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Banks Law Settles $2.5 million Workers’ Compensation Case

Banks Law is very pleased to announce that we recently negotiated one of the largest workers’ compensation settlements in Pennsylvania, if not the country. In a decision dated 9/13/2017, Judge Audrey Timm approved a $2.5 million dollar ($2,556,815.00 to be exact) C & R in the case of Vincent Burgese v. Trustees of the University of Pennsylvania. The C & R hearing was held before the Judge on 9/11/2017. The settlement was negotiated at a voluntary mediation with Judge Tina Rago on 7/17/2017. The settlement resolved Mr. Burgese’s open medical claim only as his wage loss claim was previously settled by firm founder, Halmon “Sonny” Banks on 3/30/2012 for $275,000.00. The million dollar deal included upfront cash and an annuity (via a MSA) payable over Mr. Burgese’s life-expectancy.

Mr. Burgese was hurt at work on 1/10/2003 while working for the University of Pennsylvania as a housekeeper. He started working for the University in 1988. He severely injured his lower back when he lost his balance and fell down stairs. He hasn’t worked since the accident except for a five (5) week period when he tried to return to work following his first back surgery. The University accepted Mr. Burgese’s claim by way of a Notice of Compensation Payable (NCP) describing his injury on the document as a herniated disc at L3-4. Mr. Burgese eventually had 2 surgeries on his lower back in February 2003 and in June 2006. The latter surgery was done to implant a spinal cord stimulator to try and address his severe lower back and leg pain. Neither surgery gave Mr. Burgese significant relief. He continues to have severe lower back and leg pain twenty-four (24) hours a day, seven (7) days a week. He is forced to take a multitude of medications including Percocet, Oxycontin, Xanax, etc in conjunction with the stimulator that was surgically implanted. He also uses a TENS unit, a special mattress to help him sleep and, he was prescribed a scooter to help him get around. Mr. Burgese is only 51 yrs old. He was 36 yrs old at the time of his injury which means Mr. Burgese has had to deal with crippling lower back pain most of his adult life. Mr. Burgese has 7 kids who he couldn’t run, jump and play with because of his back injury. In addition to his weekly workers’ benefit of $608.94 per week, he was awarded SSD benefits in 2005 due to his inability to work in any capacity because of his lower back.

Mr. Banks has represented Mr. Burgese since February of 2005. He successfully defended Mr. Burgese before both the WCJ and WCAB in several rounds of litigation over the years when the employer tried to reduce Mr. Burgese’s benefits through a Labor Market Survey (LMS) and an Impairment Rating Evaluation (IRE). Mr. Banks was successful in 2009 in getting Mr. Burgese’s compensable work injury expanded to include a second herniated disc at L4-5, multi-level lumbar radiculopathy, depression and ED.

This settlement allows Mr. Burgese to finally re-gain control of his life rather than have the employer and their workers’ compensation insurance carrier dictate his every move. He is finally at peace after an almost fifteen (15) year battle to simply get what he was entitled to. The entire Banks Law team wishes Mr. Burgese and his family the very best in the future.

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Home Car Modifications

Did You Know…? In some cases injured workers’ are entitled to have modifications of their home or vehicle paid for by the workers’ compensation insurance company?

Generally, Section 306(f) of the PA Workers’ Compensation Act, provides for payment of reasonable medical expenses that are related a person’s work injury. These services include, among other things, surgery, medicines, supplies prosthesis, chiropractic care and even massages and acupuncture. Until the employer can establish that any or all of this care is not reasonable or necessary, bills for related medical treatment must be paid no later than 30 days after the insurance company receives the bill from the doctor. The Workers’ Compensation insurance company is only responsible for paying for treatment related to the claimed work injury. If you break your ankle at work, do not expect the workers’ compensation insurance company to pay for treatment for an unrelated heart condition.

In some cases, a person’s injury is so severe, that she might need more assistance than traditional medical care. What happens if a person is so severely injured that she can no longer drive? What happens if a person is so severely injured that she can no longer climb stairs to her own bedroom? In special circumstances, the Workers’ Compensation insurance carrier may be liable to pay for modifications to an injured workers’ home or vehicle, when necessary, because of a work related injury.

