Every once in awhile I have a case where the employer offers a sedentary job to one of my clients but the job is really not a “job.” It is referred to as a “no work” job where the claimant merely shows up and sits there and basically does nothing. But, the injured worker gets paid his normal wage for his time.
You may ask why would an employer do this, basically pay someone their normal wage for producing no work? In many instances there are unseen costs of having the employee out of work and receiving workers’ compensation wage benefits. Some employers want to keep the employee at the job site so they can keep an eye on him/her. Some employers think it is too expensive to have a wage claim open with their insurance company because their workers’ compensation premiums will rise. Other employers merely want to set the employee up for failure so that they can fire the employee and stop his workers’ compensation benefits.
In a new case from the Commonwealth Court of Pennsylvania, Channel Lock, Inc. v. W.C.A.B. (Reynolds), the Court addressed one of these “no work” jobs. The court ultimately held that the job was not within the injured employee's physical capabilities.
The facts are pretty simple. The injured employee was offered a job where he basically came in to work and sat there. The employee actually tried to do this but fell asleep one day because the medication that he was taking made him drowsy. The employer threatened to fire him if he did it again. At that point, the employee’s attorney filed a petition to allege that the job was not available within his physical restrictions. During the hearing process, the claimant’s doctor testified that the medication could cause drowsiness and the claimant himself testified that every time he took this prescribed medication he became sleepy.
Ultimately, the Commonwealth Court held that the job was not within the claimants physical restrictions due to the fact that he could easily fall asleep while performing these “no work” jobs.
I believe that the underlying lesson in this case is that the courts do not look kindly on these “no work” jobs and, if possible, will always rule on the side of the claimant if they believe that there are other motives that the employer has offered these sham jobs.
Showing posts with label Work Injury Claim Litigation. Show all posts
Showing posts with label Work Injury Claim Litigation. Show all posts
Wednesday, March 11, 2009
Thursday, July 24, 2008
New Case Law on Serial Termination Petitions
In Prebish v. WCAB, decided on July 14, 2008, the Commonwealth Court of Pennsylvania handed down a decision dealing with facts which we often see where an insurance company files termination petition after termination petition over several years on the same claimant.
A Termination Petition is used by an insurance company to argue that the claimant’s injury is no longer present, i.e., that it has healed and is no longer there. If successful on these petitions, the claimant’s workers’ compensation wage and medical benefits should be stopped or "terminated." In order to defeat this kind of petition, the claimant merely has to show that the condition or the injury is still present. This is usually done through testimony from the medical expert in the case.
In some circumstances, the insurance company will file a Termination Petition but then lose and then they will wait six months to file another Termination Petition and lose again and then in six months file another one. This is called a serial termination case.
The Commonwealth Court ruled that in serial termination cases, the Judge has to find that the claimant’s condition changed from the prior litigation in order to grant the new Termination Petition. This means that in a case where the medical testimony and the Judge finds facts that the claimant’s condition has not changed since the previous termination petition was lost, then the insurance company cannot prove that the injury has healed or is over. In order to prevail on a serial termination case, the insurance company will have to prove that the claimant’s condition has changed to the better, to the point where there is no injury.
Hopefully, this will somewhat limit these serial termination cases, which can be quite annoying and harassing to injured workers.
A Termination Petition is used by an insurance company to argue that the claimant’s injury is no longer present, i.e., that it has healed and is no longer there. If successful on these petitions, the claimant’s workers’ compensation wage and medical benefits should be stopped or "terminated." In order to defeat this kind of petition, the claimant merely has to show that the condition or the injury is still present. This is usually done through testimony from the medical expert in the case.
In some circumstances, the insurance company will file a Termination Petition but then lose and then they will wait six months to file another Termination Petition and lose again and then in six months file another one. This is called a serial termination case.
The Commonwealth Court ruled that in serial termination cases, the Judge has to find that the claimant’s condition changed from the prior litigation in order to grant the new Termination Petition. This means that in a case where the medical testimony and the Judge finds facts that the claimant’s condition has not changed since the previous termination petition was lost, then the insurance company cannot prove that the injury has healed or is over. In order to prevail on a serial termination case, the insurance company will have to prove that the claimant’s condition has changed to the better, to the point where there is no injury.
Hopefully, this will somewhat limit these serial termination cases, which can be quite annoying and harassing to injured workers.
Wednesday, July 16, 2008
Sayre Borough: Workers compensation claim filed against Sayre Borough
I'm in the news!! To see the front page story on the Morning Times website, go here.
Workers’ compensation litigation has been filed against Sayre Borough by former secretary Jo Ann Daly, who resigned from her position with the borough July 9 and is now working in a position at Keystone College. The litigation was filed against the borough on June 9, a month prior to her resignation, according to James Carroll, Esq., who is representing her in the matter.
