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Workers’ Perspectives on Settlements and Hearings

by Karl Voigt
A recent study of injured workers lends some insight into the merits and hazards of settling a workers’ compensation case. While the study was conducted in Minnesota and not Pennsylvania, there are some common elements. The study, titled “Workers’ Perspectives on
Settlements and Hearings” was authored by analyst Brian Zaidman. In short, the paper is based on conversations with injured workers some months after they settled their cases, hopefully lending some perspective to those workers contemplating the settlement of their own case.

One of the most common responses to the study was a complaint that the dispute resolution process took too long and, as a result, people felt that they were leveraged into settling their case. This is not an uncommon sentiment even in Pennsylvania where, if the parties are litigating a claim petition and the claimant is not getting paid, the prospect of a large lump sum becomes more appealing as time progresses and his debts accumulate.

Some other interesting responses arose. Namely, only half of workers who settled reported that they understood the benefits involved in their dispute. One third indicated that they had little or no understanding of their agreement. 29% said that, if they had a chance to do things over again, they would once again settle. 41% reported that, since settlement, their medical conditions had become worse.

At the very least, the study reveals that injured workers and their attorneys have to make and communicate informed decisions. Obviously, this is a study performed in Minnesota and not Pennsylvania, where workers’ compensation laws differ, but there are certainly things to learn and consider after reading the paper.

The text of the study is available at: http://www.dli.mn.gov/RS/Pdf/settlement_study.pdf

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Should I Collect Pension Benefits While on Workers’ Compensation?

by Karl Voigt

The laws surrounding the effect of collecting retirement benefits on Workers’ Compensation wage loss benefits has been evolving rapidly. The Pennsylvania Supreme Court has recently issued an important decision regarding interaction of these benefits. It has reversed the 2012 holding from the Commonwealth Court that created a presumption that an individual had withdrawn from the workforce simply by virtue of collecting retirement benefits. An injured worker who claims that he is retired from the workforce is considered to have withdrawn from the workforce and therefore is not eligible for Workers’ Compensation wage loss benefits.

Happily for Workers’ Compensation claimants approaching retirement age, the Pennsylvania Supreme Court has recently rejected this rule, opting to allow judges to consider a “totality of the circumstances” approach to determining whether a claimant has withdrawn from the workforce. The lower Court’s ruling would have allowed an insurer to stop wage loss benefits the moment an injured worker received pension benefits from an employer.

The Pennsylvania Supreme Court, in City of Pittsburgh v. WCAB (Robinson), ___ A.3d ___ (Pa. 2013) (filed March 25, 2013), rejected that rule, finding it unfair to allow a presumption of withdrawal simply from an injured worker’s application for pension. The Court reasoned that a judge must look at all of the evidence.

So an injured worker’s receipt of pension benefits, standing alone, is not enough to prove that he has withdrawn from the workforce. Howwver, an employer may still attempt to prove that an injured worker has withdrawn from the workforce. They can even use evidence of application for pension to support the allegation. However, the judge must consider the “totality of the circumstances”. Namely, if the injured worker continues to seek employment elsewhere or can show that she was forced into retirement because of the work injury, her Workers’ Compensation wage loss benefits should indeed continue.

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Subrogation and Workers’ Compensation

by Karl Voigt

Workers’ Compensation cases sometimes involve other insurers other than the Workers’ Compensation insurance company. As an example, a motor vehicle accident that injured a worker would bring in a second potentially responsible insurer: the auto insurer. Such cases are introduced to the concept of subrogation.

Subrogation is a legal doctrine that allows one insurer to seek reimbursement from the other. More specifically, where one insurer makes a payment on an obligation which, by law, is the primary responsibility of another insurer, the first insurer is then subrogated to the claims of the second.

Using our example, let’s assume a car owner is injured at work in a collision using his car and the collision insurer pays his medical bills. He then opens a Workers’ Compensation claim. In essence, the Workers’ Compensation insurer – the party more responsible for medical treatment for a work injury – would have to reimburse the collision insurer for the bills it paid.

Subrogation not only protects the rights of the insurance companies, but also ensures that a medical care provider is not paid twice for the same service. This would be considered an unjust enrichment under the law.

This concept can also apply to wage loss benefits. Assuming our injured worker is first paid for his wage loss by the collision insurer. Then, if he opens a Workers’ Compensation claim he would be eligible for payment for wage loss from the Workers’ Compensation insurer. To prevent “double dipping”, the collision insurer would have the right to reimbursement.

