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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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Attorney Matt Kaminsky of Calhoon and Kaminsky P.C. is the recipient of AVVO’s 2017 Client Choice Award.

AVVO has recently awarded to Matt Kaminsky, it’s 2017 Client Choice Award.  This award is given to attorney’s who receive 5 for more 4+ Star Reviews in a calendar year.

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Regular Session 2017-2018, House Bill 18 is attempting to amend the Workers’ Compensation Act.   The Sponsor of this Bill is Ryan Mackenzie from District 134 serving Berks and Lehigh Counties.  If this Bill is passed and the Workers’ Compensation Act is amended, it will have devastating effects on Pa’s Injured Workers’ rights to the medical care they need.  This Bill will limit the injured worker’s treating doctor from prescribing the medications that he believes is needed for the injured worker and subject those prescriptions to even greater scrutiny by putting in place a evidence-based drug formulary.

This Bill is being pushed as trying to reduce the “opioid abuse and addiction” stemming from the Pennsylvania’s Workers’ Compensation program.  It appears to be yet another way the Insurance Company Lobbyists are trying to take treatment away from an injured worker and reduce what the Insurance Companies and Employers have to pay.  To further support this you only need to look to the proposed Bill Section VIII, in which it requires after 18 months from this Bill being put into law, the amount of money being saved is to be calculated then reported and subsequently “the amount of savings shall be used to provide an immediate reduction in rate, equal to the savings, applicable to Employers’ Worker’s Compensation Policies”.

By introducing an evidence-based drug formulary, it will put all Injured Workers in a set box with only certain allowable prescriptions.  Simply put, if your work injury case is at all outside the box then there is good chance you won’t be able to get the prescriptions you need.  This doesn’t benefit Injured Workers but rather further limits their treatment options.

If your treating doctor still prescribes the medications which he feels are required then it subjects your treatment provided by him to a Utilization Review.  These Utilization Review Organizations will have no choice but to abide by these “amended rules” of evidence-based drug prescription making it more difficult for the doctor to give you the treatment you need and deserve for your work injury.

All Injured Workers have everyone you know call your State Representative to vote “No” for House Bill 18.

For those Claimant’s Attorneys reading our blog, The Memorandum from the Bill wants there to be continual updates to the drug formularies from new research as new evidence indicates a particular drug is appropriate for the injured workers diagnosis.  I can see similar issues developing here as it did with IREs and Protz.  We will have to remain vigilant to protect our client’s rights.

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Test your knowledge with our Newsletter Trivia

Don’t miss your chance to win a Visa gift card.  Send us your trivia response by June 30, 2017.

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A machine operator from Mechanicsburg, PA, sustained a work injury while working for a local warehouse, in June 2012. The insurance carrier, New Hampshire Insurance Company, issued a Notice of Compensation Payable accepting the injury as a lumbar sprain/strain.  The injured worker had to undergo surgical intervention performed by Dr. Grandrimo.  The insurance carrier had the injured worker attend an IME in 2014.  Dr. Kline, the IME physician, reported that the actual work injury was a left L3-4 disc herniation, status post operative decompression and resolved chest sprain/strain.  He reported that the injured worked had not obtained full recovery and that he had reached maximum medical improvement and that his prognosis for full recovery was poor. The insurance carrier then had the injured worker attend another IME in 2015 with Dr. Kline.  He again reported that the injured worked had not obtained a full recovery.  The case ultimately settled via a full Compromise and Release for $175,000 for the injured workers’ wage loss benefits.  The injured worker was a Medicare beneficiary and therefore the insurance carrier agreed to fund a Medicare Set Aside approved by Medicare in the amount of $528,881 to pay for the injured workers’ future medical treatment related to his work injury.

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Summary to date:

 

Barbara Woods injured her back, eye and arm at work.  The workers’ compensation insurance company agreed to pay medical bills for some of her injuries and temporarily paid weekly workers’ compensation.  The payment by a Notice of Temporary Compensation Payable was revoked (stopped). She hired Attorney Matt Kaminsky who filed a Claim Petition.  Todd, her boyfriend, then calls Matt to find out what happens next.  Matt first checks with Ms. Woods to make sure that she authorizes him to speak with Todd.  Matt then explains the next step in the case to Todd.

 

Definition of terms:

 

Defense Attorney – The opposing lawyer who represents the employer and the WC insurance company.

Claim Petition – a special form which contains all the important aspects of Barbara’s claim.

