July 2008 Email Newsletter
The BSH Email Newsletter
Be Ready in Case of Injury
Compromise & Release Agreement Approvals
Modification of Benefits- Labor Market Survey
Offset for Social Security Retirement Benefits
Upcoming Seminars
The BSH Email Newsletter
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. 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, as we would be more than happy to assist you. Local appointments are available.
Be Ready in Case of Injury
Most people do not give workers’ compensation anything other than passing consideration, unless or until they are injured at work. Dealing with the workers’ compensation system can be frustrating and confusing. No one is ever really "prepared" for an injury and many companies provide little or no information to workers before the fact of a work injury. Most individuals’ initial introduction to workers’ compensation is their own injury, and at that point the employee is in pain, and sometimes angry because of the injury and what may be perceived-or actually is-the employer’s indifference to the incident. Without being pessimistic, or looking for problems, how can an employee be ready in case an injury does happen? In other words, if you got hurt tomorrow, what would you need to know?
First, most workers should have some basic understanding that Pennsylvania does have a workers’ compensation system, and any injury at work will be handled through that system. Even a "questionable" injury-unwitnessed accident, condition that comes on over time rather than a sudden trauma-should be reported as a work injury if the employee suspects it to be work-related. This way, the claim gets into the "comp system" as soon as possible. This means that the employee must notify the employer of the work injury. This is called "notice" under the Workers’ Compensation Act, and it alerts the employer that something has happened, and that the injury should be reported to its workers’ compensation insurance carrier or third party administrator so that the claim can be evaluated.
Notice does not require "magic" words, but it does have to inform the employer that there has been an injury, and particularly how you were hurt, where and when, and what part of your body was injured. This notice must be provided to someone appropriate for notice-a supervisor or someone in human resources, not a co-worker. This notice should be provided as soon as possible, and if the company has particular forms for the report of this injury, those should be completed. An injured employee must know the procedure at his/her company for reporting an injury: who they are required to tell, and as important, who at the company has injury reports that need to be completed and sent to the workers’ compensation carrier. The Bureau of Workers’ Compensation has specific forms to report an injury, and these are usually completed by someone at the company and sent to Harrisburg and the insurance company. However, the company may also have its own forms, and require completion of those documents, and an investigation as well. Union workers’ compensation committee members would be wise to have copies of these forms in their possession so an injured employee can get one if the company "forgets" or "refuses" to provide the reports. Please understand that the workers’ compensation law allows 120 days for an injury to be reported. Please also understand that some employers require notice of an injury within 24 to 48 hours. While an individual can still pursue a workers’ compensation claim if the notice is not provided within the timetable the employer requires-employers cannot change the requirements of the law-the earlier notice is provided, the better.
When an injury is reported, an employee may have to treat with a "company doctor." If the employer and its insurance carrier wish to control treatment in this way, the injured worker is to receive an updated list of those physicians, and sign that list at the time of the injury. The Pennsylvania Courts have held that the employer’s failure to provide this list to an injured worker and obtain signature on it absolves the injured workers of ever having to treat with company providers. Therefore, it is essential for an injured worker to pay attention to forms that are provided, and see if such a list is given. If the employee refuses to sign the notice of panel doctors, however, they are charged with knowing of the responsibility to treat, and must comply with the rules.
Some companies are not cooperative when injuries are reported and refuse to take injury reports. Therefore, it would also be of benefit for an injured employee to know who the company’s workers’ compensation carrier is. That information is supposed to be posted in the workplace. Before an injury happens, take a moment to check bulletin boards and see if that information is readily available. Most workers’ compensation carriers have "800" numbers that will allow an employee to contact the carrier free of charge to report an injury. If the information is not posted, and the workplace has the benefit of a union, the compensation committee of the union should inquire about the information and make it readily available to workers. The carrier’s name and address is important to know when getting medical treatment, so the doctor knows where to send the bills. It would make sense to have this information in advance of any injury, so that an employee in pain and in need of treatment is not delayed in getting medical attention because this information is lacking.
