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Commonwealth Court Finds Current Impairment Rating Evaluation Process Unconstitutional

An Impairment Rating Evaluation (IRE) is a process where the employer asks an injured worker to be “rated” to determine their percentage of whole-body impairment based on the AMA Guides (American Medical Association’s Guides to Permanent Impairment). In order to be rated, an injured worker must first be at “maximum medical improvement” (MMI). This means that the work related injury or condition is not likely to improve or worsen in the future, with or, without treatment. A doctor must decide whether an injured worker is at MMI, and if so, the current state of the law required the use of the 6th edition of the AMA Guides to determine whether the injured worker is 50% or more impaired. If the injured worker is found to be less than 50% impaired (as opposed to 50% or more which keeps the status of the benefit at total disability) after an IRE examination based on the AMA Guides, then the status of the worker’s wage loss benefit changes from total to partial disability. The significance of this status change is that there is a 500 week cap on partial disability benefits which means you can only receive a maximum of 500 weeks of partial disability benefits and, in some situations, less than that. There is no cap on total disability benefits. An injured worker theoretically can receive total disability benefits for the rest of their life if the Employer is not able to prove that the worker fully recovered from their work injury or, recovered enough to be able to return to some kind of work. If the worker is given a whole-body impairment rating of 49% or below using the AMA Guides, their total disability benefit converts to partial disability and the injured worker is only entitled to receive a maximum of 500 weeks of additional wage loss benefits and, in some situations, less than that. The current or, 6th edition of the AMA Guides generally favors employers.

An injured worker recently challenged the constitutionality of the IRE process. Protz v. WCAB (Derry Area School District), decided September 18, 2015, involved an IRE based on the 6th edition of the AMA Guides. The claimant argued that her IRE determination was unconstitutional because it improperly delegated legislative powers to a private entity, i.e., the AMA (American Medical Association) do to the fact that her IRE status change was based on the use of the 6th edition of the AMA Guides which was not approved by the state legislature. She specifically cited Article II Section 1 of the PA State Constitution. The Commonwealth Court agreed. The Court held that the legislature has given carte blanche to a private entity, the AMA, to make determinations on how to rate an injured worker for purposes of an IRE once they are found to be at MMI. When the Act was amended in 1996 and IRE determinations were added, the General Assembly specifically adopted the 4th Edition of the AMA Guides to determine an injured worker’s whole-body impairment rating. However, the General Assembly has yet to review and specifically adopt either the 5th or 6th editions of the AMA Guides that have surfaced since then. Because the General Assembly has not given specific direction on how to calculate the impairment rating under the current or updated versions of the Guides and, because it gave a private entity (AMA) complete control over establishing the standard (the Guides) by which the status of an injured worker’s wage loss benefits could be changed, there is no protections to prevent the AMA from developing future editions of the Guides that are biased toward the injured worker. Section 306(a.2) of the Workers’ Compensation Act merely provides that doctors performing IRE’s must use the “most recent” edition of the AMA Guides. No further direction is given by the legislature in reaching this determination which violates the Pa State Constitution.

It remains to be seen how this decision will impact IRE’s that were already completed using the 5th and 6th editions of the AMA Guides. The Commonwealth Court remanded the Protz case back to the Workers’ compensation Judge to decide the issue of the claimant’s whole-body impairment for purposes of establishing an IRE rating under the Act, using the 4th edition of the AMA Guides only. As it stands, this is the only edition of the Guides that the legislature has specifically approved its use.

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Can My Employer Stop Paying For My Private Health Insurance When I’m Out Of Work Because Of A Work Injury?

