Pennsylvania Workers’ Compensation is governed by the Pennsylvania Workers’ Compensation Act. This statute is based on a loss of earning power principle. Injured workers are entitled to 2/3 of their pre-injury average weekly wage, in addition to medical benefits. Other benefits such as specific loss are available for amputations, and disfigurement of the head, face, or neck, if it is permanent, unsightly, and not usually incident to the employment. Death benefits are available in the nature of weekly compensation benefits and burial expenses.
To have a viable claim in Pennsylvania, you need to
If you are an independent contractor, then the Pennsylvania Workers’ Compensation Act does not apply. There are many cases where there is a dispute as to whether a person is an “employee” or an “independent contractor”. While there are many factors that the Workers’ Compensation Judges will analyze in making this determination, one of the key factors is who has the control over the type and manner of the work being performed. The more control the person has, the more likely the person is an independent contractor- and vice versa.
Any injury occurring in Pennsylvania falls within the Pennsylvania Workers’ Compensation Act. However, even if the injury didn’t occur in Pennsylvania, the Act may still apply. An example of this is the employment is principally localized in Pennsylvania. An agreement that provides exclusive jurisdiction shall be in another state is not enforceable.
Once an injured worker is injured on the job, whether from a traumatic (sudden) injury or from repetitive work activities (ie, repetitive typing), the worker should give notice as soon as possible to the employer as to what was injured, when, and how. Notice is a critical element for a viable Pennsylvania Workers’ Compensation claim and if it’s not given within 120 days, then the claim fails no matter what.
Once notice of a work injury is given, the employer or insurer or third party administrator (which is like an insurer but it doesn’t spend its own money) must investigate the claim and issue one of three documents within 21 days- a Notice of Compensation Payable, a Notice of Denial, or a Temporary Notice of Compensation Payable. The employer/insurer/TPA can accept wage loss and medical benefits, or medical only which means they admit a work injury took place but don’t admit that it’s disabling.
An injured worker must be out for 7 days or more to trigger a wage loss claim. In the beginning of a case, the Employer usually has a list of panel doctors and the worker treats there for 90 days. There are ways around this so it’s important to speak to a Certified Pennsylvania Work Comp Lawyer about whether you can treat with a physician outside the panel.
Panel doctors are trained to minimize an injured worker’s injuries. They are working for the employers and tend to label injuries “contusions” or “sprains” and “strains”. Once the 90 days is up, an injured worker in Pennsylvania can treat with any provider. There are often disagreements between the physicians in terms of what the diagnoses are, and what they are related to. Injured workers should always tell all physicians their complete history regarding any injuries or treatment to the affected body party.
Having a good advocate is very important. You cannot win a PA Work Comp case without a doctor on your side who can unequivocally state within a reasonable degree of medical certainty that your injuries are work-related and causing a loss of earning power. Absolute certainty is not required. The standard is “reasonable medical certainty.” Some physicians do not discuss causation (what caused what) in their reports so the injured worker’s attorney will have to request a report addressing the issue. You will want your attorney to carefully review your medical records to determine if your doctors support the work-relatedness of your condition.
A claim can be accepted via Notice of Compensation Payable or a Supplemental Agreement, a Stipulation, or a Court Order. Once you are on Pennsylvania Workers’ Compensation benefits, you can theoretically (although it’s quite unusual in reality) be on the benefits for a lifetime. However, in most cases, an injured worker is at some point deemed “partially disabled” which has a 500 week cap on the wage loss benefits. Partial status can arise from a determination that the injured worker has an earning power, or when a worker is actually working, but earning less than pre-injury wages, or after an Impairment Rating Exam is completed if it results in a whole body impairment of under 50%. An impairment rating cannot be requested until the worker has received 104 weeks of total disability compensation.
