbursement to the medical provider for copying costs at the rate specified by Medicare, along with payment for actual postage costs. Also, reproduction of radiographic films (x-rays, MRI’s, CT Scans, etc.) shall be reimbursed at the usual and customary charge. (See Section 127.463(a) and (b) of the Rules and Regulations governing actions under the Pennsylvania Workers’ Compensation Act)

If the UR determines that the treatment was unreasonable and/or unnecessary, contact the Attorney to file an appeal of the UR determination.

The appeal will be a brand “new” review of the treatment by a Workers’ Compensation Judge. Also, most importantly, the workers’ compensation insurance carrier will now have the BURDEN to prove that the treatment was unreasonable and unnecessary. The petition to review the UR determination will be assigned to a workers’ compensation judge and will not be binding on the judge.

How long does the UR process take? When a UR request if filed, it takes about five (5) days for the Bureau to assign the petition to a URO. The URO will then collect the medical records and is prohibited from giving opinions on causation. A request for UR shall be deemed compete upon receipt of the medical records from the provider, or thirty (35) days after the notice of assignment of the review to a URO, whichever comes first. The provider will be given thirty (30) days to provide the records. Failure of the medical provider to timely provide records will cause the treatment to be denied as not reasonable and necessary! Filing an appeal will not help. Once deemed completed, the URO has thirty (30) days to render their decision.

If a provider, an employee or an employer disagrees with the UR determination, they can file a request for review of the UR determination. The medical provider is not dependant on the injured worker filing an appeal.
The medical provider has standing to file the appeal.

We represent many treating doctors who hire us directly to file the appeal and to get their bills paid after a negative UR determination is issued.

STEP 3 SILENCE

In the event that you receive NO RESPONSE to your original submission of your bill(s) to the workers’ compensation insurance carrier or receive some excuse like “the check is in the mail,” then you should immediately contact the Attorney, who will review the matter to determine which of the following petitions should be filed:

1. FILE PROSPECTIVE UR: a quick and effective method of obtaining pre approval to guarantee payment of medical bills before the treatment is even rendered (don’t believe the myth that there is no such thing as pre-approval in PA workers’ comp);
2. FILE REVIEW PETITION for the payment of medical bills and an additional 10% interest on the unpaid bills;
3. FILE PENALTY PETITION requesting the additional payment of up to 50% penalties for the carrier’s violation of the PA Workers’ Compensation Act by delaying payment of medical bills.

A review petition is needed when the treatment is for a condition not clearly related to the injury accepted in the Notice of Compensation Payable. A Penalty Petition can be filed when payment is not made within thirty (30) days, or if payment is received well past the 30-day time frame. A Penalty Petition is most often used when workers’ compensation ignores medical bills which are properly submitted and clearly related to the work injury. When filing a Penalty Petition, the medical bill must be clearly work-related, i.e., the medical documentation that was submitted with the bill clearly identifies treatment to the injury/body part described on the Notice of Compensation Payable or Judge’s Award.

Often times the mere filing of the Penalty Petition will be enough to effectuate payment from the workers’ compensation insurance carrier. If not, a Judge will issue a Decision as to whether the workers’ compensation insurance carrier failed to make timely payment and, if so, order payment to be made. The Judge can also order penalties to be paid by the workers’ compensation insurance carrier, up to 50% of the outstanding medical bills plus 10% interest.

Lastly, if a bill is denied because it was within the first ninety (90) days of treatment and the doctor is not on the company posted list, call us to see if any of the many exceptions apply. Usually, one does and the compensation carrier must pay the bill. It is a myth that injured workers cannot treat with a doctor of their own choice during the first ninety days.

CONCLUSION

Payment of medical bills under the Pennsylvania Workers’ Compensation system can be confusing and complicated. It is the desire of the attorneys at Calhoon & Associates that this guide book, the flow chart and the sample forms contained herein will assist you in an organized and simplified fashion to collect your medical bills in an almost hassle free fashion. However, hassles are bound to occur. When they do, feel free to contact the attorneys at Calhoon & Associates to assist you with this process and achieve the ultimate goal of providing medical care to your patients and getting your BILLS PAID.
No part of this blog may be copied or reproduced in any manner whatsoever without the express written consent of Calhoon & Associates, P.C. Comments in this blog are not intended to provide legal advice. This is a guide. For specific legal advice on your case, you should call a reputable and Board Certified workers’ compensation lawyer. It should never cost you any money to consult with such a lawyer. We can be reached 24 hours a day at 1-877-291-9675 or by emailing rcalhoon@pa-workers-comp-lawyers.com

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Ron was my workers comp lawyer for over a year. 5times my check was delayed on 3 of those occasions ron had gotten my claims person to overnite me a check. other 2 had it in mail in 2 days. every question or concern I had, it was either answered or addressed within 24 hours. In the end, Ron got me more than my wife & myself were willing to settle for. THANK YOU RON ! Henry 10-9-14

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We Couldn’t have…

Tom Cook was very professional and responded quickly to our questions. Helped navigate us through the legal process which we couldn’t have done on our own. Easy to work with and contact with questions. Robert- Harrrisburg

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The injured worker KG was employed by JDB Construction as a trade carpenter, working construction framing houses. On December 6, 2006 he slipped and fell into a ditch and herniated two (2) discs. The workers’ compensation insurance carrier is State Workers’ Insurance Fund (SWIF), who accepted liability for this work injury. The injured worker KG underwent back surgery in 2007, along with back and hip injections. His treating physicians are Dr. Robert Boyer, a chiropractor in Chambersburg, PA, and Dr. Curtis Goltz, an orthopedic surgeon in Harrisburg, PA The injured worker KG has been treating with Dr. Boyer for many years.
On November 17, 2011 The injured worker KG settled his wage loss benefits for a fair and reasonable lump sum wherein Defendant SWIF remained responsible for payment of ongoing, work-related medical treatment for the rest of KG’s life. On September 11, 2012, a Utilization Review Determination found Dr. Boyer’s chiropractic treatment to be reasonable and necessary. It was not appealed. Workers’ comp still refused to pay the medical bills.
We filed a Penalty Petition for Defendant SWIF’s failure to pay Dr. Boyer’s medical bills since March 2013. The injured worker KG and Dr. Boyer testified, and the Judge found their testimony credible. The injured worker KG testified that Dr. Boyer has been providing chiropractic treatment for several years and that the treatment helps with stiffness and enables him to do things. Dr. Boyer testified that he has been providing chiropractic treatment for several years to maintain back function, and that Defendant SWIF had been paying the medical bills.
The judge granted The injured worker’s KG”s Penalty Petition. The Judge found that Defendant SWIF unilaterally stopped paying the injured worker’s medical bills. The Judge ordered Defendant SWIF to pay all of the medical bills plus fifty (50%) percent penalties to the injured worker KG totaling $1,729.00, unreasonable contest attorney fees of $2,801.25, and costs of litigation of $850.10.

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In August 2014, a Miami trial court judge ruled that the exclusive remedy provision of Florida’s Workers’ Compensation Act unconstitutional as a matter of law. The exclusive remedy provision prevents an injured worker from
suing for a work injury and limits recovery to workers’ compensation. Workers’ compensation caps damages and does not allow any recovery for pain and suffering or lost health and pension benefits.
Circuit Judge Cueto found that the Act was “no longer an adequate exclusive replacement remedy in place of common-law tort, as required by the 14th Amendment to the U.S. Constitution or by the Florida Constitution.”