Daly had worked for the borough in various capacities for nearly 12 years, according to Carroll, and had suffered with a long-standing work related injury prior to her resignation. “She truly enjoyed her job but felt that continuing to work in the building under the requirements established by her employer would be detrimental to her health,” said Carroll. The litigation was filed due to the borough’s alleged refusal to change these working conditions, despite several attempts, that caused Daly’s injury.
Sayre Borough Council President Henry Farley noted that the injury referred to is a skin condition, but didn’t have any further comment on the issue since the borough hadn’t officially received her letter of resignation. She’s currently receiving workers’ compensation, Farley added, and he hopes they can address the issue at the borough’s regular monthly meeting on Thursday at 6 p.m.Borough solicitor Jonathan Foster, Esq., was unable to comment on the issue due to it being a personnel matter.
Monday, June 16, 2008
What happens at Pennsylvania Workers' Compensation hearings?
Many clients often ask and wonder what a Pennsylvania workers' compensation hearing is like...what happens, etc. There are general rules the Judges must follow, but those rules are non-specific. Each Judge can handle their hearings a little differently.
To help claimants and attorneys, the Pennsylvania Workers' Compensation Bureau has compiled a resource that details what each Judge expects at hearings, what rules attorneys should follow, etc. The resource is set up by answering a list of questions that are provided below:
Each Judge's answer to these questions can be found here. All you need to do is search by the Judge's individual name. This is an excellent resource for attorneys who handle Pennsylvania Workers' Compensation cases as well as injured workers who want to educate themselves on what actually happens at a workers' compensation hearing.
To help claimants and attorneys, the Pennsylvania Workers' Compensation Bureau has compiled a resource that details what each Judge expects at hearings, what rules attorneys should follow, etc. The resource is set up by answering a list of questions that are provided below:
1. What will occur at the first meeting with the judge?
2. Is a pre-hearing memorandum required at the first meeting with the judge?
3. Is a pre-hearing stipulation required at the first meeting with the judge?
4. Do you require counsel to provide bureau documents relating to the claim?
5. Do you use a one-day/one-hearing format or a serial hearing?
6. What are your rules regarding the taking of testimony?
7. What procedure do you follow if a party fails to appear at the first hearing?
8. What are your procedures for supersedeas hearings?
9. What is your procedure regarding the order of testimony with respect to submission of medical evidence, particularly when cross petitions are filed?
10. What is your procedure regarding continuances, changes in hearing times and extensions?
11. To what extent do you follow the time limits in the special rules?
12. What is your procedure for handling discovery disputes, e.g., do you employ telephone conferences, do you prefer to attend certain depositions, etc.?
13. Under what circumstances will you permit a party or witness (including an expert witness) to testify by deposition or by phone, rather than appear at the
hearing?
14. Are you willing to allow counsel to participate in hearings by telephone?
15. Do you require that counsel pre-mark or provide lists of exhibits?
16. Must counsel bring copies to the hearing or may they be made at the judge's office?
17. Are you willing to close a case by mail or is a final hearing required?
18. Do you accept faxes and e-mails from the parties?
19. What are your procedural rules regarding the review of Compromise and Release Agreements?
20. Do you have any special procedures for trial of psychological injury cases?
21. What procedures should the parties follow regarding motions for recusal?
22. What is the latest date as of which the parties may file written preservations of deposition objections?
23. What are the time requirements for the submission of briefs and other post-hearing submissions?
24. Please describe your preferences for the format and content of post-trial submissions.
Each Judge's answer to these questions can be found here. All you need to do is search by the Judge's individual name. This is an excellent resource for attorneys who handle Pennsylvania Workers' Compensation cases as well as injured workers who want to educate themselves on what actually happens at a workers' compensation hearing.
Thursday, June 5, 2008
Why can't you get your mileage paid for when you see your doctor for a work related treatment?
During these times when gas prices are so high, the question of getting paid for mileage for travelling to treatment is often brought up. The general rule is that when you have to see the defense medical expert (DME or IME), then the insurance company must either provide transportation for you or, at the very least, pay you the IRS mileage rate which is currently $.50.5 cents/mile.
So, what do you do when you have to travel quite a distance just to see your treating doctors? You normally don't receive mileage payments for this.
The controlling case law is fairly straight forward and only involves primarily three Commonwealth Court cases. The first, Harbinson-Walker Refractories v. WCAB (Huntsman), 513 A.2d 566 (Pa.Cmwlth. 1986), created various factors to be considered in assessing the reasonableness of travel expenses for medical treatment:
1) whether the employer was aware of the long distance treatments;
2) whether the claimant was specifically referred to the distant location for the treatment;
3) whether the treatment was available at a closer location; and
4) whether the long distance treatment comprised an integral part of the ongoing medical treatment.
