Workers Compensation Law Most Frequently Asked Questions

Schmidt, Kirifides & Rassias Attorneys

Can I Get A Settlement?

As this is generally the most frequently asked question – this section is noticeably longer. There are FOUR values for any given case. These values, in descending order, are:

  • What the injured person thinks is fair
  • What the claim is actually worth
  • What the defendant is willing to pay
  • What the defendant thinks it’s worth

An Injured person lives with the pain, disability, and stress every day. There is not enough money in the world to compensate for everything that has and will continue to affect them since the injury occurred.

What a claim is “actually worth” is based on statistics. What have other people, with similar injuries and lost incomes, received by way of settlement varies. It’s not what is “fair”, but simply a hard/cold mathematical calculation based on other, similar cases.

Skipping to number 4 – the lowest figure is what the defendant thinks your case is worth. Insurance companies believe everyone is faking or exaggerating. They tend to offer a nuisance value, just to avoid the cost of continuing to pay their own lawyers.

The “ultimate” settlement figure is #3 – whatever the defendant is willing to pay. Regardless of every other “value” – if the insurance company refuses to pay it – then a deal won’t happen. No judge can force a settlement. Not even the Appeal Courts. In Workers’ Compensation, there is no verdict by a Judge or Jury to end the case. Instead, a Judge’s decision on any given petition simply determines whether the weekly checks continue – or stop. It is basically an “all or nothing” system.

As a result, both sides have to agree on the amount of money, and every condition or there is no settlement. The insurance company can not be forced to pay more than they want to pay, and the injured worker cannot be forced to take less than they want.

However, failure to settle does not mean a claimant stays on comp forever. Based on this outline, there are NUMEROUS ways an insurance company can challenge the injured worker’s right to benefits – and if the Judge rules against the injured worker – they could end up with nothing – no weekly checks, no payment of medical bills, and no settlement.

 

What’s My Claim Worth?

Every case is UNIQUE. Multiple clients with the same exact injury diagnosis will be offered different settlement figures, based on literally dozens of factors, including, but not limited to:

  • What is the weekly benefit rate > How long have you been disabled
  • How much wage loss has been paid to date > How much is payable “per year”
  • What is the accepted injury > Should other injuries be included
  • How much in medical bills have been paid > What future treatment is necessary
  • What is the cost of future treatment > Is there other insurance available
  • Is there litigations pending > What are the risks of litigation
  • Who is the Judge > Who is the Defense Lawyer
  • Who is the insurance company > Who is the Defense Doctor
  • Are you have any other medical conditions > What is your financial need
  • Do you WANT to return to work > Is there work you think you can do

 

What Is The Lawyer’s Job?

The lawyer’s job is to demonstrate to the insurance company that THEY are better off settling for more than they really want to pay, because we will fight longer and harder than most other lawyers – and the only way to get rid of us is by settling at a figure that you are willing to take. Insurance companies keep records on every attorney – who fights, and who just wants a quick settlement; who is a good attorney, and who is just doing a basic job. The lawyers who are known to fight do get slightly better settlements – but even then only within the range, an insurance company is willing to pay.

Our firm is well known for helping our clients maximize the value of their claim, whether it be for ongoing weekly benefits, or for a lump-sum settlement. Every attorney at Schmidt, Kirifides & Rassias is a certified specialist, pursuant to the requirements of the Supreme Court of Pennsylvania, and the PA Bar Association.

The primary considerations right now are:

  1. Do you want to settle, or do you want to stay on weekly checks?
  2. Do you need future treatment, and do you have a means or coverage to pay for it?
  3. Do you want this all over with – and no risk of what “might happen” in the future, or take the risk of future litigation, and outcome?

Answering these questions will make your decision much easier to make. Have a different question in your mind? Contact us below and we’ll gladly answer it!

Ask Us Your Question!

Most Frequently Asked Questions

Please select your question below.

