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Frequently Asked Questions About Workers’ Compensation Benefits

Table of Contents

    Eligibility

    If I Live In Another State, But I Am Injured In Pennsylvania, Can I Get Workers’ Compensation In Pennsylvania?

    Yes. If you are injured while working in Pennsylvania, then you are eligible for Pennsylvania workers’ compensation, even if you reside in another state. Similarly, if you live in Pennsylvania, but are injured in another state, you may still be eligible for Pennsylvania workers’ compensation benefits, if you were hired by a company in Pennsylvania.

    If I Get Fired, Can I Get Workers’ Compensation Benefits?

    If the firing was for willful misconduct, then the insurer/employer will likely argue that any wage loss benefits payable should cease. However, that’s not easy to prove. If an injured worker is laid off and has work-related restrictions, a reinstatement of benefits is due. A termination of employment does NOT end a workers’ compensation case.

    Will It Be A Workers’ Comp Case If I Get Into A Car Accident While On My Way To Work?

    It depends. Regular commute to/from work doesn’t count. But if you are a traveling employee or were traveling on a specific work assignment, a car accident on your way to work may have grounds for workers’ comp.

    Benefits

    What Benefits Will I Be Awarded If I Get Workers’ Compensation In Pennsylvania?

    If you win your claim or if the employer/insurer accepts your claim without a fight, you will likely receive two-thirds of your pre-injury average weekly wage, plus medical benefits for “reasonable, necessary and related” medical treatment. For low wage earners, the comp rate is 90% of the pre- injury average weekly wage. There is a max rate for weekly comp benefits, for each year. Other benefits are available, called specific loss, for disfigurement, for loss of use of a body part for “all practical purposes and purposes,” or for loss of a limb, fingers, or toes.

    How Much is a Workers’ Comp Case Worth in Pennsylvania?

    The value of your case depends on many factors. Each case is unique so be careful not to compare your case with a friend, co-worker, or neighbor’s case. Some of the factors include:

    1. Your average weekly wage leading up to the work injury
    2. The severity of your injury
    3. Whether your employer can give you work that legitimately fits within your physical restrictions
    4. What type of objective medical evidence exists to support the subjective complaints
    5. Your age
    6. Your level of education
    7. How often you’re treating
    8. Whether your injury has been legally accepted by the insurer vis a vis Notice of Comp Payable, TNCP, Supplemental Agreement or Stipulation

    Do I Get Full Pay After Getting Hurt At Work?

    No! You generally receive 2/3 of your pre -injury average weekly wage. Some injured workers will get 90%- depending on their gross earnings. There is a statewide maximum weekly comp rate as well. Here is an article on earning power determination according to the Pennsylvania Workers’ Compensation Law. Make sure you know your earning potential before making a claim for workers’ comp benefits.

    Can I Get Pain And Suffering For My Work Injury?

    No. There are no damages for pain and suffering in Pennsylvania workers’ compensation. This is because fault is not an issue in workers’ compensation, unlike in a third-party personal injury case.

    My Workers’ Comp Case is Still Ongoing and I am Broke – Can I Apply for Unemployment?

    Yes. You should apply and you will be accepted under certain conditions. Call me for a full analysis of your case. There will be a credit for the Employer if you obtain UC benefits.

    Can My Health Insurance be Terminated While I am on Workers’ Comp?

    Unfortunately, this can happen. The fact that a claim has been accepted or is being paid, does not mean that an Employer has to keep health insurance going. In many cases, it stops soon after the employee stops working, with a COBRA notice going out where applicable. The work comp insurance for the accepted work-related injuries continues until a full recovery is found by a Judge or until a case is settled, but the regular health insurance is not something the Pennsylvania Workers’ Compensation Act covers.

    My Neighbor Got $100,000 for His Settlement, So I Should too, Right?

    No two cases are identical. There are so many factors that distinguish cases. For example, what’s the average weekly wage and comp rate, the age of the claimant, the diagnoses, the accepted injuries in the controlling document, is there is an IME report challenging the treating doctor’s findings, if there is litigation, who is the Judge, has an earning power been established, etc etc etc.  It is a waste of time to consider what another person received for their settlement. Talk to your attorney about the value of your case, given the facts of your case.