In Helen Mining Co. v. WCAB (Tantlinger), 616 A.2d 759 (Pa.Cmwlth. 1992), the court summarized the Harinson-Walker elements into three distinct rules:
1) if treatment is available locally, the claimant is not entitled to reimbursement for travel expenses except in exceptional circumstances;
2) if treatment is available locally and the claimant chooses a physician outside the local area, the claimant is not entitled to reimbursement for travel expenses;
3) if treatment is not available locally, the claimant is entitled to reimbursement for travel expenses as long as the claimant travels to a facility where others are or would be
referred.
Finally, in Holly v. WCAB (Lutheran Home), 735 A.2d 153 (Pa.Cmwlth. 1999), the court addressed the Helen Mining elements and created another distinct rule. In Holly, the court summarized the holdings in the previous cases. The court further stated that the initial inquiry in any case involving reimbursement for travel expenses is whether the treatment sought is available locally. Id. at 155. After an in-depth analysis, the court made the general rule that under Helen Mining, “travel exceeding 100 miles one way for medical treatment is “long distance” travel, not “local” travel” as a matter of law. Id. at 156.
In no way did the court ever state that the general “100 mile” rule is to be applied in every case no matter what the facts. Actually, in reading the Holly decision, you can tell that the court attempted to limit the issue depending on the facts of every case. If the travel was over 100 miles one way, then the general rule would apply. However, if the travel was less than 100 miles one way, then a court would have to filter the facts through the three elements in Helen Mining to make a decision on whether to grant travel expenses.
So, what do you do when you have to travel quite a distance just to see your treating doctors? You normally don't receive mileage payments for this.
The controlling case law is fairly straight forward and only involves primarily three Commonwealth Court cases. The first, Harbinson-Walker Refractories v. WCAB (Huntsman), 513 A.2d 566 (Pa.Cmwlth. 1986), created various factors to be considered in assessing the reasonableness of travel expenses for medical treatment:
1) whether the employer was aware of the long distance treatments;
2) whether the claimant was specifically referred to the distant location for the treatment;
3) whether the treatment was available at a closer location; and
4) whether the long distance treatment comprised an integral part of the ongoing medical treatment.
In Helen Mining Co. v. WCAB (Tantlinger), 616 A.2d 759 (Pa.Cmwlth. 1992), the court summarized the Harinson-Walker elements into three distinct rules:
1) if treatment is available locally, the claimant is not entitled to reimbursement for travel expenses except in exceptional circumstances;
2) if treatment is available locally and the claimant chooses a physician outside the local area, the claimant is not entitled to reimbursement for travel expenses;
3) if treatment is not available locally, the claimant is entitled to reimbursement for travel expenses as long as the claimant travels to a facility where others are or would be
referred.
Finally, in Holly v. WCAB (Lutheran Home), 735 A.2d 153 (Pa.Cmwlth. 1999), the court addressed the Helen Mining elements and created another distinct rule. In Holly, the court summarized the holdings in the previous cases. The court further stated that the initial inquiry in any case involving reimbursement for travel expenses is whether the treatment sought is available locally. Id. at 155. After an in-depth analysis, the court made the general rule that under Helen Mining, “travel exceeding 100 miles one way for medical treatment is “long distance” travel, not “local” travel” as a matter of law. Id. at 156.
In no way did the court ever state that the general “100 mile” rule is to be applied in every case no matter what the facts. Actually, in reading the Holly decision, you can tell that the court attempted to limit the issue depending on the facts of every case. If the travel was over 100 miles one way, then the general rule would apply. However, if the travel was less than 100 miles one way, then a court would have to filter the facts through the three elements in Helen Mining to make a decision on whether to grant travel expenses.
Monday, June 2, 2008
New case law on what constitutes "Reasonable Medical Certainty" by testifying doctors
In the case of Griffin v University of Pittsburgh, which is a May 19, 2008, Superior Court case, the court held that when a physician testifies that there was a 51-49% probability that the negligent act caused the injury, this was legally insufficient to offer an opinion to a “reasonable degree of medical certainty.” Although this is not a workers’ compensation case, most doctors spit out the phrase “to a reasonable degree of medical certainty” without actually defining its meaning.
Therefore, if you have a defense doctor who is a little less sure of the opinion he/she is offering, but also uses the magic language ask him/her to put a percentage on it. You might get lucky! The doctor could give some kind of split percentage as in this case and you can argue that based upon the Griffin case, the opinion is legally insufficient.
Therefore, if you have a defense doctor who is a little less sure of the opinion he/she is offering, but also uses the magic language ask him/her to put a percentage on it. You might get lucky! The doctor could give some kind of split percentage as in this case and you can argue that based upon the Griffin case, the opinion is legally insufficient.
