In Pennsylvania, Preexisting conditions are not a bar for workers compensation benefits

In Pennsylvania, if you have a pre-existing condition and get hurt at work, you may still be eligible for workers compensation benefits.  Often, injured workers are advised by their employer that they can’t file for workers compensation benefits because they had a pre-existing condition.  That is wrong.  Period.

It is long standing law in Pennsylvania that an aggravation or exacerbation of a pre-existing condition can be a compensable work injury.

An aggravation of a pre-existing degenerative condition constitutes a compensable work injury. SKF USA, Inc. v. Workers’ Compensation Appeal Board (Smalls), 728 A.2d 385, 387 (Pa. Cmwlth. 1999).
To establish a compensable aggravation“the medical evidence [must] establish that the injury materially contributed to the disability rather than the disability resulted from the natural progress [ion] of a pre-existing condition.” Miller v. Workmen’s Compensation Appeal Board (Pocono Hospital) , 539 A.2d 18, 20-21 (Pa. Cmwlth. 1988) (citing Halaski v. Hilton Hotel, 409 A.2d 367 (Pa. 1979)). Whether an incident has materially contributed to the disabling injury “is a question of fact to be determined by the WCJ.” SKF, 728
A.2d at 388.
As you can see, it is well established law.  The litigation involving pre-existing conditions is quite complex.  It goes beyond just proving aggravation, but also that the aggravation is ongoing.  It will take significant lay and medical testimony.  It is critical to have a proven and experienced workers compensation attorney that understands medical evidence.  At Mooney & Associates  we have the experience and the results to prove it.
Usually when we are talking about pre-existing conditions, we frequently see conditions involving the back, knee, and shoulder.  Let me use some of my cases as examples.
Pre-existing Knee Arthritis
I had a case of an injured worker that involved  pre-existing arthritis in her knee.  She is a senior citizen.  She worked full-time for a national retailer.  Four years prior to the work injury, she had treated for knee arthritis pain, including a few injections, but had not treated in the three preceding years.  After she slipped and fell at work, she could not put weight on her knee and was unable to work.  She underwent conservative treatment regiments, such as inflammatory and pain medications, work restrictions, bracing, physical therapy, and additional injections, but all failed to relieve her symptoms.  Her doctor recommended a total knee replacement, due to the extensive arthritis in her knee.  We were unable to settle the case because of the recommendation for and need for a total knee replacement.   We went to decision and won on the merits.  The WCJ granted the claim petition and had to pay my client’s wages while out of work as well as the expenses of a total knee replacement.  She is still currently being paid wage loss benefits.
Pre-existing shoulder
Have a client that worked for the same employer for over 25 years.  He slipped and fell at work and injured his right shoulder.  After an MRI was completed, the insurance carrier denied benefits due to pre-existing right shoulder rotator cuff tears.  The tears were pre-existing, we conceded that.  It was clear by looking at the MRI that the tears were chronic, not acute.  Additionally, during medical testimony, the treating orthopedic surgeon also testified that the tears were degenerative and pre-existing.  However, the doctor also testified that his chronic tears were not symptomatic, and but for the fall, he would have remained non-symptomatic.  Prior to the fall, he never experienced any shoulder pain.  This is not all that uncommon. This gentleman never treated for shoulder pain.   Never even missed a day of work.  He had no idea or no way of knowing he had pre-existing tears.  We eventually won the litigation, the claim petition was granted, and the insurance carrier had to pay wage loss benefits, and still are today, and pay for a total shoulder replacement.  A simple rotator cuff repair could not be performed because of the extensiveness of the tears.
Pre-existing Back
I had a client that had a prior work injury from a different employer that included a low back fusion surgery in 2007.  He recovered from that surgery and had not sought low back treatment since 2008 except for an updated MRI in 2011.   My client injured his low back with a new employer in 2014,  while working at a road construction site.  Given his prior low back surgery, the insurance carrier denied his claim. I positioned his claim well through an extensive medical record review, treating back surgeon’s deposition testimony, and our clients’ testimony on his recovery from his prior injury.   Right after briefs were drafted, but before the decision was issued, we were able to secure a nice lump sum settlement for our client, plus payment and reimbursement of all outstanding medical bills related to his new low back injury.
These are just a few of many examples of cases in which I have either gone to decision or settled claims involving pre-existing conditions.  They are complex.  They involve critical medical testimony.  That’s why it is vital that if you are injured at work and believe you aggravated a pre-existing condition, that you seek an experienced and proven workers compensation attorney to handle your claim.  Don’t let your employer tell you that you can’t get benefits because you had a prior condition.   We have been in the trenches, have won these  types of cases, and settled many others like these.  We certainly aren’t hesitant to go to decision either.
Call Mooney & Associates today for a FREE consultation regarding your work injury.  We have 15 offices throughout Central Pennsylvania.  I will meet with you at the offices nearest to you.  Call today at 717-200-HELP or 1-877-632-4656.  You can also email me at mab@mooney4law.com.

