Steve: I am often asked what are Pennsylvania workers’ compensation benefits are and injured workers’ are often not sure what benefits they are really entitled to. The Workers’ Compensation system is not a lawsuit against your employer. Rather, what it is is an administrative process, with the Workers’ Compensation Judge deciding disputes, designed to provide compensation for wage loss and medical benefits for someone who’s been injured on the job. Before the Workers’ Compensation Act was put in place, you had to prove that either your employer or a coworker were negligent and, therefore, caused your injuries. Workers’ Compensation replaced that requirement. You are, in fact, entitled to wage loss and, or medical benefits related to a work injury, regardless of fault. And injury need not be the result of a traumatic incident or accident. There are injuries that result from cumulative wear and tear. And example of that that type of injury would be something like carpal tunnel from repetitive use of the hands or an aggravation of a pre-existing back condition due to the work activities. In some incidences you may also be entitled to specific types of scarring benefits. There is also an entitlement to penalties in some situations if the Workers’ Compensation insurance carrier does not promptly pay, or reasonably pay, for wage loss, bills, and expenses related to your work injury.
Ron: Often injured workers can make key mistakes that can greatly impact getting the benefits they’re actually entitled to. We talk about some of those mistakes in our book “The Seven Deadly Sins That Can Destroy Your Workers’ Compensation Case”. So what should someone focus on when they have an injury at work in PA? The first one would be the understanding that your boss does not decide if you’re entitled to Workers’ Compensation, whether your injury or condition is work related or how much you’re entitled to. People also need to know that the insurance adjuster feeding information to an injured worker can misguide them and is under no obligation to inform them of what they’re actually entitled to. The same with the company doctor- the hired gun by the Workers’ Compensation insurance company; they don’t decide whether your condition is work related, just as the boss and the adjuster doesn’t. Ultimately, if a claim is disputed, you are entitled to due process of law, with a presentation of all evidence, and your entitlement to benefits would be ultimately decided by a Pennsylvania Workers’ Compensation judge. So I would say that’s the number one mistake is people accepting what a company doctor, or the employer or insurance company is telling them are their rights and ending it there.
Another significant problem, which can severely affect you ability to get the appropriate benefits is to fail to adequately report your injury. You’re not only required to report your injury, but you’re required to report that your injury is work related. Saying my back hurts, I need to go home, I need to cut out early on the shift, is not reporting a work injury as required by the Workers’ Compensation Act. It has to be my back hurts and I believe it came from lifting that 50 gallon drum about half an hour ago. That’s reporting a work injury and that qualifies as legally sufficient notice of a worker injury in PA.
Also, staying with the company doctor too long can be a really grave error. Unfortunately, the company doctors tend to be the lower rung of the medical profession out there, kind of the strip mall, shopping mall type doctor educated in a third world country because their parents money alone could not get them into a U.S. medical school. And they are on various employer’s posted physician list and that provides them with a constant stream of consumers, of paying patients being paid by the Workers’ Compensation carriers for the various employers. And to keep that income stream going, they have a very cozy relationship with the Workers’ Compensation carriers and the employers, and they will, basically, provide what is needed, what is requested, by the referral source and will bend over backwards for the referral source, not necessarily looking out for the benefit of the patient. An example that we see over and over and over again is, I would say, 90 percent of work related herniated discs, whether they be low back or neck, are initially diagnosed during that first 90 days with the company doctors as strains, cervical strain, lumbar strain. It’s just consistently diagnosed as a strain to minimize the injury, to minimize exposure and that is what gets listed on the Notice of Compensation Payable as the legally accepted injury. Since payment of medical expenses does not accept liability, often, years down the road that “strain” being the only accepted work injury on the NCP comes back to haunt you.
Injured workers really need to be aware that there are exceptions to, number one, the need to ever even see a company physician for a work injury. And number two, if you feel the desire or need to see one, the exception to having to stay with him for the full 90 days, and also how to switch around within that list of panel doctors. Those exceptions and others also detailed in our book.
Steve: All too frequently, workers minimize their injuries or don’t talk about their past injuries when getting medical treatment. And this could really create a problem. It’s very, very important for an injured worker who is seeking medical treatment, to explain to the doctor in a very complete statement, as Ron said, where, when and how the injury happened and what body parts are affected. Oftentimes we see histories, when we receive medical records from doctors, where there’s a very sketchy history and there are several reasons why this occurs. A lot of times people are just stoic. They don’t want to acknowledge the extent of their injuries. They are embarrassed to complain. Sometimes they have an injury that, at the time of the accident or the injury, is more problematic, more painful and is getting more of their attention and, therefore, ends up getting more of the attention of the doctor. It only becomes apparent later on, once they have been treated for the most severe or painful of the injuries, that there are, in fact, other injuries which may be as, or more, problematic than the one that was initially the focus of all the treatment.