The Courts in Pennsylvania have found that the remodeling of a home and modification of an automobile should be treated as necessary orthopedic appliances, that are eligible for payment. Enterprise Rent-A-Car v. WCAB (Clabaugh), 934 A.2d 124 (Pa.Cmwlth.2007). In one situation, PA Courts found that modifications to a vehicle weren’t enough to help an injured worker, and ordered the insurance co. to pay for the purchase price of a special van that could be outfitted with wheelchair lift. Griffiths v. WCAB (Seven Stars Farm, Inc.), 943 A.2d 242 (Pa.2008). The costs required to retrofit a van with hand controls and other modifications are the employer’s obligation under the Act. Petrilla v. WCAB (People’s Natural Gas), 692 A.2d 242 (Pa. 2008). Other medical supplies the insurance carrier is normally responsible for paying for include, wheelchairs, walkers, chair lifts, special beds ect.

Whether you can force the Workers’ Compensation insurance company to pay for modifications to your home or vehicle depends on the unique circumstances surrounding your work injury. Insurance Companies normally do not pay for these expensive items without a fight. That is why it is always important to have an experienced attorney protect your rights, and to fight for your best interests.

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Why can’t I get any extra money for the poor way I have been treated by my job? My friend was injured in a car accident and got an award for “pain and suffering.” Can I get that in Workers’ Compensation?

The short answer is no. The Workers’ Compensation Act was designed to quickly help injured workers and enable them to obtain benefits while they recuperate after an injury. If you are unable to work in any capacity, your Employer is responsible for paying 2/3rds of your lost wages and for medical treatment you receive because of your work injury. To be eligible for workers’ compensation benefits neither you nor the employer need to be “negligent” or at fault. In other words, to obtain benefits you don’t need to prove your Employer did anything wrong that resulted in your injury. Your friend who was injured in the car accident does have to prove “negligence,” or fault of the other party in order to obtain money damages. Because an injured worker does not have to prove his Employer was at fault for his injury, the worker is not eligible for pain and suffering damages.

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What if I’m never able to return to work after my work injury?

You can theoretically receive workers’ compensation benefits under the Pa WC Act for life as long as you can prove that your work injury prevents you from working. Pennsylvania, for the most part, is a wage loss state for purposes of workers’ compensation benefits meaning if your injury is causing you to suffer a wage loss then you are entitled to workers’ compensation wage loss benefits. Some other states, including New Jersey, only pay you wage replacement benefits for a limited period after which a percentage of impairment is established which results in the payment of one (1) final lump sum, regardless of whether the work injury still prevents you from working. There a two (2) types of wage loss benefits available under the Pa WC Act, temporary total disability benefits and temporary partial disability benefits. Each variety of benefit is referred to as “temporary” because an Employer always has the ability to file a petition challenging your right to continue receiving these benefits, assuming they have sufficient evidence to support the challenge (e.g., an opinion from an IME doctor of full recovery). There is no permanent disability under the Pa WC Act.

Temporary total disability benefits under the Pa WC Act are typically paid at 66 2/3% of your gross weekly pay (there are exceptions to this rule for low and middle income wage earners and, there is a cap or max rate that applies to high wage earners). Total disability benefits are paid as long as the injured worker is completely out-of-work due to their work injury. There is no cap or maximum number of weeks that an injured work can receive total disability benefits. Total disability benefits can be paid for life if the injured worker never recovers from their work injury and, they don’t go back to work in some capacity. Temporary partial disability benefits on the other hand are paid when the injured worker returns to work (either to their regular job or something else) at a wage loss, e.g. earning less than what they did before the work injury. Partial disability benefits are paid at 66 2/3% of the difference between your pre-injury wage and, your current earnings. The maximum compensation rate for the year of the injury is the only limitation imposed on the actual amount of partial disability benefits that you can receive. Otherwise, they are paid at a straight 66 2/3% of the difference between your pre-injury and post-injury earnings. Partial disability benefits are also paid if the Employer establishes through vocational evidence that an injured worker has an earning capacity though they haven’t actually returned to work. This evidence is called a Labor Market Survey (LMS). Partial disability benefits also paid when an Employer has an injured worker undergo an Impairment Rating Examination (IRE), but only after the worker reaches maximum medical improvement or MMI and, the examiner finds the worker less than 50% whole-bodied impaired. The most important distinction between the two (2) types of benefits is that there is a 500 week cap on partial disability benefits. This means that once the status change is made from temporary total to partial under any of the aforementioned circumstances, an injured work can only receive a maximum of 500 weeks of partial disability wage loss benefits. The 500 week period isn’t guaranteed though. The Employer can challenge a worker’s right to receive ongoing partial disability benefits at any time during the 500 weeks to try to suspend the payments or, modify/reduce them. The 500 week period, which is approximately 9 ½ years, is a significant period of time but, as you can see, the 500 week cap is what makes partial disability benefits considerably different than the total disability type that has no cap.

