Author Archives: Karl Voigt IV, Esq.

Pennsylvania Announces 2016 Average Weekly Wage

by Karl Voigt
Pennsylvania’s Secretary of Labor and Industry has announced the 2016 Statewide Average Weekly Wage.This figure serves as the basis for determining the maximum and minimum weekly Workers’ Compensation benefit rates in Pennsylvania. The figure has increased to $978 from the 2015 average of $951. This increase affects the weekly rates paid to workers who were injured on or after January 1, 2016.

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PA Appellate Court Curbs Workers’ Compensation Impairment Rating Evaluations

by Karl Voigt

In a late-breaking development, the Pennsylvania Commonwealth Court has severely limited the use of Impairment Rating Evaluations by insurance companies. This ruling may affect ongoing Workers’ Compensation claims, as well as those that have been affected in past years.

Workers’ Compensation insurance companies have, since 1996, have the ability to subject an injured worker to an Impairment Rating Evaluation (IRE). Like an insurance medical examination (IME), the IRE requires a physical examination by a doctor. The examining doctor must then use the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which is now in its sixth edition. If the claimant is less than 50% disabled according to the Guides, wage loss benefits are limited to no more than 500 weeks.

In Protz v. Workers’ Compensation Appeal Board (Derry Area School District), No. 1024 C.D. 2014 (Pa.Cmwlth. 2015), the Commonwealth Court heard a challenge from an injured worker whose benefits were limited as a result of an IRE based on the sixth edition of the Guides. The Court in essence struck down that IRE.

Here’s the problem: the sixth edition of the Guides that is now in use is stricter than the fourth edition. The Pennsylvania General Assembly has never scrutinized the fifth or sixth editions. Therefore, the Court found that making doctors use the most recent AMA guidelines to evaluate disability unlawfully delegated power away from the government and to a private organization, who can amend its Guides without legislative review.

Of course, this will affect IRE petitions presently being litigated; IREs based on the fifth or sixth edition may not be valid. However, since the publication of the fifth editions of the Guides in 2000, there are a large number of people whose benefits have been modified. What will happen to these cases is uncertain. However, the employer in this matter has appealed this issue to the Pennsylvania Supreme Court, so stay tuned here for updates.

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What are the first things to do if you get hurt at work?

by Karl Voigt

Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

 

“I was at work and fell at customer site. I tripped and fell on rebar and 2 inch wide bolts sticking out the ground. I bruised my left forearm, cut open my right hand and rehurt my old shoulder injury. Hurt both knees from hitting ground. Hurt lower back.”

– Philadelphia, PA

 

Sorry to hear about your injury. As others have already pointed out, you have likely a Workers’ Compensation case, as well as one for personal injury.

You need to take some immediate action, and don’t necessarily need a lawyer to get started.

First and foremost, you must immediately notify your employer about the injury, carefully describing each affected area of your body. There are some pretty strict deadlines for advising your employer of the work injury. Once you do, your employer has 24 hours to report it to its Workers’ Compensation insurance company. In turn, the insurer has 21 days to investigate your case and accept or deny liability. As you can tell, the sooner you give notice, the better.

Your next immediate step will be to seek medical care. The sooner the better, not just for your recovery, but also for your case. Any delays in getting medical treatment for a work injury could possibly be used against you.

The best result in your case would be a quick and full recovery. Usually, a lawyer gets involved if that doesn’t happen, or if the insurance company has denied the case. Naturally, it would not hurt to sit down and talk with the lawyer to lay out a plan to address all possible contingencies.

Good luck!

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Pennsylvania H.B. 916 Would Extend WC Coverage to Emergency Management Volunteers

by Karl Voigt

The Pennsylvania legislature is once again attempting to amend the Commonwealth’s Workers’ Compensation Act, this time in the form of House Bill 916, which aims to extend insured status to emergency management volunteers.

As a matter of public policy, the Act has long extended insurance coverage to volunteer firefighters, volunteer ambulance corps, volunteer hazmat teams, and other similar volunteers working in the public interest. Namely, §601(a) of the Act bestows Workers’ Compensation insurance coverage on people who are injured while working as unpaid volunteers.

It would, of course, be inherently unfair to disallow coverage to our volunteers who are injured in the line of duty. Why should their families suffer as a result of an injured that occurs from their volunteer work? Volunteers compose 70% of the nations firefighters. To deny coverage could discourage individuals from volunteering.

This new proposal extends that coverage to emergency management volunteers, who typically respond to large disasters such as hurricanes, earthquakes, floods, or civil disturbances. This proposal even specifically extends coverage to volunteers while traveling to and from these emergencies.

H.B. 916, if enacted, will ensure coverage to our emergency management volunteers who are injured in the line of duty.

