Statutory Employer And Pennsylvania Workers’ Compensation- The Expansion

The purpose of the Statutory Employer language in the Pennsylvania Work Comp Act is to extend coverage under the Act to subcontractors’ employees injured at work- ie, construction site. In a landmark case called Six L’s Packing Co. v. WCAB (Williamson), the Pennsylvania Supreme Court, in May 2012, overruled three decades of precedent by expanding “Statutory Employer” to any employer that subcontracts for services or work “of a kind which is a regular or recurrent part of the entity’s business“.  Before Six L’s, the McDonald case prevailed as the precedent, but the Court has limited McDonald to cases where employers control the worksite. So, to be a Statutory Employer, you don’t have to be a premise-based contractor any longer.

The Six L’s Decision is very significant-and reflects the Pennsylvania Workers’ Compensation Act’s remedial philosophy. There are likely hundreds of unsuspecting Statutory Employers in Pennsylvania, who subcontract with a company whose employee’s do not have workers’ compensation insurance. In Six L’s, a tomato grower was secondarily liable to pay Pennsylvania Work Comp benefits to a truck driver hired to deliver its produce. This broadens the scope in a big way.

These situations can be complex. If you want more information on Statutory Employer or other areas of Pennsylvania Workers’ Compensation Law, call experienced PA WorkPlace Injury Lawyer, Michael W. Cardamone at 215-206-9068 or email mcardamone@krasno.com– 7 days a week.

What Is An Impairment Rating In Pennsylvania Workers’ Compensation?

Section 306(a.2) of the Pennsylvania Workers’ Compensation Act provides for a determination of whole body impairment due to the compensable work-related injury after an injured worker receives 104 weeks (2 years) of total disability compensation, unless otherwise agreed to by the parties.

This, unfortunately, is a tool for insurers to put a ceiling on their exposure. If the impairment rating- stemming from an IRE- Impairment Rating Examination- results in an impairment of less than 50%, the the injured worker’s status converts to a partial disability status, and while the amount of compensation isn’t affected, there is a 500 week limit on partial disability. 500 weeks is about 9.5 years.

The impairment rating examination must be requested during a 60 day window after expiration of the employee’s receipt of 104 weeks of total disability. The employee’s receipt of 104 weeks of total disability shall be calculated on a cumulative basis. Note the failure to request the IRE within the 60 day window doesn’t preclude the insurer from compelling attendance at an IRE- but the prosecution of that (Petition to Modify)  conversion will take on a different evidentiary route versus the timely request during the 60 day window which makes it easier to modify benefits. Absent agreement, a request for an IRE before the expiration of the 104 weeks is not permitted.

What doctor performs the IRE? The physician must be licensed in Pennsylvania and certfied by an American Board of Medical Specialties- approved board or its osteopathic equivalent. The physician must also be active in a clinical practice at least 20 hours per week.

How is the percentage of impairment calculated? An IRE must be established by the most recent edition of the AMA Guidelines to the Evaluation of Permanent Impairment. The physician performing the IRE shall complete Form LIBC 767- Impairment Rating Determination Face Sheet which sets forth the rating for the compensable injury.

How will I know if my rating is under 50%? If the IRE results in an impairment rating of less than 50%, the employee shall receive benefits partial in character. To adjust the benefits, the insurer shall provide notice to the employee and his counsel, if known, using Form LIBC 7640 Notice of Change in Workers’ Compensation Disability Status.

What if my rating is 50% or higher? Then you will be presumed to be totally disabled and shall continue to receive total disability compensation. Note that the prusumption of total disability may be challenged at any time by a demonstration of earning power in accord with section 306(b)(2) of the Pennsylvania Work Comp Act.

Can I challenge the IRE findings? Yes. Any at time during the receipt of 500 weeks of partial disability compensation, the employee may appeal the adjustment of benefit status to a workers’ compensation judge by filing a Petition to Review. Some of the common challenges stem from the failure of the IRE doctor to establish that the employee has reached maximum medical improvement, or a failure to account for all of the work-related diagnoses.

In my experience, the Impairment Ratings do not greatly affect most cases. Why not? Well, many cases are resolved before 104 weeks. In addition, even if an IRE comes back as under 50%, the amount of the work comp checks doesn’t get reduced based on the IRE. The vast majority of cases settle long before 500 weeks. That being said, the IRE’s can be a tool for insurers to seek leverage in the settlement process.  It is highly unusual for an IRE to result in a whole body impairment of 50% or greater. To reach that threshold, the injuries must be virtually catastrophic.

