Pennsylvania Workers’ Compensation is a complex maze of rules and regulations that the insurer likes to use to minimize an injured worker’s case. Navigating this system alone is a foolish move. Cardamone Law workers’ compensation and construction accident lawyer in Philadelphia PA have over 14 years of experience in handling workplace construction accident cases in Philadelphia. These injuries are often quite serious and require the expertise of an experienced construction injury lawyer.
3rd Party Case in Construction Accident Work Comp
An important aspect of these cases is spotting a 3rd party case. A 3rd party case is a case for negligence against a 3rd party- that is, an entity other than the Employer. An injured worker’s sole remedy for the work-related injury with respect to the Employer is the Pennsylvania Workers’ Compensation Law. However, if a 3rd party was responsible for causing the work-related injury, then a 3rd party case for negligence may be viable.
Image Source: pexels/Yury Kim
The damages are different in these parallel cases. In the Pennsylvania Workers’ Compensation case, the damages (i.e., benefits) are equivalent to the loss of earning power and medical benefits in a workers comp case. In a personal injury case, however, the damages may include pain and suffering.
An experienced Pennsylvania construction accident lawyer can help you identify the parallel cases and recommend a course of action according to the situation.
What Are Some Examples of A 3rd Party Case?
If you were injured in a motor vehicle accident while working, you would have a Pennsylvania Work Comp case against the Employer and a 3rd party case against the driver of the automobile if the driver’s negligence caused the injuries. Or, if you were working in a deli and cut off your finger because a machine malfunctioned, you would have a Pennsylvania Work Comp case against the Employer and a 3rd party case against the manufacturer of the machine that malfunctioned.
We have come across many situations where an injured worker has a Lancaster Workers’ Compensation lawyer or a construction accident lawyer in Philadelphia, PA who has failed to spot a possible 3rd party case. This is a costly error- possibly costing the injured worker millions of dollars in damages outside of the Pennsylvania Workers’ Compensation case. Now, not every workplace injury in Pennsylvania has a viable 3rd party action. Indeed, the Pennsylvania construction accident lawyer must prove negligence on a 3rd party and show that the negligence was the proximate cause of the injuries. But the failure to alert the injured worker as to a possible 3rd party case is inexcusable.
Think You Have A Viable 3rd Party Case? Hire An Experienced Construction Accident Lawyer!
When an injured worker has a viable 3rd party case, in addition to the PA Work Comp case, the attorneys must consult with each other to maximize the cases. Why? Well, the work comp insurance carrier has a right to subrogation. Subrogation essentially means the right to reimbursement. In these contexts, this means the carrier is entitled to a portion of the 3rd party settlement proceeds (less attorneys’ fees and costs) unless that lien is waived or reduced voluntarily. This concept can be tricky and difficult to comprehend so it is important for the Philadelphia construction accident lawyers to translate this to his/her client so that he understands the implications of subrogation on the two cases.
It is very important to get a consult as soon after a work injury as possible. In Pennsylvania Workers’ Compensation the statute of limitations is 3 years. In personal injury (i.e., 3rd party) cases, it is a 2-year statute in Pennsylvania. However, the sooner a claim is investigated, the better the odds are at a favorable outcome.
Contact Cardamone: The Best Philadelphia PA Construction Accident Attorney!
If you were injured at work, call me or email the best Philadelphia construction injury lawyer, Cardamone Law, for a free and prompt consult 7 days a week. You can also contact our leading Norristown workers’ compensation attorney and top rated lawyer in America, Michael Cardamone.
On March 25, 2013, the Pennsylvania Supreme Court affirmed a Commonwealth Court ruling that in a petition to suspend compensation benefits upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of the circumstances that the claimant has chosen not to return to the workforce.
The Employer maintained that Claimant’s application for and receipt of pension disability benefits after her work-related injury demonstrated that she had retired. It argued that the seminal cases of Henderson and Republic Steel (citations omitted) established a presumption that a claimant who separates from employment and receives a pension has voluntarily withdrawn from the workforce- and therefore, the indemnity benefits should cease. Employer argued that a pension, by definition, is a benefit paid based upon retirement (citing Black’s Law Dictionary). The Supreme Court declined to adopt the extra-statutory presumption of retirement urged by Employer. The Court recognized that it is not self evident, or even logical, to presume from the mere fact that a a claimant accepts a pension that claimant has voluntarily withdrawn from the workforce- as this specific case demonstrates that Claimant did not simply retire to an able-bodied pension, but was entitled to a disability pension because of her prior service and a work-related condition which disabled her from her time-of-injury job. In a well-reasoned statement, the Court said, “At most, Claimant’s approved receipt of a disability pension necessarily shows that she could not perform her time-of-injury position; it does not necessarily follow that she, and all workers similarly situated to her, decided to forgo all employment”. The Court went on to note that the receipt of a disability pension is not devoid of evidentiary weight; it may well be probative of a claimant’s desire to retire. But it is just one fact of many possible probative facts which must be analyzed.
