The advice offered below is general in nature and may not be applicable to every case. Consultation with a workers’ compensation attorney is highly recommended. Reliance on this advice does not represent the formation of an attorney-client relationship in the absence of a fee agreement with Mr. Hillsberg.
What is Workers’ Compensation?
Workers’ Compensation is a statutory benefit designed to ensure that Employees who are injured in the course and scope of their employment receive compensation for lost wages and medical care. Unlike some other causes of action, there is no allowance for a recovery of pain and suffering or collateral damages.
However, if the Employer/Insurance carrier violates the Pennsylvania Workers’ Compensation Act, they can be assessed for Penalties. Often, WC claims resolve when the injured worker recovers and returns to work. However, what if there is no job to return to? What if the injured worker is physically unable to return to work? These cases usually end in settlement.
If you have been injured at work or in the course of your employment, call me. I can help to ensure that you understand your rights and that you receive all the money and benefits to which you are entitled under the law.
How long do my Workers’ Compensation Benefits last?
The duration of Workers’ Compensation Benefits is dependent on your “disability status”. If you are “totally disabled” and are not earning income from any source, your benefits can continue indefinitely. However, it is rarely this simple. Eventually, an individual receiving benefits may return to work with a loss of earnings or may receive an administrative or judicial determination that they are only “partially disabled”.
Once this happens, your benefits may be limited to 500 weeks. This is just under ten years. While this may seem like a long time, a 500 week period can expire quickly and a determination that a person is only “partially disabled” can decrease the eventual settlement value of your case.
There are some precautionary steps you can take. However, these steps vary based on the facts of each particular case and can not be effectively described in broad terms. If you have any questions about your rights, please feel free to call for a free initial consultation.
If my claim is denied, how long will it take to get my benefits through litigation?
If a claim is denied, the next step is to file a Claim Petition with Harrisburg. Once filed, the Bureau office in Harrisburg will assign the case to a Judge. The Judge will then send out a hearing notice and litigation begins.
The length of time it takes to fully litigate a Claim Petition varies widely depending on the complexity of the case, the amount of evidence that must be collected, and the number of issues in dispute in your case. The amount of time is also influenced by the hearing procedures of the Judge you are assigned. In general, it takes at least eight months to fully litigate a Claim Petition in Delaware County. It may take longer on occasion. If you want to file a Claim and you are not sure how to proceed, please feel free to contact me.
What is an “I.M.E.”?
“I.M.E.” stands for Independent Medical Examination. This is a physical examination performed at the request of the insurance company by a doctor chosen by the insurance company. While the title suggests that the doctor performing the examination will be impartial, it is important to remember who selected and pays the doctor: the insurance company.
An I.M.E. should not be confused with treatment provided by a “panel approved” or company selected doctor. Even though you may be treating with a company-approved or company-selected doctor, the insurance company may still be entitled to an I.M.E. Also, invasive testing, such as EMG’s (nerve test with needles) or FCE’s (Functional Capacity Evaluations) are not examinations and you may not have to attend them if requested by the insurance company.
If you suffered multiple injuries in your work accident, the insurance company may be entitled to multiple I.M.E’s. If you are unsure whether you should attend a medical appointment scheduled by the insurance company, call a workers’ comp attorney immediately. As always, the individual facts of each case will determine whether you must attend.
What happens if I miss an I.M.E. or refuse to attend?
If an injured worker fails to attend an “Independent Medical Examination” (hereafter “I.M.E.”) scheduled by the insurance company, the insurance company can file a Petition for Physical Examination. This petition will be assigned to a Workers’ Compensation Judge who will assess the reasonableness of the request. If the Judge deems the request reasonable, (s)he will order the injured worker to attend a re-scheduled I.M.E.
If an injured worker fails to attend an I.M.E. after the Judge has ordered attendance, the Defendant can file for suspension of the benefits and the Judge will allow the Defendant to cease paying Workers’ Compensation Benefits, at least until that worker ultimately attends the examination. The Judge will only chose not to suspend benefits if the injured worker has a very strong reason for not attending the ordered I.M.E.