Social Security has slight increase in Substantial Gainful Activity in 2018

Each year, the Social Security Administration publishes the monetary amount that is considered for Disability and Substantial Gainful Activity (SGA) and 20148 will see a slight increase.

SSD Benefits

Mooney & Associates representing social security clients through Pennsylvania and Maryland

First, what is SGA?  With reference to financial eligibility for Social Security Disability (SSDI) benefits, an applicant for benefits must be unable to perform SGA.   An applicant who earns more than a certain monthly amount is ordinarily considered to be engaging in SGA, and therefore, not eligible for SSDI benefits.  The SGA amount published includes two figures, one for regular disabilities and one for blindness disabilities, which is slightly higher.  Additionally, If you are receiving SSDI benefits and your earnings are below what the SGA, then your benefits will neither stop nor be reduced because of earnings.   So yes, you can work part-time while receiving SSDI.  In essence, SGA is important for both eligibility and maintaining SSDI benefits.

Here are the rates for 2018:

For Non-Blind:  $1,080 per month (represents an increase of $10, as the 2017 rate was $1,070/mo)

Blind:  $1,970 per month (represents an increase of $20/mo as the rate was $1,950/mo)

It is important to understand in the application process that you have to be under SGA.  If you are over the SGA amounts in monthly income, then SSA will not even have to make a determination on whether you are disabled or not, because you would not be financially eligible for benefits.  So before even determining whether your disabilities meet Social Security’s definition of  disability, you have to meet two financial requirements.

1.  You must be below SGA,a s stated above.

2.  You must be insured for SSDI purposes.  Insured status means you’ve paid taxes into the system for the required number of years and your insurance hasn’t expired because you stopped working too long ago.   That’s it in a brief nutshell.

Applying for and winning social security disability benefits is not easy.  That is precisely why you should call an experienced Social Security Disability attorney to help guide you through the application and to ultimately represent you in an appeal hearing, should your application be denied.  At Mooney & Associates, we submit applications on behalf of applicants and represent clients who are denied at the application level.  We represent disabled clients throughout Pennsylvania and Maryland.  Call us today for a FREE consultation or FREE application submission at 717-200-HELP or 1-877-632-4656.  You can also visit our website at https://www.mooney4law.com/personal-injury/disability/

Injured Workers Should Be Aware of Settlement Offers

It is that time.  With 2018 on the horizon, businesses are trying to get some loose ends tied up before the calendar turns.  Workers compensation insurance carriers are the same way.   They like to close out as many claims as possible to not carry them into the next year.  That means you may get an offer to settle your workers compensation claim.

My advice — exercise caution.  Call Mooney & Associates for a FREE consultation before setting your workers compensation claim.  Why?

1.  Are you ready to settle your claim, medically speaking.  Are you done with surgeries?  Do you need additional injections?  Are you getting better?  Are you going to have permanent work restrictions?  What are your costs for future medical treatment?  These are all very important questions that need to be discussed and thought through and can impact both the feasibility  of settlement and value of your case.

2.  Is it fair?  Most times, what an insurance carrier is going to offer you, is below what is really the settlement value of your case.   Listen, their number one concern is to get out of each claim as cheaply as possible.  You and your future are not their concern.  Our concern is you and ensuring you are getting the fairest settlement possible.  We will work hard to maximize your settlement value.  Every injury is different.  Every story is different.  Every carrier is different.  Every employer is different.  There are a ton of factors that go into what is ‘fair and reasonable’ and that is why it is absolutely paramount for you to get expertise advice form an experienced workers compensation professional.

