December 2004 Email Newsletter
'Twas the Month Before Christmas
The BSH Newsletter
Medical Treatment during Work Hours
Financial Help for Injured Employees
Social Security Disability Benefits and the Injured Worker
Vehicle Itself not an "Orthopedic Appliance"
Seminars
'Twas the Month Before Christmas
'Twas the month before Christmas (or an account of the havoc to be wreaked by PA's legislature)
by Barbara Holmes- with apologies to Clement Clark Moore or Major Henry Livingston Jr.
'Twas the month before Christmas and all through the Chamber
Legislators considered just how to take aim for
The rights of the workers who toil in our state
To amend the work comp law before it's too late.
But the perils of Pittsburgh and mass transit woes
Occupied those reps who are injured workers' worst foes.
So the session adjourned with nary a change
But that status quo will soon be rearranged.
And what will befall those injured at work?
And what other duties will comp carriers shirk?
The presumed amendments are wide in their scope
And leave those who are hurt with few options, less hope.
First comes the panel of company providers
Doctors, therapists, chiropractors, seeming insiders
Whose treatment for 90 days by law is required
Even if their recommendations are less than inspired.
Those in Harrisburg chambers who deal with the Act
Want to DOUBLE that time--Take that as fact!!
Six months, that is, one hundred eighty days
They want injured workers bound by panel ways.
The negative impact of this implementation
Will hurt medical care and legal representation.
The first may seem obvious and so it should
Since 90 days of such care does injured workers no good.
The goal of providers seems less to address
The complaints of the injured, their pain and their stress,
And more to be certain on the list they remain
Releasing injured workers as recovered, ignoring their pain.
Or seeing them for the limit of the days they're allotted
Without even a test or a treatment plan plotted.
No MRI's ordered--too expensive you know
Regardless of whether herniated discs it would show.
Doctors who know how to treat those in pain
Will tell you lost treatment time cannot be regained.
And so to extend it yet ninety days more
Will harm workers whose injuries doctors need to explore.
The impact of this on workers' legal rights
Is plain, for you need medical to win the fight.
Just how much help will the comp doctor be
When his financial interest is opposite that of the patient he sees?
Many lawyers will not want to file a Petition
If they cannot get strong medical ammunition.
So the worker who's injured may get tossed to the side
While legislators boast of cost savings with pride.
But the Legislature's members don't plan to stop there
For the Supreme Court of PA they don't plan to spare.
The law requires IRE's to be held within a time certain.
But the law as its drafted, well comp carriers it's hurtin';
Appeals to the Courts have gone claimants' way
So our state representatives carriers sought to persuade.
An amendment will issue, time limits will change
And the only rights trampled will be workers'-how strange!
The moral of this poem is plain this Holiday night:
EACH OF US MUST JOIN IN THIS FIGHT!
The BSH Newsletter
Happy Holidays from your friends at Blaufeld Schiller & Holmes, LLP!!!! In each coming issue of our Email Newsletter, we will be writing about Workers' Compensation and Social Security Disability issues in an effort to better educate our union friends and clients. As you well know, a united and informed workforce is the best protection for an injured worker.
Each newsletter will include articles about a specific aspect of workers' compensation or social security, as well as information on recent court decisions. The newsletter will also list upcoming seminars and dates when our attorneys will be in your area for consultation. Please note that if you, or one of your members, need to speak with our attorneys, we are always on hand at (800) 343-9384. Call anytime, and we will be more than happy to assist you. Local appointments are available.
If you have any specific topics or questions that you would like us to address in our newsletter, please email us at bsh@bshlaw.net or call us at the above listed number. Our goal is to be your resource for questions about workers' compensation and disability, so please contact us at any time.
Please feel free to print a copy of this newsletter and give it to anyone who might benefit from the information it provides. You are also welcome to provide the names and email addresses of anyone who would like to receive our newsletter. Past editions of our newsletter will be archived at our website, www.bshlaw.net, for your review. Our website also provides detailed information about our attorneys and the services we provide.
Since 1981, Blaufeld Schiller & Holmes, LLP has represented the working men and women of western and central Pennsylvania. We are passionate about our work, and value our friends and clients. We hope you find this newsletter helpful. We look forward to working with you!
