STEPHEN J. O'BRIEN & ASSOCIATES
ATTONERYS AT LAW
Office: 412-788-7560
Cell: 412-780 2623
Toll Free: 1-866-LAW-ANSW
(1-866-529-2679)
Website: sobrienlaw.com
650 RIDGE ROAD, SUITE 400
PITTSBURGH, PA 15205
This booklet is intended to supply you with useful facts about your rights and responsibilities concerning the Pennsylvania Workers' Compensation Act (Act). Every case has differences that may affect your right to benefits. The law places the burden of knowing your rights upon you, even if you have never before suffered a work injury or received Workers' Compensation benefits. The information in this booklet is a summation and is not all inclusive. Do not rely upon this booklet alone.
ALL QUESTIONS ARE IMPORTANT.
FREE CONSULTATIONS ARE AVAILABLE
FROM
STEPHEN J. O'BRIEN & ASSOCIATES
INDEX
Six Easy Steps to Protect Yourself
What to Know
What Benefits are Available
Who is Covered
What is Not Covered
When Do I Get Paid
How Much Do I Get
Notice of Compensation Payable
Types of Benefits
Total Disability Benefits
Partial Disability Benefits
Death Benefits
Specific Loss Benefits
Hearing Loss
Occupational Disease
Calculating Benefits
Statement of Wages
Average Weekly Wage (AWW)
Partial Disability Calculations
Taxes
Medical Benefits
Doctors
How Long Can I Receive Benefits
Alternate Employment
Funded Employment
Time Limits
Attorneys
Appeals
Fraud
Other Disability Benefits
Additional Remedies
Common Questions and Answers
Checklist of Facts
SIX EASY STEPS TO PROTECT YOURSELF
STEP ONE: SPEAK UP - REPORT YOUR INJURY
If you suffer a work injury or an occupational disease caused by work exposures, then notify your employer (boss, supervisor, foreman, human resource dept., etc.) IMMEDIATELY. Written notice is preferred to protect your rights but is not required by the Act.
FACT: GIVE IMMEDIATE NOTICE. THE SOONER THE BETTER. TIME LIMITS EXIST. ASK TO FILL OUT AN ACCIDENT REPORT.
You have 120 days from the date of injury to notify your employer of the work injury. Failure to give this "Notice" will prevent you from being eligible for any workers' compensation benefits.
STEP TWO: SEEK MEDICAL ATTENTION
The sooner the better. Your employer is required to post a list of panel physicians (at least 6), and you are required to treat with a panel physician for the first 90 days of treatment. After 90 days you may treat with a physician or practitioner of the healing arts of your choosing.
FACT: YOU MUST TREAT WITH COMPANY DOCTORS FOR THE FIRST 90 DAYS OF TREATMENT.
The employer cannot force you to treat with anyone, but your employer is not required to pay for treatment unless it is with a panel physician for the first 90 days of treatment.
STEP THREE: INFORMATION
Keep your employer and its insurance carrier informed of your doctor's name and treatment.
FACT: YOU MUST INFORM YOUR EMPLOYER OF YOUR DOCTOR'S NAME AND TREATMENT.
STEP FOUR: KEEP EXCELLENT RECORDS
Keep all your records in one place.
Keep records of your treatment appointments.
Keep records of your doctors' names and addresses.
Keep records of your treatment, current and future.
FACT: YOUR EFFORT IS NECESSARY TO PROTECT YOUR RIGHTS.
STEP FIVE: ALWAYS BE COOPERATIVE
You have been injured and will not be in the best mood to handle talking with doctors, nurses and insurance companies but anger will only make the healing and insurance process more difficult.
FACT: YOU MUST COOPERATE WITH THE INSURANCE COMPANY'S REQUESTS FOR MEDICAL INFORMATION AND VOCATIONAL REHABILITATION.
STEP SIX: THINK ABOUT YOUR FUTURE
Some injuries are life altering and may prevent you from returning to your regular job. Ask your Doctor questions about what to expect during your recovery and when to expect to return to work. Consider what job modifications may help your return to work.
You know the demands of your job best. Discuss your job demands with your doctor early. Make sure your doctor knows the demands of your job.
If you will not be able to return to your regular job, then consider early what other types of work interest you. Your employer and/or its insurance company are unlikely to know your preferences or be able to satisfy you with alternate employment.
FACT: THE ACT DOES NOT REQUIRE YOUR EMPLOYER TO KEEP YOUR JOB OPEN OR TO PROVIDE ANOTHER JOB TO YOU.
Your employer or its insurance company may seek to prove that you are able to return to work at your regular duties or another type of job, completely different from your regular job, even if it pays less.