 

How The Benefit Rate Is Determined

Workers compensation does not pay an injured worker’s full salary, but a “rate” based on mathematical formulas set forth in the law. Generally, the injured worker’s average weekly wage over one full year before the work injury is determined first, and the rate is determined by a chart, updated each year by the Bureau of Worker’s Compensation. There are minimum and maximum rates, and other categories in between. The rate is lower than the full salary because workers’ compensation benefits are not taxable. The goal is to (try) to have the injured worker receive the same amount as before the injury – and not “profit” by being injured.

Medical bills are also not paid at “whatever” amount a treatment provider might charge, but are paid at a specified rate set forth on rate tables established by the Bureau of Workers’ Compensation – based on the billing code for any procedure, service, medicine, or equipment. A medical treatment provider located in Pennsylvania may not charge the injured worker for any balance greater than the approved rate. Medical providers with no PA office may have different rights to seek collection, subject to a legal analysis of any conflicting laws.

 

Acceptance Vs. Litigation

An employer (or their insurance company) has 21 days from the date they are Notified of a work injury to accept or deny the claim – which must be done on specific forms. A claim can be accepted “Temporarily”, and/or only in part (acceptance to pay medical bills, but not lost wages). A Temporary acceptance can be revoked by the employer within 90 days, which must also be done by filing the proper forms with the Bureau and serving a copy on the injured worker.

If a claim is accepted, the employer must state on the official form the nature of the injury they are accepting (the body part and diagnosis), and identify the injured worker’s average weekly wage and benefit rate. Insurance companies often only accept relatively minor injuries, such as a sprain, strains, and contusions, and omit more serious medical conditions. The reason is that they only have to pay for medical treatment of the diagnosis they have accepted; and, when they seek to stop paying benefits, they only need to prove the relatively minor injury has resolved.

A claim could be denied entirely; list only a part of the injuries suffered (or an entirely incorrect description of the injury); accept medical treatment, but deny payment of lost wages, or list an incorrect wage and benefit rate. If a claim is denied, in whole or part, it is the injured worker’s obligation to file the appropriate petition to have the issues in dispute addressed by a Workers Compensation Judge. The injured worker then must present sufficient evidence to prove their allegations are correct.

 

Injured Worker’s Duties

The injured worker has many legal obligations following a work injury. As one Judge often says, after suffering a work injury, properly pursuing the claim becomes the injured worker’s new job.

Notice: The employee must notify the employer (someone in a supervisory or management capacity; NOT a co-worker) of the incident and their injury within 21 days of the incident, or benefits are not payable until proper Notice is given. If Notice is not provided within 120 days of the incident – no benefits are payable at all. With some types of injuries (such as those caused by repetitive activity; exposure to a toxic substance; or any condition not readily known by a layperson to be due to their employment) the date for providing Notice begins when the worker knows or should have known of the relationship to their work.

Company Doctor: When an employer has fulfilled their own duty to provide a VALID list of Panel Physicians (company doctors), the injured worker must obtain treatment from one of the Panel Physicians for 90 days after the work injury. An injured worker may also see a doctor of their choice, but the bills of that non-approved doctor are not required to be paid by workers compensation. There are many requirements for a list of company doctors to be “valid”. If no list exists, it is invalid, OR if the claim has been denied, the injured worker can seek treatment with a physician of their own choosing.

Expert Exams: Insurance companies are entitled to make the injured worker attend several different types of expert exams “periodically”, to determine whether the injured worker is still totally, or partially disabled; whether work is available to them within their capabilities; or other legal options available to the insurance company to challenge the injured worker’s right to ongoing benefits. These exams include Independent Medical exams (IME) [often called a Defense Medical Exam (DME) by claimant lawyers]; vocational interviews; or an Impairment Rating Evaluation. The injured worker must attend (most) such exams, or their benefits may be suspended. There are a number of legal bases upon which the claimant or their attorney may lodge a legal objection to the exam. What happens after the interview is discussed below.

