Under Workers’ Compensation, the employer is responsible for medical care and treatment that is reasonable and necessary as a result of the work injury.  What happens when new symptoms arise sometime after the actual work incident?  Are the new symptoms considered part of your work injury?

When new symptoms arise from a work injury, the burden of proof to establish that the work-related symptoms and medical treatments are related depends on whether the connection between them is “obvious”.  An “obvious” causal connection is one involving a “nexus that is so clear that an untrained layperson would not have a problem” in concluding the new symptoms are related to the work injury.

If the new symptoms and the work injury are obviously related, than the employee receives the presumption that the new symptoms are related to the work injury, and the employer has the burden to establish they are not related. If the connection is not “obvious,” then the employee has the burden of establishing this connection through unequivocal medical testimony.

Here is a recent example:

The Facts:

  • The employee was injured while she was cleaning a knife at work and bleach splashed into her eye.
  • The employer accepted an injury to the left eye only.
  • The employee’s initial symptoms included: burning, redness and light sensitivity.
  • Over time, the employee began to experience the following:  difficulty seeing at night; irritation from dirty working conditions and severe headaches.

The Court’s Decision:

  • The Court characterized the work injury as a mild chemical burn.
  • There was no obvious causal relationship between the employee’s symptoms and the acknowledged work injury.
  • Therefore, the employee had the burden of proving the new symptoms, and any medical treatment of those symptoms, were causally related to the work injury.
  • The employee must present competent and credible medical evidence to establish that her symptoms are related to the acknowledged injury.

The Lesson:

  • If you develop new symptoms it is important that you report them immediately to your treating doctor.
  • You may need the testimony of your doctor to establish your right to medical care and treatment.

If you have questions regarding your rights under Workers’ Compensation, please contact the experienced attorneys in Stark & Stark’s Workers’ Compensation group. 

If you are injured while commuting to or from work, you generally cannot make a Workers’ Compensation claim. Commuting to and from work is not considered in the course of employment (“coming and going rule”). The following are exceptions to this general rule:

  • The employee has no fixed place of work;
  • The employment contract included transportation to and from work;
  • The employee is on special assignment for the employer; or
  • Special circumstances are such that the employee was furthering the business of the employer.

Whether or not an exception applies requires careful examination of the particular circumstances. If you have any questions of whether an exception applies, please contact our experienced Workers’ Compensation attorneys at Stark & Stark.

Please continue reading for more detailed examples.

Continue Reading Workers’ Compensation / Commuting

The Workers’ Compensation Act provides that an employee’s workers’ compensation claim may be resolved, in whole or in part, through a Compromise and Release of your workers’ compensation benefits.  “Compromise and Release” is the name given to the settlement documents when you settle your claim.  The settlement is referred to as a “C&R”.

C&R settlements provide you with a lump sum payment in exchange for some, or all, of your workers’ compensation benefits.  A lump sum settlement may include future workers compensation payments for lost wages, future medical benefits, or both.  Typically, most insurance companies want a full and final settlement of your claim, including both wage claims and medical claims.

Any C&R settlement is binding and cannot be set-aside or re-opened.

If you are receiving benefits, you need to fully understand the impact(s) of resolving your claim through a C&R.

As noted, most C&Rs result in a full release from liability to all claims arising out of a given injury.  However, in some instances, the insurance company may want to settle only a portion of your claim. Examples of a partial compromise or settlement of your claim may include:

  • Release of liability for your ongoing wage payments only, leaving your claim to continued treatments open for a period of time.
  • Release of liability for normal benefits, reserving a claim for serious and willful misconduct of the employer, or vice versa.
  • Release of the insurance carrier only, when insurance coverage is in doubt, reserving the right to proceed against the employer.
  • Release of less than all of the employers or insurance companies in a cumulative injury or occupational disease case.

Any agreement to settle your Workers’ Compensation claim through a C&R is not valid or binding until a Workers’ Compensation Judge approves the settlement.  Once approved, a valid C&R agreement is final and binding on the parties.

The decision to settle your Workers’ Compensation claim through a C&R is serious.  You must fully comprehend what you are receiving in the settlement and what rights you are giving up.  If you are considering a settlement of your Workers’ Compensation claim, please contact Stark & Stark’s Workers’ Compensation attorneys immediately to discuss your rights.

The issue of whether a travelling employee’s activity is in furtherance of the employer’s business and affairs, and therefore in the scope of employment, is difficult to determine.