Appearance – an attorney registers with the Judge in a particular case,

Service – mailing copies of all official documents filed to everyone listed within the claim. (The claimant, employer, defense attorney, insurance carrier)

Answer – A response filed by the attorney for the insurance company (defense attorney)

Bureau – the Bureau of Workers’ Compensation in Harrisburg, PA.

 

The Claim Petition is filed electronically through the Workers’ Compensation Automation and Integration System (WCAIS).

Here are the requirements for logging on to WCAIS and filing a Petition.

 

  1. An attorney or a Claimant can enter their appearance by listing the date of injury and social security number, or the WCAIS number and date of injury.
  2. An attorney can enter their appearance for Claimants.  This was done in Ms. Woods’ case.
  3. Once an appearance has been entered, the attorney is able to access the official documents which the adjuster has filed with the Bureau.  From this location, Attorney Kaminsky is able to file Petitions in the case. There are other petitions other than a Claim Petition which can be filed, such as a Petition for Reinstatement, Petition for Review, Petition for Penalties and Petition for Review of a UR Determination.  We will be discussing these Petitions in future chapters.
  4. It is very important that the attorney notify all of parties listed in the case.  A copy of the Petition and the Certificate of Service is available within WCAIS for serving all of the parties.

 

Once the Claim Petition is filed, the Petition section of the Bureau of Workers’ Compensation assigned the Petition to a Workers’ Compensation Judge.  Petitions are signed to Judges based on the Claimant’s county of residence in Pennsylvania.

Barbara will receive different forms from the Bureau of Workers’ Compensation including an Assignment to Judge and a Hearing Notice.  Once the Petition is circulated to the insurance company, the attorney for the insurance company has 20 days to file an Answer.  These are usually boilerplate meaning that the defense attorney denies everything in the Claim Petition.

Barbara’s case has now been assigned to WC Judge Smith.  He is a civil service employee hired by the Commonwealth of Pennsylvania.  Neither Barbara nor ACME can request a change of Judge unless there is a very good reason.  A Pre-trial hearing has been scheduled to occur in Harrisburg, PA.  Barbara, Attorney Kaminsky and the defense attorney attend.  Sometimes, the employer shows up.

There are usually at least three hearings in the average workers’ compensation case.  1)  A pre-trial hearing for the Judge to set up the schedule / time table of the case.  2) A second hearing four to eight weeks later for Barbara to testify.  Both Attorney Kaminsky at Attorney Gunstadt (attorney for ACME) will be asking questions.  3)A third hearing is usually a final hearing for testimony from any employer witnesses.

In the meantime, Barbara has 90 days from the first hearing to submit evidence from her doctor.  The attorney for ACME has 90 days thereafter to submit medical evidence from their doctor.

There are rules and deadlines involved which are contained in the Special Rules of Practice and Procedure before WC Judges.  Although WC is supposed to be a prompt and non technical source of payments for workers’ injured on the job; in reality, the average WC case takes a year to litigate and be decided measured from the date the Claim Petition was first filed.

In addition, Judge Smith will have special rules of his own on how he wants cases handled in front of him.  Thus, WC litigation involves complicated law, rules, regulations and directions.  It is like football.  You don’t just kick the ball and run down the field.  There are rules to it.

 

NEXT:  Getting ready for the pre-trial hearing!

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Should I have recorded the IME or brought a witness?

This is a common question – how to approach IMEs.

A couple of basics:

There is no such thing as an IME. The term “IME” does not appear in the Workers Compensation Law. The proper term is “ physician legally authorized to practice…who shall be selected and paid for by the employer”

People who use the term IME are wrong.

Maybe “PLATPWSBSAPFBTE” is too hard to say, although “employer’s medical exam ( EME) would be just as easy to say and more accurate.

More likely, insurance companies want you to think that the exam is somehow independent and objective,

Which it usually isn’t.

But sometimes is.

Tape recording of an EME is a mistake because:

  1. The EME doctor will do a better job of examining you and it will be harder for your lawyer to cross examine him/her,
  2. There are complicated laws on the topic, and
  3. The WC Judge probably won’t be impressed.

You can bring a witness only if they are a licensed medical professional such as a nurse or doctor.

 

Some background.

There are generally three types of  EME doctors:

  1. The hired guns who will say anything for a price
  2. A working physician who needs extra income because he or she has a child in college or is paying a lot of alimony.
  3. A retired or disabled doctor who can’t practice. ( These can be the hardest category of EME doctor for your lawyer to deal with).

 

We here at Calhoon and Kaminsky know the  players in the  Work Comp system and can tell whether a  EME doctor is #1, #2 or #3. It is important to know this  because it changes your approach.

