Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 1
Welcome to the first episode of Barbara Smith’s Pennsylvania Workers Compensation case. We, the attorneys and paralegals at Calhoon and Kaminsky P.C., will be presenting a multi-part story of one woman’s Pa Workers Compensation journey. We will be discussing her injury, medical treatment, employer defenses, drug testing, Unemployment Compensation, Family Medical Leave, Average Weekly Wage, litigation, settlement and many other topics. Please feel free to send us questions and concerns as we move through all aspects of her case!
Barbara Smith is a 32-year-old machinist. For the past 5 years, she has operated a lath at the ACME Corporation. This is a skilled and difficult job. It is mentally stressful because of the pace of production and the tolerances required to manufacture titanium parts for the robot surgery industry. It is also physically demanding because of the requirement that the operator load the metal blanks from skids.
On January 16, 2015, Barbara was hurt at work. She had been up late the night before watching “Breaking Bad” with her boyfriend Todd and hadn’t had as much sleep as she should have. While daydreaming a bit; her machine started to jam. Barbara did not react as quickly as she should have. Instinctively, she reached with her right hand to save the valuable titanium blanks which were spilling on the floor. With her left hand; she pulled the safety switch which should have shut off the machine. It didn’t work and Barbara’s right hand and forearm became entangled in the cutting blades of the lath. Desperate to free herself; Barbara pulled backward, freeing her injured hand but striking the base of her spine against her metal Operators Chair. Barbara had had problems with her low back for years after her years as she was catcher for semi-pro softball teams. On January 16, Barbara felt a sharp pain at her belt line in her back and a sharp pain radiating down her leg. To make matters worse, one of the titanium blanks shattered, sending a metal shard into her right eye. Barbara, in violation of industry standards, had pushed her safety goggles to the top of her head in order to focus on the computer screen on her lath. Barbara’s Supervisor had previously issued a memo to all machinists at ACME noting that it was strongly advised that safety glasses must be worn at all times on the production floor.
Question: What WC injuries did Barbara sustain on January 16, 2015? Answers:
- The hand /arm injury: this will be considered a work injury because it was caused by the work she was doing.
- The back injury: This is a separate and distinct injury from the hand-arm injury. It certainly could be considered a WC injury since it was probably caused or materially aggravated by the January 16 incident despite her preexisting back problems
- The eye injury although the employer may argue that this injury should not be covered because she wasn’t wearing her safety glasses.
Extra Credit Questions to Consider : ( We will be discussing these in future episodes)
- What is the significance of Barbara being fatigued because she stayed up late the night before watching NetFlix with Todd? Can she be denied WC because of this?
- What is the significance of the injury occurring because Barbara was daydreaming when she should have been paying attention?
- What about the failure of the emergency shut off switch to work?
- What about the fact that Barbara had pre-existing back problems?
- Is Barbara responsible for her eye injury because she wasn’t wearing safety glasses?
- Can Barbara sue her employer for failing to make sure that the emergency cut off switch was operational? The maintenance of the machines was pushed back by the Plant Superintendent, who was bucking for a promotion.
- What is the relationship between the three injuries? Does Barbara collect three WC payments?
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 2
Notice of Injury to the Employer
In our last episode, Barbara was seriously injured when her right arm became entangled with a lath. She also injured her low back while trying to free her arm and was hit in the eye with a shard of titanium. The last thing on Barbara’s mind right now is Workers Compensation paperwork. However, the initial report of injury is very important in terms of protecting Barbara’s rights to wage loss benefits, specific loss payments and payment of reasonable and necessary medical payments.
This area of the Workers Compensation law is called “Notice”.
Here is how it works:
Barbara has 21 or 120 days to report the injury to the employer.
Notice Of Injury To Employer Within 21 days: if Barbara reports the injury within 21 days of the date of injury, Workers Compensation payments for wage loss begin as of Day 8. Once Barbara is off work for 14 days, she collects Workers’ Compensation payments for days 1-8. (This is commonly called the “waiting week”)
Medical benefits through Workers’ Compensation begin as of Day 1. There is no waiting week although there are other rules on medical treatment we will be discussing this in future episodes.
Notice of Injury To The Employer After 21 Days But Before 120 Days: Barbara’s Workers Compensation payments begin as of the day she gives Notice to the employer. In Barbara’s case, she was hurt on January 16, 2015. If she gives Notice on February 26, 2015; her Workers’ Compensation wage loss payments begin as of February 26; she loses January 16 through February 25.
Notice Of Injury To The Employer After 120 Days: Barbara’s Workers’ Compensation claim will be denied UNLESS the employer had actual knowledge of the occurrence of the injury. This could be an internal report from a supervisor, a medical form sent to the employer by the Emergency Room of the local hospital or a voice mail from Barbara’s mother asking about the status of her payments since Barbara has been off work due to the work injury of January 16.
What Is Notice? Notice of an injury does not have to be a specific written form. It can be oral, written or an email. But, Notice of an Injury must contain two things: a) that the injury occurred and b) that it was due to or resulted from the work. Thus, Notice that says: “ I am off work as of January 16” is not enough. To be legally OK, Notice has to have both elements: “I am off work as of January 16 because I was hurt at work on the lath”
In Babara’s case, Notice of the Injury probably won’t be an issue since Barbara’s injury was a serious one and occurred on a specific day. The disability was immediate and Barbara was rushed to the hospital. The Employer is going to know about it.
The issue of Notice of the Injury in Workers’ Compensation cases frequently comes up in court cases where the relationship between work and the injury is not clear. Here are some examples:
- In the case of a repetitive injury such as carpal tunnel where there is no specific date of injury but rather gradual stress and strain from work over time; the date for giving Notice does not start until the injured worker reasonably knows that the medical problem is work-related.