Medical Treatment during Work Hours
Many injured employees are under the impression that the fact they are treating for a work-related injury means that any time off due to that work injury, including time for doctor's appointments and other medical treatment, is paid for by the workers' compensation insurance carrier. Please note that this is not always the case, and an injured employee should be aware of the types of circumstances that will have an effect on payment.
First, please remember that workers' compensation is paid on a weekly basis, not daily or hourly. If an injured employee misses an hour or two from work for physical therapy or a doctor's appointment, they are not reimbursed by the workers' compensation carrier for that hour or two. Rather, the employee's wage for the week needs to be compared with that employee's average weekly wage; if there has been a raise since you returned to work, there is a possibility that an injured employee could miss an hour or two and not be paid a partial for the week because the total weekly wages would be greater than the average weekly wage pre-injury. In that circumstance, nobody pays the injured employee at all for the lost time.
Second, a key in deciding whether an individual is entitled to compensation for time lost from work as a result of medical treatment is whether that treatment is also available to the injured employee outside of work hours. If so, and the employee chooses to go during work hours, there will not be any partial benefit paid, even if the injured employee suffers a wage loss. The insurance carrier is not required to pay an individual for time off scheduled at the employee's convenience. A recent Commonwealth Court case to this effect held that, where the treatment is of the type available after hours-physical therapy or aqua therapy, for example, where the therapy offices are open from early in the morning until later in the evening-there is no requirement other than the employee's choice or convenience that this therapy be performed during work hours. A Judge will not order compensation under those circumstances.
If, however, the treatment is only available during the employee's usual work shift, or if the company schedules the doctor's appointment-even though we have advised that injured employees should not allow their employer or the carrier to schedule the appointments-then the employer/carrier is choosing the time for the appointment and the appointment is at the employer's or carrier's convenience. This lost time should be paid. Additionally, any insurance medical evaluations, or tests that must be performed at a certain time of the day (after fasting from midnight, for example) should also result in a payment for lost time.
Finally, if the injured employee's physician (or the company doctor) indicates that an injured employee is not permitted to work a full day and go to therapy, any time lost due to therapy should be paid. A doctor may feel that eight hours' use of an injured shoulder-two at therapy and six at work-is sufficient during a treatment phase. Therefore, the wages from the weeks in which the injured employee has this therapy should be compared to the pre-injury wage to see if there has been a wage loss, and the appropriate partial paid.
It would seem that all time lost due to treatment for a work injury is compensable. Unfortunately, the Commonwealth Court of Pennsylvania has recently made plain that this is not the case.
Financial Help for Injured Employees
When an employee is out of work due to an injury, finances often become "tight," particularly if the workers' compensation insurance carrier does not voluntarily accept the employee's compensation claim. Then, not only is the stress of workers' compensation litigation involved, but the employee-and his or her family-face the financial concern regarding payment of bills and "making ends meet." A Union Counselor can help under these circumstances, if they are aware of other alternatives that may be available to an injured employee. The other alternatives include:
Unemployment Compensation: If an employee is released to work with restrictions and limitations, but the employer will not make work available, or does not have a light duty program to make modified work available, an individual can sign up for unemployment benefits. Of course, unemployment benefits are taxable, where workers' compensation benefits are not. However, if an employee has a family or needs to meet expenses, this can be a viable alternative if the employee is ready and available to work, albeit with modifications.
Sickness and Accident Benefits: At times, when an employee reports an injury, the employer will ask whether that employee wishes to go on Sickness & Accident. Again, this is a taxable and limited benefit, and the employer gets a credit for the benefits paid if the employee ultimately gets workers' compensation benefits as a result of the same injury. However, these benefits are often available to those whose injuries are not work-related, so if there is litigation on-going and no acceptance or findings of a work injury, it may be beneficial to apply. A doctor will likely have to verify on-going disability.