He observed that the act “became unconstitutional as an exclusive remedy in stages,” as legislative amendments “decimated” the benefits provided through the years.
During this process, Cueto said, “fundamental rights guaranteed by the Constitution were eviscerated by merely enacting a statute and relying upon the police power of the state for validity.”
As it stands now, he opined, the act “fails miserably” in promoting the public morals, health, safety and welfare of the citizenry of Florida, and plainly does not pass constitutional muster.
Cueto said, the “benefits provided by the act should have increased substantially to account for the change in the value of the trade; i.e., allegedly fast, sure and adequate payments in exchange for the tort remedy that was
cumbersome, slow, costly and under which it had been legally difficult for injured workers to prevail.”
Lawmakers again tinkered with the act in 2003, to eliminate the payment of any compensation for a permanent loss of wage-earning capacity that is not total in character, Cueto noted. And even if the loss is total, then the act, as amended, cuts off benefits once the worker hits 75 or after receiving benefits for five years.
The amended version of the act also apportioned medical care expenses for workers between an employer and the worker, and if the worker can’t afford his share of the cost, then the worker can’t get treated, Cueto said. Unlike many states, claimants in Florida must make co-pays when receiving medical treatment for their workplace injuries.
Cueto reasoned that if the Act would “provide full medical care and some compensation for total or partial disability, it remains constitutional.” But as it now stands, Cueto said, “it is inadequate as an exclusive replacement remedy for all injured workers.”

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If you’ve received a form in the mail titled “Employee’s Report of Benefits” (LIBC-756), “Employee’s Report of Wages” (LIBC-750), or “Employee’s Verification of Employment, Self-Employment or Change in Physical Condition” (LIBC-760) you might be confused and suspicious.
The first thing you should know is that these are standard forms. Your employer or their Pennsylvania (PA) Workers’ Compensation Insurance company can send you these forms every six months. These forms are rather straight-forward and ask you to report any wages you’ve earned while collecting or seeking workers’ comp, ask if you have been employed or self-employed at any point while collecting or seeking compensation benefits, and ask if you’ve received any Social Security, pension, severance, or unemployment benefits during the period you have been collecting or seeking Pennsylvania WC benefits. If you are receiving Social Security Disability benefits do not report them as Social Security Old Age benefits as this will cause the carrier to take an imporper credit against your weekly compensation. These forms may also require the employee to report any change in physical condition that could affect his or her entitlement to TTD benefits. This is an easy way for the Insurance company to gather information about your case.
These forms require that you complete them and return them to your insurance company within thirty (30) days. Failure to complete these forms and return them within these 30 days allows the insurance company to file a Petition to Suspend your workman’s compensation wage loss benefits. The insurer can suspend your benefits until the proper forms are completed and submitted. Additionally, if an employee’s benefits are suspended due to a failure to timely return these forms and the employee later fills out and returns the forms, the employee’s benefits will start back up, but the employee will be unable to get retroactive benefits the portion of time that coincides with the suspension. This is another reason why it is very important to complete, sign, and send the forms back within the 30 day time period.
An injured worker must take care to ensure that the information being provided on these forms is complete and accurate. If a worker dealing with a work-related injury knowingly, with intent to defraud, fails to make the required reports or gives false or misleading information, he may be liable under the fraud provisions of the Workers’ Compensation Act.
It is very important that these forms are filled out on time and filled out accurately. For this reason, it is a good idea to consult with an experienced workers’ compensation attorney before trying to fill out a form that you might not understand. If you have any questions, we can answer them for free.

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My opponent didn’t stand a chance against him.

I chose to hire Ron Calhoon on the recommendations of a doctor. I am so glad I did. From the first time we talked till the day we got news we won the case he fought for me. Between e-mails, phone calls and letters I was always in the know of what was happening. All my questions were answered in a timely manner.Ron is very knowledgeable about Workman’s compensation issues. My opponent didn’t stand a chance against him. Sonya B. Bloomsburg, PA

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Mr. Calhoon was contacted about a settlement that Worker’s Compensation was offering. I knew nothing about his firm except what was on his web site. Mr. Calhoon was courteous and respectful from the first contact. Mr. Calhoon explained my options thoroughly and answered any questions I had. After taking my case, Mr. Calhoon processed the settlement paperwork quickly and efficiently. I received a check in the amount agreed to and there were no problems with the paperwork, the courts or the compensation lawyers. The most surprising detail is that I am in Texas and Mr. Calhoon is in Pennsylvania and I felt as comfortable as if we were in the same state. I would not hesitate to recommend Mr. Calhoon’s firm for worker’s compensation cases.

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Under the Pennsylvania Workers’ Compensation Act and applicable case law, a non-U.S. citizen who is not eligible to lawfully work in the United States (undocumented worker) is permitted to receive workers’ compensation benefits if they are injured at work. However, in order to continue to be entitled to wage loss benefits, the work injury must totally disable the employee from working. Once an undocumented worker is medically released to return to some type of work, wage loss benefits can be stopped without an Employer showing job availability.

The Pennsylvania Supreme Court recently ruled that when an injured worker invokes his Fifth Amendment right against self-incrimination when being questioned at a hearing regarding his citizenship status, the court cannot assume that the injured worker is not permitted to be employed in the United States. The courts have consistently held that a party cannot meet its burden of proof in a civil proceeding merely by relying on a party’s failure to testify. Such an “adverse inference” is not evidence. Without independent evidence (proof of citizenship or residence status or I-9) supporting that a claimant is an undocumented worker, an Employer is not relieved of its burden to show earning power or job availability to suspend worker’s compensation wage loss benefits.

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Melissa was very helpful

Melissa was very helpful and informative through out my whole case. Listens to what you have to say and gives you options and informs you of things you may have never thought about. Notified me anytime an offer changed. She knows her stuff. I would recommend her to anyone with a workers comp case. – Craig

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Under the Pennsylvania Workers’ Compensation Act and applicable case law, a non-U.S. citizen who is not eligible to lawfully work in the United States (undocumented worker) is permitted to receive workers’ compensation benefits if they are injured at work. However, in order to continue to be entitled to wage loss benefits, the work injury must totally disable the employee from working. Once an undocumented worker is medically released to return to some type of work, wage loss benefits can be stopped without an Employer showing job availability.

The Pennsylvania Supreme Court recently ruled that when an injured worker invokes his Fifth Amendment right against self-incrimination when being questioned at a hearing regarding his citizenship status, the court cannot assume that the injured worker is not permitted to be employed in the United States. The courts have consistently held that a party cannot meet its burden of proof in a civil proceeding merely by relying on a party’s failure to testify. Such an “adverse inference” is not evidence. Without independent evidence (proof of citizenship or residence status or I-9) supporting that a claimant is an undocumented worker, an Employer is not relieved of its burden to show earning power or job availability to suspend worker’s compensation wage loss benefits.

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Whether rig rental and other per diem allowances can be included in an average weekly wage calculation is a seldom asked question. Other than board and lodging, they cannot be included, unless it can be shown that the money was available for “personal use”.

Section 309(e) of the Act defines the term “wages”. Board and lodging (otherwise known as per diem), gratuities, incentives, vacation pay, sickness and accident benefits, and bonuses are considered wages, but fringe benefits are not. Wages are further defined as: “Compensation given to a hired person for his or her services, based on time worked or output of production, it is a term that should be broadly defined to include periodic monetary earnings and all compensation for services rendered without regard to the manner in which such compensation is computed. Mullen v. WCAB, 945 A.2d 813 (2008).

An Average Weekly Wage (AWW) calculation is based only on “wages”. The PA Workers’ Comp Act does not provide for non-monetary renumeration, other than board and lodging, to be included in the AWW calculation. This would include mileage reimbursement and business expenses that are not available for personal use and which renumeration is being used for the item covered by the expense. Glinka v. WCAB, 462 A.2d 909 (Pa.Cmwlth. 1983). A presumption exists that a business expense is not included in the AWW calculation. To overcome the presumption, a claimant must produce a federal tax return showing that the item reimbursed was not listed as a deduction or depreciated. Glinka.

Adams v. WCAB, 527 A.2d 625 (Pa.Cmwlth. 1987) holds that reimbursement for a chain saw rental and fuel costs are not considered wages for AWW calculation purposes. On his income tax return, claimant deducted a depreciation allowance for the saw and fuel costs and paid income tax on the balance he received from the equipment rental. The Court held that since Section 309(e) of the Act is silent regarding payments for rental of equipment, it must be concluded that the legislature intended to exclude it from wage computation.

