December 2006 Email Newsletter
The BSH Email Newsletter
Amendments to the Workers’ Compensation Act
Workers’ Compensation Emergency Kit
Extra-territorial Jurisdiction
Home Office and Workers’ Compensation
The BSH Email Newsletter
Happy Holidays from your friends at Blaufeld Schiller & Holmes, LLP!!!! This 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. 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!
Amendments to the Workers’ Compensation Act
On Thursday, November 9, 2006, Governor Ed Rendell signed Act 147 of 2006 (formerly House Bill 2738), making several changes and additions to the Pennsylvania Workers’ Compensation Act.
Section 401 was added with the primary goal of enhancing the efficiency of the workers compensation system, and the litigation of cases. For example, mediation will now be required in all new cases, with an eye toward the possibility of resolving cases earlier in the litigation, before significant time, effort, and costs are incurred. Judges are now also charged with setting, at the first hearing in the case, the schedule for the entirety of the litigation, and shall "strictly enforce" their schedules.
The amendments also recognized the fact that some cases are settled while not in on-going litigation, and that the parties would like to have these matters disposed of promptly. Within 120 days of the signing of the Act, there is to be a "resolution hearing procedure" established in order to expedite settlement hearings. These settlement hearings are to be held within 14 business days of notice that the case has been filed, and the Judges are to issue their approvals or rejections of the settlement within 5 days of the hearing.
Perhaps one of the best parts of this Act was the creation of the Uninsured Employers Guaranty Fund. This account will be funded by a one-time deposit of $1,000,000 from the General Administration Fund, as well as assessments against insurance carriers and self-insureds who do business in the Commonwealth. This Fund will be available to make payments of compensation to injured workers whose employers fail or refuse to have workers’ compensation covering their employees, and will cover individuals who are injured after the effective date of the Act.
This new law is actually neutral, in that it does not adversely impact either employers or employees. Many of the goals actually seem to be favorable to injured workers. Plainly, the creation of a Fund for those whose injuries would have gone uncompensated because their employer had no insurance is a help for injured workers. It will give many of those individuals, who clearly suffered injuries and are disabled and have medical bills, the chance of getting paid, as opposed to having to litigate an entire case or execute on the employer’s assets to be paid. The change will also allow injured workers in that situation to obtain counsel, as the attorney will have a chance of getting paid for all of the time and effort spent in the case. Unfortunately, this is a practical concern for many attorneys and will allow more individuals hurt in these circumstances to obtain qualified counsel. [We have and continue to represent individuals who were hurt in the course of employment with uninsured defendants, and will admit that it is difficult to collect for our clients in these cases.]
With regard to the efficiency of litigation, those of us who practice have questions about whether that goal will actually be reached. Plainly, the idea to streamline the settlement hearing process, and get those cases moving, is a good one. Once a case is settled, and all the "bugs" are worked out, everyone wants that hearing accomplished quickly and the decision issued immediately, so payment can be made. It will therefore be essential that all of the underlying issues-payment of medical bills, support liens-be brought to the attorney’s attention immediately so that they can be addressed even before the filing of the Petition.
Requiring mediation at the beginning of every case does not seem to be as fruitful. While some petitions may lend themselves to early settlement, others, such as Claim Petitions, will not be able to be worked out so early, as most defense lawyers want to quiz the claimant and get medical records before sending the injured worker for an exam. Requiring mediation of those cases too early in the process will not allow the case to settle sooner and, in our opinion, will actually cause the case to take longer to settle since the parties will have to work through the mediation, even if it is a sham, before getting to the heart of the litigation.
The idea of knowing how much time it is going to take to litigate a case is generally a good one, and the Judge’s issuance of a schedule at the first hearing may be of benefit. However, it is not always the lawyers or even the clients who drive the litigation-it is often the doctors whose schedules dictate how the litigation will proceed. A Judge can schedule a first hearing in January, and a second hearing in March, but if the claimant’s doctor cannot be deposed until May, the case is not going to move any faster. Similarly, defendants generally will not schedule exams until they have questioned the injured worker; therefore, the defense doctor’s exam schedule will have an impact on when the claimant will be seen, and therefore when the depositions can be taken.
It remains to be seen how the Judges will apply the new hearing procedures, and whether they will vary by jurisdiction. While the aims of the new legislation are admirable, we must be certain not to sacrifice quality of litigation for speed. It will be up to those of us who practice, and those of you whose fellow workers are injured, to make our voices heard as the process is implemented and moves forward.
Workers’ Compensation Emergency Kit
You know for certain that, if storms are predicted, it is wise to have a flashlight with working batteries. It is also wise to get to the grocery store for essentials, including milk and bread, to avoid unnecessary trips when it snows. What is it that every union local, or those who do not have the protections of a union at their place of employment, need in their workers’ compensation "emergency kit"?
