Author Archives: Karl Voigt IV, Esq.

Breaking News: Supreme Court Nixes Workers’ Compensation Impairment Rating Evaluations

by Karl Voigt

At 11:00 AM today, the Pennsylvania Supreme Court published its long-awaited opinion regarding the constitutionality of Pennsylvania worker’s compensation Impairment Rating Evaluations (IREs). In the vast majority of cases, these examinations serve to limit worker’s compensation wage loss benefits to 604 weeks, potentially leaving disabled workers with no source of income.

In short, the Commonwealth’s highest court ruled that the entirety of section 306(a.2) of the Pennsylvania Workers’ Compensation Act, which created IREs in the first place , contains so many unconstitutional provisions that it must be stricken in its entirety. The Court was entirely silent on whether or not this will effect cases retroactively.

More later. In the meantime, you can download the text of the court’s opinion here.

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Elon Musks’ Leadership in the Field of Workers’ Compensation: Are You Listening PA CEOs?

By Karl Voigt

By now our readers may have heard of the Tesla factory’s reputation for work injuries. Nonprofit Worksafe, a worker safety advocacy group,  made headlines earlier this year when it reported that the injury rate at Tesla’s Fremont, California, plant was 31% higher than the industry average in 2014 and 2015. Worksafe’s report says Tesla had an overall rate of 8.8 injuries per 100 workers in 2015, with 6.7 being the average for the auto industry. The rate of more serious injuries was 7.9, compared to 3.9 for the industry that year.

Tesla has set some very, very aggressive production goals. This has yielded stress and exhaustion for the factory workers. That pressure and stress has in turn led to more injuries. There are even anecdotal reports of workers passing out while working on the production line. In May, newspaper The Guardian reported that ambulances have responded to the Tesla factory more than 100 times since 2014 for various injuries.

Elon Musk

So, what does the chief executive officer of such a company do? Ignore it? Let the workers’ compensation insurance companies sort it out? Harass his employees? Not Elon Musk. Tesla’s founder and leader has vowed that Tesla jobs will be the safest at any automaker in U.S.

First and foremost, he has taken steps to reduce workplace injuries. As an example, there are now three working shifts instead of two. Musk now meets once a week with the factory’s safety team. As a matter of fact, in 2016, Tesla’s injury rate went down significantly.

 

Musk highlighted his drive to reduce injuries in an email to all Tesla employees. Here’s the text of that communiqué:

“No words can express how much I care about your safety and wellbeing. It breaks my heart when someone is injured building cars and trying their best to make Tesla successful.

Tesla Roadster

Going forward, I’ve asked that every injury be reported directly to me, without exception. I’m meeting with the safety team every week and would like to meet every injured person as soon as they are well, so that I can understand from them exactly what we need to do to make it better. I will then go down to the production line and perform the same task that they perform.

This is what all managers at Tesla should do as a matter of course. At Tesla, we lead from the front line, not from some safe and comfortable ivory tower. Managers must always put their team’s safety above their own.”

Are you listening, Pennsylvania chief executives?

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by | June 19, 2017 · 7:59 am

Pennsylvania House Bill 18 Takes Aim at Workers’ Compensation Medications

by Karl Voigt

The Pennsylvania House of Representatives on Tuesday,  June 20 will likely be voting on its House Bill 18, which seeks to further control medications taken by Workers’ Compensation claimants. Some consider this a “foot in the door” piece of legislation that is designed to start the process of more severely limiting medications, particularly opioids.

HB18, which originates from Berks/Lehigh Counties, is being sold as a way to control opioid addiction. And that’s clearly a noble goal; Pennsylvania and perhaps even the nation is suffering from a genuine crisis. However, that’s not the actual goal of this proposal. This new legislative proposal would simply adopt one of several national “evidence-based drug formularies” that would in essence decide if a medication – or it’s dosage – is reasonable and necessary.

What HB18 seeks to do is to change the utilization review process where medications are involved. Under the present system, a carrier can challenge reasonableness and necessity of a prescription medication and it goes through a process where the medication is reviewed by a certified reviewer. He or she reviews medical records specific to the injured worker and he makes an initial decision as to whether or not the care is indeed reasonable and necessary. This, again, is based on an individual’s response to the treatment. If the treatment is found to be unreasonable and unnecessary, the injured worker can file an appeal to be heard by a judge. During that appeal, the burden of proof to convince the judge actually rests with the insurance company, no matter who filed the appeal. Regardless, the judge examines the individual’s response to the challenged care and decides accordingly.