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Claimant Nancy Palusi (the name of our client has been changed for purposes of this article) was employed by H.E. Rohrer as a bus driver. On January 13, 2012, she slipped and tripped off a bus step, breaking her left leg and landing on her left side, also hitting her left elbow and shoulder upon landing. She was taken by ambulance to the emergency room. The workers’ compensation insurance carrier is American Zurich Insurance Company and was found liable for this work injury. Nancy was initially off work and received total disability wage loss benefits, and eventually returned to work modified duty and was entitled to weekly partial disability benefits because she was earning less per week in gross wages as compared to her pre injury Average Weekly Wage.
Because the carrier refused to pre approve the medical treatment, we filed a Utilization Review Request in April 2013 to address the reasonableness and necessity of a solean sling release, post tibial nerve, tarsal tunnel release and evacuation of sinus tarsi surgery recommended by Dr. Seth Seber, DPM. Dr. Francine Williams, DPM performed the Utilization Review, and felt that the information was limited in Dr. Seber’s medical records and that t Nancy’s negative test results did not provide enough information to find that the surgery was warranted or beneficial for Claimant. Dr. Williams further felt that normal EMG findings do not support a diagnosis of nerve entrapment. Claimant appealed this Determination by filing a Petition for Review of Utilization Review Determination.
Judge Wayne Dietrich in Harrisburg PA heard the Petition. The URO Determination of Dr. Francine Williams was submitted into evidence by Defendant. Claimant NANCY PALUSI submitted into evidence the report of Dr. Seth Seber, who evaluated her for surgery at the request of her treating physician, Dr. Mark Perlmutter. During the surgical evaluation, Dr. Seber performed an exam, along with systematic diagnostic injections to determine the extent of relief of Claimant NANCY PALUSI’s symptoms and to determine that her nerve pain was originating from the posterior tibial nerve. Dr. Seber recommended surgery and Dr. Perlmutter agreed, as all other conservative treatments had failed. We also presented evidence of late and non-payment of workers’ compensation checks.
WCJ Dietrich found Claimant Nancy and Dr. Seder credible, as Dr. Seder’s examination was more complete and thorough than the records review by Dr. Williams, and he discussed Claimant’s problems with her treating physician. The WCJ rejected Dr. William’s URO report. The WCJ found that Defendant failed to sustain its burden of proving that the solean sling release post tibial nerve, tarsal tunnel release, and evacuation of sinus tarsi surgery was unreasonable and unnecessary. Defendant was ordered to pay for the surgery. Even if they appeal the decision, the surgery must be paid for by the carrier. This is better than “pre approval.” WCJ Dietrich also found that Claimant we proved that Defendant violated the Workers’ Compensation Act by failing to timely pay workers’ compensation benefits, and awarded 50% penalties on the late workers compensation checks owed her. disability benefits. Costs of litigation and attorney fees for unreasonable contest were also awarded to be paid by the workers’ compensation insurance company.

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Here is an example:

COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF LABOR AND INDUSTRY
BUREAU OF WORKERS’ COMPENSATION

INJURED WORKER : WCAIS NO. 3671809
Claimant :
: MODIFICATION PETITION
:
vs. :
: WCJ BRIAN HEMAK
DISH NETWORK, :
Defendant :

HEARINGS HELD: December 17, 2013 (Cancelled)
January 3, 2014
January 28, 2014
April 29, 2014

CLAIMANT’S WITNESSES: Claimant

DEFENDANT’S WITNESSES: Robert Mauthe, M.D.
Dawn Eberle

APPEARANCES: Ronald L. Calhoon, Esq.
2411 North Front Street
Harrisburg, PA 17110
Counsel for Claimant

Alysia Hudock, Esq.
1245 S. Cedar Crest Blvd.
Suite 300
Allentown, PA 18103
Counsel for Defendant

EXHIBITS

BUREAU’S B-1 October 18, 2011 Decision

CLAIMANT’S: CS-1 Claimant’s Affidavit
CS-2 Appeal Board Decision
C-1 Fee Agreement
C-2 Class Schedule
C-3 Costs of Litigation totaling $789.85
(attached)
C-4 Itemization of Attorney Fees (attached)
C-5 Child Support Lien Affidavit and Printout
(attached)

DEFENDANT’S: DS-1 Notice of Compensation Payable
DS-2 Vocational Packet
DS-3 Job Analysis
D-1 Deposition Transcript of Dr. Robert Mauthe
D-2 Deposition Transcript of Dawn Eberle
D-3 Preservation of Objections – Dawn Eberle

COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF LABOR AND INDUSTRY
BUREAU OF WORKERS’ COMPENSATION

INJURED WORKER : WCAIS NO. 3671809
Claimant :
: MODIFICATION PETITION
:
vs. :
: WCJ BRIAN HEMAK
DISH NETWORK, :
Defendant :