If you are unsure whether you should attend a medical appointment scheduled by the insurance company, call a workman’s comp attorney immediately. Failure to attend a properly ordered I.M.E. can be financially devastating. As always, the individual facts of each case will determine whether you must attend.
How often can the insurance company have an I.M.E.?
There is no absolute standard for how often an insurance company can request an “Independent Medical Examination” (hereafter “I.M.E.”). The Workers’ Compensation Act leaves this to the discretion of the Workers’ Compensation Judge who may order the employee to submit to examinations as (s)he deems reasonable and necessary.
Whether a request is reasonable depends on the status of the case. If an employee is actively receiving benefits and there is no ongoing litigation, the carrier is usually allowed an I.M.E. every six months. However, if there is a change in medical condition (i.e. surgery, new accident, etc.), or if litigation is initiated, more frequent or additional I.M.E.s may be allowed. Also, if the work accident resulted in multiple injuries, the insurance company may be entitled to multiple I.M.E.s.
If you are unsure whether you should attend a medical appointment scheduled by the insurance company, call a workers’ compensation attorney immediately. As always, the individual facts of each case will determine whether you must attend. Beware! If the Judge orders an employee to attend an I.M.E. and the employee does not attend, the Judge can allow the insurance carrier to cease paying your benefits.
What is an “IRE” and why does it matter?
An “IRE” stands for Impairment Rating Evaluation. Until recently, these evaluations were used by the insurance companies and employers as a way to limit how long they would be required to pay lost wage benefits to an injured worker. However, the Pennsylvania Supreme Court just issued a Decision in a case called Protz v WCAB striking the entire portion of the Pennsylvania Workers’ Compensation Act allowing for “IRE”s as unconstitutional. This means that for now, no more “IRE”s are being performed. If you already had an “IRE”, call a workman’s compensation attorney immediately to review your case. I am fighting to have all “IRE”s declared to be void. It may be possible to lift the limit on your benefits imposed by an invalid “IRE”. Even if your benefits stopped because 500 weeks expired under an IRE, if the last payment of wage benefits to you was within the last three years, it may not be too late to have your benefits reinstated. Call me for a free initial consultation.
Can the insurance company/employer place an injured worker under surveillance?
Yes. As a general rule, the insurance company/employer can and will hire an investigator to follow an injured worker and videotape that worker’s activities. This has become very common and can be a useful tool for the insurance company/employer if visually compelling activities are taped. However, there are limits to how much your privacy can be invaded.
As a general rule, any activities performed in public can be taped. However, an investigator is not allowed to trespass on your property. An investigator is also not allowed to “harass” you. However, “harassment” is a subjective term and there is no clear line that can be drawn describing acceptable and unacceptable activities.
If you feel that you are being followed or watched and you become uncomfortable or feel unsafe, do not confront the investigator, call the police and report your concerns. If you have specific questions or concerns about your right in this regard, please feel free to contact me.
What do I do if my check is late?
The first and most obvious course of action is to have your workers’ comp attorney call the adjuster or defense attorney and find out what happened. Often there is a clerical error or oversight and the checks are promptly re-issued. However, if there is a pattern of late checks, or the insurance company refuses to reinstate the benefits, then a Penalty Petition may be appropriate. If successful, the Judge will order the reinstatement of your benefits and perhaps will order the defendant to pay an additional penalty.
There are several legitimate reasons that checks can be stopped, so it is important for an attorney to fully investigate the situation before determining a proper course of action. Finally, your check may not be “late” just because it arrives several days after it usually did. Often a defendant will be paying an injured worker a week in advance and later switch the payment timeline to ensure that the check comes on the day it is actually due. A check is late if it is not received by the last date in the payment period. Thus, usual issue date of the check is not as crucial as the payment periods themselves.
If you are unsure whether a check is late, feel free to call me.
When should I settle my case?