Mortgage and Other Loan Disability Insurance: Many loans include the payment of disability insurance in the event of circumstances such as a work injury. If an injured employee will be out of work for a period of time and without benefits-or even if they do get workers' compensation benefits-that employee should contact the lender immediately. Again, there may be some medical verification necessary for the lender to be certain there is an actual disability at issue, but this insurance makes payments or part of payments toward these large outstanding debts. The types of loans that may carry this insurance include mortgages, car loans or certain types of credit lines. Again, this information may not be readily available, and the injured employee should contact the lender.
Consumer Credit Counseling: When an individual suffers an injury, the bills do not stop coming. Sometimes, because the employee is off work, they turn to credit cards and other such alternatives to keep afloat. If an employee experiences problems with bills which are turned over to collection agencies, or if they default on loans, it can be helpful to contact a local consumer credit counseling agency. This agency can often work with the individual and the creditors in order to see what can be accomplished about outstanding bills without "breaking the bank."
A union officer or compensation committee member's role can expand to encompass many things. Knowing how best to help injured employees does not always mean knowing workers' compensation laws- sometimes it means knowing how to help people find other alternatives for help. These are some ideas about ways you can be useful-make that indispensable!
Social Security Disability Benefits and the Injured Worker
There is potential for injured workers who have been out of work for a period of time to qualify for Social Security benefits. Again, like workers' compensation, it is beneficial for anyone applying for Social Security to be represented by an attorney who practices in the field of Social Security, because that law (like most others) has its own special requirements, and specific medical opinions regarding the individual's disability are crucial to a favorable outcome.
In order to obtain Social Security benefits, an individual must be "totally and permanently disabled," as defined by the Social Security Administration. This means that the individual must be unable to perform the time of injury job as well as any other jobs performed in the past fifteen years-this is an individual's "past relevant work." If the applicant can meet this threshold, they must then show that they are unable to perform any other work that is available in the national economy. This is a very difficult burden because Social Security takes into account whether a person can perform jobs that are sedentary in nature, and allow the injured worker to change position as needed throughout the day; many Social Security Judges have a difficult time believing that an individual cannot hold this type of job, regardless of how severe their injury, or how much pain they suffer. Again, this is why it is important to have an attorney familiar with Social Security to assist in your case. The Judge must properly evaluate the law, the medical and the individual's abilities and disabilities, and an attorney who specializes in Social Security knows how to make the most of his or her client's case in each of those areas.
If an injured employee-or anyone else unable to work due to a medical condition-believes or is told by a physician that they will be out of work for at least twelve months, it is common sense to apply for Social Security benefits. The individual must have worked for a certain period of time over the past ten years--called "quarters of coverage" in Social Security's terminology--and have paid into the Social Security system, to be eligible for disability benefits. Those who have not worked for the required coverage period may be eligible for SSI, or Supplemental Security Income benefits. SSI benefits are based on need and on disability. An application for either of these types of benefits needs to be filed at the individual's local Social Security District Office. Many times this information can be taken over the telephone.
Once an application is filed, Social Security sends a number of papers for the applicant to complete, which outline all of the jobs the applicant has held over the last 15 years, the medical conditions they suffer, the doctors they see, and other related information. Please understand that, in the case of an individual with a work injury, any medical condition that applicant suffers is relevant, not just the work injury. For example, if the injured employee has a back injury, and that is why they are no longer working, that condition is the only condition relevant to workers' compensation. Social Security will be interested in that back condition, as well as diabetes that person may have, and depression that has developed. All of those will be considered by Social Security in reaching a decision about disability. However, simply saying an individual suffers from these conditions is not enough; they need to be getting medical treatment for them in order for Social Security to consider them relevant for disability consideration.
The Social Security Administration takes about three to four months to consider the initial application. During that time, the Administration is requesting medical records from the applicant's treating doctors. Please understand, however, that Social Security will still make a decision if it cannot get the medical evidence it needs. Many doctors do not respond in a timely fashion, and Social Security will reach a decision, even if the treating doctor's records are not a part of the file.