Employer tried to assert that the Henderson case established a rebuttable presumption that a claimant has retired if the claimant accepts any type of pension. The Court rejected and went on the discuss Henderson, Dugan, and a host of other cases. The Supreme Court of Pennsylvania found that the Commonwealth Court plurality properly evaluated Henderson insofar as it determined that the Workers’ Compensation Judge must consider other evidence in addition to the claimant’s simple receipt of a pension to determine whether an injured worker has actually retired from the workforce totally.
Importantly, if the employer does produce sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power.
In justifying its holding, the Court reasoned, “Our holding will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant’s state of mind. Nor are we convinced that the dire consequences predicted by Employer- that claimants will impermissibly benefit by supplementing their retirements with workers’ compensation benefits, and that the cost containment goal of the Act will be undermined- will result. If an employer is convinced that a claimant has retired, the employer may present evidence to establish that status. As the Commonwealth Court suggested, the employer may do so by objective facts, including the claimant’s receipt of a pension, the claimant’s own statement relating to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.”
What is the moral of the story for injured workers?
First, this is a good, well reasoned Decision by the Supreme Court of Pennsylvania. The mere receipt of a disability pension shouldn’t dictate the outcome and a totality approach leaves flexibility to analyze entire fact patterns, which will result in fairer outcomes dictated by the specific facts of each case. As the Court said, “the judicial branch, faced with discrete factual patterns in individually-contested cases, is not particularly suited to make such empirical judgments to govern an entire set of cases.” It is strongly advised that injured workers speak to an experienced Philadelphia Workmans Comp Lawyer before applying for any type of benefits so that the attorney can analyze how, if at all, the application and/or receipt of such benefits will impact his/her case.
Injured workers are encouraged to speak with an experienced Pennsylvania Workmans Comp Lawyer to analyze their specific situations whether it involves a pension disability or not. I am available 7 days a week for injured workers across Pennsylvania for free consults.
Michael W. Cardamone, Esquire represents injured workers across Pennsylvania. His clients include:
Septa Workers
Union Workers
Nurses
Certified Nursing Assistants
Truck Drivers
Factory Workers
Construction Workers
Office Workers
Bus Drivers
State Workers
Masons
Waiters and Waitresses
Carpenters
Mechanics
Retail Workers
Pharmacists
Engineers
Secretaries
School Teachers
Remember– traumatic work injuries (ie, sudden onset) and repetitive work injuries (ie, accumulation of trauma over time) are compensable in Pennsylvania. An aggravation of a pre-existing condition is a work injury under Pennsylvania Law.
For more information about Pennsylvania Work Comp, call Attorney Michael W. Cardamone at (267) 651-7945 or email Michael@Cardamonelaw.com
7 days a week!
Many people have a vague familiarity with the Family and Medical Leave Act. It is an important and useful tool that many employees can take advantage of, and something that is often overlooked by employees. I wanted to share with you the basics of FMLA. Feel free to share this information with friends or family members. Most of us will have a need sometime in our lives to use this mechanism of protecting our job.
FMLA provides employees with up to 12 weeks of unpaid leave in a calendar year, with job protection. All public employers of any size are covered under FMLA, and private employers with 50 or more employees. Employer must be “engaged in commerce or an industry or activity affecting commerce.” 29 U.S.C. Section 2611 (4) (A) (i). (very broad language used here)
What employees are eligible?
Anyone who has worked at least 1250 hours during the preceding 12 months, and who has been employed for at least 1 year prior to the date leave is requested.
What types of leave are covered under FMLA?
Birth of employee’s son or daughter; Placement of child for adoption or foster care; To care for close family member with “serious health condition”; If employee suffers from “serious health condition” which renders employee incapacitated from performance. For what constitutes a serious health condition, see below.
What type of notice must be given?
If the leave is foreseeable, employee must give 30 days notice. If leave is not foreseeable, employee must provide notice “as soon as practicable” under the circumstances. Also, notice under FMLA does NOT have to be in writing, nor does it have to mention FMLA. This will surprise many people. Request only requires an employee to give notice of need for leave which may constitute FMLA eligibility. However, I advise my clients to make the request in writing and to mention FMLA. Why beat around the bush?
What are types of conditions that courts have upheld as being “serious health conditions”?
Well, as you could have guessed, it must be serious- chicken pox, asthma, pregnancy related issues that impact ability to perform job function, etc. Indeed, this analysis is done on an ad hoc basis, and therefore depends on the individual circumstances.
What job is protected?
The same or similar job you had prior to requesting the leave. To be more technical, “An equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment”.