Generally, injured workers should consider settling if their medical condition has stabilized, they can find an alternative way to bring revenue into the home (either through a spouse, SSD, etc.), and they receive a reasonable settlement offer. There is no absolute way to know whether someone’s medical condition is stable. However, if there is no discussion of future surgery, physical therapy has ceased and the treating physicians indicate there is nothing more they can do, then there is a good chance that your medical condition is stable and will not worsen.
Alternative revenue sources are essential because it is almost always impossible to settle a Workers’ Compensation case for enough money to live off of for the rest of your life. Once the settlement money is gone, it is gone for good. Determining whether a settlement offer is reasonable is even trickier and really should only be done on a case-by-case basis considering the amount of the weekly compensation benefit, the severity of the injuries and the amount of ongoing treatment that will be required. Of course, there are other factors that must be considered.
If you have questions about whether you should settle your case or want help to settle, please feel free to contact me.
Can my general health insurance be cancelled?
The answer to this question depends in large part on whether you are a union employee or have a specific employment contract. If you do, the employer will have to follow the guidelines of the contract in determining whether your health insurance benefits can be cancelled. Furthermore, if an employer has established a clear company policy about the maintenance and/or termination of health coverage, the employer must adhere to that policy or risk being sued for treating an injured worker differently.
However, there is no provision in the Workers’ Compensation Act that requires an employer to maintain the health insurance of an employee that is out of work due to a work-related injury. Thus, in the absence of an employment contract or clearly defined company policy, an employer can usually cancel the general health insurance of a disabled worker. Usually, the employer must offer the employee the option of purchasing ongoing health insurance through a “COBRA” plan.
It is important to distinguish between general health insurance (used for non-work-related medical conditions) and Workers’ Compensation Insurance (used for work-related medical treatment). The rules for termination of coverage are different and it is usually much more difficult to terminate workers’ compensation health coverage than general health insurance.
What happens if my Insurance Company goes bankrupt?
In light of our current economy this is a very real and often frightening prospect. However, there is usually no need for undue concern. The Workers’ Compensation Act has a safeguard to protect injured workers against this event.
The Act established a security fund into which all carriers must pay in order to do business in the Commonwealth of Pennsylvania. These moneys are then used to pay claims against insurance companies that have become insolvent. However, as a practical matter, an individual or medical provider may experience an interruption in benefits while the file is being transferred to another administering body. Ultimately, benefits are usually protected, but it may be more difficult to negotiate a settlement once the security fund has assumed payments.
If you have any questions about your rights, please feel free to call me.
What happens if my Employer goes bankrupt or closes?
As a general rule, there is no direct impact on an individual’s right to Workers’ Compensation Benefits merely because the employer goes out of business. Most employers have purchased insurance coverage through an insurance company and as long as that insurance company is financially sound, there will be no impact on benefits.
However, if the pre-injury employer is self-insured (uses its own money to pay Workers’ Compensation Benefits), your benefits may be impacted. The Workers’ Compensation Act requires safeguards to protect injured workers against this event. Usually, these safeguards are sufficient to ensure that the benefits continue, but there may be a delay or temporary cessation of benefits while these safeguards kick in.
If you have any questions about your rights, please feel free to call me.
Does the Insurance Company have to pay for general medical expenses not directly associated with treatment in a doctor’s office (i.e. a cane, bandages, Tylenol, etc)?
This determination must be made on a case-by case basis. Sometimes, the Worker’s Compensation Insurance Company will voluntarily reimburse such costs if presented with receipts. However, an injured worker is much more likely to obtain reimbursement when the doctor has provided a note declaring the expenses/supplies medically necessary in relation to the work injury. Thus, if one is seeking reimbursement of such expenses, it is wise to obtain a note from the medical provider directing the incurrence of such costs.
As always, it is preferable to avoid out-of-pocket expenses if possible. Thus, one should attempt to obtain the medical supplies/equipment from a company that will directly bill the Worker’s Compensation Insurance Company. To discuss this or any other Workers’ Compensation question further, please feel free to contact me.
Does the Insurance Company have to pay for transportation to my medical appointments?
As a general rule, there is no requirement within the Pennsylvania Workers’ Compensation Act that the Insurance Company pay for transportation to medical appointment, including physical therapy or chiropractic adjustments. The cost of local travel to and from the doctor generally falls to the injured worker.
