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Montgomery & Bucks County Workers' Compensation Law Blog

Friday, July 10, 2015

Pennsylvania Appellate Court Considers Complex Case Involving Workers’ Compensation & Unemployment Benefits

Can I accept unemployment benefits while out-of-work on disability? 


In a recent case decided by the Commonwealth Court of Pennsylvania, a work injury victim had her unemployment benefits reinstated despite claims by her employer that she could have returned to work and committed alleged “willful misconduct” by refusing to accept a promotion after the injury. The following case presents a complex procedural issue that – while perhaps unusual for the appellate court to unravel – represents a fact pattern that workers’ compensation clients could easily experience in the aftermath of an injury. 

Details of Paolucci v. Unemployment Compensation Board of Review

In 2010, Ms. Paolucci was employed at WalMart and endured a concussion while on the job. After properly and timely submitting her claim to her employer’s workers’ compensation carrier, she received compensation benefits. After some time, the carrier required the employee to undergo an Independent Medical Evaluation, which concluded that she was fit to return to work. Her personal treating physicians, however, disagreed with this finding and Ms. Paolucci did not return to her position – despite being offered an alternative position within the company. 

Shortly thereafter, Ms. Paolucci filed for unemployment compensation in addition to her workers’ compensation benefits. She was awarded unemployment benefits, and the employer immediately appealed the decision. On appeal, the employer cited that she should not be eligible for benefits as she left her job due to “willful misconduct” and is therefore precluded. Specifically, the employer asserted that the worker could have returned to work (based on the IME results), and held the following: 

The claimant never made the employer aware that she could return to work. Further, the claimant did not respond to the employer’s offer of work. Finally, the claimant’s attorney told the employer to no longer contact the claimant.

On a second appeal, the Commonwealth Court of Pennsylvania reversed the decision, and found the results of the IME to be irrelevant given the fact the treating physician asserted that Ms. Paolucci could not return to work. Further, the court found no evidence that the “employee violated a policy, work rule or reasonable expectation of employer.”

If you are facing a difficult workers’ compensation issue, do not hesitate to contact Louis P. Lombardi & Associates today at (610)239-7600.  We serve the areas of  Montgomery and Bucks County, Pennsylvania.

Wednesday, June 17, 2015

Recent Pennsylvania Supreme Court Ruling Limits Subrogation of Workers’ Compensation Claims Against Negligent Third-Party

What happens if I am injured at work, but my injury was caused by the negligence of another worker? 


Workers’ compensation coverage offers a sense of security to workers across Pennsylvania. However, these claims can quickly become marred by procedural complexities and conflict with the insurance company – as in a recent Pennsylvania Supreme Court case involving an injured worker whose accident was caused by the negligent acts of a co-worker or third party entity. Prior to this case, Pennsylvania laws were somewhat unclear as to the rights and obligations of a workers’ compensation insurer when the payee was actually injured by someone else. However, the holding in Liberty Mutual Insurance Co. v. Domtar Paper Co. et al. shed some interesting legal light on the issue – much to the dismay of both insurers and employers, who came out primarily on the losing end. 

Facts & Procedure of Domtar

The Domtar case began in 2009 when an employee for a trucking company known as Schneider National fell in a parking lot leased by paper company Domtar Corporation. The employee filed a workers’ compensation claim with Schneider National, and was paid over $30,000 for his injuries. In turn, Schneider National, through its insurer Liberty Mutual Insurance Company, alleged that Domtar was negligent in its maintenance of the parking lot, resulting in injury to the employee. However, the employee did not individually pursue a claim against Domtar and refused all attempts both by Liberty Mutual and Schneider National to file a negligence lawsuit against the paper company. 

As a result, Liberty Mutual filed a claim against Domtar itself, alleging negligence resulting in injury to the employee. In response, Domtar asserted that the insurer had no right to file an independent claim for damages on behalf of the injured employee who did not pursue his own right to file an action. The trial court agreed with Domtar, and the case was appealed to Superior Court, which also agreed. 

As a last resort, Liberty Mutual filed an appeal with the Pennsylvania Supreme Court, which affirmed the lower courts’ rulings for several different reasons: 

• Both Liberty Mutual and Schneider National failed to get the employee’s cooperation in the matter. In other words, it is technically not their fight. 
• Liberty Mutual did not properly “perfect” the subrogation (reimbursement) claim, nor did it follow proper procedural frameworks to pursue its assertions. 

As a result of Domtar, Pennsylvania precedent stands (somewhat) clearly for the notion that an insurer may not pursue reimbursement of a compensation claim without the involvement of the actual injured party – and it better follow proper procedures when it does. 