If you have questions about this technical aspect of the PA Work Comp Law, call Cardamone Law at 215-206-9068 or email Michael@CardamoneLaw.com

 

7 Days A Week

Biz Carda Mike

How Does Social Security Work With Pennsylvania Workers’ Compensation?

Under Act 57, 50 percent of Social Security retirement- or “old age” benefits shall be credited against the amount of benefits being received under the PA Work Comp Act- except for specific loss benefits or fatal claim benefits.  The offset does not apply when the employee applies for and becomes entitled to receive those benefits prior to the Pennsylvania work-related injury.

Benefits under the Social Security Act for total disability (versus “old age”) do not reduce the workers’ compensation wage loss benefits. However, the SSD benefits may be reduced until age 65 such that the combination of net benefits received from workers’ compensation and Social Security will not exceed 80% of the pre-injury wages under Social Security.

Social Security disability benefits convert automatically to old-age SS benefits once a person reaches full Social Security retirement age. After conversion, the employer is entitled to the offset.

So what’s the bottom line here? Well, the receipt of Social Security benefits does not prevent receipt of Pennsylvania Workers’ Comp benefits.  But coordination of the benefits is important and this should be reviewed by an attorney.

If you have more questions about Social Security and PA Work Comp, call or email PA Work Injury Attorney Michael W. Cardamone at 215-206-9068 or mcardamone@krasno.com for free and prompt consults 7 days a week

Workers’ Compensation Is Like A Bad Marriage

I had a mediation with a Work Comp Judge in Philadelphia this morning. In speaking with my client about some of the benefits of settlement, the Judge made a great analogy. He said that unlike other areas of the law- such as personal injury- workers’ compensation keeps hanging around until the case is settled. In personal injury cases and many other areas of law, something happens in a defined moment and there is an arbitration or a trial if the case doesn’t resolve. And then it’s over. But in Pennsylvania Workers’ Compensation cases, the claim can have a long life.  It is a dynamic animal depending on the injured worker’s disability status, availability of work, and many other issues.  While some cases may be over in a matter of weeks or months, many others stay alive for years, and sometimes decades. And the relationship isn’t very friendly in many cases- with fighting over 1) what diagnoses are work related, 2) what restrictions are appropriate, 3) what medical treatment is reasonable and necessary, 4) whether a job offer was really within the injured workers’ restrictions, or 5) disputes regarding the payment of medical bills. These are just some examples. But the point is that the tension and stress can hang over an employee’s head for long periods of time until a resolution is accomplished.  (resolution often means a lump sum payout in exchange for no future wage or medical benefits) And, the relationship is quite antagonistic at times- with the insurer not wanting to spend money and the injured worker wanting the benefits he feels he deserves. In this way, the case can feel like a “bad marriage”.  It is enough just trying to grapple with the physical limitations introduced to an injured worker, to then have to deal with the emotional exhaustion from incessantly clashing with the employer or insurer.

Applying the analogy to the case at hand, the Workers’ Comp Judge was trying to explain that there is a real benefit, not just financially, but psychologically, to ending a case with a settlement. There is no more worrying about how long the checks will keep coming, or if a medical bill will get paid, or anxiety about video surveillance or independent medical examinations. It gives the injured worker control- and finality. That certainly cannot be measured in cash.

Of course, any Pennsylvania Workers’ Compensation settlement must be satisfactory to the injured worker from a numbers perspective. While not perfectly concrete, that analysis lends itself to more objective and mathematical, if you will, considerations- depending on the injured worker’s age, the comp rate and so on.

I rarely have clients come back to me months or years after a settlement and express regret about settling their case. It really helps re-focus their attention on positive things and the future. The Judge, in his own way, was trying to make the same point.

Distinguishing Burdens Of Proof For Psychological Injury Under The Pennsylvania Workers’ Compensation Act

In New Enterprise Stone & Lime Co. v. WCAB (Kalmanowicz), No. 1492 C.D. 2012, the Commonwealth Court of Pennsylvania recently held that a collision between the Claimant’s truck and a decedent’s automobile was a sufficient physical stimulus causing psychological injury such that the physical-mental analysis should apply rather than a mental-mental analysis. This is a good ruling for injured workers because under the mental-mental analysis, a Claimant must show “abnormal working conditions” which is often very difficult to establish.  In other words, to prove a mental injury under the Pennsylvania Workers’ Compensation Law, if you can show a triggering physical stimulus or event, your odds at winning will be increased. Conversely, if you cannot show that a physical stimulus caused the mental disorder, you will be forced to show abnormal working conditions (ie, the mental disorder was more than a subjective reaction to normal working conditions) Claimants attorneys across Pennsylvania know that it is not easy to prove abnormal working conditions based on the case law to date.