3.  Are there other issues going on in your case?  What are your future medical costs?  Do you have outstanding medical bills not being paid by the insurance carrier?  Did you pay for prescriptions or doctor visits and paid out of your pocket?  Is there a subrogation lien with your health insurance?  Is there a subrogation lien from Medicare or Medicaid?  Are there any applicable offsets?  These issues can get quite complex.

4.  Is it the right time?  This is the most important question when settling your claim.  It may not be the right time for you.  We will sit down with you, listen to your concerns, become familiar with your claim, then provide our advice.  I have advised hundreds of clients to NOT settle at a particular time.  It is a very important and personal decision and we take that time to discuss it with you.  What about social security disability?  Should I apply before settling or after settling?  Am I eligible for social security disability?  Is it an option for me?  Will I have to resign from my job?

5.  Remember, it is final.  In most circumstances, when an insurance carrier settles a claim, it is completely settled.   What does that mean?  It means your entitlement to wage loss benefits and any future medical benefits ends completely.  Any future medical costs for your work injury becomes your sole and exclusive responsibility.  That is precisely why it is such an important decision.  Just because you settle does not mean your private health insurance, Medicare, or Medicaid will pick up your costs related to your work injury.    There are hybrid type settlements that fully leave medicals open or leave medicals open for a limited purpose, but they are certainly the minority type of settlement in workers compensation.  Given the significant impact that settlement has on your rights under the Pennsylvania Workers Compensation Act, speaking with an experienced workers compensation attorney is a no-brainer.

Mooney & Associates had fifteen office locations through Central Pennsylvania.  We can meet you at the location closest to you.  We have full staffed offices, open Monday through Friday, in Chambersburg, Shippensburg, Carlisle, Harrisburg, York, Gettysburg, and Hanover.  Additionally, not only can we handle Pennsylvania workers compensation cases, but we can also handle Maryland Workers Compensation cases.

Call today for a FREE consultation at 171-200-HELP or 1-877-632-4656.  You can also email me directly at mab@mooney4law.com.  Visit us on the web at http://www.mooney4law.com.

 

After multiple denials, you can win Social Security Benefits

There is a misnomer out there that obtaining Social Security Disability (SSD) or Social Security Supplemental Income benefits (SSI) is easy.  We all ‘know’ a neighbor or friend that has SSD or SSI benefits, but hey, they look fine to me.  Remember one important thing, you don’t know their story.

Fact is — it isn’t easy.   Just take a look at these numbers.  The current approval rate at the initial application level is 36%.  That means if you apply for SSD benefits, you only have a 36% chance that you will be approved.   Much of that can be dictated by age as well.  The older you are, the more likely you may be approved at the initial application level.

However, after denial, the approval rates nationally at the hearing level is 45%.  In Pennsylvania, the statewide average approval rate at the hearing level is slightly below the national average at 42%.  The Harrisburg appeals office has the same average approval rate of 42%.  Again, it is not easy to win SSD/SSI benefits.

Recently, I took a case for an individual out of compassion.  She was under the age of 40 and homeless.  Her alleged disabilities were mental impairments, undefined heart condition, and a chronic kidney condition.  Essentially, she had two strikes against her.  Her young age made it more difficult to win benefits.  However, through the intake process, I also found out that she had been denied benefits on EIGHT prior attempts, several at the hearing level, and with different attorneys representing her.  It was an easy case to turn away.

But, I didn’t.  I couldn’t.  She needed help.  She came to me for a fresh new look at her case and a fresh new attempt.  She needed her break to get off the streets and find a place to live.  She truly was in a desperate situation and had been for a few years.

Despite several other attorneys failing to win her benefits in the past, I figured I would do my best to shape the argument, explain her conditions, and describe why they were so disabling.   We had our day in front of an ALJ in early November.  We argued.  We described.  We explained.  And, We WON!

