On December 2, 2021, the Pennsylvania Bureau of Workers’ Compensation announced that based upon the Statewide Average Weekly Wage, as determined by the Department of Labor & Industry for the fiscal year ending June 30, 2021, the maximum compensation payable under the Workers’ Compensation Act shall be $1,205.00 per week for injuries occurring on and after January 1, 2022. For purposes of calculating the update to payments for medical treatment rendered on and after Jan. 1, 2022, the percentage increase in the Statewide Average Weekly Wage is 6.6 percent. The notice was published in the Pennsylvania Bulletin on December 11, 2021.

If an employee is injured at work, they are generally eligible for workers’ compensation benefits, including a weekly benefit to replace wages. Under Pennsylvania law, they are entitled to about two-thirds of their weekly wage, up to a maximum amount. The actual amount owed is based on the employee’s gross average weekly wage.

The average weekly wage is calculated based on the total of all gross wages from every employer the worker had at the time of the injury. This average weekly wage includes overtime, bonuses, tips that were reported to the IRS, vacation pay, and even payments for lodging. If the employee receives the same amount each week, their average weekly wage is their gross weekly paycheck. If they are an hourly worker, their average weekly wage will depend on how long they have worked for the employer where they were injured.

The maximum amount an injured worker can receive depends on the Department of Labor and Industry’s calculation of the Statewide Average Weekly Wage, which for 2022, will be $1,205.00 per week.

Margolis Edelstein defends employers and their worker’s compensation carriers throughout Pennsylvania; please contact our offices to discuss any questions or further information you may need.

On September 17, 2021, partner Gerald Connor will speak at National Business Institute’s webinar entitled, “Depositions: Handing Difficult Deponents and Opponents.” Gerald and other panelists will discuss deposition ethics, tactics, and strategies for managing difficult witnesses and opposing counsel.

For more information or to register, visit the event website here.

On December 16, 2020, the Pennsylvania Bureau of Workers’ Compensation announced that based upon the Statewide Average Weekly Wage, as determined by the Department of Labor & Industry for the fiscal year ending June 30, 2020, the maximum compensation payable under the Workers’ Compensation Act shall be $1,130.00 per week for injuries occurring on and after January 1, 2021. For purposes of calculating the update to payments for medical treatment rendered on and after Jan. 1, 2021, the percentage increase in the Statewide Average Weekly Wage is 4.6 percent. The notice will be published in the Pennsylvania Bulletin on December 26, 2020.

If an employee is injured at work, they are generally eligible for workers’ compensation benefits, including a weekly benefit to replace wages. Under Pennsylvania law, they are entitled to about two-thirds of their weekly wage, up to a maximum amount. The actual amount owed is based on the employee’s gross average weekly wage.

The average weekly wage is calculated based on the total of all gross wages from every employer the worker had at the time of the injury. This average weekly wage includes overtime, bonuses, tips that were reported to the IRS, vacation pay, and even payments for lodging. If the employee receives the same amount each week, their average weekly wage is their gross weekly paycheck. If they are an hourly worker, their average weekly wage will depend on how long they have worked for the employer where they were injured.

The maximum amount an injured worker can receive depends on the Department of Labor and Industry’s calculation of the Statewide Average Weekly Wage, which for 2021, will be $1,130.00 per week.

Margolis Edelstein defends employers and their worker’s compensation carriers throughout New Jersey & Pennsylvania; please contact our offices to discuss any questions or further information you may need.

 

As part of Pennsylvania’s on-going disaster declaration to address the spread of COVID-19, in alliance with the Governor’s objectives to mitigate the impacts of COVID-19 within the workers’ compensation system in Pennsylvania, Governor Tom Wolf has suspended portions of Section 413 of the Workers’ Compensation Act (77 P.S. §§ 774.2 and 774.3).

Section 413 allows a workers’ compensation carrier to suspend or modify a Claimant’s wage loss benefits when the employee has returned to work at prior or increased earnings. The carrier must mail the notification of suspension or modification to the employee and the department within seven days of the carrier suspending or modifying compensation.

The Act required the Affidavit on this form (LIBC-751) be notarized, but Governor Wolf’s order has now suspended this requirement. Carriers are permitted to manage their claims under the goals of the Act, without the requirement of a notarized Affidavit on the form. An employee’ right to challenge a carrier’s attempt change to their wage loss benefits remains unchanged.

Listed below are the top ten OSHA Standards that employers violated the most over the 2019 fiscal year:

  1. Fall Protection – General Requirements (1926.501)
  2. Hazard Communication (1910.1200)
  3. Scaffolding (1926.451)
  4. Lockout/Tagout (1910.147)
  5. Respiratory Protection (1910.134)
  6. Ladders (1926.1053)
  7. Powered Industrial Trucks (1910.178)
  8. Fall Protection – Training (1926.503)
  9. Machine Guarding (1910.212)
  10. Eye and Face Protection (1910.102)

The 33,401 workplace inspections OSHA conducted in Fiscal Year (FY) 2019 represented a “significant increase” over the number of inspections conducted in each of the previous three years, according to the Agency.  Data also indicated the Agency provided 1,392,611 workers with training on safety and health requirements through various education programs, including the OSHA Training Institute Education Centers, Outreach Training Program, and Susan Harwood Training Grant Programs.  In FY19, OSHA’s no-cost On-Site Consultation Program found 137,885 workplace hazards. Contact our Scranton, PA based partner, Jerry Connor, for further information relating to OSHA and MSHA (Mine Safety and Health Administration) matters.

