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Workers' Compensation 101: An Overview of WC for Employees
With Work-related CRPS
By R. Steven Shisler, Esq.
Workers' compensation (WC) laws generally vary from state
to state. As I am admitted to practice law in Pennsylvania,
this article only will address WC issues in accordance with
Pennsylvania law. Explanations of the law and recommended
strategies are not applicable to those whose claims fall outside
of the Pennsylvania Workers' Compensation Act (PWCA). Also,
because strategy and professional judgment are fact specific
and may vary among claims, this article is written for your
general knowledge only.
Lastly, if you are seriously injured at work, and especially
if this results in CRPS, I strongly suggest that you retain
an attorney as soon as possible after the injury. It is simply
too dangerous to pursue your claim without counsel. Regardless
of your relationship with your supervisor and the company,
remember that your employer's insurance carrier controls the
WC benefits and is most concerned about paying as little as
possible. The attorney you retain must represent claimants
(employees) in WC matters and also should have some knowledge
of CRPS.
Justice
In my first year of law school, my contracts professor "set
up" a fellow student. Proper application of the law in
accordance with the facts of the case resulted in a horrendous
and unjust ruling. When the professor asked how the student
felt about the Court's conclusion, she said she understood
that this was a proper application of the law; but the result
was unfair. The professor nearly went berserk.
He shouted, "Fair? Young lady, the law is the law and
justice is justice; and if you want justice, go across the
street!" and he pointed toward the divinity school where
future priests were taught.
I usually tell this story to new clients, and I advise them
that I cannot obtain justice for them; my job is to maximize
their recovery (benefits) within the boundaries established
by the law. It is nothing more than a high-stakes chess game.
Benefits
In order to establish a right to compensation under the PWCA,
you must be employed and have been injured at work in a work-related
accident. You do not have to prove your employer negligent,
only that you sustained a work-related injury.
Benefits consist of earnings loss benefits for total or partial
disability, medical benefits, specific loss benefits, death
benefits, and illegally employed minors' benefits, and may
include an award of interest, costs, and attorneys fees to
be assessed against the employer for unreasonable contest
of the claim.
A compensable injury under the PWCA must leave you disabled
(an inability or limited ability to work) leading to a loss
of earning power, which is determined by your average weekly
wage at the time of injury. You are entitled to 66.6% of your
lost earning power, with a specific top and bottom compensation
rate.
Most WC claimants who suffer work-related CRPS have difficulty
understanding the limitations of WC benefits. They have heard
of large settlements in other types of cases and believe that
their extreme pain and suffering should account for a high
settlement. However, the PWCA does not provide for, nor are
you entitled to, compensation for pain and suffering. It doesn't
matter whether you had a great future and you can no longer
do your former job. If you can work at any job, even one not
available at your former workplace, and if you can earn the
same weekly wage, you are no longer entitled to WC earnings
loss benefits. This means that if you have CRPS in all
four limbs but can do any job within your usual employment
area (generally within 30 miles from your home) such as testing
chewing gum or mattresses in your home, you are not totally
disabled. If these other jobs pay the same as your pre-injury
wage, you can lose your benefits.
Pain and suffering is recoverable in negligence cases, but
not in WC matters. Moreover, the PWCA is the sole remedy you
have. This means that even if your employer or a co-worker
caused your injury through negligence, the company, its workers,
and even the company's WC insurance carrier are immune from
a negligence lawsuit. However, if your employer or its insurance
carrier violates the PWCA, your attorney should file a Penalties
Petition. The employer may be assessed penalties in addition
to any unpaid compensation (up to 50% of unpaid, overdue,
or illegally suspended compensation; statutory interest and/or
attorneys' fees for unreasonable contest).
You are entitled to be paid for reasonable and necessary
diagnosis and treatment. The question is: "What is reasonable
and necessary?" If you seek medical treatment far away,
and the same type of physician, e.g. neurologist, pain management
physician, is practicing within a reasonable distance from
home, the insurance carrier is not required to pay for the
longer-distance treatment. Moreover, if you have CRPS
and you can travel a distance for treatment, it will likely
harm your case. The argument can be made that if you can sit
for the length of time required to travel, then you can do
work that is sedentary and has limited use of your hands,
such as answering telephones using a headset.
The insurance carrier will likely deny payment for any treatment
that may be even slightly unusual, such as a ketamine drip
or acupuncture. In some cases, such as surgery for the implantation
of a morphine pump or spinal cord stimulator, the hospital
may require pre-certification approval by the WC insurance
carrier. The carriers often deny pre-certification. Additionally,
if your CRPS has spread, the insurance carrier may deny
the claim as being unrelated to the original work injury.