    Can I Receive Other Benefits While My Case is in Court?

    Yes, but there may be an offset against the Work Comp that you win/receive later.

    Can I Apply for Social Security Disability While On Work Comp?

    Yes, but speak to your lawyer about the timing as that’s important.

    Can I Go Back To Work If I Am Receiving Workers’ Comp Checks?

    Yes. You should speak to your attorney, however, before doing this. Once you return to work, the insurer will reduce your workers’ comp checks accordingly. Sometimes, if you want to settle your case, it makes more sense to hold off on returning to employment. Just remember, if you are working and receiving work comp checks, you must report this income. It is flat out fraud if you hide any earnings.

    When Will My Workers’ Compensation Checks Stop?

    There are several scenarios for when the insurance company can stop sending you your wage loss checks. If you settle your case for a lump sum of money, then your checks will stop after the settlement hearing. Or, if the insurance company sends you LIBC forms asking you about your physical condition and whether you are working- and if you fail to return the forms within 30 days, they can suspend your wage loss checks until you send them back. Another instance when the insurer can stop your checks is if they prove that you are fully recovered from your work injury. They accomplish this by filing a Termination Petition and litigating the case for several months and by establishing that the IME doctor is more credible than your treating physician (not an easy thing for them to do). Another example of when the insurance company can stop your checks is when you sign a supplemental agreement, agreeing that you have returned to work at equal or greater wages than pre-injury. The insurer can stop paying your checks if they prove you’re capable of earning your pre-injury wages either through a job offer that the Judge believes is within your capabilities, or through a Labor Market Survey where the insurer’s vocational expert finds jobs that are allegedly within your physical and vocational abilities. Again, they accomplish this through litigation which takes many months- and which you have the right to defend.

    My Workers’ Comp Check is Late, What Should I Do?

    Call your workers’ compensation lawyer. He or she will file a Penalty Petition and assert that the Defendant has violated the Pennsylvania Workers’ Compensation Act by failing to pay your indemnity (wage loss) benefits in a timely fashion. If not amicably resolved, the Judge will issue a Decision once the evidence is submitted (usually, this consists of a copy of the last check rec’d and some brief testimony from Claimant). The Judge has discretion to award from 0 to 50% of the amount at issue, as a penalty. The longer the delay, the more likely the penalty will be severe.

    Treatment

    Will the IME Doctor Side Against Me?

    Not always. While they tend to be quite biased in many cases, I’ve seen plenty of fair and balanced IME reports which acknowledge a work-related injury and disability. Don’t jump to conclusions.

    Do I Have To Attend An Independent Medical Exam?

    Yes. As long as you haven’t attended one in a six month period, you will have to attend. If you do not attend, the employer/insurer will likely file a Petition to require that a court order be sought requiring your attendance.

    Does Full Duty Release Mean Full Recovery?

    Not always. My take is that a claimant may be released to full duty by their doctor, but this doesn’t equate to being symptom free. Being able to perform one’s job without medical restrictions imposed by a treating doctor does not mean they won’t experience pain or soreness or stiffness when engaging in the job. I think attorneys need to stay aware of this distinction b/c I often hear the two lumped together. Like most issues, it’s a case by case basis and you can always write to the doctor to ask for a clarification if need be.

    Procedural Questions

    How Do I Apply For Pennsylvania Workers’ Compensation If I Was Injured At Work?

    Once you suffer a work-related injury in Pennsylvania, whether from a traumatic accident or from repetitive work activities, you must notify your employer. You should try to give notice within 21 days of the injury, and the sooner the better. Once you give notice of your on-the-job injury, the employer and/or workers’ compensation carrier has 21 days to accept, deny, or temporarily accept your claim by issuing one of three documents: a Notice of Compensation Payable, a Notice of Denial, or a Temporary Notice of Compensation Payable. If 120 days notice is not given, the claim will be barred forever.

    How long will my case take?

    It depends as each case is different. Some claims are short-lived, just a few weeks, because the injured worker returns to work. In other cases, the claims last much longer, sometimes even years. In terms of litigation, a petition can take up to a year or more for the workers’ compensation judge to make a final decision. You should talk to your Pennsylvania workers’ compensation attorney about your specific case.