In the Workers’ Compensation specialty practice, we most often see an injured worker who also filed suit against a third-party who caused the motor vehicle accident. This litigation may take years and the injured worker might receive wage loss benefits from the Workers’ Compensation insurer during this period. If the motor vehicle case is settled, the Workers’ Compensation carrier might actually have the right to reimbursement from the civil award.

These cases can become extraordinarily complex, particularly if it is not a matter of simple reimbursement for monies paid. Namely, The injured worker may still be disabled from the accident and is therefore receiving Workers’ Compensation wage loss benefits. If this is the case, and the amount of the civil award exceeds the wage loss benefits paid to date, the Workers’ Compensation carrier may actually receive a credit for future benefits payable. The Workers’ Compensation carrier may actually have the right to file a special petition for the amount of future offset from Workers’ Compensation wage loss to be determined by the Workers’ Compensation judge.

The concept of subrogation is an equitable principle designed to be fair to all parties involved. Unfortunately, one side effect is often very complex litigation. Naturally, when discussing your Workers’ Compensation case with your lawyer, it is critical to let her know if you have or are considering a civil case.

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Two Prince Law Attorneys Become Certified as Workers’ Compensation Specialists

by Karl Voigt

Two Prince Law Office attorneys — Thomas Beveridge and Karl Voigt — have been certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association Workers’ Compensation Law Section.

Both lawyers successfully completed the certification process by submitting a variety of documents showing that at least 50 percent of their legal practice is in the specialty field of workers’ compensation, that they have practiced in the field for more than five years, and that they actively participate in Mandatory Continuing Legal Education in workers’ compensation law and related fields. Both lawyers also passed the challenging certification examination that focuses on workers’ compensation law and rules and leading case law.

In 2012, the Pennsylvania Supreme Court approved the PBA Workers’ Compensation Law Section as the first bar association entity in Pennsylvania to certify lawyers in the area of workers’ compensation law.

Because of their successful completion of the certification process, they will be permitted to use the following language when communicating about their certification to clients and to the public: “Certified as a specialist in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court.”

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Direct Deposit May Be Available For Workers’ Compensation Benefits

by Karl Voigt

Direct deposit May now be available for some Workers’ Compensation claimants receiving wage loss benefits. Rather than receiving checks in the mail, some injured workers may be able to receive their weekly wage loss benefits via electronic transfer of funds to their bank. While this is not a comprehensive list, insurers such as Hartford, PMA and Liberty Mutual now offer some claimants direct deposit.

The advantages of direct deposit are many:

  • No waiting on the mail for your check;
  • No worrying about stolen checks;
  • No driving to the bank before closing time to deposit checks;
  • If you’re away from home, or even ill or in the hospital, funds are credited to your account;
  • No waiting for the check to clear; your funds will be in your account when you need them

Of course, you will need a bank account to take advantage of direct deposit. If you would like your benefits direct deposited, contact your carrier or your attorney if you have one.

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The insurance company wants to send me to Impairment Rating Evaluation (IRE). What is this?

by Karl Voigt

The insurance company wants to send me to Impairment Rating Evaluation (IRE). What is this? Well, first and foremost, it’s not another IME (independent medical examination). It’s another tool the insurer has to reduce the amount of workers’ compensation wage loss benefits you receive.

In order to determine whether you remain entitled to the temporary total disability (TTD) you’re getting, the insurer can send you to an IRE after you have received 104 weeks of TTD benefits. There are very specific rules and time constraints for when this exam can be requested. If, however, the IRE request is timely, an American Medical Association-certified doctor will examine you to gauge your percentage of whole body impairment resulting from the work-related injury. The degree of impairment is based on the most recent edition of the AMA guidelines, currently in its 6th edition.

You must first be considered at “maximum medical improvement” (MMI) In order for an IRE Determination to be imposed upon you. The examination will occur whether or not you believe you are at MMI. Therefore, if your IRE determination is appealed, one common challenge we make is that our client was not at MMI and therefore the IRE should be discarded. As an example, an the 500 week IRE limit should not be imposed on an injured worker who is scheduled to undergo further surgery for his work injury.

