Workman’s/Workers’ Compensation is supposed to pay you for injuries that keep you out of work, supplying both replacement wages and payment for medical expenses during this period. However, Workers’ Comp also covers “specific loss” benefits, which might be able to pay you for scars in some situations.
Generally, any work-related injury should be paid for, so the initial treatment for a cut or burn should typically be covered, as well as lost wages while the injury keeps you out of work. However, you may also be able to get “specific loss” benefits. These are usually paid for any permanent loss or loss of function in a body part, but coverage for lost sight/hearing and significant scarring/“disfigurement” of the face, neck, or head can often be covered, too.
For help with your Workers’ Comp claim, contact Cardamone Law’s Certified Philadelphia Workers’ Compensation Lawyers today at (267) 651-7945.
Getting Treatment for Injuries That Will Scar Under Workers’ Compensation
When you suffer serious injuries, they are likely to leave scars. As long as the injury is related to your work, any medical treatment you need for the injury should be covered under Workers’ Compensation.
What this means is that if you suffered a serious cut or burn at work and you needed to go to the hospital, they should cover all medical care you need to treat that injury. If this includes simple stitches and bandages or treatment by a plastic surgeon to help prevent or reduce scarring, that should likely be included in your coverage as well.
If this cut or burn will keep you from working for an extended period, then you should also be able to get wage-loss benefits to cover your lost wages. These benefits are typically paid at a rate of 2/3 of your normal wages or 2/3 of the difference between your pre- and post-injury wages, with some exceptions.
Some scars might also result from surgeries you needed to treat the injuries, such as the incision scar to get screws or rods implanted in a broken leg. That care should be covered, but the scar itself would not receive benefits unless it meets the requirements below.
Specific Loss Benefits for Scarring Under Pennsylvania Workers’ Compensation
Scars might also be able to get you benefits directly for the scar itself, not just the underlying injury that caused the scar. Alongside benefits for your medical care and your lost earnings, Workers’ Comp should also pay damages for what are called “specific losses,” which may include some scars – though there are requirements for a scar to be covered.
Specific Losses
Section 306 of the Workers’ Comp Act includes coverage for “specific loss.” These injuries are permanent injuries that often involve amputation or loss of a body part, lost function in a body part, lost hearing or sight, or significant “disfigurement.” Under this “disfigurement” category found in subsection (c)(22), there are additional requirements for the scar to be covered.
Requirements for Scar Coverage
The source of the scars is not at issue under these rules; you can get coverage for heat burns, chemical burns, cuts, scrapes, lacerations, surgical scars – any source of scarring. Instead, the rules for coverage are based on how severe the scars are and where they are.
First, the scars must be “serious,” which would usually mean more than a small line or two.
Second, the scars must constitute “permanent disfigurement.” Scars often fade with time, but the question of whether they are sufficiently “permanent” usually does not come up. Additionally, most scars will qualify as “disfigurement”; this requirement is there to expand coverage beyond just scarring rather than limit it to only certain types of scars.
Third, the scars need to be on the neck, face, or head.
Fourth, they must “produce an unsightly appearance.” Essentially, along with the “serious” requirement, scarring has to be somewhat substantial and obvious to be covered. This is not supposed to be a question of opinion but rather an objective standard.
Lastly, the scarring has to be outside of what is typical in that job. For example, welders may get small scars on their necks from sparks, but those are typical for that line of work and would likely not be covered. Contrast this with a welder who suffers serious burns in a gas explosion and has half of their neck covered in scars; that certainly is not typical for welders and should likely meet the other requirements for coverage as well.
At the end of the day, this means that scars will have to be somewhat obvious and visible to get coverage. However, you should always consult with our Pittsburgh Workers’ Compensation lawyers about whether your scarring qualifies for benefits or not, as many insurance carriers will try to reject your claim even if your scars should qualify.
How Much Are Benefits?
Each specific loss injury or condition listed in the Act has a specific number of weeks’ worth of benefits listed for it. These are specified in the Act to be paid at a rate of 66 2/3% of your wages, but the number of weeks’ worth of wages changes depending on the injury.
For permanent, unsightly scars of the head, face, or neck, not incident to employment, a Workers’ Compensation Judge can award up to 275 weeks of wage loss benefits.
Coverage for Non-Facial Scars
As mentioned, the medical care to treat a scar should be covered, but scars are only covered for the sake of the scarring itself if they are on the face, neck, or head. However, scars on other parts of your body may lead to benefits if the scars or burns result in loss or lost function for that part of your body.
For example, if you suffer serious burns that cause you to lose a finger or a hand, you get benefits for the loss, but you do not get additional payments for the scarring. The same is true if you lose function from significant burns; this is covered equal to a loss/amputation. Severe third-degree burns often result in these kinds of injuries, potentially causing lost function across multiple areas of the body.
Other Requirements
For you to get benefits for your injury, you also have to meet the other requirements for Workers’ Comp claims generally. For example, your injury needs to be work-related – i.e., it needs to have happened in the course of your work. You also need to report the injury on time to get your claim filed.
Call Our Pennsylvania Workers’ Compensation Lawyers Right Away
Call (267) 651-7945 for a free case review with Cardamone Law’s Bucks County, PA Workers’ Compensation attorneys.
You learn that your medical treatment is under utilization review. What exactly does that mean? Should you be concerned?
Pennsylvania workers’ compensation insurance companies hire adjusters to save the company money—not to help the injured workers. Insurance companies will do whatever they can to keep money in their own coffers—their concern is not to make sure that you get all of the benefits that you deserve, but to minimize their costs and maximize their profits.