Please understand that the employer is to provide a designated list of at least six providers if it wishes to manage the injured worker’s care and treatment. This does not mean that the employer chooses one doctor and makes the appointment, or that the compensation carrier’s nurse does all the scheduling. The employee is to be provided the list, and is to choose among the doctors for treatment. There is absolutely no requirement that the employer make the appointments and choose the provider. However, the employee must also be aware that just because a work injury has occurred, and he/she is treating with a panel provider, that does not automatically mean that treatment is to occur during work hours and the time off will be paid. The injured worker is to try and schedule appointments outside of work time if at all possible; lost time missed for appointments may not necessarily be compensated otherwise. With respect to the providers themselves, it would be beneficial to know which have early morning or evening hours, which physical therapy providers they use, who has a pool available in the event aqua therapy is prescribed and such other information that may be of benefit for an employee to have to decide what treatment options are available and when.
If there is a designated list of medical providers, the injured worker must treat with one (or more) of those designated providers for 90 days after the first appointment, not after the date of the injury itself; this is an important distinction, because it involves who has to pay for medical bills. If an employee is hurt August 1st, but does not seek medical attention for the injury until August 15th, the 90 days runs from the 15th. An employee needs to know that it is essential to keep track of these dates. Having a pocket calendar in advance of any injury would be a sure way to be prepared.
It is also important for an injured employee to know whether the employer requires drug testing at the time of an injury, as many do, and which of the facilities available for treatment of injuries offer the mandatory drug testing. IT IS NOT NECESSARY FOR THE EMPLOYEE TO TREAT AT THE FACILITY THAT OFFERS THE DRUG TEST. Many employers try to get around the employee’s "choice" of physicians on the panel list by requiring a drug test and having only one facility that provides this test; this way, the injured worker feels compelled to get the initial treatment at that facility, too. This is not required, however; rather the employee can go for the testing where required and then obtain treatment from a different doctor on the panel of providers.
Employees should also know the employer’s policy on returning to work with restrictions and limitations. Some companies offer light duty, some do not. Some offer it only to individuals with accepted work injuries, some offer it across the board. It would be of benefit to know before being released with restrictions and limitations whether the employer even accommodates light or modified duty restrictions, and the company’s policy on light duty-is it available only for a limited time (90 days) or on certain shifts or in specified departments? Please understand that the availability of light duty may be governed by a collective bargaining agreement, may be company policy or may not exist at all. The Workers’ Compensation Act does not require that a company make modified duty work available to injured employees. If it is available, however, injured employees should know about it and the requirements of the program.
In order to verify that their workers’ compensation benefits are calculated correctly, an employee should have an idea of what they earn, on average, per week. Workers’ compensation total disability benefits are a percentage (usually 66%) of the average weekly wage calculated over the year prior to the work injury. This amount takes into account overtime, so it is of great benefit to an employee’s pocket to know whether he/she worked overtime in the prior year, so it is also calculated into the equation. Of course, having the actual paystubs for the year prior to the injury would be the optimum way to be certain that the calculations are correct, or that the wages can be verified. As a result of Pennsylvania Court cases, injured workers who suffered an injury in the prior year do not suffer from the "lost wages" during that period when it comes to the calculation of what is due for a second injury. Therefore, it would be beneficial for employees to know, if they were off in the year prior to the work injury, when they were off and the reason (work or non-work-related) and what benefits they received during that period if no wages were paid. Additionally, if an employee has two jobs, and is injured at one, concurrent wages can be used to calculate the average weekly wage and therefore the disability benefit, so copies of the paystubs from the other job would be extremely helpful for calculation of that concurrent average weekly wage. Being prepared in this way can assist an injured employee in obtaining the most compensation available under the law.
