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.

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

Pennsylvania Supreme Court strikes down IRE provisions in Workers Compensation Act

Attorneys across the Commonwealth of Pennsylvania have been waiting for the Pennsylvania Supreme Court to clarify the status of the Impairment Rating Evaluation section of the Act, since the Commonwealth Court struck down provisions and remanded the case back to a Workers Compensation Judge.   The PA Supreme Court issued it’s decision as I sat in a workers compensation hearing around 11:30 AM this morning.   In Protz v. WCAB (Derry Area School District), No. 6 WAP 2016, the Court struck down the IRE provisions of the Act as unconstitutional in it’s entirety.

To help you understand, let me first explain the IRE process.  First, and foremost, it is a process used to limit injured worker wage loss benefits.  The injured worker is examined by a doctor chosen by the Commonwealth for what is called an impairment rating evaluation.  The IRE exam is solely used to establish a whole body impairment.  If the IRE examination finds an injured worker to have 50% or less whole body impairment from the work-related diagnoses, then wage loss benefits are capped to 500 weeks (about 9 1/2 years).   A request for an IRE examination by the insurance carrier cannot occur until an injured worker has received at least 104 weeks (2 years) of total disability compensation. Don’t confuse this examination with an IME  (defense) examination.  They are entirely different.  IRE examinations are nothing more than a tool for an insurance carrier to limit wage loss benefits of the injured worker.  Additionally, the provision is also unfair because it is nearly impossible to get a 50% or more whole impairment rating evaluation, outside completely catastrophic injuries. Continue reading

Understaffing at Pennsylvania Nursing Homes cause work injuries

back-work-injuryWe have seen the various reports from time to time on the overall impact of understaffing at Pennsylvania Nursing Homes.  In this report of 18 of Pennsylvania’s most understaffed nursing care facilities, ten of the eighteen are owned and operated by Manor Care, and three of the 18 are right here in the mid-state, in Chambersburg, Carlisle, and New Bloomfield in Perry County.  These reports generally focus around the sub-standard care is causes to the patients who reside or are being cared for in the facilities.  Rightfully so.

The untold stories of understaffing in these care facilities is the risk it puts on nursing home employees.  I get my fair share of injured nursing home employees.  Many times, understaffing is the culprit of these injuries.  Most common are lifting injuries.  These injuries usually occur when lifting patients.  They can occur due to lack of lifting equipment and understaffing.  Frequently we see back, neck, and shoulder injuries when it comes to lifting residents.   These injuries also occur due to lack of or sped up training due to understaffing.  It isn’t just sped up training though, many time it can be faulted to poor training programs.

We also see CNAs and LPNs injured by violent acts of residents.  Again, many times it is due to understaffing for patients with medical conditions that cause either violent tendencies or inability to understand or control reaction.  Fortunately, health care employees are speaking up regarding violence in health care facilities and demanding protections.  OSHA is considering new workplace violence standards.

We also see injuries occur due to lack of staffing because of employee fatigue.  Patient care is not easy.  It can be quite taxing.

Health care can be a quite rewarding career field.  Unfortunately, it is also a dangerous field, as health related work injuries now rank as high as construction work injuries.   The focus of understaffing at nursing homes should turn to patient care and employee safety.   For more information on workers safety in nursing homes, visit the OSHA website here.

Meanwhile, if you work in a nursing home in Pennsylvania and you have been hurt at work, protect your rights and potential entitlement to benefits.  Too many injured CNAs stay silent out of fear of their employer.  You don’t need to do that. Contact Mooney & Associates today for a FREE CONSULTATION.  Let us help protect you!  Call today at 717-200-HURT.

 

Seven Things to do in a Pennsylvania Slip and Fall accident

Thousands of people get hurt in slip and falls every year.  Often times these occur in places of business, such as grocery stores, retails stores, health care facilities and more.  The aftermath of these type of non-work related accidents can be overwhelming, worrisome, and costly.  Here, we provide you seven steps to take if you are a victim in a slip and fall accident.

  1. Get pictures.  I know, the last thing any person is concerned about when injured is taking pictures at the scene of the injury.   However, photos can be an important piece of evidence, as well as, an important tool for your attorney in evaluating the viability of your case.  If your slip and fall was the result of a defect, and you did not get pictures that day, return to the property and take pictures.
  2. Report the injury.  Many times, when a person slips and falls in a store, they are embarrassed.  They just get up, in pain, and go there way to try and get out of the store quickly.  Don’t do that.  Report the injury to the manager or property owner.  Property owners or managers must be made aware of the injury.  Report it.  Ask for an incident report after you report the injury.  Get the name of the manager or employee you spoke with to report the injury.  Get the name of any witnesses.
  3. Call Mooney & Associates.  Call us right away.  Call us at 717-200-HURT.  It is important that you contact us right away so we can guide you through the process and advise on what documents and forms to sign, and what not to.  Personal injury consultations with Mooney & Associates are FREE.  We will look at the circumstances and evaluate your case to determine if you have a viable case.  If so, you will be given a contingency fee agreement, which means, we do not get paid unless you get paid!
  4. Do not talk to Insurance Company.  Tall to Mooney & Associates first.  We can provide advice and guidance.  Recorded statements are meant to restrict and box you in.  Talk to us first.  Protect yourself.
  5. Treat.  Seems simple.  It is important when you are hurt in a slip and fall to seek medical treatment.  Follow your doctors treatment protocol.  Proper diagnosis is critical to getting your feeling better and recovered.  Keep notes and track your pain and treatment, it is critical for settlement evaluation.   Keep treatment information, like medical records, bills, insurance explanation of benefits forms, receipts, and more.
  6. Account for losses.  Keep an accounting of losses you incurred, such as deductibles paid, medical bills paid, prescriptions paid, and any other expenses you had to incur because of your accident.  Provide them to your attorney.
  7. Document changes.  Document changes you had to undergo, such as, things you have been restricted form doing, like hobbies, due to the injuries you suffered.  Document any wage loss you may have incurred due to the injuries.  Write it down, whatever you feel.  Keep a good injury and recovery journal.