What is a Utilization Review?
Utilization Review is a method that workers’ compensation insurance companies often employ in Pennsylvania to deny you needed medical treatment. Even after you engage an attorney that successfully litigates your case and obtains a favorable result granting indemnity and medical expenses, the insurance company can then file a Utilization Review Request claiming that your medical treatment is not “reasonable and necessary.” It’s crucial that you have an experienced workers’ compensation attorney in Pennsylvania on your side to navigate this potentially complex process.
You may be happy with your medical provider and the care that he or she is providing to you, but the insurance company may feel that your treatment is costing them too much money. Utilization Review [commonly abbreviated UR] is the process used to challenge whether the medical treatment that an injured worker is receiving is reasonable and necessary.
Utilization Review Process
Ordinarily, the UR Request is filed by the insurance carrier, although injured workers are free to file such a petition. When a request for review is filed, the Bureau of Workers’ Compensation assigns the review to a Utilization Review Organization [commonly abbreviated URO]. The URO then attempts to gather all the medical records related to the course of treatment. For UR purposes, it is assumed that the treatment is causally related to the workers’ compensation injury—if the insurance carrier wants to challenge whether the treatment is causally related, it must file a separate Review Petition with the Bureau, and that gets assigned to a workers’ compensation judge.
Who Performs the Utilization Review?
A UR must be performed by a qualified medical specialist with the same expertise as the medical provider whose treatment is being reviewed. For example, if the injured worker is treating with a chiropractor, another chiropractor must be assigned to review the treatment in question. If a treating doctor does not timely provide records to the URO, the treatment will be denied as not reasonable and necessary.
What Treatment is Reviewed?
A UR can review medical treatment either prospectively, concurrently, or retrospectively. The most common type of review is retrospective where the insurance company receives a bill from the medical provider where the treatment was performed. Once the bill is received in proper form, the insurance company has 30 days to either pay or deny the bill, or the alternative is to request that a UR be performed.
Will My Medical Bills Get Paid During the Utilization Review Process?
During the time that the medical treatment is in dispute, the submitted medical bills are generally not paid by the insurance company until the URO resolves the dispute. Many providers are still willing to provide treatment while the dispute is pending. Many adjusters mistakenly insist that they can refuse to pre-approve treatment because their doctor who examined the patient found that he or she had fully recovered. However, the proper procedure is for the carrier to file for UR instead of outright denying the treatment.
What Opinions Will the UR Medical Specialist Provide?
The reviewing medical specialist may find that the treatment in question is totally reasonable and necessary, partially reasonable and necessary, or totally unreasonable and unnecessary. URs can be quite complicated and directly impact the treatment that an injured worker receives, and therefore, a well-qualified Philadelphia workers’ compensation attorney is necessary to navigate through the process. It is often extremely helpful for the medical provider to speak with the reviewer to explain why the treatment is needed. Also, the injured worker can provide a written statement to the Reviewer explaining why the treatment is beneficial.
Can the Parties Appeal the Utilization Review?
If the URO finds that medical treatment is not reasonable and necessary, the employee can either accept the ruling or file a Petition to Review the UR Determination. Any party who disagrees with the findings of the UR may file a timely Petition to Review the UR to be heard and decided by a workers’ compensation judge. The provider under review will then either testify by deposition as to the treatment in question or issue a report indicating why the treatment is reasonable and necessary. Similarly, an injured worker will have the opportunity to testify regarding why the treatment provides him or her relief and to try to convince the judge that the treatment is reasonable and necessary. Treatment that does not improve a patient’s condition can still be reasonable and necessary if it provides the patient with pain relief. An experienced Pittsburgh workers’ compensation attorney will know how to properly present the case to achieve the best result for the client.
Positive Outcomes for Cases Involving a Utilization Review
Certified Pennsylvania Work Comp Specialist, Michael W. Cardamone of The Cardamone Law Firm recently won a Petition for Review of a Utilization Review for his client. The central issue in the case was whether chiropractic treatment was reasonable and necessary. In this context, the burden of proof is on the employer to establish that the challenged treatment is not reasonable and necessary. Cardamone successfully argued that the treatment helped his client to continue working and provided functional improvement. After all, what could be more useful than treatment allowing an injured worker to keep his or her job?
In the litigation, Cardamone presented his client’s testimony and a narrative report of the treating physician which outlined why the treatment was reasonable and necessary. The Workers’ Compensation Judge issued her Decision finding that the Employer failed to prove the chiropractic treatment was unreasonable or unnecessary. Accordingly, the Employer/Insurer has to pay for the treatment, and litigation costs were awarded.
It is important for injured workers to challenge Utilization Review Determinations that find treatment unreasonable or unnecessary. Call me if you are not already represented by a Certified PA Work Comp Lawyer, so I can challenge the Determination by filing a Petition to Review. There are strict deadlines for appealing these Determinations so be guided accordingly and act quickly.
URs can be quite complicated and can directly impact the life and well-being of the patient and a well-qualified Lancaster workers’ compensation attorney can literally be a life-saver for an injured worker.
Generally speaking, an injured worker who receives workers’ compensation benefits in Pennsylvania cannot sue his or her employer for causing a workplace accident.
However, there are situations where an injured worker may file a personal injury lawsuit and seek compensation from another party responsible for the accident that caused the injury. These are known as “third-party lawsuits.” The workers’ compensation attorney and the third-party attorney work together to maximize the total recovery for the client.
