Articles Posted in Worker Comp Generally

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).

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.”

There are many things in life that are not fair. At least one of those things rears its ugly head in Pennsylvania workers’ comp. Unless an employee has a contract, or is a member of a union, there is very little protection for the employee from being fired from his or her job while out of work on workers’ compensation in PA. While an employee cannot legally be fired in Pennsylvania for pursuing a workers’ compensation claim [Shick v. Shirey, 716 A.2d 1231 (Pa. 1998)], it is often difficult to prove the reason for the termination is the pursuit of a workers’ comp case (as opposed to just the absenteeism of the injured worker). Please note, also, that workers’ compensation benefits in PA continue regardless of whether a totally disabled injured worker has been terminated from his or her job or not.

Federal laws do offer some protections for the injured worker caught in this position. The Family and Medical Leave Act (FMLA) can provide some job protection for a period of time. If an injured worker is terminated from his or her job, COBRA may allow the private health insurance coverage to continue, with the injured worker able to assume the payments at the group rate used by his or her employer.

Unfortunately, though, there is often very little that we, as Pennsylvania workers’ compensation attorneys, can do to protect our clients from being terminated from their jobs while they are disabled from work and receiving workers’ compensation benefits.