Month: April 2022

You have gone through litigation in your Workers’ Compensation case and the Workers’ Compensation Judge (“WCJ”) found in your favor.  Congratulations, you’ve won!  What if, however, the Judge’s decision is unfavorable to you?

When a WCJ makes a decision, they issue a written Decision and Order that lays out their “findings of fact” based on the evidence submitted during litigation and “conclusions of law” based on those facts.  If the WCJ decides against you, the decision to file an appeal will depend on several factors, mainly, on the findings of fact and conclusions of law determined by the WCJ.   It is important to understand the steps for filing an appeal, in case you are involved in this process.

There are certain bases provided by law that may support an appeal. Some examples include:

• The award does not conform with the terms of the Workers’ Compensation Act
• The WCJ made a mistake about the law
• The findings of fact were not supported by sufficient competent evidence
• The findings of fact were procured by fraud, coercion, or other improper conduct of a party
• The findings of fact and conclusions of law do not clearly and concisely state and explain the rationale for the decision so as to provide the basis for meaningful appellate review.

What is the process? 

If you did not have an attorney during the initial process, it is highly recommended you consult with an attorney about a possible appeal.  Most importantly, an appeal must be filed within 20 calendar days of the WCJ’s decision. This consists of completing a Workers’ Compensation appeal form and filing it with the Workers’ Compensation Appeal Board, sometimes referred to as “WCAB” or “Board,” which is the primary body that reviews WCJ decisions.

The appeal must be written with specificity or else those issues not raised on appeal will be waived and you lose the opportunity to challenge those issues further. That is why having an attorney is crucial. After an appeal is filed, a panel made up of Commissioners from the Board will hear oral argument and accept briefs from both sides.  Briefs are concise and detailed written statements that summarize the pertinent facts and law in support of your case.

Upon completion of the briefs, the parties will make oral arguments to the Board, setting forth their arguments, responding to the Board’s questions, and clarifying any additional issues.

The Board will then issue a written Opinion, usually within 60 days. The Opinion can: (1) either affirm the Judge’s Decision and deny the appeal; (2) overturn the Decision and grant the appeal; (3) grant the appeal in part; and/or (4) remand the Decision to the lower court for additional rulings.

What can the WCAB do?

On appeal, the scope of the Board’s review is limited to the evidence that was submitted before the WCJ.  So, you will not be able to submit additional evidence on appeal – the Board will not consider it. The Board may review whether the findings of fact made by the WCJ support the conclusions of law, but they will not make new findings of fact unless the WCJ failed to make findings of fact on a crucial issue necessary for the proper application of the law.

Also, the Board will not disregard findings of fact relied upon by WCJ unless it is clear that the evidence did not support the WCJ’s decision. I can tell you that this happens in only rare occasions.  The Board does not like to disregard, findings of fact made by the WCJ because the WCJ is the person who heard all the evidence, observed witness testimony, and made credibility determinations. In fact, by law, the Board can only make or alter credibility determinations made by the WCJ in the rarest of instances.  Therefore, if the WCJ makes a finding of fact that a witness is credible or incredible, the Board is not likely to change that finding on appeal.

The Board will then do one of several things: (1) they can remand the case back to the WCJ to take additional evidence, if necessary; (2) reverse the WCJ’s decision; or (3) affirm the WCJ’s decision.

A decision by the Board may be appealed further to the Commonwealth Court.  Like the WCAB, the Commonwealth Court will hear oral argument, review briefs, and issue a decision. Differing from the WCAB appeal process, however, is the time limit to file an appeal with the Commonwealth Court.  An appeal to the Commonwealth Court must be filed within 30 calendar days of the WCAB decision.

What if I disagree with the Commonwealth Court’s Decision?

The final step in the appeals process is an appeal to the Pennsylvania Supreme Court. You have 30 days from the day the Commonwealth Court Decision is issued to file a “Petition for Allowance of Appeal” with the Pennsylvania Supreme Court. Unlike the Appeal Board and the Commonwealth Court, the Pennsylvania Supreme Court can decide whether or not they want to hear your case. Usually, they will hear a case if there has been a glaring legal or factual error by one of the lower courts, or if the case is about a novel, or new, issue that has never been decided in Pennsylvania.

If the Pennsylvania Supreme Court denies your Petition for Allowance of Appeal, the Commonwealth Court’s Decision is final, and whatever they decided is the outcome of your case.

If the Supreme Court hears your case, they will issue a Decision. The Supreme Court’s Decision is final and can no longer be appealed.

Contact Us

If you have gone through litigation on your own and lost, it is not too late to retain an attorney and challenge the decision. Contact our office for a free consultation. We may be able to help.

 

The Workers’ Compensation Act includes occupational disease in the definition of injury. Specifically, the coverage of occupational diseases applies with respect to the disability or death of an employee which results in whole or in part from the employee’s exposure to the hazard of occupational disease. Essentially, the disease must have been caused by or related to a person’s employment.

What is considered an occupational disease “injury”?

Any disease caused by employment and related to it is compensable. Additionally, even if an employee has a preexisting, nonoccupational disease, if that disease is aggravated by occupational exposures, it qualifies as an injury under the Act. Some examples of injuries under the Act are bronchitis, pneumoconiosis, asthma, and dermatitis that were developed as a result of occupational exposure. Moreover, a disease resulting from medical treatment for an occupational injury is compensable. For example, if, while getting treatment for a work injury, you contract a disease from a blood transfusion, that is considered a work injury.

One common type of “injury” that can be aggravated is asthma. For example, many individuals have non-work-related asthma (i.e., they have had asthma their whole life).

Course of Employment

In order to be compensable under the Act, occupational disease must arise within the course of employment.

The course of employment may be established by either: (1) evidence that an occupational disease hazard exists at the particular place of employment (factory hazard); or (2) evidence that the disease is a hazard of the industry or general occupation (industry hazard) in which the employee is engaged. This permits the application of the rebuttable presumption of causation.

Certain Diseases have a Presumption

The course of employment may be established by either: (1) evidence that an occupational disease hazard exists at the particular place of employment (factory hazard); or (2) evidence that the disease is a hazard of the industry or general occupation (industry hazard) in which the employee is engaged. This permits the application of the rebuttable presumption of causation.

Certain diseases, once established as a diagnosis, are entitled to a presumption that they were caused by employment. This means that the employee does not need to prove that the disease arose out of and in the course of employment; rather that the disease arose out of and in the course of employment.

Some examples of these diseases that carry a presumption include:

• Hepatitis C if you are a professional/volunteer firefighter, volunteer ambulance corps personnel, volunteer rescue, and lifesaving personnel, emergency medical services personnel, and paramedics

Disability or death must “result from” the occupational disease

The Act requires that disability or death must result from an occupational disease.

Firefighter Cancer

The Act includes an amendment to the enumerated diseases, adding a subsection to specifically address cancer suffered by a firefighter that is caused by exposure to a known carcinogen, recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.

Entitlement to compensation under this subsection is limited to firefighters who:

• Have served 4 or more years in continuous firefighting duties
• Can establish direct exposure to a carcinogen
• Successfully passed a physical examination prior to asserting a claim or before engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer.

When do I need to notify my Employer?

The time for giving notice begins to run when you have knowledge, actual or constructive, of a disability in existence resulting from occupational disease, as well as having a possible relationship to the employment. Typically, this is when the employee stops working because of their occupational disease.

Contact a Lawyer

To help determine if you have sustained an occupational disease as a result of your employment and are entitled to Workers’ Compensation benefits, give Stern & Cohen a call at 215-999-1443.