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 Allentown 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 (FMLA). It is an important and useful tool that many employees can take advantage of, and something that is often overlooked by employees. This article shares some of the basics of the FMLA. Feel free to share this information with friends or family members. Most of us will have a need some time in our lives to use this tool to protect our jobs.
The FMLA provides employees with up to 12 weeks of unpaid leave in a calendar year, with job protection. All public employers (i.e., government employers) of any size are covered under the FMLA, as are private employers with 50 or more employees. The employer must be “engaged in commerce or an industry or activity affecting commerce” under 29 U.S.C. § 2611(4)(A)(i).
For help with a work injury case, call our Certified Pennsylvania Workers’ Compensation Lawyers at Cardamone Law today at (267) 651-7945.
What Employees Are Eligible for FMLA Protections?
The FMLA applies to employees working for any public/government employers and any company with 50+ employees who work within 75 miles of each other, as long as that employer does some kind of commerce. This is merely the requirement for the federal legislation to have a hook since the federal government can only legislate things that involve interstate commerce.
As for specific employee eligibility, the law covers anyone who has worked at least 1,250 hours during the preceding 12 months and who has been employed for at least 1 year prior to the date that leave is requested. These 1,250 hours only include actual hours worked, not vacations or sick days. With a 8-hour workday/40-hour workweek, this would be the equivalent of about 31 1/4 workdays or 6 1/4 workweeks.
What Does the Family Medical Leave Act Allow You to Do?
The core purpose of the FMLA is to give covered employees access to 12 weeks of unpaid leave without being fired. Sometimes you just need a long term away from work to deal with issues in your family, and the FMLA allows that to happen without letting your employer fire you.
Often, the issue that you need to deal with in your family will be your own serious injuries, meaning that the FMLA has a lot of overlap with work injuries that might be the basis of a Workers’ Comp claim, which our Pennsylvania Workers’ Compensation lawyers can help you file.
What Types of Leave Are Covered Under the FMLA?
One of the most common ways people use the FMLA is to bond with their newborn or newly adopted child. The Act must be activated within 12 months of the birth or finalized adoption to qualify for FMLA protections. The other common issue is caring for a close family member with a “serious health condition” or if you suffer from a “serious health condition” yourself.
For your health condition to count, it has to render you incapacitated when it comes to performing your job. Often, injuries serious enough to warrant time away from work under Workers’ Comp will be serious enough to qualify for FMLA protections, potentially for the full 12 weeks.
FMLA Notice Requirements
If the leave is foreseeable, employees must give 30 days’ notice. This would likely apply if you know you have a baby on the way, giving your employer some additional time to reassign tasks and projects or hire a temp to cover your work.
If leave is not foreseeable, an employee must provide notice “as soon as practicable” under the circumstances.
Notice under the FMLA does not have to be in writing, nor does it have to specifically mention the FMLA in order to activate the protections of the FMLA. Even so, you should keep a good paper trail of any official requests like this, so it is best to make this request in writing and save a copy of your email or letter. Additionally, while you do not have to mention the FMLA, there is no reason not to. Being clear about the legal grounds for your leave can also make it harder for your employer to deny the leave or try to fight you on it when they know the FMLA’s effects.
What Types of Conditions Qualify as “Serious Health Conditions” for FMLA Leave?
Serious conditions like chicken pox, asthma, and pregnancy-related issues that impact a worker’s ability to perform their job functions should usually qualify. This analysis is done on a case-by-case basis and therefore depends on individual circumstances.
In any case, serious illnesses like a bad case of the flu or complications with covid should be sufficient to qualify for FMLA coverage. Additionally, many serious work injuries that keep you from being able to return to work right away will also qualify.
While you are out of work and receiving Workers’ Compensation for a work-related injury, the FMLA can often cover you for up to 12 weeks of your time away from work, but not beyond that.
As discussed, the birth of a new child will also typically qualify for FMLA, regardless of your employer’s maternity/paternity leave policies.
What Jobs Are Protected?
It isn’t exactly correct to say that “your job” is protected, given that your employer does not necessarily have to keep your exact position open. In most cases, this will be how it works, but the law’s requirements simply mean that the same or similar job must be available to you when you come back. This means you need to be doing the same kind of work with equivalent pay and benefits and other terms of employment, but it does not necessarily have to be the exact job you were doing before.
However, as we will discuss below, retaliation against an employer for using the FMLA is not allowed, and many transfers would qualify as adverse employment actions even if they only cause such minor effects as inconvenience or loss of status.
Can an Employer Retaliate if I Take Advantage of the FMLA?
Employers cannot “interfere with, restrain, or deny” an employee’s right to exercise FMLA protections. This means that they cannot fire you for requesting your unpaid 12 weeks, and they cannot do anything after you return to make you regret taking the leave, either.
Of course, some things like backed-up work and catch-up time are inevitable in some jobs, especially if your employer relied on you specifically for certain knowledge, client communications, or project tasks that they could not give to someone else. However, they cannot pile on additional work to make you regret taking your leave, and they certainly cannot transfer you or give you a lower-status position as punishment for taking FMLA leave.
If I Am on Workers’ Compensation, Can My Employer Count My Time Out of Work as FMLA Time?
An employer can decide on their own that your time away from work to deal with a work-related injury on Workers’ Comp should count as FMLA time if they provide you with written notice. This generally does not happen, but it may if certain requirements are met.
What this generally signals is that your employer is perhaps not-so-subtly pushing you to recover and get back to work within your 12-week leave. If you finish out the 12 weeks, but your injury still keeps you from working at that point, it is possible they may have to let you go and give the position to someone else who can currently work.
Is My Job Protected While I’m Getting Workers’ Comp Benefits?
Typically, Workers’ Comp does not protect your job, and this is an important distinction between Workers’ Comp leave and FMLA leave. If you are injured at work, the employer has no obligation to protect your job or keep the position open while they await your return. However, with the FMLA – assuming you meet the requirements, your job is protected during the 12-week leave period.
An employer cannot fire you because you filed a Workers’ Compensation claim, as that would be retaliation. However, 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 Workers’ Comp claim, but unless the employee has a contract that says otherwise, an employer can fire you for just about any other legal reason so long as it’s not in violation of antidiscrimination laws or public policy.
When you come back from Workers’ Comp leave, you may be able to do some tasks, and your employer might be able to keep you on staff with reasonable accommodations. However, if you no longer meet the bona fide physical requirements for your job, it is possible they can offer you a different position or let you go. The fact that you took FMLA leave or that your injury was work-related will not make a difference; they can let you go if you cannot do the job anymore. However, you may still be eligible for Workers’ Comp benefits equal to 2/3 of your lost wages if you do return to work at a reduced working capacity or reduced income after a work injury.
Call Our Workers’ Comp Lawyers in Pennsylvania Today
For a free case evaluation, call Cardamone Law’s Philadelphia Workers’ Comp lawyers 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
