Montgomery & Bucks County Workers' Compensation Law Blog

Monday, November 23, 2015

Workers’ Compensation Denied to Mom Paid to Care for Disabled Son

Can someone receive workers’ comp if they are paid by the state to care for a relative?

Some workers’ compensation cases are clear-cut -- A person is injured while clearly on the job and within the scope of his or her employment and, therefore, benefits should be awarded.  Unfortunately, not all cases are this simple. Take, for example, the case of a Pennsylvania mom who was stabbed while caring for her disabled son.

Laura O’Rourke cared for her 33-year-old son, Joshua Gartland, who was known to suffer from substance abuse issues and one of whose legs had been amputated. O’Rourke was paid to care for her son pursuant to an agreement with the state of Pennsylvania. An argument broke out between the two when O’Rourke delayed in fixing Gartland something to eat. Later that evening, Gartland went into O’Rourke’s bedroom, stabbed her repeatedly in the chest and slashed her throat. O’Rourke’s husband, who was also in the room at the time, was able to prevent Gartland from killing his mother. 

After the attack, O’Rourke, who was now out of work, applied to the state for workers’ compensation benefits. After an appeal, a Pennsylvania Commonwealth Court awarded her $466 a month. After the award, Gartland challenged the decision from prison and the Pennsylvania Supreme Court found that O’Rourke was not eligible for benefits. Although O’Rourke argued that she was required by the contract to reside in a home with her son, the court disagreed.  As such, the court found that the attack was not work-related and that benefits should be denied.

When applying for Workers' Compensation benefits, it is always wise to have the assistance of a skilled attorney who specializes in such cases.

Saturday, October 31, 2015

PTSD and Workers' Compensation in Pennsylvania

Is post-traumatic stress disorder (PTSD) considered a compensable injury under Pennsylvania workers’ compensation laws?

Post-traumatic stress disorder (PTSD) is a mental health condition characterized by extreme bouts of anxiety and/or depression triggered by an exceptionally traumatic event. The disorder is often associated with military service, but is also implicated in victims of violent crime or witnesses to horrific disasters.

Following years of intense litigation, the Pennsylvania Workers’ Compensation Board finally approved full disability benefits based solely on a diagnosis of PTSD – but this victory was not without significant pushback and obstacle. Today, PTSD is a recognized and acknowledged disability triggering full- or part-time workers’ compensation benefits, provided the facts surrounding the traumatic event meet certain criteria.

History of PTSD in PA Workers’ Compensation Law

The hallmark PTSD workers’ compensation case occurred just two years ago and involved a PTSD disability claim by a state trooper claiming an inability to return to work after a woman successfully committed suicide by jumping in front of the trooper’s vehicle as he traveled to work. At the outset, his claim was denied on the premise that “normal working conditions for law enforcement include accidents, bodily injuries and death.” However, on appeal, the appellate tribunal held otherwise, concluding that this particular incident is not “normal” within the range of law enforcement duties, and was ultimately compensable.

In 2015, another PTSD case wound its way through the appeals process, and involved a 30-year employee of the PA Liquor Control Board who was violently robbed in April, 2008. While enduring constant fear that he would be robbed and bound again, the employee was unable to return to work and was ultimately diagnosed with PTSD. Again, the initial claim for benefits was denied on the egregious premise that robbery was a “normal” component of working as a liquor store clerk. On appeal, however, the Pennsylvania Supreme Court vacated this opinion and remanded the case back to Commonwealth Court for a retrial – in which the claimant was ultimately successful.

If you are considering a workers’ compensation claim and would like to discuss your options, please do not hesitate to contact Louis P. Lombardi & Associates, P.C. today: 610-239-7600.

Sunday, October 18, 2015

General Information about Workers Compensation in Pennsylvania

I was injured at work. Do I have the right to be compensated for my injuries?

The right to be compensated for workplace injuries is encapsulated in the Workers Compensation Law. Pursuant to this law, employers are required to provide compensation for injuries which occur on the job. The types of expenses covered include medical expenses, wage-loss compensation, and if the injury is fatal, death benefits.

What type of injuries are covered? Pennsylvania law requires employers to be responsible for compensating for illness, injury, or disease, except when such is intentionally caused by the employee or caused by the employee’s violation of the law. On a more morbid topic, if the injury is one that severs a body part from one’s body, the employer is required to compensate the employee for the loss of that part. Occupational diseases are generally covered if caused by, or aggravated by, employment.

