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The Law Offices of Attorney Daniel W. Stern - Worker’s Compensation Attorney

York Workers Compensation Attorney

Worker’s Compensation Lawyer York, Lancaster, Harrisburg, Cumberland

Workers Compensation Lawyer

If you are injured on the job, you may be eligible for medical benefits, wage replacement benefits and other specific loss payments from your employer's workers' compensation program or insurance carrier.

SPECIAL NOTICE TO LAID OFF INJURED WORKERS

INJURED THEN LAID OFF?

Attention LEAR Corp., IAC, GM, Taylor Wharton, Commodore, Crest Homes, Pfaltzgraff, Flexsteel, Miller Building Systems, Deluxe, and Seton employees and others who have lost their jobs through no fault of their own: If at the time you lost your job you were under physical restrictions or limitations from a work-related injury, you are probably entitled to wage loss benefits under our workers compensation law. Pennsylvania law specifically provides that an injured worker who loses his or her job through no fault of his own, such as a plant closure or reduction in force, is entitled to reinstatement of full temporary total disability benefits until such time as he recovers or is re-employed. Many employers and insurers fail to advise laid off employees of this important right. Please call the office immediately if you have been laid off from your job while on restricted or light duty arising from an earlier workplace injury.

Who is Eligible to Receive Benefits?
You are entitled to workers' compensation benefits if you can prove two things: (1) you have been injured during the course and scope of your employment - that is you were on the job or on the employer's premises; and (2) your injury is related to your employment - it was caused, aggravated or accelerated by the job.

Most disputed claims involve the second issue - is there a "cause and effect" relationship between the job and the physical or mental injury or disease claimed by the worker? In other words, is the injury work-related? Sometimes the answer is obvious. For example, if you are severely injured by a piece of machinery at work, the company will probably agree that your injury is work related. However, in many cases your injury or illness may be an aggravation of a pre-existing condition, or may represent the onset of a condition which might have occurred in the future, but which happened sooner because of something that happened in the workplace. For example, strenuous work might cause a heart attack in a person who has heart disease; a hot, dusty environment might aggravate the symptoms of asthma; or heavy lifting might further injure a bad back.

In these cases, you need a medical or chiropractic expert and the services of an attorney to prove your case. A medical witness is needed because only an expert is allowed to give an opinion regarding the effect of the work on your body.

Why Has My Claim Been Denied?
Depending on your boss, your company, and the particular insurance adjuster assigned to your case, your claim may be denied, even though you are pretty certain your injury is work related. The following types of claims are often denied, erroneously, by the insurance company: Claims involving a pre-existing condition (the carrier blames the pre-existing condition); overuse injuries such as carpal tunnel syndrome, tendonitis, shoulder, knee or back problems (the carrier says there is some other, or unknown, cause); cases where there is a time delay in reporting your injury or visiting your doctor (carrier says something else must have happened in between the work related event and the reporting of it) or the claim involves a claim of hearing loss caused by industrial noise (company says loss had other causes).

These factors may lead to a denial of your claim even if you were hurt on the job and the injury was related to your work. It is a mistake for you to think that just because you never felt pain in a particular part of your body before an incident at work, or because you never had a physical or mental problem before, your employer will 'automatically" accept your claim. It will almost never do so without first getting a medical report that supports the claim.

If your claim is denied, it is the job of you and your attorney to prove that work was the cause of the problem or was a substantial factor in bringing about your problem. Work does not have to be the only cause, but it must be a substantial factor.

What Benefits Are Available?
There are five kinds of benefits available to injured workers.
  1. Medical Benefits - Workers' compensation will pay for reasonable and necessary medical treatment that is related to the work-injury. Your doctor needs to submit the necessary medical report form. If your doctor is not sure what to do, ask him to contact your attorney's office.
  2. Wage Replacement Benefits - Workers' compensation will pay for wages you have lost or will provide a supplement if you must work at reduced wages. In general, this benefit is equal to 2/3rds of your pre-injury weekly wages up to a statewide maximum. These benefits are not taxable. No benefits are paid for the first 7 days of disability. If your injury disables you for 14 days or more, you get paid from day one.
  3. Specific Loss Benefits - Workers' compensation will pay if you have suffered the loss of use of a part of your body, and the loss is complete for all practical intents and purposes. Proving these losses also involves a medical opinion, except in clear cases. This benefit is separate and payable in addition to any wage replacement or medical benefits. The amount you receive is based on your pre-injury average weekly wage, multiplied times the number of weeks written in the law for the body part or function which has been lost. Losses of sight and hearing, due to exposure to loud noise, are also covered.
  4. Widows' and widowers' benefits, where the injury results in the death of the worker.
  5. Penalties which can be assessed by a Judge against the insurer if it violates the law by failing to pay benefits on time, or failing to pay medical or prescription expenses incurred because of the work-related injury.