CLAIMANT’S PROPOSED FINDINGS OF FACT

1. On or about November 8, 2013, Defendant filed a Petition to Modify/Suspend Compensation Benefits as of October 29, 2013 due to work being generally available, Claimant being capable of performing modified work within the restrictions of Dr. Mauthe, and as per a labor market survey. Supersedeas was requested and denied by decision dated January 30, 2014.
2. This Modification Petition was assigned to the Honorable Brian Hemak on or about November 12, 2013.
3. On or about November 15, 2013, Claimant filed an Answer to Defendant’s Modification Petition denying all allegations. Claimant requested costs and attorney fees for unreasonable contest.
4. By Decision dated October 18, 2011, a Stipulation was approved that amended the description of injury to include peroneal neuropraxia, torn lateral meniscus, and depression. (B-1)
5. Claimant is 31 years old, married and has 3 children, with one on the way. (H.T. of 4/29/14, p. 9)
6. Claimant was employed as a satellite technician by Dish Network for a year and a half prior to his work injury. His physical job duties included carrying equipment, satellite dishes, hauling and moving ladders, crawling in and out of crawlspaces, and basement work. (Id.)
7. Prior to working for Dish Network, Claimant worked for several years as a carpenter, performing manual labor and all aspects of construction. (Id., p. 9-10)
8. On April 3, 2010, Claimant was installing a satellite dish and fell over 20 feet onto his left leg, resulting in a severe tibia and fibia fracture. As a result, Claimant underwent four (4) surgeries. The first two (2) involved external fixation of the left tibia and fibia; the third was an internal fixation of the tibia and fibia; and the fourth was a bone graft at the fracture site. (Id., p. 10) He has received total disability benefits since the work injury. (Id., p. 14)
9. Claimant testified that currently he experiences constant, moderate pain, rating it as a 5 out of 10 most days, with some days the pain becoming worse. Claimant also experiences neuropathy or pain and tingling in the left, big toe; constant pain above the left ankle where the most damage to the bone was sustained; after walking more than 20 minutes he will develop pain in the left side of his knee; and after sitting or walking for a long period of time he will develop low back and hip symptoms. (Id., p. 10-11)
10. Claimant’s April 3, 2010 work injury also includes depression. (Id., p. 11) Claimant explained that he always feels a sense of impending danger, along with anxiety, the inability to voice his opinion or articulate things correctly, nervousness and becoming withdrawn from conversation. Claimant never had these symptoms prior to the work injury. Workers’ compensation has paid for his monthly psychological treatments, except for the last five (5). (Id., p. 11-12)
11. Claimant testified he can stand for 20 minutes. He uses a cane, and when using that or a cart at the store, he can stand for 30 minutes. Then he needs to sit down and take a break. He recently has begun shifting his weight to the right side and leaning on the cart if he tries to stand a little longer. (Id., p. 12) Claimant did not have these problems before the work injury. (Id., p. 14)
12. Claimant testified that he can sit for approximately an hour, but begins developing a sore, throbbing pain after 30 minutes, beginning in his left hip and shooting down to his left knee. From his hip to left knee will ache terribly. If he sits for longer than 40 minutes, his left leg will fall asleep. For example, if he drives far, his leg will go numb and he will have to pull over and rest. Also, Claimant recently attended the movies with his children, and had to get up several times, approximately every 40 minutes, and go out to the lobby. (Id., p. 12-14) Claimant did not have these problems before the work injury. (Id., p. 14)
13. Claimant’s current medications include Norco for pain, Cymbalta for depression, Celebrex for arthritis and joint pain, and Lyrica for nerve pain. (Id.)
14. Claimant enrolled at Penn State College and began classes on August 26, 2013. In the Fall 2013 semester, Claimant had classes on Monday, Wednesday and Friday from 10:00 a.m. to 10:50 p.m., 11:00 a.m. to 11:50 a.m. and 1:00 p.m. to 1:50 p.m. He has classes in the Spring 2014 semester on Mondays and Wednesdays from 9:00 a.m. to 9:50 and 1:00 p.m. to 2:50 p.m.; Tuesdays from 8:00 a.m. to 9:50 a.m. and 10:00 a.m. to 11:50 a.m.; and Tuesdays and Thursdays from 1:10 p.m. to 2:25 p.m. (Id., p. 14-15; C-2) The classes are in a classroom, not online. (Id., p. 16) Claimant hopes to achieve an Associate’s Degree in Physical Therapy Assistant and graduate in May 2015, with Boards in August or October of 2015. (Id., p. 17-18)
15. Claimant hopes to work in an outpatient setting because the physical demands are less, as most patients can walk themselves, there are other aides available for assistance, and there is also a mechanical lift. If the physical therapy assistant ob demands are too rigorous, Claimant will seek an administrator position or continue his education to get into the education portion of a physical therapy program. (Id., p. 18)
16. At the time of his testimony, Claimant is still in school. The longest Claimant sits at class is 50 minutes. He has one lab which is 2 hours, however, Claimant can take a break as needed and lie down, get up, or go into the hall to stretch his leg. (Id., p. 18-19) The lab is hands-on, but Claimant uses a mechanical lift to transfer patients, which only requires minimal exertion and lifting of less than 20 lbs. (Id., p. 29-30). At the lab, Claimant has a mat to use if he needs to lie down. The class sits on the mat at their desks. He lies down approximately every other session. (Id., p. 34-35)
17. Claimant enrolled at Penn State because he realized he was not going to be able to return to work as a satellite technician or to his family’s construction company. (Id., p. 16) Claimant pays for college himself, through financial aid and student loans. (Id., p. 17)
18. Claimant testified that he is hoping to be able to perform most of the physical therapy assistant duties. He is concerned about transferring patients by himself as he has limits and cannot lift like he used too. (Id., p. 36)
19. Claimant testified that per Google Maps, the USCB Corp. job is 56 miles from his house, one way. The Commonwealth Financial job was 51.3 miles one way, the Peace job was 42 miles approximately one way, and the Sundance job was approximately 15 miles one way. (Id., p. 19-20) Claimant feels he would be able to drive the 15 miles to Sundance, but the remaining jobs would aggravate his condition, causing him to be in pain before work and affect his job performance. (Id., p. 20)
20. The sitting requirements in the above jobs are as follows:
a. USCB – frequent to continuous
b. Commonwealth Financial – up to 4 hours
c. Peace – up to 4 hours
d. Sundance – up to 4 hours
e. Research American – continuous
Claimant testified that sitting the above lengths of time would cause problems and
bother his leg dramatically. He does not feel he can sit for that long. He would need accommodations, such as being able to get up every half-hour and stretch and take a 15 minute break. (Id., p. 20-21) The job descriptions do not indicate whether Claimant can change positions or take breaks as needed, or whether any job modifications will be made.
21. While at home, Claimant stays on the ground floor as he has trouble with stairs. He can lie down when he needs to, whenever his leg bothers him. However, when his 1 year old is home, he will just sit on the floor with his leg stretched out rather than stand or hold the child. (Id., p. 21)
22. Defendant presented the testimony of Robert Mauthe, M.D. Dr. Mauthe first performed an IME of Claimant on July 11, 2012. Claimant reported falling approximately 10-15 feet off a ladder on April 3, 2010, sustaining a fairly severe distal tibial and fibular fracture. An external fixator was attempted, but Claimant ultimately had to undergo internal fixation with bone grafting. Claimant also experienced left knee pain, and an EMG revealed a nerve injury and torn meniscus. (Mauthe Depo., p. 5-7)
23. Claimant’s treatment included physical therapy; treatment by Dr. Kline, a physiatrist; home exercises; and use of a cane on his right due to the left ankle. Claimant reported left ankle swelling and right knee pain, worse with use. (Id., p. 8-9)
24. Physical examination revealed a consistent left leg limp; left leg atrophy consistent with an injury and little use; loss of range of motion of the left ankle; left ankle swelling; and his left leg was shorter than the right. There was no symptom magnification. Dr. Mauthe explained that Claimant did not fully recover from the surgery and had residuals, which is not unusual with such a bad fracture and is consistent with same. (Id., p. 9-11)
25. Dr. Mauthe opined that as a result of the April 3, 2010 work injury, Claimant sustained a fracture of the left tibia and fibula resulting in an open reduction and internal fixation; that Claimant continued to have a residual functional impairment as a result of the injury; and that Claimant also sustained a left peroneal nerve injury and a left lateral knee meniscus tear. Dr. Mauthe recommended rehab. (Id., p. 11) Dr. Mauthe did not address Claimant’s work-related depression. (Id., p. 25)
26. Dr. Mauthe further opined that as of July of 2012, Claimant’s low back and hip complaints are due to the left leg limp. He felt Claimant was not fully recovered and imposed restrictions of sedentary work; driving 1-4 hours; standing/walking for less than 1 hour; lifting 10 lbs., no use of the left foot for any operations or foot control; and no sitting limitations. (Id., p. 12-13) A Notice of Ability to Return to Work was issued on August 3, 2012. (Depo. Exh. 2)
27. Dr. Mauthe performed a second IME of Claimant in May of 2013. Claimant reported undergoing hardware removal from his ankle and wearing arch supports. (Id., p. 13)
28. Physical examination in May of 2013 revealed no significant changes from the prior exam and was virtually identical. Dr. Mauthe’s diagnoses remained virtually identical also, except that his left knee exam was normal. Restrictions remained essentially unchanged, except Claimant’s driving was no longer restricted but for using a clutch. Claimant could stand or walk for less than 1 hour. (Id., p. 15-17) Claimant did not drive to the IME. (Depo. Exh. 3)
29. Dr. Mauthe felt there was no medical basis for Claimant’s inability to sit or need to lie down. (Id., p. 17-18) Dr. Mauthe believes that Claimant cannot sit for longer than 1-2 hours because it makes his back hurt. He does not disbelieve Claimant. (Id., p. 20-21) Dr. Mauthe did not order a Functional Capacity Evaluation to help determine Claimant’s capabilities, as it would not be appropriate for him to recommend. (Id., p. 22-23)
