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.
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What Is 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 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 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 Pennsylvania workers’ compensation attorney will know how to properly present the case to achieve the best result for the client.
URs can be quite complicated and can directly impact the life and well-being of the patient and a well-qualified 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.
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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.
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.
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.
In cases where we win a decision on behalf of an injured worker, the employer/insurer often files an appeal to the Workers’ Compensation Appeal Board. That appeal is due 20 days from the date of the decision from the Workers’ Compensation Judge.
The insurer’s attorney will often request Supersedeas or an Order that states that they don’t have to pay the award, or perhaps costs or a penalty award, at the outset of the appeal process.
An Order from the WCAB is due within 30 days of the request for Supersedeas. Here is the relevant section of the Pennsylvania Code that applies:
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§ 111.21. Content and Form
- A request for supersedeas shall be filed as a separate petition from the appeal and be accompanied by the following:
- A copy of the decision and order of the judge or order and opinion of the Board from which the supersedeas is requested.
- A short statement setting forth reasons and bases for the request for supersedeas.
- A specific statement as to the issues of law, if any, involved in the underlying appeal.
- Information on the current employment status of the claimant, if known.
- The court, if any, to which an appeal from the Board decision has been taken.
- Other relevant information for the Board’s consideration in determining whether the supersedeas request meets the following standards:
- The petitioner makes a strong showing that it is likely to prevail on the merits.
- The petitioner shows that, without the requested relief, it will suffer irreparable injury.
- The issuance of a stay will not substantially harm other interested parties in the proceeding.
- The issuance of a stay will not adversely affect the public interest.
- A proof of service as specified in § 111.12(e) (relating to filing, service, and proof of service), insofar as applicable.
- Requests for supersedeas shall be served on all parties.
- Subsections (a) and (b) supersede 1 Pa. Code § § 35.1, 35.2, 35.17, 35.190 and 35.225.
What Will Our Work Comp Attorneys Do
As your appointed workers’ compensation lawyer, we will counter this by demonstrating that
- they are not likely to prevail on the merits,
- that they will not suffer irreparable injury if Supsersedeas is denied,
- that a stay will substantially harm our client, and
- that the issuance of a stay will adversely affect the public interest (see 6i – 6iv above).
Winning the Supersedeas decision at the outset of the appeal is critical so that our clients can get their money, pay their bills, and start getting out of debt after a long time in litigation/court.
Make sure you have an experienced Pennsylvania Workers’ Compensation Lawyer (not a general practitioner) to help you navigate our complex system.
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.
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.
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 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 can file appropriate petitions and litigate claims to achieve the best results for the injured worker.
If you think your work injury case is concluded because you have started to receive your benefits checks regularly, think again.
Your employer’s insurer is trying to save as much money as possible. To that end, they may decide to invoke supersedeas and petition you to appear for an independent medical exam.
What can you do when that happens? What are your options and the way forward? Let’s find out.
Independent Medical Exams Are Not Always Independent
As an injured worker who has received an IME notice, you may be wondering: My attorney did a great job, and now I’m getting workers’ compensation benefits. Why should I continue to treat my work injuries if I’m unable to return to work? Haven’t I already proven that I was injured at work?
If you are receiving Pennsylvania workers’ compensation benefits, you can rest assured that the workers’ compensation insurance company will do whatever it can to stop your benefits.
At some point, you will receive a notice to attend an “independent medical examination.” These exams are not very “independent” since the insurance company chooses doctors that it hires and pays for, and these doctors will likely get more referrals if they find that a Claimant has recovered.
You may be asked to attend these defense exams once every six months.
The defense physician then issues a report with his or her opinion about your medical condition and your ability to return to work, and the insurance company will then likely file a Petition against you to try and stop your wage loss and/or medical benefits.
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But They Were Once a Helpful Tool
Prior to 1984, an employer in Pennsylvania could simply obtain an affidavit from a doctor claiming that an injured worker was fully recovered from a work injury and take an “automatic supersedeas.”
What is Supersedeas?
Supersedeas is a legal term used in Pennsylvania workers’ compensation law that allows an employer to stop your wage loss benefits immediately.
How is supersedeas used in the PA Work Comp system?
