Posts Tagged ‘workers compensation act’

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.

The Pennsylvania legislature recently amended the Workers’ Compensation Act to expand the recognition of cancer as an occupational disease for firefighters.  There is now a presumption that a firefighter who develops cancer developed the cancer as a result of work-related exposure as long as the firefighter could establish that he

1.  had four or more years of continuous firefighting service;

2.  can establish direct exposure to a Group I carcinogen (as recognized by the International Agency for Research on Cancer) as documented by a  report filed to the Pennsylvania Fire Information Report System (PennFIRS), and

3.  successfully passed a physical exam prior to asserting a claim or prior to engaging in firefighting duties and the examination failed to reveal any evidence of cancer.

Claim must be made by a firefighter within 600 weeks (approximately 11.5 years) after the last date of employment.  However, the presumption only applies to claims made within the first 300 weeks (approximately 5.5 years) after the last date of employment.

The employer may rebut the presumption by substantial competent evidence that shows that the firefighter’s cancer was not caused by the occupation of firefighting.  The new law applies to both paid and volunteer firemen.

If a firefighter is found to have developed cancer as a result of his firefighting duties, the employer is liable to pay all of his disease-related medical bills and partial or total wage loss benefits for any time missed from work.

The shifting of the burden of proof to the employer to prove that a firefighter’s cancer is not work-related is significant and should make it easier for firefighters who develop cancer to prove that the disease was caused by their work-related exposures.  This new law amending the Workers’ Compensation Act should result in more firefighters getting the compensation they deserve while allowing them to  focus on getting the treatment they need to combat the disease.

If you are a firefighter (or if you know a firefighter) who has developed cancer, please contact Dougherty, Leventhal & Price, L.L.P. for a free consultation regarding your right to receive workers’ compensation benefits and/or heart and lung benefits.

           Chris had worked for a number of years at a manufacturing company over in the valley where she had commuted on a daily basis. Chris worked a straight nine-to-five shift, although the company she worked for had at least two and sometimes three different shifts going. Chris was advised that she was going to have to accept an alternating shift schedule. The schedule would involve her working an alternating nine-to-five schedule with eleven PM-to-seven AM schedule, alternating every week.

            Chris found that the change in her routine and scheduling caused her to have extreme difficulty in sleeping and she found that she was having tremendous difficulty adapting to the change in her work routine. Chris’ health began to deteriorate to the point where she became unable to function.

ISSUE:          Does Chris have a Workers’ Compensation claim?

ANSWER:     No. In Pennsylvania, what has been referred to as “shift work maladaptation syndrome” is not recognized as a work injury. This is unfortunate since it is common for ordinarily health people to have a tremendous problem adapting to these types of total changes in their sleep and eating routines.

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. 

         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

     The Pennsylvania Commonwealth Court has ruled that a denial of workers compensation benefits was proper in a case involving the issue of whether the injured worker (“claimant”) was in the course and scope of employment when the injury occurred. In Penn State University v. WCAB (Smith), the Court has determined that evidence was insufficient to establish that the workers’ compensation claimant, Mr. Smith, injured himself while in the “course and scope” of his employment.  Smith broke both of his ankles when he jumped down a flight of stairs while on his lunch break. Typically, an injury is compensable under the Workers’ Compensation Act only if the injury arises in the course of employment and is causally related thereto. An injury may be sustained in the course of employment under the Workers’ Compensation Act where the employee is injured on or off the employer’s premises while actually engaged in furtherance of the employer’s business or affairs. However, an activity that does not further the affairs of the employer will take the employee out of the course and scope of employment and serve as a basis for denial of the claim. Generally speaking, neither small temporary departures from work to administer to personal comforts or convenience, nor inconsequential or innocent departures will remove the claimant from the course and scope of employment.

     In the day of his injury, Mr. Smith was cleaning dorm rooms at Perry Hall for Employer’s Housing Department.  Claimant left Perry Hall to take his 30 minute unpaid lunch leave at Bruno’s, an on-campus dining facility where Claimant had an employer-sponsored meal plan. Claimant was walking from Perry Hall to Bruno’s on a walkway that included three flights of stairs. He intentionally jumped down the second flight of approximately twelve steps, landing very hard with his feet flat and fractured both ankles.

     The Court determined that Mr. Smith’s actions in light of the nature of his employment (performing housekeeping or cooking duties) could not be viewed as furthering employer’s business or affairs noting that he voluntarily jumped down a flight of stairs on a “whim,” and that he had thoughts of doing it before the injury date. The Court went on to state that he did not trip or fall down the stairs, but walked up to the edge and jumped off the stairs and injured himself upon landing.  The Court concluded that the employer did not encourage in any way Claimant to jump a flight of stairs during his lunch break and that the facts did not establish that Smith’s actions furthered a specific interest of Employer.

            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. 

Harry was employed by Happy Times Candy Company. Happy Times provided transportation for their employees to and from the factory. Happy times utilized a van and provided a driver to pick employees up, such as Harry, from their home and being them to work and then, at the end of the day, take them back to their home.

Harry was riding in the employer-provided van driven by a fellow employee when the van collided head on with another vehicle. Harry suffered serious injuries and attempted to file a claim against his employer under Workers’ Compensation.

Question: Can Harry seek a Workers’ Compensation claim?

Under the laws of Pennsylvania, there exists what is called the Ridesharing Act. This Act provides the transportation of employees to and from their place of employment in a motor vehicle owned or operated by the employer will not be covered under the Workers’ Compensation Act. In essence, the Act eliminates employer-provided transportation from the scope and course of an employee’s employment.

Harry, though, will be able to file suit against the drivers of both the vehicle he was in and the driver of the other vehicle, which was involved in the collision. Unlike Workers’ Compensation, where his only recovery would be lost wages and medical bills, with a civil suit, he can also collect for his pain and suffering.

Normally, co-employees are immune from liability under the Workers’ Compensation Act. Because the Workers’ Compensation Act would not apply, Harry could now sue the driver of his own van and, in effect, bring suit against his employer who provided the driver.

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.

Tony injured his back at work and immediately reported the injury to his boss. The Workers’ Compensation insurance carrier for Tony’s employer advised Tony that he was to visit Dr. Smith for treatment. Tony obliged and went to Dr. Smith, who wrote an excuse for Tony not to return to work until Tony’s back condition had improved.

In the meantime, Tony kept on waiting for payment of his compensation benefit checks. Despite numerous calls to the insurance carrier, the payments were not made. Tony was forced to retain a lawyer to intercede on his behalf and institute litigation.

Normally an attorney charges a 20% fee against compensation that is due and owing to an individual upon the successful completion of the compensation case. The attorney cannot charge a fee before the Administrative judge approves the same. There are situations where the compensation carrier, as in Tony’s case, has no reasonable basis to deny the claim. This is referred to as an unreasonable contest. In those situations the Workers’ Compensation Judge can order the Workers’ Compensation carrier to pay Tony’s legal fees in addition to paying Tony his workers compensation checks. In essence, the 20% will not come out of Tony’s past compensation, but rather will be paid by the compensation carrier.

In addition the Administrative Judge, if he finds there has been an unreasonable delay in the payment of Tony’s compensation, can order up to a 50% penalty against the compensation carrier of all amounts that are owed in the past.

When one adds up the assessment of a 20% attorney fee and the 50% penalty and then tax on an additional 10% for interest on all outstanding compensation, the Workers’ Compensation carrier can end up paying an extra 80% more than they would have paid had they abided by the 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.