- In a hearing loss case, the date required to give Notice starts when a doctor tells the injured worker that they have a work-related hearing loss that is more than 10%.
- In an occupational disease case, the Notice period begins as of the date that a doctor tells the injured worker that they are disabled due to an occupational disease.
- In a gradual injury case where each day of work continues to aggravate the medical problem, the 120 Notice period runs as of the last day of work. ( Note the conflict with #1 above)
- What if the employer has an Employee Handbook which requires that Notice of an Injury be given to the Employer within 24 hours? Failure to follow this rule may render the injured worker subject to discipline but it does not defeat the workers’ compensation claim. This does become an issue of credibility which the Workers’ Compensation Judge will have to decide. Many claims are denied because an injured worker was hurt on a Friday and didn’t give Notice until Monday.
Notice of the Work injury does not have to list every body part injured. However, it is a good idea to be as specific as possible and Barbara should describe the injuries to the arm, hand back and eye. We will be discussing this issue in a future Episode.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 3
Initial Medical Treatment
You will remember from Episode 1 that Barbara injured her right arm, right hand, low back and eye in an industrial accident which occurred January 16, 2015. In this episode, we will be discussing the ins and outs of Barbara’s medical treatment during the first 90 days from January 16. We will number the paragraphs to make it easy to follow and identify if you want to talk to us about these issues.
- There is no obligation on the part of the WC insurance company to formally agree to pay weekly WC and/or medical bills until 21 days after the first date of disability through the issuance of a Notice of Compensation Payable. We will be discussing this important document in future Episodes. For right now, it is important to remember that a WC claim #; a letter from the HR Department of ACME Corp saying that Barbara’s medical bills will be submitted to the WC carrier and that in the meantime ACME will pay Barbara’s medical bills as “anticipated WC”, or a call from the WC adjuster saying that the claim is being accepted and bills will be paid means NOTHING< ZERO> NADA< ZILCH. No Notice of Comp Payable, no enforceable promise from WC to pay.
- Barbara obviously headed to the ER of her local hospital. Emergency Care is exempt from the 90-day Treatment Rule discussed below BUT ONLY as long as the emergency exists. Once the immediate medical crisis subsides, the 90 Day Treatment Rule applies.
- Barbara is in shock and probably won’t give a really detailed history. While this is understandable; it will create problems for her WC later on. As soon as possible; Barbara should give her doctors a complete description of what body parts were injured. Why? Because WC cases are won or lost on the basis of a paper trail. Barbara’s low back injury may well prove to be an argued point because she had preexisting back problems and because the injury was secondary to her immediate hand/arm injury. The sooner Barbara tells the doctors about her back injury; the better chances are that WC will pay for these medical bills without a fight.
- There is lots of confusion about the 90-day Treatment Rule so lets first summarize what the Rule says and then discuss it. The 90-day Treatment Rule says that:
a) injured workers are required to treat with a medical provider on the employer’s posted list for 90 days.
b) the list must be posted AND the employer has provided the injured worker with written notice that treatment with a panel doctor is required.
c) written notice has to be BOTH at the time the employee is hired AND immediately after the injury.
d) only four providers on the list may be from the same coordinated care organization.
e) failure to treat with a doctor on the list may result in loss of WC medical payments but does not act to prevent weekly WC checks being paid to the injured worker.
f) if the employer fails to post a list, the injured worker is free to choose his or her own doctor.
g) if there is no chiropractor on the list; chiropractic bills will be paid.
h) treatment from a doctor off the list are payable if a doctor on the list made the referral.
i) 3 of the providers on the list have to be doctors.
j) the employer can’t put a doctor on the list who is “employed, owned or controlled” by the employer unless that is disclosed on the list.
k) it is the injured worker’s choice of which of the doctors on the list to treat with.
The 90 Day Treatment Rule is misleadingly named. It should be called the 90 Day Payment for Treatment Rule. The injured worker has to treat with a provider on the panel (list) if the injured worker wants those bills to be paid by WC. Barbara is free to treat with a doctor of her own choice during the first 90 days if she understands that WC won’t pay for it. She can pay for it herself, submitting it to boyfriend Todd’s insurance or find some other means of payment. Why would Barbara do this? Because she may not like or trust the doctors on the posted list. By the way, many doctors don’t understand this part of the WC law.
Once the 90 days are up, Barbara can treat with her own choice of doctor as long as she gives 5 days’ notice to the WC insurance company. Barbara had better make sure she has an NCP. ( see #1 above).
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 4
Summary of Episodes 1-3
Barbara injured her right arm, right hand, low back and eye on a machine lath at work. She was tired and not paying as much attention as she should have( she stayed up late watching “Breaking Bad with her boyfriend Todd) and the safety mechanism malfunctioned. Barbara was taken by ambulance to the local hospital emergency room for treatment. She was in shock and not capable of giving a good history of what happened. Barbara obviously isn’t thinking about Workers Compensation paperwork but we are because what happens now will have a big impact on Barbara’s right to Workers Compensation ( both weekly checks and medical payments) later on.
It is now January 18, 2016, two days after the injury. Barbara was found to have sustained multiple fractures to her right arm and hand and has had emergency orthopedic surgery. The metal shard has been removed from her eye but it is unclear how much of the vision in her eye has been impaired. Not much has been said about Barbara’s low back; however Barbara reports pain radiating down her leg as a new symptom. Barbara is back at her apartment and Todd is looking after her. He is trying to figure out how to get the rent paid and how to come up with the credit union payment for the new Ford 150 truck he talked Barbara into buying last year. We should say here that Todd, although an excellent athlete and guitar player, is frequently broke. Todd also isn’t very organized so we will identify the important pieces of paper by number to help him out.
