Workers' Compensation Blog

If your employer has a posted list of approved workers’ compensation medical providers and you are provided with that list after your injury, you must treat with one of the providers on the list for the first 90-days of treatment or the workers’ compensation carrier may not be responsible for payment of the bills for your treatment. However, you do have an ABSOLUTE RIGHT to choose any doctor on the list and you cannot be compelled by your employer to seek treatment from one of the providers that they prefer. If your employer does not provide you with a list of providers, then you can choose to treat with any doctor. Sometimes employers try to steer you toward their preferred initial provider by making an appointment for you or offering to transport you to the appointment. You are never required to see the provider chosen by your employer.

When is an injured worker entitled to specific loss scarring benefits? Scarring benefits are known as “Disfigurement Benefits” and are a special type of specific loss benefit. Disfigurement benefits are payable to injured workers who sustain permanent burns, scarring, discoloration, or other disfigurement to the head and neck ONLY. The injured worker is entitled to disfigurement benefits when the disfigurement is a direct result of an acute injury such as a burn suffered directly to the workers’ face after falling onto a blow torch.

However, an injured worker is also entitled to disfigurement benefits if the scarring is the result of surgical procedures or other medical treatment for a work injury that causes scars of the head and neck. Also within the last two years the Commonwealth Court held that the loss of teeth was also payable as a disfigurement benefit even if the injured worker received dentures which masked the lost teeth. The court reasoned that the loss of teeth was “permanent” as the original teeth would never return. Also the Court ruled that a Judge in determining the total amount of weeks to award of lost teeth must view the mouth without the dentures in place.

If you have questions about whether or not you might be entitled to Disfigurement Benefits, contact one of the experienced attorneys with Prince Law Offices.

A frequently asked question by clients is “Must my employer offer me a lump of settlement?”. The answer to that question is “no”. There is no requirement under the Act that requires an employer to offer a lump sum settlement. Additionally, you cannot force the employer to settle. Likewise, your employer cannot force a settlement on you.

In many cases it is to the mutual benefit of the employer/carrier and the injured worker to settle the workers’ compensation claim. You must determine if a settlement is right for your circumstances. You must also decide if it is appropriate to settle only the wage loss portion of your claim or also give up all future rights to medical treatment as well. These determinations MUST be made on a case by case basis as every injured workers’ case is unique.

Failure to deal with all of the issues involved with settlement may have unforeseen consequences including effects on your receipt of other benefits such as Social Security Disability Benefits. Settlement negotiations require the skills of an experienced workers’ compensation attorney.

The Bureau has proposed some new rules and changes to old ones for practice before the Workers’ Compensation Judges and the Appeal Board. They’re just proposals at this time. If you have any interest in them, you can find the actual rules by clicking here

9/16/08: Shocking news. One of the world’s largest insurance companies, American International Group Inc. (AIG), took out an $85 billion emergency loan from the Federal Reserve. Why? The firm was near failure because of stresses caused by the collapse of the subprime mortgage market and the credit crunch that ensued. On the day of the announcement, AIG shares sank to $2.41, having traded as high as $70.13 in the past year. Before its fall, AIG had been ranked 35th in a Forbes magazine list of global companies, so this could happen to any other insurer just as easily.

Many of our own Workers’ Compensation clients are being paid by AIG. How does this affect them? Moreover, what happens if this happens to yet another insurer?

There is some good news. Claimants who are due wage loss checks next week from AIG will indeed get them. The bailout assures that.

However, even if AIG went bankrupt, there are protections. If your employer, insurance carrier or self-insured employer goes bankrupt, the Pennsylvania legislature has included in the Workers’ Compensation Act provisions to insure that you will still receive benefits through either a State guaranty fund or a specialized insurance policy. And that’s some reassuring news during this financially uncomfortable season.

If you are working with restrictions and earning less than your pre-injury wage then the workers’ compensation insurance carrier must pay you two-thirds (2/3) of the difference between your pre-injury wage and your post-injury wage. These payments are known as Partial Disability Benefits. It is important to remember that if you refuse to perform the light duty job because it pays less, you will jeopardize your entitlement to ongoing wage loss benefits.

It is important to understand that your employer has no obligation to find you work that complies with the restrictions placed on you by your doctor. If they do not offer you light duty they should be paying you Temporary Total Disability (TTD) benefits. If your employer lays you off while you are on restrictions from your doctor, you should receive TTD benefits.

It is also important to understand that if your employer offers you work within the restrictions placed upon you by your physician and you refuse to return to work the workers’ compensation carrier can and will file a petition to reduce the amount of benefits they are paying to you or even stop the TTD benefits based upon your refusal to return to work.