However, a carrier will sometimes reimburse those costs voluntarily if presented with receipts. Additionally, if an injured worker is required to travel outside of the local area for treatment because appropriate treatment is not available within that local area, the carrier can be forced to reimburse those travel expenses. This must be evaluated on a case-by-case basis. If the insurance company refuses to voluntarily make reimbursements, then a petition can be filed and the ultimate decision about whether the reimbursements must be made will lie with the Workers’ Compensation Judge.
To discuss this or any other Workers’ Compensation questions further, please feel free to contact me.
Can I treat with medical providers outside of Pennsylvania for a Pennsylvania Workers’ Compensation Claim?
Yes. After the initial ninety day period, you can treat with any qualified and duly licensed health care provider you choose. However, there are several strong practical concerns that must be considered. First, providers that practice in Pennsylvania are more likely to know how to properly bill for treatment under Pennsylvania Workers’ Compensation law and thus, are more likely to get their bills paid. Further, the Pennsylvania Workers’ Compensation Act prohibits health care providers from billing injured workers for work-related treatment.
The laws of other states may not be as protective. For example, if you treat in Delaware. The insurance company may pay the portion of the bill it is responsible for, but there is usually a balance left over. In Pennsylvania, the provider writes off the balance. In Delaware, the provider may be able to sue you to recover the balance. These are only two of several factors that must be considered. If you are receiving benefits for an injury sustained pursuant to the Pennsylvania Workers’ Compensation Act, you are better off treating in the Commonwealth of Pennsylvania.
To discuss this or any other Workers’ Compensation question further, please feel free to contact me.
Who should pay for my prescriptions?
The Workers’ Compensation carrier is responsible for payment of prescriptions related to an accepted work injury. Many pharmacies will bill the insurance company directly.
However, the pharmacy may find it difficult to obtain prompt approval from the insurance company. Some insurance companies will issue a prescription card. Use this if you can. Often, however, they are not much more efficient then direct billing.
An injured worker may pay for prescriptions “out-of-pocket” and submit the receipts for reimbursement. However, I recommend that this be avoided if possible. Usually, an injured worker needs to retain as much cash as possible to cover home essentials.
There are also several prescription companies that specialize in Workers’ Compensation cases. These companies will bill the carrier directly usually without waiting for approval. Using these companies may help to avoid delays and out-of-pocket expenditures. However, if the outstanding balance grows too large, the injured worker may begin to receive collection calls.
If I settle my Workers’ Compensation Claim, will my private health insurance pay for future care?
Generally, a private health insurance carrier has no obligation to pay for treatment received in connection to work-related injuries. Thus, if an injured worker is settling a Workers’ Compensation case, it is wise to assume that any medical bills for treatment related to the accepted work injury will be denied by private health insurance and will become the injured workers’ personal responsibility.
However, it is not unusual for a private health insurance carrier to pay medical bills without first determining whether they are for treatment of work-related injuries. Thus, an injured worker may find that some or all bills have been paid by their private health insurance.
An injured worker should not mislead the private health insurance carrier with respect to whether treatment is work-related, or (s)he may find themselves facing fraud charges. The health care provider may similarly be faced with fraud charges, disqualification from participation in the plan or reimbursement for improper payments. This area of the Workers’ Compensation Law can get very complicated and it is always wise to consult a qualified workman’s comp attorney with questions.
What is a Petition to Terminate Compensation Benefits?
A Petition to Terminate Compensation Benefits is a document used by the Employer/Insurance Company to request permission to stop paying Workers’ Compensation Benefits. It is filed with the Bureau of Workers’ Compensation in Harrisburg and should contain a specific allegation that the injured worker has fully recovered as of a specified date. The recovery date is usually based on an IME performed at the request of the Defense.
Once this Petition is filed, the Bureau will send out notices to the parties informing them of which Judge the case was assigned to. This will be followed by a notice scheduling a first hearing. The injured worker should file an Answer with the Judge promptly. The Defendant has the burden of proof in such a case and will request “Supersedeas” at the first hearing. This is essentially permission to stop paying benefits while the case is litigated.