It also would be important for employees to know before they are injured what will happen to their benefits, and what other avenues for compensation are open to them if the workers’ compensation carrier denies the claim. Does the company offer Sickness and Accident benefits? Most carriers for S&A will not pay if the disability is due to a work injury unless the workers’ compensation carrier denies the claim, and a copy of the denial is sent to the S&A carrier. The workers’ compensation carrier will get a credit for any benefits paid, but this information could help an injured employee keep food on the table if his/her compensation claim is denied. Additionally, some companies cancel an employee’s health insurance (as well as other benefits) when off work, even if that employee is off as a result of a work injury. The workers’ compensation system has no impact on this decision, and no Workers’ Compensation Judge can make the employer pay for these "fringe" benefits. The only medical benefits payable in workers’ compensation are reasonable and necessary treatment for the work injury.
Finally, it is important to know before being injured to keep copies of all of the paperwork you get, whether from the employer, the compensation carrier, the doctor, the hospital-anything that is involved with the claim. Do not give your only copy of an excuse to the plant nurse. Do not sign any papers for the compensation carrier or employer without reading them thoroughly and asking questions about them. Do not mail the compensation carrier the originals of documents without keeping a copy. Do not talk to the insurance adjuster without talking to someone on the union’s comp committee-or better still, an attorney who knows about workers’ compensation. Knowing your rights and responsibilities before an injury is good preparation for the sometimes convoluted road ahead. "Be Prepared" is not just a good motto!
Compromise & Release Agreement Approvals
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 (If the Reason No Hearing Was Held Was Due to a Medicare Set Aside)?
Facts: In Miller v. WCAB (Electrolux), the injured worker received benefits for a right ankle injury. Many years later, the parties agreed to settle the case for a Compromise and Release. Since the defendant believed that Mr. Miller was a Medicare recipient, defendant believed that a Medicare Set Aside would be required before the medical portion of the claim could be settled. In the intervening nineteen months, Mr. Miller died of causes unrelated to his work injury. At the time of his death, the C&R Agreement had not been signed by Mr. Miller, nor had a Judge held a hearing to approve the settlement. Mr. Miller’s widow filed a Claim Petition seeking to enforce the C&R Agreement.
Initial Ruling: The Workers’ Compensation Judge denied the Claim Petition, finding that the Agreement had not been signed and notarized, and that no hearing to approve the C&R had ever been held, so that a WCJ could be certain that Mr. Miller had understood the full legal significance of the Agreement. The Judge concluded that there was no valid C&R Agreement, and because he found that the widow could not execute the Agreement on her late husband’s behalf, he denied the Claim Petition and refused to enforce the settlement.
Appeal Board Ruling: The widow appealed to the Workers’ Compensation Appeal Board, arguing that the delay in filing the Agreement was caused by the defendant’s mistaken belief that a Medicare Set Aside was required. Mrs. Miller argued that, if this mistake had not been made, the Agreement would have been finalized and a hearing held before her husband’s death, and the settlement would have been approved. The Board disagreed and affirmed the WCJ’s decision, finding (1) that there was no valid agreement to settle the case and (2) that there was no proof that the defendant’s belief regarding the need for Medicare approval was "in any way a deliberate attempt to delay final approval of the C&R Agreement."
Court Rationale: On appeal, the Court dismissed Mrs. Miller’s arguments and refused to grant the C&R. The Court referenced the Act, holding that failure to satisfy the Act’s requirements for a settlement precludes the approval of a C&R. The Act requires a signature, witness to the signature or notarization thereof, and a hearing. Without these essential elements, a C&R cannot be granted.
The Court was not persuaded by the widow’s arguments that the traditional requirements should be overlooked in this case, where the delay in filing the Petition and obtaining approval were caused by the mistaken belief that Medicare was required to approve the settlement of the medical benefits. The Court distinguished the widow’s argument that Medicare has no "right to approve" a C&R Agreement, from the requirements of the Medicare Secondary Payer Act, which requires that the parties to a C&R Agreement take into account Medicare’s interests when resolving a claim for future medical expenses. Because the settlement in Mr. Miller’s case resolved a payment for future wage loss and medical benefits, it was essential that there was agreement by the parties as to future liability for medical payments. The Court held that the parties did not have a "mutual agreement" because the parties did not agree as to whether there was a requirement to go to Medicare for approval. Therefore, there was no signed C&R Agreement, and therefore, it could not be presented to the Judge for a hearing.