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Employer’s Subrogation Rights Expanded Again

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.


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Must I pay out-of-pocket for my work-related prescriptions?

ABSOLUTELY NOT! As long as you’re receiving wage loss benefits, you’re also entitled to full medical coverage for your work injury. Your employer or, its workers’ compensation insurance carrier are legally obligated to pay for your work-related medical bills, including prescriptions; doctors’ visits; diagnostic studies such as x-rays, MRI’s, CAT Scans; surgery; hospital visits; physical therapy, chiropractic treatment; etc.Do NOT pay for any medical treatment yourself because it’s a lot harder for us to get you or your private health insurance carrier reimbursed than it is for us to force the insurance company to pay your medical provider directly. Plus, you shouldn’t have to pay a co-pay to your doctor or pharmacist when your work-related medical bills and prescriptions are the sole responsibility of the workers’ compensation insurance carrier.

The problem is that many of your doctors and pharmacies who aren’t accustomed to dealing with workers’ compensation claims either don’t want to wait for payment from the insurance company or, they don’t know what’s needed to properly submit their bill for payment. Another problem is if your workers’ compensation claim is denied and you need to hire a lawyer to file a petition to get it recognized. Many doctors and pharmacies that aren’t familiar with the workers’ compensation system won’t treat you or fill your prescriptions without a guarantee that they’ll be paid. The workers’ compensation insurance carrier isn’t responsible for paying your medical and pharmacy bills when your claim is denied until a Judge orders them to pay the bills. But, your attorney can refer you to doctors, diagnostic facilities, therapist and pharmacies that will treat you and fill your prescriptions until a Judge issues a decision in your case. At Banks Law, we have partnered with WIRX Pharmacy, a local Philadelphia-based mail order and hand delivery pharmacy, who will fill and deliver your work related prescriptions to your home, whether your claim is accepted or not, usually in less than 24 hours. Their customer service and response time are excellent. More importantly, they’re located right here in Philadelphia unlike many of the other mail order pharmacies that you might be used to, so if a mail order delivery problem arises, it can be fixed through a hand delivery. Because Banks Law is an investor in WIRX, we have an incentive to make sure the delivery of your work-related prescription medication is seamless. You’ll direct any pharmacy questions to Banks Law just like you do with any legal issues involved in your case. This eliminates the need to deal with anyone other than Banks Law to resolve issues in your case. WIRX pharmacy is another example of our full service pledge to you. Call us and find out more about the benefits of having your work related prescriptions filled and delivered to your home by WIRX.

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Pre-existing conditions and workers’ compensation

Just because you have a pre-existing condition does NOT mean your work injury should be denied. A core concept in the law is the “eggshell plaintiff rule.” It says that even someone whose bones break as easily as an eggshell can still fully recover for all injuries resulting from a tort, even if the act that caused those injuries would not have hurt the average person nearly as badly. In workers’ compensation, that means that even if you have a severe pre-existing condition, if it was made worse by a work-related injury, then you are entitled to workers’ compensation benefits.

A colorful case from Indiana provides a good example of this concept. In it, a morbidly obese employee suffered from diabetes and used a cane because of her bad knees. At an employee appreciation dinner she got stuck in a booth and ended up cracking her femur (thigh bone) trying to get out of the booth. The fact that her pre-existing condition (obesity and leg problems) contributed to her injury was irrelevant thanks to the eggshell plaintiff rule. Waters v. Indiana State Univ., 953 N.E.2d. 1108 (Ind. Ct. App. 2011).

For you, this rule means that even if you had a very bad back before your work injury, for example, you should still get workers’ compensation benefits if your bad back was made worse by a work injury. Oftentimes insurance companies will ignore the eggshell plaintiff rule and deny liability for work injuries because of a pre-existing condition. They are wrong when they do this. You need an attorney to help make the insurance company do the right thing and accept liability for your work injury, even if you have a pre-existing condition. Don’t hesitate. Call Banks Law today.

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The Health Benefits of Regular Exercise

What is a simple way to feel better, have more energy and perhaps live a longer life? Exercise. The many health benefits of regular exercise are hard to ignore. Read on to discover the ways regular physical activity can improve your health and life.

