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Trevon Landis (name changed for this summary) was injured in the course of his employment in Muncy, Pennsylvania (PA).  PMA, the workers’ compensation insurance carrier for the employer, issued a Notice of Temporary Compensation Payable (NTCP) on December 23, 2014 for Mr. Landis’ November 3, 2014 injury described as a left great toe dislocation.  The NTCP converted to a Notice of Compensation Payable (NCP) on February 3, 2015.

 

We filed a Review Petition seeking to have the description of injury amended to include complex regional pain syndrome (CRPS) of the left lower extremity and chronic neuropathic pain syndrome.  The Defendant filed Termination, Suspension, Modification and Review Medical Treatment Petitions alleging that Mr. Landis was fully recovered from his work injury as of October 28, 2015, based upon the opinions of Dr. Allardyce, who performed an independent medical examination on Mr. Landis.  The Defendant alleged that he was offered work on December 1, 2015 which he did not return to and that his medical treatment was not  related to the work injury.  Mr. Landis testified that he did return to work on various occasions after his injury occurred but that he had not worked for Defendant since July 24, 2015.  The parties agreed that Mr. Landis was offered the job in December 2015 but that he did not return because his physician had not released him to return to any work.  Tara Jordan, who worked for Defendant, testified that they would make efforts to accommodate his work-related restrictions.

 

Mr. Landis testified that he had surgery on November 13, 2014.  He testified that he continues to have constant excruciating pain in the foot and up and down his calf as well as swelling of the foot.  He underwent neuropathy treatments, electric shock treatment, laser, infrared light, aqua therapy and that he had to elevate his foot to relieve his symptoms.  He testified that the pain felt like razor blades were cutting him from his knee down to his foot, that he had cramps in his foot and that it felt like his great toe nail had been ripped off.  He has difficulty walking and avoids physical activity.  He was prescribed several medications including Lyrica, Gabapentin, Meloxicam, Tizanidine, Hydrocodone, Dulcolex, Senolax, Oxycodone and Tramadal.  He has lost 25% of the hair on his left leg at the ankle and he cannot sit or stand over 15 minutes.  Due to his altered gait, he has suffered pain in his right ankle, right shoulder and low back.  He testified he did not believe he could work in any capacity.

 

Dr. Bruce Levin testified that Mr. Landis’ pain is very severe and that he is suffering from CRPS and neuropathic pain.  Dr. Levin reported that Mr. Landis has had positive results with the spinal cord stimulator which was permanently implanted in June 2015. Mr. Landis suffered an increase in his symptoms and an onset of burning pain in January 2016.  Dr. Levin opined that Mr. Landis had surgery to repair his toe and later, hardware had to be removed which led to the development of a peripheral neuropathic injury which progressed to CRPS and that he was not recovered from his injury, in fact, he was totally disabled from same.  Dr. Levin also testified that Mr. Landis could possibly return to work to a desk job at some point in time, but not immediately.

 

The IME physician, Dr. Allardyce, testified that Mr. Landis had to undergo foot surgery which involved pinning of his great toe due to his work injury.  He later had to have a spinal cord implanted and was continuing to receive epidural injections.  He also testified that Mr. Landis was limping at the time of the IME.  Dr. Allardyce also reviewed MRI studies which showed Mr. Landis had advanced arthritis and a malunion of the previous fracture but he disagreed that Mr. Landis had CRPS and that the use of a brace and a cane that he was using could worsen the condition of varicose veins in the foot.  He further testified that it was opinion that the surgery was unnecessary and that the diagnosis of a dislocation of the great toe was incorrect and that the great toe was actually dislocated as part of the procedure.  He did not think Mr. Landis sug=ffers from RSD or CRPS and that any disability is not related to this work injury and perhaps related to a pre existing condition where he broke the same foot and toe. Dr. Allardyce was aware that Mr. Landis’ treating physicians, Dr. DiSimone, Dr. Sather and Dr. Levin had all diagnosed him with CRPS and that Dr. DiSimone and Dr. Sather also diagnosed him with chronic neuropathic pain syndrome.

 

The Judge found Mr. Landis credible as to his explanation of the injury and his symptoms and disability.  The Judge found that Dr. Allardyce, the IME physician, was not credible in testifying that he could return to work without restrictions and that he did not suffer from CRPS because he only had a limited opportunity to evaluate Mr. Landis.  The Judge found Dr. Levin to be credible in testifying that Mr. Landis was not fully recovered his work injury and that he developed CRPS of the left lower extremity and that he remains totally disabled.