1. Barbara receives a three page FIRST REPORT OF INJURY which identifies the type of loss as “traumatic injury”, the location and date of the accident, and a description of how it happened. The Workers Compensation carrier is identified as Bridge Insurance Claims Management and a policy number is stated. Barbara then receives a three page SUBSEQUENT REPORT OF INJURY which sets forth that this is an indemnity claim, what the weekly payment amount is and the name of the insurance adjuster ( George Mahoning) and his fax and phone numbers. A claim number is identified.
What does all of this mean for Barbara ( and Todd)? Answer: NOTHING
These documents are NOT a legally binding Workers Compensation Contract. Barbara ( and Todd) have no guarantee of payment. These documents allow the Bureau of Workers Compensation to keep track of how many Pennsylvania workers are injured every year and in what occupations. These numbers are compiled for statistical purposes BUT won’t have any practical importance for Barbara’s WC claim except to provide the name and phone number of the adjuster.
2. Barbara receives an email from Human Resources Manager, Biff Stevens. Biff sends Barbara a letter noting her absence from work, stating that her injury will be processed as a WC claim and will be reported to Bridge Insurance in due course and suggests in the meantime that Barbara should apply for Family Medical Leave Act status. Barbara is too groggy from her surgery and medication to pay much attention but Todd has very mixed feelings about the letter. On the one hand, he is glad that Workers Compensation will be paid ( he is wrong to conclude this) but he isn’t sure about the Family Medical Leave Act reference and is upset that Biff and the ACME Co. do’t say they are sorry that Barbara was hurt. “ At least they could send a darn fruit basket”; Todd fumes.
What does this letter mean for Barbara’s Workers Compensation case? Answer: Again, NOTHING
In terms of the WC case (and Barbara’s need for money); the letter has no binding legal significance. We will be discussing the Family Medical Leave Act in a future Episode.
3. Barbara gets a Notice of Compensation- Medical Only (NCP) which, in Todd’s opinion looks very official and means clear sailing. Todd is PARTIALLY right: this is an important Bureau of Workers Compensation form filled out by Bridge Insurance Claims Management and does obligate Bridge Claims Management to pay Barbara.
But pay her what?
Todd doesn’t read the NCP carefully and fails to notice that there is a check mark 1/3 of the way down the NCP form next to the words: “Medical Only”. Todd also fails to wonder why the Description of Injury reads:
“ Contusion/fracture Right Upper Extremity, eye” and doesn’t mention the back injury.
Generally, the Notice of Compensation is THE MOST IMPORTANT FORM IN PENNSYLVANIA WORKERS COMPENSATION. It is a legally binding contract which obligates the WC insurance company to pay. It Is Very Important To Note That There Are Different Types Of Notices Of Compensation Payable Which Mean Very Different Things.
Here Barbara has received a Medical Notice of Compensation Payable which obligates Bridge Insurance Claims Management to pay ONLY reasonable and necessary medical bills on their face related to the injury as described in the Description of Injury. That Description of Injury mentions only the right upper extremity and the eye.What about the back? Bridge Insurance Claims Management does not have to pay for the back because it isn’t listed.
The Medical Only NCP Does Not Mean That Barbara Will Get Weekly WC Checks!!
Barbara and Todd have to be very careful here:
- Barbara can’t rely on the medical only NCP to pay her weekly Workers Compensation. If three years goes by from January 16, 2015 and 1) no NCP is issued accepting wage loss and 2) Barbara fails to file a timely Claim Petition with the Bureau of Workers Compensation ; Barbara LOSES her right to receive weekly WC payments.
- If Barbara fails to file a timely Petition to add the back injury, she will likewise lose her right to have bills for the back injury paid for by WC insurance. The time limit is different in different cases, but a good rule of thumb is that Barbara should file a Petition with the Bureau of Workers Compensation within three years of her injury date of January 16, 2015 or, in some cases, three years from the last payment of WC.
What if Biff, the HR Manager or George, the adjuster, tell Barbara: “Don’t hire a lawyer, they will take 20% of your check, we will pay for the back”?
You already know the answer to this one. Money walks and $@#&*^%# talks, as a famous Philadelphia politician once said. The statements of Biff and George mean nothing; Barbara either needs a reworded NCP adding the back or must file a timely Petition with the Bureau of Workers Compensation.
Pennsylvania Workers Compensation is supposed to be a prompt and non-technical source of benefits for injured workers. But it frequently isn’t. Barbara’s situation is very complicated in terms of WC paperwork. How is Barbara supposed to know that there are three different types of Notices of Compensation Payable which mean very different things? Two important points here:
- Biff, the HR manager and/or George, the insurance adjuster, are NOT required to tell Barbara the truth about this paperwork and what it means.
- It’s up to Barbara to find out what it means and she is out of luck if she doesn’t know the correct answer
….Stay tuned for next week’s exciting episode: The Temporary Notice Of Compensation Payable and what happens when Todd loses his temper and yells at Biff and George. And, what about that hot drug test?
The purpose of our continuing story of Barbara Smith’s Workers Compensation case is to explain how the process works. If you have a question or a concern about your WC case ( or Barbara’s) contact Calhoon and Kaminsky P.C., for answers to your questions and peace of mind at 717-695-4722.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 5
Summary Of Episodes 1-4
Barbara Smith injured her right hand, right arm, low back and eye on a machine at work. A “Medical-only” Notice of Compensation Payable has been issued accepting the claim as “Contusion /Fracture Right Upper Extremity, Eye”. Biff, the HR Manager, has told boyfriend Todd that the claim has been processed as WC by George Mahoning, the adjuster for Bridge Claims Management. Biff tells Todd that Barbara should apply for Family Medical Leave Act coverage for her absence from work.
