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.

Taxing Legal Services in Pennsylvania

Governor Wolf has proposed in his new budget raising taxes on many items.  But he has also proposed beginning taxing of legal services.  Here's an article from the Morning Call describing what he is proposing.


Taxing legal services is bad public policy. There are three basic arguments against the sales tax on professional legal fees: 1) a tax on professional legal fees is a tax on the basic, constitutional right of citizens to have access to justice and the courts; 2) the sales tax is a regressive tax that is made more so by its application to basic goods and services; and 3) the sales tax is bad for business.


Please feel free to contact the Governor's office here and politely let them know that taxing legal services is bad public policy.

Driving in the winter...

As many of you know, my specialty is workers' compensation but in the other half of my practice I litigate car and truck accident cases. What most people don't know, is that this is my greatest fear…being involved in a multi-car collision. When I watch videos like the one posted below, my heart begins to race. I've been doing this for 20 years and the main cause of car accidents is someone driving too fast. Either the other person is driving too fast and loses control or you're driving too fast and can't evade a car that's lost control. Please please please…I've seen too much death and destruction caused by car and truck crashes. Drive slow. Wear a seat belt. And get home safe to your family.

Watch this video compilation of car and truck accidents on my Facebook page and hopefully learn something from it.

Walmart Gives 500,000 Workers a Raise

Since many of my workers' compensation clients were injured on the job while working at Walmart, I was glad to see this article detailing how Walmart will raise their wages.  I usually have represent several injured Walmart employees per year.  Obviously, these raises should have happened years ago, but hopefully the company is coming around to paying its workers closer to a living wage.

Marijuana Is Not Linked to Car Crashes

Because many of my Pennsylvania workers' compensation clients are injured in car and truck accidents--either as a long haul truck driver or delivery driver--this article from Reason.com caught my eye.  Further, given that more and more states are making the use of small amounts of marijuana legal, this topic is on the front edge.

In "the first large-scale [crash risk] study in the United States to include drugs other than alcohol," NHTSA found that, once the data were adjusted for confounding variables, cannabis consumption was not associated with an increased probability of getting into an accident.  Further adjusting for alcohol consumption made the crash risk of cannabis consumers equal to that of drivers who tested negative for alcohol and all other drugs. In other words, the study provides no evidence that marijuana use increases crash risk. Furthermore, the authors note, that result is similar to what the best-designed previous studies have found: a small or nonexistent increase in crash risk.

The Car You Are Most Likely to Die In...

Because many of my clients are involved in car or truck crashes, this article caught my eye.  Basically, the article describes what vehicles are the safest…and what cars are the most dangerous and most likely to cause serious injuries and death if it's involved in an accident.  The data was compiled by the Insurance Institute for Highway safety.  As you might guess, automobile insurance companies are very interested in lower the amount of injuries sustained in car crashes, thus lowering the amount of money they have to pay out for medical bills and damages in negligence lawsuits.

When you look closely at the list, the most dangerous vehicles are the smaller…or mini-vehicles.  The number one most dangerous car to drive is the Kia Rio.  So, check out the list…you have been warned.

As always, please feel free to contact me for a free evaluation if you've been seriously injured in a car or truck accident.

This is why I have a job...

Walmart is clearly at fault, but blames the victim…

An article from Huffingtonpost.com indicates that Walmart is blaming comedian Tracy Morgan for injuries he sustained due to a Walmart truck driver crashing into Morgan's vehicle. I have represented many people who were injured at the hands of negligent Walmart truck drivers and I can tell you from experience, they do this every time.

NEWARK, N.J. (AP) — Actor-comedian Tracy Morgan and other people in a limousine struck from behind by a Wal-Mart truck on a highway in June are at least partly to blame for their injuries because they weren't wearing seatbelts, the company said in a court filing Monday.

New maximum compensation rate for Pennsylvania workers

In Pennsylvania workers compensation cases, there is a maximum compensation rate.  Every year, this maximum rate is modified.  As we all know, when you are injured at work and you lose wages, the workers compensation insurance company has to determine your “average weekly wage.”  Based upon that, most employees will get two-thirds of their average weekly wage, up to a maximum amount.
 
The maximum rate for 2015 has been set at $951.00 per week in wage benefits.  Therefore, even if you made $10,000.00 per week, the max that you will receive if you are off work due to a work injury would be $951.00.


As always, should you have any Pennsylvania workers compensation questions, please do not hesitate to contact me.

150 Work Related Deaths Per Day in America

This statistic from a report by the AFL-CIO is appalling.  Work-related deaths will never be completely eliminated but we need to do a much better job than this.  See the report here.