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Work Comp Cases vs. Personal Injury Cases
The difference between workers’ compensation and a third-party claim is that workers’ compensation is considered “no-fault” insurance paid for and provided by the employer. An injured worker does not have to prove that someone was at fault to collect benefits. The only proof required is that the worker is an employee and was injured in the course of his employment and that the injury is directly related to his employment.
However, for a third-party claim, you need to establish that the other party acted negligently and is responsible for your injuries.
When Does a Work Comp Case Become a Personal Injury Case Too?
There are several types of work environments where a workplace injury may have grounds for a personal injury claim too.
A few of these are:
• Construction Site Accidents
Construction site accidents need to be especially analyzed by an experienced Pennsylvania Workers’ Compensation Lawyer.
There are often contractors or subcontractors from various companies that handle various aspects of construction. When a construction accident is caused by a contractor or subcontractor not directly employed by your employer, you may have a third-party personal injury claim.
• Premises Liability Cases
Premises liability cases also need to be analyzed and carefully reviewed by an experienced Pennsylvania Workers’ Compensation Attorney.
If you are injured due to the condition of premises not owned or maintained by your employer, such as slipping and falling on a wet floor, you may be able to sue a third party.
In addition to these two, there may be other scenarios where both types of legal rules may apply. An experienced workers’ comp attorney can help you guide through them.
3 Factors to Consider When Filing a Personal Injury Claim with Work Comp
Should you file a personal injury claim with a workers’ compensation case? What are the chances of a positive outcome here?
Let’s see.
• Always file a third-party lawsuit, when you can, to claim additional damages
Under the Pennsylvania Workers’ Compensation Act, recoveries are generally limited to lost wages and medical expenses related to the work injury.
However, a third-party lawsuit by a Pennsylvania personal injury lawyer gives you the right to claim additional damages, including compensation for past and future medical expenses, lost wages, income and employment benefits, diminished future earning potential, rehabilitation, property damage, pain and suffering, mental anguish, anxiety, and depression, diminished quality of life, punitive damages, and loss of consortium.
An experienced workers’ compensation attorney is trained to properly evaluate your case to identify the best litigation strategy and maximize the recovery.
• Keep in mind that third-party lawsuits may diminish Work Comp benefits
You can collect workers’ compensation benefits at the same time that you are pursuing a third-party claim. However, if you receive compensation through a third-party lawsuit, you are generally required to pay back the workers’ compensation benefits from the settlement or award.
An experienced worker’s compensation lawyer can also help you reduce what you have to pay back in workers’ compensation benefits and help you navigate the complex “subrogation” requirements.
• File both your claims as soon as you can
When you are injured on the job, you should promptly contact an experienced workers’ compensation attorney who can guide you through the complex litigation options that are available. Even if the injury is your fault, with limited exceptions you are still entitled to collect workers’ compensation benefits.
Workers’ Compensation claims and personal injury claims can be permanently barred if proper procedures and time-frames are not followed. For instance, in Pennsylvania workers’ compensation injuries must generally be reported to the employer within 120 days. It’s usually best to report work-related injuries immediately to your employer. The longer you wait to report a claim, the greater the chance that the workers’ compensation insurance company will use that as an excuse to deny the claim.
Workers’ Compensation claims are generally time-barred if not filed within three years from the date of injury.
In personal injury cases, there is a two-year statute of limitation in Pennsylvania.
Hiring An Experienced Attorney Can Make All The Difference
We are here to guide you through the frequently overwhelming litigation processes. You need an experienced work comp attorney on your side who is protecting your interests rather than the insurance company’s interests which is usually to pay out the least amount of money and to close out the claim as quickly as possible.
Remember, you want an attorney who knows not just about workers’ compensation law, but also about third-party liability claims to help you recover maximum benefits and remuneration.
Workers’ Compensation precludes you from filing a lawsuit against your employer for your injuries; however, under Pennsylvania law, workers can file personal injury or third-party liability lawsuits against any third-party entity responsible for the injuries.
You need an attorney with expertise to identify negligent third parties. We are here to help you navigate through the challenging process of litigation. We do not collect a fee for our services until we recover benefits for you.
After an employee suffers a work-related injury in Pennsylvania, if the employer does not voluntarily accept the injury and files appropriate documents with the Bureau of Workers’ Compensation, the usual next step is for the injured worker to retain a Pennsylvania Workers’ Comp attorney who files a Claim Petition with the Bureau.
The Bureau then assigns the case to a Workers’ Compensation Judge. The judge will typically receive testimony from the employee by deposition and/or at a hearing. The judge will also receive and review the testimony of factual and expert medical witnesses and any other relevant evidence presented by the parties.
The Responsibilities of a Workers’ Compensation Judge
Evaluating the weight of the evidence and determining the credibility of the witnesses are functions within the exclusive province of the Workers’ Compensation Judge.
The judge is responsible for making credibility determinations about each witness. The judge will generally explain which witness they found most credible and why.
Medical evidence is usually the most crucial factor in workers’ compensation litigation. An experienced workers’ compensation attorney knows how to prepare the medical doctor for testimony and what questions to ask the doctor to elicit the most favorable testimony.
Similarly, you need an experienced attorney to cross-examine the insurance company’s expert medical witness.
Judging the Credibility of Witnesses
Defense attorneys will do whatever it takes to attack the credibility of an injured worker. The judge may deny the claim If they perceive the employee as not credible.