Episode Five- Todd Gets Involved
Barbara has had emergency surgery on her hand and arm and the metal shards have been removed from her eye. Barbara is home resting and taking pain medication. The doctors are now looking at her back problems now that the more immediate issues have been addressed. Barbara has had difficulty with her lower back for years. In her younger days, she was a semi-pro catcher for a variety of softball teams including the Fabulous Femmes and the Queen City Cut-Ups. Barbara still plays in a recreational women’s softball club from work called the Acme Aggressive Atoms. Barbara has treated for her low back on and off with Dr. Superior, a local chiropractor. A few years ago, she had an MRI which showed degenerative arthritis in her low back. Since the injury of January 16, 2015, at work; Barbara’s back problems have gotten worse. She now has pain going down both legs and pain in her right shoulder. Barbara didn’t say much to her doctors about the back problems after the January accident because she was in shock and heavily medicated after the January 16 work injury. Weeks later, she has told her doctors about the increasing problems in her low back. She is referred to an orthopedic surgeon, Dr. Wheelright, who does an exam demonstrating positive straight leg raising. Dr. Wheelright sends Barbara for an MRI on March 1, 2015, which shows a herniated disc at L 4-5. Dr. Wheelright tells Barbara that she will need surgery. Barbara doesn’t like the sound of this and goes back to see Dr. Superior for a second opinion. Dr. Superior looks at the test and gives Barbara a detailed and thorough exam and he agrees that Barbara needs the surgery and he recommends a course of chiropractic therapy post-surgery to build strength in her back and prevent more problems. Dr. Superior tells Barbara that her days as a softball catcher are probably over. Barbara reluctantly agrees to the surgery because she is determined to continue playing softball.
Dr. Wheelright’s office contacts George Mahoning at Bridge Claims Management to see about payment for the surgery. George says “No” without explanation. Dr. Wheelright’s Office Manager then tells Barbara that she will have to find some other way of paying for the surgery.
Dr. Superior submits a bill for the detailed exam and second opinion to Bridge Claims Management and is denied because he isn’t on the 90-day list of posted doctors. Barbara is confused and Todd is really mad. He calls up George Mahoning at Bridge Claims Management and, after 6 calls, reaches him. George tells Todd that 1) he isn’t authorized to speak to him 2) that Barbara’s WC case does not include her back and 3) if Todd doesn’t stop using threatening language, George will report him. George hangs up. Now what?
- George is technically right. The “Description of Injury” in the Notice Of Compensation Payable states the injury is to the right arm, hand and eye. Bridge Claims Management is not required to pay for back surgery because the proposed surgery is not on its face related to the accepted injury. Barbara will have to File a Petition to Review with the Bureau Of Workers Compensation and request that a Workers Compensation Judge issue an Order amending the Description of Injury to include the back injury and L4-5 herniated disc. We will be discussing this in detail in future Episodes.
- Barbara needs the surgery now; she can’t wait for months of legal wrangling. Barbara can submit the surgery to her non-WC fringe insurance carrier Bluebell which she has through her employment at Acme. If Barbara can show that WC has been denied; Blubell will probably pay for it. Barbara needs to be careful with the paperwork. Bluebell gives Barbara a form called “Other Party Claims” and wants Barbara to fill it out. The form asks: “Did this accident happen at work?” and provides a yes/no box for Barbara to check. If Barbara checks “yes” ; Bluebell may be reluctant to pay for the surgery. If Barbara checks “No” a) she isn’t telling the truth ( bad idea in WC claims) and b) that answer will come back to haunt her later when an attorney from Bridge Claims Management waves it at her in WC Court and attacks her credibility ie, accuses her of lying. Barbara should not check either box and instead write in “WC denied”. This is a truthful statement and covers the bases as the softball team would say.
- Please note that George Mahoning does not have to tell Dr. Wheelright whether or not they will pay for the surgery before it happens even if the back injury had been recognized in the Description of Injury in the Notice of Compensation Payable because there is no pre-certification in Pennsylvania WC. We will be discussing refusal of medical services in a future Episode.
- George Mahoning of Bridge Claims Management the wrong answer to Dr. Superior. Dr. Superior can be denied for the same reason as Dr. Wheelright in #1 above. However, assuming that the back injury was recognized in the NCP; Dr. Superior should be paid for reasonable and necessary services on their face related to the accepted injury if there was no Chiropractor on the 90-day posted list.
- It should be noted that Doctors in Pennsylvania WC have to fill out special forms to get paid by WC:
- LIBC -9 within ten days of first treatment and monthly thereafter for each month that treatment is rendered
- HCFA 1500 or the appropriate Medicare form
- Office notes
We will be discussing medical payment episodes in future issues. Stay tuned: Todd will probably lose his temper once too often and what about that hot drug test?
Be sure to order a FREE copy of our book, 7 Deadly Sins That Can Destroy Your Pennsylvania Workers’ Comp Case.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 6
Summary Of Episodes 1 – 5
Barbara is recovering nicely to the emergency surgeries to her arm, hand and eye. She now needs back surgery, however, the back injury was not listed on the Medical Only Notice of Compensation Payable. Barbara needs back surgery. The two doctors have been told that the back claim is denied.
Episode Six – The Notice Of Temporary Compensation Payable
Barb and Todd are concerned about income. Barbara isn’t working because of her injuries. Todd lost his job a few months ago and both the rent and the truck payment are due, plus Todd’s back child support payments. Barbara is receiving a check in the mail for $600 per week, when her paycheck from ACME at the time of her injury was about $900 per week.