Since 1984, Employers can no longer merely file a Physician’s Affidavit and immediately cease paying indemnity benefits. Instead, an employer must request supersedeas in conjunction with a Petition to Terminate, Suspend, and/or Modify Compensation Benefits.
A special supersedeas hearing is held before a Workers’ Compensation Judge within 21 days of the assignment of the Employer’s Petition.
What happens at the supersedeas hearing?
At the supersedeas hearing, the Claimant’s attorney submits an affidavit from the injured worker stating why benefits should not be stopped and detailing the medical problems that the Claimant is still suffering as a result of the work injury.
The Claimant’s attorney will also submit a recent, relevant medical report from the Claimant’s treating physician stating why the Claimant is still disabled and not able to return to work.
How is the decision reached?
Within 14 days of the supersedeas hearing, the Judge must issue a written decision on the request for supersedeas. Unless a supersedeas is granted by a written order, it will be deemed denied.
The Significance of a Qualified Work Comp Attorney at a Supersedeas Hearing
Unless an employee’s attorney provides compelling evidence that the Claimant is likely to prevail in the litigation, benefits will likely be suspended, and therefore, it’s crucial to have an experienced workers’ compensation attorney who can convince the Judge through submissions that an injured worker should continue to be entitled to wage loss benefits.
If supersedeas is denied, your checks will continue while the Employer’s Petition is litigated before a Workers’ Compensation Judge during the next several months. If supersedeas is granted, not only will weekly checks discontinue, but also the insurance company will be less inclined to make a reasonable settlement offer.
Therefore, it’s imperative to have an effective and experienced Pennsylvania workers’ compensation attorney fighting for you to get all the benefits to which you are entitled.
Can Cardamone Law Help?
We are a niche law firm with specialization and a focus on the PA workers’ compensation system. We know how it works and how to move it to help provide relief and aid to injured workers in Pennsylvania.
If you have been served with a petition that seeks to reduce or terminate your work comp benefits on any grounds, reach out to us at (215) 206-9068.
Our experienced work comp attorneys will help navigate your unique supersedeas obstacle and work with you to ensure your benefits continue so you can heal without distraction or worry.
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 (215) 206-9068 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 (215) 206-9068.
This sounds like a typical lawyer answer, but it depends! Each case is different. Some cases are smaller, with a limited window of wage loss at issue- and these tend to resolve quicker. On the other hand, with serious injuries that involve years of treatment, the settlements can take years from the date of injury.
When the case is in litigation
In terms of litigation, when a petition is filed in Pennsylvania Workers’ Compensation Court, the timeline can range from weeks to 18 months or so, for resolution of the particular petition. Sometimes, the parties are able to reach an agreement and enter into a Stipulation where they agreed to certain terms and payment of certain benefits. In other cases, the original 9 to 12 month scheduling Order from the Pennsylvania Workers’ Compensation Judge may have been altered by requests for more time from the attorneys. Why would this happen? Well, sometimes it’s difficult to get a doctor’s deposition date within a time frame- due to the schedules of the doctors, the lawyers, etc. So, in these situations, the Pennsylvania Work Comp Lawyer will ask for additional time- and it’s often granted if the Judge believes it’s for “good cause”.
When parties want to reach a settlement
In some circumstances, the parties try to delay the litigation because they don’t want the Workers’ Compensation Judge to decide the issues because they are trying to reach an amicable resolution of the issues before the Judge, or to settle the case in its entirety. Some Pennsylvania Workers’ Compensation Judges are more flexible than others in this regard. The best thing to do is to make sure your opponent is on the same page so that when you make a request to continue or postpone a hearing, that you’re solidified as a team for this particular issue- even if you’re opponents on the legal issues. This will help get the request granted in your favor.
In the end, each case is different
The last thing you want to do is compare your case to a friend or co-worker’s case. Just because their case settled in 45 days, doesn’t mean yours will. Each case will take its own path and there are so many distinguishing features of each case. Don’t waste your time trying to fit your case into some preconceived idea. Make sure your attorney is a Certified Philadelphia Workers Comp attorney– and not someone who handles many areas of law. Trust in their advice and let them give you their opinions based on their experience.
