(Transcript)

Good afternoon. My name is Cindy Speaker. Welcome to our Facebook live broadcast. I have with me today Bill Kovalcik, and Bill is an attorney and a certified workers’ compensation specialist in Pennsylvania. He’s going to talk with us about pending legislation and trends in pain management, as well as initial steps to take after being injured at work. Why don’t you go ahead and tell us how long you’ve been doing this, Bill?

Bill Kovalcik: Well, I started practicing in 1985. About a year and a half later I became a workers’ comp attorney, so it’s going on 31 years now.

Cindy Speaker: That’s a long time.

Bill Kovalcik:  It sure is.

Cindy Speaker: That’s a long time. Let’s jump into our questions here. First of all, talk to us about pending or recent legislation that is likely to effect the workers’ compensation system in Pennsylvania.

Bill Kovalcik: There’s two bills that I’m interested in right now that I think are significant as far as the workers’ compensation system is concerned. The first one is in the House of Representatives. It’s being sponsored by Curtis Sonney, and Representative Sonney has introduced this before. Previously, it was House Bill 592, it never got voted on. In any event, he’s reintroducing it, and the gist of it is that the Workers’ Comp Act will be amended to cover EMS personnel when they’re not on duty. Now, this is significant because normally, if you are a volunteer EMT, or you work for hire for a company, or for a fire company, or ambulance, you’re only covered when you’re actually on the clock. Now, he wants to encourage both paid and volunteer EMS people to jump in if they’re off-duty and they see a problem, come across a car accident, whatever.

Right now, if they did it and they got hurt, there’d be no coverage. So he wants to cover them at all times, basically 24/7, and if they are ever offering assistance, they’ll be covered. I don’t know if there is a lot of opposition to this. I certainly believe the insurance industry would look at it as an extension of liability, which would be a further cost to them, but we’ll see once the process begins. I think that’s a very good bill, and those of us in the business should get behind it, because very useful. If you’re a workers’ comp attorney, or just someone who’s sympathetic and interested in the system, in the plight of injured workers, contact your state representative and show your support for that bill.

Cindy Speaker: Yeah, that sounds like a great bill.

Bill Kovalcik: A very, very good idea, I believe. There’s another one that those of us on the side of the aisle are not getting behind, and it basically involves what is called evidence-based drug formulary. It’s kind of hard to say, but what it basically means, and there are other states who have already enacted this. It basically means that there are going to be specific guidelines on how, and when, and where, and under what circumstances doctors can prescribe medication. So, the purpose of it is number one, to control costs for employers and insurance companies, and ostensibly, at least according to the representative who’s introducing it, Ryan McKenzie, one of the purposes is to control what is, according to some, an out of control opioid epidemic in Pennsylvania.

They say, and probably true, that many of the people on these drugs are injured, and many of them were injured at work, have chronic pain, whatever. This has happened in other states, and one of the problems that we see with it is that it removes the discretion from the doctor. No longer will a doctor just evaluate the patient based on that doctor’s experience and skill, but he’ll be subject to a formula so that, if he believes the individual needs a medication, it must comply with their formula or else he can’t prescribe it, it won’t be paid for by the insurance carrier. This probably would also spawn litigation as well, so I don’t know if it will pass, but I would think there’d be significant opposition from our BAR, and our legislative people, so if you are, in fact, against such a change to the Workers’ Comp Act, contact your local representative and voice your displeasure.

Cindy Speaker:  Yeah. Bill, what are you seeing in terms of trends in pain management in the medical community?

Bill Kovalcik: Well, that’s interesting. It’s a good segue because I was thinking about this recently, that there are a lot of doctors who are conscientious about narcotic medications because people get on them, and after a number of years, they’re addicted. The doctors don’t want that, obviously they don’t intend that, so there are alternative type treatments that are becoming more and more popular in workers’ comp. The reason we know about them is they’re often the subject of litigation. One of the common treatments is called the spinal cord stimulator, where the doctor will go in and put an electronic stimulator on the person’s spine, under the skin, with leads attached to various areas, to interrupt the pain signals that go to the brain.

This is a very expensive procedure. It’s kind of controversial because some doctors believe it doesn’t ever work, others believe it does in certain instances. I’ve seen it be effective in some of my clients, others not so much. Anyway, the purpose of it is to scale back or remove completely the dependency on narcotic medications and replace it with this little electronic box. There’s another thing that does a similar thing, and it’s what we call compound creams, or analgesic creams. Again, there’s a lot of litigation over this, and this is what they are. Maybe a person is taking narcotic medications orally, and it’s addictive and whatnot, but they’ve invented this thing that’s a cream that’s made up of various medications that stop pain. So the person rubs the cream on the affected area and feels better.

