Workers’ Compensation FAQ’s

Workers compensation is a state-mandated insurance program that provides compensation to employees who suffer work related injuries. An injured employee receives benefits regardless of who was at fault. If an employer provides workers' compensation coverage, then workers' compensation is the sole remedy and you cannot sue your employer. However, if the employer fails to provide workers' compensation coverage, then it is the injured worker's option to either sue the employer in tort or under the Pennsylvania Workers' Compensation Act. The advice of an attorney should be sought in making the decision on which option would better benefit the injured worker.

If a person or party other than the employer is responsible for a worker's injury, the injured worker may be able to bring a personal injury action against such third party. Additional damages including pain and suffering and loss of consortium are available in third party cases.

Under the Pennsylvania workers' compensation laws, if the employer has a list of approved physicians, the injured worker is required to treat with a doctor on the list for the first 90 days of treatment. The injured worker may treat with a doctor outside of the list; however, he/she will be responsible for payment of the bills.

If the employer does not have a particular specialty covered on the list, the injured worker may go off the list to a doctor within that specialty. The employer may not direct the injured worker to treat with a physician who is not on the list.

Once an injury is reported, the insurance carrier should either accept or deny the claim through one of the following documents:

Notice of Compensation Payable (NCP): This document provides the injured worker the greatest protection and provides for payment of both lost wage and medical benefits. Once an NCP is issued, the insurance carrier may not stop payment of lost wage or medical benefits without a Judge's order. At the time an NCP is issued, the injured worker should also receive a Statement of Wages (SOW). The SOW outlines the calculation of the injured worker's Average Weekly Wage (AWW) and compensation rate.

Temporary Notice of Compensation Payable (TNCP): This document provides for payment of lost wage and medical benefits. However, the TNCP may be revoked within 90 days and a denial issued.

Medical Only Notice of Compensation Payable: This is a new form created by the Pennsylvania Workers Compensation Bureau to allow insurance carriers to accept liability for a work injury and pay medical bills without agreeing to pay lost wage benefits.

Notice of Denial: The insurance carrier denies acceptance of the work injury. No lost wage or medical benefits will be paid. The injured worker must file a claim petition with the Pennsylvania Workers' Compensation Bureau and litigate the case in front of a Workers' Compensation Judge.

In a workers compensation case, O’Connor Law charges a contingency fee, which means that no attorney's fees will be due unless the attorney secures a settlement or award. In addition, a workers' compensation Judge must approve a deduction of attorney's fees. Accordingly, there is no fee to monitor a case that is not yet in litigation.

The benefits of retaining a workers compensation lawyer in the pre-litigation stage of a case include:

• The insurance carrier and/or rehabilitation nurse may not have direct contact with a person represented by counsel. The attorney acts as a go-between and ensures that the injured worker does not make any mistakes that will result in litigation.
• Your attorney will review all legal documents and give the injured worker advice before you sign a document that could have a long lasting negative impact on your workers' compensation benefits.
• Your attorney will review the SOW to ensure the injured worker is being paid at the correct rate.
• Your attorney may negotiate a lump sum settlement for the injured worker.

That is dependent upon the answers to the following questions:

• Are you on total disability or partial disability?
• How long have you been employed by your employer?
• Were you working for more than one employer at the time you were injured?
• How much have you regularly earned from your employer, and is that a set amount per week/month/year? Or are you paid on a different basis?

The answers to these questions will help to determine how to compute your average weekly wage (AWW). Once your AWW is determined, partial and total disability benefits may be calculated. There is a maximum rate of compensation recognized by the Pennsylvania Department of Labor and Industry, which may result in the amount you are eligible to receive being capped. In Pennsylvania, the statewide AWW is the basis for determining the maximum compensation rate for which you are eligible. This AWW is determined yearly by the Department of Labor and Industry.

A lump sum settlement is a one-time payment made by the employer to the injured worker in exchange for the injured worker giving up his/her continued rights to workers compensation benefits. This payment results from an executed agreement typically referred to as a “compromise and release agreement." The agreement may include settlement of lost wage benefits and/or medical benefits.

Once a settlement is approved by Workers Compensation Judge, the agreement is final. An injured worker may not seek to reopen his/her case for additional benefits, even if his/her condition becomes significantly worse in the future.

At this point, you should seek the advice of an attorney. This is an effort on your employer's part to have your compensation benefits reduced or terminated. Your case will now go into litigation before a Workers' Compensation Judge (WCJ). The WCJ will hear medical and testimony evidence and then render a decision with regard to the pending petitions.