Friday, May 16, 2008
The Exclusivity Provision: Why You Can't Sue Your Employer For a Work Related Injury
The Pennsylvania Workers' Compensation Act provides that the exclusive remedy against your employer for work related injuries is the workers' compensation law. What this means is that when you are injured at work, all you are entitled to receive are the wage and medical benefits outlined in the Act. You cannot file a separate lawsuit for personal injuries against your employer, even if your employer was clearly negligent in causing the injury!
Section 303(a) of the Workers’ Compensation Act provides:
The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, . . . or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined [in the act]. 77 P.S. § 481(a).
This means that no matter how injured you are, and no matter how disabled you are, you cannot obtain pain and suffering compensation against your employer as you would in a regular personal injury case.
There are a few exceptions to this general exclusivity rule. One exception is if you can prove your employer engaged in some kind of fraud in causing the work injury.
Also, if you are involved in a work related automobile accident, you may be able to obtain compensation for pain and suffering from your employer's automobile insurance company under its Underinsurance/Uninsurance policy. Also, you may be able to obtain pain and suffering compensation against the automobile insurance of a co-worker if that co-worker caused an auto accident in which you were hurt.
Here is a link to a case, Safe Auto v. School District of Philadelphia, which provides a great summary of the case law in relation to work related auto accidents and obtaining pain and suffering compensation from your employer or co-worker.
Of course, remember that you can always file a lawsuit and receive pain and suffering compensation against negligent third parties.
Also, if your employer does NOT have workers' compensation insurance, you can file a lawsuit in the Court of Common Pleas to obtain benefits.
Section 303(a) of the Workers’ Compensation Act provides:
The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, . . . or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined [in the act]. 77 P.S. § 481(a).
This means that no matter how injured you are, and no matter how disabled you are, you cannot obtain pain and suffering compensation against your employer as you would in a regular personal injury case.
There are a few exceptions to this general exclusivity rule. One exception is if you can prove your employer engaged in some kind of fraud in causing the work injury.
Also, if you are involved in a work related automobile accident, you may be able to obtain compensation for pain and suffering from your employer's automobile insurance company under its Underinsurance/Uninsurance policy. Also, you may be able to obtain pain and suffering compensation against the automobile insurance of a co-worker if that co-worker caused an auto accident in which you were hurt.
Here is a link to a case, Safe Auto v. School District of Philadelphia, which provides a great summary of the case law in relation to work related auto accidents and obtaining pain and suffering compensation from your employer or co-worker.
Of course, remember that you can always file a lawsuit and receive pain and suffering compensation against negligent third parties.
Also, if your employer does NOT have workers' compensation insurance, you can file a lawsuit in the Court of Common Pleas to obtain benefits.
Wednesday, May 14, 2008
The Defense Base Act Protects American Workers Injured in Iraq and Afghanistan
In the wake of 9/11, thousands of Americans signed on with companies that had contracted with the U.S. federal government to provide services in support of the U.S. efforts in Iraq and Afghanistan. War zones are dangerous places, and they have sometimes proved as dangerous for our civilian workers as they have for our troops.
Tragically, many of these workers became injured while overseas. Just as tragically, many of the workers who where injured in support of American efforts abroad have been faced with overwhelming medical bills and loss of income as they recuperated. Some also lost their lives, leaving their families destitute. Many others who are unable to work watch their family's savings and assets dwindle, and their security disappear.
A law exists to ensure fair workers compensation for these people. It's called the Defense Base Act. Unfortunately, too few people in need of its protection understand their own rights under the law. Even fewer know what to do to guarantee those rights. Recuperation can be difficult enough without mounting bills, the threat of bankruptcy, and an inability to get proper medical care and rehabilitation. That's to say nothing of the financial threat to the families involved.
The Defense Base Act requires that contractors working with the U.S. Military in war zones carry worker's compensation insurance. This type of insurance is compulsory for organizations employing U.S. citizens or residents, and all employees or subcontractors hired on overseas government contracts. However, these companies sometimes fail to inform workers of their rights. Worse, the insurance carriers often refuse claims, abandoning injured Americans who supported the American mission to face crushing expenses and debt on their own.
Fortunately, Federal law provides a genuine solution, though unfortunately few injured workers know how to apply it. The Defense Base Act is part of the Longshoremen and Harbor Workers' Compensation Act, and covers to employees of government contractors working overseas under contract to the United States Government. Specifically, the Act covers workers employed by American contractors performing public works for the U.S. government in U.S. territories, or at U.S. military bases located outside the continental United States, in support of military aid programs within allied nations. Workers are protected under the Act, even if they are only employed to build embassies and other U.S. government buildings abroad.
The Act ensures medical treatment and compensation for employees of defense contractors injured in the course of employment. For thousands of American workers injured abroad, the Defense Base Act has provided support for them under devastating circumstances. Claims under the Act have been successfully filed by many individuals, including some contact workers injured in Korea, VietNam, both Iraq wars, Afghanistan, and elsewhere. All were protected under the general coverage of the Act.
