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December 2005 Email Newsletter

The BSH Email Newsletter
How Union Representatives Can Assist Injured Workers
Private Health Insurance and Work Injuries
Residency Requirement for Modification of Benefits
Oral Settlement Agreement

The BSH Email Newsletter

Happy Holidays from your friends at Blaufeld Schiller & Holmes, LLP!!!! The Blaufeld Schiller & Holmes, LLP Email Newsletter is our effort to better educate our union friends and clients about Workers’ Compensation and Social Security Disability issues. As you well know, a united and informed workforce is the best protection for an injured worker.

Each newsletter includes articles about a specific aspect of workers’ compensation or social security, as well as information on recent court decisions. The newsletter also lists 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. Thank you for allowing us to serve you!

How Union Representatives Can Assist Injured Workers

Workers’ Compensation can be very confusing, and a well-informed and active Union Representative is an invaluable resource both before and after a work injury. Union Representatives can assist injured workers by:

Keeping an eye out for safety hazards. All hazards should be reported. While it is true that some unsafe conditions are not noticed until after someone is hurt, a quick inspection can point out a machine that is not operating properly, or a crack in the floor that is "an accident waiting to happen." Please understand that because workers’ compensation is a "no fault" system, there is no additional compensation if an employer fails to fix a hazard or ignores a warning about a problem. However, keeping an eye on these conditions can prevent someone from being hurt in the first place. (Please note that malfunctioning equipment may give rise to a third party lawsuit; however, if the employer has “fixed” the machinery or made modifications to it, the liability of the manufacturer may be limited, if not eliminated.)

Making sure workers know who you are and that you are available. Some workers have no idea who the union officers are, or that a workers’ compensation committee exists, or what the officers and committee can or will do to assist them. Make your presence known! See if you can get a bulletin board to put out information about events, and let employees know that you are there to assist them. Make sure all employees are aware of the requirements they must meet for workers’ compensation: reporting injuries, seeing the company doctor, etc. Put this information where it is readily available. Offer to go with the injured employees to report the injury and even to the doctor if necessary. Keep copies of the employee’s documents, and try to have copies of relevant paperwork—accident reports for example—on hand, to help with the completion. Many employees are injured only once, and they are left to go through "the system" alone. If you can help them with the procedures, it all may go more smoothly.

Being proactive. Don’t wait until seven injured employees complain about the same supervisor refusing to complete injury reports, or the same doctor or pharmacy. Listen to the complaints, and see what can be done about them as early as possible. Note: We would be happy to help you with this! Try to anticipate problems, and advise injured employees about pitfalls.

Staying educated. It is important to stay up-to-date about the law. This does not mean reading every case or getting on the internet every night. Rather, it means going to seminars and union meetings where workers’ compensation is being discussed. It means asking questions or calling the attorneys if you have a question, or need clarification of an issue. It means being willing to spend a little extra time on updating yourself on relevant information, admitting what you may not know and trying to find out!

Being aware. If someone has a heart attack after going home from a physically strenuous day at work, is it a work injury? What chemicals was an employee working with before he/she passed out? What physical requirements does an employee’s job have that could be modified, so that someone with the use of only one arm for a period of time can return to their position? What light duty is available? Who has seniority such that they can bid into an open position? You are the eyes and ears of injured workers who are out of the plant due to their injury, and the eyes and ears of an attorney who may believe an incident or injury could be compensable. Be aware, and ready for action!

A union officer or compensation committee member’s role can expand to encompass many things. The workplace is where that position starts. These are some ideas about ways you can be useful—make that indispensable!

Private Health Insurance and Work Injuries

Workers’ compensation can sometimes be a "hassle" for those who suffer a work injury. It certainly seems to be far simpler, if an individual suffers a slight injury at work and needs only minimal treatment, to use the private health insurance already in place to make payment of the bills. What could go wrong? Unfortunately, many things, all of which will make a workers’ compensation claim far more complicated.