Todd is upset about the failure of the WC carrier, Bridge Claims Management to pay for the back surgery. He goes into the cardboard box where he and Barbara are keeping the paperwork from the January 16 work injury. It is now a big pile. Todd roots through and finds another official-looking document. This one is called a Notice of Temporary Workers Compensation Payable and a Statement of Wages. It is dated January 18, 2015, and states that weekly workers’ compensation will be paid at the rate of $600 per week based on an Average Weekly Wage of $900 per week for a period of 90 days. The form states that the 90 day period ends April 16, 2015.
Armed with these two documents, Todd calls George Mahoning, the Claims Adjuster for Bridge Claims Management on March 28, 2015 and yells at him for failure to pay for Barbara’s back surgery. “ Any moron can see that she hurt her back in January, even you!” says Todd. George listens to Todd then tells him: “I don’t have to listen to you yelling at me. And I don’t have to pay for the back surgery either”. George hangs up on Todd.
The next week, Barbara receives two letters in the mail:
- A Notice of Denial dated April 5 from Bridge Claims Management for the January 16, 2015 injury. The Denial states that “ investigation indicates that current disability not work-related; employee did not sustain a compensable injury within the meaning of the WC Act. “
- A letter from Biff. Human Resources Director For ACME, stating that Barbara’s employment at ACME was terminated because she had been found to have cannabis in her system in violation of ACME Company policy. Barbara was told to clean out her locker at a mutually convenient time.
Barbara says to Todd: “OK, Todd, good work yelling at George Mahoning like that- now look at the mess we are in”. Barb and Todd make an appointment to discuss the case with Matt Kaminsky of the Calhoon and Kaminsky P.C., Workers Compensation Law Firm in Harrisburg, PA. Barb and Todd have a lot of questions for Matt:
- Can they just cut Barbara off Workers Compensation like this? The answer is yes in terms of the weekly WC checks of $600. The Notice of Temporary Compensation Payable can be denied for any reason during the 90 day period. The Denial must be within 5 days of the last WC check. Since the Denial was timely, Barb is going to have to file a Petition to ask a WC Judge to award weekly workers compensation.
- Can Bridge Claims Management deny payment of Barbara’s medical bills? Yes, for the back. The back injury was never accepted and Barb has the burden of proof to demonstrate to the WC Judge that the back injury was caused by or materially aggravated by the work injury. No for the arm, hand and eye injury. Even though the Notice of Temporary Compensation Payable was denied; there is still an outstanding “Medical Only” NCP for the other injuries. Bridge Claims Management would have to file a Petition against Barbara to avoid paying these bills.
- Can Barb apply for Unemployment Benefits? Yes, but there may be problems. First Barbara must be available for at least light-duty work. Barbara has recovered to some extent from her hand and arm injuries, and her eye is better. But she is waiting for back surgery and her doctors have not yet released her for work. Also, Matt tells Barb and Todd that ACME will argue that Barb is not entitled to UC because the hot drug test could be considered Willful Misconduct. Matt asks Barb if there is a Company policy about drug use. Barb isn’t sure and says she will check.
- What is the impact of the hot drug test on Barb’s WC claim? Matt tells Barb that the employer would have to prove that the WC insurance company would have to prove that illegal drug intoxication actually caused the January 16, 2015 accident to make it stick. That would be hard to do because the drug test was not performed until February 2016, weeks after the accident. On the other hand, Matt tells Barb and Todd, the WC Insurance Company could use the drug test results to argue that Barb was fired for Cause and that her disability ( loss of income) was due to her wrongful drug use, not the injury. This may be difficult under the circumstances because Barbara had not yet released by her doctors for even light-duty work. However, the firing was not a good development and could cause problems in front of some of the WC Judges.
- Can Barb sue ACME for Wrongful Termination? Matt tells Barb and Todd that this is a different area of law than the WC case and that she would need to an Employment attorney for advice on that issue.
Barb hires Attorney Kaminsky and tells him to fight for her and to keep her informed, Matt says he will.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 7
Summary of Episodes 1-6
Barbara Smith was seriously injured at work on January 16, 2015. A “Medical Only” Notice of Compensation Payable listing only some of her injuries was issued by the WC carrier for ACME, Bridge Claims Management. Then, on January 18, 2015, a Notice of Temporary Workers Compensation Payable was issued saying that Workers Compensation would be paid to Barbara at the rate of $600 per week based on her Average Weekly Wage of $900 per week for a period of 90 days ending April 16, 2015. Barbara’s boyfriend Todd called the adjuster on March 28 and called him a moron for not paying for Barbara’s back surgery. (The back injury is not listed in the Description of Injury on the Medical-only NCP or TNCP). The Adjuster wasn’t happy at being yelled at by Todd and on April 5, 2015, issued both a Denial of the January 16, 2015 Workers Compensation Claim and a Notice Stopping Temporary Workers Compensation. Barbara’s WC checks and WC medical benefits both stopped.
Episode 7 –
1. The Denial states that the claim is denied because “… The Claimant did not sustain an injury within the meaning of the WC Act and for other good cause shown. “ Is this Denial legal when it is obvious that Barbara was injured on January 16 at work?
Answer: Yes. The WC Insurance Company can deny a WC claim for any reason they want. The only recourse for Barbara is to file a Claim Petition. If she can show that Bridge Claims Management had NO reasonable defense, she can request that Attorneys Fees be paid.
2. Does the fact that the real reason that George Mahoning, the WC Insurance Adjuster, denied the claim because Barbara’s boyfriend Todd called him a “moron” relevant?
It is not a good idea to yell at adjusters. It is like being really rude to a waiter or waitress in a restaurant.