Exactly how does a Judge assess a witness’ credibility? How do Judges decide who is telling the truth?
Different judges may rely on different factors and employ different methods when judging credibility issues. Some may feel that they have skills in viewing the witness and determining whether the witness is telling the truth, and others may look for more objective factors in assessing credibility.
Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened.
If a judge decides that a witness has deliberately lied about something important, the judge may choose not to believe anything that the witness said.
On the other hand, if the judge thinks the witness testified falsely about some things but testified truthfully about others, the judge may accept or reject the witness’ testimony in whole or in part.
What Decides the Matter in the End?
If the judge feels that an injury victim and expert medical witness are credible, the judge is more likely to sympathize and side with the injury victim over the insurance company. If an insurance adjuster thinks that the injured worker is believable, the adjuster may decide to more quickly decide the case rather than engage in protracted litigation.
Credibility is the crux of workers’ compensation litigation. If a judge concludes that the injured worker is not credible, it can seriously impact the outcome of the workers’ compensation case and the judge may decide to deny or limit the claim.
The Pennsylvania Workers’ Compensation Act and its Regulations discourage repeated continuances or postponements of hearings. Experienced workers’ compensation attorneys should be retained by clients to file claim petitions for workers’ compensation benefits in Pennsylvania. Pennsylvania Workers’ Compensation laws and procedural requirements can be complex and demanding and require both experience and skill. An experienced workers’ compensation attorney will be familiar with the benefits that clients can obtain and when to pursue settlement of cases.
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FACTORS OF CONSIDERATION FOR CONTINUANCES
The Special rules of Administrative Practice and Procedure state: Parties shall make every effort to avoid continuances or postponements by the prompt scheduling and submission of expert and medical testimony and by the prompt presentation of lay testimony. 34 Pa. Code 131.13(b). While this provision sets forth the principle that depositions of medical experts should be scheduled promptly to avoid delay and postponements, 34 Pa. Code 131.13(j) lists several factors that a Workers’ Compensation Judge may consider in adjudicating a request for a continuance or postponement, which include the following:
- The positions of the various parties relating to the request for a continuance or postponement.
- The number of prior continuances or postponements or denials of continuances or postponements and at whose request they were granted or denied.
- Whether the requested continuance or postponement will work an undue hardship on a party.
- The unavailability of the parties, witnesses or counsel.
- The illness or death of the parties or counsel or members of their immediate families.
- The desirability of unrepresented parties obtaining counsel.
- The necessity to replace the services of an expert witness who becomes unavailable.
- Another reason deemed by the judge to be for good cause shown and consistent with this chapter and the purposes of the act and the Disease Law.
HOW DO CONTINUANCES AFFECT DUE PROCESS?
Due process requires that a party be provided an opportunity to present its case. See City of Philadelphia v. WCAB (Rooney), 730 A.2d 1051, 1052 (Pa. Cmwlth. 1999). However, a Judge’s denial of a request for a continuance is not necessarily tantamount to a deprivation of one’s due process rights. Rather, a Judge’s decision to grant or deny a request for a continuance is discretionary and subject to review only upon a clear showing of an abuse of discretion. Roundtree v. WCAB (City of Philadelphia), 116 A.3d 140 (Pa. Cmwlth. 2015).
A continuance or postponement may be granted for good cause shown at the discretion of the judge. Workers’ compensation attorneys are familiar with the Judges and whether they are likely to grant or deny a request for continuance under various circumstance, and the request should always be done by an experienced workers’ compensation attorney, and not by the client.
HOW TO FILE A REQUEST FOR CONTINUANCE IN PENNSYLVANIA WORKERS’ COMPENSATION CASES
Requests for continuances should be done on-line by the attorney within the Pennsylvania Workers’ Compensation portal in WCAIS. Requests for a continuance must be made in writing or at a hearing. They should generally be made not later than 10 calendar days prior to the hearing date, except for good cause shown. Prior to the request for a continuance, the party requesting the continuance must ascertain the position of all counsel of record and unrepresented parties in the case and shall advise the judge of same at the time of the request. The request should contain a detailed statement of the reasons why the continuance or postponement is requested and the date on which the need to request a continuance arose. The request must be served upon all counsel of record, unrepresented parties, the requesting attorney’s client, and the judge.
In ruling on requests for a continuance, the judge may consider the position of the various parties, the number of prior continuances and at whose request they were granted or denied, whether the continuance would work an undue hardship on a party, and the unavailability of the parties, witnesses, or counsel. The judge may also consider the illness or death of the parties or counsel or members of their immediate families, the desirability of unrepresented parties obtaining counsel, the necessity to replace the services of an expert witness who becomes unavailable, and other matters of good cause. A scheduling conflict in another tribunal may be considered but may or may not be determinative. If a continuance is granted, the judge may impose conditions and direct action by the parties which the judge deems reasonable under the circumstances.
In summary, continuances of hearings are granted within the discretion of the judge for good cause shown. Employers who unreasonably delay hearings may be subject to penalties. Continuances are discouraged and a Workers’ Compensation Judge has discretion to control the docket by ordering parties to comply with litigation in a timely manner.
Some clients are reluctant to notify their employers that they have suffered a work-related injury. They may assume that they will soon recover or that their employer may be angry with them if they claim that they were injured at work.
However, the Pennsylvania Workers’ Compensation Act requires that an employee satisfy all the requirements of the Act to be eligible for compensation. To that effect, Section 311 of the Act requires that a Notice of Injury be given to the employer within 120 days of the injury.