WHAT TO KNOW
What Benefits are Available?
Certain medical expenses and wage loss benefits can be received for work related injuries. Medical benefits are available even if you do not miss work. Wage loss benefits are payable for total wage loss and partial wage loss. Benefits are also payable for Hearing Loss, Scarring & Disfigurement and Specific Losses (explained later). Benefits may be available to your surviving dependents for work related deaths.
Who is Covered?
Most Pennsylvania workers are covered. Generally, all full time, part time and seasonal employees are covered by the Act. Some employees that may not be covered are agricultural laborers, domestic help, federal employees, longshoremen, railroad workers, shipyard and harbor workers, and volunteers. Some workers are covered by other compensation laws. If you are unsure, then ask your employer, union rep. or a lawyer.
What is Not Covered?
Benefits are not available for self inflicted injuries or death caused by an employee's violation of the law, use of illegal drugs, or intoxication. Injuries that result from an employee's violation of a work rule may also be excluded from coverage.
When do I get Paid?
Protection begins on your first day of work. Medical benefits are payable from the date of injury and wage loss benefits are payable after the first 7 calendar days. If you are unable to work for less than 7 calendar days, then wage loss benefits are not payable. If you are unable to work for 8 to 14 calendar days, then you are entitled to wage loss benefits for the 8 to 14 days off. If you are unable to work for 15 or more calendar days, then you are entitled to wage loss benefits dating back to the 1st day missed.
Once you report the injury and have missed more than seven days of work, your claim should be accepted or denied by the insurance carrier within 21 days. After that, you should receive wage loss payments as you received your wages, but usually you will receive bi-weekly checks.
You should receive your wage loss benefits by regular mail. Your employer can not require you to report to the employer's office to pick up your checks.
Your claim may be accepted on a temporary basis for up to 90 days. If your claim is accepted on a temporary basis, then you will receive a Notice of Temporary Compensation Payable. The insurance company must advise you that it will not continue your wage loss checks past 90 days by a Notice Stopping Temporary Compensation. You have the right to file a Claim Petition if you disagree with the decision to deny your claim.
If you are not notified of the stopping of temporary compensation before the end of the 90 days, then the Temporary Notice will convert to a Notice of Compensation Payable.
How Much do I Get?
Weekly benefits for wage loss are equal to approximately two-thirds of your average weekly wage, up to a weekly maximum for the year of injury. The maximum rate for the year 2002 is $662.00. Wage loss benefits are offset (reduced) by: (1) 50% of Social Security "old age" benefits, (2) the employer paid portion of a pension, (3) severance pay, (4) unemployment compensation or (5) earnings from employment. Wage loss benefits are based upon your wages at of the time of injury and will not increase over time.
Calculation of your Average Weekly Wage is determined by your wages at the time of injury. There are several calculation methods and the rules can be complicated. Seek assistance if you feel that your weekly benefit rate is too low.
Notice of Compensation Payable
(NCP)
The insurance company should send you this notice when your claim is accepted. The notice contains a description of your injury that the employer has accepted. Make sure it fully details your injuries, not merely a general description, inaccurate description, or only partial description. Make sure all injuries are listed. The NCP also lists your Benefit Rate.
TYPES OF BENEFITS
Claims for Workers Compensation injuries are of basically three types:
1. New Injuries.
2. Aggravation of a pre-existing physical condition, and
3. Reoccurrences of old injuries
Both Physical and Psychological Injuries are compensable but Psychological Injuries are more complicated than this summary. Contact a lawyer if you have a psychological condition related to your work.
Total Disability Benefits:
Medical and Wage loss benefits.
Injuries which result in total wage loss are payable as Temporary Total Disability Benefits. Such benefits are payable for the period you are unable to work in any capacity and earn wages. Classification of your disability as Total or Partial is based upon wage loss. After 104 weeks of Total Disability status, the employer/insurer may seek a medical determination of whether you have suffered a Total Body Impairment of at least 50%. The impairment is based upon your work injury according to the American Medical Association standards. Impairment ratings below 50% allow the change of your disability status from Total to Partial Disability.
Partial Disability Benefits:
Medical and Wage loss benefits.
Partial Disability wage loss benefits consider actual or potential earning when calculating a weekly benefit rate.
Partial Disability Wage Loss benefits are payable for a maximum of 500 weeks. You may petition for total disability while on partial disability status if you condition worsens or again results in total wage loss due to your work injury. Partial disability benefits are paid if you can return to work at a lower paying job, within your physical restrictions, or you are found not totally disabled.