Discussion: This is another example of the Court’s absolute refusal to allow cases to be resolved without every requirement of the Act being met. The Act requires a signed C&R Agreement and a hearing. Where these have not occurred, it is virtually impossible for a settlement to be approved. As we have seen in prior newsletter case reviews, many individuals have tried to enforce settlements for deceased family members who were injured and in the midst of settling a workers’ compensation case when death came from other causes. However, the Act is very strict about what is required in order for a case to be settled. Without each and every one of the prerequisites, a settlement will not be approved.
Modification of Benefits- Labor Market Survey
What is the Appropriate Labor Market for a Vocational Expert to Use?
Facts: In Riddle v. WCAB (Allegheny City Electric), the employee suffered a shoulder injury in the course of his employment. The defendant filed a Petition to Modify/Suspend Mr. Riddle’s benefits on the basis that there was work "available" to him within the meaning of the Act, even though his treating doctor opined that he could not perform his time of injury job as an electrician. The defendant employed a vocational specialist, Mr. DeMartino, who found positions in which he opined the injured worker could be employed and earn wages sufficient to result in a modification of Mr. Riddle’s benefits. Mr. Riddle employed his own vocational specialist, Ms. Evans, to combat the employer testimony.
Initial Ruling: The Workers’ Compensation Judge granted the Modification Petition, accepting the testimony of defendant’s vocational specialist. The Judge found that Mr. Riddle was capable of full time light duty work and that such jobs were generally available to him.
Appeal Board Ruling: The Board affirmed the Judge’s decision, and dismissed Mr. Riddle’s argument that Mr. DeMartino’s testimony was not competent to establish earning capacity. The Board rejected Mr. Riddle’s argument that the defendant’s vocational specialist failed to take his age into account when finding work, and further, denied the injured worker’s argument that job availability had not been proven within the correct geographical area.
Court Rationale: The Commonwealth Court affirmed the Judge’s decision, as affirmed by the Workers’ Compensation Appeal Board. The Court considered the employee’s argument about the correct geographical area for the labor market survey, noting that Mr. Riddle does not reside in Pennsylvania. The injured worker argued that the earning power assessment had to contain jobs which were available in the place of his injury-Pittsburgh, Pennsylvania-because he does not live in the Commonwealth. The Labor Market Survey in this case assessed jobs available to Mr. Riddle in the area in which he lived-Wheeling, West Virginia. The Court noted that, at the time of the vocational meeting-between Mr. Riddle, Mr. DeMartino, and the injured worker’s attorney-claimant counsel had requested that the job search occur in Wheeling, where Mr. Riddle resided. The Court further noted that, when Mr. Riddle testified, he agreed that he was willing to work in Pittsburgh, in Wheeling, or between the two, in such places as Washington, Pennsylvania.
In reaching its decision, the Court noted that, prior to the changes in the Act that allowed a labor market survey to be performed, case law required that a job search be undertaken in the area that the injured worker resided. The Court agreed with the Appeal Board that there is no Court decision which precludes a labor market survey in the claimant’s area of residence, even though the Act notes that, for out of state residents, it is to be performed where the injury took place. In Mr. Riddle’s case, the Court reasoned, it would be "absurd" if a labor market survey could not take into account jobs in Wheeling, where Mr. Riddle had a residence, as well as jobs just over the Ohio border, where Mr. Riddle’s father lived and where he often stayed and also had a valid driver’s license. The Court held that nothing in the Act precluded the defendant from establishing job availability in all of those jurisdictions.
Discussion: Although the result of this case seems to be opposite of what the Act requires- a labor market survey where the injury occurred-it is an outcome that shows that it will be more difficult for injured workers to argue against a modification. If an injured worker resides outside of Pennsylvania, it seems to be appropriate for jobs to be found where that individual lives, not necessarily where he/she was hurt. It makes sense that someone would want to work closer to home, for ease of travel, savings in gas costs, etc.
