Worker Comp Generally

June 21, 2008

Workers’ Compensation Not Available to Every Injured Worker in PA

Last month, I wrote a blog entry explaining how every State, including Pennsylvania, had very different laws governing workers’ compensation systems within that State. One point I should clear up is that not every injured worker in Pennsylvania automatically qualifies for the PA workers’ compensation system. Whole occupations, or groups of workers, are subject to workers’ comp systems which vary from the Pennsylvania Workers’ Compensation Act.

For example, employees of the Federal Government must go under the Federal Employees’ Compensation Act (FECA), which is administered by the Office of Workers’ Compensation (OWCP). Railroad workers are usually subject to the Federal Employers’ Liability Act (FELA), which uses the Federal Court system for its procedure. The Longshore and Harbor Workers’ Compensation Act (“Longshore Act”) governs employees engaged in maritime activities (though these cases sometimes have “dual jurisdiction” in PA and can proceed either through the Longshore Act or the regular Pennsylvania workers’ comp system, often depending whether the injury took place on the water or on dry land). So, not every worker who is injured in PA will be proceeding through the Pennsylvania Workers’ Compensation Act.

On the other hand, there are times when a worker who is injured in another State can still proceed under the Pennsylvania workers’ compensation system (Like the example above with the Longshore Act, this is known as “dual jurisdiction,” since there would also likely be jurisdiction in the State in which the injury took place). In this situation, we look at where the injured worker was hired, where the injured worker usually worked (and where the injured worker expected to work), and other factors, to see what options the injured worker has for which workers’ comp system to use.

June 12, 2008

Workers’ Compensation Claimants in PA Can Apply for Social Security Disability

by Glenn Neiman

Many injured workers in Pennsylvania are not aware that they can apply for Social Security Disability (SSD), while still receiving workers’ comp benefits in PA. Though the two programs have different standards for what “disabled” means, and the injured worker may not be able to receive full benefits from both programs, there is no need to choose one or the other.

An injured worker qualifies for workers’ compensation benefits in Pennsylvania when he or she is disabled from work by an injury which took place in the scope and course of his or her employment. One qualifies for Social Security Disability benefits when one is disabled from all gainful employment, regardless of the cause of the disability. Many times, the workers’ comp claimant in PA qualifies for both, but is not aware they can receive both.

Between the two programs, a workers’ compensation claimant in Pennsylvania can only receive a certain percentage of their pre-injury earnings. Usually this amount will be more than the workers’ comp benefits alone. Plus, getting approved for SSD will lead to getting Medicare benefits, which can be a valuable resource. The Social Security Administration will withhold any SSD benefits a workers’ compensation claimant in Pennsylvania would otherwise be entitled to (the amount of SSD over that percentage of pre-injury earnings). There is no deduction from workers’ comp benefits in PA for SSD (contrary to Social Security Retirement benefits, for which the workers’ compensation insurance carrier gets a credit in Pennsylvania).

June 4, 2008

PA Injured Worker Can Lose Workers’ Comp Benefits When Receiving a Notice

by Glenn Neiman

Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

May 23, 2008

Bankruptcy of Workers’ Compensation Insurer in Pennsylvania Does Not Preclude Claim

by Glenn Neiman

A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

May 21, 2008

Pension Causes PA Workers’ Comp Benefits to Stop

by Glenn Neiman

As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said:

May 19, 2008

Mandatory Mediation in PA Workers Compensation

by Glenn Neiman

On November 9, 2006, the most recent amendment to the Pennsylvania Workers’ Compensation Act, known as Act 147 of 2006, was signed into law. Several of the provisions of Act 147 were designed to quicken the litigation process in PA workers’ comp. One of those provisions created what is known as “Mandatory Mediation.”