    Is The Workers Comp Insurance Company On My Side?

    No! There is a direct conflict of interest between what you want and what they want. You, as the injured worker in Pennsylvania, simply want to obtain the benefits afforded to you by law- wage loss benefits and medical benefits. More importantly, you want to get better.

    On the other hand, the insurance company wants to pay as little as possible on your claim. They send you to panel doctors who have relationships with your Employer, and they have incentive to minimize your disability to the extent that the subjective nature of medicine, permits.

    The insurer doesn’t enjoy paying you wage loss benefits. That’s why they send you to IME doctors to obtain an opinion that you’re either fully recovered or have an earning power.

    Employers are required to have workers’ compensation insurance, but this doesn’t mean that the insurers are always looking out for you. They have to walk a fine line between appearing to be acting on your behalf and doing their job, with trying everything they can to spend less on your claim.

    My goal as a workers’ compensation lawyer for injured workers in Pennsylvania, is the reverse- namely, to maximize your entitlement to benefits- to obtain money for you so you can survive while you’re trying to recover- and to make sure that your medical bills don’t slip between the cracks.

    You also have to remember that every adjustor is different – some will treat you well and some won’t. You just need to be aware of the big picture, which is that each party has largely different objectives.

    No, insurers are not evil. But they are looking to end your claim with as little spent as possible.

    I Received Forms in the Mail From the Insurance Company Asking Me About My Work Status and Physical Condition- Do I Have to Fill Them Out?

    Yes. These are LIBC forms and the insurers send them out from time to time to inquire about your working status and physical condition. If you fail to fill out and return these forms within 30 days, your benefits may be suspended. The insurance companies have a right to know if you are working because they’re entitled to a credit for any actual wages you may be receiving. Likewise, if your physical condition has changed, they want to, and have a right to, know about this.

    Will My Case be heard by a Jury or Judge?

    A Work Comp Judge will be assigned to your case.

    Will I have to Attend Hearings?

    Yes, most likely but ask your lawyer as some hearings don’t involve any testimony.

    Will I Have To Testify In Court?

    Again, it depends on your situation. If a petition is filed, you will likely have to testify before the workers’ compensation judge. Sometimes he testifies at one deposition, or both. Your Pennsylvania workers’ compensation attorney will prepare you for your testimony in terms of what to expect.

    How Should I Dress for Court?

    It’s a good idea overall to look respectable but a suit/dress isn’t required.

    If I Am Receiving Pennsylvania Workers’ Compensation Benefits And My Employer Offers Me A Light Duty Or Modified Duty Job, Do I Have To Accept It?

    No. However, there may be legal consequences. If you don’t test work, the employer will likely file a petition to modify or suspend your wage loss benefits, stating that work is available within your restrictions. If your doctor says you can’t do the job, the workers’ compensation judge will ultimately have to determine if the job is something you can handle, after reviewing your testimony, the testimony of witnesses from any employer, and any testimony from your treating physician and/or an independent medical examiner. If you have been offered a job, it is highly recommended that you speak with a Pennsylvania workers’ compensation attorney.

    Can I Sue My Employer For Negligence For Causing My Work Injury?

    No. Pennsylvania workers’ compensation is your only recourse against your employer for a work-related injury. However, if the injury was caused by a third party, meaning someone other than your employer, then you may have a viable personal injury claim against that third party if you can establish a defective or dangerous product or condition. Or, if you are injured in a car accident while on the job, you will have a Pennsylvania workers’ compensation claim against your employer for lost wages and medical benefits, and a negligence claim against the driver for personal injury.

    Can I Settle My Pennsylvania Work Comp Case For A Lump Sum?

    Yes, if the employer/insurer is interested. The employer/insurer is not required to offer a lump sum settlement. It is a voluntary agreement between the parties. Most employers/insurers are interested in a lump sum settlement, called a “Compromise and Release”. It is highly recommended that you speak with a Pennsylvania workers’ compensation attorney before settling your case.

    Will My Case be Via Video or In Court?

    Depends on the nature of hearing- some Judges will be going back to in-court for testimony, but may prefer video for status hearings.

    What Medical Evidence Will I Need?

