Paula Robinson's Blog for Workers Compensation & Disability |

When It Pays to Complain

Workers’ Compensation case law helps lawyers help their clients, and the case of Gahring v. WCAB (R & R Builders and Stoudt’s Brewing Company), 128 A.3d 375 (Pa. Cmwlth. 2015) is a perfect example.  In this case, the injured worker (Claimant) first worked for R and R Builders where he suffered a low back injury resulting in disc herniations at two levels of his spine.  He settled his case with R and R Builders and their workers’ compensation carrier.  Some eight years later he went to work for Stoudt’s Brewing Company as a line cook, and the next year began to experience increased back pain, which then led to surgery the year after that.  The Claimant argued that the second employer was responsible for his back pain because he had to work increased hours, and most importantly gave sufficient notice of a repetitive traumatic injury to his low back because he complained over time to his supervisor, putting them on notice that this new work as a line cook was aggravating his prior work injury.

At the initial level of litigation before the assigned Workers’ Compensation Judge, the Judge did not hold the first employer liable, ruling that the aggravation of Claimant’s back condition occurred while Claimant was working for the second employer, but also ruled that the second employer was not liable because Claimant did not give timely notice of the injury.  The case was appealed all the way up to the Commonwealth Court of Pennsylvania, and the Court agreed with the Claimant.  The Court specifically ruled that because the Claimant complained overtime to his supervisor about his increased duties and work hours, that this indeed was timely notice and therefore ruled in the Claimant’s favor.

The bottom line is that if you are hurting from a work injury, you should say something and not feel bad or guilty about it.  Although you might think that it can be controversial, it is actually your responsibility to give notice to your employer of a work injury, or you could jeopardize receiving well deserved workers’ compensation benefits.

 

Cashing Out as a Bartender – It Pays

“It’s five o’clock somewhere!” a popular expression among adults after a long day or heading into a weekend. In America, globally for that matter, it is not uncommon for people to gather at local watering holes, aka a bar or pub, for happy hours, a quick drink and other social activities. To help business, many establishments have added themed nights like trivia night, dart tournaments, discount specials and more.

It is also known that good bartenders can make really good money in tips, especially on a busy night. This is where things can get tricky in the “tipping” industry. There are many jobs that pay minimum wage or even less and the rest of the income is tip based, therefore in order to make a decent living, one would rely heavily on tips. Keep in mind it is required by law that one claims all tips whether cash or via credit cards when you ‘clock out’ at the end of the day or night.

It is likely you know of someone that has ‘pocketed’ some of those tips without claiming them as income to avoid paying taxes. Yes, it is illegal, however it still happens. What people may not realize as a successful bartender or any tip related professional is that if they do not fully claim their wages and a work injury occurs there is no way to get appropriate wage loss benefits you should be earning.

Granted, one might not think bartending is a dangerous or high risk of injury job, but accidents do happen. Especially when you step back and look at the potential risk factors as a bartender it is not so glamorous avoiding those wet floors, broken glass, unruly patrons and more. Remember, no one plans for a work injury but if it happens you want to be protected.

Remember to tip your bartender – they count on it!

Pennsylvania Requires Employers to Obtain Workers Compensation

To most Americans, quality of life is very important. We strive for this image of work and life balance that we must attain. While there is no magic answer to that balance, peace of mind can be a big relief when it comes to workplace safety.

The Commonwealth of Pennsylvania requires employers to carry workers’ compensation insurance. This is for the protection of the employer and employee should the employee be hurt while on the job. Workers’’ compensation benefits provide Pennsylvania workers coverage for both medical benefits and wage loss due to a work injury.

In Pennsylvania, all employers of one or more employees are required to carry workers’ compensation insurance. A small price to pay for peace of mind should something happen on the job – medical and wage loss benefits. If you are an employee in the Commonwealth of Pennsylvania, speak to your employer as to who their workers’ compensation carrier is – it is required.

Reporting Obligations of the Injured Worker

So, you are hurt on the job in Pennsylvania.  Do you have any obligations to the workers’ compensation carrier who is paying your wage loss and medical benefits?  The answer is “yes”.  The carrier for your employer is entitled to know your status on several different issues, which we will cover, because they are paying you money and want to monitor your case.  The PA Workers’ Compensation Act makes the rules about the obligation to report receipt of certain benefits or changes in status, and has easy to complete forms to do so.

Once the forms are sent to you, the injured worker, you have thirty (30) days to complete, sign, date and send them back to the workers’ compensation carrier.  If you do not send them back within the thirty (30) days, you could face serious consequences, including suspension of your wage loss benefits or worse yet, proceedings under the fraud provisions of the PA Workers’ Compensation Act. Simply put provisions are rules within the law.