First-Knowledge
First and foremost, you need to know that there is a workers’ compensation law that protects every worker in our Commonwealth, and that injuries suffered at work need to be handled under that law, which has EXCLUSIVE jurisdiction over work injuries. You should be aware of some of the important aspects of workers’ compensation, and what can, and cannot, be redressed by the law. You need to know that individuals are covered from the minute they start working for an employer (no probationary period under the compensation law), that the comp law covers lost wages and medical benefits (no pain and suffering), and that you must give notice of a work injury within 120 days of its occurrence (or be barred from bringing such a claim). You also need to know that you cannot "sue" your employer in Common Pleas Court, and that the union’s grievance and arbitration process is not an alternative to obtaining workers’ compensation benefits. Every worker/comp committee member should have this knowledge in the emergency kit, or at least know where to go to get it, BEFORE an injury occurs. We, at Blaufeld Schiller & Holmes LLP, believe that education is key for every worker. You can learn about workers’ compensation through one of our seminars, one of our compensation kits, our website, or just by calling our 800 number and speaking with one of our attorneys.
Second-A File Folder
Second, the compensation emergency kit should contain a folder or large envelope to hold papers. In a workers’ compensation claim, whether accepted or denied, litigated or not, there are a lot of papers the injured worker should keep and be able to find and produce if asked. Having such a folder (sometimes this turns into a shopping bag or copy paper box depending on the length of the litigation) makes it easy for the injured worker to keep track of important information like claim numbers, doctor’s restrictions, check receipts and amounts and appointments. It can always be thrown away later-however it cannot, in many instances, be "re-created."
Third-A Report of Injury Form
With an eye toward the timely notice requirement, the emergency kit should also contain copies of the documents the employer requires to be completed to report a work injury, as well as a copy of the Bureau’s Report of Occupational Illness and Injury, so that the injured worker is able to and prepared to provide the employer with information about the injury. Employers sometimes require additional and different information than the Bureau, and while the workers’ compensation law does not require that the employee comply and provide all of those particulars, as a practical matter, the claim will not be properly and timely evaluated if the employer does not receive it. Therefore, knowing what information must be provided is essential. It is also essential for the worker to have documentation that the injury was reported.
Fourth-A Calendar
The "emergency kit" should contain a calendar so that the injured worker can keep track of everything that happens, when it happens, as it relates to the work injury. First, the injured worker should note the date and time of the injury, the date of the notice provided to the employer, and the name of the person notified. The calendar can also be used to keep track of doctor’s appointments, hours worked if they are less than usual due to restrictions or disability, dates when compensation checks are (or should be) received, etc. Memories fade easily, and when there is a lot happening in an individual’s life due to an injury, important facts/dates can get lost. The calendar, recorded contemporaneously with the occurrences, keeps matters fresh in mind and easily researched.
Fifth-An Accurate and Complete Job Description
Fifth, the compensation emergency kit should contain a description of the employee’s usual job, so that it can be handed out to doctors who will be seeing the injured worker and will be asked to assess the individual’s ability to return to work. Sometimes, particularly when concerned about other issues such as pain and whether medical treatment is going to be covered, an injured worker has difficulty remembering and expressing everything he/she does in a work day. In addition, most doctors will not spend enough time with a worker to verbally assess that information. For these reasons, a written job description prepared before an employee suffers an injury is of great benefit.
Sixth-Recommendations for Possible Medical Care Providers
Also tucked into the emergency kit should be a list of doctors who have been willing to see injured workers and help in their cases even if the worker’s claim has been denied and is in litigation. As you are aware, an injured worker must see a panel physician following the report of injury for the first 90 days, or until the compensation carrier or self-insured employer denies the claim. That list of doctors should be available to every injured worker. However, after the claim is denied, or while the claim is in litigation, many injured workers do not know who to see for their problems and complaints, and turn to family doctors who are equally unsure of good referrals.
This becomes increasingly more common as doctors are less and less interested in treating workers who are not covered by their employer’s workers’ compensation carrier, and whose own private insurance may limit or refuse to provide treatment because of the work injury. As people are treated and have good results from practitioners in the area, a list of those individuals should be compiled for referrals, so that the injured worker finds an open-minded physician willing to help in compensation cases. The union, in particular, should try to compile that information and have it available. It is essential that the doctor be willing to work with the injured worker’s attorney as well, and provide records as required under the Act to the compensation carrier. Many doctors have refused to write narrative reports-"the doctor just doesn’t do reports. The records will have to be enough"-even though claimant’s counsel is willing to pay for the report! Some doctors also do not want to testify to support the injured worker. When an injured worker finds a good and cooperative medical provider, it is an asset that can change the whole complexion of a case.
