Are Injured Undocumented Workers Eligible For Pennsylvania Workers' Compensation?

Yes.  To answer shortly.  Undocumented workers (or illegal aliens) are eligible for workers' compensation benefits when they are injured at work.  However, there are some issues that should be considered before an undocumented worker files a workers' compensation claim.

First, your undocumented status could be revealed during the litigation of your claim.  Eventually, the INS could possibly investigate and deport the worker.  Although this is unlikely, it is still a possibility.

 

Second, often wages are paid under the table and paid in cash.  Because of this, and the worker's undocumented status, many times these wages are not reported to the IRS.  Again, although it is unlikely, the IRS could investigate.

 

Third, the employer is less likely to bring you back to work after you recover from your work injury if he discovers during the litigation of your compensation claim that you are undocumented.  However, most likely the employer already knows your undocumented status before the work injury.  Further, if the injury is serious enough, you might not be able to return back to heavy labor work anyway.

 

The bottom line is that if you're an undocumented worker and are injured at work, before you do anything you should talk to an experienced workers' compensation lawyer.

Be Carefule How You Settle Your Workers' Compensation Claim

There are so many pitfalls and issues that could arise when settling a workers' compensation claim.  First thing is that you must have an experienced workers' compensation lawyer representing you and making sure you miss all of the potential land mines.  Second, as a recent Federal case demonstrates, your lawyer has to be careful what types language is contained within the settlement agreement.

In Zuber v. Boscov's, Craig Zuber filed a claim for interference with his FMLA (Family Medical Leave) rights and wrongful termination.  However, the Defendant argued that the case should be dismissed because the plaintiff settled his workers' compensation claim and, in so doing, signed a Compromise and Release Agreement which released all claims. 

The Compromise and Release Agreement provided for a "full and final resolution of all aspects of the 8/12/2014 alleged work injury claim and its sequela whether known or unknown at this time."  This typical language is used by insurance companies when settling workers' compensation claims.  In other words, when your employer settles your workers' compensation claim with you they don't want you coming back asking for more money for other injuries.  Additional language in this settlement provided that "...employee is forever relinquishing any and all rights to seek any and all past, present and/or future benefits, including, but not limited to, wage loss benefits, specific loss benefits, disfigurement benefits, medical benefits or any other monies of any kind including, but not limited to, interest, costs, attorney's fees and/or penalties for or in connection with the alleged 8/12/2014 work injury claim as well as any other work injury claim(s) Employee may have with or against Employer up through and including 4/7/2015."

So, what should a claimant do before they settle their workers' compensation claim?  For starters, it is important that you let your workers' compensation attorney know whether or not you have any other claims against the employer that you intend to pursue or are pursuing.  Additionally, many attorneys handling workers' compensation claims are not familiar with state and federal employment laws and perhaps therefore they do not even explore or consider whether you may have valid claims against your employer or former employer.  Don't assume that your attorney will advise you if you have such a claim, ask, and if your attorney doesn't know ask for a referral to an employment attorney who does know your rights under the law and can advise you.

Lastly, and most importantly, make sure that any and all language inserted into a Compromise and Release Agreement is limited solely to a release and waiver of claims under the workers' compensation laws.  In other words, rather than signing a document stating that you are waiving any and all claims related to your work injury, make sure the document states that you are waiving any and all claims under the workers' compensation laws related to your work injury.  It may seem trivial, but the legal ramifications, as described above, can be significant.

Employee vs. Independent Contractor

In many construction cases, there is often an issue involving whether a worker is an "employee" or whether they are an "independent contractor."  The reason this is important is that if they are injured on the job, an employee's injury will be covered by workers' compensation whereas an independent contractor's injury will not.  Therefore, determining what category you fall under can be daunting.  Oftentimes the general contractor on a construction project will argue that an injured employee is actually an independent contractor; thus, the general contractor is not responsible for any injuries.

Over the years Pennsylvania Courts have struggled with the concept of defining an employee versus an independent contractor.  In 2010, the Pennsylvania Legislature enacted the Construction Workplace Misclassification Act (CWMA), which, in part, attempted to clarify who is and is not an independent contractor (in the construction industry) for the purposes of workers’ compensation coverage.  Section 3(a) of the CWMA provides: “For purposes of workers’ compensation . . . an individual who performs services in the construction industry for remuneration is an independent contractor only if: (1) the individual has a written contract to perform such services; (2) the individual is free from control or direction over performance of such services both under the contract of service and in fact; and (3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. §933.3(a).

To the extent an individual does not meet such definition, the individual will be deemed an employee and the general contractor/employer will be responsible for maintaining and providing workers’ compensation coverage for such individual.  Further, if the worker is to be a valid independent contractor, the written contract under the law should be signed by the worker before the injury takes place.

Fatal Roadway Construction Accidents

One of the most dangerous jobs in Bucks County and Pennsylvania as a whole is roadway construction workers.  The danger increases during the warmer months due to the increase construction and increased traffic.  Many of these incidents cause fatalities because cars and trucks are hitting construction workers within highway construction zones.

Fatalities in roadway construction zones peaked in 2003 but have decreased significantly. In Pennsylvania, the number of construction site fatal accidents was lowest in 2013 and highest in 2004, 2005 and 2008. Fatalities may be categorized by the type of accident, and 69 percent of nationwide accidents in 2013 involved transportation. Occupations included construction and maintenance workers, truck drivers, workers operating construction equipment and supervisors.

Decreasing highway construction zone fatalities and injuries should be a priority.  Everyone should remember to SLOW DOWN while driving through a construction zone.  Pay attention to the workers on the side of the road.

Work Related Hearing Loss in Pennsylvania

According to the Bureau of Labor Statistics, hearing loss is one of the most common types of occupational illness in the manufacturing sector. To qualify as occupational hearing loss, the loss must leave a worker disabled and it must have occurred while on the job.  Further, the level of hearing loss has to be more than 10% when factoring both ears.  Many manufacturing plants supply hearing protection; however, sometimes hearing loss can still occur, especially with long-term employees.

It is believed that many more workers may suffer from hearing loss who have not yet become disabled. This means that there may be many cases of hearing loss while on the job that have not yet been recorded. To make matters slightly more complicated, many workers do not lose their hearing in a sudden manner. Instead, they lose their hearing gradually over time. In some cases, a worker may not realize that a hearing problem exists.

Most hearing loss occurs in the first 10 years of exposure to loud noise, which may make it even more important to educate new workers about the dangers of the problem. However, it may be possible to prevent or reduce hearing loss by sharing information about such an issue with workers. Employers may also attempt to partner with researchers to determine the true extent of hearing loss and steps that can be taken to keep workers safe.

If you feel you have work-related hearing loss, the first thing to do is have your hearing tested and report that test to your employer.  Further, make sure to wear hearing protection at all times while on the plant floor.

Employer Parking Lot Injury Not Covered

Most Bucks County workers would think that if they were injured on their employer's property then they'd be entitled to Pennsylvania Workers' Compensation and have their medical bills paid and lost wages covered.  But this isn't necessarily the case.  In Bicycle Products Inc v. W.C.A.B. (Shaw), the Commonwealth Court of Pennsylvania found that an employee who injured his knee while running to his car in the employer's parking lot was not in the course and scope of employment; thus, the injury was not covered.  The Court said that since the injury was not caused by a condition of the parking lot (For example, a pot hole), then the injury is not covered under the Pennsylvania Workers' Compensation Act.

If you have any questions regarding a Bucks County workers' compensation case, please feel free to contact the lawyers at Hoffman, Sternberg & Karpf, LLC. at 215-953-8955.