Nurse Case Managers: Injured Workers Beware

By: James R. Burn, Jr.

Earlier this year, I posted a caution about the concerns of signing blank medical authorizations for insurance carriers. Another concern is the insurance carrier sending a nurse case manager with you to your medical appointments. Case managers have a reputation for lobbying doctors against work restrictions.

In other words, if a doctor treating you thinks you should be restricted to sedentary work, the case manager may advocate to the doctor that light or medium duty work is more appropriate. This makes it more likely that a case manager and an insurance adjuster will attempt to use these work restrictions to force an injured worker back to work at a job that is beyond their physical restrictions, hampering their recovery and potentially making the work-related condition worse.

Workers who have suffered work injuries simply want to get better. But often they need time to heal so that they can return to being employees as soon as possible. The impatience, and oftentimes shortsightedness, of the insurance company and their adjusters can hamper the ability of an injured worker to go back to work.

Insurance adjusters are trained on the law. They know every twist and turn that can lead the unrepresented, injured worker into pitfalls that they may not be able to get out of, jeopardizing their entitlement to workers’ compensation benefits.

This firm stands ready to assist anyone who feels they are being pressured back to work or their doctors are being pressured to write work releases that do not accurately reflect their level of disability.

To Apply or Not Apply? Recent Developments in Labor Market Surveys

By: Douglas A. Williams

In Pennsylvania, when an injured worker receives workers’ compensation benefits, the insurance carrier may require the injured worker to meet with a vocational “expert.” After the meeting, the vocational expert will prepare a “labor market survey.” The insurance carrier may then use that document to try to reduce or stop the injured worker’s benefits.

A recent decision by the Pennsylvania Commonwealth Court, Smith v. WCAB (Supervalu Holdings Pa, LLC), A.3d, No. 796 C. D. 2016 (Pa. Cmwlth. 2018), addressed the parties’ rights and obligations when an insurance company files a petition based on a labor market survey. In that case, the Commonwealth Court held that “a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as the claimant (injured worker) is afforded a reasonable opportunity to apply for them.” Furthermore, the Court held that the employer, and not the injured worker, bears the burden of proving all elements of the modification petition, including whether or not jobs remain available for a reasonable time after being identified by a vocational expert. Nonetheless, the Court further concluded that, “if a claimant offers evidence about his or her experience in pursuing the jobs identified in the labor market survey, that evidence can be considered on the issue.”

Furthermore, the Court explained that evidence that the injured worker submitted an application – regardless of whether such evidence is submitted by the injured worker or the employer – does not establish that a prospective job was open and available at the time that the injured worker applied. However, the Court also held, “testimony of an in person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding (that a job was open and available).” Applying that rule of law to the Smith case, the Court concluded that the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) had mistakenly held that it was the injured worker’s burden to prove that all five jobs identified in the labor market survey were not open. Likewise, the Court held that the WCJ erred in concluding that the three jobs for which the injured worker had applied, but had not been interviewed, were open and available. No evidence existed to support that conclusion. However, the Court further determined that the WCJ had properly determined that the positions with AM Guard Security – for which the injured worker had applied and been interviewed– were properly utilized by the WCJ to modify the injured worker’s benefits. The Court stated that the fact that the employee had been interviewed supported the conclusion that the jobs were open and available. Thus, it was proper to modify the injured worker’s benefits based on an earning capacity calculated on the two, AM Guard Security jobs.

Prior to Smith, most attorneys who represent injured workers would advise their clients to promptly apply for all jobs identified in a Labor Market Survey. This may still be the best course of action, but doing so may now incur additional risk. If an injured worker applies for a job and is interviewed for that job, but is not hired, the mere fact of his interview can be used to satisfy the employer’s burden of proof. Without such evidence, the employer might not have been able to satisfy its burden of proof. To receive advice on the best course of action in your case, feel free to contact our firm.


Pain Can Be a Disability

By: Susan Paczak

The United States Court of Appeals for the Federal Circuit has made an important decision about how a veteran can prove they are entitled to compensation for a service-connected disability. In Saunders v. Wilkie, the Court decided that pain itself can be a disability.

To get VA compensation the Veteran must show:

  1. they had an injury or disease in service;
  2. they have a current disability; or
  3. a connection between the injury or disease in service.