Exercise can help you control your weight. When you engage in physical activity your body burns calories. The higher the intensity of the activity, the more calories you burn. In addition, exercise helps you build muscle mass. Even at rest, muscle mass burns many calories and helps to increase your metabolism. So, the great thing is, the more muscle mass you build from exercise, the more calories you can burn, even at rest, which helps you control your weight. Good stuff.

In addition, exercise can help keep the symptoms of many health conditions under control including, diabetes, high cholesterol and high blood pressure. In addition, it has been shown that regular exercise can combat the symptoms of stress and depression. Exercise increases blood flow, which helps your body metabolize sugars and stimulates certain brain chemicals which can help you feel better physically and mentally. In addition, exercise helps you fall asleep faster and it promotes deeper sleep which can make anybody feel better.

As little as one half hour per day of regular physical activity is all you need to begin to realize the great health effects of exercise. And, you don’t have to sign up for a marathon to begin to notice these positive benefits. Activities as simple as taking the steps instead of the elevator, parking farther away from the door at the shopping mall or taking a walk on your lunch break are all great ways to incorporate more physical activity into your life. Of course, you should always consult your doctor before beginning any exercise program.

The positive benefits of exercise are waiting for you to discover today so grab your shoes and get out there.

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Dealing with Governmental Agencies

There is nothing more discouraging then dealing with governmental agencies, whether they are federal, state or local, when trying to obtain benefits to which a person is entitled.  You could be:  (1) An employee, injured on the job and needing Workers’ Compensation,; (2) a veteran who was injured during active duty military service requiring V A Benefits; or (3) a person who has a disability who must apply for Social Security Disability or SSI.  In any of the aforementioned situations, the process is most often extremely long and can be unnerving for those who have no income, and  no way to pay their bills or provide support for their families.  The answer to these issues is positive support and acquiring attorneys who have their client’s best interest at heart.

I am a veteran and know what it feels like to endure the process where a person is applying for benefits and it seems like the government is always giving the veteran and the aforementioned people the run around.  Banks Law is an “ELITE” law firm specializing in these areas and we are genuinely concerned about our client’s wellbeing.   Although a company must make money to survive, the bigger picture is assisting those who cannot help themselves and must be dependent upon others to ensure work on their behalf gets done.  When I read an email noting that a Banks Law client has won their case, it makes me feel great inside knowing that I was a part of that process.  Another one of our people are happy and satisfied!

Veterans are near and dear to my heart because we took a pledge to protect our country upon entering active duty and have put our lives on the line for the people of this nation; also other countries abroad.  Veterans endure a lot of pain and suffering, whether it be physically or mentally, in accepting this mission and it’s great to be part of a law firm which assists them in obtaining benefits to which they are entitled.  My goal is to ALWAYS do the best that I can for our clients because ultimately they come first and it is extremely rewarding to see situations that have happy endings!  Banks Law Employees are the Best!  WE ARE ELITE!

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The Importance of a Professional Working Environment

Last night I was watching a show about businesses that failed to be successful due to lack of business knowledge and most importantly, the poor behavior their employees demonstrated. Many employers often get desperate, and hire anyone just so that they keep their business running, without really realizing the importance of having a strong team of workers. Yes, you can hire the best of the best, but when the employees cannot get along, and/or there is not enough positive vibes going around, work can be dreadful and end up in failure.

Obviously, everyone has their own personalities, and forcing someone to like a co-worker is not right, however, keeping it professional and friendly is always the best way. It is all about keeping their personal opinions aside, and trying their best to make themselves and the business successful. All it takes is one person to make things difficult and uncomfortable. For example, school group projects; if one person decides to not be responsible enough with their tasks and have an attitude, all the others in that group will suffer. Stress levels are crazy, bad confrontations can happen, and it will result in a poor grade. And the same thing will happen in a working environment.

I, myself, like to keep it short and sweet with my co-workers, not because I am anti-social or do not like to have a good time, but because it keeps me being drama free with others.

  • Personal stuff should be kept to the minimal
  • Less gossiping about co-workers, or any situation
  • Leave personal issues at home
  • Be super friendly, yet professional
  • Treat everyone with the same respect
  • Be positive, for yourself and others

Anything work related is great to discuss, but personal stuff should be kept minimal. Everyone will always have their differences, but being mature and setting that aside is most important. Emotions are normal, but having a negative attitude toward someone or your workplace is unnecessary. You are there to work and show off your skills, not to create drama. Just know that a happy person and working environment will result in less stress, and great success.

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