Interplay Between Pennsylvania Workers’ Compensation And Unemployment Compensation

The basic idea of the Pennsylvania Workers’ Compensation Act is to provide an injured worker with wage loss replacement benefits (2/3 of average weekly wage) and medical coverage resulting from the work injury.

The basic idea of the Pennsylvania Unemployment Compensation Law is to give wage loss replacement benefits to the employee who is capable of working, but who has incurred wage loss as a consequence of an involuntary termination of employment, but not as a result of willful misconduct.

An injured worker is able to receive disability benefits under the PA Work Comp Act and wage loss benefits under the Unemployment Comp Law if the work injury prevents the injured worker from performing her pre-injury job, but does not prevent her from performing other types of modifed work in the labor market.

Note, however, that per Act 57 of 1996, “if the employee receives Unemployment Compensation benefits, such amount or amounts so received shall be credited as against the amount of the award made under the provisions of Sections 108 and 306, except for benefits payable under Section 306(c) or 307.” (ie, the credit doesn’t apply to specific loss  or death cases)

This means that the workers’ comp benefits shall be off-set by the net amount an employee receives in unemployment benefits after the work injury.

If an injured worker is applying for or receiving unemployment compensation, then she is stating that she is able to work in some capacity- because to get unemployment benefits, one must be able and available to work.  This is not inconsistent with being disabled from the pre-injury job. An employer may not be able to offer a job within the injured worker’s restrictions which would open up a work comp claim for indemnity benefits (wage loss) but also qualify her for unemployment- so long as the separation from employment wasn’t due to willful misconduct or a voluntary quit. But again, remember, the work comp insurer/employer is entitled to a credit for any unemployment received after the work injury. The idea here is to make sure that an injured worker isn’t making more money while out of work than she would make while working.

For more information about the interplay between Pennsylvania Workers’ Compensation Law and Pennsylvania Unemployment Compensation Law, call or email Michael Cardamone at 215-206-9068 or mcardamone@krasno.com

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How Can The IME Doctor Claim I Am Fully Recovered When I Am Not?

Independent medical doctors under the Pennsylvania Workers’ Compensation Act are not “independent”. They are hand picked doctors- not by the presiding Judge, but by the employer or insurance carrier. The IME doctors do not treat an injured worker. They simply examine the injured worker, review medical records, and take a history. Then, they issue a report with their findings.

In many cases, the IME doctor will characterize the work injury as a mere strain or sprain. By characterizing the work injury in this minimal way, it becomes much easier to opine that the injured worker has made a “full recovery”- as sprains and strains only tend to last for a few days to perhaps a few months. They try to bolster their opinion by claiming a lack of “objective findings” to support the “subjective complaints”.

In contrast, the treating doctor- who actually treats the injured worker rather than getting a quick snapshot of their condition-is more likely to recognize the true extent of the injury. Whereas IME doctors like to hang their proverbial hat on “pre-existing degenerative changes” (ie, arthritis) as the cause of the current symptom complex, the treating doctor often opines that the work injury aggravated or accelerated those changes. In addition, the medical experts often disagree about the diagnostic studies and whether certain findings are traumatic or degenerative or a combination of both. In cases where the IME doctor blames “arthritis” for the symptoms, it becomes absolutely critical to understand the injured worker’s pre-work injury treatment, if any, regarding the affected body part so that a logical analysis can be undertaken to determine if that theory makes any sense.

No doctor can step into an injured worker’s body and feel the symptoms. So, what happens is the subjective complaints have to be weighed in the context of the other components of the case such as the history, sequence of events, clinical findings, diagnostic studies, etc- in an effort to determine causation (what is causing the symptoms) and extent of disability.

Since many of the experts cancel each other out with their varying opinions, the Work Comp Judges will focus in on the credibility of the injured worker’s testimony- looking at such things as 1) is the injured worker’s testimony consistent with their doctor’s testimony?, 2) do the diagnostic studies correlate with the diagnoses and symptoms? or, 3) did the injured worker give an accurate history regarding how the injury occurred and any pre-existing treatment or symptoms affecting the same body part in question?

Nothing infuriates an injured worker more than an IME doctor issuing a report stating that they have made a complete and full recovery. Luckily, everyone is entitled to due process and has their chance in court to address the report, and to present medical evidence of their own that demonstrates a different point of view.

