Posts Tagged ‘pennsylvania workers compensation’

Under Pennsylvania law, in order to establish a claim for benefits under the Workers Compensation Act, an injured worker needs to establish that there was an employment relationship between the injured worker and the alleged employer. This issue is typically seen in cases where the “employer” asserts that the injured worker was not an “employee” or was an independent contractor. The facts of the case are analyzed in the context of several questions regarding the control of the “employee”:

• Did the “employer” have the right to select the “employee”;
• Did the “employer” have the right and the power to remove the “employee”;
• Did the “employer” have the power to direct the manner of the work performance;
• Did the “employer” have the potential power to control the “employee”;
• Who provided the tools or equipment utilized by the “employee”;
• Who secured the work that was being performed;
• Was the “employee” paid by the job, by the week, by the hour, etc.

If you are injured at work and have questions about a workers compensation claim, call me at (570) 347 -1011 or email me at [email protected] for a free consultation.

         Q. Are psychological/psychiatric injuries compensable under the Pennsylvania Workers Compensation Act?

         A. Yes. There are three types of psychological injuries that are compensable under the Act:

(1) Mental/Physical injuries, i.e. where a psychological stimulus causes physical injury;

(2) Physical/Mental, i.e. where a physical stimulus causes a psychic injury; and

(3) Mental/Mental—where a psychological stimulus causes a psychic injury.

         These categories require different standards of proof with the “mental/mental” being the most rigorous and requiring proof of an “abnormal working condition”.

         Generally speaking,  a party filing a claim for workers’ compensation benefits must prove that the alleged injury is both work-related and disabling.  Insofar as psychological injuries are highly subjective, the occurrence of the injury and its cause must be adequately established. Where the alleged psychological injury was not caused by physical injury, the claimant must submit evidence to prove (a) that he suffered a psychological injury and (b) that the injury was more than a subjective reaction to normal working conditions.  The claimant must further establish that the working conditions or work events are not merely perceived or imagined. Whether or not the working conditions are ”abnormal” is a question which relates to the cause of the injury. Pennsylvania courts have ruled that while abnormal working conditions may be sufficient to link the injury to the employment, subjective reactions to normal working conditions will not meet the claimant’s burden of proof . 

        Disclaimer: The above article is for instructive purposes only and each case is fact sensitive.  Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column

            Bob’s wife, Betty Lou,  noticed that when she and Bob watched television, Bob would keep asking her to turn up the volume. Betty Lou also noticed that when Bob was watching the TV alone, he had the volume turned up so loud that it was actually uncomfortable for Betty’s Lou’s ears. Bob worked for years in and around heavy equipment and power tools at the local widget factory.

            Bob’s wife finally convinced Bob to go for a hearing test. Not surprisingly, the results came back showing that Bob had a severe binaural (both ears) hearing loss which Bob’s doctor attributed to the years of exposure to loud noises on the job.

ISSUE:          Does Bob have a claim under Workers’ Compensation?

ANSWER:     Yes. Pennsylvania Workers’ Compensation Act has specific provisions that do allow a recovery for occupational hearing loss. As long as that hearing loss is more than ten percent binaural, Bob would be able to recover both medical costs and a lump sum, depending upon what percentage his actual loss is.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive.  Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column. 

Update- In an earlier post (set forth below) I discussed subrogation rights of an employer who has paid Heart and Lung Act benefits to an injured employee.  On January 28, 2011, the Pennsylvania Supreme Court issued a decision In Oliver v. City of Pittsburgh holding that Heart and Lung and Act Benefits are not subrogable. 

        Under the Pennsylvania Workers Compensation Act, when an employer has paid benefits to an injured worker as a result of a work injury that was caused by the negligence of a third party, the employer is entitled to recoup whatever benefits it has paid from the injured employee’s recovery from the negligent third party. This concept, known as subrogation, often comes in to play when an employee is injured in a motor vehicle accident while in the course and scope of employment.
Generally speaking, the employer’s subrogation rights are absolute with regard to recouping payments made under the workers Compensation Act. An interesting issue has arisen in this Commonwealth with respect to subrogation rights of a municipality with respect to benefits paid under the Heart and Lung Act. The Heart and Lung act addresses payments made to a certain class of employees (i.e. police officers, firefighters, etc.) for injuries incurred while “in the performance of (their) duties”. The key distinction between workers compensation wage loss benefits and Heart and Lung benefits is that workers compensation benefits are generally 2/3 (or 66.66%) of an employee’s pre-injury earnings while Heart and Lung benefits are 100% of the employee’s pre-injury pay.
In 2009, the Pennsylvania Commonwealth Court addressed the issue of a municipality’s subrogation rights relative to payment of Heart and Lung benefits. In Oliver v. City of Pittsburgh, the court held that an employer that pays benefits under the Heart and Lung Act is entitled to subrogate against the injured employee’s third party recovery. This decision effectively reversed a prior Commonwealth Court ruling from 2002 that held an employer, while having a right to subrogation relative to benefits paid under the Workers Compensation Act, did not have the right to subrogate as to the Heart and Lung benefits paid.
Again, as indicated above, the Pennsylvania Supreme Court has reversed the Pennsylvania Commonwealth Court and has held that Heart and Lung and Act Benefits are not subrogable.

