If you are injured in an accident at work, you may file a claim through Workers’ Compensation to seek coverage for medical bills and lost wages. This system can be vital to you and your family moving forward, especially if you were the one who caused your own accident and have no other grounds for recovery through a lawsuit.
Filing the case can be challenging. There are strict rules and procedures to follow, but our lawyers can help you every step of the way. If your employer denies your initial request for benefits, we can file a formal Claim Petition and take the case before a Worker’s Comp Judge.
For your free case evaluation and help filing your claim, call Cardamone Law’s Certified Pennsylvania Workers’ Compensation Lawyers at (267) 651-7945 today.
Coverage Under the Pennsylvania Work Comp Act
Understanding when the Workers’ Comp Act covers you is vital.
Duration of Employment
Pennsylvania employees are covered for the entire period of employment. Coverage begins the first day on the job. Injuries or diseases caused or aggravated by employment are covered under Workers’ Compensation, regardless of the employee’s previous physical condition.
Employee Status
Only “employees” (or “employes,” as the Act calls them) are covered. This means independent contractors are not covered. However, the status is based on the actual facts of your employment, not how you are paid or what your employer says you are.
If your work is closely controlled by your employer, and they tell you when and where to do the job, you are likely an employee, even if you are paid with a 1099. Just because the employer misclassified you doesn’t block your eligibility.
Steps to Take After an Injury/Before Filing
However, injured workers must take affirmative steps to protect their right to recover benefits under the Pennsylvania Workers’ Compensation Act.
Benefits are available for
- Acute injuries
- Repetitive use injuries
- Wage loss
- Medical benefits
- Loss of certain body parts and disfiguring scars
Proving Notice of Injury to Start Your Claim
Here is how an average Workers’ Compensation claim goes from start to finish.
Providing the Notice of Injury
Perhaps the most important first step is to provide notice of your injury to your employer. Section 311 of the PA Workers’ Compensation Act provides that notice of injury must be provided within 120 days of injury.
However, notice is typically expected within 21 days of the injury, so act quickly to avoid delays.
Determining Date of Injury
Where the employee is exposed to continuing, multiple traumas, the injury does not take place until the last exposure or trauma occurs, which is usually the last day of work.
However, the date of diagnosis, not the last date of work, can also be determined to be the date of injury for beginning notice, even where the employee continues to work.
Who to Give Notice To
It’s critical to remember that your notice must go to the employer. Telling a fellow employee you got injured at work does constitute an official notice under the Act. Notice should be given to the employee’s supervisor or other management personnel.
Some employers use third-party administrators, in which case you may be instructed to provide notice directly to them. Our Workers’ Comp lawyers can always help you determine the right parties and help you give proper notice.
Proving Notice
The employee has the burden to prove that proper notice was given, so it’s always best to send notice by email and print out the notice so that it can later be proven that adequate notice was given.
Whether the employee gave adequate notice of an injury is frequently disputed and is based on the totality of the circumstances.
Notice Must Describe Injury Properly
Make sure that the notice states that the injury is work-related. Merely stating that your back began to hurt while at work does not provide sufficient notice to your employer that you’re claiming a work-related injury. You should generally describe when the injury occurred, how it happened, and what body parts were injured.
You don’t need to provide your employer with an exact diagnosis. However, a reasonably precise description of the injury is required.
Seeking Immediate Medical Help
You should seek prompt medical treatment for your injuries.
First 90 Days
For the first 90 days, you must be treated by doctors on your employer’s designated list of medical providers if proper notice was provided to you at the time of hire and following injury. These are called “panel doctors” and typically include at least a few doctors, along with some “Workers’ Comp doctors” whose job is essentially to patch you up and get you back to work. They might not all be physicians or MDs/DOs.
If you need a specialist that is not listed, you can use an unlisted doctor in many cases.
After 90 Days
You may be treated by the doctors of your choice following the expiration of 90 days.
Tracking Bills and Expenses
As always, keep all billing and medical records sorted and saved in case your claim gets disputed or denied. We can also obtain copies of these from the care providers and seek copies of your medical records, too.