A case where a labor market survey is done closer to an employee’s residence puts an injured worker in a difficult situation. The jobs would seem to be more accessible, more convenient-therefore, it will be harder to defend against modification. Additionally, to argue against the more convenient jobs by saying that the job must be found where the injury occurred-even though that may be farther away-seems like an absurd argument. While the law requires job assessment at the site of the injury, it would make little sense for an individual who will be earning less to travel a longer distance. The injured worker may have been willing to travel to the place where he was injured because of the wage paid for the time of injury job; an injured worker may be less willing to travel that same distance to earn minimum wage. The result reached in this case seems to be the only appropriate one, but it does make it harder for an injured worker to claim that a proposed job is not "available" where it is in his/her "own back yard."
Offset for Social Security Retirement Benefits
Are Employers Entitled to a Credit for Social Security Retirement/Old Age Benefits When an Employee Originally Received Social Security Disability Benefits?
Facts: In Ropoch v. WCAB (Commonwealth of PA/DPW), the injured worker received total disability workers’ compensation benefits and Social Security Disability benefits. The employer filed a Notice of Benefit Offset, seeking an offset as of the date that Mr. Ropoch began receiving "old age" Social Security benefits. The benefits he had been receiving for disability under the Social Security Act automatically converted to "old age" benefits by operation of law-the Social Security Act-at the age of 65 ½ years old. Mr. Ropoch filed a Petition to Review the Benefit Offset, claiming that the offset of benefits under these circumstances was inappropriate.
Initial Ruling: The Workers’ Compensation Judge held that there was no distinction between whether an individual applied for "old age" benefits, or whether they automatically transferred to that type of benefits from disability benefits by operation of the law. The Judge held that the offset for benefits was appropriate, and dismissed the employee’s Petition.
Appeal Board Ruling: The Board affirmed the offset.
Commonwealth Court Ruling: Mr. Ropoch appealed to the Commonwealth Court arguing that allowing the offset under these circumstances created an unjust and unequal application of the Act, and further that it was unfair to allow an offset under the circumstances where the injured worker was initially receiving disability benefits, which converted by the law, not by any action of the injured worker. The defendant argued that the Act states clearly that it is entitled to an offset for Social Security old age benefits, and that, if the Legislature had meant to create an exception under these particular circumstances, it would have been included in the law (or this type of benefit would have been excluded from the offset provisions).
The Commonwealth Court affirmed the decision of the Judge and Board, and found that the employer was entitled to the offset, even though the Court "sympathized" with the claimant. "Where statute is clear and unambiguous the court cannot ignore its ‘letter’ under the pretext of pursuing its supposed spirit." Therefore, the employer’s right to the offset was affirmed.
Discussion: Many injured workers also have the ability to collect Social Security disability because of their injury, or their injury plus other medical conditions which result in a finding that they are unable to perform substantial gainful work. However, every individual who originally obtains benefits under the disability portion of the Act ultimately has those benefits transferred to "old age" benefits when the appropriate age is reached. This occurs to Social Security recipients who do not have work injuries. Therefore, in order for the law to be applied fairly across the Board, it seems that this is the only result that could occur. However, it is essential that the injured worker know when that transfer from disability to "old age" is going to take place, so that the compensation carrier does not attempt to take a credit earlier than it may be entitled to that credit.
Upcoming Seminars
| What | When | Where |
|---|---|---|
| Union Meetings for Polk Center Employees | September 29, 2008 at 1:30 and 3:30pm | Polk Volunteer Fire Hall |
| USW 3199 Training Seminars | October 2-3, 2008 at 9-10:45am | Erie, PA |
| AFSCME Local 1771 | October 15, 2008 at 7:00pm | Girard, PA |
| AFSCME Education Meeting | October 18, 2008 at 10-11:30am and 1-2:30pm | Erie, PA |
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.
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