Mediation, generally speaking, is a process where an independent person meets with the parties to a dispute and helps the parties reach a resolution to their quarrel. This is a process used in all types of litigation, and even in disputes outside of litigation. Usually, this is a very informal process. The mediator will meet with the parties separate and together, working to try and bring them together on common ground. There is no court reporter present, and things said in mediation are not admissible in the litigation (encouraging the parties to be honest about the strengths and weaknesses of their position).

Mediation has been used in Pennsylvania workers’ compensation matters as long as I can recall. In the past, mediation only happened in PA workers’ comp when the parties so requested. The process was entirely voluntary, and did not occur that often.

May 13, 2008

Specific Loss Benefits Require Medical Evidence in PA Workers’ Comp

by Glenn Neiman

An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

May 8, 2008

Workers’ Compensation Appeal Process in Pennsylvania

by Glenn Neiman

Even when an injured worker receives a decision from the Workers’ Compensation Judge (WCJ) in Pennsylvania, the case is not over. Either side may appeal the decision to the next level, the Workers’ Compensation Appeal Board (WCAB). Such an appeal must be filed within 20 days of the decision of the WCJ.

An appeal must allege that the Workers’ Compensation Judge committed an “error of law” or that the decision issued by the Judge is not a “reasoned decision.” Simply disagreeing with the decision is not a proper basis of appeal. An appeal cannot challenge who the Judge believed (called “determination of credibility”), since this is solely at the discretion of the Judge.

The WCAB schedules oral argument at various locations throughout the year. At the time oral argument is made, the WCAB also expects a brief to be filed by the appealing party (though a party can request additional time to submit a brief).

May 5, 2008

Workers Compensation Benefits Available to Illegal Aliens in PA

by Glenn Neiman

Recently, Hazleton, Pennsylvania, was in the news for its efforts to crack down on undocumented, illegal aliens. We also are hearing the Presidential candidates speak about their views on how to handle these people. It might make one wonder how an undocumented, illegal worker is treated under the Pennsylvania Workers’ Compensation Act.

The short answer is that an undocumented, illegal worker is entitled to workers’ compensation benefits in PA. The Supreme Court of Pennsylvania decided The Reinforced Earth Company v. W.C.A.B. (Astudillo) in 2002, answering this question with certainty.

Since that time, however, the Courts in PA have not been so kind to undocumented workers. While access to medical treatment for the work injury has continued undisturbed, the illegal worker’s right to wage loss (also known as “indemnity”) benefits has been reduced. As long as the undocumented worker is totally disabled, he or she is entitled to both medical and indemnity benefits. On the other hand, once the illegal alien worker is capable of ANY type of employment, the workers’ compensation insurance carrier can file a petition before a Workers’ Compensation Judge to have the indemnity benefits stopped (again, the medical benefits for the work injury would still continue).

May 4, 2008

Workers ‘ Comp Laws Vary Widely From State to State

by Glenn Neiman

Pennsylvania workers’ compensation law is like no other State. I mean no disrespect by that statement; truly, PA workers comp is unique, like in every other State. Unlike Federal laws which may be of concern to an injured worker, such as Social Security Disability (SSD) or the Americans with Disabilities Act (ADA), which apply to any injured worker in the United States, each State has its own set of workers’ compensation laws.

The difference between workers’ comp laws from State to State is tremendous. For instance, in Pennsylvania, once an injured worker is receiving workers’ compensation benefits, the workers’ compensation insurance carrier usually must get the permission of a Workers’ Compensation Judge to stop the benefits. In some other States, the workers’ compensation insurance company can simply stop paying benefits on its own. Also, in PA, the Employer, or workers’ compensation insurance company, can only control treatment, at most, for the first 90 days. After that time, if not before, an injured worker in Pennsylvania can select his or her own doctor.

On the down side, in PA, once an injured worker returns to work with no loss in wages, there is usually no more money due the injured worker. There is no compensation for the injured worker who can no longer take part in pleasurable activities (as long as the injured worker can do his or her job, according to PA law, no compensation is payable). In some other States, an injured worker who returns to work can still get money for his “percentage of impairment.”