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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.

http://www.pacourts.us/assets/opinions/Commonwealth/out/1024CD14_9-18-15.pdf?cb=2

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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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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.

http://www.pacourts.us/assets/opinions/Commonwealth/out/1024CD14_9-18-15.pdf?cb=2

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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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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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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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