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Can I choose where to get a functional capacity evaluation?

by Karl Voigt Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

“Off work collecting WC 9 months with knee. Doc wants me to do an FCE. Can I choose who I want to go to?

Had left menisectomy on July 29, 2014. Had PT, cortisone, Euflaxxa, and more therapy. I am in pain and limp all the time Also told I am candidate for total knee replacement.Not sure if I want to do The total replacement because doctor said even I did he would not release me full duty. I am a delivery driver who is in and out of truck 100 or so times a day delivering pkgs weighing up to 150 lbs. He said to do FCE so he let company know my restrictions. So just want to know if I can choose the FCE facility.”

You can choose who performs the functional capacity evaluation.

You are well beyond the “captive period”, a relatively short period of time where you *may* have to treat with doctors chosen by your employer. You are free to choose your own medical care providers. You wrote that you have already gone undergone physical therapy. If you have developed a good rapport with your physical therapists, and they offer functional capacity evaluations (FCEs), it may not be a bad idea to test with the people most familiar with your condition. You are, of course, free to go elsewhere as well. Naturally, when you do undergo the test, there are some things you should know ahead of time. Namely, You should know that there are tests built into the test to gauge your effort and exertion. Many patients don’t know this, but you will likely be given a score to measure the validity of your effort. The doctor will use this score in actually prescribing your physical limitations. Therefore, It is important to put forth a strong and consistent effort during the examination, which is often conducted over several hours. This is not to say that you should hurt yourself. However, the therapist will be conducting periodic tests to gauge your effort. Good luck!

To see the full question, go to: http://www.avvo.com/legal-answers/off-work-collecting-wc-9-months-with-knee—doc-wa-2140008.html?answered=true

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“What happens when I reach MMI and I have permanent restrictions?”

by Karl Voigt

Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

“What happens when I reach MMI and I have permanent restrictions? Its been a year since my work injury and i just had second IME and the report stated that I have reached MMI and that my restrictions are permanent. Does this mean that I keep receiving workers comp checks permanently since my employer never offered me a job?”

You posted this question around 2 AM. I’m going to gather that you have difficulty sleeping, probably as a result of your work injury. Hopefully, the answers you find here will at least put you at ease.  First, please note that there is no true “permanent” in workers’ compensation. The insurance company always has tools at its disposal to try and reduce the amount of benefits that you get. However, an insurance medical examination (IME) is by no means binding on your case. There will be no immediate effect on your wage loss benefits simply because you were subject to an examination by doctors chosen by the insurance company. It may in fact be far more important to know what your treating physicians say.  Nevertheless, during the course of your disability, your employer may actually offer you a position, reportedly within your physical limitations. The carrier could also hire a vocational counselor to opine that you are capable of returning to hypothetical jobs, such as security guard, telemarketer, or cashier. Please note that these are just examples.  Next, in about another year, after you have received 104 weeks of wage loss benefits, your employer may subject you to a different sort of medical examination: an impairment rating evaluation (IRE). This may result in your wage loss benefits being put on a 500 week clock.  As you can tell, there are many paths that your claim can take. While I never like to sound like a salesperson for lawyers, it may indeed be time to speak with one regarding these paths, with the hopes that you — and not the insurance company — play a role in choosing one.

To see the full question, go to: http://www.avvo.com/legal-answers/what-happens-when-i-reach-mmi-and-i-have-permanent-1935386.html?answered=true

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“What does a Notice of Ability to Return to Work Mean For Me?”

by Karl Voigt

Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

What does an Ability to Return to Work Mean for me? I was back to FT work light duty but MMI. Now laid off.

We would generally need more facts from you in order to better answer your question. However, I see two issues in your question.

First, apparently you were back to work at modified duties, but were laid off. In these situations, your workers’ compensation wage loss benefits should indeed be reinstated. The rationale behind this rule is that, if your earnings loss recurs through essentially no fault of your own, you should be paid by the workers’ compensation insurance company. Any rule to the contrary would be patently unfair to injured workers, because an employer could hypothetically take somebody back to work at modified duties, then lay them off and not expect to have to pay workers’ compensation benefits. Hence this rule.

Second, you have since your layoff received a Notice of Ability to Return to Work. This is usually issued by the insurance company after an IME doctor – or even your own treating doctor – releases you to return to work at modified duties. The latter has seemingly already occurred because you were actually working light duty. It’s issuance is required before the workers’ compensation carrier attempts to do vocational development in your case. Namely, the insurer may now assign a vocational counselor to identify hypothetical job opportunities for you.

As far as what you have to do now that you have received the Notice, it may be time to talk to a lawyer, who may put you in several different directions knowing more facts about your case. She might advise you to begin to seek employment within your physical limitations. She could give you advice during the vocational counseling process. She might also discuss with you the possibility of a lump sum settlement. Good luck!

 

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