30. Dr. Mauthe opined that Claimant is capable of performing the jobs identified by Genex, assuming they are described in an accurate fashion. (Id., p. 19-20)
31. Defendant presented the testimony of Dawn Eberle, a vocational counselor for Genex. Ms. Eberle believes her ethical obligation is to both the disabled worker and the insurance company paying her bill. She has never testified as a vocational counselor before the Social Security Administration, the Court of Common Pleas in a personal injury matter, in a federal Workers’ Compensation case, or on behalf of a disabled person. (Depo. of Dawn Eberle, p. 6-7)
32. Ms. Eberle utilized Dr. Mauthe’s July 11, 2012 restrictions of sedentary work in conducting her vocational assessment. Sedentary work is primarily a sitting position, with lifting no more than 10 lbs. She also received Dr. Mauthe’s May 30, 2013 re-evaluation report. (Id., p. 7-8)
33. Ms. Eberle testified that she contacted Employer prior to conducting a vocational meeting, who had no work available. (Id., p. 9)
34. A vocational meeting was conducted on October 25, 2012. Claimant reported the details of the work injury and described symptoms of moderate, constant pain of the left lower leg, 5 out of 10 and sometimes worse. Claimant further indicated decreased range of motion; a diagnosis of peripheral neuropathy with nerve pain and numbness on the right side of his left foot; and a diagnosis of depression with symptoms of gloominess and anxiety. (Id., p. 9-10) Claimant further reported ADL’s of some household activities and light clean-up, with his wife performing the cooking, laundry and carrying anything heavy. Claimant indicated he could only drive short distances and uses a cane when outside. (Id., p. 12)
35. During the interview, Claimant also reported depression and anxiety treatment once a month with a psychologist. (Id., p. 25) Claimant also reported that his left knee and hip will have pain and his left hip will fall asleep with sitting; his left knee aches; and that he uses a cane for activities such as shopping. (Id., p. 26).
36. Ms. Eberle did not contact either of Claimant’s treating physicians to ascertain their work restrictions, as she was instructed by the insurer to only use Dr. Mauthe’s restrictions. (Id., p. 25-26)
37. Claimant’s past employment history consisted of working for a little over a year for Employer as a field service representative, along with construction and laborer work. (Id., p. 13)
38. Ms. Eberle performed a transferrable skills analysis, and felt Claimant was capable of performing assembly positions, inspecting positions and work as a solderer. (Id., p. 14-15) However, if these positions are not available when conducting the Labor Market Survey, Ms. Eberle looks for basic, entry level positions that do not require much training. (Id., p. 15) Ms. Eberle did not use a VDare analysis. (Id., p. 30)
39. From February 28, 2013 through September 3, 2013, Ms. Eberle identified five (5) positions for a Labor Market Survey, which was dated October 29, 2013. (Id., p. 15-18). Ms. Eberle agreed that it was a year between the initial case evaluation and issuance of the Labor Market Survey. During this time, she did not attempt to obtain updates regarding Claimant’s circumstances or position, and no such information was provided to her. (Id., p. 26)
40. The first position identified in the Labor Market Survey was with USCB as a full-time collector located in Archbald, PA, paying $10.00 per hour. It was Ms. Eberle’s understanding that training would be provided. The position is sedentary and requires contacting individuals regarding delinquent accounts. (Id., p. 19-20) The position was identified on February 28, 2013 but Ms. Eberle is not sure how long it was actually available. She agreed it could have been filled by March 1, 2013. (Id., p. 27-28) The sitting requirements were up to 4 hours at one time, frequently and continuously throughout the day. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
41. The second position was with Commonwealth Financial Systems as a collector, identified in April of 2013. The position is also sedentary, part-time 20 – 34 hours per week, paying $8.50 per hour. (Id., p. 20) The position was identified on April 25, 2013, but likewise Ms. Eberle is not sure how long it was actually available. It could have been filled on April 25, 2013. (Id., p. 28) The sitting requirements were 4 hours at one time, frequently and continuously throughout the day, with walking only minutes and incidentally. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable
42. The third position was with P.E.A.C.E., Inc. as a full time telemarketer, working 20 hours per week and earning between $8.00 and $9.00 per hour. The position was sedentary. (Id., p. 20-21) The position was identified on July 25, 2013, and Ms. Eberle is not aware when the position was filled. She agreed it could have been filled the next day. (Id., p. 29) The sitting requirements were up to 4 hours at one time and per day. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable
43. The fourth position was with Sundance Vacations as a telephone service representative, part-time 20 – 25 hours per week, earning $11.00 per hour. The position was sedentary. (Id., p. 21-22) The position was identified on August 15, 2013, and Ms. Eberle was not aware when the position was filled, it could have been the next day. (Id., p. 29) The sitting requirements were up to 4 hours at one time, 4-5 hours per day. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
44. The fifth position was with Research America in customer service, working approximately 33 hours per week, earning between $7.65 and $8.15 per hour. (Id., p. 22) The position was identified on September 3, 2013, and Ms. Eberle is not sure when the position was filled. It could have been filled the next day. (Id., p. 29) The sitting requirements were continuous, with rare standing and incidental walking. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable..
45. Ms. Eberle utilized the Research America job in another Labor Market Survey, and might have also used the Sundance Vacations position. (Id., p. 27) Your Honor therefore finds that neither position could be open and available to Claimant.
46. Dr. Mauthe approved all positions. Ms. Eberle testified that the positions were vocationally suitable for Claimant as they fell within Dr. Mauthe’s restrictions, they are all entry-level with paid training, and within Claimant’s geographic area. (Id., p. 23)
47. At the time of her deposition, Ms. Eberle was made aware that Claimant was actively attending Penn State. She was not aware of this at the time she conducted the Labor Market Survey. (Id., p. 23-24)
48. Ms. Eberle testified that Claimant’s earning capacity is $246.15 per week. (Id., p. 24)
49. Ms. Eberle has not looked at statistical data on where people in different areas of the country travel to and from work, either from a time perspective or a distance perspective. She agreed she does not have such statistical numbers for Claimant’s area. (Id., p. 29-30)
50. Ms. Eberle agreed that all Claimant’s past positions have been manual labor in nature, and not customer service. She essentially agreed that Claimant’s past transferrable skills essentially did not demonstrate the capacity for customer service skills or selling. (Id., p. 30-31)
51. Your Honor finds the testimony of Claimant to be credible, consistent and persuasive, and accepts the same as fact. Your Honor finds Claimant’s demeanor to be credible when he testified at hearing, and his testimony is consistent with the other credible evidence of record.
52. Your Honor finds the testimony of Ms. Eberle to be incredible, inconsistent and unpersuasive, and rejects same. Ms. Eberle took an extraordinary and excessive amount of time to conduct the Labor Market Survey, rendering it uselessly stale; ignored her ethical obligations to the injured worker; ignored the information obtained during the vocational interview; failed to obtain restrictions from Claimant’s treating physicians as she was taking orders from the insurance company despite her admitted ethical duty to the disabled person; ignored the results of her transferrable skills analysis; failed to properly conduct the transferrable skills analysis by using VDare; identified jobs in the Labor Market Survey that were not educationally or vocationally suitable for Claimant or within his geographic area; admitted she had no statistical data regarding Claimant’s geographical area; did not seek any follow-up information during the year it took to complete the Labor Market Survey; used the same positions in multiples Labor Market Surveys; agreed that Claimant does not have the capacity for customer service or selling; and was unaware of Claimant’s college class schedule and efforts to vocationally rehabilitate himself.
53. Your Honor finds the testimony of Dr. Mauthe to be incredible, equivocal and unpersuasive, and rejects same. Dr. Mauthe agreed that Claimant suffered a severe tibia and fibia fracture; ignored pertinent findings on exam; ignored Claimant’s residual functional impairments; failed to address Claimant’s work-related depression when evaluating the Labor Market Survey jobs; failed to reconcile how his imposed restrictions were within the Labor Market Survey jobs; and acknowledged that Claimant was believable and all his complaints were valid.
54. Your Honor finds that due to the work injury, Claimant is significantly limited in function, needing to change positions frequently, experiences left hip and leg pain after sitting 30 minutes and his left leg falls asleep after sitting 40 minutes; has to sit down after standing for 20 minutes; needs to lay down at times; has difficulty with stairs; and suffers from depression. He is further limited by his work injury in that he can only drive short distances. As a result, the positions identified by Ms. Eberle are not open and available to Claimant.
55. Claimant has incurred costs of litigation totaling $487.50. (C-3, attached hereto)
56. Claimant has spent 23.45 hours in litigation of this petition at $225.00 per
hour, totaling $5,276.25. (C-4, attached) Your Honor finds that Claimant’s Itemization of Attorney Fees is reasonable as to the amount of time expended and the difficulty of the work performed.
57. Claimant has a 20% Fee Agreement with Calhoon & Associates, P.C., which
Your Honor finds to be fair and reasonable. (C-1)
58. Claimant does not have any arrearages pursuant to the PA Child Enforcement
system website and his Child Support Lien Affidavit. (C-5, attached)