 

How And When Benefits Can Stop

There are MANY options available to insurance companies to challenge, or stop paying the injured worker’s benefits- more than simply discussed here. The most common include a Petition to Terminate, Modify or Suspend payment (each discussed separately, below); by way of a properly filed and served Notification of Suspension or Modification – without needing court approval; or most preferably – by a settlement. The options to challenge benefits by Petition and Court approval, or by way of Notification include an injured worker who already has returned to work; is capable of returning to work and there is work available; the injured worker has been incarcerated following a conviction, or has died for reasons unrelated to their work injury.

 

Authority Of Judge Vs. Right To Appeal

When any petition is filed by either the injured worker (seeking to obtain benefits, or correct the description of injury or benefit rate); or by the defendant (challenging the right to ongoing benefits), the petition will be assigned to a Workers’ Compensation Judge. These Judges handle ONLY workers compensation matters, in the workers’ compensation “administrative law” system, and do not have authority or Jurisdiction to hear other types of claims. Each Judge has their own procedures and preferences – within the scheme of the Workers’ Compensation Act. Though rare, failure to follow the Judge’s procedures can result in the Dismissal or Granting of a Petition (depending upon which party filed the petition and which party violated the “rules”).

Far more typically, the Judge will accept each party’s evidence and hear “live” testimony from any witness either party wishes to have testified in court. Experts usually testify by deposition, and a transcript is presented to the Judge. The Judge has the discretion to believe or reject the testimony of any witness, so long as they state their reasons for doing so Merely challenging which witnesses the judge accepted or rejected is not a sufficient basis for appeal. The Appellate courts’ authority is limited to determining whether the WCJ acted within the scope of their authority, set forth adequate reasons, and did not violate any law or constitutional rights. The Appellate courts will NOT review the evidence, and make their own determination regarding which evidence is credible. That is solely the Judge’s role.

 

More On Termination, Suspension, and Modification of Benefits

These are the most common petitions an insurance company might file, challenging an injured workers’ right to continue receiving benefits. Each of these petitions is usually based on the experts hired by the insurance company and will be contested by evidence presented by the claimant – subject to the Judge deciding which evidence/witnesses is believed – and what evidence/witnesses are rejected.

A Termination Petition is based on medical evidence, usually from an expert hired by the insurance company, who states (in their opinion) the claimant is fully recovered from their work injury. If the Judge accepts the insurance company’s evidence as believable, all benefits are “terminated”.

A Suspension Petition can be based on several different legal theories:

  • there is work available to the injured worker within their capabilities, and at wages equal to or greater than their pre-injury average weekly wage;
  • the injured worker has, in fact, returned to work at equal or greater earnings;
  • the injured worker failed to attend a Court Ordered Expert Exam;
  • the injured worker has been incarcerated following a conviction; or
  • the injured worker has voluntarily removed themselves from the workforce (usually by way of retirement).

If the Judge believes the employer’s evidence, wage loss benefits are “suspended”, but the claimant has the right to continue getting medical treatment, paid by workers’ comp.

A Modification Petition can again take several different forms:

  • that work is available to the claimant, but at wages less than their pre-injury earnings;
  • that the claimant has, in fact, returned to work at lower earnings;
  • that the injured worker’s condition is reasonably presumed to be permanent, and an Impairment Rating Evaluation has determined their impairment is less than 35%, pursuant to AMA Guidelines.

If benefits are “modified”, the insurance company must still pay some weekly wage loss benefits – at a rate determined by the “facts”, as decided by the Judge. The right to ongoing medical treatment continues as well.

 

Job Availability

The term “job availability” stated above is based on legal criteria. For injuries suffered before 1996, the insurance company must prove a number of elements, the most significant is that there was an actual job offered to the injured worker. The 1996 amendments to the Workers’ Compensation Act eliminated the insurance company’s obligation to prove an actual job “offer”. The insurance company’s vocational expert now only needs to prepare a document called a Labor Market Survey (or “Earning Power Assessment”), demonstrating the types of jobs that are available in the general labor market within the claimant’s physical capabilities (which capabilities are typically based on the opinions of the insurance companies doctor).