The following losses, while real, are not covered: Pain and suffering, loss of pleasure in life, mental anguish, and decreased future productivity. In the usual nonfatal claim, only lost wages and medical expenses are involved.

How Long Do My Benefits Last?

Total Disablity Benefits:
The answer to this question depends on when you were injured. If you were injured on or after June 24, 1996, you can get total disability benefits for 104 weeks or 2 years. After 104 weeks, your claim may be re-evaluated based upon a medical evaluation. If at that time you are found to have more than 50% impairment of your whole body function as measured by certain American Medical Association guidelines, then you will continue to receive total disability benefits. However, the new guidelines are so strict that few workers will qualify as totally disabled. For example, if you have a back injury such as a herniated disk, causing back and radiating leg pain, confirmed by medical tests, this will result in a whole body injury of only 10% under the new guidelines - although the injury may clearly prevent you from working.

If the insurer requests the impairment rating at the right time, and your impairment is rated at less than 50% of your whole body, then the insurer can change your status form "totally disabled" to "partially disabled." This change is important. It will not automatically reduce the amount of your weekly benefits, but it will reduce how long you can keep receiving them. Partial disability benefits last a maximum of 500 weeks, which is 9.6 years. It doesn't matter if you are still partly impaired or injured at the expiration of the 500 weeks; the wage loss benefits stop (but the medical coverage related to the injury continues, indefinitely). If you were injured before 6/24/96, then the 104 week limit on being totally disabled does not apply to you.

Partial Disablity Benefits:
There are other situations involving partial disability benefits, in addition to the "impairment rating" described above. Injured workers, who no longer qualify for total disability, may receive "partial" disability benefits based upon 2/3rds of the difference between their pre-injury wage and their earning capacity. Under the new (1996) law, earning capacity is not based on earnings from an actual job. Instead, earning capacity is based on what a vocational expert says you might earn from a job. You are entitled to a hearing before your benefits are reduced, unless the reduction is based upon an actual return to work and your receipt of wages. You can receive these "partial disability" benefits for a maximum period of 500 weeks. For example, if at the time of your injury you earned an average weekly wage of $750 (before taxes) and the injury reduces your earnings to $450 per week, you have suffered a loss of $300 ($750 - $450 = $300). Workers' compensation will pay you two thirds of your loss, which in this example is $200 - subject to the same 500 week limitation on the receipt of partial disability benefits. Like all workers' compensation, the amount is not subject to federal income tax. The 500 weeks does not include any time you were receiving total disability benefits.

Job Referrals
If your company believes that you are capable of working but says it has no work for you within your physical restrictions (or those set by the IME physician), it has the legal right to refer you to jobs which you are capable of performing. It may ask that a vocational specialist interview you. You should cooperate with the interview, which can be done in your attorney's office. You have a duty to act in good faith in connection with any job referrals that are made. If you ignore them or act improperly during the application or interview process, you leave yourself open to a claim of bad faith which may result in the reduction of your benefits.

Reporting Requirements
The insurance carrier may send you "verification of eligibility" forms and other documents asking about other income or benefits you may be receiving. You need to send this back within thirty days or your benefits may be suspended. Likewise, if you are receiving wage loss benefits and return to work, you need to promptly notify the insurer.