If proper notice is not given to the employer, you will not be eligible for workers’ compensation benefits.
Contact Cardamone Law by calling (267) 651-7945 for a free case assessment with our Harrisburg, PA Workers’ Comp lawyers.
How Soon Should You Report The Injury?
Although the Act allows for the notice to be given to the employer within 120 days, we strongly suggest that you do it as soon as possible. Insurance companies typically use delays as grounds to dismiss or deny work injury claims.
So, report your injury or work-related illness to your employer or supervisor without any delays to ensure a smooth compensation process.
The Process of Reporting a Work-Related Injury
Start with a simple, written notice to your employer telling them that you were hurt on the job. Share when it happened, where, and how. Include brief details about your injury. As we said previously, insurance companies frequently deny claims if there is a lapse of time between the injury and when it was reported to the supervisor. So, make sure there is no substantial delay between the two instances.
Send a written notice to the employer
Although the Act does not require that a written notice of injury be given to the employer, we strongly suggest that the employer receive prompt written notice of the injury.
Add details
Simply advising your employer that you injured your back or that your back hurts is also not sufficient. You should state how, when, and where the injury happened and make sure that you advise your employer that it was work-related.
Notice of an exact diagnosis is not necessary to provide adequate notice of a work injury. A reasonably precise description of the injury is required.
Create a paper trail
If verbal notice is provided, we would suggest that the employee promptly confirm the same in writing, either by email or text, and make it clear what the confirmation is about. Simply put, mention your work injury in the email.
Keep a copy
Also, keep a copy of the email or text you’ve sent to the employer as proof that proper written notice was sent to them, complete with a date and time stamp.
Notifying a colleague isn’t enough
Notice to a co-worker is generally not deemed to be legally sufficient! Notice should be given to your supervisor, manager, or owner of the company.
Oral vs. Written Notice of Injury
Written notice of a PA Work Injury is not required, however it will serve to protect you against a notice defense. An injured worker has a maximum of 120 days to give notice (verbal or written) of his/her work injury to the employer. In many cases, an injured worker in Pennsylvania will testify that he/she gave verbal notice, only to have the supervisor or manager testify in court that they never received any notice. As such, leaving a paper trail is a smart way to approach this issue. Be sure to include the nature of your injury, how it happened, and when. If the employer/insurer raises a lack of sufficient notice in the litigation successfully, any claim, no matter how serious, will be barred. Notice is therefore a critical component of a Pennsylvania Work Comp Claim.
I have found that many injured workers are intimidated to report a work injury- for fear of retaliation (this is a violation of law if your employer fires or suspends you for reporting a work injury) by the employer. Some sweep their injury under the carpet until a later time- which can cause major problems in a case. Do not let your employer intimidate you. Reporting your work injury as early as possible is the wise decision. Failing to report it can also serve to potentially worsen your injury by delaying treatment by a panel physician.
The Notice of the Injury is Necessary to Receive Compensation
Unless the employer has knowledge of the injury, the injured employee must provide notice of the work injury within 21 days to be eligible to receive compensation from the date of injury onward.
If the injured worker does not provide notice within 21 days, no compensation is due until the day notice is provided.
Again, it is with very limited exceptions that an injured worker will be totally barred from receiving any benefits if notice of the injury is not provided within 120 days from the date of injury.
The Notice is Proof of Your Injury
Workers’ compensation insurance companies often look for any reason to deny a claim. A delay in receiving notice is an immediate red flag and a frequent basis to deny claims.
The employee has the burden of proving the employer’s actual receipt of the notice. An employee’s mere statement that a letter was mailed to the employer is not sufficient.
Likewise, slipping a notice under a manager’s door without proof that the manager actually received it is not adequate to establish notice. The best proof is a copy of the email or text to the employer that contains the date of the email or text.
What Happens After You Send the Notice?
After proper notice of a work injury is provided, the employer is then required to report your injuries to its insurer. Within 21 days of receiving notification, employers then must decide whether to accept or deny liability for your injury. Employers may also choose to provide you with temporary compensation while they extend the investigation for 90 days.
Talk to an Experienced Work Comp Lawyer
Employees should promptly obtain guidance from an experienced Lancaster workers’ compensation attorney when they suffer a work-related injury. Claims are frequently denied for little or no reason at all, and an experienced workers’ compensation attorney in Philadelphia can file appropriate petitions and litigate claims to achieve the best results for the injured worker.
One of the most common questions that our clients often ask us is: As an injured worker, how much money should I get from my employer’s workers’ compensation insurance carrier if I am not able to work?
Unfortunately, the amount that you should be entitled to, is frequently not what the insurance company is willing to pay you. They may employ a host of strategies, including miscalculating your indemnity wages, so they can avoid paying you the full coverage.
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To fight against all that, you will likely need a good workers’ compensation attorney to get you the benefits you deserve.
What are indemnity benefits?
Under the Pennsylvania Workers’ Compensation Act, injured workers are entitled to wage loss benefits, also known as indemnity benefits, based on the earnings at the time of injury. Generally, indemnity benefits are calculated based on 2/3 of your average weekly wage. However, there are many other factors that must be considered in this calculation.
Wage calculations can get rather complex in Pennsylvania. The Bureau of Workers’ Compensation attempts to ensure that the calculation of wages is an approximation of what an employee could have been expected to earn had he or she not been injured.
? How are my indemnity benefits calculated?