The decision to return to work after you are injured can be difficult and must be made with the advice of your treating physician. However, you must realize that whatever choice you make can impact your ongoing right to workers’ compensation wage loss benefits. If you are considering a return to work contact an experienced attorney at Prince Law Offices to discuss the impact that a return to work may have on your workers’ compensation benefits.

If your work injury is accepted and you are removed from work by your treating physician you will begin receiving Temporary Total Disability Benefits (TTD). The PA Workers’ Compensation Act determines your compensation rate. A calculation will have to be performed by the carrier in order to determine your compensation rate. You will either receive two-thirds(2/3) of what your gross earnings were prior to the injury or ninety percent if your earnings were less than a set amount of week as determined each year by the Bureau of Workers’ Compensation. For 2008 if your earned $448.32 or less each week you will be entitled to 90% of your gross earnings. If you earned between $448.33 and $605.25 your compensation rate is fixed at $403.50 per week. If you earned $605.26 and above you will be entitled to two-thirds of your gross earnings. There is a cap to what you can receive in WC benefits. For 2008 that amount is $807.00 per week. Every year the Bureau of Workers’ Compensation performs new calculations. If you think that you are not receiving the correct amount of compensation or if you have any questions about your Average Weekly Wage and Compensation Rate please contact an experienced attorney with Prince Law Offices.

The PA Workers’ Compensation Act does require employees to treat with a medical provider on the employer’s list of designated physician’s for the first 90 days after the work injury. However, that requirement is not absolute. The list of medical providers must be clearly posted at the workplace AND your employer must get a written acknowledgement of the panel list both at the time you were hired AND again when you are injured.

You must remember that if the panel is not listed at work or your employer failed to have you sign an acknowledgement both at the time of hire and at the time of injury you are free to treat with a doctor of your own choosing from the very date of injury forward and the workers’ compensation carrier will be liable for payment of medical treatment that is reasonable, necessary and related to the work injury.

Another question that arises in many cases is: “what if I need chiropractic care and a chiropractor is not on the panel list?” The PA Supreme Court has held that your employer is liable for chiropractic treatment if the employer’s list does not include a chiropractor and chiropractic treatment is proper for the particular work injury sustained. Failure to include a chiropractor on the panel list in such a case will result in employer liability to pay for the chiropractic treatment for the statutory 90 day period following the injury. If you have questions about whether or not you have to treat with a panel physician for the 90 day period following your injury please contact one of the workers’ compensation specialists with Prince Law Offices.

The term employee in PA generally means someone who works for an employer and receives valuable consideration (salary and/or benefits) for their work. Volunteers and independent contractors (those who work for themselves and do work for others on a contract or per job basis) are generally not employees. However, in PA, certain types of volunteers are treated as employees. They are called statutory employees (as they are given employee status by the PA Workers’ Compensation statute) and include volunteer firefighters, volunteer ambulance workers, fire police, special school police. volunteer HAZMAT team members, volunteer forest firefighters, volunteer game protectors and other similar volunteers.

If an individual gets hurt or contracts a disease while performing their volunteer duties in these volunteer positions, they are entitled to payment of workers’ compensation benefits as if they were a regular paid employee. The municipality under whose control they perform their volunteer duties is considered the employer. The rate of benefits paid to these employees is based on the greater of their earning from their “regular” job or the State Wide Average Weekly Wage in effect at the time of the injury.

The Pennsylvania Workers’ Compensation system was designed to provide wage loss and medical benefits while an injured worker recovers from a work injury. However, quite often, these claims end up before a Worker’s Compensation Judge in the carrier’s attempt to reduce or even stop those benefits. If these attempts go to a decision, one side generally wins and the other loses. One way for both sides to avoid the risk of losing is to enter into a mediation.

In workers’ compensation cases, these mediations are now mandatory unless a party declares such negotiation futile.

Before any mediation, you and your attorney will discuss your settlement strategy. The mediation itself is a pretty informal conference with all the parties present before a judge who is not hearing the case. That mediating judge has no interest in the outcome of the case and is not the one who will make the final decision. That Judge will attempt to draw the parties to a “meeting of the minds”. Sometimes, the parties are able to settle the case during the mediation. At the very least, however, it does bring the parties together in an effort to avoid the risk of losing.

What happens when an Independent Medical Evaluation (IME) doctor releases an injured worker to return to work? Must the injured worker return if the employer offers a job? The short answer to this questions in “No”.

