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Do I Need A Workers’ Compensation Attorney?

The short answer: YES. It’s simply not worth trying to navigate the Workers’ Compensation system without the help of an experienced Workers’ Compensation attorney. Instead, it is worth at least talking to a Workers’ Comp attorney for a free consultation to ensure the insurance company is treating you in accordance with the law. This means more than just getting wage loss checks.

What does that mean and how can an attorney help? When you are injured on the job you should NOT have to pay for the treatment related to your work injury—not even a copay—and neither should your personal health insurance. In some instances you may have to treat with a “panel physician” for 90 days following your injury; but in other situations you can treat with doctors you choose. However, many doctors will refuse to treat a work injury because of the complexity and time delays in billing the insurance company. An experienced Workers’ Compensation law firm will sort through your paperwork and set you up with exceptional doctors as soon as possible.

Take the story in this article as an example of how insurance adjusters can mislead injured workers. A waitress slipped on the job and fractured her knee. When a regular customer, who happens to write a Workers Compensation blog, asked if the insurance company treated her well, the waitress replied “”Workers’ comp? Those workers’ comp people were terrible. They were worthless.” Apparently, the Emergency Room doctor advised the waitress to follow up with an orthopedic specialist the following Monday, but that Monday morning she received a call from the insurance adjuster. She was told she could not see an orthopedist for 7-10 days. Obviously the adjuster was wrong—you shouldn’t wait 7-10 days to treat a fractured knee. Fortunately, the waitress had the wherewithal and ability to still get treatment, but she had to bill her personal health insurance.

This is not to say that adjusters decline to pay for treatment maliciously. But it is simply not their job to look out for the best interest of an injured worker. That’s the injured worker’s attorney’s job. Pennsylvania Workers’ Compensation is complex and constantly evolving, and navigating the system alone can lead to lost rights and very negative outcomes. It is always worth at least consulting with a Workers’ Compensation attorney to make sure you are getting what the law says you should.

Joshua Slavin, Esquire

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Worker’s Compensation Benefits May Offset Against Employment Discrimination Back Pay Awards

In Pennsylvania, do worker’s compensation wage loss benefits offset back pay awards in employment discrimination cases? Perhaps not surprisingly, the answer is “it depends.” There is no binding precedent in the Third Circuit (the offset would arise in the employment discrimination case, which most likely involves a federal claim under the ADA, Title VII, etc.), but at least the Eastern and Middle District have ruled that there is an offset. However, their holdings may be limited to self-insured employers. Read on for further explanation and a discussion on how to limit the amount of the offset.

At the heart of the issue is the collateral source rule, which originates in tort law. The collateral source rule provides that the amount of damages awarded against a defendant should not be reduced by other money given to a plaintiff from a collateral source, like a plaintiff’s private insurance, even if it results in double recovery for the plaintiff. McKenna vs. City of Philadelphia, 636 F.Supp 2d. 446 at 457 (E.D. Pa. 2009). The justification for the rule is that a wrongdoer should not get the benefit of payments that come from a source “collateral” to the defendant. Id. at 462.

The Third Circuit has not yet ruled whether the collateral source rule applies in cases that have both a worker’s compensation and employment discrimination aspect. Or, in other words, it has not yet ruled whether worker’s compensation benefits should be deducted from an award of back pay in an employment discrimination case. There is a split amongst the circuits on this issue: see McLean v. Runyon222 F.3d 1150, 1156 (9th Cir. 2000) (holding that the collateral source rule does not apply where the employer, USPS, was self-insured under the Federal Employees’ Compensation Act); but see Moysis v. DTG Datanet278 F.3d 819 (8th Cir. 2002) (holding that worker’s compensation payments should not be deducted from a back pay award under the ADA because they come from a collateral source). However, the Third Circuit district courts that have addressed the matter have held that the collateral source rule was NOT applicable. McKenna at 457. The Eastern District agreed in McKenna, but used language that may indicate the holding is limited to self-insured employers.

In McKenna, the court relied on the fact that the defendant, the City of Philadelphia, self-insured against worker’s compensation claims, and therefore the plaintiff/claimant’s worker’s compensation benefits came from the same source as his employment discrimination back pay award. Thus, the source of both payments was not collateral, but in fact the same. The court therefore deducted worker’s compensation wage loss benefits from the back pay awarded in the employment discrimination case .

In a memorandum order ruling on various motions in limine, the Middle District cited McKenna as support for not applying the collateral source rule, but then drew a further distinction. Miller v. Tyco Electronics, Ltd., No. 1:10-CV-2479, 2012 WL 5509710, at *3 (M.D. Pa. Nov. 14, 2012). It noted that the plaintiff/claimant’s C&R did not specifically delineate between settlement money for wage loss, future medical treatment, and disfigurement claims, and thus allowed the plaintiff/claimant to present evidence that some amount of the settlement should be apportioned to medical or other expenses rather than wage loss only.

Relatedly, worker’s compensation attorney’s fees are excluded from any offset against back pay. McKenna at 458. The McKenna court reasoned that the purpose of Title VII is to make the plaintiff whole, and because counsel fees did not go to the plaintiff/claimant they should not be included in the deduction from a back pay award. See also Supinski v. United Parcel Serv., Inc., No. 3:06-CV-00793, 2012 WL 727824, at *3 (M.D. Pa. Mar. 6, 2012) (favorably citing McKenna over Middle District precedent and holding that attorney’s fees are excluded from worker’s compensation payments that offset back pay).