Can an employer retaliate?
No. Employer cannot “interfere with, restrain, or deny” employee’s right to exercise rights under FMLA.
If I receive workers’ compensation benefits for a work-related injury, can my employer also count my time out of work as FMLA time as well?
Yes, if they provide you with written notice. This generally does not happen, but it may if certain requirements are met.
Is my job protected simply by my receipt of workers’ compensation benefits?
No. And this is an important distinction between work comp leave and FMLA. If you are injured at work, the employer has no obligation to protect your job. However, with FMLA- assuming you meet the requirements, your job is protected. Now, an employer cannot fire you for filing a workers’ compensation claim, but they can couch your firing in other terms- such as “lack of work”, “excessive absence”, etc. So, an employer cannot retaliate against an employee for filing a work comp claim, but unless the employee has a contract that says otherwise, an employer can fire you for just about any other reason so long as it’s not in violation of public policy (ie, discriminatory).
I hope this summary has been helpful. Feel free to call me should you have any questions at (267) 651-7945.
PA Work Comp Lawyer Michael W. Cardamone represents all kinds of injured Pennsylvania workers including:
Marcellus Shale workers
Nurses
CNAs
X-Ray and Ultrasound Techs
Factory workers
Office workers
Truck drivers
Teachers
Counselors
State Workers
Prison Guards
Laborers
Home health aides
Police And Fire
Work injuries do not discriminate. Unfortunately, the negative attitude that we sometimes hear or read about towards injured workers tends to have a chilling effect on injured workers who may feel ashamed or intimidated to come forward and pursue the benefits that are afforded to all employees- benefits that the insurers and employers fight hard to not pay.
Feel free to call or email me 7 days a week to discuss your situation.
Michael W. Cardamone – Top Rated Pennsylvania Work Comp Lawyer
(267) 651-7945
Michael@cardamonelaw.com
I submitted the below article to the ABA as part of a contest. Although I didn’t win, I thought it would be nice to share it here- even if it doesn’t directly relate to my workers’ compensation practice……..
The legal profession is the greatest profession in the world because the world is not able to exist without it. Without law and lawyers making, interpreting and applying the law, society would crumble under the weight of its members trying to assert their dominance over each other, whether by way of money, power, or physical superiority. The legal profession brings about fairness and dignity to all aspects of our world- and this is a self-sustaining and powerful concept that allows us to celebrate and perpetuate our greatest human traits.
Perseverance. Integrity. Fairness. Courage. These fundamentally important human traits were possessed by the many great lawyers who helped form the principles of our powerful nation. Indeed, John Adams, Thomas Jefferson, Abraham Lincoln, and FDR were all lawyers. Which direction would our country have gone if it were not for these noble men?
I have to admit, I sometimes get frustrated when I hear people say negative things about lawyers. I suppose much of the negativity is simply inherent in the nature of our legal process, with a winner a loser defined in many cases. As such, fifty percent of the parties involved in most legal circumstances will be somewhat disappointed at the outcome regardless of the quality of representation. But our society, and especially our media, has perpetuated a sinister and insidious campaign against lawyers- one that has eroded the longstanding respect and dignity the profession once possessed and which it still deserves.
I grew up watching my dad practice law in such a sincere, dignified, and professional manner, that it never crossed my mind as a child and young adult that someone could hold any animosity towards him. He had such a sense of fairness and balance about him, and possessed a sharp and sometimes painfully analytical skill which seemed to often put people in awe. When he came home for dinner every night at 630pm, I never heard him talk about how much money he was going to make- just how much he loved the challenge of trying to solve complicated problems for his clients. He never had to use the word honesty- it just defined his character.
Yet my dad was not an enigma. The great majority of lawyers possess these characteristics. In my nine years of practice, I have yet to come across an adversary who was overtly underhanded or dishonest. Instead, my counterparts have tried to do the right things, and have practiced with a respect for the profession. Unfortunately, this is not newsworthy for our media who is obsessed with bad news, bad fortune and crime. I suppose TV ratings would suffer if it were reported that “thousands of cases in downtown Philadelphia last week were handled properly by the participating attorneys- the attorneys solved their clients problems, worked really hard, exchanged information fairly, and the clients were satisfied with their efforts.”
Lawyers level the playing field between powerful corporations and the hard working employees who make its existence possible. Lawyers create an equality of bargaining power between those engaged in a contract. Lawyers help the poor and disabled obtain benefits to survive. Lawyers help resolve disputes between people which stabilizes society and the economy. Lawyers force manufacturers to be responsible in the way their products are made, marketed and distributed. Lawyers serve society. What other profession has such a far reaching and pervasive influence in our world?
So go right ahead, “lawyer up” and do it with pride.
-Michael W. Cardamone
The Injured Worker’s Lawyer