If you are having a difficult time with your workers’ compensation claim or appeal, please contact the Montgomery and Bucks County workers compensation attorneys at Louis P. Lombardi II & Associates by calling (610)239-7600. 

Friday, June 12, 2015

Driver Injures Four Construction Workers in Pennsylvania Turnpike Crash

Can you receive workers compensation or a personal injury settlement for the work related death of a loved one?

A motorist injured four construction workers in an early morning crash on the Pennsylvania Turnpike near the Bensalem Interchange.  The driver was killed during the crash.  One worker was taken by ambulance to a nearby hospital and another worker was airlifted to another Philadelphia hospital and rushed into surgery shortly after arriving.  The two remaining construction workers had minor injuries and were taken to a local hospital in Bristol for observation.  Authorities are investigating the incident.      

The construction workers, all male, were working for contractors hired by the Pennsylvania Turnpike to work on a link between the Turnpike and I-95.  This crash comes on the heels of another incident in Bedford County.  In that incident, a state trooper attempted to pull over a car.  The car sped off and swerved into a lane under construction hitting a construction worker.  Thankfully, none of the workers died in this accident. 

Being employed as a construction worker on a main road or highway is a dangerous job.  Many construction workers and others are killed while working on Pennsylvania roads every year.      

As a result of the recent events, the Turnpike Chairman, Sean Logan, requested extra troopers in construction zones to enforce speeding and distracted drivers.  The extra enforcement is part of Operation Orange Squeeze.  A trooper sits inside of a construction vehicle while another trooper waits in a patrol car to pull over the speeding car.  Drivers traveling 11 mph or more in a construction zone face a $200 fine and a 15-day driver’s license suspension.  Last year alone there were 150 crashes in construction zones.  

Unfortunately, no matter how many extra precautions are taken to keep workers safe, work-related deaths will still occur on these roads.  If a member of your family was killed in a work-related accident, the attorneys at Louis P. Lombardi II & Associates may be able to help you with your workers compensation or personal injury claim.  Our Montgomery and Bucks County attorneys can be reached by calling (888) 818-4343.


Wednesday, May 27, 2015

Seasonal Employees Injured on the Job Deserve Full Benefits

Does workers' compensation apply to me at my summer job?

During the summer months, many employers in Montgomery and Bucks Counties hire temporary, seasonal employees. Though these employees are only at their posts for a limited amount of time, in Pennsylvania, the workers’ compensation laws that apply to full-time employees usually also apply to them.

If you were injured while working a seasonal job, there are a few things you should be aware of to ensure that you get all of the workers’ compensation benefits you deserve.
• Even if it seems like the accident that caused your injury was your fault, you are likely still eligible for compensation. All too often, seasonal employees are not properly trained or given adequate protections.
• All wages should be taken into account when calculating workers’ compensation benefits. So, if you work multiple jobs and are injured at one of them, the benefits you receive should reflect the amount of income you are losing in total, not just the money you would have earned while working at the job where the injury occurred.
• Even if you are able to keep working at the job where you were injured, you can probably collect wages lost because you are unable to work other jobs you may have. For example, if you break your leg while working at your office job, you could get workers’ compensation benefits if the broken leg prevented you from working at your other job as a golf caddy, even if you can still work at the office.
• If the injury is a very serious one that will prevent you from working for a year or more, you may be eligible for additional disability benefits from Social Security.
• Some employers will try to tell you that you are or were an independent contractor and are therefore ineligible for benefits. Our experience suggests that this is rarely the case when it comes to seasonal employees. It is very likely you should have been classified as an employee and are due benefits.
• Though it is possible to represent yourself in a workers’ compensation case, hiring an experienced attorney can help level the playing field and ensure that you are getting all the benefits you deserve.

The attorneys at Louis P. Lombardi II & Associates, P.C., have the experience and knowledge to successfully guide your workers' compensation claim. We serve the Philadelphia metropolitan area with convenient locations in the city of Philadelphia, Plymouth Meeting, Montgomery County and Chalfont, Bucks County. Contact us today at (610)239-7600 or (888)818-4343 to arrange a consultation.


Monday, May 18, 2015

How to Handle a Work-Related Injury That Was Caused By A Third Party

If My Work Related Injury Is Caused by a Third Party Do I Also Have a Personal Injury Claim?

People who suffer work related injuries that were caused, at least in part, by someone other than your employer may have a viable personal injury claim as well.

Some examples include:

• While driving a company owned vehicle in the course of your duties you were injured in an accident caused by the negligence of another driver.

• You slipped and hurt yourself when you stepped onto a slippery surface at a customer’s facility. 