Two conclusions can be drawn. The first is that a viable argument exists that the collateral source rule should (and does still) apply where the employer is not self-insured for worker’s compensation claims. This is a particularly appealing argument where the Uninsured Employer Guarantee Fund (UEGF) is on the risk for the worker’s compensation claim but the employer is liable for the discrimination claim.

The second conclusion is that even where a worker’s compensation settlement will certainly offset an award of back pay in an employment discrimination case (i.e. where the employer was self-insured against worker’s compensation claims), counsel should characterize as much of the settlement money as possible as non-wage-loss money. This should be done when settling the worker’s compensation case and in the employment discrimination case. Worker’s compensation attorney’s fees should be excluded, specific loss money should be excluded, and the cost of future medical treatment related to the work injury should be excluded. This will be helpful in settlement negotiations in the worker’s compensation case as well because it deflates the defense attorneys’ argument that all of the worker’s compensation settlement money will reduce any back pay awarded in the employment discrimination case.

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I Only Work One Day a Week. Can I Still Get Workers’ Compensation Benefits?


Yes! The Workers’ Compensation Act provides benefits to any employee who has been injured at work no matter how much money you make or how many days a week you work. If you are injured at a part-time job, and as a result you lose time from your primary job, you are entitled to be compensated for the loss of wages you are suffering from both jobs. This is referred to as wage loss for concurrent employment.

What if I am an Independent Contractor? Am I still entitled to benefits?

Generally, independent contractors are NOT eligible to receive Workers’ Compensation benefits. The Workers’ Compensation Act requires the existence of an employee/employer relationship in order for you to be eligible for benefits. However, just because you received a 1099 from your job does not automatically mean you are an independent contractor. Courts look at the type of employment relationship that exists. If you have no control over the type of work you perform, if your boss doesn’t give you the ability to accept or reject work, if you cannot hire or fire your own employees, and if your pay is based on the time that you work rather than by the job, you will likely be found to be an employee under the Act.

Recently, the Commonwealth Court of PA, ruled that an employee that had orally agreed to work as an independent contractor was an employee under the Workers’ Compensation Act. The Court held a painter who didn’t sign an independent contractor agreement before he was injured on the job is considered an employee and entitled to workers compensation benefits. The Employer testified before a Workers Compensation Judge that, prior to starting work, the Claimant was told he would make $100 per day and that he would have to sign an independent/subcontractor agreement. However, because no signed agreement existed before the work injury occurred, the Claimant was found to be an employee by law, and was entitled to the receipt of Workers’ Compensation benefits. Staron v. WCAB (Farrier), 2015 WL 4379848, decided July 17, 2015.

It is essential for you to discuss these issues with an experienced Workers’ Compensation attorney to determine your eligibility to receive benefits.

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Need to Apply for Veteran’s Benefits?

If you sustained a physical injury while serving in the armed forces or are suffering from mental impairments as a result of your military service you should apply for benefits through the Veterans Administration (“VA”) as soon as possible. Any veteran who was discharged or released under conditions other than dishonorable can apply for VA benefits. There are two types of monetary compensation benefits available through the VA. The first is service connected disability compensation or veterans disability benefits. In order to qualify for these benefits you must have been diagnosed with a disease or a disability that was caused by or resulted from your military service. Your disability benefit amount will be based on the rating assigned by the VA to your disability. The VA assigns a rating to a veteran’s disability by using a rating table that ranges from 10% to 100%. The higher the disability rating, the more a veteran will receive in monthly disability payments.

The second type of monetary compensation the VA pays is a pension. A veteran can apply for a pension if they have at least 90 days of active duty, including one day during a wartime period and have a family income that falls below the yearly limit that is set by law. You must also be age 65 or older, or totally and permanently disabled. Both veteran’s disability benefits and pension benefits are exempt from federal and state taxes.

Although the VA does offer veterans assistance in filing for these benefits, you as the veteran have the option of choosing a private law firm to assist you in filing your claim. The VA claims process, even at its best, is slow, subject to error, and requires frequent follow up. You are more likely to be successful at getting paid on your claim if you have a VA accredited attorney who can professionally develop your file by providing the proper evidence, organizing your information and maintaining the frequent contacts that are necessary when dealing with the VA. Most private law firms won’t handle filing VA claims at the initial level, as VA law prevents private lawyers from collecting a fee on initial applications. However, Banks Law is here to assist veterans and will develop and submit your initial application for veteran’s benefits to the VA as a “fully developed claim” on a pro bono basis. This means that as a thank you for your service we will file your initial application for VA benefits at no cost to you.

Please contact us today to ask how we can help you with obtaining your VA benefits.

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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 an injured workers’ medical status has changed from total disability to partial disability, they must send the worker a “Notice of Ability to Return to Work” before filing a petition to suspend or reduce compensation. This notice informs you that 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 right 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 duty job 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 job offer was invalid because the Employer failed to issue the Notice of Ability to Return to Work mandated by Section 306 (B) (3) of the Pennsylvania Worker’s Compensation Act before making the job offer.

The Pennsylvania Supreme Court disagreed with the argument made by the injured worker’s attorney by holding that the employer’s obligation to send the Notice of Ability to Return to Work is not triggered until the injured worker is entitled to workers’ compensation benefits. Since the offer of modified or light work was made prior to the start of any litigation or, acceptance of the claim, the Employer was not required to send out the Notice of Ability to Return to Work when the job offer was made.

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 walk you through this issue. Your attorney will advise you what steps to take to protect your rights.


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