Do I Really Need a Lawyer to Handle My Pennsylvania Workers’ Compensation Claim?

Workers’ Comp Benefits: What are they?

Welcome to workers comp, the magic law that guarantees tax-free wage loss and medical expense benefits if you’re injured on the job! Of course, you have to give up your right to sue your employer for negligence, but what’s the big deal? Well, if your supervisor runs over you with a forklift because he was busy texting his bookie, you get no pain and suffering recovery and your workers’ compensation checks are fixed on the date of injury. Even if you can never do heavy labor again and get stuck in a nowhere, low paying career, you get no award for your loss of earnings from expected future wage increases. And, as you will see, the “guarantee” of benefits is far from real.

I once represented a truck driver who made a delivery to a discount store while a holdup was in progress.  One man pressed the barrel of his gun into the back of the store manager, who faced the store vault.  A second gunman yelled “Get down on the ground!” to the driver. The thief pressed a gun to his head. The driver pled, “Don’t shoot me; I’m a father of five!”  As he did so, the first gunman shot the store manager, severing an artery that spurt blood across the driver’s face.  After clearing out the safe, one of the gunmen stole his wallet, warning, “I know where your family lives. If you get up before half an hour passes, we’ll get them.”  After they left, he saw that blood was dripping from the manager’s platform.  He put the manager’s leg in a tourniquet and called 911.  Ultimately she recovered, but the driver had a mental breakdown and his employer refused to pay benefits. This man needed a good lawyer and got one.

On the other hand, you do not have any co-pays for medical treatment and though you can’t sue your employer for causing your injuries, you can pursue a negligence claim against someone other than your employer or a co-employee.

There are certain other "specific loss" benefits available if you suffer a disfigurement of the face, neck or head, the loss of the use of a body part, or a loss of vision or hearing.  Most people, however, will recover wage loss and medical expense benefits only.          

If you’re still hurt but you return to work at lower wages, the insurance company has to pay you checks equal to two-thirds of the difference between your current wages and your pre-injury average weekly wage. If you work restricted duty due to your injury, you may receive partial disability benefits for up to 500 weeks. If you undergo an impairment rating evaluation (IRE) and are found to be less than 50% disabled under American Medical Association guidelines, you get no more than 500 additional weeks of benefits. It is very rare for anyone to meet the 50% disability rating, and thus virtually all who undergo IRE’s will be limited in  the amount they can receive in benefits. After that, you’re on your own.

Basic handling of your claim

If you suffer a work-related injury that requires medical treatment, your employer is supposed to forward notice to its workers' compensation insurance company, which will assign a claim number and representative (or “adjuster”) to handle the claim.  The claims representative decides whether to pay wage replacement benefits and medical bills.  Sometimes the insurer assigns two different claims representatives to a claim, with one handling payment of wage loss benefits and the other handling medical expenses.  At the beginning of your case, it is likely that there will be a single claims representative handling the case.  Ask your employer for the name, address, and telephone number of the insurance company, and call your claims representative. Politely ask for your claim number, your representative’s phone number, and instructions regarding submitting medical bills.  If you speak with or write to anybody at the insurance company, you will need your claim number.

Minor or severe injury?

Under Pennsylvania law, an employer and its workers’ compensation insurance company have 21 days from the date you start losing money to decide whether to pay your claim.  Where the injuries are obvious, the insurance company will probably pay the claim without a hitch.  For example, if you miss work from breaking your leg on the job, the insurance company will probably pay the claim.  From their perspective, the injury is obvious and you’ll eventually recover without costing them too much. Injuries that are relatively minor, require no more than a few visits to the doctor, and do not involve a significant amount of lost time may be handled without you ever getting in touch with the insurance company. 

For more severe injuries, the insurance company probably will look more closely, even if the injury is obvious.  This may lead to some delay before they start paying you. Or maybe they won’t pay at all unless a judge forces them. Wait, what about those guaranteed benefits?

You may be entitled to additional benefits

Now that you’ve reported your injury, your HR department will sit down with you and go over all the benefits you’re entitled to. Right? Anything’s possible, but I wouldn’t count on it. Take the bull by the horns and ask your employer what benefits are available.

You may be entitled to use sick, vacation or accident and sickness benefits while your claim is pending. Sickness and accident benefits are an additional benefit provided by some employers or unions and are not the same as sick pay.  You should apply for such benefits as soon as possible if the insurance company denies your claim, but be wary if your employer encourages you to file for such benefits instead of filing a worker’s compensation claim. You probably will have to repay sickness and accident benefits if you win your workers’ compensation case. If you are entitled to accumulate sick and vacation pay, you normally may receive both workers’ compensation and sick pay at the same time. If your employer provides a pension, review your pension agreement to see whether you are eligible for disability, early retirement, regular disability, or regular retirement benefits.  If you are a police officer, firefighter or prison guard or hold a similar job, you may be entitled to additional benefits under state or local law.

You need to know the benefits available to you whether your claim is accepted or not, but if your claim has been denied, understanding all your available benefits may be the only way to put food on your table. For more information, order a copy of Battered and Broke: Making Ends Meet when Your Workers’ Compensation Claim is Denied.

Your employment is not protected by the Workers’ Compensation Act     

Pennsylvania is an "at-will" employment state, which means that unless your firing falls into a narrow set of categories or you are a union member, you can be fired for any reason at all, including such stupid things as the boss doesn't like the way you cut your hair.  If you work for an employer with more than 25 employees, you may qualify for protection under the Family and Medical Leave Act, which give you 12 weeks of employment protection per year.  This does not mean that your employer is required to pay you while you're out.  It means only that they can't fire you during this period of time. As unfair as this sounds, an employer is not required to keep your job open if you've suffered a work injury and have been out for more than 12 weeks.

You may lose your health insurance coverage

It is also widely but incorrectly believed that employers must continue to pay your health insurance and other fringe benefits while you are out for a work injury.  This is not true.  You may have the right to purchase your coverage at the group rate for a period of up to 18 months, but if you suffer a work injury, you are not guaranteed any coverage.  If you have a spouse who is working and has health insurance coverage available, you should switch to that policy as soon as possible.  Otherwise, if your coverage is canceled and you're not able to pay the group rates, you may have to check the insurance exchange created by the Affordable Care Act.

If you are in a union, check your contract

If you are a union member, however, your collective bargaining agreement may provide for many added benefits, such as protection of your employment for longer than is required under the Family Medical Leave Act.  It may provide for payment of sickness, accident, health insurance and vacation pay during your period of disability, or compensation in addition to your workers’ compensation benefits.  It could contain short term and long term disability benefits, and you may even qualify for a disability pension. 

You may have rights that are not explicitly spelled out in the collective bargaining agreement.  If an employer and a union engage in certain practices over the course of time, those “past practices” may give you additional rights. Furthermore, there may be other agreements governing your employment, such as a pension plan or disability insurance contract other than the collective bargaining agreement.  Check this with your union representative and your company’s human relations department.

For serious injuries, you will need help

Most good law firms will provide assistance to anyone who has a legitimate work-related injury, even if the claim is small.  If you are receiving ongoing workers’ compensation benefits and the insurance company has paid the claim voluntarily, you still should consult a lawyer if your injury is serious enough that you expect to miss more than two months of work.  Most experienced workers’ compensation lawyers will not charge you for providing advice while you are receiving benefits on a claim the insurance company paid voluntarily. 

Do not make the mistake of believing that the insurance company has your best interests at heart.  While you are receiving benefits, the insurance company is trying to figure out ways to cut off or reduce your benefits.  There are countless ways you can make it easy for them to do so.