It is important to note that the employer’s responsibility to compensate the employee for injuries is contingent on the employee notifying the employer that such an injury has occurred. Failure to notify one’s employer in a timely fashion can eliminate the employee’s right to benefits.

The employee has the right to choose the healthcare provider, except in instances where employers have posted an exclusive list of accepted health care providers. Employees should verify coverage before undergoing treatment to avoid out-of-pocket expenses.

If there is a dispute with the employer, cooperation is recommended. If such communication is unsuccessful, the dispute may be forwarded for a hearing before an administrative judge.

It is important to recognize that professional representation at such a hearing can be crucial to the accurate resolution of the claim. The employer and insurance carrier will surely be represented by experienced counsel, and without corresponding representation, the employee is at a disadvantage. In order to obtain highly skilled legal counsel for such a hearing, or for any and all interaction with the workers compensation system in the greater Philadelphia metropolitan area, call Louis P. Lombardi II & Associates toll free at 888-818-4343 or locally at 610-239-7600 to speak to an experienced attorney today.

Thursday, October 8, 2015

Pennsylvania Indicts Workers’ Compensation Fraudster

What happens if someone tries to cheat or lie on their worker’s compensation claim?

When claimants take advantage of the workers’ compensation system, it becomes more difficult for valid claimants to benefit from a system set up to help those who are truly injured and in need of financial assistance.

Under Pennsylvania law, workers’ compensation fraud is a crime. In addition, this sort of misconduct is also punishable under federal fraud laws – as is the case in a recent indictment entered against a Chambersburg-area man accused of bilking funds from the Federal Employees Compensation Act (FECA) program, which assists federal workers injured on the job.

According to media reports, the defendant was charged with five separate counts of workers’ compensation fraud. The counts in total amounted to over $143,000 in payouts over the years, which is money that could have been used by claimants with legitimate workplace injury claims.

Allegedly, the defendant applied for benefits in 2011 after suffering an injury while working with the Army Corps of Engineers. He continued to apply for, and receive, benefits for several years thereafter based on his assertion he was too injured to return to his job. However, as an investigation ultimately revealed, the claimant was working the entire time for a catering company known as “CM Pig Out,” and collecting benefits on top of his regular wages.

The case was investigated by the U.S. Department of Labor’s Office of Inspector General’s Office of Labor Racketeering and Fraud Investigations, which is responsible for mitigating this type of issue.

Under Pennsylvania law, anyone with suspicions of workers’ compensation fraud is encouraged to report the information directly to the Office of Attorney General. Workers’ compensation fraud can occur on the part of the claimant or employer, with cases against the latter often involving misclassification of employees to avoid having to make payouts.

If you are experiencing difficulty with your workers’ compensation claim and would like to speak to a reputable attorney, please do not hesitate to contact Louis P. Lombardi, II & Associates today: 610.239.7600 or 888.818.4343.

Sunday, September 27, 2015

How to Appeal an Unfair Ruling Concerning Workers’ Compensation Benefits

I received a rejection of my claim for workers’ compensation benefits. What can I do?

Navigating the workers’ compensation process in Pennsylvania can be difficult, particularly for those who are enduring the after-effects of a severe workplace injury. If a claim is initially denied, the applicant has the option of launching an immediate appeal with the PA Workers’ Compensation Appeal Board. This quasi-judicial administrative group is responsible for reviewing the decisions made by workers’ compensation referees – and can only overturn their decisions in limited circumstances.

If you receive a negative decision from the workers’ compensation referee, it is imperative to launch your appeal as quickly as possible. Under the current rules and regulations, appellants have just 20 days from the circulation date listed on the judge’s order to send in the  paperwork necessary for an appeal. The time limit begins on the date stamped on the judge’s order, and the appeal is deemed “submitted” based on the postmark date on the envelope. If the postmark is more than 20 days from the judge’s order, the appeal will be considered waived.

To launch an appeal, an appellant must state the particular grounds of appeal, that is, precisely what is being questioned about the judge's decision. The statement must address both factual and legal reasons for the original decision to be considered in error; "general allegations are insufficient.”

In addition to the actual appeal, additional documentation is required to ensure that the paperwork is complete. The appealing party, for instance, is required to ensure that all parties listed on the circulation sheet of the judge’s order are provided with notice of the appeal. In addition, the appealing party must arrange for mailing of the original appeal plus two copies to the Board.