The workers’ compensation carrier has the right to compel an injured worker to attend an IME once every six months. That IME doctor will make it clear at the beginning of the examination that there is no physician/patient relationship created based upon the examination. The physician is hired by the insurance carrier to provide an opinion based on a single examination. The IME physician will not be providing treatment of any kind to the injured worker. Just because that physician opines that the injured worker is able to return to work in some capacity does not mean that the injured worker MUST comply.

Instead, the injured worker should rely on the advice and opinion of his/her treating physician. The treating physician, in most cases, will have treated the worker for months and perhaps years prior to the IME. If the treating physician does not believe that the worker is able to return to work in any capacity the worker should follow the advice of the treating doctor. Many times treating physicians disagree with the opinions of the IME physician. It is up to a Workers’ Compensation Judge to determine which doctor is more credible and if a worker is able to return to work.

Remember, if you receive a job offer from your time of injury employer based upon an IME physician’s opinion but your treating doctor does not believe you are able to return to work, you need the advice of an experienced attorney because your file is being readied for litigation by the insurance carrier.

There seems to be quite a bit of confusion about when an employee in Pennsylvania must report an injury to their employer. Recently, I encountered an injured worker who tried to report an injury one week after it occurred. The employee hurt her back, but figured it was just a minor strain and that it would go away in a few days. When it did not, she tried to report the injury to her employer, but was told it was “too late.” The employee policy, set out in the employee handbook, required that notice of the injury be given within 48-hours.

While such a short deadline for reporting an injury may be set by the employer as part of its “employee policy,” this deadline does not replace the deadline for reporting work injuries contained in the PA Workers’ Compensation Act. The PA Workers’ Compensation Act provides that an employee has up to 120-days after the date of injury to give notice to their employer. If notice is given within the first 20-days after the date of injury, then the employee can collect benefits back to the first day of their disability. If notice is given between day 21 and day 120, then benefits are payable back to the date of actual notice.

In PA, the 20/120 day notice requirement does not always begin on the date that the injury occurred, but on the date that the employee knew, or should have known, that they suffered an injury and that it was likely related to their work.

If you report an injury and are told by your employer that it is “too late,” do not assume that your employer is correct and fail to pursue a claim for workers’ compensation. Consult an attorney who can advised you of your rights and responsibilities under the PA Workers’ Compensation Act.

Many injured workers whose claim has been denied are prescribed medication, but don’t know how to get the medicine they need. Until you are successful in litigation, the workers’ compensation carrier does not have to pay for your work-related medical care, including prescriptions.

Your first alternative is only available if you are lucky enough to have health insurance. Namely, if your workers’ compensation claim is denied, your health insurer must pay for your work-related medical care. Once you are successful, the workers’ compensation carrier has to reimburse that health insurance carrier for any expenses it covered while the case was in litigation.

But what about those people who have no health insurance, or whose health insurance has been canceled?

It’s pretty unlikely that your local pharmacy will cover your expenses on credit. Some private companies, like Injured Workers Pharmacy, might supply your meds during litigation. However, your first step may be to contact the Partnership for Prescription Alliance (PPA), designed to help low-income, uninsured Pennsylvania residents get free or discounted brand-name medicines. State agencies and community organizations have worked together with America’s pharmaceutical companies to develop PPA. Pennsylvania injured workers who need their assistance can go to: http://www.pparxpa.org.

You need only enter some basic information to see if you qualify for their help. Once you enter that basic information, you will get an application to complete for each medication you have been prescribed. Your doctor must complete one portion of the application before you mail it to the manufacturer. They will consider the application and supply your medication if approved.

You can sue the driver of the car that ran a red light and injured your child. You can sue the owner of the parking lot where you fell into a hole and injured your leg. You can sue the machine manufacture that made the lawn mower that malfunctioned and caused an injury to your arm. So, why can’t you sue your employer when it was your employer’s lack of attention, under maintained equipment or sheer disregard for safety that caused the injury that you suffered at work?

To answer this question, it is necessary to review a little workers’ compensation history. Up through the early 1900’s, in most states including Pennsylvania, you could sue your employer if you were injured at work and, in fact, this was generally your only remedy. However, there were some very big problems with this system. First of all, it was very, very slow. It could take years for the personal injury action against the employer to make it through the common law court system and for any benefits to be paid. In the meantime, there was no income to pay for food or shelter and no means of paying medical bills. Employers were rewarded for delaying the case because often times the injured worker simply dropped the case and returned to work in order to put food on the table. Second, there was the issue of contributory negligence—or fault. If the injury was found to be caused 100% by the fault of the employer, then the employer would be responsible for paying 100% of the award made in the case. But, if it was shown that the injured employee was partially or wholly at fault, then the damage award could be decreased or eliminated depending on the percentage of fault attributed to the employee. Or, in cases of known dangerous occupations (mining, blasting, working with wild animals), if it could be shown that the employee knowingly accepted the risks of the job when he accepted the position, then no award would be paid at all.