Scranton-based partner Jerry Connor obtained a defense verdict after a three-day Bench Trial in Schuylkill County, Pennsylvania, against a downstream property owner seeking a permanent injunction against Jerry’s client, who owned a storm water retention pond upstream from the Plaintiff. After a major storm event, excess water traveled from the retention pond downstream to Plaintiff’s property causing damage, which was paid for by our client. Our retention pond was immediately repaired, and was operating as it was designed when Plaintiff asked the Court to find a continuing trespass of excess water and ongoing damage. Plaintiff sought a Court Order to require Jerry’s client to completely rebuild its pond to meet current environmental regulations, at what would be a significant expense and burden to Jerry’s client.

As part of the holding, the Court agreed that our client’s pond met all requirements when it was constructed, was operating as designed after repairs were made and that the Plaintiff failed to meet his burden of establishing an ongoing trespass, and denied Plaintiff’s demand for a permanent injunction.

Since 1996, Pennsylvania employers and Workers’ Compensation insurance carriers could seek a review of the “impairment rating” of an injured worker, in order to determine the percentage of disability, and then place a 500-week cap on the injured worker’s ongoing wage loss benefits.  This “Impairment Rating Evaluation” system called for designated physicians to perform these IREs, upon request by the employer – but only when the injured worker had already received 104 weeks of wage loss benefits due to the work-related injury.  Under the old system, the medical reviewer would perform an examination and review medical records, and then determine an injured worker’s “impairment rating” based on a percentage system that was set forth within the American Medical Association (“AMA”) guidelines.  If it was determined that the injured worker’s impairment rating was less than 50%, the employer could automatically cap the wage loss benefits at 500 weeks.

This IRE procedure, and the percentage assignment method, came under fire from the claimant’s bar, which argued the AMA Guidelines were insufficiently exacting for measuring the level of an injured worker’s disability.  Claimant’s advocates also argued that by deferring to an AMA publication for guidance on the recovery of wage loss benefits for an injured worker, the Workers’ Compensation Bureau was conferring legislative authority on a non-governmental body (the AMA).  In the landmark 2017 Pennsylvania Supreme Court decision rendered in Protz v. WCAB (Derry Area School District), the IRE system was struck down.  In Protz, the claimant’s attorney successfully argued that the AMA should not be relied upon for setting impairment rating guidelines or standards.  Following Protz, employers could no longer rely on the IRE system to cap benefits, or seek a review of an injured worker’s impairment rating.  For employers and insurance carriers statewide, this was a significant and potentially expensive ruling.

On October 24, 2018, the IRE process was revived when Gov. Wolf signed “Act 111”.   Under Act 111, there are some minor differences in the application and procedure for IREs, but the basic outline of the prior procedures has been reinstated.

The new provisions now specifically require IREs to be performed under the 6th edition (second printing April 2009) of the AMA Guides to Evaluation of Permanent Impairment.  Additionally, the new provisions lower the impairment threshold of total disability 50% to 35%.

With the new provisions, an employer’s insurance carrier may request an IRE exam for an injured worker that has been out of work and has received 104 weeks of wage loss benefits.   If the physician – using the 6th edition of the AMA guidelines –  finds the injured worker to be less than 35% disabled, then the insurance carrier can cap partial benefits at 500 weeks, or a little less than 10 years.  If the physician rates an injured worker’s disability to be greater than 35%, the worker can receive full, lifetime benefits.  Essentially it is a way for an insurance carrier to limit wage loss liability to a little less than ten years.

Although there is no express language in Act 111 or the Court decisions, we agree with the general consensus that any IRE performed prior to October 24, 2018 (the date Act 111 was enacted) is likely null and void, as a matter of law. We anticipate there will be legal challenges to various aspects Act 111, and are prepared to offer further analysis and practical guidance to clients on all the issues that may arise from the legislative fix to the IRE process in Pennsylvania. The full statute can be viewed here: https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2018&sessInd=0&act=111

 

The tractor-trailer operator represented by our Scranton, PA, based partner, Jerry Connor, was allegedly distracted by use of his cell phone immediately prior to being involved in a serious multi-vehicle accident on Interstate 81 in Luzerne County and was confronted with a count for punitive damages contending his conduct was “outrageous or recklessly indifferent.” After extensive discovery initiated by Jerry which narrowed the issue, Jerry presented a Motion for Partial Summary Judgment contending the Plaintiff failed to meet her burden of demonstrating our operator’s conduct – including the alleged use of his cell phone – warranted a punitive damage claim to be considered by the Jury. The Trial Court agreed, dismissing the Plaintiff’s punitive damages claim which ultimately led to a successful resolution of the matter on behalf of our client.

Our Scranton, Pennsylvania, partner, Jerry Connor will be presenting a webinar Life Care Plans in Traumatic Brain Injury Cases: Presenting or Challenging Future Damages Calculations hosted by Clear Law Institute, on May 16, 2018. If you would like to view the presentation, contact Jerry directly.

 

Our annual firm retreat concluded this weekend and Margolis Edelstein takes great pride in recognizing our colleagues, Gerald Connor and Michael Miller, who have been elevated to partner.

Jerry is based in our Scranton office where he focuses upon defending a broad range of casualty matters including product manufacturers, construction companies, and miscellaneous professional liability engagements. As a trial lawyer, Jerry has appeared before many state courts, as well as in several Federal and appellate courts. He has earned the Martindale-Hubbell rating of AV, the highest level available.

Michael Miller, based in Philadelphia, focuses his practice in the area of professional liability engagements including employment, civil rights and the defense of educators, among others. Michael has represented employers in many labor related matters and was recognized by the American Bar Association and the Bloomberg BNA (ABA/BNA) as an award winner for Excellence in the Study of Labor and Employment Law. Michael has also earned the distinction of Rising Star by Super Lawyers and has been a part of our practice since being admitted to the Bar.

We are delighted to welcome these two fine lawyers into our partnership.