Possible Decisions/Responses from Employer
After the employer receives notice of a work-related injury, the employer must report all employee injuries to its Workers’ Compensation insurer.
Accepting Claim
Within 21 days, the insurance adjuster must issue a Notice of Compensation Payable, accepting the injury, or a Notice of Denial, denying that the employee has suffered a work-related injury.
Accepting Medical Claim Only
Employers may also choose to issue a Medical Only Notice of Compensation Payable if the employer has chosen to pay related medical bills, but not wage loss.
Temporary Benefits
An employer may also decide to issue a Notice of Temporary Compensation Payable for a period not exceeding 90 days, without admitting liability, where there is uncertainty regarding compensability. A notice of temporary compensation payable may convert to a notice of compensation payable if an employer does not subsequently issue a Notice Stopping Compensation Payable.
Essentially, paying temporary benefits gives the employer 90 days to extend their decision-making time.
Dealing with a Notice of Denial
Your employer’s insurance company may send you a Notice of Denial stating that your injury was not work-related. In that case, should you accept this as a final decision and find other means to pay your medical bills and to have some other source of income while you’re unable to work?
The answer is a resounding NO!
Insurance companies are in business to make money, not to pay out money if they can avoid it. If you receive a Notice of Denial, it’s extremely important to consult a Pennsylvania Workers’ Compensation lawyer to determine whether you have grounds to file a Claim Petition with the Bureau of Workers’ Compensation.
Filing a Claim Petition After a Claim is Denied
If a case is denied and not settled during litigation, it generally will take about one year before the parties will get a Decision from a Workers’ Compensation Judge (WCJ).
What’s in a Claim Petition
The Claim Petition is a form you can find online, though we often need to attach extra pages to give us room to explain everything. This lists basic info about
- Your job, job title, and pay
- Your injuries
- How the injuries related to your job tasks
- What you were doing leading up to the injuries
- How the accident happened
- Who was responsible
- What treatment and diagnoses you received
- How the injuries affected your ability to work
- How your wages were affected
- How your activities of daily living were affected.
This helps the WCJ understand the claim being discussed and what evidence they will need to see to decide whether to grant your benefits.
Assigning Case to a Judge
After a Claim Petition is filed, the Bureau generally assigns the petition to a Judge within several days. The insurance carrier then has 20 days to file an Answer to the Claim Petition. A pre-trial hearing is generally held about a month after the assignment of the petition. The Judge will then give the parties a scheduling order that directs the parties to take the Claimant’s factual deposition within 30 days.
Independent Medical Exam
Within 45 days thereafter, the insurance company is allowed to have the Claimant examined by a doctor of their choice. Claimants must generally take the deposition of their medical witness within 90 days of the first hearing.
This is known as an independent medical exam (IME) because it is the employer’s doctor, not because the doctor is actually “independent” or neutral.
Evidence Collection and Decision
Employers then have 90 days thereafter to take their medical deposition. The parties then have about 60 days thereafter to submit Proposed Findings and Briefs to the Judge, and the Judge will then usually file a Decision within a month or two later.
Hiring an Attorney
During this complex process, you may start to wonder if you could do it yourself. Will it be possible to file your own claim petition and handle your case? The answer is yes, but it would be a huge mistake.
Workers’ Compensation litigation is complex, and your employer or your employer’s insurance carrier will be represented by an experienced attorney.
Costs of Litigation
During workers’ Compensation litigation, you will usually need to retain a medical expert, take a formal deposition of your medical expert (which usually costs several thousand dollars), cross-examine the insurance company’s medical expert, and write various motions and briefs.
Experience
It takes many years of experience as a Workers’ Compensation attorney to acquire and sharpen these skills, and the Workers’ Compensation judge will normally advise an unrepresented Claimant to obtain an experienced Workers’ Compensation attorney to handle the complexities of litigation.