3. Can the Notice Stopping Temporary Workers Compensation actually stop Barbara’s WC payment?
Answer: Yes and No
Yes, The Notice Stopping Temporary WC will end Barbara’s weekly WC check for now because it was issued within the 90 day period. ( Note that the Notice Stopping Temporary Compensation must be issued with 5 days of the last check to be effective)
No, the Notice Stopping Temporary WC will not end medical payments for the Accepted parts of Barbara’s injuries. ( The eye and hand/arm as listed on the Medical Only NCP and not the back injury which wasn’t listed) Once WC injuries have been Accepted on a non-temporary basis; a Denial does not legally stop them. The Denial and Notice only are effective if the injuries were Accepted by TNCP only. If Bridge Claims Management refuses to pay for reasonable and necessary medical treatment for injuries listed on the Medical Only NCP; Barbara can file a Petition for Penalties and request that a Penalty of 10% – 50% be awarded
4. What does the word “Accepted” mean?
Answer: In workers’ compensation, a claim is not legally accepted until a Notice of Compensation Payable, an Agreement for Compensation (a special form), a Supplemental Agreement or a Judge’s Order are issued. The word “Accepted” is like being married, it is final, legal and binding until there is a legal change.
It is important to understand that workers’ compensation is NOT Accepted if:
- Medical bills are paid;
- Wages are paid instead of workers’ compensation;
- A claim number is issued; and,
- The employer says in writing that workers’ compensation will be paid.
There is no binding marriage unless there is paperwork. There is no official binding workers’ compensation claim until there is an NCP, an Agreement or Judge’s Order.
5. Why should I care if the proper workers’ compensation paperwork is issued, I am getting paid?
Answer: If three (3) years go by without an NCP being issued, the workers’ compensation claim may be over.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 8
Summary Of Episodes 1-7
Barbara Smith is seriously injured at work on 1/16/15. A “Medical Only” Notice of Compensation Payable is issued listing her injuries as right arm and hand and eye. Her back injury is not listed.
A Notice of Temporary Compensation Payable is issued on January 18, 2015, paying wage loss ( weekly checks) to Barbara for 90 days starting January 16. 2015.
A Notice Stopping Temporary Workers Compensation is issued on April 5, 2015, after Barbara’s boyfriend Todd calls insurance adjuster George Mahoning a “ moron” for refusing to pay for Barbara’s back surgery.
A denial of the WC claim is issued on April 5. 2015.
- As of this point, weekly WC denial checks will not be paid because the 90 NTCP was denied within the 90 days. A NTCP can be denied for any reason as long as it is done within the 90 days and within 5 days of the receipt of the last check. Moral of this part of the story: If a NTCP is issued, don’t rock the boat during that 90 days.
- Barbara can get medical bills paid for treatment of the injuries listed on the Notice of Compensation Payable. A later denial does NOT stop payment of medical bills recognized by the NCP; it only stops the weekly WC. If the NCP had never been issued, the Denial of the NTWCP would stop both wage loss and medical.
- Medical bills won’t be paid for the back surgery because the back was not listed on the Notice of Compensation Payable. This is true even though the Description of Injury on the NCP is filled out by the insurance adjuster early in the case and could be wrong or misleading. It is up to Barbara to change it by filing a Petition.
- Barbara must now file a Claim Petition with the Bureau of Workers Compensation within three years of the date of injury Even Though A Medical Only Ncp Was Already Issued. Failure by Barbara To File A Timely Claim Petition Means She Gives Up Her Right To Wage Loss.
- Workers Compensation is supposed to be a prompt, non-technical payment of benefits to injured workers. In fact; the relationship between an Notice of Temporary Workers Compensation, A Denial, A Notice Stopping Workers Compensation, a Medical Only Notice of Compensation and a Notice of Compensation Payable is very complicated. Simply put, injured workers can easily get screwed. There is no obligation on the part of the WC Insurance adjuster to accurately and truthfully explain it. And, the Internet is not much help
- Barbara ‘s Claim Petition must request:
A) Wage loss benefits
B) Payment of medical bills for the back injury. In the alternative, Barbara could file a Petition to Review the Medical Only Notice of Compensation in addition to the Claim Petition. Doing this would lessen Barbara’s Burden of Proof.
We will be discussing Burden of Proof in a future episode.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 9
Barbara Smith’s Workers Compensation case was “accepted” by means of a Medical-only Notice of Compensation Payable. She was granted wage loss benefits by the issuance of a Notice of Temporary Workers Compensation Payable. That was revoked by the insurance adjuster within the 90 day period by the issuance of a Denial and a Notice Stopping Temporary WC Payable.
Barbara decides that although boyfriend Todd meant well; he has really goofed up her case even though he has been reading about WC on the Internet. Barbara schedules an appointment with attorney Matt Kaminsky of Calhoon and Kaminsky P.C.
Barbara chose them because: 1) they specialize in WC; 2) the reviews say they talk in plain language; 3) they give options to their clients and let the client make the decision; 4) they don’t have obnoxious billboards on the highway.
Barbara brings both her paperwork and boyfriend Todd to the meeting. Matt hears her story and reviews her file; explaining that a detailed analysis of her paperwork and medical records is key. Matt doesn’t mind that the Notices of Comp Payable are torn and have coffee stains. Matt tells Barbara that:
1) the insurance company legally but unfairly stopped payments of weekly WC checks by issuing a Denial and Notice Stopping WC within the 90 day period and within 5 days of the last check.
2) That the Denial does not stop payment of medical bills for treatment of the arm/hand and eye since they were accepted through a Medical only NCP.
3) That Barbara will have the “burden of proof” of proving to a WC Judge that she was injured at work, gave Notice to her employer and is disabled as a result of the injuries.
Barbara will have to do this by filing a Claim Petition by computer with the Bureau of Workers Compensation.