It’s not addictive, they’re not eating them, and a lot of doctors are really going in this direction. However, what we found is that most insurance companies in Pennsylvania, workers’ comp carriers, are challenging these bills because this cream is very expensive. So, we get into a lot of litigation where they’re refusing to pay for it, there is a utilization review process to try to determine if it’s a reasonable or necessary treatment, so we’ve been involved in a lot of litigation over it. Unfortunately, it’s all about cost, because a lot of my clients have told me that that stuff works great. They’re happy. Now, they just rub a cream on their knee instead of eating a pill every morning or whatever. Same thing with the spinal cord stimulator. If it works, it really could change your life, but it’s a six figure proposition. That’s what the insurance companies don’t like.

Cindy Speaker:  Oh my, yeah.

Bill Kovalcik: I’m seeing a lot of this, but unfortunately a lot of it’s ending up in litigation. Spinal cord stimulators, at least in my practice, have become more and more popular for people with chronic pain, people who just aren’t getting better.

Cindy Speaker: Yeah, it’s good to have. I mean, these sound like very promising things, but certainly the cost is a huge issue for many people. Huge.

Bill Kovalcik: Yeah, that’s true.

Cindy Speaker:  I’m sure the insurance companies are fighting this tooth and nail.

Bill Kovalcik: Right, and it’s because of the cost. Unfortunately, I think this echoes what’s going on in the country, is that healthcare costs are so high it effects everything. It effects our people, the injured workers, and us with the litigation involved over these massive charges.

Cindy Speaker: What about any pending cases that are dealing with some of these issues? Are you knowledgeable about any of that?

Bill Kovalcik: We workers’ comp attorneys are paying attention to the Protz case, P-R-O-T-Z, Protz. Protz was a case that found unconstitutional a section of the Workers’ Comp Act, and this was back in late 2015. That particular section was the section that has to do with impairment rating evaluation. Impairment rating evaluation is a procedure whereby after two years on comp, the individual’s subject to an examination, if he’s 50% or less disabled, his claim is there tapped, right there, at 500 more weeks. The evaluation of the percentage of the impairment is done pursuant to what’s called the American Medical Association guidelines of permanent impairment. Now, when this law was enacted back in 1996, it was the fourth condition of those guidelines that was in effect. When the process started beginning, it was under the fourth edition. Now, the years have passed, and like any other guideline or journal, it’s been amended. It’s been updated, so now we’re on the sixth edition. The court found that every time the American Medical Association changed their guidelines, they changed the law in Pennsylvania, and you can’t do that.

That’s an unconstitutional delegation from the legislative body to the AMA, so they invalidated it, which threw everything up in the air, because there are a lot of cases that are currently being impairment rating valued. There are ones that have already been, so a lot of appeals by injured workers were filed, and we made motions to stay cases, and it really has a big effect on everything, because sometimes if you’re looking to settle your case, it’s important to know whether the impairment rating was granted, not granted. It’s a big factor. A lot of cases are on hold. We’re waiting for the Supreme Court of Pennsylvania to determine what the law is, and then we’ll all have to start over. That’s an important thing, and it’s going to impact a lot of people who are on comp right now.

Cindy Speaker: Yeah, very interesting. You know, Bill, this is a lot of great stuff, and a lot of very current stuff. I think what we’ll do is, I’m going to get what you’re talking about today, let’s get this transcribed, and we’ll provide it after the fact for people that want to look specifically at some of these issues, the legislation, how to contact their legislators and things like that. Let me go back for a minute, and let’s just talk about, what are the initial steps that someone should take if they’re injured at work?

Bill Kovalcik: I find this to be an important thing to talk about, because a lot of times people don’t hire an attorney until they’re well into their workers’ comp case, and sometimes mistakes have been made, and they don’t know, it’s their first time. I like to try to educate people, so before you come to an attorney, immediately when the injury happens, you certainly have to report it. There are a lot of problems when you don’t report it right away. Now the law says, if you report it within 120 days, you can still bring an action. However, even a couple days delay in reporting, in my experience, causes employers to be suspicious, causes insurance companies to deny claims. This is the advice we’re always giving. Immediately report it, and not just to your coworker, to whoever’s in charge. To the HR, to the foreman. Make a written report, if possible.

That’s something we want to make sure people know, and then this is one of the parts of the Workers’ Comp Act that is routinely violated, and it’s called the panel of physicians. The law requires everybody who gets hurt is supposed to be given this panel, this list of six doctors that they can treat with in the first 90 days. It’s supposed to be posted in a conspicuous place, too, and often it doesn’t even exist. So the people, they get hurt, and somebody from the employer, a safety person or HR person says, “You go to Dr. X,” one doctor. They want to control it, and they want to send you to one clinic or one doctor, and I say to people, that’s illegal. They have to give you the list. They can’t direct you to one physician. So, a lot of people don’t know that, and they certainly have the right to object to that. I tell them, “Make sure you get the list.”

Cindy Speaker: That’s very interesting. That is not something I’ve heard before, because that, I think very typically, is exactly what you said, is that the person is told, “Go to this doctor.”