Typically, there are three (3) forms, referred to as LIBC (Labor and Industry Bureau of Compensation) forms that are sent as a packet by the workers’ compensation adjustor. These are the Employee Report of Wages (Other Than Workers’ Compensation Benefits Received); Employee Verification of Employment, Self-Employment, or Change in Physical Condition; and the Verification of Employment/Self Employment.  

They want to find out if you are receiving any other wages or have another source of income, because if so, then the workers’ compensation carrier is entitled to a credit equal to what other income you received.  Also, if you are doing something to earn wages, other than your workers’ compensation benefits, that might mean that you really are not disabled any longer, and the carrier might take steps to try and stop your receipt of benefits.  When you receive workers’ compensation wage loss benefits, always remember that you cannot receive wages from any employment, as this is fraudulent and could also lead to serious consequences, such as having to pay the money back to the workers’ compensation carrier and prosecution.

The benefit of being represented in a workers’ compensation case is that your attorney can help you in filling out the forms and getting them sent back timely to keep you in compliance and receiving your deserved benefits. 

OSHA’s Top 10 List for Violation in 2016

Graphic Products put out an OSHA list of top 10 work place violations to the public, for that list click the link below.  As a workers’ compensation attorney, I am not surprised to see these particular injuries listed.  If I had my pick, my top three, based on my 29+ years of experience would be Fall Protection, Powered Industrial Trucks, and Machine Guarding.

 https://www.graphicproducts.com/guides/top-10-osha-violations-of-2016/

Pennsylvania’s Version of the 10 Most Deadliest Jobs

A recent article put out by Forbes listed the 10 most deadliest jobs in America.  All of the jobs are also performed in Pennsylvania.  These include landscaping, lawn service and grounds keeping; electrical power line workers; agricultural workers; truck drivers, including drivers and sale workers; metal and steel workers; trash collectors; roofers; aircraft pilots; fishing workers; and logging workers.

Out of these jobs in PA, transportation, including truck drivers, drivers, and sale workers, had the highest reported amount of injuries in 2015, with 12,318.  The lowest of these is the fishing workers, with only 6 reported injuries in 2015.  Also, worth noting is the category of “manufacturing”, including all subcategories reported 22,291 injuries according to the 2015 Annual Report by PA Workers’ Compensation and Workplace Safety Report.

To see the article with video, click this link.

Which Court do I go through for my Workers’ Comp Claim?

According to the PA Workers’ Compensation Act and Regulations, and Statutes, an employee is not permitted to sue his or her employer.  Filing a workers’ compensation claim is the way to pursue a claim against the employer for a work-related injury.  There is, however, an exception referred to as the dual-capacity doctrine that permits the employee to sue his or her employer in civil court. If that employer operates in a capacity with duties and responsibilities that are separate and apart from the employee-employer relationship the dual-capacity doctrine can be enforced.

A fairly recent case, Neidert v. Charlie, III, _A.3d__(Pa. Super., 1903 EDA 2015, 2841 EDA 2015, filed June 29, 2016), explored the dual-capacity doctrine, where the injured worker not only had a workers’ compensation claim, but also tried to sue his employer in a civil suit alleging that the employer was also the building owner, and therefore, in a dual capacity. Simply put, dual capacity means the person being sued acts as both the employer and business owner, therefore is being sued twice. In this case, the Pa. Superior Court disagreed with the injured worker and would not permit the civil lawsuit to proceed.

Here is a brief explanation of the Neidert v Charlie, III dual-capacity case:

In this case, the employee, Neidert was injured while working, when he was using a door in the floor of the building owned by the employer, who was the sole owner of the business that operated the Pub, where the employee was hurt.  There was no disputing that there was a work injury, the employee received workers’ compensation benefits, and even a settlement payment for his workers’ compensation case.  The employee then filed a complaint in civil court, arguing that he suffered an injury as a “bar patron”, falling through a trap door in the floor, as a result of the employer’s negligence.  Read More

Do Superheroes Need Workers’ Compensation?

If you’re familiar with Marvel and DC then chances are you know about superheros.  Superheros have been all the craze in recent years as major blockbuster movies have been released. The Avengers, Batman vs Superman, Antman, and many others that emphasize superheros in today’s modern world.