If an applicant's benefits are denied, and that individual remains off work, it is best to contact an attorney immediately, and get that attorney's assistance in filing an appeal. Social Security used to have an intermediate step, the reconsideration, where another level of the Administration reviewed the application for disability. Now, most denied claims go straight to the Hearing Office, for a hearing before an Administrative Law Judge. Please understand that it can take up to a year for this hearing to be scheduled due to delays in the Administration. Hearings are held as close as possible to an individual's home, so people from Erie do not need to come to Pittsburgh for hearings. However, this can sometimes have an effect on when the hearing will be scheduled, as a Judge will not necessarily come north for one or two hearings. Prior to these hearings, the claimant's attorney obtains as much medical information as possible to support a grant of benefits based on disability. At the hearing, the applicant testifies about all of his or her conditions, often describing a "normal" day's activities to the Judge. A vocational expert is present for the Judge to question about the claimant's past jobs, and about any jobs in the national economy that the applicant can perform. The claimant's attorney then can also ask the vocational expert about the jobs in the economy, and his/her client's specific limitations and restrictions. After the hearing, the Judge issues a written decision, explaining why benefits will or will not be awarded. A denial of benefits can be appealed to the Appeals Council, an appellate body within Social Security itself, and ultimately to the Federal District Court, for consideration.
As always, an individual wishing to obtain benefits needs to have an attorney who can assist with questions and problems. Social Security has specific definitions and requirements that make it extremely complicated and the majority of applicants are initially denied benefits. The chance of obtaining benefits improves with an attorney who is knowledgeable about this area of the law, and who knows how to get the medical information required by the Administration to show disability. Attorney's fees in these cases are contingent, and based on a percentage of past-due benefits. Therefore, anyone whose application for Social Security benefits is denied should contact an attorney and retain a lawyer.
Vehicle Itself not an "Orthopedic Appliance"
Can an injured employee require the carrier to buy him a van and retrofit it to accommodate his disability?
Facts: In Griffiths v. WCAB (Seven Star Farms, Inc), the claimant was rendered a quadriplegic as a result of his work injury. The insurance carrier failed to make payment for the rental and subsequent purchase of a van that included a retrofit to make it wheelchair accessible, and so a Penalty Petition was filed. The claimant was actually reimbursed eighty percent of the cost, but argued that the carrier was responsible for the entirety of the cost under the provisions of the Act which require reimbursement to the claimant in full and not at any re-priced amounts for out-of-pocket medical expenses.
Initial Ruling: The Workers' Compensation Judge granted the Penalty Petition and ordered the employer to pay the full cost of the van, the retrofitting to make it wheelchair accessible and the cost of the rental of the van. The WCJ also awarded interest on the unpaid charges and counsel fees.
Appeal Board Ruling: The Board reversed the Judge's award of payment in full for the van itself, but did require the compensation carrier to pay the full amount of the retrofitting to make it wheelchair accessible.
Court Rationale: The Commonwealth Court affirmed the Board's decision that the van is not an "orthopedic appliance" under the Act, but affirmed that retrofitting of a vehicle is considered to be an "orthopedic appliance" under Section 306(f.1) of the Act, which relates to medical expenses. The Court cited to Petrilla v. WCAB (People's Natural Gas), long-standing precedent that held that the purchase price of a vehicle is not reimbursable as a medical expense. The Court quoted Petrilla, noting that "the general use of a vehicle…must be distinguished from the retrofitting of that vehicle, without which the vehicle could not be operated by the claimant." The Court analogized to the remodeling of a home that needs to be accomplished to accommodate the use of a wheelchair: the remodeling is compensable, but the purchase price of the home is not a medical expense within the meaning of the Act.
The Court also reversed the Judge and Board and held that Mr. Griffiths was not to be reimbursed in full for the retrofitting payments that were made. Rather, under the Act, the eighty (80%) percent reimbursement for payment of an "orthopedic appliance" is the sum total to which the claimant was entitled, even though that "cap" seems, under the law, only to extend to actual health care providers. Two Judges dissented, arguing that the cost containment provisions of the Act which cap such payments to health care providers do not apply, because said "providers" did not perform the services of retrofitting.
This case should persuade claimants not to pay out of pocket for these types of expenses, as they may not be reimbursed in full for those expenditures, even though they are not, themselves, considered to be "health care providers."
Seminars
Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.
FREE Seminars for your union or group are also available.
Happy Holidays!
If you wish to be removed from the BSH Email Newsletter list, please call or email our office.