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Pennsylvania Commonwealth Court: Experts Need Not Be Eyewitnesses

commonwealth court logoIn a recent case, the Pennsylvania Commonwealth Court upheld an injured worker’s right to ongoing medical benefits even though there was no medical evidence specifically documenting the ongoing disability.

The injured worker, Anthony Fitzgerald, sustained serious injuries when he fell from a roof and landed on a cement slab on March 16, 2009.  Mr. Fitzgerald treated with a Dr. Collins who last examined Mr. Fitzgerald on November 25, 2009. Dr. Collins testified that at that last visit  he anticipated that Mr. Fitzgerald would be able to return to work in about six weeks. However, Mr. Fitzgerald was not able to return to work and he testified regarding his continuing problems with headaches, poor balance, and pain in his left eye.  The Workers’ Compensation Judge awarded Mr. Fitzgerald benefits on an ongoing basis without any set cut-off date.

The employer in this case was not carrying workers’ compensation insurance. Therefore, the case was defended by the Pennsylvania Uninsured Employers Guaranty Fund (UEGF).  The UEGF argued on appeal that the Workers’ Compensation Judge erred in awarding benefits to Mr. Fitzgerald beyond November 25, 2009.  The Workers’ Compensation Appeal Board and the Commonwealth Court both rejected the UEGF’s argument that there was insufficient evidence to warrant an award of benefits beyond November 25, 2009.  The Court held that, “Although Dr. Collins anticipated that Claimant would be able to return to work, the WCJ correctly declined to suspend Claimant’s benefits based on his speculation.”  The Court, in reviewing past relevant cases, affirmed that, ” a claimant’s medical expert is not required to be an eyewitness to the claimant’s disability throughout the pendency of a claim petition.”

The Court determined that claimant’s own testimony along with the medical testimony presented was a sufficient basis for the Workers’ Compensation Judge to make the award for ongoing benefits.

Getting the right medical treatment for your work injury is important to your health and well-being and contributes to a positive outcome in your workers’ compensation case.  Banks Law has a network of the finest physicians in the Philadelphia area who will treat you with the respect you deserve.


For more information about medical treatment for work injuries, check out Erica Burry’s video Treating With The Right Doctor Under Pennsylvania Workers’ Compensation.

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Establishing Your Average Weekly Wage

Under the Workers’ Compensation Act, you are entitled to wage-loss benefits equal to two-thirds of your weekly wage for a work-related injury. Your average weekly wage (AWW) is calculated on the date of your work-related injury. Your AWW is the sum total of all gross wages (before taxes) from every employer that you worked for at the time of your injury, including overtime, bonuses, tips (if reported to the IRS), board, lodging, sick pay and vacation pay. It is important to make sure that your AWW calculation is made correctly because your weekly benefit amount is based solely on your AWW, and the benefit amount never changes.

Worker’s compensation insurance carriers are notorious for miscalculating injured workers’ AWWs.  The law gives you an opportunity to argue for a higher AWW calculation in your claim. An experienced workers’ compensation attorney will make sure your AWW is correct.

A few dollars more per week in your AWW calculation could result in a substantial amount of money over time. Contact us at Banks Law to ensure that you get all the money you deserve.

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How the SSA Determines Disability Claims

For all people applying for Social Security Disability Insurance (SSD) and Supplemental Security Insurance (SSI) benefits, the definition of disability is the same. The Social Security Administration defines disability as “the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d).”


In everyday language that means:  in order for you to be considered disabled by the Social Security Administration, you cannot perform any work because of a serious medical condition that is diagnosed by a doctor.  The condition will last for at least a year or, in all likelihood, will cause your death.  The Social Security Administration needs to have more than your word that you cannot work.  They need to hear it from a doctor and usually want test results that back up the doctor’s claim.


Most disability claims are initially processed through local Social Security field offices. SSA representatives in the field offices receive initial applications for SSD and SSI benefits, either in person, by telephone, by mail or via an online application process.  At this stage, the SSA will attempt to verify the information submitted in the application by having its representatives contact claimants for more information.


When an initial claim is denied, you can appeal the denial. If SSA also denies the appeal, the case moves to a hearing office within the SSA called the Office of Disability Adjudication and Review (ODAR). Here, the case is scheduled before an administrative law judge for a hearing. The judge issues a decision on the case after receiving additional medical evidence and holding a hearing with you present.  The entire application process- from filing the initial application through the hearing- takes approximately one year to complete. The key to obtaining your disability benefits as soon as possible is to have continuing medical treatment and an experienced Social Security attorney by your side.

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