If a travelling employee is injured after setting out on the business of the employer, it is presumed that the employee is in the course and scope of employment when the injury occurs.  However, this is not without limits.  The courts have to look at the employee’s activity and the circumstances surrounding the injury event.  They must look to see if the employee is engaged in an activity that was reasonable and incidental to the employment duties at the time. If the court cannot find that the activity is reasonable and incidental to his/her job, then any claim will be denied.

Because these types of claims are very fact sensitive, the Court decisions tend to be difficult to predict.  For example, a travelling employee who died in a motel bathtub from hyperthermia, due to hypoglycemia resulting from his physical activities at work, was in the course of employment.  Nevertheless, benefits were denied for injuries suffered in a motor vehicle accident that occurred while the employee was driving back to the hotel where the employee had been staying during a job-related seminar. The reason benefits were denied was because the employee had been pursuing personal interests of sightseeing and drinking.  Benefits were also denied to a pilot on layover, who was killed in a fall from a hotel room, but not the room provided by the employer.  The result may have been different if the fall was from the hotel room provided by the employer.

Questions regarding whether one is in the course and scope of employment, or whether an activity is in furtherance of the employer’s business or affairs, can be extremely complicated.  If you have any questions as to whether you are in the course and scope of your employment, please contact Stark & Stark’s Workers’ Compensation Group. 

Under Pennsylvania Workers’ Compensation Law, employers and insurers can be subject to monetary penalties.  The Law provides that the Court has the power to impose penalties for a violation of any provision of the Workers’ Compensation Act, Rules and Regulations. Employers and insurers may be penalized up to ten percent (10%) of an amount awarded, plus interest.  This penalty may be increased to fifty percent (50%) in cases of unreasonable or excessive delays.

What type of violations can result in the award of penalty?  Here are a few examples.

  • Stopping your weekly check without reason;
  • Refusal to pay medical bills;
  • Failure to issue forms required (Notice of Compensation Payable; Temporary Notice of Compensation Payable; Notice of Denial; Notice of Ability to Return to Work; notice of Benefits Offset);
  • Failure to properly investigate a claim;
  • Failure to insure for workers’ compensation; and
  • Violation of establishing Rules of Procedure

If you are currently receiving Workers’ Compensation medical and wage payments it is important that you keep a copy of the following:

  • Your compensation check/stub;
  • The envelope with mailing date or postmark;
  • Any late check/stub and envelope with postmarks;
  • Any unpaid medical bill;
  • A prescription or note from your medical provider for recommended treatment;
  • Any letter or notice of refusal or denial of service

Most penalty issues involve the payment of weekly wage payments and medical bills.  Workers’ Compensation Judges, in deciding whether a penalty is warranted, are concerned with the following:

  • When wage payments should have been made;
  • When payment was actually issued;
  • If there is any reason for the delay;
  • What impact a delayed payment may have on the Claimant;
  • Are unpaid medical bills related to the work injury;
  • When bills were submitted;
  • Were bills properly coded;
  • Were bills properly submitted

If you have any issue(s) with either wage payments or medical bills, please contact one of the attorneys in Stark & Stark’s Workers’ Compensation Group. You may be entitled to an award of penalties under the Workers’ Compensation Law.

The Pennsylvania Workers’ Compensation Act provides that certain injuries are eligible for specific loss awards. A specific loss in Workers’ Compensation is when you lose use of a specific body part. In that case, the Workers’ Compensation Act has predetermined a set amount of weeks that you are permitted to receive payment, based on the body part you lost. The amount you receive per week as workers’ compensation benefits is based on a calculation of your average weekly wage. The predetermined amount of weeks for the injury to certain body parts are as follows:

Nature of Injury Benefits Paid (weeks) Healing Period (weeks)
Hand 335 20
Forearm 370 20
Arm 410 20
Foot 250 25
Lower Leg 350 25
Leg 410 25
Thumb 100 10
First Finger 50 6
Second Finger 40 6
Third Finger 30 6
Fourth Finger 28 6
Great Toe 40 12
Other Toes 16 6

The specific loss provision of the Workers’ Compensation Act  is not only used by an employee to get the maximum amount of benefits due, but can also be used by an employer to limit benefits. For example, if you lose a first finger and you are able to return to work the next day, you can still recover the 56 weeks at your workers’ compensation rate, even though you did not miss time from work. However, if the loss of use of your first finger prevents you from working after more than 56 weeks, the employer will file a petition to limit your payments to only the specific loss period of 56 weeks. In the latter case, to continue receiving benefits you need to prove that there is an injury, separate and apart from the specific loss, which is preventing you from working.