PROPOSED CONCLUSIONS OF LAW
1. The parties are bound by the provisions of the Pennsylvania Workers’
Compensation Act, as amended.
2. In order to prevail in seeking a modification or suspension of benefits, an
employer must either offer the claimant a specific job that it has available that the claimant is able to perform, or establish earning power through expert testimony in the nature of a labor market survey. Allied Prods. & Servs. v. W.C.A.B. (Click), 823 A.2d 284 (Pa.Cmwlth. 2003). It is Defendant’s burden to prove open and available jobs which fit into Claimant’s occupational category, and if that referral fails to result in a job, then Claimant’s benefits should continue. South Hills Health System v. W.C.A.B. (Kiefer), 806 A.2d 962 (Pa.Cmwlth. 2002). It is the employer’s burden to convince the fact finder that positions within the injured worker’s residual capacity are actually available. South Hills. Defendant has not met this burden, as the evidence does not establish that the five (5) positions identified by Ms. Eberle are open and available to Claimant, nor that they are educationally and vocationally suitable for Claimant.
Recently, in Phoenixville Hospital v. WCAB (Shoap), 81 A.3d 830 (Pa. 2013), the Supreme Court held that a Labor Market Survey (“LMS”) must contain “meaningful employment opportunities”, or jobs that are actually open and potentially available. Specifically, “the proof required to reduce or suspend a claimant’s benefits must rest upon the existence of meaningful employment opportunities, and not the simple identification of jobs found in want ads or employment listings.” To do this, the Court stated that the jobs identified in a LMS must remain open for a reasonable time to allow the claimant to apply. “If the job is already filled, it does not ‘exist’”. If these criteria are not met, then a claimant’s benefits cannot be modified or suspended by the results of the LMS.
In the instant matter, it took over a year from the initial vocational meeting for Ms. Eberle to produce her Labor Market Survey (“LMS”), containing five (5) jobs which were identified from February 28, 2013 to September 3, 2013. It is unreasonable to suggest that jobs identified 2 -10 months before the issuance of the LMS would still be open and available to Claimant, per Phoenixville Hospital. Ms. Eberle even admitted that the jobs could have been filled the day after she identified them, and she had no personal knowledge that the positions remained open and available at the time the LMS was issued. On this issue alone, Defendant’s Modification Petition must fail.
To lend further support to Claimant’s defense of the Modification Petition, Ms. Eberle also did not take all information supplied by Claimant and his counsel during the vocational interview into account when performing the job referrals. Ms. Eberle ignored Claimant’s problems with sitting for longer than 30 minutes, with driving, and his job history. Ms. Eberle admitted that all Claimant’s past positions have been manual labor in nature, and that Claimant has no customer service skills. She essentially agreed that Claimant’s past transferrable skills did not demonstrate any capacity for customer service skills or selling. She further testified that her transferrable skills analysis identified manual labor positions. Yet the LMS did not reflect the transferrable skills analysis, restrictions with sitting and driving, and Claimant’s educational and vocational background. Instead Ms. Eberle substituted “entry level positions” that did not “require much training” but required extensive sitting and driving, as admittedly no positions were available during the year long job search Claimant’s vocational category. It is very clear to Your Honor that Claimant does not have the educational or vocational background necessary for the identified positions. It is also clear to Your Honor that more than minimal training would be required of Claimant for the positions. Therefore, they are not vocationally suitable for Claimant per South Hills Health System, and cannot be used to modify Claimant’s benefits.
Moreover, Ms. Eberle did not take into account Claimant’s college class schedule when identifying jobs in the LMS. Claimant submits that his attempt to vocationally retrain himself must be considered, much like the claimant in Hardisty v. American Aluminum & Insulation, No. A-01, 1255, Appeal Board, filed May 28, 2002). In Hardisty, the claimant was engaged in retraining through OVR, and the defendant was required to show that the jobs identified in the LMS accommodated the training. Such a ruling still prevails, in spite of Act 57. Burgess v. W.C.A.B. (Plaza Foods), 149 Pa.Commw. 13, 612 A.2d 542 (1992). Per the applicable law, Claimant’s class schedule must be accommodated and the LMS failed to do so. There has been no indication that the prospective Employer’s would permit a flexible work schedule so that Claimant could attend his college classes.
Further, the evidence presented establishes that all but one (1) position is outside of Claimant’s geographical area. Claimant provided undisputed, competent and convincing testimony that four (4) of the identified jobs were over 40 miles, one way. Claimant also provided competent and convincing testimony that he cannot drive such distances due to his accepted work injuries. The only position that Claimant would be able to drive to was with Sundance Vacations. However this position was not established as open and available (see above) and it, along with the Research America job, were used in other LMS for different claimants, rendering them invalid. Ms. Eberle even admitted that she had no statistical data regarding Claimant’s geographical area. The Courts have further consistently acknowledged and substantiated these work-related driving requirements. Open and available jobs must be within reach of a claimant’s current residence. Motor Coils v. W.C.A.B. (Bish), 853 A.2d 1082, 1086 (Pa.Cmwlth. 2004) As a result, the geographical and driving issues further support a denial of Defendant’s Modification Petition.
Further, Dr. Mauthe’s opinions cannot be relied upon, as they are equivocal, incompetent and unpersuasive. Dr. Mauthe acknowledged the seriousness of Claimant’s work injuries and expressed belief in his subjective complaints. He acknowledged that Claimant was not malingering. Dr. Mauthe also imposed significant restrictions on standing, driving, lifting and walking, yet somehow sitting restrictions were absent, despite Claimant’s believable and valid subjective complaints. Yet, he “approved” the job descriptions provided by Ms. Eberle, in spite of his restrictions and the seriousness of Claimant’s work injury, and also without taking into account Claimant’s accepted, work-related depression. In looking at these approved jobs restrictions, Your Honor notes that there is no indication of job modifications to accommodate Claimant’s restrictions and work-related disability and need for significant on-the-job training.
Finally, Defendant has failed to prove there was no work available with the time-of-injury employer. This is a pre-requisite to meeting Defendant’s burden of proof. Prior to seeking a modification or suspension of benefits based on earning power, if a specific job vacancy exists with the employer, which the claimant is capable of performing, the employer must offer the claimant the position. Regulation 123.301(a) The employer’s obligation to offer a specific job vacancy to the employee commences when the insurer provides the notice to the employee required by Section 306(b)(3) of the Act, [77 P.S. 512(b)(3)] and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. Regulation 123.301 (b).
6. Section 440, 77 P.S. 996, provides that reasonable counsel fees are to be
paid by the defendant in a litigated case, unless the defendant meets its burden of establishing facts sufficient to prove a reasonable basis for the contest. Drayton v. W.C.A.B. (Fruehauf Corp.), 551 A.2d 680 (Pa.Cmwlth. 1988). In the instant case, Defendant has failed to meet its burden of proof, as outlined fully above. Defendant filed its Modification Petition based on outdated vocational information; jobs which were not open and available, as required by law; that were not within Claimant’s vocational, occupational and geographic area; and with no competent medical opinion supporting that Claimant could perform the identified jobs. Accordingly, Defendant is to pay Claimant’s attorney fees for unreasonable contest as outlined in Finding of Fact No. 58.
Respectfully submitted,