• You were injured as you worked on the assembly line by a machine tool that was defectively designed or manufactured or defectively repaired by an outside contractor. 

If you exercise your right to file this lawsuit, your employer (or its insurer) has a right to collect a percentage (based on a formula) of what you collect from this third party in order to be paid back what it paid to you. This is known as subrogation.

Your employer or its insurance carrier cannot directly sue the third party to be reimbursed what it paid out, the injured worker needs to be part of the litigation, according to a state Supreme Court decision, Liberty Mutual Insurance Co. v. Domtar Paper Co.

In this case, George Lawrence worked for the trucking company Schneider National, Inc., at a facility leased by Domtar when he slipped and fell in the parking lot, injuring himself, resulting in a payment of $33,929.23 in workers' compensation benefits. Liberty Mutual sued Domtar and the owners of the facility claiming they were responsible for the injury. Lawrence never filed his own suit, assigned his legal rights to Liberty Mutual nor did he join their lawsuit.

The lower court ruled Liberty Mutual did not have a right to sue on its own a third party alleged to have caused the work related injury and dismissed the case. On appeal the Supreme Court disagreed with Liberty Mutual’s interpretation of state statute and prior court decisions and agreed with the trial court.

If you find yourself suffering from a work related injury caused by another party, the workers compensation and personal injury attorneys at Louis P. Lombardi II & Associates, P.C., can help you navigate through the complex legal system. The firm helps those in the Philadelphia area with offices in Philadelphia, Plymouth Meeting, Montgomery County and Chalfont, Bucks County. Call (610)239-7600 or (888)818-4343 today to schedule a consultation. 


Monday, May 11, 2015

Work-Related Traumatic Brain Injuries Could Create Lifelong Limitations

What are some of the side effects of work-related traumatic brain injuries? 

Each day, Americans sustain traumatic brain injuries in their homes, on the roads and in the workplace. These serious injuries result not only in physical disabilities, but cognitive loss and personality changes. While many tissues in the body can recover from injury, brain cells cannot. 

TBI is caused by a blow or jolt to the head, which may or may not cause an open wound to the skull, which disrupts normal brain functioning. Not all blows to the head result in a TBI. The harm from TBIs range from “mild” (a short change in consciousness) to “severe” (a long period of unconsciousness or lost memory).  Most TBIs are mild and normally called concussions.

TBI is a leading cause of death and disability, according to the Centers for Disease Control and Prevention (CDC). It estimates that TBIs contribute to nearly a third of all injury deaths.  

TBI can result in impaired thinking, lost memory, limited movement, lost sensation (including vision and hearing) and emotional functioning (personality changes, anger and depression).  These effects not only impact workers but their families and communities as well.

CDC figures paint a sobering picture of the number and severity of TBIs across the country. In 2010:

• about 2.5 million emergency department visits, hospital admissions and deaths were connected to TBI, (either by themselves or in combination with other injuries);

• the deaths of more than 50,000 people were connected to TBI; and

• TBI was a diagnosis (by itself or with other conditions) in more than 280,000 hospitalizations and 2.2 million emergency department visits.  

The leading causes of TBI are: 

• Falls - 40.5%,

• Unknown/other - 19%,

• Traffic accidents - 14.3%

• Being struck by or against an object - 15.5% 

• Assaults - 10.7%.

Work-related TBIs can be caused by:
• slips and falls in areas that are uneven or slippery;

• accidents involving construction equipment, autos or trucks;

• being struck in the head by an object or piece of equipment being moved from one place to another; and

• being the victim of a crime at the workplace.

If you or a loved one in Montgomery or Bucks Counties has suffered a work-related TBI, the law firm of Louis P. Lombardi II & Associates can help you obtain the medical treatment and compensation you deserve. Call (888) 818-4343 or (610) 239-7600 to schedule your free consultation. 

 


Friday, May 1, 2015

Nurse Receives Workers' Compensation Benefits for Occupational Asthma

Can one continue to receive workers' compensation benefits even after recovering from an occupational injury and going back to work elsewhere?

Nancy Little worked as a full-time registered nurse at a Pennsylvania hospital until the floor wax they used caused such severe asthma that she was unable to perform her duties. Although she recovered and was able to return to work elsewhere part-time, an appellate court ruled that she is entitled to workers' compensation benefits for her occupational asthma.

As a full-time nurse at Select Specialty Hospital, Little experienced frequent breathing difficulties that forced her to leave work. Emergency room treatment helped temporarily, but each time she returned to her job, her breathing problems resumed. She ultimately gave up working at the hospital and sought total disability worker's compensation benefits, which her employer denied.

