Specific loss under the Pennsylvania Workers’ Compensation Law can be quite confusing. These benefits, under Section 306(c) of the Act, are for loss of use or amputation of a member of the body, binaural hearing impairment of greater than 10 percent, loss of vision in one or both eyes, and disfigurement (head, face, or neck).
Specific loss benefits under the Pennsylvania Workers’ Compensation Law are an exclusive remedy- and they are paid pursuant to a schedule as set forth in Section 306 (c). They are paid based on the work comp rate which is 2/3 of the pre-injury average weekly wage and include a healing period on top of the benefits period.
However, if you can establish an injury “separate and apart”, then you can receive TTD- temporary total disability benefits in addition to the specific loss, although usually not concurrently.
If you lost a hand in a work accident, you would get 335 weeks under Section 306(c)(1) and 20 weeks for the healing period. That’s 355 weeks in total. Let’s say your work comp rate is $500 per week- you’d get $177,500.00. But if you could establish an injury separate and apart, then you could receive TTD for a period of time.
What’s an injury “separate and apart”? A painful neuroma can meet this definition. Sometimes, a psychological disability can qualify. The key is getting medical evidence to demonstrate the separate and apart aspect- and perhaps even defining it for the medical expert so he or she can adequately address it in a report if they aren’t familiar with the concept.
In my experience, insurance company adjustors don’t like to concede the injury “separate and apart”- you often have to fight for that. Don’t’ take their word as the final word- the Judge will decide the issue after reviewing the relevant medical evidence. On the controlling document- ie, a Notice of Compensation Payable, they will often simply claim that they are paying the specific loss. You can challenge that by filing a Petition which gets assigned to a Work Comp Judge.
In addition, if you don’t have an amputation, but have a loss of use “for all practical intents and purposes” of a body part, the insurers don’t like to admit that either. This doesn’t require a 100% uselessness according to the cases in Pennsylvania. If you didn’t lose your hand, but cannot use it for basic tasks, you may have a loss of use.
Disfigurement of the head, face, or neck is compensable, if serious, permanent, unsightly, and not usually incident to the employment– and is payable for a period not to exceed 275 weeks as determined by the parties, or by a Work Comp Judge. In these cases, the main area of disagreement is often how many weeks are payable given the prior decisions in Pennsylvania for similarly sized scars. Some attorneys claim that the courts will often award 10 weeks for each inch of a scar but the Commonwealth Court of Pennsylvania has rejected this notion- it’s a case by case basis.
Another important thing to consider in these situations is Third Party Liability. What this means is whether an entity other than the employer was negligent and whether that negligence caused (or was a substantial contributing factor in causing) the accident. In workers’ compensation, the sole remedy against the employer is the workers’ compensation benefits. But if you lost your hand in an industrial accident because a machine didn’t work properly, you might have a third party case against the manufacturer of the machine for negligence design or maintenance. In a third party case, pain and suffering damages can be available unlike workers’ compensation which has no regard for the concept of “fault” and therefore pain and suffering damages. Many injured workers and even many attorneys fail to explore Third Party Liability properly which could be a very, very costly mistake.
For a free consult with an experienced Amputation and Construction or Workplace Accident Attorney, call Michael W. Cardamone, a Certified Work Comp Attorney, for a free and prompt consult 7 days a week at 215-206-9068 or email Michael@Cardamonelaw.com
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