_________________________________
Ronald L. Calhoon, Esq.
Calhoon & Associates, P.C.
I.D. No., 53667
2411 North Front Street
Harrisburg, PA 17110
(717) 695-4722
Counsel for Claimant
Injured Worker

Date: June __, 2014

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THEY WILL EAT YOU UP IF….

I hired Tom Cook of Calhoon & Associates to represent me in my Workers Compensation battle.
If anyone ever gets to Work Comp, don’t try to work it yourself, they will eat you up.
Tom Cook went well beyond the expectations that we imagined could help me. Tom is a very hard working lawyer, very dedicated to helping his cliants, and is a true go-getter and not afraid of any battle.
If you need a determined pit bull to guard you and your workers comp claim, look nowhere other than Calhoun Assoc, and ask for Tom Cook. He is absolutely fantastic.
Tom keeps in constant contact with you, and is never too busy to take your phone calls with questions or concerns, and will ALWAYS call you back in super quick response time.
Even after my claim was settled, Tom has kept contact with me, and has often said, “I work for you”, so no question is ever un-important, or wrong. He siad that often, and backed up everything he has told us.
Not only was Tom there for myself, but welcomed my wife to all meetings, hearings, and urged her to free free to ask him anything. He becomes part of your family, and wants to win for you more that you will ever inagine. He is just the best !!!
I have told many friends, etc about Tom Cook, and will continue to promote his services until the day I die, because he truy deserves that respect.
Tom also took the time to introduce us to his boss, Mr Calhoun, and it was obvious that this firm is a true TEAM that you want to work for you.
Tom Cook – that is all you need to know !!
Michael Hallman Harrisburg, PA

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I would rate his services a….

I hurt my shoulder at work and went to their doctors and had surgery for a torn rotator cuff and bone spurs and was sent back to work in 8 weeks in a secure juvenile detention center. 6 months later the pain in my shoulder was unbearable. I contacted Ron and went to see an orthopedic doctor he recommended. I had a full thickness tear and a hole in my rotator cuff and the comp Dr. never removed the spurs. After a second surgery that included screwing anchors into the bone to hold my shoulder together I was on my way to recovery. Ron was there for me every step of the way through almost 2 years of therapy and dealing with the insurance company. He answered every email and call sometimes well after business hours. He negotiated a more than fair settlement and gave good advice throughout the negotiations. I would rate his services a 10 OUT OF 10! Robert P Wiles-Barre, PA

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Chronic Pain Can Harm Your Brain

Many of our Pennsylvania Workers’ Compensation injured workers suffer from chronic pain. This means that their pain is unrelenting and can be described as a non-stop sensation of throbbing pain. Often, this condition is the result of years of medical treatment including steroid injections, physical therapy and surgery, with no relief. Northwestern University Feinberg School of Medicine recently conducted a study on people who suffer from chronic pain. The study revealed that people who suffer from chronic pain can also have trouble sleeping, are depressed, anxious and even have difficulty making simple decisions.

The researchers found that in a healthy brain, all regions exist in a state of equilibrium. When one region is active, the other regions quiet down and rest. But when someone has chronic pain, the brain never rests, wearing out neurons and altering the connections to each other. This constant firing of neurons can cause permanent damage. The emotional cortex “never shuts up.” The changes in the wiring of your brain can make it harder to make a decision, be in a good mood or even get up in the morning. The chronic pain from your Pennsylvania workers’ compensation injury could be producing depression and other abnormalities because it is disturbing the balance of your brain.

The article on the study can be found here: http://www.sciencedaily.com/releases/2008/02/080205171755.htm#.U50Hz0bPb70.twitter

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Right now, injured workers’ and their families are being targeted in the Pennsylvania Legislature!

The Pennsylvania Senate is considering House Bill 1846, which eliminates the ability of Pennsylvania physicians to personally dispense medication to their patients under the Pennsylvania Workers’ Compensation system. This is being presented to the Senate to try to protect insurance companies’ profits; all at the expense of the injured worker. Too many Pennsylvania injured workers have had their Pennsylvania workers’ compensation claims held up by the greedy insurance company who tries to avoid taking responsibility for paying claims. This includes delays in getting medication from a pharmacy or even denying the claim which forces the Pennsylvania injured worker to pay out of pocket for medications that should be covered under the Pennsylvania workers’ compensation system.

There is an urgent need for both physicians and injured workers to fight back. Do not let the greedy insurance companies come between patients and their physicians. Call or write to your Pennsylvania state senators today. Tell them to vote NO to HB 1846. It’s your Doctor, your Medication and your Health!

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I Was Afraid All Attorneys Are Evil

I was very afraid when it came time for my disability hearing, thinking that the judge would not recognize how serious my disability is. Once the hearing began, all of my fears went away; It was clear that Melissa Leininger had done her homework on me and my disabilities, and she was knowledgeable of the causes and symptoms. She presented my case to the judge in a manner that showed all medical reasoning for me to be listed as disabled. Her line of questioning on me, brought home every detail of my daily struggles, and clarified how horrible life must be for me in certain situations. She did an excellent job. Also, during the process, she gave me tips on how I could save on paying some fees; and they say lawyers are evil, Melissa was very helpful, and very pleasant. J. Green Lancaster, PA

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In Pennsylvania, a workers’ compensation insurance carrier can stop payment of temporary workers’ compensation benefits without a hearing, just by TIMELY filing a Notice Stopping Temporary Compensation (LIBC-501). There are very strict requirements regarding the time periods the workers’ compensation insurance carrier has to properly revoke a Notice of Temporary Compensation. If not timely revoked, the revocation (i.e., the Notice Stopping Temporary Compensation is invalid and a Judge will place you back on compensation very swiftly) becomes invalid and the Notice Stopping Temporary Compensation converts to a regular Notice of Compensation Payable. First, the carrier must revoke the Notice of Temporary Compensation payable within 90 days of payment of compensation. Secondly, the law requires that before stopping benefits, the Notice Stopping Temporary Compensation must be sent or filed no later than five days after the last payment of compensation. Section 404.1(d)(5)(i) provides: If the employer ceases making payments pursuant to a Notice of Compensation Payable, a notice…shall be sent to the claimant and a copy filed with the department, but in no event shall this notice be sent or filed later than five days after last payment.” If not timely, Section 406.1(d)(6) of the Pennsylvania Workers’ Compensation Act states: “If the employer does not file a notice under paragraph 5…the employer shall be deemed to have admitted liability and the Notice of Temporary Compensation Payable shall be converted to a Notice of Compensation Payable”. Generally, benefits can not be stopped under a regular Notice of Compensation Payable except by a Judge’s order after due process or by an agreement to a lump sum settlement. They cannot be unilaterally stopped just because the carrier thinks the injured worker is all better, can work, has been offered work, has fully recovered or if the adjuster has a bad hair day.

In a recent case, a Calhoon and Associates client was being paid workers’ compensation benefits per a Notice of Temporary Compensation Payable. A Notice Stopping Temporary Compensation was issued on December 6, 2013. However, the last payment of temporary compensation benefits was issued on November 25, 2013 and received on November 30, 2013.

The Calhoon legal argument before the WC Judge was that the Notice Stopping of Temporary Compensation Payable was clearly late, as it was issued more than five days after the receipt of the last payment of compensation benefits. The Liberty Mutual attorney argued that the Notice was timely because the insurance company had to wait for the employer to report claimant’s earnings in order to calculate her last temporary compensation check. Thus, Liberty Mutual urged the Judge that it had to wait until December 6, 2013 to determine if claimant was owed additional benefits. The Calhoon argument in response to this was two-fold: First, claimant did report her earnings on a timely basis; and second, the law states that “in no event” shall the notice be sent more than five days after the last check. The Calhoon team argued that the entire law sounds in equity, meaning that since the law allows workers’ compensation benefits to be cut off without a hearing, the insurance company must demonstrate “clean hands” by adhering to the letter of the law.