The Pennsylvania Department of Labor and Industry sets the workers’ compensation rate calculations for each year and your benefit rate is calculated based upon the year of your injury. This is done to ensure you receive a fair settlement that protects your dignity and livelihood.
Unfortunately, there are no cost-of-living increases, and therefore your compensation rate remains the same during the entire time that you are disabled and out of work.
If you were injured in 2023, the maximum weekly benefit that you can get is $1,273.00. If you made between $954.76 per week and $1909.50 per week, you could get 2/3 of your gross (before deductions) average weekly wage. However, if you made between $707.22 and $954.75, you would get $707.22 per week, and if you made less than $707.21 per week, you would get 90% of your gross average weekly wage.
The good news is that workers’ compensation benefits are generally not taxable!
? What if I had two jobs?
If you had two jobs at the time of your injury, your earnings from your other jobs should also be taken into consideration and you should be compensated for the money that you are losing from both jobs.
Can workers’ compensation benefits be miscalculated?
The workers’ compensation insurance company often miscalculates your correct average weekly wage and compensation rate. Therefore, you should retain a good workers’ compensation attorney in Pennsylvania to ensure that you are getting the full benefits to which you are entitled.
The insurance company may also have failed to include your overtime in calculating your average weekly wage or used the wrong formulas to calculate it and the compensation rate.
Crucial factors when calculating workers’ compensation benefits:
- The length of time that you worked for your employer is often crucial in calculating the correct average weekly wage.
- Gratuities should also be included in calculating the average weekly wage if reported by the employee for federal income tax purposes.
- Bonuses, incentives, and vacation pay are prorated over the year and added to the average weekly wage after the annual amount earned is divided by 52.
- Money advanced or reimbursed to an employee for board and lodging must also be considered in computing the average weekly wage.
These calculations can be complex and confusing.
Our workers’ compensation attorneys can help you!
We have litigated the issue of the correct average weekly wage and compensation rate for many of our clients to make sure that injured workers receive all benefits to which they are entitled.
If you have concerns about your benefits not being calculated fairly, reach out to us at (267) 651-7945 for a free consultation.
A Pennsylvania Workers’ Compensation Judge has the discretion to award penalties for violations of the Pennsylvania Workers’ Compensation Act. The WCJ can award up to 50% of the amount at issue.
And, they are not required to order any penalty to be paid.
Penalty Petitions: Easy to File, Tough to Implement
Penalty Petitions, admittedly, are easy to file, and not always easy to execute — especially if it stems from unpaid medical bills.
Demonstrating when a bill was sent and with what forms and/or records, and to whom isn’t as easy as it may appear at the outset.
But for other types of penalties, things are not as burdensome. For example, you enter into a Compromise & Release Agreement, the WCJ issues an Order on January 2, 2023, approving it, and the checks aren’t mailed until February 9, 2023 — clearly more than 30 days from the WCJ’s Order.
Pro tip: don’t believe it when counsel says the checks were “issued” on X date- issued isn’t relevant- when they were mailed is- see the envelope date containing the checks.
However, even in these circumstances, hardly any penalties get awarded. It’s time for the pendulum to swing, back to a reality where rules mean something.
It’s An Imbalanced System That Hurts The Injured Workers More
Why can’t we have an automatic 5% baseline penalty for a check being mailed one day late? There is a sense of malaise when it comes to penalties — and as a Claimant’s lawyer, we are often pressured to withdraw the Penalty Petition once the payments are made.
Why? No penalty?
The often unspoken quid pro quo is that it will be made up to us when we need a favor, perhaps, or with a lump sum settlement offer.
Is that realistic? Why is everyone allergic to an automatic penalty, something objective, at least with respect to the late mailing of claimants’ checks and attorneys’ fees if applicable (which are likely the majority of penalty petitions)?
Injured workers have bills like everyone else and they’re under a lot of stress from the nature of our adversarial system. There is no logical reason for them to suffer and then have to fight for a few extra dollars.
If they failed to sign the LIBC forms and return them within 30 days, are they cut a break? Usually, the answer is no.
If they make some money on the side, do the insurers say “No problem, we’re not going to deduct it from your pay?” ,
What if a claimant fails to file a Challenge within 20 days, is that going to be forgiven? Hardly.
But we should just withdraw our Petition for Penalties because the checks were only a few days late?
Let’s put some teeth into Penalties when the facts are clear. When the facts aren’t clear, then the discretion of the WCJs can govern the process.
Call Cardamone Law when you need a fighting chance for your Penalty Petitions
Pennsylvania workers’ compensation lawyers are available 24/7 at (267) 651-7945.
During a work injury case, the ideal conclusion is to reach a settlement or a compromise that mutually benefits both parties. Nobody wants the case to drag on in court. The injured employee wants quick recovery with reasonable benefits while employers want it settled because haggling over what an injured worker should get is not a good look for them.
Yet, things don’t always go as planned and negotiations can sometimes stall.
Injured workers in Pennsylvania usually come to us to find out how their case will proceed if no agreement can be reached. The simple answer is, if a case doesn’t settle by way of a Stipulation, or a Compromise and Release Agreement, then a Workers’ Compensation Judge will intervene and decide the issues at hand.
How Do They Do This? Let’s Find Out.
1. Briefings Will Be Filed
The Pennsylvania Workers’ Compensation Judge will admit evidence into the record. Then, in many cases, at a final hearing, the Work Comp Judge will issue a Briefing Schedule.