The Defense Base Act mandates that any injured worker should be confident of having an attorney at his side to ensure a just outcome. Both injured workers and family member of someone who has died from job injuries overseas are covered. Compensation is also allowable for partial loss of earnings, and significant death benefits are commonly paid to spouses and family. Fortunately, injured workers or their families are not responsible for legal fees for a DBA injury claim. The Defense Base Act requires that all attorney fees depend entirely on the amount of money the claimant receives. No outrageous legal fees are possible. The fees are awarded by the Department of Labor,and are never included in any other compensation to the claimant. The injured party does not pay the lawyer out of his or her compensation. Instead,compensation is awarded to the attorney by the court, and paid by the insurance company or the original employer.
Civilians working in support of American military and U.S. State Department objectives continue to be injured to this day. For these injured civilians, the key to success in securing just compensation under the Defense Base Act is finding the right lawyer. This is a highly specialized area, and familiarity with standard Workman's Compensation Law is simply inadequate. Claimants are advised to find a Defense Base Act attorney with years of experience and success with these claims.
_____________________
William Prescott is web copy writer and researcher of health issues. This article is based on interviews with legal expert Kurt Gronau, a well-known Defense Base Act attorney.
Tragically, many of these workers became injured while overseas. Just as tragically, many of the workers who where injured in support of American efforts abroad have been faced with overwhelming medical bills and loss of income as they recuperated. Some also lost their lives, leaving their families destitute. Many others who are unable to work watch their family's savings and assets dwindle, and their security disappear.
A law exists to ensure fair workers compensation for these people. It's called the Defense Base Act. Unfortunately, too few people in need of its protection understand their own rights under the law. Even fewer know what to do to guarantee those rights. Recuperation can be difficult enough without mounting bills, the threat of bankruptcy, and an inability to get proper medical care and rehabilitation. That's to say nothing of the financial threat to the families involved.
The Defense Base Act requires that contractors working with the U.S. Military in war zones carry worker's compensation insurance. This type of insurance is compulsory for organizations employing U.S. citizens or residents, and all employees or subcontractors hired on overseas government contracts. However, these companies sometimes fail to inform workers of their rights. Worse, the insurance carriers often refuse claims, abandoning injured Americans who supported the American mission to face crushing expenses and debt on their own.
Fortunately, Federal law provides a genuine solution, though unfortunately few injured workers know how to apply it. The Defense Base Act is part of the Longshoremen and Harbor Workers' Compensation Act, and covers to employees of government contractors working overseas under contract to the United States Government. Specifically, the Act covers workers employed by American contractors performing public works for the U.S. government in U.S. territories, or at U.S. military bases located outside the continental United States, in support of military aid programs within allied nations. Workers are protected under the Act, even if they are only employed to build embassies and other U.S. government buildings abroad.
The Act ensures medical treatment and compensation for employees of defense contractors injured in the course of employment. For thousands of American workers injured abroad, the Defense Base Act has provided support for them under devastating circumstances. Claims under the Act have been successfully filed by many individuals, including some contact workers injured in Korea, VietNam, both Iraq wars, Afghanistan, and elsewhere. All were protected under the general coverage of the Act.
The Defense Base Act mandates that any injured worker should be confident of having an attorney at his side to ensure a just outcome. Both injured workers and family member of someone who has died from job injuries overseas are covered. Compensation is also allowable for partial loss of earnings, and significant death benefits are commonly paid to spouses and family. Fortunately, injured workers or their families are not responsible for legal fees for a DBA injury claim. The Defense Base Act requires that all attorney fees depend entirely on the amount of money the claimant receives. No outrageous legal fees are possible. The fees are awarded by the Department of Labor,and are never included in any other compensation to the claimant. The injured party does not pay the lawyer out of his or her compensation. Instead,compensation is awarded to the attorney by the court, and paid by the insurance company or the original employer.
Civilians working in support of American military and U.S. State Department objectives continue to be injured to this day. For these injured civilians, the key to success in securing just compensation under the Defense Base Act is finding the right lawyer. This is a highly specialized area, and familiarity with standard Workman's Compensation Law is simply inadequate. Claimants are advised to find a Defense Base Act attorney with years of experience and success with these claims.
_____________________
William Prescott is web copy writer and researcher of health issues. This article is based on interviews with legal expert Kurt Gronau, a well-known Defense Base Act attorney.
Monday, May 12, 2008
Construction Site Accidents Are Often Serious or Fatal
The following are some statistics from the U.S. Department of Labor Bureau of Labor Statistics on safety and on-the-job injuries in the construction industry:
* One of every five workplace fatalities is a construction worker.