• A modification petition alleges the injured worker may work at a loss of earnings. If granted, this petition would result in the injured worker's disability status changing from total to partial. The injured worker would then be entitled to 2/3 of the difference between his/her AWW and the alleged earning capacity. Partial disability is capped at 500 weeks. Medical benefits continue
  indefinitely.
• A suspension petition alleges the injured worker may return to work at no loss of earnings. If granted, this petition stops an injured worker's lost wage benefits; however, medical benefits continue indefinitely.

A termination petition alleges the injured worker has completely recovered from the work injury. If granted, this petition stops an injured worker's lost wage and medical benefits.

The Notice of Ability to Return to Work (NARTW) is a form that the insurance company is required to file informing the injured worker that he/she was released to return to work. The NARTW may be based on the opinion of either the injured worker's treating doctor or the IME doctor.

Based on the filing of the Notice of Ability to Return to Work, the employer will most likely begin the vocational process in an attempt to provide job referrals to open positions or provide evidence of your earning capacity. Earning capacity is established by opinion evidence, which is based on job listings with agencies of the department, private job placement agencies, and advertisements in the usual employment area.

Accordingly, the employer can suspend your benefits based on a vocational expert's testimony that there are jobs within the economy that you could perform. The employer is under no duty to send you on job interviews.

Note: If you receive a NARTW, you should anticipate litigation and immediately contact a workers compensation lawyer at O’Connor Law.

Payment to health providers for treatment rendered must be paid within thirty days of receipt of bills and records unless the employer/carrier disputes the reasonableness and necessity of the treatment. If the whole bill is not disputed, then the parts of the bill that are undisputed must be paid within thirty days of receipt of the bill.

If the insurance company disputes the bills, it is up to the medical provider to challenge the non-payment by filing an application for fee review (Fee Petition) with the department. This must be filed within thirty days following notification of a disputed treatment, or, within ninety days from the date that the original bill was sent.

If the employer/carrier refuses to pay the bills based on the allegation that there was a lack of causation, then a workers compensation Judge (WCJ) has jurisdiction. The WCJ can then determine whether the bills are casually related to the work injury.

The WCJ may award up to 50% of the amount of the unpaid bills as a penalty if the WCJ finds that the employer is in violation of the Pennsylvania Workers' Compensation Act for failure to make payment.

Note: If the insurance company refuses payment of medical bills, you should immediately consult with a workers compensation attorney at O’Connor Law.

A supplemental agreement is a form used to make an adjustment in the amount or duration of the payment of Pennsylvania workers compensation benefits. A supplemental agreement may modify, suspend, or terminate the payment of benefits to an injured worker.

It is advisable to seek the advice of an attorney before signing any binding contract to ensure you are not giving up any of your rights or benefits.

Many times an employer may tell an injured worker to apply for short-term disability (STD) rather than file a workers compensation claim. The employer may be seeking to limit its exposure with regard to workers' compensation insurance premiums. However, STD provides several disadvantages to an injured worker.

• STD is taxable; workers' compensation benefits are not.
• Most STD plans offer benefits for a closed period of time, usually less than one year. Workers' compensation benefits can continue indefinitely.
• If an injured worker waits until STD benefits expire to file a workers' compensation claim, he/she may have missed the 120-day notice provision of the Act and be barred from receiving workers' compensation benefits.
• Under most STD plans only total disability is compensated. Workers' compensation provides for partial disability benefits.

An employee can receive unemployment compensation while simultaneously receiving workers compensation provided that the employee advises the Unemployment Compensation Bureau of their capability to work and also reports the receipt of unemployment benefits to the workers' compensation insurer. A credit will be applied against your workers' compensation based on the unemployment compensation received.

Note: Workers' compensation benefits are usually preferable over unemployment benefits. Workers' compensation benefits are not taxed while unemployment benefits are. In addition, workers' compensation benefits continue indefinitely, while unemployment benefits are capped.

The receipt of pension or severance benefits may affect workers compensation benefits. The employer, liable for payment of compensation, is entitled to a credit equal to the contribution the employer made to the pension or severance plan.

Note: Do not withdraw any pension or severance benefits before seeking the advice of an attorney at O’Connor Law.

If an employer provides workers compensation coverage, then workers' compensation is the sole remedy and you cannot sue your employer. However, if the employer fails to provide workers' compensation coverage, then it is the injured worker's option to either sue the employer in tort or under the Pennsylvania Workers' Compensation Act. The advice of an attorney should be sought in making the decision on which option would better benefit the injured worker.

If a person or party other than the employer is responsible for a worker's injury, the injured worker may be able to bring a personal injury action against such third party. Additional damages including pain and suffering and loss of consortium are available in third party cases.

Note: Where a third party may be at fault for a worker's injury, it is crucial that a thorough investigation be conducted without delay, and an injured worker should therefore immediately contact an attorney at O’Connor Law.