Contingency Fees
Aren’t lawyers expensive? How can I afford an attorney if I’m not working? Pennsylvania Workers’ Compensation attorneys generally work on a contingency basis—we don’t get paid until we get you benefits. Generally, we get 20% of any indemnity benefits that we can recover on your behalf.
Wage Loss Benefits
If you suffer a work-related injury and are unable to work, you can get wage-loss or “indemnity” benefits.
Rate if Unable to Work
If you cannot work at all, you usually recover 2/3 of your pre-injury average weekly wage. This is capped at the statewide average, which is set by law each year.
If you make less than half of the statewide average wage, then your wages are instead set at whichever is lower:
- Half the weekly statewide average wage
- 90% of your pre-injury average weekly wage.
Rate with Part-Time Work
If you suffer reduced wages because of your work injury, you generally can recover 2/3 of the difference between your weekly wages and the reduced wages if you’re able to perform part-time or light-duty work.
Taxation
All benefits are non-taxable.
Specific Loss Benefits
If you suffer a permanent injury, then you may also get additional benefits.
Covered Injuries
Any injuries listed in the Workers’ Comp Act are covered, typically limited to
- Amputation
- Permanent lost function
- Lost vision
- Lost hearing
- Significant facial scars or disfigurement.
Rate
The pay rate for these damages is 2/3 of your pre-injury average weekly wage. This is capped at the statewide average weekly wage, and it has a floor at half that amount.
Duration
These benefits start after your total disability period ends, and you are switched to partial disability, or you have returned to work. These benefits continue for a number of weeks set by law for each listed injury, so the duration depends on your specific injury.
Mediation for a Workers’ Comp Case
A Workers’ Compensation judge will usually require the parties to agree to mediation of the case with another Workers’ Compensation judge to see whether the parties can come to terms with a settlement unless it is determined that mediation would be futile.
This is usually done after the insurance company has had a chance to obtain a medical report after the defense medical exam. Neither party is obligated to accept the recommendations of the Mediating Judge, but many cases settle once the parties sit down with a neutral judge who can point out the strengths and weaknesses of the claim and the benefits of settlement to avoid the uncertainties of litigation.
Appeals
After the Judge writes a Decision, either side may file an appeal to the Workers’ Compensation Appeal Board. However, the Board may not reweigh the evidence or the Judge’s credibility determinations, and therefore, most Decisions are affirmed by the Board.
FAQs for Filing a Workers’ Compensation Claim in Pennsylvania
How Long Do You Have to Provide Notice of Injury
The law says 120 days at the latest, but you usually report injuries within 21 days to avoid delays.
Once the claim is denied, typically within 21 days of your notice, you can file a Claim Petition. You get 3 years from the date of injury to do this.
Who Do You File the Claim With?
Initial claims are filed with the employer by giving them notice of the injury. They then file a claim with their insurance carrier, since they are the policyholders, not the worker. If your employer uses a third-party administrator, you might file directly with them instead.
Once it is denied, you can file a formal claim with the state through the Workers’ Compensation Office of Adjudication within the Department of Labor and Industry. Claims do not go to the Court of Common Pleas like a lawsuit would.
Can You Also File a Lawsuit?
Sometimes, yes. Workers’ Comp may be called the “exclusive remedy” in work injury cases, but it is only the exclusive remedy for claims for work-related injuries against your employer.
If an outside third party caused your injuries, such as an equipment manufacturer, you can sue them and recover additional damages beyond what Work Comp covers.
Can You Get Pain and Suffering Covered Through Workers’ Comp?
No. You may be able to get specific loss benefits to cover a permanent injury, but these are not pain and suffering damages.
Pain and suffering, along with other “non-economic damages,” can only be claimed through a lawsuit.
Cardamone Law Can Help You Fight This Uphill Battle
Work injuries can have a very serious impact on a worker’s life as well as the lives of the worker’s family. You may be suffering painful physical injuries as well as emotional injuries that often accompany physical injuries. We know that our clients are also suffering financially, especially when a claim is denied and the worker no longer has an income.
Call Cardamone Law today at (267) 651-7945 for your free case review with our Philadelphia Workers’ Compensation lawyers.