If you have an EME coming up with a #1 doctor; you will want to minimize pain and symptoms because a #1 doctor will give you a Waddell Test/Blankenship Inventory which will be used to say you  are faking. You will, as in all EMEs, will want to  give full and consistent effort. And, you will want to promptly have the same tests performed by your doctor to see if there are different results.

The worst doctor  knows more medicine than the best lawyer. And #1 EME doctors are professional and convincing actors- they can testify really well. A #1 EME doctor can be tripped up on the history ( which they frequently don’t know well ) or when they have a nurse perform the tests and then testify that they did it.

Your approach to a #2 or #3 doctor should be very different depending  on who it is. These are real doctors ( especially category #2) and they sometimes will side with the injured worker rather than the insurance company. It happens. Not too often, but it does happen. It never happens with a #1 doctor who, at most, will occasionally say that a claimant is only partially disabled.

 

Remember that the EME itself is not important. It is the WC Judge’s reaction to the EME which counts. And, WC Judges have different opinions on this.

One WC Judge has an excellent memory and keeps track of what a #2 doctor said in every case before him. That doctor would always say that a spinal disc was ruptured when testifying for a patient and would testify that the same type of disc was only bulging when testifying for the insurance company. Result? That WC Judge never believed what that doctor testified to in any case.

The WC Judges vary widely in terms of their background, approach, opinions and temperment.

It is very important to know which Judge you will or may get BEFORE you undergo an EME

 

If you find any of this confusing, give us a call and we will advise you at no cost. The law firm of Calhoon & Kaminsky represents injured workers 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 we can arrange for meeting locations at law offices throughout the State.

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The word “credibility” is frequently used in Workers Compensation cases. It is not defined in the law itself. It is the single most important part of any WC case involving any issue, big or small, wage loss or medical bills.

So, what is it?

First, some background. Under PA WC law, WC Judges are the Finders of Fact”. This means that they have the power and the duty to decide the true and correct facts in every WC case.

Some examples of the facts which may be decided by a WC  Judge:

  1. Did an injury happen?
  2. Was the injury caused by work?
  3. What is the correct diagnosis?
  4. Did the injured worker tell the employer about the injury on a timely basis?
  5. Did the injured worker’s doctor support claimant’s version of what happened through believable medical testimony?
  6. Is the claimant’s testimony about the injury and disability believable?
  7. Is the doctor’s opinion supported by medical tests or exams?
  8. Did the doctor know enough about the claimant’s history to give an accurate opinion about the work related nature of the injury?
  9. Is the employer believable about the existance of light duty work?
  10. Were there harmful conditions in the workplace?

 

In any WC case, there are going to be major disagreements and conflict on most issues like these.

For example:

  1. The doctor for the injured worker will testify that the disability results from the work injury. The IME ( employers medical exam) doctor will testify either that there is no disability or that the disability results from something other than the work injury.
  2. The employer will testify that there is light duty work available. The claimant will testify that there was no work available or that it wasn’t within the claimant’s restrictions.

Thus, the Judge has to decide which witnesses to believe in every case.

How do  Judges decide these issues?

Tom Cook, Senior Attorney at Calhoon and Kaminsky, was the Director of the PA Bureau of Workers Compensation  for 3 ½ years. It was his job to supervise the entire PA Bureau of  Workers Compensation. As part of his job, he wrote the Civil Service Examination for prospective WC Judges and hired over 25 WC Judges. Tom says that the WC Judges decide questions of Fact largely based on credibility which means which witness they believe.

In assessing the credibility of a medical witness, the WC Judge will look at experience, credentials, reputation, whether they frequently testify for claimants or insurance companies, their knowledge of medicine, their knowledge of the particular claimant’s case, their reliance on objective testing and the outcome of their treatment.

In assessing the testimony of a claimant, the WC Judge will look at the work record of the claimant, how long they worked at this job, how many injuries they have had, their pre-existing medical condition, whether the injured worker was an employee in good standing, whether the claimant tried to return to work and whether the client did everything they could to get better.

There is an important aspect of WC law to consider: The overall approach of the WC system is more employer oriented than it used to be. Increasingly, WC Judges view WC as a privilege to be earned, not a right. Thus, in the eyes of some WC Judges, a claimant has to DESERVE Workers Compensation. Credibility- whether the Judge likes  and approves of a claimant is very important.

The opinion of the WC Judge on which witnesses he or she believed as contained in the Findings of Fact cannot be overturned on appeal. The WC Judge has complete and final power under the Law to decide credibility issues. If the  Claimant brings in five doctors and the employer brings in one doctor; the WC Judge has the power to believe one doctor over five. For this reason, appeals from a WC Judge’s decision are very difficult to win.