 

The Judge granted Mr. Landis’ Review Petition and the accepted description of injury was amended to include complex regional pain syndrome of the left lower extremity.  The Judge denied the Defendant’s Termination, Suspension, Modification and Review Petitions.  Mr. Landis will continue to receive TTD wage loss benefits until his condition should change in accordance with the Act with Defendant being liable for payment of his related medical bills and costs of litigation.

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The PA Workers’ Compensation Insurance Company won’t return my phone calls about approving my surgery.  What can I do?

The short answer is that THEY DON’T HAVE TO. Under a wrinkle in the PA Workers’ Compensation Insurance law, Workers’ Compensation insurance companies don’t have to accept or reject a proposed surgery until the procedure has been completed. This creates a “Catch-22” for the injured worker because the doctor may not want to do the surgery until there is reasonable assurance of payment.

So, what do you do? Here are the steps:

  1. Look at the “Description of Injury” contained on the Notice of Compensation Payable (NCP) ( or, in some cases, a Supplemental Agreement or WC Judge’s Order). The NCP is a very important document  because it not only shows that a WC case is officially accepted and open; it also shows what medical bills the Workers’ Compensation insurance company is required to pay.
  2. Check and see if the proposed surgery is for that same body part described in the Notice of Compensation Payable. If it is, the Workers’ Compensation insurance company will have to pay the bill. If not, they won’t pay and the injured worker will have to file a Petition to Review the Notice of Compensation Payable.
  3. Orthopedic surgeons usually have a staff person who is knowledgeable about PA Workers’ Compensation reimbursement issues and can help you if you give them the Notice of Compensation Payable.
  4. You can seek pre-approval through Utilization Review which asks the Bureau of WC to appoint a doctor  to review your case and decide whether a proposed surgery or other treatment is reasonable and necessary.
  5. You can submit the proposed surgery through other non-WC insurance after the WC insurance issues a denial, then seek to have them reimbursed. Be careful, the other carrier might ask you to fill out a form asking you to check a yes/no box on whether the proposed surgery is work related. Don’t check either box; just write in “ WC denied”
  6. You can also ask the doctor to perform a relatively inexpensive pre-surgical procedure. Then, submit that bill to the WC Carrier. If it is refused, then file a Petition for Penalties to get the whole matter in front of a Workers’ Compensation Judge.
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What is a LIBC-750? What do I have to report to the Workers’ Compensation Insurance Company?

The Pennsylvania Workers’ Compensation Act says that an injured worker is required to report “regularly” to the WC insurance company the receipt of unemployment benefits, wages received in employment or self employment, “old age” Social Security Retirement benefits, pension and severance benefits.

Usually, the Workers’ Compensation insurance company will send the claimant a Verification Form  (LIBC-750) asking these questions.  Failure to return the completed form will result in the suspension of Workers’ Compensation payments.

The form can be confusing because the same form is used for all claimants receiving Workers’ Compensation in Pennsylvania; thus, not all of the questions may apply to each case. A good “rule of thumb” is to answer the questions simply and honestly.

Failure to report wages earned while receiving Workers’ Compensation could result in a criminal fraud prosecution.

It is very important that this form is 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, the legal team at Calhoon and Kaminsky can answer them for free. Call us at 717-695-4722.

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What is FCE? (Functional Capacity Exam)

A  Functional Capacities Evaluation (usually called an FCE) is a test which measures what you can do and can’t do AND reports on how hard you tried on the test.

Permanent restrictions are very important in a Workers Compensation case. Frequently,  injured workers  who have had surgery recover; but don’t recover 100%.  Their doctor will place temporary or permanent  medical restrictions on them  in terms of lifting, pushing , pulling, working overhead or repetitive work.

How does a doctor decide what restrictions are right? Sometimes, a doctor will request an FCE which is a test which measures what the injured worker can or can’t do in terms of physical activity. This test gives the doctor a factual basis on which to impose restrictions.

You may hear that an FCE is an “objective” test. This may be right to some extent but the quality of the test and the competence of the person administering the test can have an impact on the result. Results can vary.

It is very important that the injured worker give the FCE  full and consistent effort. The test also measures effort and the person administering the test may report that the result is “invalid” if they feel that the person being tested isn’t giving the test 100% effort. It is a mistake to try and influence the outcome by trying to out think the test. A finding that the test is  “invalid” is a polite way of saying that the person being tested is faking and not the  language you want in a report . Likewise, the injured worker should NOT try and convince the person administering the test that they are disabled or show excessive complaints of pain.

 

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The PA Workers’ Compensation Insurance Company won’t pay for my surgery.  What can I do?