Unfortunately, for most of us, an employer can stop paying for private health insurance while an injured worker is out of work. Unless you are working under a specific employment or union contract that says otherwise, your employer can stop paying for your private health insurance when you are out of work because of a work injury. REASON? Health insurance is a benefit that an employer gives to an employee in exchange for their services. When the injured employee is no longer able to provide the employer with their services because of a work injury, the employer has the right to take back the benefit, i.e. health insurance. The injured worker has the right to continue to carry their private health insurance under the federal COBRA plan after the employer stops paying for it but, at the employee’s expense. The employee will be charged the same group rate under these circumstances that the employer pays though for most injured workers who are on a fixed income on comp, paying several hundred extra dollars a month for private health insurance is prohibitive. We can only hope that the Pa Legislature addresses this unexpected tragedy at some point in the future.

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Supreme Court of Pennsylvania Relieves Employers from Issuing Injured Workers a Notice of Ability to Return to Work before Entitlement to Compensation has been Decided

The PA Workers’ Compensation Act was enacted to provide injured workers with much needed income and medical benefits for injuries occurring at work. You could say the Act was written to protect the interests of injured workers. Because of the intent behind the Act, there are times the Employer must follow certain procedures in order to suspend modify or terminate the benefits an injured worker is receiving. For instance, when an Employer obtains medical evidence that a workers’ medical status has changed from a total disability to a partial disability, they may modify the benefits you are receiving by providing you with a “Notice of Ability to Return to Work.” This is notice your condition has changed and that you are capable of working in some capacity. This is meant to put you on notice that failure to look for available work, or accept a job offer within your physical capabilities, could affect your future rights to receive workers’ compensation wage benefits.

On May 26, 2015, the Supreme Court of Pennsylvania ruled that Employers are only required to issue a Notice of Ability to Return to Work if entitlement to compensation has already been decided.

Prior to the School District acknowledging her work-related injury, and prior to the filing of a Claim Petition, on her behalf, a Teacher failed to accept a modified position offered by her Employer. Both the Teacher and her treating physician agreed that she was capable of performing the job that was offered. Her Attorney argued that the Offer of employment was invalid due to the Employer’s failure to issue the Notice of Ability to Return to Work mandated by Section 306 (B) (3) of the Pennsylvania Worker’s Compensation Act, as amended.

The Pennsylvania Supreme Court disagreed with Claimant’s Counsel holding that the employer’s obligation to send Notice of Ability to RTW is not triggered until the Injured Worker is entitled to WC Benefits. As the Offer of modified employment was made prior to the commencement of any Litigation or acceptance of the work-related injury, the Employer was not required to send out the Notice of Ability to Return to Work when offering modified duty employment.

What does this mean for you? This holding makes it even more important to see an experienced attorney after you suffer an injury at work. If, as in this case, you receive a job offer before your injury has been accepted as work related, it is essential you have an experienced attorney to discuss these issues with. Your attorney will advise you what steps to take to protect your future entitlement to benefits.


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Can My Employer Force Me Back To Work Before I’m Ready?

NO! Your employer cannot force you back to work after a work injury before you are ready though they might try to. You should follow the advice of your own treating doctor when deciding when it is best for you to return to work after an injury. If you are only treating with the company or panel doctor at the time, you should consult with your own doctor or, a doctor of your choice if you disagree with the company doctor that you can work. Another option is to try to return to work and see if your employer really has work within your restrictions, especially in a situation where you were released for light work only. If you find out that you are not able to do the work offered by your employer when you return to work or, that the work was not light work as promised, you can always stop working and go back out on workers’ compensation benefits. Whatever you decide, you should only return to work after receiving medical clearance to go back to work in some capacity. Your health is most important. You do not want to do anything that might aggravate your injury until you are healthy enough to return to work.

You might receive a Notice of Ability to Return to Work in the mail from your employer. Do not be alarmed! Your employer is obligated by law to send this Notice to you whenever they receive medical information that you can work in some capacity, whether the medical release is from their doctor or your own. The purpose of the Notice is to advise you of your legal obligation to look for work after you have been released to return to work following a work injury. But, if the Notice of Ability to Return to Work is based on the employer’s doctor and you disagree with the release, you should discuss returning to work with your doctor before actually going back to work or, before you start looking for work.