Regardless of the type of injury you may receive at work, you should also keep in mind that the law allows you to pursue a lawsuit against someone or an entity other than your employer, if that other person was negligent.

If you have lost the use of a body part or lost a body part due to amputation, you should contact Carin O’Donnell at  Stark and Stark to discuss your rights under Workers’ Compensation Act and the possibility of a separate legal action if another person, other than your employer caused your injury.

Medical Benefits You have a right to reasonable and necessary medical care for your work-related injury.

Total Disability Wage Loss Benefits (TTD) You have the right to TTD benefits as long as you are unable to work because of your work injury.

Partial Disability Wage Loss Benefits You have a right to Partial Disability Wage Loss Benefits if you are partially disabled and have an ability to earn some amount of wages but have not fully recovered from your work injury.

Specific Loss Benefits You have the right to specific loss benefits if you suffer an amputation or loss of various body parts (fingers, hands, toes), if you suffer work related loss of hearing or vision, or if you suffer permanent scaring or serious disfigurement to your head, neck or face.

Death Benefits If a worker dies as a result of a work-related injury or illness, their spouse or children may have a right to benefits.

Your employer has 21 days from the date they are notified of the work related incident to accept or deny your claim. If your claim is accepted, a Notice of Compensation Payable (NCP) should be issued. It is important that you get a copy of the NCP and check the accuracy of the information put on this form.

You have the right to receive reasonable and necessary medical treatment for your work injury or occupational illness, and your employer must pay for the treatment. Your employer may, under certain circumstances, be able to contact your medical care for 90 days.

If your employer does not meet certain requirements, you may have the right to seek medical treatment for your work injury or occupational illness from any health care provider of your choice during the first 90 days. After the first 90 days you have the right to receive treatment from any physician or other health care provider of your choice.

If you are unable to return to work because of your injury, you may have the right to Workers’ Compensation Wage Payments. Workers’ Compensation Wage Payments normally pay two-thirds of your gross average weekly wage. The employer should issue a statement of wages form which explains your average weekly wage calculation.  You must review this form carefully for accuracy. Any under reporting of wages could dramatically affect the amount you receive.
 

REPORT the accident to your employer, even if you think you are not seriously hurt. By reporting the accident you protect yourself against the employer who might claim that you were injured away from the workplace. If possible, report the accident in writing or in the presence of a reliable witness.

All workplace injuries should be reported to your employer as soon as possible. Many employers, however, require accident reports to be filed within 24 hours. The legal requirement for reporting is within 120 days from the date of the injury. If you report within 21 days, your workers’ compensation will begin from the date you were injured. If not, workers’ compensation will begin from the date you gave notice, as long as it is within the 120 days from the date you were injured. However, the more time passes, the less likely coverage will be provided for an injury. Reporting may be written or verbal to a supervisor, although having documentation of the report of injury is highly recommended.

Therefore, any incident, no matter how trivial or uneventful, should be reported immediately through the filing of an accident report, even if medical treatment is not immediately needed.  When in doubt, it is better to file immediately for an incident rather than to wait to see if a minor injury will resolve itself or worsen.

As a follow up to my previous post in which I discussed the rights and responsibilities of pedestrians and motorists as crosswalks, I wanted to add a very important note about certain instances in which the safety of all parties is not clearly defined.

Crosswalks are designed to create a safe walkway for pedestrians. However, not all areas include crosswalks. Some parking lots, residential communities and commercial buildings do not have crosswalks for pedestrians. In these instances, there are certain rights and responsibilities which differ from those associated with areas clearly defined for pedestrians.

In these instances, be sure to consider the following:

  • Pedestrians must look before undertaking a street crossing;
  • Pedestrians must yield the right-of-way to vehicles on the highway;
  • Pedestrians are held to a higher degree of care than if they are crossing in an area other than a crosswalk or intersection;
  • Pedestrians must exercise due care under the circumstances;
  • Pedestrians are not automatically deemed negligence for crossing in an area not controlled by a crosswalk;
  • Motorists also have to exercise due care under the circumstances;
  • Motorists’ duty of care is lesser than the duty of care required in the crosswalk/intersection area;
  • Motorist always have the duty to keep a constant lookout for pedestrians.

The exercise of due care and the determination of responsibility are extremely fact sensitive to the particular circumstance. Beware of your duties and responsibilities.