This new legislative proposal aims to remove consideration of an individual patient’s circumstances and would simply allow or disallow medications based on a “one size fits all” table. This could in essence take your own individual medical care out of the hands of your doctors and replace their judgment with a flowchart.

Naturally, we encourage our readers to voice their opposition to this proposed bill to their elected officials.

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Article in The Guardian Explaining How Doctors “Measure” Pain

How many of you have been asked by a doctor to describe your pain on a scale of one to 10? This article describes how science has advanced in gauging pain, but how much further doctors have to go.

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Filed under Social Security, Workers' Compensation

Safety Goggles…

Surprisingly, this photo is not smuggled out of a local factory, although I’ve heard this story before…

Safety goggles

From A Series of Unfortunate Events (2017 ).

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When Do You Need an Attorney for Workers’ Compensation?

by Karl Voigt

When do you need an attorney for Workers’ Compensation? For those of you who read my posts on Avvo.com, you know that I am by no means a salesman for lawyers. I often encourage Workers’ Compensation claimants to stick it out, and not enter into a fee agreement with a Workers’ Compensation lawyer until they actually need one. I usually say, “you’ll know when you need one.” Lawyers costs money. The general rule is that, once you go to Worker’s Compensation court with a lawyer, 20% of your checks are going to be paid to that lawyer as a fee.

Some recent experiences have really started to change my opinion. And I’ve been practicing Worker’s Compensation law for 26 years now. I have recently seen some very poor behavior from employers and adjusters right at the beginning of the case that makes me think injured workers should have lawyers working for them from day one.

Usually, right at the inception of a claim, the insurance company doesn’t have a lawyer working on its side. There’s an insurance adjuster who makes the initial decisions. Often bad decisions – for the injured worker.

I had someone contact me recently who had just hurt his low back at work. Okay, it happens; people get hurt and that’s what Worker’s Compensation is designed to address. What supposed to happen after that is the employer reports the injury to its Workers’ Compensation insurer and the injured worker gets medical treatment. If the employee can’t work because of the injury, he gets paid wage loss benefits.

So this gentleman hurt his back, immediately told his employer, who essentially disregarded him. His employer wouldn’t even let him know who his Worker’s Compensation insurance company is.

So, after I spoke with him, I used my own resources to track down the identity of this employer’s insurer. Then I contacted that insurance company, trying to hunt down the identity of the person responsible for handling this work injury claim. “No such claim,” they said. Okay, so the employer pay no heed to the law that says that all work injuries must be reported to the carrier within 24 hours.

My efforts now forced the employer into reporting the claim and a file was opened, a claim number generated, and an adjuster assigned. Under ordinary circumstances, the claimant might have simply gone on working in pain, allowing his employer to string him along.

The worker then discussed his case with the adjuster, who actually told him he was compelled to treat with a doctor chosen essentially by her! This would allow her to “twist the arm” of a doctor who was contracted with the carrier. This doctor, knowing who buttered his bread, would be more inclined to make medical decisions favoring the employer, rather than

Before this conversation with the adjuster, we had a discussion about his medical care. Anyone who’s well-read here or on Avvo.com know about the captive period, where a carrier tries to control the initial medical care given an injured worker. Based on the facts, we had decided that he could treat with his choice of doctor. The employer posted no list of physicians from which to choose, nor had the worker signed the “rights and responsibilities” form requisite for the captive period to be enforceable. Therefore, he could not be forced to treat with a company doctor.

But for our conversation, he could have been railroaded into substandard medical care.

All this in the space of just a few days.

Well, not every case goes like this at its inception. Some go smoothly, as it should. However, I suspect more cases like go this one would have when the worker doesn’t have counsel from the start. So, it certainly can’t hurt to get counsel involved from the very beginning. It can only set you in the right direction.

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Pennsylvania Announces 2017 Average Weekly Wage

by Karl Voigt
Pennsylvania’s Secretary of Labor and Industry has announced the 2017 Statewide Average Weekly Wage. This figure serves as the basis for determining the maximum and minimum weekly Workers’ Compensation benefit rates in Pennsylvania. The figure has increased to $995 from the 2016 average of $978. This increase affects the weekly rates paid to workers who were injured on or after January 1, 2017.
Under the Act, injured workers are entitled to indemnity wage-loss benefits equal to two-thirds of their weekly wage for a work-related injury, subject to minimums and maximums. The maximum weekly rate for 2017 is $995.00. If an employee’s average weekly wage is between $746.25 and $552.78, he or she will get 66 2/3%. The employee will receive 90% if the average weekly wage is $552.77 or less.

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