Bill Kovalcik: Very typical.

Cindy Speaker: Who makes up that list? Who decides on the six doctors?

Bill Kovalcik: Usually, the insurance carrier will have knowledge of what doctors are in the area who do workers’ comp, and they’ll provide that list to an employer. Often, that list will have the insurance carrier’s name at the bottom, so they’re being advised, “This is who’s going to cover your claim.” But for some companies, it just doesn’t exist.

Cindy Speaker: What about, is there a point where they can see their family doctor, or long-term, do they have to treat with the doctors that the insurance company tell them to?

Bill Kovalcik: Currently in Pennsylvania, the law is that the first 90 days after the injury, you must treat with a doctor on that list if you wanted to get paid. That doesn’t mean you can’t go to your family doctor, you’re just going to have to put it on your health insurance. If you want to get paid by comp, the doctor bills, you have to treat on the list. Now another interesting thing is during that first 90 days, you can treat with anybody you want if they don’t give you the list. Because obviously if they don’t give it to you, there’s no way to know.

Cindy Speaker: Interesting.

Bill Kovalcik: People don’t know this, and insurance companies often don’t abide by it, because I’ll say to people, “They didn’t give you a list? Go wherever you’d like.” But I know darn well those bills are going to be denied, and I’m going to have to go to court and fight it. We play the game there. One of the other things in the insurance company and the employer’s attempt to completely control the treatment is, they hire what is called a nurse case manager. This is a nurse who’s employed by a company who contracts with insurance companies to supervise the treatment. Now, this supervision may include actually showing up at the doctor’s office, it may include talking to the doctor whether or not the injured worker is even present.

We find this practice to be not in the best interest of our clients, and as soon as we get involved, we ask the nurse to close their file, which they promptly do because they have no legal right to be involved in confidential medical treatment unless the injured worker gives them that right. So, we revoke any medical authorization to this nurse because many times we see, they will talk to the doctor on the phone, get the restrictions changed, refuse treatment, things like this that really they have no right to do, so that’s one of our practices.

Cindy Speaker: Interesting. So many of these things that you’re mentioning, I think it just as clearly showing us that the value of speaking with an attorney. Am I correct, you guys offer a free consultation, I believe, don’t you?

Bill Kovalcik: Certainly. Even better than that, and I wasn’t going to talk about this, but it’s really important. I will say to people, hire an attorney right away. “Well, I got hurt and they’re paying me, why do I need an attorney?” Just for this reason. You need advice, you need guidance, and the great thing about it is it costs you absolutely zero, because we don’t get paid unless we go to court. If we’re in the preliminary stage of a claim and you’re getting paid, we’re just supervising you. We’re just babysitting your file. We’re answering your questions, we’re making sure your rights are protected. We are not charging a fee. In comp, we get a fee if we go to court, no other time.

Cindy Speaker: Wow. Seems like a no-brainer. It really does, I’m not just being cute here with that comment. Honestly, it really does. So, let me ask you this. How long, if someone gets on workers’ compensation, is there a certain time limit as to how long they can be on it?

Bill Kovalcik: We get this question a lot, because there’s a lot of misunderstanding about the length of a comp claim. My answer to people who ask me this is, I don’t know. Every case is different. That sounds like a vague answer, but it’s true. There are some people who get hurt, they’re on comp for three weeks and they go back to work. Well, their case lasted three weeks. There’s some people who have been on comp for 15 years, because they have chronic injuries, or maybe even paralysis that’s permanent. Anyway, what we can say about it is this. After two years, as I was discussing before, they can have an impairment rating evaluation. This is usually for chronically disabled people, and if they’re successful with the less than 50% rating, the claim is capped at 500 weeks.

At that point, 9.6 years, whatever additional. That claim, if it ran its course, would have been over 11 years. Those claims are very rare. Most people either go back to work, or they settle the case before that lengthy time period, because insurance companies don’t want to pay anyone for 11 years if they don’t have to. What I say is that not every worker’s comp case settles. The ones that do are the ones with those chronic disabilities where an individual is not going back to his or her job, the company knows that, understands that, accepts that. Both parties want to move on, and the disability is significant enough such that it’s going to be difficult to show that this individual can work in a full legal capacity.

That’s where the attorney gets involved, helps the individual to value the case, negotiates the case. If the case settles, it has to go to a hearing where the judge approves it. That’s just a formality, they do approve all of them, but I try to stress to people that settlement, when we talk about settlement in workers’ comp, it’s not what the traditional word usually means in litigation. We’re not talking about pain and suffering, or how awful this has been, and of the value of that to you and your family, how it’s changed your life. None of that is relevant. This is basically an insurance company looking at your claim, determining the history of it and how much you’ve cost them, and wanting to put a cap on those costs, and looking into the future about how much are you going to cost them in the future? Taking a portion of that money, giving it to you now to close the file. That’s basically what it is.

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