In Saunders, the veteran was diagnosed with a knee condition in service. She showed that she had knee pain after service. A VA examiner said the knee pain after service was related to the knee condition diagnosed in service, and it caused her problems with daily activities and caused her to miss work. However, the VA examiner did not find a disease or injury to the knee, just the pain. The VA denied the claim.

The veteran appealed. The VA argued that since she had knee pain after service, but no diagnosed condition, she did not have a current disability for VA purposes. The Court overruled that finding ruling that pain by itself was a disability for VA purposes.

This decision does not mean that just because you have pain from an injury or disease in service, you will automatically receive benefits. You must show that you had a disease or injury diagnosed in service, that you now have pain, and that this pain affects your daily life, including your ability to work. In other words, you still need a medical provider to verify that the pain comes from the problem you had in service and how it affects you.

If you have any questions about how this decision may affect your claim, or any other claim related issues, please call and speak to one of our veteran’s benefits attorneys.

Please note the VA may decide to appeal this decision to the Supreme Court.

The Team at Abes Baumann congratulates Tom Baumann for being selected as one of Pennsylvania’s Top Attorneys

This award identifies and highlights the accomplishments of the nation’s most esteemed and skilled attorneys in all areas of practice. Only 100 attorneys in Pennsylvania receive this honor!

America’s Top 100 Attorneys members are chosen by criteria including an attorney’s lifetime legal achievements, professional experience, significant case results and/or verdicts, peer reputation, client satisfaction, other notable honors, media notoriety, and community impact, among many other proprietary factors. This helps ensure that only the most skilled and exceptional attorneys in the community are selected for membership.

Those of us who are privileged to work alongside Tom know that this honor is highly deserved.

Tom, fellow partner Ed Abes and attorney Doug Williams have all been previously named to the Best Lawyers in America and Super Lawyers lists in numerous years past.

Asbestos and Mesothelioma

By: Edward Jaffee Abes

Mesothelioma is a rare, aggressive form of cancer that develops in the lining of the lungs, abdomen, or heart. It is caused by asbestos exposure. Mesothelioma has no known cure and a very poor prognosis. The Centers for Disease Control reports 2400 to 2800 mesothelioma diagnoses in the United States each year. It has an extremely long incubation period once exposed of 20 to 50 years. Pennsylvania ranks second in the nation for lawsuits by those suffering asbestos related mesothelioma.

Financial recovery for those suffering from mesothelioma can be obtained from asbestos trust funds financed by the manufacturers, distributors, and users of materials containing asbestos, including the employer for Pennsylvania claims. Under normal circumstances, one cannot sue an employer beyond the Workers’ Compensation system, but an exception is made for mesothelioma.

This exception exists because the incubation period is so long. The statute of limitations may expire before one even knows they have the disease, leaving the injured worker without a remedy under Pennsylvania Workers’ Compensation law.

When or if this insidious disease affects someone you know there are avenues for compensation for those affected, including their loved ones. This does not make up for the pain and suffering and ultimate demise of those affected. But it is the only non-medical remedy available.

Don’t Sign Blank Medical Authorizations

By: James R. Burn, Jr.

In Pennsylvania Workers’ Compensation, once your claim has been accepted by the insurance company, the defendant’s insurance company is entitled to have you examined two times per year. These exams are called Independent Medical Evaluations.

Occasionally, the workers’ compensation claims adjuster will send medical authorizations to you at your home. They want to check on your medical status. Be wary of these authorizations. Blank authorizations, if signed, allow insurance companies to go after any medical record for any reason even for items that are not connected to your work-related injury.

Insurance companies are always looking for reasons to get out from underneath their workers’ compensation obligations. If you are treating for an ailment or an issue that is non-work related, the defendant’s insurance carrier could try to pin your disability on one of those non-work-related issues in an effort to get out of their obligations to pay your workers’ compensation benefits.

Records in the hands of an insurance company adjuster that are irrelevant to your workers’ compensation claim could be sent to an independent evaluator in conjunction with an exam potentially causing a misinterpretation of those records to occur. In other words, an independent evaluator could attribute your disability to non-work related issues by a misinterpreting or misunderstanding those records.

Never sign blank medical authorizations. Medical authorizations should always be specifically listed for a provider that is treating you for your work-related injury and time limitations should be on those authorizations. We at Abes Baumann are always available to answer any questions about medical authorizations and the “do’s and don’ts” associated with them.


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