Seventh-A List of Other Services
Seventh, the workers’ compensation emergency kit should contain a list of support services for an injured worker. When a worker suffers an injury, even if the claim is accepted, there is a change in that individual’s income and many folks get behind on their bills. There can be union support services that are available, community support services that would be open, and other agencies which work as go-betweens for credit or mortgage problems. The stress of a work injury is difficult enough-dealing with that along with these other problems is often too much for an injured worker and his/her family. Knowing that there are other resources may help these individuals as much as finding a good doctor, because it will give them the emotional support they need while healing.
Eighth-Miscellaneous Essentials
Finally, the emergency kit must contain some patience, a sense of humor, a healthy skepticism, a spirit of cooperation, a dose of self-confidence and a sprinkling of righteous indignation. Any individual suffering a work injury in Pennsylvania, particularly those whose claims are denied and who must go through the litigation process, will need all of these at one time or another to deal with (1) delays in the litigation process; (2) attending a hearing; (3) going to a defense medical evaluation; (4) listening to co-workers and/or supervisors testify about you; (5) more delays and (6) frank discussions with his/her counsel about the merits of the case itself. The kit would not be complete without these additional factors, and individuals will need them in differing amounts and degrees-but they all need to be available.
These are the items that are good to have in your workers’ compensation "emergency kit," although there are probably a number of other items that could be included. Preparation is key, so get your milk, eggs, flashlight and sense of humor together, and have all your emergency preparations in order for 2007!
Extra-territorial Jurisdiction
Some employees may live in Pennsylvania, and be injured in another state because their place of employment is in that state, or because they are traveling through that state as a part of their job. Other employees may live over the state line in Ohio, New York or West Virginia, but work and sustain an injury here in Pennsylvania. Whose law applies to those injuries? Not surprisingly, it depends upon the facts of the case, and primarily the facts about the hiring process for that employee.
The exercise of jurisdiction over injuries occurring outside of Pennsylvania, or concerning individuals who work outside Pennsylvania and are hurt here is called "extra-territorial jurisdiction." Pennsylvania’s workers’ compensation statute deals specifically with numerous categories of these types of injuries, in an effort to explain exactly what is-and is not-covered by the Commonwealth of Pennsylvania. Pennsylvania will assume the jurisdiction of a workers’ compensation claim if the contract of hire was made here, and where the employment is not localized in ANY state, for example, traveling employees. However, if the contract of hire is made here, for employment specifically localized in another state, Pennsylvania will not have jurisdiction. For example, if an employee works for a winery in New York, even if hired here, New York’s workers’ compensation law will control if the employee is injured there. If that same employee does not always report to New York, such that the employment is not "principally localized" there, but travels about to different wineries, that individual will likely be covered in Pennsylvania if the contract for hire was made here, and employment is not considered to be localized in any particular state.
Under the Act, an individual can be covered by Pennsylvania workers’ compensation even where the injury does not occur in Pennsylvania, if the employment engaged in has been principally localized in Pennsylvania. The question of fact for a Judge to decide then is whether the employment is "principally localized" in Pennsylvania. The contract for hire would be one factor looked at for that determination. More important under that scenario, however, is whether the employer has "a presence" in Pennsylvania-warehouses, facilities, etc.-and whether the employee who was injured worked from that location. The mere fact that the employer might have a warehouse in Erie will not confer Pennsylvania jurisdiction on that claim if the injured worker always worked out of the warehouse in New York or Ohio and never or very rarely worked from the Pennsylvania site. In a case decided regarding employment on the other side of the Commonwealth, Pennsylvania did not exercise jurisdiction for an employee working in New Jersey, even though the company had a Philadelphia location, because the employee who was injured did not work out of that location. In that case, the employee only communicated with the Philadelphia office by mail and telephone, and so the Court found that individual’s employment was not "principally localized" here.
When an individual is injured in another state, it is essential to determine what the laws of that state would provide insofar as workers’ compensation is concerned, because Pennsylvania may exercise jurisdiction where the contract of hire was made here, even though employment is "principally localized" in another state, if the workers’ compensation law in that other state would not, for some reason, apply to the injured worker’s employer. Under circumstances such as these, it would be essential for the injured worker to consult with an attorney knowledgeable about that state’s workers’ compensation laws, to determine whether coverage would be available.
If not, then jurisdiction may be possible in Pennsylvania, but that attorney should discuss with the injured worker’s Pennsylvania counsel the ramifications of the other state’s compensation system. Moreover, the fact that an employee may have signed an agreement as to which state’s jurisdiction will be used for workers’ compensation claims may not bind the employee, as not all of those types of agreements are enforceable, particularly where the agreements utilize the laws of a state with no relationship to the employment whatsoever, or where a state with very conservative-and perhaps unfair and quite limited-compensation laws is chosen. The laws chosen to apply must have some reasonable relationship to the employer.