The Pennsylvania Workers’ Compensation Law says that  a Workers’ Compensation Insurance Company has to pay for reasonable and necessary medical treatment from a licensed provider on its face related to the accepted injury listed on the Notice of Compensation Payable or in the Judge’s Decision.

Unfortunately, there is no pre-certification requirement. The Workers’ Compensation carrier doesn’t have to say “yes” or “no”,  until the surgery has been performed and the provider files the proper paperwork with the Workers’ Compensation insurance carrier.

What is the injured worker supposed to do?

  1. File a Petition for Penalties requesting a Workers’ Compensation Judge to fine the carrier for refusing to pay.
  2. File Utilization Review whereby the Bureau of Workers Compensation appoints an outside doctor to determine whether the surgery is reasonable and necessary.
  3. In some cases, file a Petition to Review to ask the Workers’ Compensation Judge to expand the Description of Injury in the Notice of Compensation Payable. This would be done in a case where the accepted injury is “shoulder sprain” and the treating physician wants to perform an ulnar nerve release which was caused by the original injury.
  4. Have non-Workers’ Compensation insurance pay for the surgery in the meantime. Be careful. The non-Workers’ Compensation insurance carrier may have a form to fill out which asks the patient whether or not the surgery is work related . (“ Check the box, yes/no”) The injured worker should not check either box. If you say yes, the surgery may be denied. If you say no, the defense attorney will use this against you in a future Workers Comp hearing. Don’t check either box,; write in: “WC denied”. If possible, attach a copy of the Workers’ Compensation Denial. In this way, you can get the surgery paid for, then follow steps 1 and 2 above and get the non-WC carrier paid back later.
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The answer to this depends on the status of your PA Workers’ Compensation case and your financial circumstances

  1. If you have an open Workers Compensation case with a Notice of Compensation Payable and/or a Workers’ Compensation Judge’s Order; you are generally better off getting Workers’ Compensation benefits than Unemployment Compensation. Any Unemployment Compensation you receive is deducted from Workers’ Compensation owed to you; ie, the employer gets a credit. Plus, Unemployment Compensation usually pays less than Workers’ Compensation.
  2. If you apply for Unemployment Compensation you are legally stating that you are capable of working. In some circumstances; this could hurt your PA Workers’ Compensation case.
  3.  On the other hand, applying for Unemployment Compensation is a trial run which  may expose defenses that the employer intends to use in your Workers’ Compensation case. For example, say you have an accepted WC case and medical restrictions . You return to work and you get fired. The employer claims that you had work tools in your truck and  that you didn’t present a proper medical excuse when you took time off to go to physical therapy. You think this is bogus and the the employer is simply trying to get rid of you. You may be right; the employer can try and defeat your claim to Workers’ Compensation by trying to prove that  you were terminated for cause and that any wage loss is thus your fault. Unemployment hearings are usually quicker and less formal than Workers Comp hearings. Thus, the Unemployment Compensation hearing is a way of finding out if the employer is going to fight you in the PA Workers’ Compensation case.
  4. If you don’t have an open Workers’ Compensation case and have filed a Claim Petition seeking payment of Workers’ Compensation benefits; filing for Unemployment may make sense if you need the money to survive. The average Workers’ Compensation case takes about a year to litigate. Unemployment Compensation is usually much quicker. Thus, Unemployment Compensation can be an important source of benefits even if the employer gets to deduct it from Workers’ Compensation they have to pay you  a year down the road.

You should to talk with an experienced WC attorney in your PA Workers’ Compensation case to make sure you are getting the right advice and making a good decision.  The legal team at Calhoon and Kaminsky will discuss your case with you and provide you a free evaluation of your PA Workers’ Compensation case.  Contact us at 717-695-4722.

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SUMMARY OF EPISODES  1-6

Barbara Smith was seriously injured at work on January 16, 2015. A “Medical Only” Notice of Compensation Payable listing only some of her injuries was issued by the WC carrier for ACME, Bridge Claims Management. Then , on January 18, 2015 a Notice of Temporary Workers Compensation Payable was issued saying that Workers Compensation would be paid to Barbara at the rate of $600 per week based on her Average Weekly Wage of $900 per week for  a period of 90 days ending April 16, 2015.  Barbara’s boyfriend Todd called the adjuster on March 28 and called him a moron for not paying for Barbara’s back surgery. (The back injury is not listed in the Description of Injury on the Medical-only NCP or TNCP). The Adjuster wasn’t happy at being yelled at by Todd and on April 5, 2015 issued both a Denial of the January  16, 2015 Workers Compensation Claim and a Notice Stopping  Temporary Workers Compensation. Barbara’s WC checks and WC medical  benefits both stopped.