The reason this becomes a problem is, if later on, you say, at the same time I hurt my back, I also injured my knee. When the insurance company goes through your medical records and sees that there’s no mention of a knee injury, they’re going to say why should we pay for this? You didn’t report a knee injury. How do we know this is our problem? You end up in a scenario where you have a dispute over whether or not the knee should be paid by the Workers’ Compensation insurance company.
Another problem occurs when an injured worker does not disclose, for various reasons, a past history of an injury. You may have had a knee injury when you were 17 to your right knee. You had minimal treatment for it. It got better and, essentially, you forgot about it because it has not been an ongoing problem. But the sole purpose of the insurance company is to make a mountain out of mole hill. They will say well, you did not tell the doctor that you had a prior knee injury and now you’re saying this is our responsibility, but how do we know it doesn’t relate back to that prior injury.
It’s very, very important that you give your doctor a complete and accurate medical history at the time that you seek treatment for a work injury. A prior injury does not bar a claim for a new injury to the same body part. In Pennsylvania an aggravation a pre-existing condition, is a new injury. For example, if you have degenerative low back disease and you have an injury super imposed upon that degenerative low back disease, that is a new injury, and that is compensable under the law.
People can also get tripped up with their workers’ compensation claims just living their lives. There are a couple of things that people should be really conscious and aware of. Obviously, because you have had a work injury it does not mean that you no longer have a life. But people who are injured on the job must be aware that the insurance company does, on occasion, and particularly in certain circumstances such as when they have scheduled you for an appointment with an “independent” medical doctor, have you surveilled by a private investigator. Again, the insurance company spends a great deal of effort trying to make mountains out of mole hills. And even if you are performing activities which are within the restrictions related to your work injury, they will try to make it seem as if you’re off work and living an unimpaired life, when that may be the farthest from the truth.
You need to be aware that any time you are in public; you are subject to observation and possibly surveillance video taping. They do not have a right to peek in your windows, but you often see insurance companies’ lawyers come in with video tapes of people living their daily lives and suggesting that there’s something relevant there. It’s just something that people need to keep in mind.
One of the bigger issues that we are seeing, with the increase in the use in social media, such as Facebook, and Twitter, My Space, is that people are not often aware of that without adequate privacy controls they’re putting a lot of information out there that is visible and can be seen by anyone, including the insurance company, your employer and their attorneys.
I had a case not too long ago where the insurance company did an investigation of my client’s My Space page. Although, there was nothing particularly incriminating on that page, it also was not very flattering. And oftentimes there will be information on social media pages that the insurance company will use to further investigate you. We often advise our clients to shut down their Facebook page during the pendancy of the litigation. There is no point in taking chances and putting information out there that doesn’t need to be out there. If you wouldn’t say it directly to your insurance adjuster, I would suggest that you certainly not say it on a social media network.
Ron: The workers’ comp insurance adjusters, the company nurse, this whole crew of people aren’t my friends. They aren’t your friends. They are not representing you. They are representing the insurance company and, in fact, even though you don’t know it, you’re in an adversarial relationship with these people. For example, the company nurse or the rehab case manager that will be friendly to gain access to your physician by meeting you in the waiting area outside your doctor’s office. This person is merely seeking to become an elusive private investigator for the Workers’ Compensation insurance company. They are the eyes and ears of the comp adjuster. As Tom likes to say, “their paychecks are signed in the lower right hand corner by the Workers’ Compensation insurance company.” So no matter how friendly they are acting, it’s merely to get this free access to information from you and from your doctors to which they are otherwise not entitled to.
We advise our clients to not consent to cooperating with the company nurse or nurse case manager without first speaking to us, and do not sign any forms permitting that consent without speaking to us. And we advise our clients, and send letters to the company nurses, etcetera, that any prior authorizations signed by our clients before our representation are hereby revoked and to cease all that contact with the doctors and with our clients. We believe the injured worker has the right to a physician patient privilege, and just because they suffered a work injury that does not waive that right. We ask our clients to never permit a rehab nurse to be present during your examination without first contacting one of us, because we don’t believe that being on Workers’ Comp makes you a second class citizen or that you need a babysitter or private detective with you at your doctor’s appointments.