Briefs are the written arguments from each party’s attorney. The Brief will include a summary of the facts, the relevant Pennsylvania Workers’ Compensation law, regulation, or case law, and an argument section.
Normally, the moving party — the party that instigated litigation — will have to submit their brief first. It usually happens 45 to 60 days after the final hearing. Then the other side will generally have 30 to 45 days thereafter to submit their brief. Although, sometimes, the briefs are due at the same time. This will depend on the particular Work Comp Judge and what the attorneys ask for.
If it’s a Claim Petition and no benefits are being paid, this lengthy time period after litigation ends. Now, parties wait to receive a decision, and this waiting period can be quite frustrating. Conversely, if an injured worker is already receiving wage loss benefits, this lengthy process is helpful as the benefits continue at least until the decision comes out.
2. Credibility Decisions Will Be Made
The Pennsylvania Work Comp Judge will have to make credibility determinations about each witness. Which witness the Judge found most credible and why. These witnesses may include people who witnessed the accident — strangers on the road or other workers in the office. It may also be the company’s safety inspector who vouch for the safety practices in the building.
Usually, however, especially in cases where the injury or its extent is disputed, medical experts emerge as the most influential witnesses in the work comp case.
The Work Comp Judge will decide about issues relating to the medical evidence presented by both parties. The Judge may ask the medical experts things like whether the worker has recovered, whether the worker sustained a work-related injury, whether the worker has an earning power, etc.
When making decisions about witness’ credibility, you will find a paragraph wherein the Judge states “I find the opinions of Dr.___ to be more credible than Dr.____ “, and then list the reasons why. In most cases, there are about 3 to 4 more sentences explaining why the Judge found one doctor more credible than the other.
3. The Decision Will Be Given
A written decision, including the important Court Order, will be mailed to the parties around 30 to 60 days after the last brief is submitted. Here, again, each Judge is different with respect to the turnaround time.
While the decision usually isn’t delayed more than the 60 days maximum but this isn’t written in stone. If your decision is still not out after 60 days have passed, your Pennsylvania workmans comp lawyer will get in touch with you and update you with the latest developments.
The Decision will list the Findings of Fact, Conclusions of Law, and a Court Order. The court order will contain the instructions of the Judge regarding the decision of the case and how each party is supposed to proceed from there on out.
The Importance Of Credible Medical Experts
Medical evidence is often the key element to a petition that’s being litigated before a Pennsylvania Work Comp Judge. And, this is a big reason why injured workers need a lawyer. An average worker won’t know how to depose the medical doctor or how to prepare them. To begin with, most perhaps won’t even know how to get in touch with a credible doctor with relevant expertise required for a particular case.
Plus, oftentimes an injured worker won’t be able to afford the $1500 to $6,000 deposition fee of the doctor.
As you can see, there can be a real disparity here, but it arises from the specialties a doctor has to offer — from a regular physician to an expert neurosurgeon or orthopedic surgeon, for example.
To counter all that, our firm has a high winning percentage and a big reason is that we send our clients to reputable physicians. We have the fighting power and the financial leverage to go after big corporations that are denying your rightful injury compensation.
So, if you are looking for a strong legal representation in your work comp case, you’ve come to the right place.
Factors That Can Impact The Credibility Of Witnesses
There is no formula for evaluating the truthfulness and accuracy of another person’s statements or testimony. Factors that judges may consider to decide the matter include the following:
- The consistency of the witness’ present and past statements about what happened.
- Whether the witness heard or saw what happened.
- The witness’ training and experience in the field about which they are testifying.
- Whether the medical expert’s testimony is consistent with generally accepted medical literature.
- Whether the version of events presented by a witness makes sense.
- Whether the employee promptly reported the injury and promptly sought medical treatment.
- Whether the employee has various prior injury claims.
- The witness’ demeanor such as whether the witness makes eye contact, whether the witness pauses too long in answering questions, and whether the witness’ body language suggests that the witness is not telling the truth. The tone of voice, shades of expression, and gestures may also be considered.
- Whether a witness has a criminal conviction for offenses involving dishonesty.
- Does the witness’ testimony seem unreasonable, impossible, or unlikely
- The expertise of the medical witness is a crucial factor. Is the doctor board-certified in the field that he is testifying about? How much training and experience does the doctor have in a particular area of medicine?
- Is the doctor’s testimony consistent with Claimant’s testimony?
- Is the doctor’s testimony consistent with the medical records and the diagnostic testing?
Must The Witness Testimony Be Perfect?
A credible witness doesn’t have to be “perfect”. Credible witnesses tell the truth about what they know, saw, and heard. Sometimes that means saying: “I don’t know” or “ I don’t remember.”
The judge may reject portions of an employee’s testimony even if other portions are credited.
Similarly, the judge may accept portions of each medical expert’s opinion while rejecting portions of each medical expert’s opinion, provided that the judge adequately explains the reasons for doing so.
A credibility determination will be overturned on appeal only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.
How Do Lawyers Attack Witness’ Credibility
Lawyers have various tools to attack the credibility of a witness, also known as “impeaching” a witness. Some basic methods that can be used to discredit witnesses include:
Cross-examination
After a witness has testified, the lawyer for the other side can cross-examine the witness and ask questions designed to raise doubts about the witness’ credibility. The attorney may question the injured worker about prior inconsistent statements or contradictions in the medical records.
Other witnesses
Attorneys may try to call other witnesses whose testimony contradicts the testimony of witnesses presented by the other side.
Outside evidence
The defense attorney may present the testimony of a private investigator who presents surveillance evidence that the employee’s injuries are not as severe as depicted by the employee or his medical witness.