If you are dealing with a rejection of workers' compensation benefits, don’t delay. For skilled assistance with an appeal, contact one of our knowledgeable attorneys at Louis P. Lombardi, II & Associates. Serving clients throughout the Philadelphia metropolitan area, we can be reached at 610.239.7600 or 888.818.4343.

Friday, September 4, 2015

Court Orders Payment of Death Benefits; Widow Alleges Company Literally ‘Worked him to Death’

What are the options for a surviving spouse who has been denied death benefits from the PA Workers’ Compensation Board?

In one recent Bucks County workers’ compensation case, a widow proved that a denial by the Workers’ Compensation Board does not necessarily mean the end of the fight for survivors’ benefits – especially considering the fact she had a small child to care for following her husband’s death.

Earlier this month, the appealing party took her case to the PA Commonwealth Court after the WCB denied her claim for survivorship benefits on behalf of herself and her young daughter. According to the petition for relief, the survivor’s 48-year old husband died of a sudden heart attack after working a 14-hour shift at the Lower Bucks County Joint Municipal Authority.

After its review, the WCB denied her claim, concluding that there was insufficient evidence to link the long shift to the sudden, fatal heart attack. However, the Commonwealth Court came to the opposite conclusion, siding with the widow who contended her husband was literally worked to death.

In the court’s opinion, it referenced “[t]he overwhelming circumstantial evidence...[which] shows that exertion from (Dietz's) regular work activities over the course of a 14-hour workday caused his heart attack…” Moreover, the court highlighted the fact that the decedent was often required to work these lengthy shifts, and worked with a jackhammer for the Municipal Authority for over 20 consecutive years.

The court reviewed medical testimony that pointed to the decedent’s history of smoking as the root cause of his fatal heart attack. However, it gave greater weight to other medical testimony concluding that the final 14-hour work day was the fatal catalyst.

In Pennsylvania, surviving spouses and minor children may receive up to 60 percent of the decedent’s salary, plus $3,000. for burial expenses. In general, the surviving spouse must prove that the decedent’s employment caused his or her death, either due to illness or injury.

If you are considering a workers’ compensation action, please do not hesitate to contact the Law Office of Louis P. Lombardi, III, serving the Philadelphia metropolitan area, as well as Montgomery and Bucks Counties. We can be reached at 610-239-7600 or 888.818.4343.

Monday, August 24, 2015

Mitigating the Unthinkable: Workers’ Compensation Laws Following Jobsite Assault

I work in a retail store that was recently robbed. If I had sustained an injury, could I collect workers’ compensation benefits?

Certain industries are, unfortunately, more prone than others to break-ins, burglaries, and armed robberies. Some of the most high-risk jobs include those at stand-alone establishments known to store large amounts of cash, including check-cashing stores, gas stations, banks, and convenience markets. When the unthinkable occurs, and an employee is seriously injured during a workplace assault, can he or she collect workers’ compensation benefits? Thankfully, in a reversal of the Pennsylvania Workers’ Compensation Board’s answer in the negative, the Pennsylvania Commonwealth Court unanimously held that a workplace assault victim is unequivocally entitled to workers’ compensation support while recovering from an egregious attack.

In the aforementioned case, the victim was forced at gunpoint to unlock the safe at her place of employment – a check-cashing store – and was hog-tied before the assailant fled with copious amounts of cash. Unbelievably, upon applying for workers’ compensation based on physical injury and mental distress, the Workers' Compensation Board not only found that her physical injuries were not severe enough, but that her robbery experience was not an “abnormal” workplace incident that would qualify for compensation.

On appeal, the Commonwealth Court decided in a 7-0 decision that, while check-cashing establishments are prone to robbery, the precise details of the victim’s experience are not considered within the scope of a “normal” robbery, even given the fact that the establishment trained employees as to how to best handle break-ins and burglaries. Here, the court pointed out that the employee was ambushed immediately upon leaving her car by the assailant, who was hiding in the dumpster. Keeping a gun to her head the entire time, he guided her throughout the store and made her empty the safes – all the while threatening to kill her family if she did not comply. In the words of the court, “[a]lthough it is generally expected that a check-cashing business might be the target of theft, it is unusual for an employee to be hog-tied and have her husband threatened with death in the event of a robbery…”

If you are facing a difficulties regarding a workers’ compensation claim, please do not hesitate to contact one of our highly skilled attorneys at Louis P. Lombardi II & Associates, serving clients in Philadelphia, Montgomery and Bucks County. We can be reached locally at 610.239.7600 or toll free at 888.818.4343.