Little later accepted a part-time nursing job at Altoona Hospital, explaining to them that she had been allergic to the floor wax used by her previous employer. Altoona Hospital switched to a different floor wax, and Little no longer experienced breathing problems.

Relying on testimony from Little and a toxicologist, a Pennsylvania workers' compensation judge ruled that Little's disability had been due to exposure to a chemical in the floor wax used at Select Specialty Hospital and granted Little's request for benefits.

Little appealed the judge's award of partial disability benefits, arguing that she should continue to receive benefits from Select Specialty Hospital because she was unable to return to work full time after leaving there and experienced a loss in wages. The Pennsylvania Workers' Compensation Appeal Board rejected her argument, finding that Little had recovered and failed to prove residual impairment.

The Pennsylvania Commonwealth Court unanimously reversed the decision stating that Little's inability to return to the hospital entitled her to additional workers' compensation benefits. According to the court, all she needed to prove was that her health problem arose in the course of employment, that it was related to her employment and that she could not return to her former workplace because the problem would recur. Those conditions were met.

The attorneys at Louis P. Lombardi II & Associates, P.C., have the experience and knowledge to successfully guide your workers' compensation claim. We serve the Philadelphia metropolitan area with convenient locations in the city of Philadelphia, Plymouth Meeting, Montgomery County and Chalfont, Bucks County. Contact us today at (610)239-7600 or (888)818-4343 to arrange a consultation.


Thursday, April 23, 2015

Former Pittsburgh Steeler Wins Workers’ Compensation Claim

Can I appeal the denial of my workers' compensation claim? 

If a worker is injured on the job, he or she is usually eligible for partial or full disability payments – depending upon the nature and extent of the injury. For former Pittsburgh Steelers center Chukky Okobi, his six years with the team caused so much damage to his back and neck that he has been unable to continue his career and will need lifelong medical interventions to withstand the pain of the damage. Okobi successfully pursued workers’ compensation benefits from the Pittsburgh Steelers Sports Inc. A Commonwealth Court judge upheld the Workers’ Compensation Board holding in favor of Okobi.

In 2009, Okobi filed his original claim for workers’ compensation from the team and was immediately met with resistance. After a denial of his first claim for benefits, Okobi appealed to the Pennsylvania Workers’ Compensation Board and was victorious. During that stage of the process, the Steelers missed several filing deadlines and failed to properly advance their arguments against Okobi in the administrative hearing. 

Nonetheless, the Steelers appealed the Board’s decision, citing it did not have an adequate opportunity to participate in the litigation. Again holding for Okobi, the court pointed out the team’s penchant for blowing its deadlines. The judge awarded almost $18,000 in attorneys’ fees to Mr. Okobi as well as costs in the amount of $5,516 and unspecified medical damages. From now on, Mr. Okobi will receive $779 per week from the Steelers to compensate him for his workplace injuries.

The Steelers can appeal the Commonwealth Court decision to Pennsylvania Supreme Court.

The attorneys at Louis P. Lombardi II & Associates, P.C., have the experience and knowledge to successfully guide your workers' compensation claim. We serve the Philadelphia metropolitan area with convenient locations in the city of Philadelphia, Plymouth Meeting, Montgomery County and Chalfont, Bucks County. Contact us today at (610)239-7600 or (888)818-4343 to arrange a consultation.


Wednesday, March 25, 2015

Employee Robbed at Work Granted Reconsideration of Workers’ Compensation Claim

What constitutes an "abnormal work condition" entitling an injured employee to workers' compensation?

An employee who was brutally attacked on the job but denied workers' compensation will get another chance to have her claim considered by the Worker's Compensation Appeal board, thanks to a ruling by the Commonwealth Court of Pennsylvania.

Pamela Murphy was employed at a check cashing business in Levittown, Pennsylvania when the incident occurred. Upon parking her car, she was held at gunpoint by an assailant who forced her to give him the office's alarm access codes. Her husband, who had driven with her to her office, was handcuffed, tied up and forced into the car's back seat.

Holding a gun at her back, the assailant forced Murphy to unlock the company's safe and left her hogtied. When the police arrived, she had chest pain, was unable to speak or breathe and had to be taken by ambulance to a hospital.
She received treatment for injuries to her back and shoulder and psychiatric treatment for Post Traumatic Stress Disorder. Her claim stated that she continued to have nightmares and panic attacks, could not concentrate, was afraid to return to the office and feared the gunman might find her. Adding to her anxiety, her son-in-law had been killed while working as a courier for the same employer six years before.

