The recently decided case Davis v. Workers’ Compensation Appeal Board (Pennsylvania Social Services Union), No. 216 C.D. 2015, once again solidified an Employer’s right to subrogation against a 3rd party insurance payout. The Commonwealth Court framed the question as “whether the employer and its carrier are entitled to subrogation against the uninsured motorist benefit recovery from a non-negligent co-employee’s personal automobile policy for which the employer did not pay.” It answered in the affirmative. This ignores the causation element of § 319 (“Where the compensable injury is caused in whole or in part…”), which was the basis of the claimant’s appeal. Whether damages for pain and suffering could have been excluded from the employer’s subrogation was specifically not addressed, as noted in a footnote in the case. ~Joshua Slavin, Esq.
Yes, you can get treatment for a psychiatric/mental problem that is caused by your work injury but it is the injured workers’ burden to prove that the treatment is work related. In most cases, this treatment will not be paid voluntarily by your employer. Their position will likely be that they didn’t accept a psychiatric injury but rather only a physical one, and therefore the employer isn’t liable for psychiatric treatment. This argument is technically correct. By law, an employer is only responsible for paying medical, and wage loss benefits, for the accepted injury. Typically, the description of the accepted injury on a Notice of Compensation Payable is limited by the employer to a “strain/sprain.” The only way an injured worker can hold the employer responsible for anything beyond this description is if the injured worker hires an attorney to file a Review Petition asking a Judge to expand the accepted injury. The litigation of a Review Petition to add injuries, whether they be physical or mental, can take a while and, it can be expensive. Your attorney will usually front any litigation costs associated with kind of petition but you’ll likely have to start paying a fee for his services in litigating the petition. More importantly, you won’t be able to hold your employer liable for the payment of medical bills for the injuries that you’re trying to add to the claim, until a decision is made by the Judge. This could result in you not being able to treat for the additional injuries for a year or more, unless you have some other form of health insurance. This is where an experienced workers’ compensation attorney can help. An attorney can often times get you to doctors and psychiatrist who are willing to treat you and wait for payment until the Judge issues a decision on this issue.
Bottom line. Be prepared to litigate the issue of getting your psychiatric bills paid as part of your workers’ compensation claim for a physical injury. Employers don’t want to assume responsibility for a psychiatric injury because it makes it difficult for them to pursue a Termination Petition in the future alleging full recovery from the entire work injury.