The storylines often cross movies and although fictional it can be fun to follow along.  Being a

superhero is a pretty cool job… saving the world from “bad guys”, aliens, and evil.  But like most cool jobs aka “hands-on” there comes risk.  But how many superheros actually get hurt?  The Hulk can fall from a 100 stories, and get shot then spit out bullets.  Tony Stark, aka Ironman, is in a suit and only seems to walk away with scratches and bruises after a battle.  

Hypothetically who covers workers’ compensation for superheros?  Not many superheroes work for someone.  Unless you’re an Avenger then technically you work the government.  In that case would the government would cover workers’ compensation?  What if Bruce Wayne or Tony Stark get hurt on the job?  Can they file a worker’s comp claim with Wayne Enterprises or Stark Industries? Read More

Do I Get A Workers’ Compensation Settlement in PA?

If you have suffered a work injury and your claim has been accepted or even denied, there is a typically a chance that your workers’ compensation case can indeed settle for a lump sum amount.  Let’s look at an example if your workers’ compensation claim is denied by the workers’ compensation carrier first.  By issuing a Denial, the insurance carrier is letting you know that they are refusing to accept or pay for any portion of the claim that you are alleging…what this means is that they will not pay for any wage loss or medical treatment, period, end of story.

If your claim is denied, you can file what is known as a Claim Petition to appeal the Denial.  If you file a Claim Petition, you really do need a lawyer’s help, as there are certain burdens that you must meet to win.  The burdens include, but are not limited to Notice to your Employer.  Did you give timely Notice of your work injury to a supervisor, foreman, or manager, not simply to a co-worker.  Also, you will need a doctor who will be willing to testify on your behalf that you indeed suffered a disabling work injury, for which you are missing time from work.  Without a doctor to back up your version of how the work injury occurred and what injuries you suffered as a result therefrom, you will not be successful in your case.  So let’s just say that you can meet both of these burdens…..although your employer and their workers’ compensation carrier may have evidence to the contrary, all of the parties may decide to simply settle the case due to the uncertainties and length of time that the litigation can take, which by the way, is typically up to one year. Read More

PA Workers’ Compensation and Chiropractic Care

According to Wikipedia, Chiropractic is a form of alternative medicine[1] concerned with the diagnosis and treatment of mechanical disorders of the musculoskeletal system, especially the spine, under the belief that such a disorder affects general health via the nervous system.[2] The main chiropractic treatment technique involves manual therapy, especially manipulation of the spine, other joints, and soft tissues, but may also include exercises and health and lifestyle counseling.[3] The “specific focus of chiropractic practice” is chiropractic subluxation.[4] 

A large number of workers’ compensation cases involve injuries to the neck and back, usually from lifting or carrying heavy objects, or from a trauma such as an automobile accident or fall. Even if a person never had chiropractic work done on them before a work injury, it may be a great way to get relief from pain, increase mobility and range of motion.  No prescription is needed for chiropractic care, but the treating doctor for one’s work injury can recommend the same.  Some jobs require repetitive motion, forcing the worker to use the same movement or posture, which can strain and pull tendons and muscles. It is not only back injuries that can be treated with chiropractic methods, but shoulders, elbows, wrists, and hands.

In conjunction with chiropractic care, acupuncture, foot orthotics, massage therapy, corrective exercises, and exercise equipment can be used in pain relief.  Chiropractic can also help with balance control in the event that a worker suffers some type of head trauma, or concussion and is having difficulty with cognitive or balance issues.  Issues with back, leg, and neck pain, migraine and tension headaches, post-surgery back pain, pinched nerves, muscle spasms, hip pain, auto injuries and whiplash can also be helped with chiropractor care.  Keep in mind, however, that with chiropractic care, the workers’ compensation carriers take a dim view of continued ongoing treatment, as they simply want to keep the costs down and not pay for it.

If you or a loved one has unfortunately suffered a work injury and are receiving chiropractic treatment, the carrier can file what is known as a Utilization Review to have an independent chiropractor review the treatment given and offer an opinion as to the reasonableness and necessity of the treatment.  If it is found that that treatment is not reasonable or necessary, then the carrier will stop payment for the same.  This determination can be appealed by the injured worker, but is typically can be a long legal process.  Also, if the workers’ compensation carrier believes that the treatment is not related to the work injury, they will deny payment for the same and then the injured worker can file a Penalty Petition in an attempt to have the treatment paid for.

While there is certainly a time and place for chiropractic care following a work injury, just be mindful that the same could come with some issues regarding payment for the same.  Talk with your chiropractor regarding plans for types and lengths of treatment in order to have a better understanding of your particular treatment.  As always, ask questions about your treatment plan because it is your body and injury at stake.

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