Death Benefits:
Weekly benefits based upon the deceased
employees Benefit Rate
Your spouse and dependents may be eligible for weekly wage loss benefits due to your work related death. Benefits payable to your surviving spouse are payable until remarriage or it is determined that your surviving spouse has entered into a meretricious relationship. Also, funeral expenses are payable up to $3,000.
Specific Loss Benefits:
Benefits payable for a specific period of time based upon the type of injury and your Benefit Rate
You may receive compensation benefits for the permanent loss or loss of use of parts of the body based upon a weekly rate. The body parts involved are the thumb(s), finger(s), hand(s), arm(s), leg(s), foot, feet, toe(s), sight, hearing, or serious and permanent disfigurement to the head, face or neck. Losses can be the whole or one-half of a thumb, finger or toe.
Hearing Loss
Hearing loss benefits can be for percentage of loss, above 10%, for one or both ears. The maximum for one ear is 60 weeks and the maximum for both ears is 260 weeks of benefits.
Occupational Disease
Occupational diseases caused by or aggravated by employment may be covered by the Act. Occupational Disease claims are more complicated than the typical physical injury claim and are not coverage by this summary.
CALCULATING BENEFITS
Statement of Wages
The insurance company should send you this notice when your claim is accepted. The notice sets forth how the insurance company has calculated your Average Weekly Wage and Benefit Rate.
Average Weekly Wage (AWW) Gross earnings are used to calculate your average weekly wage.
The calculation of your Average Weekly Wage (AWW) uses the method of your wage payments, such as weekly or hourly wages, and uses the total wages you have earned with your employer. The formula for calculating your AWW can be complicated. If you feel the AWW calculated by the employer or insurance company is too low, then contact your attorney.
PARTIAL DISABILITY CALCULATIONS
Partial disability is calculated by deducting the gross earnings you receive from your AWW to determine your wage loss and then pays 2/3rds of the resulting wage loss, up to the maximum rate for the year of your injury.
Example: If your AWW at the time of injury was $1,000.00 then 2/3's equals $666.67. The maximum rate for the year 2002 is $662. Therefore, you will only receive the maximum rate as your weekly benefit for total disability.
If you return to work at your regular duties and are earning the same or greater wages then you are not entitled to any partial disability wage loss benefits. If you return to work but on a restricted basis and you have earnings less than your AWW then you are entitled to partial disability wage loss benefits.
Example: if you return to work in a restricted capacity and earn $400.00 per week (your time of injury AWW was $1,000.00 per week), then your wage loss is $600.00 per week. You are entitled to Partial Disability Benefits of $1,000.00 - $400.00 = $600.00 multiplied by 2/3 = $400.00 per week of Partial Disability Benefits.
TAXES:
Workers' Compensation wage loss benefits
are not subject to income tax.
Medical Benefits:
Reasonable and necessary treatment that is causally related to the work related injury.
Medications, supplies, hospital treatment and services, orthopedic appliances, and prostheses are covered. (Rules apply to entitlement).
The Act provides for the amount that Medical providers are paid for services and Prescription Medication. You cannot be billed for any unpaid balance, EXCEPT, if you seek treatment outside of Pennsylvania.
Ask your doctor or provider before you receive treatment, supplies or prescriptions.
Doctors
You must treat with a "Panel Doctor" for 90 days.
A list of six or more health care providers must be posted in your workplace. You must seek initial treatment with a posted provider and continue treatment with a posted provider for a period of 90 days following the first visit. You may seek treatment from any provider listed and may switch between listed providers during the 90 day period. You must be advised in writing of your rights concerning medical benefits. The written notice of your rights and duties must be provided to you at the time of injury or as soon after the injury as is practicable. You may seek a second opinion regarding invasive surgery from another posted provider and the employer must pay for the second opinion. The right to a second opinion is your right, not the insurance company's right.
Treatment recommended as a result of a second opinion must be provided by a listed provider for 90 days.
If you seek treatment from a "non-panel physician" during the 90-day period then payment for such treatment may be denied by the insurance company.
After 90 days from initial treatment, or if your employer did not post a list or posted an improper list, you may seek treatment with a health care provider of your own choice.
You must notify the insurance company of the provider you select. During treatment, the insurance company is entitled to receive monthly reports from your physician or provider.
The insurance company can require you to submit to examination by a doctor of their choosing. Called an IME (independent medical examination). Refusal may result in suspension of your benefits.
How long can I receive Benefits?
Any wages earned or income received affects your entitlement to wage loss benefits. Total Disability benefits are of indefinite duration. Partial Disability benefits are payable for a maximum of 500 weeks.