In the early 1900’s, many countries and states began to recognize the problems with this system and the first workers’ compensation legislation began being enacted. In 1915, the first Pennsylvania Workers’ Compensation Act was passed in an attempt to streamline the system of recovery for work injuries and to speed up the process. The Act was intended to serve as a “compromise” between the rights and duties of the employers and the rights and duties of the injured employees. In exchange for giving up the right to “sue” their employers in the common law courts, Pennsylvania workers were given access to a law that provided for relatively speedy payment of lost wages and medical bills—regardless of any fault by the employee that may have contributed to the injury that occurred. And, in exchange for a system that eliminated the uncertainty of jury awards, the employer gave up the right to unduly delay payment for lost wages and medical bills to injured employees and also the right to assert that the employee was partially at fault or had “voluntarily accepted the risks” of the occupation. Pennsylvania now had a “no fault” Workers’ Compensation Act.

The Pennsylvania Workers’ Compensation Act accomplished a few other things as well. First of all, it made the cost of doing business in Pennsylvania a bit more predictable for business by providing for a system of workers’ compensation insurance. Instead of having to anticipate paying out unknown sums of money each time an injury occurred, Pennsylvania employers could now purchase an insurance policy (much like your own auto insurance or homeowners policy) to insure against any losses due to employee injury or death. Secondly, for the employee, it provided a schedule of wage loss and medical benefits that was guaranteed to be paid if a work injury was shown to have occurred and also a streamlined system for litigating claims that were in dispute.

Benefits provided for under this first Pennsylvania Workers’ Compensation Act, and the amendments to the Act that followed, include payment for wage loss; payment of reasonable and necessary medical care; payment for the loss of certain body parts or the loss of use of those body parts; payment for loss of sight or hearing; compensation for serious, unsightly and disfiguring scars of the head, face or neck; and payment of penalties in situations where the Act has been violated. There is, as you can see, no provisions for payment for pain and suffering or other losses—-benefits that are available under the common law system.

Well, what happens if your work injury keeps you from enjoying the hobbies that you enjoyed prior to your injury or has caused you ongoing pain and suffering? What if your relationship with you spouse and children has been adversely affected by the injury or your future career cut short? Can’t you make your employer pay for these things? Sadly, in Pennsylvania the answer is clearly “no.” If you suffer an injury at work in Pennsylvania, payment of benefits provided for under the Pennsylvania Workers’ Compensation Act is your sole remedy. What if you voluntarily forego the benefits provided by the WC Act —can’t you sue your employer then? Or how about after you settle—can you sue your employer at that point? Again, the answer is clearly “no.” The only benefits payable to you for your work related injury by your employer are the benefits provided for under the Act. Your employer is immune from suit by you or your family in any forum outside of the Workers’ Compensation Act. This immunity from lawsuit under the Act also extends, in most cases, to co-employees, the workers’ compensation insurance carrier, and in-house physicians.

That is not to say that an injured employee can never sue anyone for injuries connected to a work injury. If the employer fails to have in effect proper workers’ compensation insurance coverage at the time of injury, the employer is not afforded the Act’s protections against lawsuits. Also, if the work injury is caused by the actions of a third party not connected with the employer, a lawsuit against that party is not precluded by the Workers’ Compensation Act. For example, an action can be filed against a third-party driver involved in a work-related auto accident and against the manufacturer of a machine that malfunctioned and caused the work injury.

One note of caution—- recoveries from third-party suits are subject to special “subrogation” provisions of the Act. In plain English, this means that if the workers’ compensation carrier pays wage loss and/or medical benefits for a work injury and a subsequent third-party suit results in a recovery by the injured worker, the workers’ compensation carrier may have a right to be repaid the benefits that it paid in connection with the same injury. If the third-party recovery does not allow for full repayment to the carrier at the time of settlement or verdict, this recovery may allow for an ongoing credit against future benefits to be paid to the injured worker.

This article, by no means, covers all of the possible scenarios surrounding third-party actions and immunity under the Pennsylvania Workers’ Compensation Act. Hopefully, however, it provides some insight into why, in general, you cannot sue your employer or be compensation for pain and suffering when you suffer a work injury in Pennsylvania. If you have specific questions about this topic, feel free to contact any of the attorneys at Prince Law Offices, P. C. ( via www.princelaw.com). We will be more than happy to talk to you about your own specific situation.