Bobby worked for the AAA Warehouse and Ladder Company for over twenty years without ever sustaining an injury. Bobby’s luck ran out though, when he was struck in the mouth by a ladder causing Bobby to lose three of his front teeth. As a result of the injury, Bobby only missed several days of work and the Workers’ Compensation carrier paid for his dental bills. Since Bobby did not miss seven consecutive days of work, he was not entitled to any loss time benefits.

ISSUE: Does Bobby have any other remedy?

YES: Yes. The Pennsylvania Workers’ Compensation Act does provide for benefits when one suffers a disfiguring injury to the head, face or neck. In this case, Bobby lost three of his front teeth giving him somewhat of a pumpkin head appearance when he smiled. Bobby was able to get a prosthesis that he wore to replace the teeth, but nevertheless when he did not have that in his mouth and he smiled, his appearance was greatly affected.

Bobby will be entitled to anywhere from one up to two-hundred seventy-five weeks of his compensation rate based upon what a Judge feels is an appropriate award. In a case such as Bobby’s, he may receive as much as 100 weeks of compensation because of the disfigurement. The most common types of disfigurement awards are based upon scarring of the face, head or neck.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Paul had sustained a work-related back injury and, with the help of some excellent therapy, was scheduled to return to work in just three days. Paul was on his way to his last physical therapy session when he was stopped at a stoplight on Main Street in Honesdale. Paul was suddenly rear ended by a large out-of-state SUV.

Despite having his seatbelt on, Paul was violently thrown forward at the same time that the airbag opened. Paul immediately felt extreme pain once again in his low back and, as a result of the rear-end collision, his return to work would ultimately be delayed almost four months while he once again rehabilitated.

Issue: Will Paul be entitled to Workers’ Compensation benefits for the additional four months?

Answer: Yes. Because of the fact that Paul was injured once again while on his way to treatment, it would be considered all part of the original work-related injury. Thus, Paul’s additional four months of medical bills and lost time would all be compensable. If Paul suffered other injuries besides the original injury to his low back, that would also be considered compensable under the Pennsylvania Workers’ Compensation Act.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

The Pennsylvania Workers’ Compensation Act requires that a Notice of Ability to Return to Work form must be issued to an injured worker (the “claimant”) in a “prompt” fashion in order for an employer to pursue a modification or suspension of the claimant’s wage loss benefits based on an earning power assessment. However, the Act does not define what constitutes “prompt” written notice. Pennsylvania courts have held that the purpose of this statutory requirement is to provide notice to an injured worker that (1) there is medical evidence that the claimant can perform some work, (2) that benefits could be affected, and (3) that the claimant has an obligation to look for work. A claimant must have notice that her benefits could be affected before the employer attempts to modify benefits by showing earning power which is typically done by expert vocational testimony showing open and available work that falls within the claimant’s work-related restrictions and is within the claimant’s geographical area. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of work. The appellate courts have thus determined that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received within a reasonable time after its receipt lest the report itself becomes stale. It also requires an employer to give notice to the claimant a reasonable time before the employer acts upon the information. This necessarily requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice.

Louie had been working for the Pig & Pork Trucking Company for ten years as an over-the-road truck driver. Pig & Pork Trucking Company had their home office in Indiana. When Louie was hired, he went out to Indiana to fill out his employment application.

On August 17th, Louie was driving back from the west coast on I-80 not far from the Bloomsburg Exit. For some unknown reason, a car that was passing Louie went out of control directly in front of Louie. Poor Louie was badly injured, and it looked like he was going to miss an extended period of time of work.

Louie’s employer insisted that Louie file his comp claim in the state of Indiana since that is where his employer was located, and that is where Louie signed his contract of employment. Louie insisted that he was entitled to workers’ compensation benefits under Pennsylvania law.

Question: Who is right?

Answer: Louie is right. It doesn’t matter that Louie lives in Pennsylvania, but any individual that is hurt while in the scope and course of their employment in the state of Pennsylvania, regardless of where the employer is located or where the contract for employment was entered into, has a right to proceed under the Pennsylvania Workers’ Compensation Act. Injured employees oftentimes select Pennsylvania when they can because of Pennsylvania’s favorable benefit allowance for injured workers.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Jack had been working construction for 20 years and was extremely safety conscious. Jack would always wear a hardhat or safety eyewear when around the construction sites.
As fate would have it, Jack was on his day off when he got an emergency call from one of the construction sites. Jack was a foreman, and there was a dispute over the way some of the electrical work was being done. Jack arrived at the site and proceeded into the building that was under construction. Jack had no sooner entered the building when a metal fragment came flying into his right eye which, despite extensive treatment, would be lost.

Question: What are Jack’s rights under the Workers’ Compensation Act?

Answer: Jack would be entitled to what is called loss of use of the eye which will entitle him to payment of all of his medical bills as well as compensation benefits for 275 weeks regardless of whether he works or not. If Jack’s compensation rate would have been $700/week, he would receive that amount for the full 275 weeks. The Pennsylvania Workers’ Compensation Act provides these types of benefits for loss of use of limbs, eyesight, hearing and even for scarring of the head, neck and face.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.