Finally; because of the bad press on OxyContin®, I have
noticed that insurance carriers are often refusing to pay
for the drug. In the meantime, as medication and payment for
treatments are denied, the patient's CRPS and pain become aggravated
and often spreads and the injured employee becomes frustrated
and lost. The insurance carrier may take advantage .of this
denial to influence your settlement decision.
Finally, you may be entitled to benefits for the specific
loss of the use of a limb. This can mean actual amputation,
or simply the inability to use that limb. For example, if
you had four fingers amputated by a snow thrower and those
fingers have been reattached but are unusable, you may be
entitled to benefits for specific loss of those fingers or
even the hand. The benefit amount and payment for an appropriate
healing are set forth in the PWCA.
The Petitions
WC issues are not decided by a jury but by a WC judge employed
by the Commonwealth of Pennsylvania Department of Labor and
Industry. The claim may never reach a judge. The employer
files a Report of Occupational Injury with the Department
of Labor and Industry, Bureau of Workers' Compensation after
being notified of the injury. It is imperative to report your
work-related injury to your employer immediately following
the injury. Failure to do so may result in your claim beingpermanently
barred. No compensation is paid the first seven days, but
if disability lasts at least 14 days you are entitled to WC
earnings loss benefits, retroactive to the date disability
began. Your employer then has 21 days after receiving notice
of the disability to pay WC earnings loss benefits. If the
employer hasn't paid, file a Claim Petition for compensation
benefits and a Penalties Petition seeking penalties, interest,
cost, and attorney's fees, with the Bureau of Workers Compensation.
Many CRPS sufferers continue to work despite their pain
and the detriment to their health and their claim because
of financial concerns. If you cannot work without pain, you
and your physician should strongly consider whether you arc
able to work.
After a Petition is filed, there will be a number of court
appearances, some of which will involve only the attorneys.
The burden of proof is on you to prove that you have suffered
a work-related injury and that you are disabled and can't
return to work. This is done with your testimony as well as
that of your physician and other witnesses.
Often, you may feel that your attorney is doing nothing and
that an unreasonable period has passed without any benefits
being paid. Unfortunately, this is the nature of the system.
Schedules-the judge, attorneys, and physicians-play a large
part in the time involved.
After the taking of evidence, the judge will issue a briefing
schedule, giving your attorney several months in which to
write his brief, which is akin to a written closing argument.
Then the defense will have the same amount of time to write
a responsive brief. After the briefs are filed, the judge's
workload determines when an opinion is issued.
Unfortunately; there is little you can do to expedite this
process. Your attorney can object to any time extensions requested
by the defense and request that the judge limit the time for
submission of evidence or briefs. The judge decides whether
to do so or not. As a last resort, if you have been denied
benefits, you may have to turn to public assistance, or welfare,
for survival monies and medical assistance while your claim
is in process.
As in all injury cases, the defense takes advantage of the
delays inherent in the system to manipulate you. Your employer
may attempt to force you to accept a lower settlement. Remember,
your employer has no incentive to settle until the case reaches
a point where all of the evidence is admitted, and the insurance
carrier feels there may be a high risk of losing the case.
The law does not force either side to settle the case.
Settlement amounts in WC cases are generally low, since they
are based wholly upon negotiations regarding how long you
will be disabled and whether you will be totally or partially
disabled. Additionally, the PWCA caps the length of time you
may collect WC benefits for partial disability.
Your employer is also entitled to insist on a complete settlement
of the claim, including future medical benefits. If you have
CRPS, you should be very cautious about anysuch settlement,
and agree to it only if you have no choice.
After negotiations are final, your attorney will file a Petition
to Seek Approval of a Compromise and Release Agreement. At
the hearing, you will be questioned by your attorney; the
judge, and/or defense counsel to make sure you understand
the ramifications of settlement. In the event that any of
your medical bills for work-related injuries have been or
may in the future be paid by Medicare, you must make arrangements
with Medicare to reimburse them for past and future bills
from your settlement.
As mentioned previously, you are entitled to payment of reasonable
and necessary medical bills for diagnosis and treatment. If
you are denied medical treatment or your bills aren't being
paid, respond promptly. If you have medical insurance coverage
and have been denied by the WC insurance carrier, your attorney
must direct your healthcare providers to submit the bill or
pre-certification request to your private insurance carrier.
