Paula Robinson's Blog for Workers Compensation & Disability |

The Breakdown of Burden of Proof in Pennsylvania Workers’ Compensation

Every aspect of PA workers’ compensation has a burden of proof to be met.  For the injured worker, the Petitions to be filed to begin to receive or start receiving again workers’ compensation benefits are the Claim and Reinstatement Petitions, respectively.  Each will be explained along with the burdens of proof required for each.  For the employer and their workers’ compensation carrier, the Petitions that they have the burdens of proof on are the Modification, Suspension, and Termination Petitions.

Let’s first look at the Claim Petition.  If you have suffered a work-related injury, and it is denied by your employer’s workers’ compensation carrier, the only way to attempt to receive benefits is if a Claim Petition is filed.  There are elements that must be proven by you, the injured worker. First is that timely Notice must be given to your employer, either verbal or written.  The Notice must be given within 120 days of the injury, and must be given to a supervisor, foreman, manager, or owner of the company.  In other words, Notice cannot be just given to a co-worker or a friend at work, but to someone who is actually in charge.  If you give Notice verbally, you will need to testify as to the details of the Notice before a Workers’ Compensation Judge.  You also must have medical evidence that links your injury with your work.  The injury has to have been suffered in the course and scope of your employment.  Most times, this will involve taking a doctor’s deposition and submitting the transcript into evidence.  It goes without saying that you also must prove that you were working at the time of your injury, the amount of your wages at the time of the injury, your job with the company and your job duties.  All of these elements can be testified to before the assigned Workers’ Compensation Judge.  It is important to note that the burden of proof when trying to obtain wage loss and medical benefits is always on the injured worker and never shifts to your employer or their workers’ compensation carrier.

Also, with a Reinstatement Petition, the burden of proof also lies with the injured worker.  The Reinstatement Petition is filed after your wage loss benefits have been modified, suspended, or terminated.  The burdens vary based on the reasons for the stoppage of the benefits, and will be dealt with in another Blog.

Now, on the flip side, the Petitions that require the employer and their workers’ compensation carrier to have the burden of proof are the following:

  • Modification Petition
  • Suspension Petition
  • Termination Petition

 

All of these Petitions are filed by the workers’ compensation carrier on behalf of the employer against claimants (injured workers) to try to stop their receipt of workers’ compensation benefits in some way.  First, the Modification Petition seeks to “modify” or decrease the amount of wage loss benefits that you receive on a weekly basis.  This Petition is filed after the workers’ compensation carrier sends you for an IME (Independent Medical Examination) with a Dr. of their choosing, and that Dr. says that you, the injured worker are capable of returning to some type of work, like light or sedentary work.  Once that Dr. has given such an opinion, then the workers’ compensation carrier hires a vocational counselor to do a Labor Market Survey, Earning Power Assessment, indicating that there is work generally available for you to return to in the community that would pay either the same or less wages than you earned at the time of your work injury.  If the wages are the same, then a Petition for Suspension would be filed on behalf of the employer, workers’ compensation carrier; if the wages are less, then a Petition for Modification would be filed.  With both the Suspension and Modification Petitions, only the wage loss can be affected, and the medical will remain open.

If the IME Dr. says that you, the injured worker are fully recovered, then the carrier will file a Termination Petition, to stop both your wage loss and medical benefits.  In all cases, whether the Petition is filed on behalf of the Claimant or the Employer, the Petition will be assigned to a Workers’ Compensation Judge, based on where you live, and then a first hearing will be scheduled, a trial schedule will be set, and ultimately the assigned Judge will issue a Decision unless the case is settled.