* There were 1,225 fatal occupational injuries in construction in 2001, excluding fatalities on September 11. Also in 2001, there were 481,400 nonfatal injuries and illnesses in construction. Incidence rates for nonfatal injuries and illnesses were 7.9 per 100 full-time equivalent workers in construction, and 5.7 per 100 full-time equivalent workers in all private industry in 2001.
* Because only about 10% of construction companies employ more than 20 workers, the great majority have no formal job safety regulations or programs in place.
* In 1992, the "lost-workday" rate for workers in the construction industry was 5.7 per every 100 full-time workers. This lost-workday rate was the highest of any major economic sector.
* Nationwide, about 15% of workers' compensation costs are attributable to injuries in the construction industry.
* Virtually all significant injuries suffered in construction accidents give rise to workers' compensation rights. Those limited rights, however may be supplemented by legal actions against others who have responsibility for various activities on the jobsite, including construction managers, general contractors, subcontractors, equipment manufacturers, etc. These rights depend upon the application of various complex laws and the individual circumstances of the accident.For example, in most construction projects, many different contractors are involved. If any contractor other than the direct employer has responsibility for the injuries, full damages can be recovered. Likewise, if a defective tool, machine, or other product causes injury, an injured worker can be fully compensated.Construction workers have a right to a safe workplace according to OSHA, the Federal governing body for occupational safety and health.
If a workplace hazard exists and action is not taken quickly, an employee should contact an OSHA area office or state office via a written complaint. If the OSHA or state office determines that there are reasonable grounds for believing that a violation or danger exists, the office will conduct an inspection.A workers' representative has a right to accompany an OSHA compliance officer during the inspection. The representative is chosen by a union representative, if there is one, or by the employees. Under no circumstances may the employer choose the workers' representative. The inspector may conduct a comprehensive inspection of the entire workplace or a partial inspection limited to certain areas or aspects of the operation. At the end of the inspection, the OSHA inspector will meet with the employer and the employee representatives to discuss the abatement of any hazards that may have been found. These need to be corrected or serious penalties and legal liabilities may arise.
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LegalView.com, the one and only source for everything legal on the Web, offers readers an insightful information portal on construction accident injuries. By visiting http://construction.legalview.com/, users can find information on how to locate a construction accident attorney. For more information on other legal issues, or how to locate information on a Nephrogenic Systemic Fibrosis law firm, visit www.LegalView.com.
* One of every five workplace fatalities is a construction worker.
* There were 1,225 fatal occupational injuries in construction in 2001, excluding fatalities on September 11. Also in 2001, there were 481,400 nonfatal injuries and illnesses in construction. Incidence rates for nonfatal injuries and illnesses were 7.9 per 100 full-time equivalent workers in construction, and 5.7 per 100 full-time equivalent workers in all private industry in 2001.
* Because only about 10% of construction companies employ more than 20 workers, the great majority have no formal job safety regulations or programs in place.
* In 1992, the "lost-workday" rate for workers in the construction industry was 5.7 per every 100 full-time workers. This lost-workday rate was the highest of any major economic sector.
* Nationwide, about 15% of workers' compensation costs are attributable to injuries in the construction industry.
* Virtually all significant injuries suffered in construction accidents give rise to workers' compensation rights. Those limited rights, however may be supplemented by legal actions against others who have responsibility for various activities on the jobsite, including construction managers, general contractors, subcontractors, equipment manufacturers, etc. These rights depend upon the application of various complex laws and the individual circumstances of the accident.For example, in most construction projects, many different contractors are involved. If any contractor other than the direct employer has responsibility for the injuries, full damages can be recovered. Likewise, if a defective tool, machine, or other product causes injury, an injured worker can be fully compensated.Construction workers have a right to a safe workplace according to OSHA, the Federal governing body for occupational safety and health.
If a workplace hazard exists and action is not taken quickly, an employee should contact an OSHA area office or state office via a written complaint. If the OSHA or state office determines that there are reasonable grounds for believing that a violation or danger exists, the office will conduct an inspection.A workers' representative has a right to accompany an OSHA compliance officer during the inspection. The representative is chosen by a union representative, if there is one, or by the employees. Under no circumstances may the employer choose the workers' representative. The inspector may conduct a comprehensive inspection of the entire workplace or a partial inspection limited to certain areas or aspects of the operation. At the end of the inspection, the OSHA inspector will meet with the employer and the employee representatives to discuss the abatement of any hazards that may have been found. These need to be corrected or serious penalties and legal liabilities may arise.
------------------------------------------------------------------
LegalView.com, the one and only source for everything legal on the Web, offers readers an insightful information portal on construction accident injuries. By visiting http://construction.legalview.com/, users can find information on how to locate a construction accident attorney. For more information on other legal issues, or how to locate information on a Nephrogenic Systemic Fibrosis law firm, visit www.LegalView.com.
