>Family and Medical Leave Act- 29 U.S.C. 2601 et. seq.

>Many people have a vague familiarity with the Family and Medical Leave Act. It is an important and useful tool that many employees can take advantage of, and something that is often overlooked by employees. I wanted to share with you the basics of FMLA. Feel free to share this information with friends or family members. Most of us will have a need sometime in our lives to use this mechanism of protecting our job.

FMLA provides employees with up to 12 weeks of unpaid leave in a calendar year, with job protection. All public employers of any size are covered under FMLA, and private employers with 50 or more employees. Employer must be “engaged in commerce or an industry or activity affecting commerce.” 29 U.S.C. Section 2611 (4) (A) (i). (very broad language used here)

What employees are eligible? Anyone who has worked at least 1250 hours during the preceding 12 months, and who has been employed for at least 1 year prior to the date leave is requested.

What types of leave are covered under FMLA? Birth of employee’s son or daughter; Placement of child for adoption or foster care; To care for close family member with “serious health condition”; If employee suffers from “serious health condition” which renders employee incapacitated from performance. For what constitutes a serious health condition, see below.

What type of notice must be given? If the leave is foreseeable, employee must give 30 days notice. If leave is not foreseeable, employee must provide notice “as soon as practicable” under the circumstances. Also, notice under FMLA does NOT have to be in writing, nor does it have to mention FMLA. This will surprise many people. Request only requires an employee to give notice of need for leave which may constitute FMLA eligibility. However, I advise my clients to make the request in writing and to mention FMLA. Why beat around the bush?

What are types of conditions that courts have upheld as being “serious health conditions”? Well, as you could have guessed, it must be serious- chicken pox, asthma, pregnancy related issues that impact ability to perform job function, etc. Indeed, this analysis is done on an ad hoc basis, and therefore depends on the individual circumstances.

What job is protected? The same or similar job you had prior to requesting the leave. To be more technical, “An equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment”.

Can an employer retaliate? No. Employer cannot “interfere with, restrain, or deny” employee’s right to exercise rights under FMLA.

If I receive workers’ compensation benefits for a work-related injury, can my employer also count my time out of work as FMLA time as well? Yes, if they provide you with written notice. This generally does not happen, but it may if certain requirements are met.

Is my job protected simply by my receipt of workers’ compensation benefits? No. And this is an important distinction between work comp leave and FMLA. If you are injured at work, the employer has no obligation to protect your job. However, with FMLA- assuming you meet the requirements, your job is protected. Now, an employer cannot fire you for filing a workers’ compensation claim, but they can couch your firing in other terms- such as “lack of work”, “excessive absence”, etc. So, an employer cannot retaliate against an employee for filing a work comp claim, but unless the employee has a contract that says otherwise, an employer can fire you for just about any other reason so long as it’s not in violation of public policy (ie, discriminatory).

I hope this summary has been helpful. Feel free to email me at mcardamone@krasno.com should you have any questions.

-Michael W. Cardamone, Esq.

>Late Wage Loss Checks- What is a Good Excuse?

>Every week, I receive at least one call from a client who failed to receive his or her indemnity (wage loss) check on time. With a large number of files, an insurance company adjustor can be overloaded with work. In turn, things can fall off cycle pretty easily. As soon as I hear this news from a client, I call opposing counsel or the adjustor (if insurer isn’t officially represented) and ask for a status. I rarely hear a good excuse, however. Instead, I hear that the check was already mailed, that it should be on time, that they have no reason to believe it’s late, or that they’re checking into it. I don’t think I’ve ever heard “Sorry, we made a mistake”. I have to believe a Claimant would accept this over the myriad of excuses noted above.

It’s not a secret that adjustors are often overwhelmed. When I worked on the “dark side”- working hand in hand with adjustors, I found out quickly that the adjustor or claims representative position was one that experienced a high turn over rate, one that lead to significant stress, and one that entailed a frantic pace. Unfortunately, Claimants’ bills are always on time. When their wage loss checks aren’t, this will result in 1) grief for Claimant, 2) expended time for Claimant’s attorney, 3) expended time for Defendant’s attorney, 4) expended time for the adjustor or claim’s rep, 5) expended time for Claimant’s counsel’s assistant in preparing a Penalty Petition, 6) expended time for defense counsel’s assistants, and 7) expended time for a Judge. So, a seemingly minor issue proximately causes a host of inefficiencies that needed not exist.