It is essential to note that the Pennsylvania Workers’ Compensation Act is applicable to all injuries which occur within Pennsylvania, no matter where the contract of hire was made. All of these extraterritorial considerations are irrelevant if the worker is injured in Pennsylvania. Therefore, an individual from New York working in Erie, Pennsylvania, who is injured in Erie will be covered by the Pennsylvania workers’ compensation laws.
This can create some confusion, because Pennsylvania workers’ compensation carriers and administrators re-price and pay medical bills at the rate allowed under the Pennsylvania workers’ compensation provisions and regulations. Therefore, an individual injured in Pennsylvania who treats with a New York or Ohio physician should alert that doctor to the fact that it is Pennsylvania compensation which will control the payments and the amounts. Some physicians in neighboring states refuse to deal with these matters, and will not treat people who are injured in the Commonwealth. Please understand, however, that for any services billed by these doctors, Pennsylvania’s reimbursement rates control, regardless of whether the doctors wish them to or not. The only recourse for a physician is to stop treating the patient, as Pennsylvania carriers/administrators only have to pay what Pennsylvania requires that they pay. The injured claimant does not have to pay the balance.
Jurisdictional questions can be difficult where neighbors go across borders to work and may, in the course of that employment, be hurt. Pennsylvania will seek to maximize an employee’s ability to be compensated under its laws, but this is a very fact specific inquiry. An injured worker uncertain of which law applies must contact an attorney as early in the process as possible, so as not to lose valuable time-or miss specific statutory limitations-by ignoring one state’s laws, or assuming that those laws do not apply. An employee must be certain to follow the right jurisdictional path for recovery.
Home Office and Workers’ Compensation
If an Employee is Injured While Working at Home, Is She Entitled to Benefits?
Facts: In Verizon Pennsylvania, Inc. v. WCAB (Alston), the claimant worked three days per week in the employer’s New Jersey office site, and two days per week in her basement office at home. While working at home, Ms. Alston received a work-related telephone call from her supervisor while upstairs in her kitchen drinking a glass of juice. Because the issue needed immediate attention, Ms. Alston headed downstairs to her office and fell, hitting her head and injuring her neck, missing a year from work and requiring surgery. She received full pay from the employer while off, but her claim was never "recognized" or "accepted" under the Pennsylvania Workers’Compensation Act. As a result, she filed a Claim Petition with respect to the injury, and the employer and workers’ compensation carrier contested the claim, arguing that Ms. Alston was not injured "in the course and scope of her employment."
Initial Ruling: The Workers’ Compensation Judge granted the Petition, and found that Ms. Alston was injured while in the course and scope of her employment, even though she was working in her home office. The case also concerned an award for the surgical scar, and a disfigurement award was made.
Appeal Board Ruling: The Board affirmed the Judge’s decision, relying on the credibility findings made by the WCJ.
Court Rationale: The Commonwealth Court affirmed the award of benefits to Ms. Alston. The Court noted at the outset of its opinion that "to date, there is no appellate precedent from Pennsylvania specifically discussing the issue of workers’ compensation coverage for employees who work at an ‘at home office’ outside of the employer’s primary work office." Therefore, the Court looked at Pennsylvania’s workers’ compensation law generally, and particularly discussed the issue of course of employment, and what takes an employee out of coverage under that requirement of the law.
The Court explained that the employee must either be in actual furtherance of the employer’s affairs or business when injured, or on the premises of the employer in order to be covered. In this case, the Court said, it was clear that Ms. Alston was not on the employer’s premises. Therefore, the question centered around whether, at the time she was injured, the employee was furthering the employer’s affairs. The defendant argued that she was not, because she was actually upstairs getting a drink, and returning to the office when she fell. The Court dispensed of this argument noting that, in the compensation law in general, there is a "well-established ‘personal comfort’ doctrine under which an employee who sustains an injury during an inconsequential or innocent departure from work during regular working hours, such as going to the bathroom, is nonetheless considered to have sustained an injury in furtherance of the employer’s business." That same rationale was held to apply here, where Ms. Alston was speaking to her supervisor about something of importance to her job, and was heading back down to her office to continue working on the problem when she fell.
This case is important as the work force begins to accommodate individual employee’s needs to work outside of the premises, and tele-commute or work at home. This case was decided as it was, in large part, because this was the claimant’s established work routine and her working at home was in a special place in the house, and was specifically approved by her employer. This might not be the same result if an employee happened to be at home for some reason and did not ordinarily work from home, and was injured. However, as case law shows us, it would depend on the facts of that case, and the strength of the argument regarding the furtherance of the employer’s affairs while at home, before any real prediction could be made.
HAPPY HOLIDAYS!
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