It was a proud win for me individually.  It was an SSI case, so the attorney fee was small.  That was not what it was about.  It was about compassion.  It was about giving a helping hand.   It was about serving.  It was about representation.  After eight unsuccessful prior attempts with others, I was proud to have contributed to helping her get back on her feet, gain dignity back, and get a warm place to live and sleep.  It was one of those cases that I will always remember.

The point is — sometimes it takes more than one, two, or even three, tries to get social security disability benefits.  For people who truly can’t work, have debilitating disabilities, it can certainly be frustrating.  Others feel your frustration.

If you have questions about applying for SSD or SSI benefits, or have been recently denied such benefits, call Mooney & Associates today at 717-200-HELP or 1-877-632-4656 for a FREE consultation.  We represent disabled clients throughout Pennsylvania and Maryland.

Social Security Disability Consultative Exam: What is it?

Some Social Security Disability applicants are sent for a consultative examination while others are not.  What is a consultative examination?

SSD Benefits

Mooney & Associates representing social security clients – 717-200-HELP – http://www.mooney4law.com

 

Essentially, it is a medical examination scheduled by Social Security with a physician they choose.  It can range from a general internal medicine (family) doctor, to a specialist, such as an Orthopedic, to a pain management doctor to a Psychiatrist.  It really depends on the medical conditions you are alleging to cause you to be disabled.  If Social Security feels the need for a consultative examination for determination of your application, you will receive written notification from social security. Continue reading

Social Security Disability Hearings Tips

Here we provide social security disability hearing tips and advice.  Many of my clients express anxiety, stress, fear, and nervousness toward their upcoming hearing for Social Security Disability benefits.  Unlike Workers Compensation, where an injured worker may testify twice, with social security disability hearings, there is one hearing.  Claimants have one shot to convince an otherwise skeptical administrative law judge that they are indeed disabled and unable to work full time.

Here are some tips we provide to our clients as they prepare for their disability hearing.