If you have suffered hearing loss due to an traumatic accident at work or long-term exposure, you may be eneitled to Pennsylvania worker’s comp benefits.  Contact our an experienced Harrisburg Worker’s Compensation Lawyer at Calhoon and Kaminsky at 717-695-4722.  Be sure to order a FREE copy of our book,  7 Deadly Sins That Can Destroy Your Pennsylvania Workers’ Comp Case.

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Fred Xavier (name changed for this summary) while working for Defendant in June 2014, sustained an injury to his right knee.  Inservco, the workers’ compensation insurance carrier for the employer, issued a Notice of Compensation Payable and the injured worker received wages in lieu of workers’ compensation.  Mr. Xavier’s injury was accepted as a “right knee medial meniscus tear”.

We filed a Review Petition seeking to have the description of injury amended to include an aggravation of underlying arthritis requiring a right total knee replacement.  Defendant filed a Termination Petition alleging that Mr. Xavier was fully recovered from his injuries based upon an IME performed by Dr. Cooper.

Mr. Xavier testified that he was continuing to work for the employer even though he continued to have pain and swelling in his right knee and that he has undergone two surgeries and several injections.  Mr. Xavier was advised by his doctor, Dr. Kutz, that he should have a total knee replacement and that he does not believe that he is fully recovered from his work injury.  The Judge found Mr. Xavier to be credible.

Dr. Kutz testified that he performed the surgeries to repair Mr. Xavier’s meniscus tear and that during the first surgery, he found evidence of arthritic changes in his knee.  After surgeries and injections, Dr. Kutz continued to treat Mr. Xavier and felt that he was suffering from continued aggravation of his arthritis and recommended he undergo the total knee replacement.  Dr. Kutz testified that Mr. Xavier is suffering from advanced osteoarthritis of his knee which was aggravated by his work injury and that the surgery is related to same.  He also testified that Mr. Xavier was not fully recovered from his work injury.  The Judge found Dr. Kutz to be credible.

The IME physician, Dr. Cooper had testified that Mr. Xavier did not have any problems with his knee before the injury occurred and that he had to undergo surgery to repair his meniscus and after attending physical therapy he underwent a second surgery to his knee.  Dr. Cooper had reviewed MRI’s of Mr. Xavier’s knee which showed he had arthritis dating back to 2009.  Dr. Cooper had testified that Mr. Xavier’s need for a total knee replacement was not related to the work injury and that the work injury did not aggravate his underlying arthritis.  The Judge found Dr. Cooper to be incredible.

The Judge granted Mr. Xavier’s Review Petition and the description of injury was amended to include an aggravation of underlying arthritis requiring a total knee replacement.  The Judge denied Defendant’s Termination Petition.  Mr. Xavier’s medical bills relating to this arthritis and total knee replacement are now the responsibility of Defendant.

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Tom Cook celebrates 5 years of having been recommended by peers and selected by Martindale-Hubbell for their highest possible rating, the AV Preeminent rating. Less than 1% of attorney’s have achieved this impressive milestone.

This rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney such as Tom Cook has been reviewed and recommended by his peers.

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PA Workers’ Compensation law provides that an employer / insurance carrier may request an impairment rating evaluation (IRE) after an injured worker has received 2 years of workers’ compensation payments.  If the IRE rating is 50% or more, workers’ compensation payments continue as they are.  If the IRE rating is less than 50%, the injured worker at that point receives a maximum of 9.5 more years of workers’ compensation weekly checks.  The IRE does not impact the payment of medical benefits.

Note the confusing initials:

IRE – Impairment Rating Examination – impairs duration of workers’ compensation checks.

IME – Independent Medical Examination – employer’s medical exam – this could impact both weekly checks and medical bills.

 

It is very rare for IRE ratings to be more than 50%.  Thus, most IREs eventually mean that injured workers are looking at a maximum of 9.5 years / 500 weeks.

The IRE which in most cases limits workers’ compensation payments to 9.5 years and could be then followed up by an IME.  If the IME doctor concludes that the injured worker has fully or partially recovered from the work injury; the workers’ compensation insurance carrier can then file a Petition to Modify, Suspend or Terminate the 500 week payment.  In other words, the IME and the IRE can be used together or one at a time to try and cut off workers’ compensation payments.

An injured worker does not have the right to choose the IRE or IME doctor.  The injured worker can challenge an IME or IRE with their own doctor’s opinion.

If you have received a Notification for an IRE or IME, Call Calhoon and Kaminsky at 717-695-4722 for a FREE consultation to find out your rights.

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