If you would like more information about Pennsylvania Work Comp Independent Medical Exams, call or email experienced PA Work Injury Lawyer, Michael Cardamone at 215-206-9068 or email mcardamone@krasno.com

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Tips For Injured Workers Immediately After A Work Injury

Note- all cases are unique. These are general guidelines. You should speak to me or another experienced Pennsylvania Work Comp Lawyer to discuss the details of your situation.

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-Call me!

 

-Give notice of your work injury to a boss or supervisor, explaining how you were injured, when, and what injuries you sustained. Notice must be given within 120 days but immediate notice is strongly suggested.

 

-Ask your employer if they have a panel doctor for you to see in the first 90 days. You can avoid having to treat with a panel doctor if certain technicalities weren’t met. Call or email me for details on this. Panel doctors work for the employer- they are not on your side. Their goal is to minimize the nature of your injury and get you back to work no matter how you are feeling.

 

-Get medical treatment as soon as possible. Give an accurate and precise history- and slow the doctor down if he or she is going 100mph and trying to rush you out of the office.

 

-Fill out any papers given to you by your employer such as an incident report.

 

-If asked about prior injuries, make sure to think carefully about your past to make sure you give an accurate history.

 

-If you continue working after the work injury, make sure the employer is abiding by your doctor’s restrictions and if it isn’t, take daily notes as to how it isn’t complying and report the non-compliance to a supervisor.

 

-Do not talk to other co-workers about your case.

 

-Make sure you get a Notice of Compensation Payable, a Temporary Notice of Compensation Payable, or a Notice of Denial within 21 days of when you gave notice of your injury. Ask your claims rep to send you a copy of whichever of these documents he/she filed. If you are getting work comp checks, ask for a copy of a Statement of Wages to see how they calculated your average weekly wage and compensation rate.

 

Read your company handbook carefully to make sure you follow protocols for calling out sick, presenting doctor’s notes, etc.  Employers are often trying to terminate injured workers after a work injury- and they know they cannot retaliate and terminate an employee merely because they are injured or pursuing Pennsylvania Work Comp benefits- but they can terminate an employee for many other reasons.

 

For more information about Pennsylvania Work Comp Law, call experienced Pennsylvania Work Comp Lawyer (for injured workers only), Michael Cardamone at 215-206-9068 or email mcardamone@krasno.com

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If I Have An Open Workers’ Compensation Claim In Pennsylvania, What Happens If I Quit My Job?

In most cases, the insurance carrier for your employer will file a Petition to Suspend wage loss benefits. A Petition to Suspend is filed when the insurer believes that your earning power is no longer adversely affected by your work injury. In this specific context- that is, when an injured worker quits- the insurer will argue that the injured worker has voluntarily taken herself out of the workforce such that a Suspension of wage loss should be ordered by the Work Comp Judge. A Suspension of benefits only goes to wage loss- not medical benefits under the PA Work Comp Act.

You should never quit your position without first speaking to an experienced Pennsylvania Work Comp Lawyer. The effect on  your case may be quite significant. In some cases, however, a quit may be a good thing. For example, if you have a better job lined up, then a quit can obviously benefit you.  But there are timing issues involved with settlement and it’s important to get legal advice before you make such a move.

What are possible defenses against the argument that an injured worker’s wage loss should be suspended after a quit? Perhaps it was due to the work injury itself. Or, perhaps the work environment was “hostile” (this has a specific defintion so be careful not to assume that merely because a co-worker or boss is rude or a jerk that you are therefore subjected to a hostile work environment). Sometimes workers are essentially forced to quit. In some situations, the employer will write a letter stating that a failure to return to work will be deemed a “quit”.  (even though the reality is that the employer simply cannot accommodate your restrictions). This usually happens when an injured worker has restrictions from her doctor but an IME doctor claims she can work full duty.  It goes without saying that these cases and situations are very fact specific.

Be careful also with pension situation. Insurers will often argue that the receipt of a pension is equivalent to the worker withdrawing from the workforce. (ie, retiring).

A good way to combat an insurer’s argument that your wage loss should be suspended based on a retirment or voluntary quit is to show that you are actively looking for work. Keep copies of any job applications.

Also beware of the effect of a quit on Unemployment Compensation. The Unemployment Compensation folks may deny a claim for UC benefits if they believe you voluntarily quit your job.

These situations can be complex. Feel free to call or email me 7 days a week to discuss your situation. All consults are free.

215-206-9068 or MyPhillyWorkersComp@Gmail.com

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