Moreover, when a check is late, a Claimant naturally feels at least a little frustration with his/her attorney because they believe that you may have something to do with things not going right. Trying not to sound defensive, I tell my clients that I am working as quickly as I can on the issue and getting answers- and that I’d write the check if possible. On the other hand, a Claimant should also build in a little flexibility with their payments/bills. I try to convey this at the outset of representation- that checks will often times arrive a day or two before or after the “expected date”, and to assume that it will be late rather than early. But after that day or two of flexibility, then it’s time to rightfully feel frustrated.

In summary, my feeling is that there isn’t really a such thing as a “good excuse” in this scenario. An apology would go a long way with most people, and, of course, actually fixing the problem.

>Independent Medical Examiners Versus Treating Physicians- Striking a Balance

>In just about every workers’ compensation claim in Pennsylvania, a Claimant will be examined by an “Independent Medical Examiner”. As most practitioners know, these examiners are not “independent”. Instead, they are hired by the insurance companies/employers. An insurance company is permitted, under the Pennsylvania Workers’ Compensation Act, to have a Claimant examined by an IME physician every 6 months. The IME physician examines a Claimant, reviews medical records and issues a report as to the disability status, ability to work and causal relationship between any diagnoses and the accident/injury at work. The IME physician often disagrees with the findings and opinions of the treating physician.

Many Claimants experience a rude awakening when the IME physician drafts a report stating they are “fully recovered” and can return to work without restrictions. I try to explain to my clients that the IME physician is entitled to render this opinion if he believes that there isn’t any objective evidence to support the subjective complaints. It is a rather academic approach to, what is in my opinion, a very subjective matter. There are not many objective signs of an injury- other than diagnostic studies- which can also be subject to much debate as well (ie, EMG studies in particular). Some objective signs of an injury could be swelling, atrophy, paresthesias (numbness), cold or hot temperatures, or color changes. However, in many cases, such as cases involving a back injury, it is quite difficult to objectively assess a Claimant’s condition- and tough to figure out whether there is objective evidence supporting the symptoms. IME physicians will often explain away herniations in the spine, as degenerative in nature, or not traumatically induced, whereas a treating doctor is more inclined to relate a herniation and any complaints to the work injury. In the same regard, a treating physician will often opine that the work injury aggravated or accelerated the underlying degenerative changes found upon MRI testing. Not surprisingly, the IME physician will attribute the Claimant’s symptoms to the underlying degeneration rather than the work injury.

Luckily, most Workers’ Compensation Judges in Pennsylvania will credit the treating doctor’s opinions- so long as the Claimant’s symptoms can reasonably be explained by the mechanism of injury- the way in which the incident or injury occurred. (ie, heavy lifting loads the discs in spine). I always try to point out that my clients underlying degenerative joint disease (which we all have, if you are over 25 years old) was NOT symptomatic prior to the work injury, and so, to attribute my clients’ complaints to this makes no sense.

We do need balance in the system and for that reason, IME physicians serve an important function. However, is there a better way to create the balance we need? What if the Judges were to appoint a doctor to examine a Claimant rather than the insurance company who is likely to pick the same doctors who routinely find everyone magically recovered? If you have any thoughts, please share them.

>Cynicism Towards Injured Workers- A Perspective from a Work Comp Attorney in Pennsylvania

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As a workers’ compensation attorney in Philadelphia for the past 8 years or so, I have witnessed tremendous cynicism from society. It is directed at the injured worker. It stems from a lack of understanding, and I believe, from a media that highlights the negative aspects of our judicial system. Virtually every client of mine voices concern at co-workers who start harrassing them once a claim for a work injury is filed. Until it happens to them, a co-worker is unlikely to understand the insidious effects of a work injury, – not only upon the worker, but his/her family as well. From losing substantial wages, to undergoing treatment for their affliction, from marital strain, to potentially losing a career that was fought hard for, there are many pitfalls of a workers’ compensation claim- and very little incentive to file a false claim. Although it happens, I firmly believe the amount of false claims is exagerrated. For every exagerrated or false claim, there are hundreds of legitimate injuries that occur every day in the work place. This isn’t to say that employers and their insurers do not have the right to investigate and present a defense. Indeed, they deserve to look into claims, review medical records and do their “due diligence”.

I would like to engage in discussion surrounding this cynicism, where it stems from, how it affects injured workers, how it intimidates workers from filing claims, and how we can erode it.