An insurer/employer/TPA can request an Independent Medical Exam every six months and these physicians are usually quite biased and tend to disagree with the treating doctors’ opinions. This often causes litigation in the nature of a Petition to Terminate in which a fully recovery is alleged, a Petition to Suspend in which a full pre injury earning power is alleged, or a Petition to Modify in which an earning power is alleged that is less than pre-injury. Also the Independent Medical Exams can result in a challenge to the medical benefits and lead to a Utilization Review which is a challenge as to whether treatment is reasonable and necessary. Another very common Petition is a Petition to Review which challenges which diagnoses are work-related. As you probably know, the insurers will always try to pin a diagnosis on a “pre-existing” condition. However, under the PA Work Comp Act, an aggravation of a pre-existing condition is a work injury. Many people do not realize this. For example, if you injured your back a year ago outside of work, but made it worse by heavy lifting at work, then the aggravation is a work injury under the law- assuming a Judge finds the doctor’s opinion to be credible. You should always consult with an experienced Work Comp Attorney before attending an Independent Medical Exam under the Pennsylvania Work Comp Act.
In most cases, the insurer/employer/TPA will wish to settle a Pennsylvania Work Comp case. A settlement of all issues and benefits is called a Compromise and Release Agreement. It is often referred to as a global settlement. The normal terms for a Compromise and Release Agreement are a lump sum payment and medical benefits until the date of the Compromise and Release hearing, and then a clean break meaning no more benefits. In many cases, a resignation from employment is required by the employers. In some cases, the parties bargain for a period of ongoing indemnity (wage loss) checks and a period of ongoing medical benefits, but the majority of cases result in a one time lump sum deal. Many factors determine the amount of a PA Work Comp Settlement. No two cases are the same. Many factors must be addressed when a settlement is discussed, such as the effect on any short or long term disability benefits, unemployment compensation, social security benefits, and any employment discrimination (ie, EEOC) matters.
Litigation is common in Pennsylvania Workers’ Compensation cases. Litigation means a petition is filed and heard by a Workers’ Compensation Judge. There are many types of petitions including a Claim Petition (when a claim has been denied), a Petition to Terminate, Suspend, Modify, etc. Litigation can take up to a year or more depending on many factors. Under the Special Rules of Administrative Procedure in Pennsylvania Work Comp cases, each side has 90 days to secure their medical evidence. As such, there is a six month period of evidence. Some witnesses, usually lay, will testify at a hearing and others at a deposition. The medical depositions of the experts is most frequently done in the doctors’ offices, not in court before the presiding Judge. Some Judges will have multiple hearings and other Judges will just have one hearing for a petition. They each have their own style. At the end of litigation, the attorneys are asked to submit written arguments called “Briefs” outlining their respective positions. The Judge will issue a written Decision to the parties anywhere from a month to several months later depending on their schedules and other factors.
The most important thing for injured workers to realize is that having the benefit of counsel will increase the probability of a favorable outcome- and sometimes dramatically. Insurance companies aren’t on your side- even if they seem friendly for a while. Their goal is to pay out as little as possible in each and every case. It is strongly recommended that every injured worker retain a Certified Workers’ Comp Attorney to maximize their entitlement to benefits. Pennsylvania Work Comp Law has become quite complicated and letting the insurance company dictate your course is not a wise decision. They have attorneys giving them advice- and so should you. Fees in Pennsylvania Workers’ Compensation cases are contingent and usually 20% of the wage loss benefits.
For more information about Pennsylvania Workers’ Compensation Law, click here or call Certified Work Comp Super Lawyer Michael Cardamone at (215) 206-9068 (All Communications Remain Confidential) 7 days a week or email Michael@CardamoneLaw.com
Disclaimer: Note that nothing on this site should be construed as legal advice. You are not a client of Cardamone Law without a signed Agreement. Every case is unique and needs to be analyzed on its own merit. Attorney Cardamone is licensed to practice law in Pennsylvania and is a Certified Pennsylvania Workers’ Compensation Attorney by the Workers’ Compensation Section of the Pennsylvania Bar Association as authorized by the Supreme Court of Pennsylvania.