New Cure for Back Pain??

Many of my clients suffer from back pain.  Whether it is caused by a work related injury or a car or truck accident or a fall in the grocery store, I see back injuries all the time with my clients.  So, when I read stuff (and I read a lot of stuff...) I'm always interested in medical research related to the injuries and conditions that affect my clients.  That's why I was very interested in this new report regarding new research in curing back pain.....from RawStory.com:

"Up to 40% of patients with chronic back pain could be cured with a course of antibiotics rather than surgery, in a medical breakthrough that one spinal surgeon says is worthy of a Nobel prize. Surgeons in the UK and elsewhere are reviewing how they treat patients with chronic back pain after scientists discovered that many of the worst cases were due to bacterial infections.

Specialists who deal with back pain have long known that infections are sometimes to blame, but these cases were thought to be exceptional. That thinking has been overturned by scientists at the University of Southern Denmark who found that 20% to 40% of chronic lower back pain was caused by bacterial infections.

“This will not help people with normal back pain, those with acute, or sub-acute pain – only those with chronic lower back pain,” Dr Hanne Albert, of the Danish research team, told the Guardian. “These are people who live a life on the edge because they are so handicapped with pain. We are returning them to a form of normality they would never have expected.”

In the first report, they explain how bacterial infections inside slipped discs can cause painful inflammation and tiny fractures in the surrounding vertebrae. Working with doctors in Birmingham, the Danish team examined tissue removed from patients for signs of infection. Nearly half tested positive, and of these, more than 80% carried bugs called Propionibacterium acnes.

The microbes are better known for causing acne. They lurk around hair roots and in the crevices in our teeth, but can get into the bloodstream during tooth brushing. Normally they cause no harm, but the situation may change when a person suffers a slipped disc. To heal the damage, the body grows small blood vessels into the disc. Rather than helping, though, they ferry bacteria inside, where they grow and cause serious inflammation and damage to neighbouring vertebrae that shows up on an MRI scan.

In the second paper, the scientists proved they could cure chronic back pain with a 100-day course of antibiotics. In a randomised trial, the drugs reduced pain in 80% of patients who had suffered for more than six months and had signs of damaged vertebra under MRI scans.  Albert stressed that antibiotics would not work for all back pain. Over-use of the drugs could lead to more antibiotic-resistant bacteria, which are already a major problem in hospitals. But she also warned that many patients will be having ineffective surgery instead of antibiotics that could alleviate their pain."

So, in summary, this potentially could be a huge help in curing chronic, long-lasting back pain.  It really is a fascinating read.  Take a look at the link above.

State law leads to workers' compensation drops for firefighters in Northeast Pennsylvania

From the Towanda Daily Review:

Insurers are pulling workers' compensation coverage from cash-strapped municipalities in response to a 2011 law linking firefighting with increased cancer risks. 

Dubbed the Firefighters Cancer Presumption Act, Act 46 of 2011 recognizes every form of cancer found in a firefighter as a work-related illness. The onus to prove otherwise is on the municipality. Before the law, a claim could be filed going back 300 weeks. The law doubled that to 600 weeks. 

"Because of the financial risk to the companies suddenly having all these claims, they are choosing not to do the workers' compensation," Smith said.Many are choosing the State Workers' Insurance Fund for firefighters workers' compensation because it is deemed the most cost-effective way to provide the state-mandated coverage. Using SWIF for firefighter coverage allowed Clarks Summit to keep MRM coverage for everything else, Kehoe said. 

Lawmakers who support the law have balked at talk of making modifications.  "I support the measure in its entirety and would not support tweaks to the statute that protects our paid and volunteer firefighters who in turn protect our communities," said Rep. Kevin Haggerty, D-112, Dunmore. "To say that those who are charged with protecting public safety are too costly for insurance carriers is an insult; especially those who volunteer to keep our families and communities safe and in doing so, have contracted cancer." 

Don Konkle, executive director of the Pennsylvania Fire and Emergency Services Institute, said lawmakers have a responsibility to look out for firefighters.  "We believe that protecting firefighters from financial ruin for doing their job is just good policy," he said.

Bradford and Lycoming counties record most crash-related fatalities in 2012

From The Towanda Daily Review: 

"Bradford and Lycoming counties had the most crash-related fatalities in 2012 in Pennsylvania Department of Transportation (PennDOT) District 3-0.  According to information released by PennDOT, Bradford and Lycoming counties each had 15 such fatalities each last year.  In each county, 14 were on state roads and one was on a municipal road. 