 

Reinstatement Of Benefits

If an injured worker’s benefits are terminated, modified or suspended, the injured worker can still file a Petition to Reinstate wage loss benefits. The elements the injured worker needs to prove (to the satisfaction of the Judge) and the likelihood of success, vary depending on how and why the benefits were discontinued.

 

Utilization Review

A Request for Utilization Review challenges whether past or recommended treatment is reasonable and necessary. It can be filed by either party, but overwhelmingly is a tool used by insurance companies to cut-off an injured worker’s right to treatment – even where the insurance company acknowledges that the disability continues.

 

Total Vs. Partial Disability

Under the wage loss system of workers compensation, there is no such thing as a “permanent” injury. There is ONLY totally disabled, or partially disabled. These are legal definitions, not medical or even based on plain English.

Totally disabled applies when an injured worker is not working, and there is no evidence of jobs available. Under this definition, wage loss benefits theoretically can last for life.

Partial disability applies where an injured worker has returned to work, or a Judge determines they can work, AND there are jobs available within their capabilities. Partial disability provides wage loss benefits for a maximum of 500 weeks, but no limit on medical treatment.

 

Impairment Rating Evaluations (IRE)

At the beginning of this outline, the Pennsylvania Worker’s Compensation was described as a “wage loss system”. Later, there was a reference to 1996 Amendments to the law. Those amendments also added an entirely new aspect to the “system”, determining an injured workers’ right to benefits not based on “wage loss”: but instead, based on the level of their “impairment”. Many states do use this type of system, but in the opinion of this law firm, the two systems are entirely inconsistent and incompatible with each other. Impairment is based on “permanency” of an injury – which, as stated above, did not exist under PA law before 1996.

First – what is an IRE? It is a different type of examination than an IME. Here, a specially qualified expert determines the percentage of the injured worker’s “whole body impairment” with reference to arbitrary mathematical formulas established by the AMA. If the impairment is determined to be under 35%, the injured worker’s benefit status can be automatically, or by petition, changed to partially disabled, rather than totally disabled – thereby limiting the injured worker to 500 weeks of benefits (as discussed above) – even with no evidence of a change in their “disability”.

In June 2017 the Supreme Court of Pennsylvania determined the law was unconstitutional. In October 2018 the Pennsylvania Legislature re-enacted the law, with very slight changes. As of the date of this update – virtually every Certified Workers’ Compensation Specialist attorney in Pennsylvania is again challenging the Constitutionality of this new version – each racing to be “the one” to get to the Supreme Court first. This law firm is well in the hunt to be that Firm.

 

Social Security and Medicare

The interaction between workers compensation “disability” benefits and an individual’s potential right to simultaneously receive Social Security and/or Medicare Benefits has significant pros and cons, which must be carefully considered on a case-by-case basis.

Medicare has a right, by Federal Law (not Pennsylvania WC law) to demand a piece of a WC settlement, through something called a Medicare Set Aside. Whatever amount the Federal Government demands, the defendant must either agree to pay, keep medical “open” (or simply decide not to settle). Medicare does not pay for any and all treatment, but pays the types of services approved by Medicare Guidelines. They also do not pay 100% of the bills, but require the recipient of benefits (you) make a co-payment. In deciding whether or not to agree to a “Set-Aside”, your future treatment needs, and costs must be carefully considered.

Related to the Medicare issue is Social Security. There are two types of SS benefit: “disability” benefits, and “Age Related Social Security”. There is a very big difference. With the disability benefit, the Federal Government pays a reduced rate; and WC pays the full benefit rate. When the WC claim is settled, a mathematical formula based on life expectancy (usually) results in an increase in the monthly SS benefit. With the “Age-related” benefit, it works the opposite. Social Security would pay the full benefit rate you are entitled to, and workers comp pays a significantly reduced benefit rate.