In the case of an HMO, the primary care physician must first
make the referral. In conjunction with the referrals and submissions,
your attorney should tell your medical insurance carrier you
have been denied by the WC insurance carrier and remind the
medical insurance carrier that it is required to approve and/or
pay for the treatment and seek subrogation, or recovery of
the medical carrier's payments, from the proceeds of the WC
case.
Your attorney should also file an immediate Review Petition,
asking the judge to review the medical issues and enter an
Order regarding the denied medical treatment. Your attorney
should also file a Penalties Petition referencing your aggravated
CRPS, which may have occurred as a result of being denied
medical treatment, and the increased stress and resultant
threat to your health from denied medical care.
Your attorney should request a hearing on an emergency basis
in the letter submitting the Petition to the Bureau of Workers'
Compensation for filing. Additionally, the attorney should
write to the judge and request an emergency hearing on an
expedited basis.
If your medical insurance carrier delays accepting the claim,
you can threaten to sue for breach of contract and insurance
bad faith. You can put pressure on both workers compensation
and the medical insurance carriers by filing a complaint with
the State Insurance Commissioner for violation of the Pennsylvania
Unfair Insurance practices Act. However, this only leads to
investigation and possible punishment by the State Insurance
Commissioner and does not give you a private cause o action
against the insurance company.
As a last resort, if you have been denied benefits, you may
have to turn to public assistance, or welfare, for survival
monies and medical assistance while your claim is in process.
Public assistance will have a lien against any WC proceeds
that you may ultimately obtain. You may also apply for Social
Security Disability Benefits and/or supplemental Security
Income; however these benefits are customarily denied and
the appeal process may take a year or more. If you are receiving
WC benefits, the amount of social security benefits will be
reduced. Additionally; qualifying for Social Security Disability
does not determine the right to we benefits, or vice versa,
and receiving Social Security will likely be deemed inadmissible
in the WC case; it certainly doesn't hurt to attempt to have
it admitted.
Suspension of Benefits
If you are receiving WC benefits, sooner or later your employer
will me a petition to modify; suspend, or terminate your benefits.
The process begins with the "independent medical examination."
Your employer can request that you undergo a medical examination
by an employer chosen physician twice a year. In reality,
there is no such thing as an independent medical examination;
it is a defense medical examination by a physician who receives
large sums of money from insurance carriers for conducting
these exams, and who is likely biased toward the carrier
Based on the restriction, or lack thereof, as determined by
the physician, the carrier will have you submit to a vocational
examination, after which a report will be issued indicating
whether there are any jobs in your geographic area you can
perform within the established limitations. Rest assured,
the vocational expert, hired by the insurance carrier, will
always find jobs you can do. The employer does not have to
prove that the employee would be hired for any of these jobs.
Now the process for terminating your benefits begins. This
must be countered with medical testimony contradicting the
defense physician, you must testify regarding
your limitation and perhaps there would be testimony from
another vocational expert.
If you do not submit to the medical examination or the vocational
interview; your employer's carrier will me a petition to compel
you to do so. After the examinations and reports are completed,
your employer will file a petition to suspend, modify; or
terminate benefits.
Liability Actions
Your attorney should leave no stone unturned in the search
to determine whether an outside party, aside from you employer
or a co-worker, also may be liable for your injuries and damages.
This could include delivery people, a company contracted to
clean and wax floors, the driver of another vehicle in a work-related
car accident, or manufacturers, distributors, and vendors
of defective machines. These related claims are not governed
by WC law. If you are injured as a result of a negligent third-party,
or manufacturer, distributor, and/or vendor of a defective
machine, you areentitled to damages for pain and suffering,
payment of all or a percentage of lost wages, depending on
the type of case, and payment of all and/or a percentage of
your medical bills. Additionally; your spouse may be entitled
to recovery for loss of consortium, which includes society,
services, and companionship.
The WC carrier, any medical insurance carrier who paid for
the accident -related injuries, and the Department of Public
Assistance/Medicare, may have a lien against any third party
recovery and must be repaid. Failure to do so may result in
legal action against you, your attorney, or both. Additionally;
any lien holders must deduct from their lien, at least a pro
rata share of attorney's fees and costs incurred in pursuing
the liability claims and may be willing to negotiate additional
reductions in the amounts they accept as payment in full of
their liens.
R. Steven Shisler, Esq., is an attorney whose practice
concentrates in plaintiffs' personal injury, malpractice,
and WC matters involving CRPS. He is an CRPS survivor,
whose desire to become an attorney was motivated by his own
injuries, including CRPS, resulting from an accident.
Steven Shisler
1515 Market Street, Suite 810
Philadelphia, PA 19102
Tel: (215) 564-4080
E-mail: sshisler@shislerlaw.com
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