First, as you likely know, most employers have a list of panel physicians that an injured employee must treat with. These doctors may not be in an injured employee’s network of providers under the private insurance carrier. Therefore, if there is no "referral" from the injured workers’ primary care physician, the cost of the treatment by these physicians may not be paid to the extent required by the plan, or may not be covered at all. At best, the injured worker may need to get a referral from the PCP for every visit, which would mean there would be two charges for this treatment. Most private health plans have a co-payment for any office visits, which means that the injured worker would be “out of pocket” for the amount of this co-payment. WITH WORKERS’ COMPENSATION, THERE ARE NO CO-PAYMENTS. NO INJURED WORKER SHOULD PAY OUT ANYTHING FOR OFFICE VISITS OR PRESCRIPTIONS FOR THE INJURY.

If the injured worker needs to have diagnostic tests, or to see a specialist, the private insurance carrier again may have limits on the types of testing that are involved, or the specialists that can be seen. If the coverage is provided under the private health plan, a referral may again be necessary, which might mean an office visit to the PCP. This would, of course, involve additional co-payments. Most private health insurance plans have a deductible an individual must meet in order for a greater amount of the billing to be paid by the private carrier. This means that an injured worker would have to pay out that money before the private carrier makes payment. This is an unnecessary expenditure under workers’ compensation, and plainly a difficulty for an individual who may not be working, or who is working reduced hours. Similarly, an individual filling a medication prescription through the private health plan would also incur a co-payment for medications; under some plans, and with some drugs, this co-payment can be $25! WITH WORKERS’ COMPENSATION, THERE IS NO CO-PAYMENT FOR MEDICATION, AND NO DEDUCTIBLE. PRESCRIPTIONS ARE PAID BY THE CARRIER, WITHOUT ANY PAYMENT BY THE INJURED EMPLOYEE, REGARDLESS OF WHETHER THE MEDICATION IS NAME BRAND OR GENERIC. THERE IS ALSO NO THRESHHOLD AMOUNT OF TREATMENT AN INDIVIDUAL MUST MEET BEFORE WORKERS’ COMPENSATION "KICKS IN."

Most private insurance carriers will not automatically make payment of medical treatment bills if the individual requires that treatment as a result of a work injury. If there is an indication in the treatment records that a work injury is at issue, private carriers will contact the employee and ask for more information about the work injury, the employer’s carrier and whether the employee is seeking workers’ compensation. If the employee is not actively seeking workers’ compensation, the carrier may deny the bills on the basis that it does not wish to pay out benefits on a claim for which it may not, in fact, be liable. If the carrier learns that the employee is trying to obtain workers’ compensation, most private carriers will pay the bills, and then look to the employee’s attorney to assist in obtaining reimbursement of the amounts paid from the workers’ compensation carrier. In fact, in many instances where the workers’ compensation claim is in litigation and there has not been an accepted injury, we recommend that the private insurance information be provided so that someone will pay for the treatment. We will then work to get the private health insurance carrier reimbursed.

Additionally, most private health insurance carriers only pay for a certain number of physical therapy visits. If the injured worker is using his/her private health insurance rather than going through the workers’ compensation carrier, that worker may not get all of the therapy visits recommended, which could have an impact on the ability to recover and get back to full duty. Workers’ compensation insurance carriers do not place a limit on the amount of physical therapy that a provider can recommend, and there are no pre-set authorizations for the amount of therapy that can be obtained. Therefore, an injured worker using private health insurance may unnecessarily limit the treatment to which they would be entitled under workers’ compensation.

no way to seek workers’ compensation. Additionally, failure to report a work injury from the outset can result in that employee losing his/her job, because the company’s light duty program protects someone injured at work, but may not protect an individual whose injury is not considered to be work-related./font>

Residency Requirement for Modification of Benefits

Can Where an Employee Lives Affect Entitlement to Workers’ Compensation?

Facts: In Housing Authority of the City of Pittsburgh v. WCAB (Redmond), the claimant worked as a painter for the City of Pittsburgh and was injured. Upon receipt of a medical opinion that Mr. Redmond could return to work, the employer invited him to return to a sedentary duty position, and Mr. Redmond did not return. The employer admitted that Mr. Redmond would have to be a City resident to work in the position. The claimant had lost his home in the City as a result of a bankruptcy, and was living with his daughter outside the City limits.

Initial Ruling: The Workers’ Compensation Judge dismissed the employer’s Petition to Modify Mr. Redmond’s benefits on the basis that the job was not available to the claimant because residency in the City of Pittsburgh was a requirement for the job, Mr. Redmond was not a resident of the City, and the defendant could not force him to move back into the City so as to accept modified work.