Generally, the moment an injured worker receiving the disability SS benefits becomes eligible for the age-related benefit, the government switches you automatically. WHY? Because the sooner you start taking you “age-related” benefit, the lower that rate will be – so the Federal Government wants to pay you the lowest rate they can. When the switch is made is not up to you – it Is determined by the government. Once that happens, your workers’ comp rate will be reduced – significantly.

 

What does subrogation mean? How does it effect my benefits or settlement?

The easiest way to understand the concept of subrogation in lay person language; an injured person can not receive benefits from multiple different sources for one injury or claim. If there are different types of benefits available, the injured person can not keep them all. [As with almost any rule, however, there are exceptions.] An example may better explain the concept.

A person is injured in a car accident while in the course of their job. As a result of their injuries, they have medical bills for treatment, and suffer a loss of earnings while they are disabled. Any or all of the following benefits might be paid or “available” depending on the circumstances:

  • Workers’ compensation
  • Private health insurance
  • Their own car insurance, or employer’s car insurance
  • A personal injury or “negligence” lawsuit
  • Short or Long Term Disability benefits
  • A union Sickness and Accident Plan
  • Retirement or Pension plan
  • Severance pay (if employment is terminated)
  • Unemployment Compensation
  • Wrongful Termination claim
  • Social Security (Age Related or for disability)
  • Medicare or Medicaid

There may well be other benefits not listed. The purpose of each type of benefit is to (try to) make the injured person “whole” – as if they had never been injured. The purpose is not to create a windfall for the “luck” of having been injured. If multiple different types of benefits are available in any given case – one Payor of benefits MAY have a legal right to get their money back from the injured person, or from the “Primary” source of benefits. The right to get the money back is subrogation.

The issue of subrogation is often (mistakenly) considered in the same category as a credit or offset. This applies where the workers’ compensation insurance company is permitted to reduce (or take a credit against) the benefits they are required to pay, based on the payment or availability of another type of benefit. The right to subrogation vs. a credit or offset is covered by a completely different section of the law – but in reality – even Workers’ Compensation Judges sometimes intermix the two concepts.

There are different types of subrogation claims, and completely different sections of the Workers’ Compensation Act that define how they work. The two biggest factors in determining whether and how subrogation impacts the injured person’s right to benefits is based on (1) who paid the cost or premium for the benefit plan and (2) who is asserting the claim.

 

Who paid for the benefit or plan?

If the injured worker paid for the benefit or plan themselves – there may or may not be a right to subrogation. If a person buys their own disability plan (like Afflac), they may be entitled to keep all benefits. In other situations, even where the person pays for the benefit themselves – it may (or may not) be “their” right to assert. Think of car insurance. If the accident involved your own car, and you paid for the insurance – the car insurance company may have a right to recover the amount of medical bills they paid from a workers compensation insurance company. If the car insurance plan provides a wage loss benefit, the injured person can not recover the same lost wages from both the car insurance and workers’ compensation. Once lost wages are paid by one source – they are no longer “lost” wages. That same car insurance plan may also provide something called Uninsured or Underinsured Motorist benefits, for pain and suffering caused by the negligent driver. Depending on whether the car insurance was paid for by the injured person or paid for by the employer will dictate whether the injured worker can “double dip”. THE POINT, it that there is a confusing amount of different possibilities depending on the type of benefit, and who paid for it.

 

Who is seeking subrogation?

The second factor is what benefit plan is seeking subrogation from what other person or plan. Is the workers’ compensation insurance company seeking money back from the injured claimant’s personal injury lawsuit; or is a private health insurance company trying to get their money back from the workers’ compensation carrier? Further still, is the workers’ compensation insurance company trying to assert a credit (pay reduced WC benefits) due to some other benefit?

Generally, one type of insurance will be considered “primary”, and other benefits are secondary. A secondary plan can get any money they paid back from the primary plan. As stated above, there are so many variables depending on the type of benefit, who paid the insurance premium to get the benefit, the applicability of state law (such as workers comp. laws) or Federal law (Social Security and Medicare) and even the terms of the insurance policy or plan itself (including car insurance and STD/LTD plans) that it is not possible to provide a definitive list of every scenario in one article.