 

 

Can I File a Claim Petition on My Own

If you suffer a work injury, give your notice to your employer, and your claim is denied, the next step is to file a Claim Petition that will get assigned to a Workers’ Compensation Judge, who will  take evidence from you and the employer, and ultimately decide the case, if it does not settle beforehand.  So, what is a Claim Petition?  It is a Petition filed by the Claimant i.e., the injured worker setting forth the details of the injury, including whether Notice was given to the employer, and how, the wage information, and dates that disability is alleged. The burden is on the Claimant to prove disability. In years past, the way to file the Claim Petition was to get the proper form from the Bureau of Workers’ Compensation, PA Dept. of Labor & Industry, have it typed up or hand printed by the Claimant him or herself, or hire a workers’ compensation lawyer to prepare and mail the same.  As with everything else, technology has taken over, and the Dept. of Labor and Industry has within the last few years launched an on-line tool for tracking and monitoring your case and filing Petitions, among other things, that is accessed and maintained on your behalf by your workers’ compensation lawyer, as well as your employer’s workers’ compensation carrier and Workers’ Compensation Judges.  This new on-line tool is referred to as WCAIS or Workers’ Compensation Automated Integrated System.  At this point in time, when an injured worker receives a Denial of their Claim in the mail, the Denial will give instructions to contact the Bureau of Workers’ Compensation in Harrisburg if the injured worker wants to pursue a workers’ compensation claim.  The phone number for the Helpline at the Bureau is 1 (800) 482-2383.  Once you ask for the Claim Petition, they will either email or mail you a packet, and you can fill the Claim Petition out yourself.  Please note that as time goes by, it seems to be the intention of the Bureau to go paperless.  While you can file a Claim Petition yourself, without a lawyer, the situation gets a bit rough without representation.  Once the Claim Petition is filed, it will be assigned to a Workers’ Compensation Judge in the closest Workers’ Compensation office to your home.  A lawyer for your employer and their workers’ compensation carrier will file an Answer to the Claim Petition and a first hearing will be scheduled by the Judge.  At this hearing, depending on the Judge, you will have to testify as to your work injury and must meet all of the elements necessary for the granting of the Claim Petition.  As most people have not had a prior work injury, and are not familiar with the litigation process, strategic points can be missed leading to the denial, once again of your claim.  Further, as medical evidence is needed from a doctor, who must give oral testimony, typically through a deposition, most individuals do not have the money to pay the doctor his fee, which in most cases costs thousands of dollars.  The doctor to be deposed would be the treating doctor, who can testify that the injury is work-related.  Usual deposition fees charged by the doctors are anywhere from $2,500.00 to $6,000.00 and they want to be paid ahead of time.  The bottom line is that if you have a Pennsylvania work injury denied by your employer’s workers’ compensation carrier, you can file the Claim Petition on your own, but it is really worthwhile to seek the advice of a certified workers’ compensation lawyer to ensure the best results.

Digging Safety in PA – Resident & Professionals

April celebrates National Safe Digging Month which is aimed at educating residents about the importance of safe digging on their property to avoid utility lines that may prevent outages, personal injury or even death.

All US residents and businesses are urged to call 8-1-1 before they dig. This phone number will connect them to the proper state resources to properly mark lines, pipes and more so you can safely dig. The Common Ground Alliance Initiative created a website http://call811.com/ dedicated to education and the importance of safe digging. This website has resources for residents, farmers
and contractors. They have also created a very educational video, shared below.


 

Do you know what is underground?

According to the Common Ground Alliance, “There’s more than one football field’s length of buried utilities for every man, woman and child in the U.S.”


If you are a Pennsylvania resident UGI has put out a helpful article of what to do BEFORE you dig on your property, you can read the full UGI article here. Another PA resident resource is provided by Pennsylvania One Call System, Inc a non-profit.   

When Digging is your Job

If your job requires digging on a regular basis – you receive training starting on day one. There are protocols, checks and balances in place to prevent costly and possible harmful mistakes.

When digging, there is always risk, especially when digging near buried water, gas lines, electric, phone, cable, sewer and more. When doing larger projects such as drilling for natural gas and fracking there are additional risks, especially with the heavy machinery. OSHA, Occupational Safety and Health Administration, has been created and dedicated to providing safe and healthy work condition by providing training, outreach, education and assistance.

OSHA has a comprehensive website dedicated to safe drilling here.

http://www.pa1call.org/PA811/Public/POCS_Content/News/National_Safe_Digging_Month.aspx

Your Commute To and From Work, Is It Covered Under Workers’ Compensation?