4) That the average time to litigate a Claim Petition is 11.5 months because the WC insurance company has a lawyer who will fight Barbara every step of the way. Barbara is upset about this and wants to know how she ( and Todd) will pay their bills in the meantime.
Matt says she has two options:
- a) apply for Unemployment if she is available to work light duty and ACME, Inc refuses to give her a job,
- b) apply for short/long term disability.
Matt explains that in either case, the WC defense attorney will claim that the WC insurance Company is entitled to a credit ( deduction) from any WC she eventually gets.
5) Matt explains that there are two keys to a successful WC case:
- a) a clear and concise history. Barbara certainly has a definite date of injury and a clear picture of what happened. She is concerned that she didn’t report her back injury to the employer. Matt explains that Barbara has to report the injury on a timely basis ( 21 or 120 days) but does not have to list the injuries. On the other hand, it would have been better if Barbara mentioned her back injury to her doctors earlier.
- b) the strong support of a Doctor, especially on the back issue. Barbara had a preexisting back injury. To win the case; her doctor must testify that the blown disc was “caused by or materially aggravated by” the work injury.
At this point, Todd tells Matt that he has learned a lot about WC on the Internet and that he, Todd, can help Barbara represent herself instead of hiring a lawyer.
Barbara tells Todd to “ please be quiet” noting that he already screwed up her case by telling the WC adjuster, George Mahoning that he had to pay for the back surgery even though it was not listed on the NCP.
Matt Kaminsky tells them that Todd has raised a good point. Barbara can represent herself but that it isn’t a good idea. The WC insurance company will have an experienced attorney fighting Barbara every step of the way. It would not be a fair fight. Matt explained that the attorneys at Calhoon and Kaminsky P.C., have decades of experience and know the law, regulations, the WC Judges, doctors and how the system actually works ( or doesn’t work).
Barbara decides to hire Matt as her lawyer the Claim Petition is promptly filed.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 10
In Episode 9 we discussed what is happening in Barbara’s Workers Compensation case now that she is tired of boyfriend Todd’s handling of her case and has decided to hire attorney Matt Kaminsky who knows what he is doing. Matt and his ace paralegal, Lindsay Hahn, have filed a Claim Petition. What is a Claim Petition and what does it look like?
Here is a link to a Claim Petition (LIBC-362) that would be filled and filed in Barbara’s case:
We will discuss important aspects of this document. In legal terms it is called a Pleading meaning it is what Matt Kaminsky is requesting the Workers Compensation Judge to do.
Date submitted: April 15, 2015. This is important because a Claim Petition must be filed within three years of the date of injury or the case is over. This is called the Statute of Limitations. Barbara is OK here because her date of injury is January 16, 2015.
Submitting Party: Attorney Matt Kaminsky is listed because he is formally in charge of Barbara’s case as her attorney.
Description of injury/disease: injury to right hand, wrist and arm, injury to eye and injury to back. Note that the injury to the right extremity ( lawyer talk for arm and hand) and the eye have already been accepted through the issuance of a Notice of Compensation Payable- Medical Only. The later Denial does not change the fact that the WC Insurance company is on the hook for the arm and eye. It is important here that Matt and Lindsay are adding the back injury which was never accepted.
Date of Injury: January 16, 2015
How did the injury happen? Right hand and forearm caught in machine, splinter in eye, back injured. Note here the malfunction of the machine is not an issue in the WC case but Barbara may have a separate lawsuit against the manufacturer of the machine which we will discuss in a future episode.
Did the injury occur on the employer’s premises? Yes
Did the Claimant/Employee provide notice of the injury/disease? Yes. Note that Barbara has 21 or 120 days to tell her employer that a) she was injured at work and b) that she is disabled as a result of that injury unless the employer knows about it. The notice requirement is different in hearing loss, specific loss and occupational disease cases.
On what date? The Employer had actual knowledge of the injury on January 16, 2016.
This is important because Barbara’s WC payments will start as of her first date of disability once the waiting week has been satisfied.
1104 Commerce Drive,
Blissville, Pennsylvania 17444
Note that ACME is listed here as the Defendant /Employer because that is where Barbara worked at her time of injury. Barbara’s Workers Compensation has/will be paid by or through Bridge Compensation Services. At this point, Matt doesn’t know if ACME is a self-insured employer or has WC insurance through Bridge. It is also possible the Bridge Compensation Services is an Adjusting Company rather than an insurance company. The relationship between Bridge Compensation Services and ACME is potentially complex. We will be discussing this in a future Episode once tha Answer is filed by the Attorney for Bridge Compensation Services and Matt Kaminsky has more information. This type of research is done after the Claim Petition if filed, not before. We will be discussing these “Discovery” issues in another future Episode.
(There will be many future Episodes because Workers Compensation litigation is complicated)
Job Title: Press Operator
Is Claimant/Employee back to work? NO. This is important; the WC Law requires Barbara to prove continuing disability as part of her Burden of Proof.
(yes, we will be discussing the Burden of Proof in a future Episode)
What were the claimant’s wages at the time of the injury? This is a very complicated topic which we will be discussing later. There are multiple ways to calculate the Average Weekly Wage and the corresponding WC rate. For now, Matt and Lindsay will include the gross ( before taxes) wages that Barbara earned.
Did the Claimant have any additional employment? Concurrent employment wages (wages that Barbara may have earned from a second job at her time of injury) are included. Money that Barbara made from refinishing old furniture and selling it (unreported self-employment) is not included.
Barbara is seeking:
- Partial Disability: That doesn’t apply at the moment; Barbara is off all work. Partial Disability applies where Barbara is back to work at a lower wage because of restrictions stemming from her work injury.
- Full Disability: Barbara is seeking this as of 1/16/15; however, Bridge WC Services will get a credit ( deduction) for the WC weekly checks they have already paid Barbara.