In fact, there are even completely different sections of the Workers’ Compensation Act involved (not to mention the motor vehicle code, federal law etc). Section 319 of The Act deals with the WC insurance company’s right against a personal injury claim. Section 204 of The Act involves “credits” for unemployment, severance, pension and Social Security benefits. Even lawyers, who do not focus their practice in this field of law, can get confused.

 

Why Can’t The Injured Person Keep All Benefits?

As briefly referenced above, the purpose of the law is to try to make the injured person “whole”, not to create a windfall for having been injured. Though the injured worker obviously didn’t ask to be injured and have their life changed; the availability of different forms of insurance is intended to “compensate” for injuries, not cause a profit from being injured. Moreover, the employer (usually) didn’t intend for an injury to occur, and obtains insurance to provide that compensation. The goal of subrogation is threefold:

  1.  to prevent the injured person from receiving a “double” recovery;
  2. to prevent the employer from paying for injuries caused by a Third Party’s negligence; and
  3. to ensure the negligent party does not escape liability for the injury they caused. Poole v. WCAB (Warehouse Club, Inc.), 810 A.2d 1182 (Pa. 2002).

 

The Law

As if the above information has not already caused enough confusion, the LAW is an ever changing, constantly evolving phenomenon, that even “workers comp” lawyers who do not stay abreast of each new case decided by the courts may not be able to fully explain your rights – let alone protect them.

The Pennsylvania Workers’ Compensation Act was created in 1915. From then until 2018, it was understood that subrogation applied to ALL workers compensation benefits. As recently as 2001 the Supreme Court of Pennsylvania issued a detailed and thorough opinion defining the right of subrogation as “absolute”. Thompson v. WCAB (USF&G Co.), 781 A.2d 1146 (Pa. 2001).

In 2018, after 113 years of case law, and generation after generation of lawyers and Judges arguing and issuing decisions regarding this topic, the Court changed the game. In Whitmoyer v. WCAB (Mountain Country Meats), 186 A.3d 947 (Pa. 2018) a “new generation” of Supreme Court Justices provided a thoughtful, and with the benefit of their logic, a seemingly obvious explanation that subrogation applies to “installments” of benefits. Installments are benefits paid in a regular, periodic manner – which is the wage loss benefits. On the other hand, medical benefits are paid as and when needed – not in regular “installments”. Suddenly, subrogation does NOT apply to all benefits. It applies to all previously paid benefits – but only to future “installment” of benefits.

[In 2019 the Commonwealth Court of Pennsylvania issued an unreported opinion providing a detailed analysis of subrogation (which provided the “inspiration for this article). Marshall v. WCAB (Easton Coach Co.), No. 541 C.D. 2019. Of significant note, that decision was premised on another MAJOR concept of workers’ compensation law – that an employer’s liability to pay benefits continues in the absence of a court order or agreement ending the employer’s liability. That concept was based on an earlier court decision – McLaughlin v. WCAB (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002) – argued by counsel now counsel with Schmidt, Kirifides & Rassias.]

 

Other Issues

Among the many issues, NOT covered here include the interplay between a workers compensation claim, and an individual’s right to benefits from other laws, such as a Pension; Short or Long Term Disability, Unemployment Compensation, or a privately funded insurance plan;

Where an injured worker may have a separate lawsuit against a Third Party (not the employer) responsible for causing their injury, there is a right to subrogation – meaning the WC insurance company has a right to be paid back all of the benefits they have paid to your, from your other lawsuit.

Alternative Claims for certain employees include benefits pursuant to the Laws Enforcement Disability Benefit Act (Heart & Lung Act); and certain employees who may be covered by the Longshoreman’s Act, Railroad Workers Act, etc.

To discuss the unique factors of your case, and for specific, not general answers, it is essential to speak with a lawyer and not rely on these “General Guidelines”.

 

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Mark Schmidt
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44 E Front Street, Media,PA 19063

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