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Commonwealth Court Finds Ongoing Workers’ Compensation for Occupational Asthma Claim

The Commonwealth Court decided the case of Little v. WCAB (Select Specialty Hospital), on January 9, 2015. The Court held that a Claimant who develops asthma caused by exposure to chemicals at her work place is entitled to ongoing workers’ compensation benefits. This is an important decision because the Court, in the past, had found that disability caused by asthma from a work place exposure, ended once the workers’ symptoms ended and returned to her baseline condition. However, the Court through the Little case have modified their prior position.

Ms. Little was diagnosed with asthma that resulted from inhaling chemicals from wax used to clean the floors at her job. Though Ms. Little tried to return to her job several times, the chemicals from the wax continued to aggravate her asthma. Ms. Little was forced to seek another job. However, her new job was only part time and paid much less than her “time of injury job” did.

The Court decided that Ms. Little’s case was different from prior cases. In Bethlehem Steel Corporation v. WCAB (Baxter), a worker’s pre-existing asthma was aggravated when he inhaled paint fumes while working as a welder. The Commonwealth Court found that because his asthma returned to its baseline condition when he was not exposed to the fumes, he was not entitled to ongoing benefits. However, in Ms. Little’s case, her asthma was found to be caused by her exposure to chemicals at work by both her treating physician and the Employer’s medical expert. Any time she was re-exposed to chemicals, her symptoms returned. The Court reasoned that because Ms. Little had no history of asthma, and her symptoms would recur any time she was exposed to the chemicals, she could never return to her “baseline” condition as the Claimant in Bethlehem Steel. Based on this distinction, the Court awarded ongoing benefits to Ms. Little.

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What Happens If My Employer Does Not Have Workers’ Compensation Insurance?

All employers in the state of Pennsylvania are required to carry workers’ compensation insurance to cover their employees in the event of a work accident, no matter how small the employer is. In fact, an employer can be subject to both civil and criminal penalties for failing to carry workers’ compensation insurance. Unfortunately, this threat does not prevent it from happening. When an employer does not carry workers’ compensation insurance, an injured worker has the option under the law to either sue the employer in tort or negligence or, pursue a workers’ compensation claim against the employer just as you would if they were insured. If you choose to do the latter, you will have to execute or perfect any judgement that you receive in workers’ compensation court in the Court of Common Pleas in order to try and recover the award. This will result in a rather complicated and lengthy process to try and get paid and, often times it results in no recovery because the employer is judgement proof (has no assets). You can only choose the other option of suing your employer civilly if you can prove that the employer’s negligence caused your injury. This is not always the case. In fact, most work injuries are the result of an accident and are not anyone’s fault. If you cannot prove that your employer’s negligence caused your injury, you cannot file a civil action against your employer if they were not insured for workers’ compensation purposes at the time of your work injury.

Generally speaking, if an employer has workers’ compensation insurance your only remedy is to file a workers’ compensation claim against your employer. Also, you cannot recover pain and suffering damages in a workers’ compensation claim like you can in a negligence lawsuit. You are only entitled to wage loss and medical benefits in workers compensation.

If your employer was not insured and you cannot show that your employer’s negligence caused your work injury, there’s still hope. You can file a workers’ compensation claim against the Uninsured Employer Guarantee Fund (UEGF). This is a special fund in the state of Pennsylvania that was created to provide workers’ compensation coverage to injured workers’ when their employer is not insured. The Fund essentially stands in the shoes of the uninsured employer and pays any wage loss and medical benefits that the injured worker is entitled to. The UEGF is funded by an assessment charged to every insurance carrier and self-insured employer who provides workers’ compensation insurance in the state of Pennsylvania. The Fund will continue paying the injured worker compensation once liability attaches until they prove that the injured worker is recovered from their injury or, recovered enough to return to work at the same pay, just like an insured employer. There are strict rules that apply to filing a claim against UEGF and, what you can and cannot recover from the Fund beyond wage loss and 2medical benefits, so it is a good idea to speak with an experienced workers’ compensation lawyer when you are faced with an uninsured employer.

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