The law in Pennsylvania, commonly referred to as “the coming and going rule”, holds that traveling to and from work is not in the course of employment. Mansfield Bros. Painting v. WCAB (German), 72 A.3d 842 (Pa. Cmwlth. 2013).  There are, however, exceptions to this broad ruling. Those exceptions are:

  • The worker has no fixed place of work.
  • The worker is on a special assignment for the employer.
  • The employment contract specifically included transportation to and from work.
  • Unique circumstances in that the worker was furthering the business of the employer.

(Source): Peterson v. WCAB (PRN Nursing Agency), 597 A.2d 1116 (Pa. 1991); Peer v. WCAB (B&W Constr.), 503 A.2d 1096 (Pa. Cmwlth 1986).

Here are some real life, practical examples of cases where commuting was found to be within the worker’s course of employment.  A medical doctor was required to travel between two fixed places, as part of her regular job duties. One day, while traveling between the two offices, she was injured.  The Court found that because her job required her to travel between the two offices, that she was within the course of her employment. Ruth Fam. Med. Ctr. v WCAB (Steinhouse), 718 A.2d 397 (Pa. Cmwlth. 1998).

Another example is that a Pennsylvania State Trooper was going to work on a motorcycle when another car making an illegal turn went right in front of him.  Because of the illegal turn, the Trooper was injured.  What made the court determine that the Trooper was in the course of his employment was that the Trooper testified that prior to the impact of the accident, he intended to arrest the person for the illegal turn.  Pennsylvania State Police v. WCAB (Dick), 694 A.2d 1181 (Pa. Cmwlth 1997).

Next are some examples of where commuting was not within the scope of employment or the workers’ employment terms did not include transportation.  A worker for a painting company was sent to work on one, and only one project for its duration, and therefore was found to have a fixed place of employment.  That worker sustained injuries while commuting from work, which were found not to work related. Mansfield Bros. Painting v. WCAB (German), 72 A.3d 842 (Pa. Cmwlth. 2013).

In the case of Fonder v. WCAB (Fox Integrated), 842 A.2d 512 (Pa. Cmwlth. 2004), the worker fell asleep at the wheel on his way home after an exceptionally long shift to sleep, and get ready for his next shift.  Although he suffered work injuries from the motor vehicle accident, he did not qualify for benefits under any exception to the coming and going rule.

According to the case of Bechtel Power Corp. v. WCAB (Postlethwait), 648 A.2d 1266 (Pa. Cmwlth. 1994), the employee’s injury suffered while traveling home from work was not in the course of employment.  In this particular case, even though the employee had a per diem travel allowance, as provided by his union bargaining agreement, this was not enough to prove that transportation was indeed included in that contract.

Every case is different and unique, so the facts have to be reviewed and analyzed to determine whether a traveling injury is indeed covered by Pennsylvania workers’ compensation. It is best to consult an experienced workers’ compensation lawyer to help out in this regard.

 

Ethics of Claiming Income & Working Legally

If you follow our blog you may have seen the blog about bartenders and jobs that rely on tips for income. No only is it illegal to not report your tip earning, but you also run the risk of insufficient wage loss benefits in the event you have a work injury. Let us explain why it is so important.

In the state of Pennsylvania if you are employed by a person or company you are required by law to carry workers’ compensation insurance. Here is a quote from the first page of a downloadable PDF from the Department of Labor & Industry in Pennsylvania:

“ Workers’ Compensation (WC) is mandatory, employer-financed, no-fault insurance which ensures that employees disabled due to a work-related injury or disease will be compensated for lost wages and provides necessary medical treatment to return them to the workforce.

The workers’ compensation system provides an “exclusive remedy” to employers and employees and is designed to simultaneously achieve the goals of safer workplaces, prompt compensation and treatment of those it protects and reduced litigation costs to all parties.”

[If you are unsure if you are required to carry insurance or be insured click here to review the PA.gov website.]

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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/