Continuation of, and Challenges to, Your Medical Bills
Under both the new and the old laws, your right to receive medical benefits continues as long as it is agreed upon or proven that you are still suffering from a work-related injury. The company may challenge the reasonableness or necessity of your medical treatment by filing a request for "Utilization Review." The bills will not be paid pending the outcome of the review. You and your doctor can also request a "Utilization Review" if there is a dispute over the need for future medical treatment, such as surgery. When an insurer files a request for Utilization Review, the bills in question do not have to be paid pending the outcome of the review, which is performed by a doctor who never sees you, but who is supposed to collect and review all of your medical records from your doctors. If your doctor fails to send the records in time, the treatment is deemed unnecessary, and the insurer is excused from paying for it. Your only opportunity to be heard in this situation is to write a letter to the reviewer assigned to your case. If the review is decided against your doctor, he or she remains unpaid; but you cannot be sued for the unpaid bill. This is cold comfort' what doctor will want to continue to treat you without getting paid?

The second way the insurer can dispute its obligation to pay for medical bills is to deny that they are related to your injury. But it runs a risk if it does this, because if a Judge later determines the unpaid bill really was incurred because of the injury, the insurer must pay the bill, interest, and is exposed to penalties of up to 50% of the unpaid bill. You may also receive an attorney fee award if the Judge finds the insurer acted unreasonably.

Choice of Doctor Independent Medical Examinations
Your company may require you to select your doctor from a list of physicians or health care organizations which is posted in your plant or office. To limit your right to choose a doctor, your employer must obtain your signed acknowledgment on a notice that explains your duty to treat with one or more of these listed doctors. The company cannot force you to go to any doctor on the list, but it may limit its responsibility to pay your bills if you do not select a doctor from the list.

Your employer can require you to treat with one or more doctors on the list, which must contain at least six health care providers, for up to the first 90 days of treatment. After that time period, you may select your own doctor, but you must notify the employer of the switch within 5 days of your first visit.

You are entitled to a second opinion from a doctor of your choice if surgery is recommended even within the first 90-day period.

The law gives the insurance company the right to have you examined by a physician selected by it. This can happen twice per year. You are entitled to reimbursement for mileage expenses in connection with this exam. (Ordinarily, local mileage to the treating doctor is not reimbursable).

The "independent" examiner is not responsible for treatment, and by law he or she is not your doctor. Nonetheless, it is essential that you attend the examination on time, and that you be truthful and cooperative in giving your history and in being examined. Do not argue with the doctor or try to prove your case. Never exaggerate your symptoms to make a point. Your lawyer will be entitled to receive a report of the examination. It is a good idea to write notes after the exam about anything you believe to be important, including the time spent with the doctor, the questions asked, and the scope of the physical examination. It is illegal to attempt to tape record the exam. You may ask that your spouse accompany you, but if the doctor objects, we suggest that you not argue. You have the right to exclude any insurance company representatives from the actual examination.

What Are The Deadlines?

It is critical that you meet these deadlines to notify your employer or file a claim:
  1. You must notify your employer within 120 days of the date of the injury. If you do not, the claim will be lost. You should give notice immediately. Legal notice means you tell the employer (not just your coworkers) that you got hurt as a result of your job. The notice can be verbal, but a written report or letter is better, because no one can deny that it was given. If you wait more than 21 days to give the notice, you will not be entitled to wage benefits until the notice is given.
  2. You must file a Claim Petition with the Workers' Compensation Bureau within 3 years of the date of the injury.

You do not have to file anything if your employer or your employer's insurance company has accepted your claim. However, make sure you have proof that the claim was accepted. You should have either a Notice of Compensation Payable or a signed Agreement for Compensation. These are standard forms and are usually on yellow paper. Warning: Just because your employer or insurance company is paying your medical bills does not mean they have accepted you claim. The three year deadline or statute of limitations continues to run, from the date of the last medical expense paid by the insurer, unless you have a Notice of Compensation Payable or signed Agreement for Compensation.

Can I Sue My Company?
The simplest answer is no. The same law that gave you workers' compensation coverage also gave your employer immunity from most lawsuits. This means that except in a few situations, you cannot sue the company that employs you even if it was careless or negligent, or even if it was in violation of the law. You also cannot sue your co-workers for any negligent or careless acts done at work.

There are a few exceptions to the no suit rule.

  1. Federal and State law allows you to sue if you are discriminated against based on age, sex, race or national origin.
  2. The Americans with Disabilities Act also allows to sue if you are discriminated against based on your disability if you could perform the essential functions of your job with or without a reasonable accommodation. Notice must be given to the right agency within 6 months of the discriminatory act.
  3. If you are injured as the result of a defect in a machine or a product manufactured by someone other than your employer, you can sue the manufacturer or seller for your injuries. Warning: The statute of limitations for this kind of claim is usually 2 years from the date of the injury.