The typical physical-mental analysis will apply in a case where a Claimant injures his low back from a work-related injury. Consequently, he develops depression and anxiety from dealing with his chronic pain and being out of work. The physical stimulus or triggering event was the work-related activity- ie, lifting boxes- causing the mental disorder. On the other hand, if a Claimant suffers from stress at work, not because of a physical injury or event, but due to ridicule from a co-worker or supervisor, the mental-mental analysis will apply and the abnormal working conditions element must be met.

In the New Enterprise Stone & Lime case, the injured worker/Claimant was driving on a highway when another vehicle veered right into him.  The driver was on a suicide mission and had his face pressed up against the windshield and looking at Claimant when they collided. The driver died upon impact and Claimant, after the head on collision, veered down an embankment and into some trees. He exited his truck when bystanders were yelling to get out since it may catch on fire. Claimant injured his chest and wrist but his significant injury was Post Traumatic Stress Disorder- due to  nightmares from the accident, fear, etc.

Claimant filed a Claim Petition alleging PTSD from the June 2009 accident. Hearings were held and evidence presented. The Workers’ Compensation Judge awarded benefits finding Claimant proved the physical-mental elements. Employer appealed, asserting that the Court erred by applying the physical-mental analysis rather than the mental-mental.  The Workers’ Compensation Appeal Board affirmed the WCJ’s Decision.

The Commonwealth Court also affirmed, finding that the physical stimulus was the collision causing the death of the other driver before Claimant’s eyes and disabling his loaded tractor-trailer causing it to descend an embankment. Claimant’s “intimate involvement in the fatal accident is sufficient to constitute a ‘physical stimulus’ to support a compensation award”, the Court ruled.

Note that there is a third category for psychological injuries under the Pennsylvania Workers’ Compensation Law- mental-physical. This applies where a psychological stimulus causes physical injury. An example of this would be if a Claimant was subjected to repeated crude, sexual comments by a co-worker causing ulcers and migraines from the mental stress.

If you want more information about psychological injuries and the standards of proof under the PA Work Comp Law, call or email Claimant’s attorney Michael W. Cardamone at 215-206-9068 or mcardamone@krasno.com for a free analysis of your case.

Philadelphia, Pennsylvania Complex Regional Pain Syndrome Lawyer

If you are suffering from Complex Regional Pain Syndrome or Reflex Sympathetic Dystophy as a result of a work-related injury or accident in Pennsylvania, call experienced CRPS and RSD lawyer, Michael W. Cardamone directly at 215-206-9068 or email mcardamone@krasno.com for a free and comprehensive consult.

What is Complex Regional Pain Syndrome? It is a chronic pain condition that can affect any area of the body, but often affects an arm or a leg. (PubMed Health). Doctors aren’t sure what causes it. In certain people, the sympathetic nervous system can play a role in the pain, whereas in other cases CRPS is triggered in the immune system which then leads to discoloration, temperature changes, and swelling in the affected area.

There are two types of Complex Regional Pain Syndrome- Type 1 formerly known as Reflex Sympathetic Dystrophy and Type 2 formerly known as causalgia.

The symptoms are different in each case. I’ve had clients with no discoloration but with swelling and intense pain. In other cases, my clients have experienced abnormal hair growth patterns and temperature changes but no swelling.  The symptoms of Complex Regional Pain Syndrome can migrate to the opposite limb or other body parts. It often worsens over time. Dealing with these extraordinary diagnoses often leads to anxiety and depression.

There is a significant amount of litigation in Pennsylvania Work Comp cases regarding CRPS and RSD. Why? Well, doctors don’t often agree on what set of symptoms must manifest in order for the diagnosis to be made. Another area of dispute is how to treat it once it is diagnosed. Some CRPS and RSD doctors will try ketamine infusions and blocks and others will prescribe medications and activity modification. It is certainly a very contentious area of medicine which spills into our PA Work Comp landscape, as well as the personal injury world.

If you need an experienced Philadelphia, PA attorney who has litigated and won CRPS and RSD cases in Pennsylvania, call or email me 7 days a week. I have deposed many doctors on Complex Regional Pain Syndrome and RSD issues, have studied the medicine, and have won many cases involving these diagnoses. These cases tend to be quite significant and experience can play a pivotal role.

Below is a link to the Mayo Clinic’s discussion of Complex Regional Pain Syndrome for your convenience:

http://www.mayoclinic.com/health/complex-regional-pain-syndrome/DS00265