    Depends on many factors- ask your attorney. Sometimes you will need a deposition, sometimes just a report.

    Will I be spied on?

    It’s possible. Depends on status of case. If your doctor and the IME doctor say you’re totally disabled, they may not waste money on this.

    My Job Is Protected After A Work Injury, Right?

    Not necessarily! Many people believe that just because they were injured at work, that the Employer must hold their position forever. This is not correct. If you get accepted for FMLA, you can have up to 12 weeks of job protection. But in many cases, according to the PA Workers’ Comp Laws, injured workers lose their job. If the Employer cannot accommodate the restrictions, a worker could be terminated. Or if there is an economic downtown. Or a termination can occur for misconduct, etc. There are some other issues with the ADA- but generally speaking, a work injury doesn’t mean you can’t be terminated. Now this doesn’t mean that the termination is lawful- sometimes, it’s discriminatory- i.e., retaliation for pursuing Work Comp in Pennsylvania. But a Work Injury isn’t an automatic entitlement to job security. To understand the complete extent of PA Workers Compensation Law, consult with a work comp attorney and discuss your options.

    If I Receive a Job Offer While Filing or While on Workers’ Comp, What do I do?

    Ask your attorney. A good faith attempt can help a case. But it depends on many factors.

    If I Earn Money While on Work Comp, Do I have to report this?

    Yes. Tell your lawyer right away so he or she can tell the adjustor.

    Legal Representation

    Do I Need a Lawyer?

    It’s strongly encouraged. You will likely make a lot more money if you retain a lawyer.

    How Does My Lawyer Get Paid?

    Legal fees for injured workers in Pennsylvania are contingent. The injured worker pays nothing out of pocket to get representation — unless the firm charges for litigation costs. The standard Fee Agreement in a Pennsylvania Workers’ Compensation case is 20% of the wage loss benefits. The law does now permit a fee on medical benefits as well, but most firms are not doing this.

    Can My Attorney Get More Than 20%?

    In most cases the answer is no.

    The lawyer would need to make a showing of “good cause” as to why he or she is charging more than the standard 20%. In my 25 years of litigating Pennsylvania Workers’ Compensation cases, I’ve seen it perhaps one time. So it is very rare.

    When Does My Lawyer Get Paid?

    The award of a legal fee will come via Court Order from the Pennsylvania Workers’ Compensation Judge. This Order can stem from one of many petitions — a Claim Petition, Penalty Petition, Review Petition, Petition to Terminate, Petition to Modify, a Petition to Suspend, and a Death Claim, etc.

    Another common petition is a Petition Seeking Approval of a Compromise and Release, which is a settlement in Pennsylvania Workers’ Compensation. Without a Court Order, it’s not proper for the lawyer to get paid.

    If I Lose My Case, Do I Still Have to Pay My Lawyer?

    No. If you lose, you should not be paying anything to your lawyer unless they have litigation costs that you agreed to pay in the Fee Agreement. My firm, Cardamone Law, has never gone after a client for any litigation costs. Some law firms will do this. This is the nature of a contingent fee system — if you lose, there is no fee. If you win, 20% (typically) of the wage loss benefits go to the firm who was successful for you.

    If I Switch Law Firms During My Case, How Does That Work?

    Normally, the new firm will agree to present any litigation costs on behalf of your former law firm, so that they can get reimbursed with a successful outcome or settlement.

    In terms of the fee, it depends. There may be a dispute about which firm gets paid, how much, and when. But the injured worker will only pay 20% total, so they don’t need to worry about paying one firm 20% and another firm 20% on top of that. That’s not how it works. The injured worker has a right to be comfortable with his or her lawyer, and sometimes switching firms is necessary to achieve this.

     

    Denials

    What Do I File if My Claim Was Denied?

    You need to file a Claim Petition, but within three years of the date of injury or the claim is forever barred.

    If My Work Comp Claim Is Denied, Can I Get Short Term Disability?

    If work comp denies your claim, and if you have short term disability, you can pursue that. Give the short term disability people your Denial so they know that work comp is not paying. (even if your work comp case is in litigation). If you ultimately end up with work comp benefits, then work comp may be entitled to a credit to the extent the short term disability plan was funded by the employer.

     

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