Appeal Board Ruling: The Board affirmed, noting that the foreclosure proceedings through which Mr. Redmond lost his house occurred prior to the offer of employment, and he was therefore forced to move in with his daughter outside the City prior to the modified position being made available.

Court Rationale: On appeal, the employer argued that the claimant was a City resident when the offer was made, remained a City resident for a period of time thereafter, and moved outside the City for reasons unrelated to his work injury. Citing to the case that has long been the precedent for work availability, Kachinski v. WCAB (Vepco Construction Company), the Court held that the first element of the case requires consideration of the "availability" of the position. The Court noted that "availability" has been considered to extend to whether a position is geographically available to an individual, and indicated that a good faith reason for leaving the area can render a job unavailable. The Court noted the precedent of City of Pittsburgh/PMA Management Corp. v. WCAB (Ferraro), wherein the Court held that nothing in the Workers’ Compensation Act restricts a disabled employee from moving from the geographical area of the "time of injury" job; if the move is made in good faith, job opportunities must be found in the new living area.

The Court held that the job was not available to Mr. Redmond because there was no bad faith reason for his move. Mr. Redmond no longer had a right to his City residence because of his bankruptcy and the mortgage foreclosure.

This case illustrates that employers are responsible to make work available where an injured worker is, unless the reason for that move was in bad faith or to avoid acceptance of the proffered modified duty job. Here, where it was not, the Court refused to modify the claimant’s benefits to partial disability based on the allegation of earning power.

Oral Settlement Agreement

Can An Agreement to Settle a Workers’ Compensation Claim Be Enforced if the Injured Worker Dies Before a Written Agreement is Prepared and a Hearing Held?

Facts: In Facchine, Deceased, by Spinda, Legal Representative v. WCAB (Pure Carvon Co. and PMA), the injured worker received benefits for approximately ten years before a settlement was reached between the parties. Defendant counsel confirmed the settlement in two letters, and filed a Petition to Approve a Compromise and Release Agreement. Between the time that the Petition was filed and the hearing scheduled, Mr. Facchine died. At the time of his death, he had not reviewed and signed the Compromise and Release Agreements nor had a hearing on the merits of the settlement been held. At the hearing, when scheduled, Ms. Spinda, one of the employee’s nieces, testified as did another niece (he left no widow or children) that Mr. Facchine had wanted to accept the settlement and settle his case.

Initial Ruling: The Workers’ Compensation Judge determined that Mr. Facchine intended to proceed with the settlement and understood what was involved, but denied approval of the C&R Agreement, because Mr. Facchine and the employer had never formalized the settlement into the appropriate C&R Agreement, and further, that no testimony was offered in support of that Agreement. The Judge explained that there was no proof that the Agreement had been prepared prior to the employee’s death or that he had the opportunity to review it and obviously never testified that he reviewed and understood it. Under these circumstances, the Agreement could not be approved.

Appeal Board Ruling: The Board affirmed without comment.

Court Rationale: On appeal, the Court dismissed the representative’s argument that the parties had "substantially complied" with the requirements of the Act for settlement. To the contrary, the Court noted that the parties’ failure to meet the requirements that there be a signed Agreement, acknowledged by witnesses or a notary, precludes the approval of a settlement. Even if the parties stipulate that an oral agreement was reached with respect to the settlement, the Court held that the statutory requirements of a written agreement signed by the deceased must be met. While the Court acknowledged that the WCJ found that Mr. Facchine understood the factual and legal significance of settling his case, the settlement could not be effectuated because "the Act specifically mandates ‘every’ such agreement be in writing signed by the parties. The plain terms of the Act admit of no exceptions, not even for an understanding claimant." There is also no approval in the Act for a representative of the claimant to sign the paperwork, and payment to someone other than the personal representative cannot be processed. While the Court acknowledged that the decedent’s representatives considered this too strict a construction of the Act, and its "humanitarian objectives," it did not agree, and the settlement was not approved.

Plainly, parties can agree to resolve a case, but the Act is very strict about the requirements that must be met before approval of the settlement by a Judge will be permitted. If there is no written agreement, there is no settlement—plain and simple.

Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.

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Representing the working men and women of Pennsylvania since 1981