Thursday, May 8, 2008
What to do when your employer does not have Workers' Compensation insurance?
The first thing to do is contact an experienced compensation lawyer. (Of course I was going to say that....) Second, if the lawyer is worth anything, he/she will know what to do.
In November 2006, the Pennsylvania's Workers' Compensation law was amended to create the Uninsured Employer Guaranty Fund.
You must file a Notice of Claim within 45 days after the employee learns that the employer does not have insurance. 34 Pa. Code 123.802. Here's a link to the Notice of Claim form: http://www.dli.state.pa.us/landi/lib/landi/bwc/libc-551.pdf
A claim petition may be filed against the Fund 21 days later. Here's a link to the specific form to be used: http://www.dli.state.pa.us/landi/lib/landi/bwc/libc-550.pdf
Here are the prerequisites for filing claim petition for benefits from Fund:
§ 123.803. Prerequisites for filing claim petition for benefits from Fund.
(a) Upon the filing of a completed ''Notice of Claim Against Uninsured Employer'' (Notice), the Uninsured Employer Guaranty Fund (Fund) will determine whether it will commence making payments.
(b) An injured worker may not seek an award against the Fund unless the worker completes and files the form designated as the ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund.''
(c) A ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' may not be filed until at least 21 days after the injured worker filed the Notice as required in § 123.802 (relating to notice to the Uninsured Employer Guaranty Fund).
(d) A completed ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' will be deemed filed upon the later of either of the following:
(1) The date of the petition's deposit in the United States Mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid; or, if no United States Postal Service Postmark is present, as of the Department's receipt of the petition.
(2) Twenty-one days after the filing of the Notice identified in § 123.802.
(e) The Department may reject any incomplete petition.
In November 2006, the Pennsylvania's Workers' Compensation law was amended to create the Uninsured Employer Guaranty Fund.
You must file a Notice of Claim within 45 days after the employee learns that the employer does not have insurance. 34 Pa. Code 123.802. Here's a link to the Notice of Claim form: http://www.dli.state.pa.us/landi/lib/landi/bwc/libc-551.pdf
A claim petition may be filed against the Fund 21 days later. Here's a link to the specific form to be used: http://www.dli.state.pa.us/landi/lib/landi/bwc/libc-550.pdf
Here are the prerequisites for filing claim petition for benefits from Fund:
§ 123.803. Prerequisites for filing claim petition for benefits from Fund.
(a) Upon the filing of a completed ''Notice of Claim Against Uninsured Employer'' (Notice), the Uninsured Employer Guaranty Fund (Fund) will determine whether it will commence making payments.
(b) An injured worker may not seek an award against the Fund unless the worker completes and files the form designated as the ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund.''
(c) A ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' may not be filed until at least 21 days after the injured worker filed the Notice as required in § 123.802 (relating to notice to the Uninsured Employer Guaranty Fund).
(d) A completed ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' will be deemed filed upon the later of either of the following:
(1) The date of the petition's deposit in the United States Mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid; or, if no United States Postal Service Postmark is present, as of the Department's receipt of the petition.
(2) Twenty-one days after the filing of the Notice identified in § 123.802.
(e) The Department may reject any incomplete petition.
Wednesday, April 30, 2008
What geographic area does Carroll & Carroll, P.C. cover?
These are the towns where most of our Pennsylvania workers' compensation clients have come from throughout our region:
Athens, PA
Sayre, PA
Towanda, PA
Wyalusing, PA
Canton, PA
Troy, PA
Dushore, PA
LaPorte, PA
Eagles Mere, PA
Mansfield, PA
Wellsboro, PA
Montrose, PA
Great Bend, PA
New Milford, PA
Tunkhannock, PA
Blossburg, PA
Elkland, PA
Williamsport, PA
So, if you have a Pennsylvania workers' compensation case and you have questions, feel free to call us. Even if you're represented by another attorney and you're not happy with that representation, just call. The consultation is free. And we're always here.
Thanks for reading.
Jim.
Athens, PA
Sayre, PA
Towanda, PA
Wyalusing, PA
Canton, PA
Troy, PA
Dushore, PA
LaPorte, PA
Eagles Mere, PA
Mansfield, PA
Wellsboro, PA
Montrose, PA
Great Bend, PA
New Milford, PA
Tunkhannock, PA
Blossburg, PA
Elkland, PA
Williamsport, PA
So, if you have a Pennsylvania workers' compensation case and you have questions, feel free to call us. Even if you're represented by another attorney and you're not happy with that representation, just call. The consultation is free. And we're always here.
Thanks for reading.
Jim.