  1. Relax.  The ALJ’s at the Harrisburg Office of Disability and Adjudication Review (ODAR) hearings office are nice individuals.  They are not going to attack you personally, attack your credibility, or make you feel uncomfortable.  They are going to ask you questions that you can answer.  There is no need to be nervous that you will be treated poorly.  It will not happen nor should your counsel allow it to happen.  Just relax.
  2. Answer the Question that is Asked.  Listen to the question that you are asked, then provide a direct answer.  Seems simple.  Often times though, a claimant may not fully understand the question, but yet, they try an answer what they think the question really was that was asked.   Other times, claimants may be quite nervous, and not really hear or listen to the full question.  If you do not understand a question, simply ask the ALJ or your attorney to repeat the question.  Asking to have a question repeated is much better than providing an inappropriate answer that doe snot addressed the question that was asked.  If you think taking notes on the questions being asked by the ALJ or your attorney would be helpful, then do so.  You may be asked some tough questions about your condition, about what is in your medical records, about your past employment, etc . . . Avoiding to answer a question is a sure way to sink your case.  ALJ’s will pick up on the fact you are trying to avoid giving an answer.  Don’t do it.  Just answer the question.
  3. Be clear and concise.  Do not ramble on, go off subject, or try and give a long winded answer that you think will be impressive.  Straying a way from the actual question asked will likely bore the ALJ, which will not be good for your case.  You should prepare yourself to answer questions.  We meet with our clients to prepare for hearings and review the types of questions that you could be expected to have to answer. Being nervous can cause a person to ramble on.  Practice with a friend, family member, or your attorney.  We prepare our clients.
  4. Be clear on symptoms and limitations.  It’s critical to specify your pain levels, symptoms, limitations, and functional deficits in your testimony.  Vague answers will sink your case.  Let’s use an example.  When an ALJ asks you to describe your pain, a response like, ‘it hurts’, isn’t acceptable.  Be descriptive.  Specify where it hurts.  Is the pain centered in your low back only?  Does it run into either or both legs?  Does it cause any other problems?  On a scale of 1 to 10, with 10 being the most severe, describe your daily pain.  Saying your daily pain level is a 10, everyday, is likely not going to be persuasive to an ALJ.  Answering questions with details will help draw a more clear picture of you and your struggles for the ALJ.  Use detail for questions about your functional limitations.  As an example, if an ALJ asks you how long you can sit for a period of time, a bad response would be “not long’.  That tells the ALJ absolutely nothing.  Be specific.  Can you only sit for 15 minutes at a time?  If so, then what happens?  Do you have to then stand up?  Do you have to walk around?  If so, for how long before you can sit again?  The way I describe testimony to my client is for them to think of themselves as an artist.  The testimony of the claimant paints a detailed picture of the claimant’s disability and its impact on their daily life.  In order for another, such as the ALJ, to know what picture is suppose to be, the picture must have detail.  In other words, good details to explain what the picture is and what it is not.  It is your painting of your disability.  Generalized answers like ‘it hurts’ or I can’t lift much” or I can’t sit long” do nothing to full in the details.
  5. Be ready for to explain medical records.  Let me explain.  I do not mean that it is your responsibility to explain your medical records in detail.  You likely do not even understand medical records.  However, if there has been a significant gap in medical treatment, be ready to explain it.  Perhaps you had no health insurance, no money, no transportation, and therefore could not treat.  Be honest. Giving untruthful answers is the quickest way to sink your claim.  Always remember, the ALJ has reviewed all your medical records.  So making things up, like facts and symptoms, just isn’t a wise thing to do.  If there is a period of time you were telling your doctor you were feeling better, then explain it.  Perhaps you had a brief time where your symptoms were a bit better.   Perhaps you just had an injection that provided temporary relief.  There isn’t anything wrong with that.  However, lying about it is a sure way to get your claim denied.  If your doctor has talked to you about pain medication abuse or has denied you pain medicine, you need to be prepared to address that issue.  You need to speak with your attorney about that.
  6. You will be asked about an average day.  Nearly in every case, since claimants are not working, the question will be asked, ‘tell me about your average day’.  You need to think about this question.  Don’t be afraid to write down notes to refresh your memory on things you may want to say in response to this question. You will be asked to describe what you do around the house.  Do you cook, do laundry, clean?  To say NO to all of these types things generally won’t be believable.  Describe hobbies you used to be able to do, but your disabilities have caused you to cease those type of activities.  Does someone help you on a daily or weekly basis to perform certain tasks, like laundry and groceries?   These questions are important because it helps to fill in that detail of your picture of your disability.
  7. Do not exaggerate.  This is important.  ALJs have heard hundreds, if not thousands, of cases.  Do not make your symptoms sound worse than what they are.  Your medical records, history you provided, physical examination results, and diagnostic tests are well documented in medical records the ALJ has reviewed.  Exaggerations beyond findings will undermine your credibility.  ALJs are well-trained to determine whether an individual is magnifying or exaggerating their symptoms.  Just be honest with your answers.  Additionally, avoid answers that indicate you are in pain ‘all the time’, ‘everyday’ ‘always’, ‘my pain is a 10 all the time’.  ALJs just won’t believe that testimony.  Additionally, do no exaggerate your limitations of what you can and can’t do.

The point here is to relax, answer the questions clearly, and be honest.  Those are the keys to painting a much clearer picture of your disability and limitations because of your disability.

Going to your social security disability hearing without legal counsel is not a smart idea.  We understand the process, we know your ALJs, and we [are[pare our clients for their one shot hearings.  If you have applied for and been denied social security disability benefits, we can help.  We handle social security cases in both Pennsylvania and Maryland.  Call Mooney & Associates today for a FREE CONSULTATION at 717-200-HELP or 1-877-632-4656.  Additionally, if you have not applied for disability benefits yet, call us.  We handle the application process for you.

Injury Description is important in Workers Compensation

Pennsylvania Workers CompOne of the more important, and often overlooked, aspects of a workers compensation claim in Pennsylvania is the description of injury.  More times than not, if you get hurt at work and your employer accepts your work injury, the description of your injury provided is nothing more than a ‘strain/sprain’ or ‘contusion’, whether it be to your neck, back, shoulder, etc. . .  Often times, it is simply not accurate.

So why is that the description provided on the PA Department of Labor & Industry forms that you get?  Could be a few reasons.  First, many insurance carries only accept sprain/strains and contusions.  Second, your actual injury may have just happened and the actual medical diagnosis is unclear.  Third, it may actually be accurate.