Tuesday, August 4, 2015

Employer Blocked From Disclaiming Worker as Employee; Worker Entitled to Compensation Benefits

What are my options if my employer is claiming I am an independent contractor? Can I still receive workers’ compensation benefits? 

One of the most pivotal issues in a workers’ compensation case is the classification of the injured worker as either an independent contractor or employee. If classified as the former, it may be more difficult to obtain workers’ compensation benefits, especially within the construction industry. However, other employees are generally presumed covered by an employer’s workers’ compensation plan provided certain criteria are met. 

Take, for instance, a recent case involving a painter and an employer who had placed an advertisement in the local newspaper seeking painting services on an upcoming construction project. In that case, the painter arrived at the jobsite with his own truck, tools, and supplies – which is an important factor in considering a worker’s status (i.e., does he supply his own equipment?). 

Shortly thereafter, the employer stated that the painter would need to sign a document prior to beginning the job, and would be paid at a rate of $100.00 per day. However, the document establishing the relationship as contractual (as opposed to employment) was never actually signed.  Thereafter, the painter sustained severe injuries on the third day of work when he fell from a roof. 

The painter made a claim for workers’ compensation benefits, to which the employer objected on the grounds that the painter was misclassified as an employee. The employer also asserted that there is no legal requirement that an independent contractor agreement must be signed prior to a contractor beginning work. The court disagreed. 

As a starting point, the court reviewed the language of the applicable workers’ compensation regulation which states “[A]n individual who performs services in the construction industry for remuneration is an independent contractor only if . . . [the individual] has a written contract to perform such services.” Taking the language at face value, the court held that at no point in the short-lived, three-day work relationship did an agreement exist between the employer and the painter. And, even if the painter eventually signed the agreement (which he has denied), this does not alter the employment relationship as it existed in the first three days prior to the injury. 

If you were recently injured on the job and would like to discuss your rights and obligations under the law, please do not hesitate to contact the Pennsylvania workers compensation attorneys at Louis P. Lombardi, II and Associates.  We serve the areas of Montgomery and Bucks County.  Call us at  (610) 239-7600. 

Thursday, July 23, 2015

Off-duty Worker Prevails in Obtaining Workers’ Compensation Following Unsuccessful Rescue Attempt of Fellow Laborer

Can I collect workers’ compensation benefits if I am injured at work, but not technically “on the clock?” 

As the name suggests, workers’ compensation benefits are reserved for those who are injured while engaged in an employment-related activity. The concept draws a clear line between work-related injuries versus those that occur during personal pursuits – the latter of which are not covered. But how does the law treat that thin grey area in which a worker – who is not technically “on the clock” – is injured on the jobsite? As the following story details, these cases are decided based on a thorough analysis over whether the victim was acting within the “scope of employment” at the time of the injury, and not whether he was actually being compensated at the precise moment of the accident. 

Off-the-clock worker prevails following rescue attempt

In July, 2010, an Allegheny County sewage plant worker rushed to the aid of a fellow employee after the employee fatally fell into a concrete pit on the jobsite. Not realizing the futility of his efforts, the plant worker descended into the pit – along with several other workers – to try and rescue the employee, to no avail. On the way out of the pit, the worker was overcome by methane gas, and fell from the ladder injuring his left leg, knee, foot, ribs, back, head and lungs.

In the days following this fateful fall, the injured worker filed for workers’ compensation benefits, which were initially granted by the Workers’ Compensation Board. The employer and its insurance provider immediately appealed the decision to the Commonwealth Court, asserting that a rescue attempt is not an employment duty, and should therefore not be compensated under the terms of the workers’ compensation policy. More specifically, the employer alleged that the victim was not even assigned to work anywhere near the pit, and had stepped outside the scope of his employment just by being in the area. More succinctly, the employer asserted that “his compulsion to act as a Good Samaritan was not employment-related….”

Fortunately, the Court held in favor of the victim and ultimately decided that “[a]ttempts to render aid to another do not, in and of themselves, constitute an abandonment of employment.” In a victory for Pennsylvania’s workers, this holding stands for the notion that the “scope of employment” standard is heavily fact-driven and must be applied subjectively to each situation, regardless of whether the worker was on-the-clock at the time of the injury. 

If you are having difficulty with a workers’ compensation issue, please do not hesitate to contact the Montgomery and Bucks County, Pennsylvania attorneys at Louis P. Lombardi, III & Associates by calling (610)239-7600 to discuss your case today. 

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. 

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