You must report, in writing to the insurer, any information which is relevant in determining entitlement to, or amount of, compensation. For example, you must report any and all wages from another employer or from self-employment.
Your wage loss benefits can be stopped if you have returned to work at wages equal to or greater than your time of injury average weekly wage and after the insurance company has filed a timely notice of that fact. You must receive this notice.
The insurance company can stop paying temporary compensation benefits during the 90 days following the report of injury, but you must be notified that benefits are being stopped and your claim is being denied.
Benefits may be terminated, suspended or modified by (1) signing a Supplemental Agreement, (2) signing a Final Receipt, or (3) by Order of a Workers' Compensation Judge.
Wage loss benefits are not payable during any period of incarceration.
Alternate Employment
While you are disabled, your employer may offer you employment or seek to establish that employment is available to you, within your restrictions. If you decline any job offer, then your employer may petition to modify or suspend your wage loss benefits based upon the potential earnings of that job. A judge will evaluate medical and vocational evidence submitted by you and your employer to decide whether to modify or suspend your wage loss benefits.
Funded Employment
Employers or their insurance company may contact organizations and agree to pay your wages if they hire you. These positions are considered valid offers of employment and your refusal of such a position can result in the suspension or modification of your weekly wage loss benefits. The job must be within your local area and within a reasonable commuting distance. A consideration of what is a reasonable commuting distance can be the distance you were willing to travel for your time of injury employment.
Involvement with a retraining program with the Office of Vocational Rehabilitation (OVR) can be a valid reason for refusal of alternate employment if such job will disrupt the training. However, the employer may offer part time employment as a valid response to a refusal.
Time Limits
Even if you think that your employer knows you have suffered a work injury, you must give Notice of your work injury within 120 days after the injury. If you have given notice of your injury within the 120 day period then you have three years from the date of injury to file a Claim Petition.
In occupational disease cases, injury/disability must occur within 300 weeks from your last date of last employment in an occupation in which you were exposed to a hazardous substance. A petition for benefits must be filed no later than three years from the date of injury/disability.
Failure to give Notice of Injury or to file a Petition for Benefits on a timely basis will result in forfeiture of your right to benefits.
Attorneys:
You are not required to have an attorney but be aware that your employer and its insurance company will. Failure to know your rights and how to protect your rights is your responsibility. Discuss fees and cost arrangements with an attorney early, before problems arise to assure your protection.
Appeals
Workers' Compensation Judge decisions can be appealed to the Workers' Compensation Appeal Board and then to the Commonwealth Court and then to the Pennsylvania Supreme Court.
Fraud
The Act states that the failure to inform the insurance company of earnings or income is Insurance Fraud and it is a Crime. You must complete all forms honestly to prevent being subject to the fraud provisions of the Act.
Other Disability Benefits
You may be eligible for Social Security Disability Benefits or a Disability Pension from your employer or union.
Additional Remedies
If someone other than your employer is responsible, or even partly responsible, for your injury or disease, you may be able to sue that third party. The third party may be a manufacturer of unsafe equipment, or another contractor or its employee(s) that contributed to the cause of your injury.
COMMON QUESTIONS & ANSWERS
How long do I have to file an injury claim?
The general rule is that you must notify your employer (foreman, steward, someone in charge) within 120 days of the date you are injured. Assuming you have notified your employer within 120 days, you have 3 years within which to file your claim.
How long do I have to go to the "company doctor"?
You must treat with a doctor designated by your employer for 90 days from the date of initial treatment. After treating with a "company doctor" for 90 days, you may select a doctor of your own choosing for treatment.
Who are the "company doctors" ?
Your employer is required to post or notify employees of a list of 6 panel physicians. If your employer does not post or notify you of the list of "company doctors", called panel physicians, then you may seek a doctor of your own choice.
Am I covered if I get hurt "off the clock"?
Maybe. In general, you are not covered by workers' compensation while traveling to and from work, although there are some exceptions. You are generally covered if you are "on-site", even if not actually clocked in. For example, if you arrive to work 15 minutes early to get your tools together for work, you are probably covered. If you leave on your coffee break to buy a lottery ticket down the street, you are probably not covered. A second example is that you are probably covered if you park in an employee designated parking area and are traveling from the parking lot to the job site.
How long do I have to be off before I can collect lost wage benefits?