More than likely, the first two reasons are applicable.  Many insurance carriers do not accept anything outside those generalized descriptions.  There is a reason for that.  By accepting only generalized descriptions of injury like a strain/sprain, it provides the insurance carrier leeway in denying future medical treatment.  For example, if you have an accepted left shoulder strain, but you recently had a left shoulder MRI that indicated a rotator cuff tear, the insurance carrier may deny surgery.  They will deny surgery based on the fact that they only ever accepted a left shoulder strain/sprain, not a rotator cuff tear.    Another frequent example is a head injury.  Often times, the accepted injury for a head injury is a ‘head contusion’.  That provides leeway for the insurance carrier to deny treatment for concussion and post concussion syndrome.  They often do as well.    Continue reading

Amazon employee killed in accident at Amazon Warehouse in Carlisle

An Amazon Warehouse employee was killed in a work accident recently.

The is the second death at the Middletown/Carlisle facility since 2014.  If you recall, an employee was killed in 2014 in a pallet jack accident.

The Occupational Safety and Health Administration is investigating a death at an area Amazon facility.

Devan Michael Shoemaker, 28, of Millerstown, died Tuesday of multiple traumatic injuries at the Amazon warehouse on Allen Road in South Middleton Township.

Cumberland County Coroner Charles Hall confirmed Shoemaker died after the 5:15 p.m. accident in which he was run over while helping the driver of a truck tractor hook up a trailer.

Amazon had already been warned and fined by OSHA in 2016 at it’s New Jersey facility for failure to address workplace safety concerns.  I’ve written in this issue time and time again.  Big conglomerates like Amazon consistently skirt safety issues for lower operating costs, while the employees are the ones to suffer, often from devastating work injuries, and in this case, even death.

I have represented many injured workers at Amazon in Carlisle.  With Central Pennsylvania’s warehouse growth in full swing, more and more warehouse type injuries are occurring.  Check out my previous article on common warehouse injuries.

If you work at one of the many warehouse or distribution center in Central Pennsylvania and have sustained a work injury, don’t hesitate to call Mooney & Associates to protect your right and benefits you may be entitled to under the Workers Compensation Act.  Places of employment like this often try and intimidate injured employees, downplay injuries, deny injuries, terminate employment when injured, or have injured workers sign forms quickly.   Get represented!  Call Mooney & Associates for a FREE CONSULTATION AT 717-200-HELP or 1-877-632-4656.

In Pennsylvania, do I have to work light duty when hurt at work?

Under Pennsylvania law, do I have to return to light duty when I am hurt on the job.  Why would an injured worker ask that?  Well, it isn’t that these clients are lazy, not at all.  Many times, an injured worker simply wants appropriate time to recover and heal from the work injury.

Legal ramifications for turning down light duty

Turning down available light duty is not a wise decision and can put workers compensation benefits at risk.  In Pennsylvania, your employer has the right to offer you modified duty employment.  Many employers in Central Pennsylvania do offer light-duty work assignments or alternate work programs. The critical thing to remember is that both the employer and the injured employee must act in good faith in offering and responding to an offer of light-duty work.  Failure to do so can result in a suspension or reduction in you wage loss benefits. Continue reading

Pennsylvania Workers Compensation and travel expenses to doctor

Either way you look at it, a work injury can be financially disturbing for many.  Many injured workers have their injury denied, meaning they are receiving no income while they litigate their claim.  Others have an accepted claim, but for medical benefits only, which again means, no wage loss benefits while the claim is being litigated.  Others may be receiving benefits, but at a reduced rate from their regular, average weekly wages.  Often, it causes financial hardship.

Regardless, work injuries often times require significant medical treatment.  That means trips back and forth to the doctors, to pain management, to physical therapy, and to the pharmacy.  Unfortunately, there is a misperception out there that an injured worker is entitled to reimbursement of travel expenses back and forth for their treatment.    The injury isn’t my fault, why should I have to pay for my own gas to and from treatment.  Great argument.  And I agree wholeheartedly.  However, in Pennsylvania, it is not a reality.  Continue reading