Can I Get Fired for Filing My Claim?
The Supreme Court of Pennsylvania has held that Pennsylvania is an "employment at will" state. Without a written employment contract, such as a union contract, specifying the grounds for termination, you can be fired for filing a workers' compensation claim. However, the court has also held that if you are fired for this reason, you have a right to sue the employer for wrongful discharge. Because the employer is subject to suit for firing you in retaliation for the exercise of your right to file a claim, it is unlikely that you will in fact be fired for doing so - but there is no absolute guarantee that you won't be.

What About a Lump Sum Settlement?
In certain cases your employer or insurance company may wish to settle your workers' compensation claim for a lump sum monetary payment. There are several ways to settle a claim, and both of them require the voluntary, mutual agreement of all parties. A settlement may or may not be a good idea, depending upon your individual situation, including your ability to work, your other sources of income, your medical condition and any other ongoing litigation.

If you decide that it is in your best interest to settle your claim, you must decide if you wish to settle the lost wage part of your claim, the medical benefits part of your claim, or both. Settlements are accomplished when both sides sign a "Compromise and Release Agreement" and the agreement is approved by a Workers' Compensation Judge following a brief hearing at which you testify to the fact that you understand the rights your are giving up in exchange for the settlement amount. Evaluation and negotiation of the settlement takes skill and experience. The vast majority of injured workers' get a better deal, even after the payment of fees, if the have an experienced lawyer, then if they negotiate without a lawyer. People who are receiving, or hope to receive, social security disability benefits have to be particularly careful about how to word the agreement so as not jeopardize those benefits.

What you should do: Do not agree to sign any settlement agreement without having it reviewed by your attorney.

Checklist for Worker's Compensation Claims
You are the most important factor in the success of your claim. Take the following steps to protect your rights if you are injured at work.
  • Promptly report the injury to your supervisor or foreman. Be sure to explain that the injury was caused or aggravated by the job
  • Ask that a written accident report be filled out and request a copy for your records. Just because you are making a report does not necessarily mean that you are filing a claim. However, it will protect your interest if a claim is necessary.
  • Get medical attention. Tell the doctor exactly how you got hurt and what the work on your job involves. Be sure to tell the doctor if you have had problems with that part of your body and explain how your work has affected any pre-existing conditions.
  • Keep copies of all documents that the doctor gives you. Many times the doctor will give you a paper to take back to work. Make sure you read and understand it before you leave the office. Make a photocopy of this document for your file and give the original to your employer.
  • If you do not receive written verification of the acceptance of your claim from your employer or it's insurance company within 21 days, call our office.
  • The law requires that the insurance company act within 21 days. If your claim is denied, you will receive a written Notice of Denial directly from the company. If the company is going to accept your claim, it should mail you a form called a Notice of Compensation Payable or an Agreement for Compensation.
  • If you are receiving benefits and return to work, you may be asked to sign a document. Do not sign any agreement to stop your workers' compensation benefits (also called a "final receipt") without consulting an attorney. If you are working light duty or at reduced wages or hours because of the injury, the appropriate form is a yellow "supplemental agreement," provided it is accurate. When in doubt, have it reviewed by a lawyer before signing.

Fees and Costs
Our office does not charge a fee to review your case. We will need to see copies of all documents that relate to your claim, medical reports, accident and injury reports and documents sent to you by your employer or the insurance company.

What will it cost? Most workers' compensation cases are handled on a contingency fee basis. The fee is a court approved percentage of benefits and is paid if and only if we are successful in recovering them for you. If you are receiving benefits and the company is seeking to terminate or reduce them, the fee is the same percentage and is based upon the successful defense of your right to continue to receive benefits. You also have the option of paying us an hourly rate for this work.

A workers' compensation judge must approve any fee agreement with your attorney. The courts have approved a 20% fee as being reasonable. There are often other costs involved in your case. Doctors almost always charge fees for sending copies of your records, writing reports or giving testimony. The fee agreement should be clear about who is responsible for these and other out of pocket costs.

 
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