In denying her claim, The Workers’ Compensation judge and the Appeal Board both concluded that her physical injuries were not serious enough and that the incident was not an "abnormal work condition" entitling her to compensation. Robberies are not uncommon in the check cashing industry. Her employer testified that employees receive security training and personal panic codes and are told to use a dummy safe if robbed.

The Commonwealth Court agreed with the Appeal Board about the severity of the physical injuries but asked the Appeal Board to reconsider whether the robbery was an abnormal working condition. They pointed to the case of a State Trooper who ran over a pedestrian who jumped in front of his patrol car. While accidents are common in law enforcement, the Workers’ Compensation judge found it is unusual for a mentally ill person to run in front of a patrol car for no reason. The unique facts of the case enabled the trooper's claim to be upheld in the Pennsylvania Supreme Court.

The law firm of Louis P. Lombardi II & Associates, P.C., serves the injured in Montgomery County, Bucks County and throughout the Philadelphia area. Our attorneys have extensive experience with workers' compensation claims and other matters. Contact us today at (610)239-7600 or (888)818-4343 for a free consultation.


Monday, March 9, 2015

Nursing Employees At Risk for Workplace Injuries

How Common are Workplace Injuries Among Hospital Staff?

In Pennsylvania, hospital workers are injured on the job every day. In fact, nursing employees seem to suffer more back injuries than construction workers. The Department of Labor's Bureau of Labor Statistics reports more than 35,000 back and other injuries each year, severe enough for nursing employees to miss work.

One nurse at Crozer-Chester Medical Center in Chester became one of these statistics when performing her job. Tove Schuster was working the night shift and heard a co-worker call for help because a patient had fallen to the floor. The patient was more than 300 pounds, and a group of nurses lifted the patient as a team.

Schuster did as she was trained, but while getting the patient back into bed, she felt something pop. She finished her shift in pain and drove home. When Schuster awoke the next day, she was unable to walk. Surgery was required to repair a damaged disk in her spine. The hospital acknowledged that Schuster injured her back while lifting that patient. Schuster's career as a floor nurse is over, but she is able to walk and sit without excruciating pain.

The high rate of nursing staff injuries and what hospitals do about it is an ongoing issue. Federal studies have documented how other occupations, such as auto factory workers, have limits as to how much can be lifted. For nursing employees, lifting is part of their everyday duties, with virtually no protections in place.

The law firm of Louis P. Lombardi II & Associates has decades of experience with workers' compensation and personal injury cases. Our Montgomery and Bucks County attorneys are available for free consultations. Contact us today at (888)818-4343 or (610)239-7600.


Monday, February 16, 2015

Maximum Medical Improvement and Your Rights

How Are Injury Levels and Benefit Amounts Determined Following Workplace Injury, Treatment and Recovery?

Workers’ compensation claims may seem simple at first glance. A worker is injured at work, he or she cannot work for a while and compensation is received until a return to work is possible. Simple, right?

Actually, workers’ compensation claims are often highly complex and may revolve around difficult questions such as:
• How is the accuracy and validity of Impairment Rating Evaluations (IREs) determined?
• What percentage of full-body impairment did the worker experience?
• Once time has passed, healing has occurred and treatment has been administered, when is Maximum Medical Improvement(MMI) reached?

And, perhaps most importantly, “Who answers these questions and subsequently determines the amount and duration of financial compensation?” 

A recent Pennsylvania case shed light on how the accuracy and validity of IREs may be weighed in some disputes. IREs are crucial to workers’ compensation claims, because they are used by judges to measure the extent and effect of injuries and, subsequently, the level of ongoing benefits. 

In 2004, Nicole Neff was injured at work and claimed serious and long-term impairment. Yet her IRE showed that, despite the fact that future surgery may improve her recovery, she had already achieved Maximum Medical Improvement. The IRE also showed that she had a full-body impairment of just one percent. The Workers’ Compensation judge accepted the IRE findings, and the Workers' Compensation Appeal Board affirmed the decision. Neff responded by filing suit in civil court. 

In Neff’s 2014 case, Neff v. WCAB, she and her attorneys claimed that she could not have achieved Maximum Medical Improvement since the IRE showed that future surgery could improve her condition. This claim seems logical and valid. Yet the court upheld the previous rulings, basing its decision on the fact that relevant guidelines instruct that an individual is at Maximum Medical Improvement when the condition is “static or stable” and when “one would not expect a change in condition at any time in the immediate future" and the clarity and credibility of the IRE doctor.

If you were injured at work, do not navigate the complexities of IREs and Maximum Medical Improvement without the help of an experienced workers’ compensation attorney. If you live in Montgomery or Bucks County, Pennsylvania, contact Louis P. Lombardi II & Associates, PC at (610)239-7600.


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