Nevertheless, if the doctor finds that your impairment to be equal to or greater than 50 percent, then you are presumed to be totally disabled and benefits continue. If you are determined to be less than 50 percent impaired, your TTD benefits will be limited to 500 more weeks. This “ticking clock” can only be stopped if it can be proven that you are more than 50% disabled. This is extraordinarily difficult. To put things into perspective, there are some injured workers who are limited to wheelchairs who have been gauged to be less than 50% disabled.

Naturally, during the 500 weeks after the IRE, you may attempt to reinstate your TTD benefits if you can show that your condition has worsened significantly.

 

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I just received a Notice of Ability to Return to Work. What is this?

by Karl Voigt

I just received a Notice of Ability to Return to Work. What is this?

We are often posed this question by our clients. In short, the Notice of Ability to Return to Work (NARTW) is often the first shot fired in the battle over your wage loss benefits.

The NARTW is a form designed by the Pennsylvania Bureau of Worker’s Compensation designed to advise an injured worker that: 1) he can return to work; 2) that his wage loss benefits could be affected; and 3) that he has an obligation to look for work. It is to be filled in by the carrier and issued to a claimant when a doctor has concluded that he can return to work in some capacity. This can be an opinion from a treating physician, or a doctor hired by the insurance company. Issuance of the form is also a prerequisite before: 1) an employer offers you a return to work; or 2) the carrier conducts a labor market survey.

Generally, if your employer wants to minimize its Workers’ Compensation costs and “invite” you back to work, they must do so in writing, with an accompanying NARTW. The offer itself should include a description of the job, the hours you’re scheduled to work, and the wages you are to be paid. There is a strong argument that a workers’ compensation carrier cannot attempt to reduce your benefits by your possible earnings at this job unless the NARTW is issued along with the offer. The bottom line is that the carrier will have a very difficult time in court if they did not first send you a Notice of Ability to Return to Work (NARTW).

If you refuse to go back to work because you cannot perform the offered job, your employer may file a petition against you to reduce your wage loss benefits. If you are represented by counsel at the first hearing, the judge will very likely dismiss the case against you if the employer has not first issued the requisite NARTW.

Section 306(b)(3) of the Pennsylvania Worker’s Compensation act requires that the NARTW be issued promptly. The Pennsylvania legislature, however, absolutely failed to define “prompt”. Rather, it has left the definition up to the appellate courts. The courts have lent just a little assistance, ruling that the NARTW should be issued “within a reasonable time “after the doctor opines a claimant can return to work. In short, one must look at the facts of every case. Namely, a NARTW should be issued before the doctor’s opinion becomes stale. When my office deals with this issue, we try to point to evidence that our client has become prejudiced by the late issuance of the NARTW.

Regardless, the NARTW is a form that was designed to put you on notice that the insurer has received some sort of medical opinion that you can return to work. There is no legal requirement that you sign the document, or even do anything with it. However, because the document is a telegraph warning of likely action against you, if you have an attorney, make sure you get a copy to him or her. If you don’t have an attorney, it may be time to speak with one.

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Pain and suffering damages in workers’ compensation?

by Karl Voigt

Are there pain and suffering damages in workers’ compensation? Unfortunately, no. Injured workers in Pennsylvania never see the high awards one often hears about in personal injury cases. Our workers’ compensation clients know by experience that an injured worker is only entitled to payment for wage loss and medical bills. While there is no question that injured workers endure pain and suffering, there is no compensation for it.

Many of our workers’ compensation clients at some time during the progress of their case ask us why they can’t sue for pain and suffering. The answer requires a bit of a history lesson.

The rationale for this exclusion dates back to the Industrial Revolution and is based on a compromise made by the legislature when it crafted the then-new Workers’ Compensation Act in 1915. The Industrial Revolution, in full swing by the mid-nineteenth century, brought about some changes. Prior to the Industrial Revolution, Pennsylvania was primarily an agrarian economy. As the Industrial Revolution brought more industry to the Commonwealth, it also brought more injuries. In the 19th century, safety measures were not nearly as prevalent as they are today. As a result, there were far more work injuries.

Unfortunately, there being no Worker’s Compensation Act before 1915, an injured worker was often simply let go if he was unable to continue performing his regular job. Unable to work, he and his family became wards of the state. Naturally, the state did not want that burden.

In some cases, that worker sued in the Court of Common Pleas. While the suit may have taken years, he may have been award not just wage loss and medical damages, but also damages for pain and suffering. Naturally, employers did not want to face these potentially costly lawsuits.

