Posts Tagged ‘workers compensation claim’

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.

            John was an interstate truckdriver for over twenty years and never experienced any health issues. Because of the nature of his work, John would spend extended hours in a seated position driving his truck. John started to notice a numbness in both feet which had been getting progressively worse.  John finally got concerned enough to go to his doctor and was diagnosed with deep vein thrombosis. John’s doctor was very concerned that John would develop blood clots which could easily lead to a stroke. John was advised to stop driving immediately. The doctor also prescribed Coumadin, a blood thinner, for John to take and advised John that he would be on this medication for the rest of his life. John’s doctor was adamant that John’s job duties as a truck driver wherein John was immobile for hours at a time while driving was a substantial contributing cause to the development of the deep vein thrombosis.

ISSUE:          Does John have a valid claim for Workers’ Compensation benefits?

ANSWER:     Yes. It is not unusual for truck drivers such as John to develop this problem. John will be entitled to Worker’s Compensation benefits as well as medical coverage as his prescriptions may last a lifetime. In all likelihood John will never be able to return to the type of work he was doing.

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. 

           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. 

            Tom had worked in a noisy machine shop around heavy equipment for over twenty years. Tom had retired from his position in 2009.

            Carolyn, Tom’s wife, noticed that Tom starting turning the volume on the television set way up and she recommended that Tom have his ears tested. Not to Carolyn’s surprise, Tom was told that he had a significant loss of hearing in both ears of close to 40% and would need hearing aids. Tom’s doctor advised him that it was the years of exposure to noise at work which cause his hearing loss.

ISSUE:          Does Tom have a viable Workers’ Compensation claim even though he never advised his employer of his hearing loss for two years?

ANSWER:     Yes. Tom has three years from his last date of work to present a claim. Additionally, Tom is not obligated to give notice to his employer of his hearing loss being work related until he, Tom, was advised by his doctor of the relationship between the work and the hearing loss.

            Tom will be successful in his claim and all his medical bills will be paid. He will receive approximately two years of lost time benefits as well.

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.

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.

Carolyn worked at a local fast-food restaurant. Carolyn had recently broken up with her boyfriend and her boyfriend was not taking it very well. Carolyn’s boyfriend started stalking her as well as calling her at all hours of the night. Carolyn was working a night shift and after she punched out and was on her way to her car in the employer’s parking lot, her boyfriend drove his car into her causing her serious injury.

ISSUE: Is Carolyn entitled to Workers’ Compensation benefits?

ANSWER: No. Normally injuries incurred while one is on an employer’s premises, including parking lots, are compensable. In this case though, Carolyn’s injuries were caused by her boyfriend and his personal animosity towards her and thus did not in any way arise out of her scope of course of employment.

Carolyn will obviously have a law suit against her boyfriend, although the insurance coverage on her boyfriend’s car will be denied since her injuries were caused by an intentional act. Carolyn may have a cause of action against her employer for failure to provide a safe work place, although this would be a difficult theory to prove, unless the employer was aware of her boyfriend’s dangerous propensities and likelihood that he would strike out at her on the work premises.

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.

Terry began working for Helpful Companion Company as a home health aide in June of 2008. Since her start though, she was assigned only one patient from the date she began working through the date that she was involved in an automobile accident on her way to that patient’s home. In performing her work assignment, Terry always drove directly from her own home to the patient’s home. In January of 2010, Terry’s vehicle slid on ice and Terry was injured sustaining serious injuries to her neck and back. Terry has not been able to continue working since that time and filed a workers’ compensation claim against her employer.

Issue: Will Terry be successful?

Answer: No. There is a general rule referred to as the “coming and going rule” which precludes individuals such as Terry who are injured while traveling to and from work from receiving workers’ compensation benefits. This is a general rule. There are exceptions which do not apply. Those exceptions would have been if Terry’s employer had provided transportation to her or if Terry was being paid for her travel time by the employer.

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.

In Pennsylvania, the Department of Labor and Industry monitors and administers the codes and regulations which affect the safety of our workforce. The Bureau of Workers’ Compensation (“the BWC”) administers laws which assure that workers are insured against job-related injury, illness, or death. The Health and Safety Division of the BWC is responsible for enforcement of the health and safety regulations of the Workers’ Compensation Act.
The Bureau of Occupational and Industrial Safety is responsible for the administration and enforcement of various provisions and regulations including the Uniform Construction Code, the Fire and Panic Law, the Universal Accessibility Law, the General Safety Law, the Boiler Law, and the Elevator Law. Also included in the purview of the Bureau of Occupational and Industrial Safety is the enforcement of the provisions of the Liquefied Petroleum Gas Law and the Flammable & Combustible Liquids Law.

With the burgeoning growth of the natural drilling industry in Pennsylvania’s Marcellus Shale field, it’s important that the workers in this industry can be assured of a safe work environment. It’s also important that these workers are aware of the rights and remedies available to them in the event that they suffer a work injury. The team of lawyers at Dougherty, Leventhal & Price are ready to answer your questions on workplace safety and the workers’ compensation system. If you do suffer a work injury, contact us and we will be happy to represent you and guide you through the litigation of your workers’ compensation claim.

Matt and his lovely wife, Kitty, had been married for 30 years. Kitty would always prepare Matt’s lunch which consisted of a kielbasa sandwich, and chocolate Tasty Kakes. Matt worked at a local lumber yard as a jack-of-all-trades.

On April 22nd, Kitty got a call from the employer that Matt had had a serious heart attack while at work. Matt was taken directly by ambulance to the hospital but, unfortunately, he expired before Kitty arrived at the hospital. Matt and Kitty had been able to save very little and whatever extra money they had, they usually gave to their children. Kitty was able to get Social Security but sought advice as to whether or not she would be able to collect workers’ compensation death benefits in her capacity as the widow of Matt.

Question: Is Kitty entitled to workers’ compensation benefits?

Answer: The mere fact that Matt had his heart attack while at work does not establish a compensable workers’ compensation claim. Kitty, through her attorney, would have to show that Matt’s work in some way caused Matt’s heart attack. If this could be done at all, it would have to be through showing the fact that Matt was performing heavy duty activity at some time prior to the fatal attack. Kitty would also have to have a doctor verify that Matt’s activity was either a precipitating or aggravating cause of Matt’s underlying cardiac condition, thus, triggering the heart attack.

In this particular case, Matt’s heart attack was purely coincidental to the fact that he was at work and really had no relationship to the activities Matt was doing while Matt was at work. Unfortunately, Kitty will not have a claim for death benefits under 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.