In addition, Bradford County had the most crash-related fatalities involving large trucks in 2012, with three, PennDOT noted. PennDOT Assistant Traffic Engineer Bill Houpt said there is no particular reason for the number of fatal crashes. When asked for comment by The Daily Review, he stated, "Each crash would need to be evaluated, based on the crash report and its own specific circumstances. Crashes (and fatalities) tend to be cyclical."  For example, total crash-related fatalities in Bradford County in past years are as follows: 2009, 10; 2010, 20; and 2011, 10."

My immediate thought is that the high amount of large truck related fatalities is related to the gas industry and the huge increase in truck traffic in Bradford County and the surrounding counties of Tioga, Sullivan and Susquehana.  Obviously, we don't know for sure without looking at each incident specifically.  But it's a quite surprising that one of the most rural counties in the state has the highest vehicular related fatalities in the Commonwealth of Pennsylvania.

Two-Thirds of Older Workers Plan to Delay Retirement

I saw an interesting post from Thinkprogress.com about the aging of our work force and the effect the Great Recession has had on our older workers.  According to a recent study, 62 percent of workers between 45 and 60 years old plan to delay their retirement due to falling wages and job uncertainty.

Ok...so why am I posting this on my Pennsylvania Workers' Compensation blog?  Here's why....as the work force ages, there will be a corresponding increase in work injuries.  It's just plain physiology.  Further, as the average worker's age range shifts higher we may see different types of work-related injuries that we have not seen before.

DuPont's Towanda Plant Celebrates Safety Record

From the give credit where credit is due file.......From the Towanda Daily Review:

Led by a veteran group of employees who collectively accounted for 1 million non-hazardous and hazardous exposure hours out of 57 million total, the DuPont Towanda site has recorded 40 consecutive years without an event-related, lost workday case.
The safety milestone, unprecedented for DuPont Pennsylvania-based operations, was achieved by a total Towanda plant population that has varied from over 1,000 to 500 employees over the past four decades. 

It was officially celebrated by the site Jan. 5 with special DuPont Safety Coin recognition given to each member of the veteran group including Leland S. Ayers, Wayne R. Brown, David C. Browning, Dennis L. Cox, Timothy E. Davidson, Dennis P. Fries, Douglas W. Hicks, Gregory J. Kelley, John H. Rees, Thomas D. Roof, Ralph H. Schoonover II, C. Scott Turner and Dale C. Vanderpool. 

"Led by these 13 employees, this outstanding accomplishment is but one example of the total team commitment that all of our employees live out in support of DuPont's Core Values," said James Rodenhizer, plant manager, who added that before starting the current 40-year safety run, Towanda employees had worked 27 years without an ER/LWC, giving the site just one case in a total of 67 years. "The 40 year milestone allows us to pause and appreciate the safe work of not only our current employees, but also past employees. It's wonderful to be a part of this great team." 

"57 million exposure hours without a major injury is an amazing accomplishment," said Michael Betzen, DuPont Electronics & Communications supply chain leader, who attended the Jan. 5 celebration. "It has to be one of the best lost workday records in the company's history."

Trench Collapse Leads to $1.12 Million Verdict

There are so many way to injure or kill yourself in the construction injury.  This is the reason why we have a lot of regulations that control what contractors need to do regarding safety of their employees.  For example, there are regulations and safety standards when digging trenches.  Depending on the size of the trench, if there is a collaspe, a worker could be bured alive and either killed or seriously injured.  See the following case for an example:

A 100-pound mound of dirt collapsed onto Plaintiff while he was installing a 12-inch water pipe into a trench. The impact crushed Plaintiff’s left ankle, causing fractures and torn tendons and ligaments. Plaintiff also suffered a lumbar-disc herniation and radiculopathy. Consequently, Plaintiff underwent multiple debridement procedures, physical therapy, epidural injections, a lumbar fusion, a laminectomy and surgical repair of the tendons. According to Plaintiff’s experts, Plaintiff is considered permanently disabled and can no longer perform physical labor. Plaintiff also claims he needs counseling for psychiatric issues associated with the trench collapse, including major depressive disorder.

At the time of the incident, contractor Miniscalco Construction, LLC (Miniscalco) had been hired by Aqua Pennsylvania Inc. (Aqua) to supervise Plaintiff’s work. According to a U.S. Occupational Safety and Health Administration (OSHA) expert, Aqua discovered that the trench was not in compliance with OSHA regulations, which required shoring to brace the walls of trenches over five feet deep. Aqua ordered Miniscalco to shore the trench wall, which Miniscalco did. Nevertheless, the OSHA expert testified that Miniscalco did not continue to enforce the OSHA regulations to ensure the walls were properly shored and braced thereafter.