So, we had three entities with competing interests: injured workers who didn’t want to be abandoned for an injury that wasn’t their fault, the state who didn’t want to have to be responsible for the care of disabled worker, and the employer who didn’t want to go out of business after paying high jury awards for its injured employees’ pain and suffering.

Acknowledging these competing interests and looking for a compromise, the legislature drafted the Act as follows:

  • Employers would now have to pay for an insurance policy that would pay injured workers wage loss and medical benefits if they were injured at work. In return for making these premiums, they would enjoy immunity from suits for pain and suffering.
  • The Commonwealth would not have to take responsibility for a worker who had become
  • Employees would now have a “safety net” designed to pay them wage loss and medical benefits relatively quickly. However, they would lose their right to sue for pain and suffering damages.

The system has certainly evolved over the past 100 years, but this underlying compromise has certainly remained.

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What is a supersedeas?

by Karl Voigt

When an insurance carrier files a petition to stop or reduce your workers’ compensation benefits, it will usually request a supersedeas. So what exactly is a supersedeas? First, “supersedeas” is Latin for “you shall desist”. The carrier is essentially attempting to convince a judge to issue a temporary (or “interlocutory”) order to stop your benefits. This is

Thankfully, the carrier needs a judge’s permission to stop or reduce your checks. By filing a petition, the carrier is trying to get a permanent order to stop your benefits. This process can take months. When it requests a supersedeas, the carrier feels it has such compelling evidence against you that they think a judge should stop those benefits before the case is even fully litigated.

Thankfully, the judge can’t stop your benefits until a hearing is held. And this gives you time to prepare. At that first hearing, the carrier will introduce its evidence against you to pursue its request for supersedeas. After that, the judge must rule on the request within 14 days. Therefore, at the first hearing, you must be prepared to submit your own documentary evidence to combat the employers request for supersedeas.

If you have just hired an attorney because the petition has been filed, that attorney will present that evidence on your behalf. Namely, the attorney will likely submit medical records from your treating physicians as well as perhaps an affidavit signed by you. All of this evidence is being presented on your behalf to convince the judge not to grant that request for supersedeas. Assuming the judge actually denies the employer’s request for supersedeas, it is at this time that the judge will likely approve of the deduction of your lawyers fees.

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Can I be forced to get surgery for my work injury?

by Karl Voigt

We are often asked by our clients if they can be forced to get surgery for their work injury. The decision whether or not to undergo surgery can be life-altering. Surgery gone wrong can worsen your condition or even disable you. On the other hand, surgery done right can reduce pain and increase physical capabilities. However, can surgery be forced upon you?

The first thing you have to consider is whether or not surgery is in your best interests. Many patients would likely have fared much better had they never undergone surgery, particularly low back surgery. However, many have done better having undergone surgery.

If your doctor has proposed surgery, NOW would be the time to discuss the chances of success. Discuss this with your surgeon, making sure he or she spends enough time with you to explain everything well and answer all of your questions. You also may wish to seek a second opinion, as this is a critical issue. Naturally, you have the right to a second opinion. Only a small percentage of patients actually exercise this right, but we encourage it.

You have to seriously consider if your condition warrants intervention. Generally, if you can’t bear your symptoms, and if surgery will likely alleviate your symptoms, you’ll probably want to get surgery. Decisions get more difficult if your symptoms are tolerable, but your condition might improve with surgery.

So, can the insurance company force you to undergo surgery? The short answer is “no”. No one can put you under general anesthesia without your consent. However, there are possible consequences if you exercise your right to decline surgery.

If a doctor says that you are 75% — or even 80% — likely to improve following surgery, you might face the possible forfeiture of your rights to future workers’ compensation benefits if you decline surgery. We’re talking both wage loss and medical benefits. And we’re talking permanent. No order to attempt to stop these benefits, the workers compensation carrier has to file a petition against you and meet its burden of proof. This is certainly not an easy burden of proof for the insurance company to meet. However, the consequences are severe. If the judge finds that the proposed surgery is likely to improve your condition and capacity, and you have exercise your right to decline that surgery, the judge may stop your wage loss and medical benefits. These instances, however, are rare.

Facing surgery can be one of the most difficult decisions you ever make. It is wise to take these decisions seriously, become informed, and way the possible consequences before undergoing such a drastic treatment.

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