The defense attorney may try to introduce social media posts showing that the employee is more physically active than claimed. The defense attorney may introduce medical records to show that the claimant’s alleged injuries were pre-existing.
Can The Decision Of The Judge Be Appealed?
Can the Decision of the Workers’ Compensation Judge — often referred to as WCJ — be appealed?
Yes, there is a 20 day appeal period to file, which takes the cases to the Pennsylvania Workers’ Compensation Appeal Board. That Decision can then be appealed to the Commonwealth Court of Pennsylvania. After that, the PA Supreme Court will take some cases depending on the issue.
So, even if a WCJ doesn’t rule in your favor on the first try, all the doors aren’t closed to you. With the right Allentown workers comp attorney on your side, someone with a fighting spirit, you can rest assured that your rights will be appealed and fought for, till you get the rightful dues that you are owed.
For more information about Pennsylvania Workers’ Compensation law, call us anytime at (267) 651-7945.
The PA Workers’ Compensation Board receives thousands of injury claims every year. To ensure each case is determined on its merit and all injured workers are given their due compensation, the board and the system work diligently.
Yet, there are things that may slip through the holes and some gaps may remain in the justice system. To correct that, a dedicated Pennsylvania work injury lawyer employs some battle-hardened rules in every case to ensure a highly favorable settlement in the favor of their clients. As we are Pennsylvania’s rarest, most dedicated law facility for injured workers, we pride ourselves in perfecting these best practices that always help us give our best to the clients.
On your part too, there are things you can do to give your lawyers the best fighting chance. In this article, we’ll share 6 things that we always ask our clients to do. Things that don’t cost you anything, and give us what we need to get to the victory flag.
Tip #1: Hire Cardamone Law
Workers’ Compensation for injured workers is all we do. We’re rare, small, focused, and financially leveraged to take down any employer or insurer in court. No firm can guarantee victory — that’s not ethical. But you can do your research to see what firms solely focus on Pennsylvania Work Comp and what their reputation is. You have the right to proceed “pro se” — representing yourself — but it’s highly discouraged and makes it very difficult to succeed. The earlier an injured worker lawyers up, the better they do overall.
Tip #2: Always tell the truth
Image: Photo by Brett Jordan on Pexels
Tell the truth at all costs. Don’t hide prior injuries and spend time to remember past accidents, injuries, or work comp claims — you will be asked about them. If you are afraid that reporting an earlier injury or illness may harm your chances for compensation for the current injury, don’t worry. An aggravation of a prior condition is a viable work injury!
But if you deny prior accidents, or forget, you can rest assured that the other lawyer will try to make you look like a liar. That’s their job — to attack your credibility to save their client money. So whether it’s the doctor, judge, or lawyers, always tell it like it is — period.
Tip #3: Get a credible doctor who won’t be afraid to testify
Image: Photo by Karolina Grabowska on Pexels
Make sure your doctor is advocating for you. That’s where we, the Pennsylvania Workers’ Comp Attorneys, come in especially handy: to make sure you’re seeing a reputable doctor who isn’t afraid to testify.
Many are afraid. Some don’t take work comp for payment. So, sometimes the options for a credible doctor aren’t as good as you’d suspect. To make sure we have a good doctor on our team, we will get their records and read them and make sure they are listening to you and your complaints — and not blaming everything on “arthritis” like the defense medical doctors love to do.
Having a credible doctor vouching for your injuries is important especially if you have an independent medical exam coming up too. If both doctor’s accounts align closely, you can get that much closer to a great conclusion.
Because remember, without strong medical evidence, it’s nearly impossible to win.
Tip #4: Follow your appointments
Attend the hearings, mediations, and doctor appointments that you are told you must attend — don’t blow them off. Listen to your Workers’ Compensation lawyer in Philadelphia as to when you need to participate in an event, and when you’re excused. (ie, some hearings are just for the lawyers).
Come on time and don’t keep people waiting. The more professionally you behave, the easier you make it for the judge and the board to listen to you with more patience and respect.
Also, please dress appropriately — even if the hearing is via video. It’s a court proceeding and you must be respectful. Shower, wear clean clothes, and a confident demeanor. Remember, if you show up looking like you don’t care, the others may return the sentiment.
Tip #5: Communicate with your attorney
Forthright and regular communication with your attorney will be critical for the case. Tell them if you’re interested in returning to work, with the current employer or another one. Tell them if you are feeling recovered or close to it. Tell them if you got papers in the mail and aren’t sure what they mean.
The more you communicate, the better. This doesn’t mean sending 3 am texts every day. But, be in touch frequently to maximize the winning potential for your case.
Tip #6: Remember that each case is different
Finally, don’t get legal advice from your doctor or a neighbor. Your case is different than all others. Trust in the lawyer you hired and their expertise- unless they don’t communicate with you or behave inappropriately of course. There isn’t a magic number for a given case to settle at- each is unique. But a case will have a realistic range for settlement. Realistic doesn’t mean what you want, or how much you need to pay off your house. The value is based on other factors like your comp rate, extent of injury, age, educational level, and many other factors. To settle a case, both sides need to compromise- remember that.
Disclaimer:
Nothing on this blog/site shall be construed to be legal advice for your facts and case. You need to sign a Fee Agreement with our firm to be entitled to specific advice in your case. Fees in Pennsylvania Workers’ Compensation cases are contingent — we only get paid if we win a petition or settle the case.