Slip and falls are unfortunately too common.  Make your life and your case easier.  Follow these seven steps and protect yourself.

Mooney & Associates had 14 offices through South Central Pennsylvania.  That is for your convenience.  We bring our law firm close to you.  Simply call us at 717-200-HURT to schedule a FREE CONSULTATION.

Pennsylvania workers compensation time limitation for a claim

I am frequently asked questions on how long an injured worker in Pennsylvania has to file a claim and how long does an injured worker have to tell the employer about the injury.  They are extremely important questions and can have substantial impact on your work injury claim.

Statute of Limitation in Pennsylvania Workers Compensation

If you are injured at work, there are time limitations, called Statute of Limitations.  These time limitations are prescribed by law within the Pennsylvania Workers Compensation Act.  Generally, an injured workers has three years from the date you were injured to file a claim for workers compensation benefits.  Whether a Denial or a Notice of Compensation Payable is issued,  an injured worker has three years to bring a claim.  It is a bit different for repetitive type trauma.  These time limitations can run from the last day you worked due to the repetitive trauma.  Having the right medical evidence is crucial.  If you are beyond the statutory time frames, then your claim may be barred.

When the work injury results in death of the injured worker, a death claim must be filed within three years from the date of injury. In addition, the death of an injured worker must be causally linked to the work injury and occur within 300 weeks from the date of the work injury.

There are other complex nuances to timely filed work injuries.

Work Injury Notice Requirements

Statute of Limitations to file a claim is different than notice requirements.  The Pennsylvania Workers Compensation Act also provides time limitations providing notice to your employer that you sustained a work-related injury.

Many employees are told by employers that their claim is denied and they have no right to workers compensation benefits because they did not report the work injury the same day it occurred.  They are wrong!

Generally, you must tell your employer about the work injury within 21 days of the injury.  It is important to inform your employer that not only did you sustain an injury, such as a shoulder injury, but that it was caused by your job.   Reporting the injury within 21 days provides potential eligibility for wage loss benefits back to the day you stopped working.  If you fail to report the work injury within 21 days, you can still provide notice within 120 days.  If you report the work injury after 21 days, then it delays payment of wage loss benefits to the date you provided notice to your employer, instead of the date you went out of work due to the injury.  Failure to report the injury within 120 days may forever bar your workers compensation claim.

The best way to avoid pitfalls on filing a claim is to contact Mooney & Associates when you are injured at work.  Our consultations are FREE.  Your rights when injured at work are simply too important to leave to guessing or to rely on what your employer or adjuster tells you.   Your interests are paramount to us, your employer’s interest are paramount to them.  Call today at 717-200-HELP.  We have 15 convenient offices throughout Central Pennsylvania and seven of those offices hold evening hours throughout the week in various locations.

Bilateral Avascular Hip Necrosis found to be Aggravated by Work Injury

Mooney & Associates recently won a case for an injured Pennsylvania worker that included bilateral avascular necrosis.  The claimant had both left and right hips replaced and the insurance carrier was forced to pay for both hip replacements.

Generally, avascular necrosis of the hip (AVN) is a degenerative condition that is not completely understood by the medical community.  Essentially, avascular hip necrosis is a dying bone condition within the hip that in most cases will lead to a hip replacement.   It is not a condition that is caused by a traumatic injury, such as falling or getting hit in the hip with an object.  However, it is also a condition that many injured workers may have, but have no previous knowledge of such condition and no prior hip pain.

These types of non-traumatic conditions will almost always lead to the issuance of a workers compensation denial from your employer’s workers compensation insurance carrier.   Any ‘pre-existing condition’ such as degenerative disk disease, a prior surgery, a prior work injury, or a condition like AVN, will always trigger a denial.  That is a given.  That DOES NOT mean that your pain is not work-related, despite what your employer may tell you.

Every story is different.  Did you have pain or symptoms in that area prior to your work incident?  Have you gone a significant period of time with no treatment for a prior injury or surgery?  What does your doctor say?  There are many complex questions to be asked when dealing with a pre-existing condition.  There are strategies to be developed and positions to take.  Mooney & Associates has a strong track record in winning aggravation/exacerbation cases, just like our gentleman from Hanover, Pennsylvania with the bilateral hip necrosis.

Don’t let your employer tell you that you did not experience a work injury because of a pre-existing condition or because you are an older worker.  You do not need to take that.  Call Mooney & Associates today at 717-200-HELP to schedule your FREE CONSULTATION with Attorney Mark Buterbaugh or email him direct at mab@mooney4law.com.  We stand ready to protect and defend Pennsylvania injured workers!