- Medical bills: Barbara wants medical bills paid for her back injury. Bills already should have been paid for the arm and eye; if not, Matt will file a Petition for Penalties
- Counsel Fees: In practice, the Judge will force Bridge Settlement Services to pay Matt’s fee in a winning case only where Bridge has NO DEFENSE to the Claim Petition. Does Bridge WC Service’s attorney Maria Bluefoot have a defense to the very obvious injury of 1/16/15? We will have to wait and see. Remember that Barbara was injured partially because she wasn’t paying attention to her job because she was up late the night before watching “Breaking Bad” reruns with boyfriend Todd. And remember that there may be a hot drug test…. Stay tuned.
Questions for Attorney Matt Kaminsky:
(This one is from Todd) Why can’t Barbara file the Petition herself? Why does an attorney need to fill this out?
- The answer is that Barbara is stuck with what she says in the Claim Petition even if she amends it later. If she gets the Notice issue wrong, for example, or forgets to mention the back injury; Barbara will have problems in front of the Judge. The attorney hired by Bridge WC Services, Maria Bluefoot, is a very experienced and capable attorney. She will try and prevent Barbara from winning her case. No offense, Todd, but you are no match for Maria.
Question for paralegal Lindsay Hahn:
What is WCAIS?
- WCAIS is the Bureau of Workers Compensation system used to link the Central Bureau of Workers Compensation in Harrisburg with the WC Judges and Attorneys over the entire Commonwealth. All Petitions and other litigation matters are filed and circulated through this system. It isn’t user-friendly and although Todd could enter Barbara’s appearance, there are many rules on how to file documents, pleadings and exhibits within WCAIS and also many rules on how each document must be served on all of the interested parties in the case.
Barbara Smith’s Pennsylvania Workers Compensation Case – Episode 11
Summary to date:
Barbara Woods injured her back, eye and arm at work. The workers’ compensation insurance company agreed to pay medical bills for some of her injuries and temporarily paid weekly workers’ compensation. The payment by a Notice of Temporary Compensation Payable was revoked (stopped). She hired Attorney Matt Kaminsky who filed a Claim Petition. Todd, her boyfriend, then calls Matt to find out what happens next. Matt first checks with Ms. Woods to make sure that she authorizes him to speak with Todd. Matt then explains the next step in the case to Todd.
Definition of terms:
- Defense Attorney – The opposing lawyer who represents the employer and the WC insurance company.
- Claim Petition – a special form which contains all the important aspects of Barbara’s claim.
- Appearance – an attorney registers with the Judge in a particular case,
- Service – mailing copies of all official documents filed to everyone listed within the claim. (The claimant, employer, defense attorney, insurance carrier)
- Answer – A response filed by the attorney for the insurance company (defense attorney)
- Bureau – the Bureau of Workers’ Compensation in Harrisburg, PA.
The Claim Petition is filed electronically through the Workers’ Compensation Automation and Integration System (WCAIS).
Here are the requirements for logging on to WCAIS and filing a Petition.
- An attorney or a Claimant can enter their appearance by listing the date of injury and social security number, or the WCAIS number and date of injury.
- An attorney can enter their appearance for Claimants. This was done in Ms. Woods’ case.
- Once an appearance has been entered, the attorney is able to access the official documents which the adjuster has filed with the Bureau. From this location, Attorney Kaminsky is able to file Petitions in the case. There are other petitions other than a Claim Petition which can be filed, such as a Petition for Reinstatement, Petition for Review, Petition for Penalties and Petition for Review of a UR Determination. We will be discussing these Petitions in future chapters.
- It is very important that the attorney notify all of parties listed in the case. A copy of the Petition and the Certificate of Service is available within WCAIS for serving all of the parties.
Once the Claim Petition is filed, the Petition section of the Bureau of Workers’ Compensation assigned the Petition to a Workers’ Compensation Judge. Petitions are signed to Judges based on the Claimant’s county of residence in Pennsylvania.
Barbara will receive different forms from the Bureau of Workers’ Compensation including an Assignment to Judge and a Hearing Notice. Once the Petition is circulated to the insurance company, the attorney for the insurance company has 20 days to file an Answer. These are usually boilerplate meaning that the defense attorney denies everything in the Claim Petition.
Barbara’s case has now been assigned to WC Judge Smith. He is a civil service employee hired by the Commonwealth of Pennsylvania. Neither Barbara nor ACME can request a change of Judge unless there is a very good reason. A Pre-trial hearing has been scheduled to occur in Harrisburg, PA. Barbara, Attorney Kaminsky and the defense attorney attend. Sometimes, the employer shows up.
There are usually at least three hearings in the average workers’ compensation case. 1) A pre-trial hearing for the Judge to set up the schedule/time table of the case. 2) A second hearing four to eight weeks later for Barbara to testify. Both Attorney Kaminsky at Attorney Gunstadt (attorney for ACME) will be asking questions. 3)A third hearing is usually a final hearing for testimony from any employer witnesses.
In the meantime, Barbara has 90 days from the first hearing to submit evidence from her doctor. The attorney for ACME has 90 days thereafter to submit medical evidence from their doctor.
There are rules and deadlines involved which are contained in the Special Rules of Practice and Procedure before WC Judges. Although WC is supposed to be a prompt and non-technical source of payments for workers injured on the job; in reality, the average WC case takes a year to litigate and be decided measured from the date the Claim Petition was first filed.
In addition, Judge Smith will have special rules of his own on how he wants cases handled in front of him. Thus, WC litigation involves complicated law, rules, regulations and directions. It is like football. You don’t just kick the ball and run down the field. There are rules to it.
NEXT: Getting ready for the pre-trial hearing!