EPISODE 7 – 

  1. The Denial states that the claim is denied because “… The Claimant did not sustain an injury within the meaning of the WC Act   and for other good cause shown. “  Is this Denial legal when it is obvious that Barbara was injured on January 16  at work ?

Answer: Yes. The WC Insurance Company can deny a WC claim for any reason they want. The only recourse for Barbara is to file a Claim Petition. If she can show that Bridge Claims Management had NO reasonable defense, she can request that Attorneys Fees be paid.

  1. Does the fact that the real reason that George Mahoning, the WC Insurance Adjuster , denied the claim because Barbara’s  boyfriend Todd called him a “moron” relevant?

Answer: No.

It is not a good idea to yell at adjusters. It is like being really rude to a waiter or waitress in a restaurant.

  1. Can the Notice Stopping  Temporary Workers Compensation actually stop Barbara’s WC payment?

Answer: Yes and No

Yes, The Notice Stopping Temporary  WC will end Barbara’s weekly WC check for now because it was issued within the 90 day period. ( Note that the Notice Stopping  Temporary Compensation must be issued with 5 days of the last check to be effective)

No, the Notice Stopping  Temporary WC will not end medical payments for the Accepted parts of Barbara’s injuries.  ( The eye and  hand/arm as listed on the Medical Only NCP and not the back injury which wasn’t listed) Once WC injuries have been Accepted on a non-temporary basis; a Denial does not legally stop them. The Denial and Notice only are effective if the injuries were Accepted by TNCP only. If Bridge Claims Management refuses to pay for reasonable and necessary medical treatment for injuries  listed on the Medical Only NCP; Barbara can file a Petition for Penalties and request that a Penalty of 10% – 50% be awarded

  1. What does the word “Accepted” mean?

Answer:  In workers’ compensation, a claim is not legally accepted until a Notice of Compensation Payable, an Agreement for Compensation (a special form), a Supplemental Agreement or a Judge’s Order are issued.  The word “Accepted” is like being married, it is final, legal and binding until there is a legal change.

 

It is important to understand that workers’ compensation is NOT Accepted if:

  1. Medical bills are paid;
  2. Wages are paid instead of workers’ compensation;
  3. A claim number is issued; and,
  4. The employer says in writing that workers’ compensation will be paid.

 

There is no binding marriage unless there is paperwork.  There is no official binding workers’ compensation claim until there is a an NCP, an Agreement or Judge’s Order.

 

5.Why should I care if the proper workers’ compensation paperwork is issued, I am getting paid?

Answer:  If three (3) years go by without an  NCP being issued, the workers’ compensation claim may be over.

 

Questions?  Call or e-mail Matthew Kaminsky or Thomas Cook at Calhoon and Kaminsky PC, 717-695-4722.

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What is a “Suspension” of PA Workers’ Compensation?

In Pennsylvania Workers’ Compensation; the term “ Suspension” means that the injured worker is still suffering from the work injury but is not entitled to payment of wage loss benefits ( weekly check). Medical bills can still be paid by the Workers’ Compensation Insurance Carrier. A Suspension of Benefits can be reopened by either a signed Supplemental Agreement or the Order of a Workers’ Compensation Judge on a showing that economic circumstances  have changed. This should be done within three years of last payment of weekly WC or 500 weeks ( 9 ½ years) depending on the circumstances.

There are multiple reasons why WC Payments  can be suspended:

  1. REFUSAL OF REASONABLE MEDICAL TREATMENT: Insurance Companies threaten this all the time. It can only actually happen if: The WC carrier files a petition, and a Workers’ Compensation Judge rules that objectively speaking, the proposed medical treatment has a reasonable chance of returning the injured worker to the work force.  Note that this is an objective standard not a subjective standard. In other words, the refusal must be based on facts and not the Injured Worker’s own opinion or prejudices ( I don’t want surgery because another surgeon cut off my sister’s leg by mistake). Both sides get to present medical evidence to the Judge in a case like this.
  1. THE INJURED WORKER HAS RETURNED TO WORK AT NO LOSS OF WAGES: There is a 20 day Trial Return To Work period if the Workers’ Compensation Insurance Carrier files the right paperwork once the employee returns to work. If the injured worker files a Challenge to the Return to Work Suspension WITHIN 20 days, Workers’ Compensation benefits are automatically reinstated. If the injured worker goes off work due to the work injury after the work injury; the Claimant has to file a Petition to Reinstate  and lifting the Suspension is not automatic.
  1. TOTAL DISABILITY FROM A NON WORK RELATED CONDITION: For example; the injured worker is disabled from doing his/her job due to a hand injury and now has cancer that is totally disabling.
  1. FAILURE TO FOLLOW SPECIAL RULES: 1) Failure to fill out and return Bureau Reporting Forms about income and medical conditions sent by the WC Insurance Company.  2)Failure to comply with an order to attend an IME.
  1. INCARCERATION AFTER CONVICTION: Just what it sounds like, you don’t get Workers’ Compensation if you are a Guest Of The State.
  1. A FINDING BY A WC JUDGE OF EARNING POWER AFTER A VOCATIONAL INTERVIEW, LABOR MARKET SURVEY AND A PETITION FOR MODIFICATION OR SUSPENSION FILED BY THE WC INSURANCE COMPANY: Prior to pro-employer changes in the law in the 1990’s; Workers’ Compensation Insurance Companies had to prove that an actual job had actually been offered to the injured worker in order to reduce or suspend weekly payments. Now, the Workers’ Compensation Insurance Company can file a Notice of Ability to Return to Work, require a so-called Vocational  Interview and then file a Petition to Modify or Suspend WC benefits on the basis of paper jobs which might be available to the injured worker.  The Workers’ Compensation Insurance Company does not have to prove that such  jobs actually exists or, if they do, that the injured worker would be hired.
  1. VOLUNTARY WITHDRAWAL FROM THE WORKFORCE: An injured worker should never say: “No way in heck I’m going back to work. No way in heck anyone is going to hire me. I’m done with this rat race, I’m not going back at this point due to my age, limited skills and my work injury”. This may all be true. But if you say it out loud, your weekly WC check can be suspended.
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A Minor under the age of 18 does not get less in PA Workers Compensation if hurt at work.  They are entitled to the same benefits as an adult would receive.  In fact, a Minor may in some circumstances receive more compensation.

Section 320 a of the Pennsylvania Workers’ Compensation Act states that a Minor employed in violation of ANY laws of the Commonwealth; the minor is entitled to an addition 50% of the Workers’ Compensation wage loss benefits which would be payable if the minor is legally employed.

The extra 50 percent is paid by the employer, not the Workers’ Compensation Insurance company.

In practice there can be complicated questions of whether the employer has a legally issued employment certificate under the Child Labor Law or an age certificate issued by a school.

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Below is a list of things that should be considered by an injured worker before their PA Workers’ Compensation Compromise and Release (Settlement):

  • The Value of Future Medical Coverage for your Work Injury: Do you really know what treatment for your work injury is going to cost?
  • Future Medical Coverage for your Work Injury: Are you are giving up your medical coverage because your spouse has good medical coverage? What if your spouse loses his/her job?
  • Social Security Disability: Is there language in the Compromise and Release agreement that protects SSD by prorating the lump sum over your expected lifetime?
  • Medicare: If Medicare has paid for PA Workers’ Compensation related medical bills, they may want that money back. If you are settling your  Workers’ Compensation medical coverage, you may need Medicare’s permission through an approved Medicare Set Aside. If you don’t get one; in certain circumstances, Medicare can come after you.
  • Welfare Lien:  If Public Assistance ( Pennsylvania Department of Human Services) has paid cash assistance and/or medical expenses; they are entitled to that money back although the amount of the repayment can be negotiated.
  • Child Support: If you owe Child Support; it comes off the top of any Workers’ Compensation settlement.
  • Third Party Subrogation: If you sue a third party ( not your employer or co-employee); the Workers’ Compensation Insurance carrier is entitled to money back although that subrogation interest can be waived if negotiated before the Workers’ Compensation case is settled.
  • Bridge Loans: if you borrowed money against your Workers’ Compensation case; that Lender is going to be entitled to money back.
  • Future Workers’  Compensation Medical Bills: If your Compromise and Release Agreement (Settlement) leaves medical open for payment of bill reasonable and necessary related to your work injury  will your attorney agree to help you get those paid?  For free?
  • Annuities: If your WC settlement is being paid over a period of years, what happens if the annuity company goes bankrupt and refuses to pay?
  • Are You Getting the Correct Legal Advice from Your Lawyer? How do you know?  Have you even discussed settlement/your case with and attorney?

An ethical and experienced PA Workers’ Compensation attorney can help walk you through the Compromise and Release (Settlment) agreement process, and make sure that you receive the best possible settlement, if settlement is in your best interest.

If you are or may be receiving Social Security Disability benefits, it is very important to understand how these benefits interact with workers’ comp wage loss benefits and how to potentially maximize both.

The law firm of Calhoon & Kaminsky represents injured workers throughout Pennsylvania.  If you have questions about your PA Workers’ Compensation Compromise and Release (Settlement) call and speak to an attorney for FREE, 717-695-4722.

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