New case law on allowing the treating physician to attend an IME or defense medical examination
The following is language from the case of Knechtel v. Workers' Comp. Appeal Bd. (Marriott Corporation), 934 A.2d 697, which is a November, 2007 decision from the Pennsylvania Supreme Court. The case deals with the issue of allowing a treating physician to attend an "IME" or defense medical examination. From the Court....
_____________________
"Today the Court affirms by per curiam order the Commonwealth Court's construction regarding the legislature's enactment of 77 P.S. § 651(b), n1 allowing a claimant's healthcare provider to "participate" in the examination conducted by an employer's physician. In so doing, we affirm the court's holding that the legislature intended to afford the opposing expert a first-hand view of the examination process, through attendance and observation, but did not intend to permit such expert to engage in any active conduct which might disturb the examining physician. I write to express my opinion that nothing in our affirmance of the Commonwealth Court's opinion, limiting a healthcare provider to attending and observing an employer's physician's examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam. Specifically, I believe that a workers' compensation judge retains the discretion to grant a claimant's reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer's physician's ability to conduct an examination."
______________________
This decision confirms what was widely understood and used by Claimant's attorneys-- that the Claimant or a representative of the Claimant (like their attorney or a paralegal from the firm) could attend a DME and video or audio tape the examination. This is a great tactic to use, especially with doctors who basically perform these types of examinations for a living and are beholden to the insurance industry for the economic survival.
_____________________
"Today the Court affirms by per curiam order the Commonwealth Court's construction regarding the legislature's enactment of 77 P.S. § 651(b), n1 allowing a claimant's healthcare provider to "participate" in the examination conducted by an employer's physician. In so doing, we affirm the court's holding that the legislature intended to afford the opposing expert a first-hand view of the examination process, through attendance and observation, but did not intend to permit such expert to engage in any active conduct which might disturb the examining physician. I write to express my opinion that nothing in our affirmance of the Commonwealth Court's opinion, limiting a healthcare provider to attending and observing an employer's physician's examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam. Specifically, I believe that a workers' compensation judge retains the discretion to grant a claimant's reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer's physician's ability to conduct an examination."
______________________
This decision confirms what was widely understood and used by Claimant's attorneys-- that the Claimant or a representative of the Claimant (like their attorney or a paralegal from the firm) could attend a DME and video or audio tape the examination. This is a great tactic to use, especially with doctors who basically perform these types of examinations for a living and are beholden to the insurance industry for the economic survival.
What is an Independent Medical Examination (IME)?
This article describes the term "Independent Medical Examination" or "IME" as used in injury, workers' compensation or disability cases. As pointed out in the article, these examinations are not really independent but are merely examinations performed by a doctor with a relationship with the insurance company or insurance industry. Here at Carroll & Carroll, P.C., we call them exactly what they are, Defense Medical Examinations, or "DME."
Please refer to another library item regarding "What to do at a DME." This is a standard letter that we send to all of our clients who have to attend a defense medical examination. These are when the insurance company hires a doctor to exam the plaintiff and render an opinion that the defense will use in a Pennsylvania workers' compensation case. These exams are more commonly referred to as IME's or Independent Medical Exams, but we and C&C Law think there's nothing independent about them.
The exams are for the defense so let's just call them that-- Defense Medical Exams. Usually, the doctor conducting the exam is well known with the insurance industry and makes hundreds of thousands of dollars a year conducting exams for the insurance industry. I ask you...how independent is that!?!? The attached documents are good rules to follow when you have to attend one of these exams.
Please refer to another library item regarding "What to do at a DME." This is a standard letter that we send to all of our clients who have to attend a defense medical examination. These are when the insurance company hires a doctor to exam the plaintiff and render an opinion that the defense will use in a Pennsylvania workers' compensation case. These exams are more commonly referred to as IME's or Independent Medical Exams, but we and C&C Law think there's nothing independent about them.
The exams are for the defense so let's just call them that-- Defense Medical Exams. Usually, the doctor conducting the exam is well known with the insurance industry and makes hundreds of thousands of dollars a year conducting exams for the insurance industry. I ask you...how independent is that!?!? The attached documents are good rules to follow when you have to attend one of these exams.
Monday, April 28, 2008
Flow of a Pennsylvania Workers' Compensation Claim
This is a nice little form from the Pennsylvania Workers' Compensation Bureau that describes the flow of the basic workers' compensation case. We have a printed version of this form in our lobby. It's a good summary of what's done and can be a good visual explanation of why these cases, sometimes, take a long time. Of course, every case is different so your particular case may not follow this example exactly.
You can find the form here.
You can also find a flow chart here that describes the claim documents that are most commonly seen in cases that are NOT in litigation. Just scroll over the document title for a description of what that form is used for.
You can find the form here.
You can also find a flow chart here that describes the claim documents that are most commonly seen in cases that are NOT in litigation. Just scroll over the document title for a description of what that form is used for.
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