You will not collect for the first week off, the first seven calendar days. You are eligible to receive wage loss benefits starting the 8th calendar you are unable to return to work. If you are unable to return to work after 14 calendar days then you will receive the initial 7 days missed. For example, if your injury prevents you from returning to work for 1 to 7 calendar days, then you are not eligible for wage loss benefits for the first week. If your injury prevents you from returning to work for 8 to 14 calendar days then you are eligible for wage loss benefits for the second week. If your injury prevents you from returning to work for more than 15 calendar days, then you are eligible for wage loss benefits for the first, second and future weeks of missed work.
What if I had an injury, returned to work, then got re-injured?
Generally, an Aggravation of an old injury means you have a new claim. A Reoccurrence of the old injury means that you must re-open the old claim. This is a fine line that sometimes gets blurred, so it is often necessary to make both an old and new claim and let a Workers' Compensation Judge decide.
Can I sue my employer for my injury?
No. Your employer is immune from a lawsuit, other than Workers' Compensation, except for extremely limited circumstances.
Can I make a claim for pain and suffering?
No. A Workers' Compensation claim is for lost wages and medical expenses only. However, if there is some party other than you, your employer or a co-worker responsible for your injury, you may have the right to pursue a "third-party claim", which could include a claim for pain and suffering.
Can I be laid off or fired while I am on Workers' Compensation?
Yes. An employer is not required to hold open your job while you are off due to injury. But, most employers will not lay off or fire an injured worker to maintain the ability to offer alternate work.
Can my employer force me to return to work before I'm able to return to my regular duties?
Yes. The Act allows employers a wide range of control regarding return to work. An employer must first determine if alternate work exists with their company. The employer can offer, and even create, alternate work to match the restrictions of a doctor's release. If the employer does not have a position, then the insurance company may attempt to find you an alternate job. Refusal to accept an alternate position or to cooperate with attempts to locate an alternate position may suspend your wage loss benefits.
If you are contacted about returning to work and you are not sure what you are able to do, you should accept the position first. Refusal or delay may jeopardize your benefits. If you are unable to do the duties requested then you must tell your employer you need assistance or simply that you are unable to perform the duty and request other duties. This is a very complicated issue and the initial acceptance is only to prevent loss of benefits. You may still be unable to perform your duties or even the alternate duties. If so, you are entitled to be put back on wage loss benefits.
Can I receive payment for my travel expenses for medical treatment?
You can receive reimbursement for travel expenses to and from medical treatment only if, the travel is for "non-local" travel. Generally, Local Travel is defined as the area to which people in your area travel for the type of treatment you are seeking. Such expenses include train or bus fares, auto mileage, tolls and parking. Keep a record of your mileage and the receipts for fares, parking and tolls. A copy of these records should be submitted with your request for payment
Can I refuse medical care?
If a doctor recommends treatments, therapy, or an operation to "improve" your condition, and you refuse such treatment, your benefits may be in jeopardy. The Act requires that you accept reasonable medical treatment if it will improve your condition.
What if I am laid off after returning to work?
If you have a physical impairment, limitations or restrictions due to a work-related injury, and then are laid- off, your Workers' Compensation benefits should be reinstated.
CHECKLIST OF FACTS:
SEEK PROFESSIONAL ADVICE AT ALL STAGES OF YOUR CLAIM.
□ Report injury as soon as possible.
□ 120 days to report injury.
□ 3 years to file your claim.
□ Seek treatment from a posted doctor or provider
for the initial 90 days of treatment.
□ You can change doctors if not satisfied to another
posted provider.
□ After 90 days of treatment with the posted doctor,
you can pick your own doctor.
□ Notify the employer of the doctor chosen.
□ Keep the employer informed of your treatment.
□ Keep your records in one place.
□ Review documents from the insurer for accuracy.
□ Social Security Retirement, Unemployment, and
other pension benefits affect what you will receive
from Workers' Compensation.
□ Never sign any document without reading and
understanding it completely.
□ Supplemental Agreements and Final Receipts
affect your benefits, beware before signing. Do
not sign a final receipt if you are still treating or
have pain or limitations due to the work injury.
□ You must notify the employer if you have
earnings while on Workers Compensation.
□ Do not refuse employment. If you are unsure of
being able to do the duties then let the employer
know that you are willing to try the job. You can
say no later, but if you say no first then the
employer can claim you refused the offer in bad
faith and modify or suspend your benefits.
□ Do not settle claim without professional advice.
SEEK PROFESSIONAL ADVICE AT ALL STAGES OF YOUR CLAIM.
Prepared by
STEPHEN J. O'BRIEN, ESQ.
412-788-7560 412-780-2623
sjoatty@hotmail.com
website: sobrienlaw.com
650 RIDGE ROAD, SUITE 400
PITTSBURGH, PA 15205