By decision dated May 20, 2014, a Harrisburg Workers’ Compensation Judge agreed, finding both claimant and her legal team’s arguments to be correct, and quickly awarded benefits. This is an important decision for several reasons. First, the claimant was properly awarded ongoing workers compensation benefits which she desperately needed. Second, the Calhoon Team was able to establish a significant legal precedent that the workers’ compensation law should be read as remedial legislation where the claimant is entitled to the benefit of the doubt. Finally, the Judge was interested and involved in the case and responded favorably to cogent, detailed, legal and factual arguments made by claimants’ lawyers, Calhoon and Associates.
The law firm of Calhoon & Associates represents injured workers and Social Security Disability applicants throughout Pennsylvania, including (but not limited to): Allentown, Altoona, Bellefonte, Bethlehem, Bloomsburg, Carlisle, Chambersburg, Easton, Enola, Fayetteville, Gettysburg, Harrisburg, Hazelton, Hollidaysburg, Huntingdon, Lancaster, Lebanon, Lewisburg, Lewistown, McConnellsburg, Mechanicsburg, Mifflintown, Millersburg, Milton, New Bloomfield, Newport, Philadelphia, Pittsburgh, Pottsville, Reading, Scranton, Shippensburg, State College, Sunbury, Uniontown, Washington, Wellsboro, Wilkes-Barre, Williamsport, York and all cities and towns in Adams County, Allegheny County, Berks County, Blair County, Bucks County, Centre County, Chester County, Clinton County, Columbia County, Cumberland County, Dauphin County, Fayette County, Franklin County, Fulton County, Huntingdon County, Juniata County, Lancaster County, Lebanon County, Lehigh County, Luzerne County, Lycoming County, Mifflin County, Montgomery County, Northumberland County, Perry County, Philadelphia County, Schuylkill County, Tioga County, Union County, Washington County and York County, Pennsylvania.

Calhoon & Associates
2411 North Front Street
Harrisburg, PA 17110
1-877-291-9675

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Fracking may be a fairly new concept to Pennsylvania, but a court in Texas has handed down a landmark decision involving an injured family due to Fracking. A middle-class family was awarded almost $3,000,000 (three million) against a big natural gas company. The suit arose out of complaints that the drilling site caused years of sickness, killed pets and livestock, and forced them out of their home. This large verdict is thought to be the first of its kind in the nation. The gas company, Aruba Petroleum continues to contend that they did nothing wrong that they followed safe and legal guidelines.

Environmenatlists are happy with this decision, and continue to warn of the potential dangers of living close to these drilling sites as well as working on a site. In Pennsylvania, these fracking sites are growing in numbers and Pennsylvania workers are being injured on these sites. If you are a Pennsylvania worker who has been injured while working on a drilling site in Pennsylvania, you should contact a qualified, competent and ethical Pennsylvania workers’ compensation attorney right away to protest your rights.

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Mr. Calhoon is my workers comp attorney. He always keeps my best interest in the forefront. When he became my attorney he took the weight off of my shoulders and the only thing I was instructed to do was focus on healing. Linda Q.-Harrisburg, PA 5-9-14

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We frequently receive inquires from injured workers who want to hire our law firm because they are upset with their workers comp lawyer. They feel like nothing is happening in their case, they sense their attorney is not aggressive enough, and may not know what is happening.

Sometimes, this is merely due to miscommunication. We encourage the individual to call and schedule an appointment to talk with their existing lawyer.
Some problems can be fixed with better communication and understanding.
Communication is always the key to a great outcome.

The first thing that you should do is ask your workers compensation lawyer about the procedure. In PA, you will be scheduled for pre-trial, several status hearings, hearings where evidence and testimony is actually presented, and possibly a mediation or settlement conference. When all of the evidence is in, the Judge will ask for legal briefs and the lawyers have usually 30 days to submit those. Thereafter, you can expect a decision in three months.

You should have reasonable expectations about what you may achieve. Let your lawyer know what you want after your lawyer has explained all that you may be entitled to in the long run or big picture.

Understand that a workers comp case can take months or years to resolve and make a plan. Some cases never resolve. We have some rare clients that we won compensation for decades ago and they still receive weekly compensation checks.

Don’t expect automatic updates as the workers’ comp system is slow. We do everything to speed it up when it is in our client’s best interest. Most of the work we do the client is unaware of it. An experienced workers comp lawyer that cares will contact you at each critical stage in your claim and will let you know when to appear at a hearing, what to expect at each hearing and prep you for the hearing. If you want an update, simply ask to schedule a telephone conference with your workers comp lawyer. Or just simply email your lawyer for a quick update.

Let your lawyer know if you have a problem. An experienced workers comp lawyer can put you in the best position to win your case. But you must make your concerns known.

We strongly encourage you to speak with your current lawyer before contacting our office. If you cannot continue with your existing lawyer, we will be happy to evaluate your case.

If you switch lawyers, the total maximum attorney fee in any workers’ compensation case is 20%. By changing lawyers, your attorney fee does not increase. The attorneys will have to work out splitting the 20% between them.

Attorneys do differ. They differ in their knowledge of the law, skills, competency, integrity, and the reasons why they represent injured workers. Intent matters.

To speak with one of our workers comp lawyers, call 877-291-WORK (9675) for a free consultation.

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Hospitals are dangerous places to work. According to OSHA, hospitals have almost four times the number of back injuries than other employers. The average injury rate is 1.2 injuries per 100 employees; hospitals on average have 4.4 injuries per 100 employees. Half of those injuries are back injuries. A recent study from OSHA notes that Nursing Assistants rank #1 in the United States for work-related back injuries while Registered Nurses rank #5 out of all workers. Other studies confirm these findings.
Why? A recent OSHA study found that hospital back injuries result from overexertion from lifting, transferring and repositioning patients. While mechanical devices such as Hoyer Lifts are designed to move patients safely; many hospitals don’t use them. Why? OSHA concluded that the reasons were failure to properly train staff, failure to educate patients about the safety and effectiveness of mechanical lifts and failure of management to follow through with proper implementation.
Hospitals are busy workplaces and are frequently understaffed. Nurses frequently have to resort to calling for assistance from other nurses or even trying to reposition patients themselves. OSHA studied this problem and found that it is actually 5 minutes quicker to use a mechanical lift then to try and assemble a team to move a heavy patient.
Hospitals who design, implement and follow through with safety training, proper staffing and organized follow through have seen a dramatic reduction in work place injuries. Many hospitals don’t know or don’t care and the result is a continuing huge number of work place injuries.
We have represented many in the health care field from doctors, to nurses to CPAs and we are aware of all the issues these employers try to use to confuse, obfuscate and delay the proper and prompt receipt of PA compensation benefits for work injures.

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Yes. PA Workers’ compensation insurance companies are looking for any avenue they can use to either deny your Pennsylvania workers’ compensation claim, cut off those benefits, reduce those benefits or just make you feel uncomfortable being on workers’ comp so you will settle for less than the reasonable value of your case. They are now turning to social media. A recent court case, Ferraccio v. Tek Cusine Inc., found that a worker’s compensation judge was allowed to view a video from the Claimant’s Facebook page as part of the Pennsylvania workers’ compensation case. Because of this video, the Judge felt that the Claimant’s behavior in the courtroom was contradictory and decided she was no longer credible. Therefore, the Claimant lost her Pennsylvania workers’ compensation case and was denied any entitlement of future comp benefits. You must be proactive. Increase your security on these social media sites, or deactivate the site all together. Make sure that you do not have any pictures, videos or posts that would contradict your assertion that you were hurt at work and cannot work due to your restrictions.

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Calhoon & Associates
2411 North Front Street
Harrisburg, PA 17110
Phone: 717-695-4722
Toll Free: 877-291-WORK (9675)
Fax: 717-695-4988
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Calhoon & Associates
14 North Main Street
Chambersburg, PA 17201
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Calhoon & Associates

2411 North Front Street
Harrisburg, PA 17110
Phone: 717-695-4722
Fax: 717-695-4988

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