What is Supersedeas and What Do I Need to Do in Response?
Any time the Defendant/Employer files a petition seeking to reduce or stop Workers’ Compensation Benefits, it can and usually will request Supersedeas relief. This is essentially permission from the Judge to stop paying or reduce payment of benefits while the case is litigated. The Employer’s submission usually consists of a medical report from an IME doctor and often a job offer letter or Labor Market Survey attempting to show that the Claimant can work and has earning power.
Claimant should be prepared to submit a response at the first hearing. This response consists of an affidavit (a sworn written statement) from Claimant describing ongoing symptoms and why (s)he can’t work. This should be accompanied by a supporting report or note from the treating physician. As a general rule, the Judge has ten days to issue an Interlocutory Order after the Supersedeas evidence is presented. If the Judge “Grants” supersedeas, the Defendant will be allowed to reduce or stop compensation payments. However, if the Judge “Denies” Supersedeas, the Defendant will be directed to continue compensation payments.
This process can get tricky and complicated because of the varying burdens of proof and because procedures vary from Judge to Judge. It is always better to have an experienced workers’ compensation attorney assist you in this process.
What Happens if Supersedeas is Granted?
If the Judge “Grants” Supersedeas, the Employer/Insurance Company will be allowed to reduce or stop compensation payments for lost wages. The Order “Granting” Supersedeas is interlocutory. This means that it is temporary and remains in place while the litigation continues. It is also NOT appealable. It is allowable to ask the Judge to “reconsider” his/her decision and submit new evidence in support of your case, but it is not usually successful.
It is important to note that Supersedeas does not impact on the injured workers’ right to ongoing medical care for the work injuries. Absent a Utilization Review request, the Employer/Insurance Carrier must continue to pay for all reasonable and necessary medical expenses incurred in relation to the work injuries while the litigation continues.
An Order Granting Supersedeas does not mean that the case will ultimately be lost, but it is a sign that the Judge does not think your case is strong. If the case is ultimately won, the Employer/Insurance Carrier will have to pay ongoing benefits retroactive to the date Supersedeas was initially Granted. Obviously, this is complicated and it is always better to have an experienced workman’s compensation attorney assist you in this process.
What are Verification Forms?
Approximately every six months, the Workers’ Compensation Insurance Carrier/Employer is authorized to send Claimant three verification forms: (1) Employee Verification of Employment, Self-Employment or Change in Physical Condition; (2) Employee Report of Wages and Physical Condition; (3) Employee’s Report of Benefits for Offsets. These forms must be completed promptly and returned to the sender.
Failure to complete the Employee Verification of Employment, Self-Employment or Change in Physical Condition within 30 days of receipt will result in suspension of benefits (checks will stop) until the form is returned. As these forms may look very similar, it is important to take the time to look for all three. It is also very important to retain proof that you submitted the forms, especially the first, to avoid an improper suspension of benefits.
If you have questions about completing the forms, how to prove it was mailed, or how often you are obligated to complete them, check with a workers’ comp attorney or call me.
Does the Employer/Insurance Company have to provide re-training if I am unable to return to my pre-injury job?
The answer in Pennsylvania is currently no. While some other jurisdictions may require re-training, there is nothing in the Pennsylvania Workers’ Compensation Act that compels an Employer or insurance carrier to retrain an injured worker.
As a practical matter, if an employee is aware of specific training or education that will enable a return to work in a less physically strenuous capacity, settlement of the claim may be an appropriate method to fund this training. However, there are risks inherent in this approach. If an injured worker settles a claim, but cannot complete the retraining for some reason, that worker will have no lost wage benefits and will not have the anticipated skills that would have allowed them to return to work.
Injured workers considering retraining may wish to contact the Office of Vocational Rehabilitation (OVR) for assistance.
What is “OVR”?
“OVR” stands for the Office of Vocational Rehabilitation. This is a state agency that may be able to provide assistance with vocational evaluations, counseling, retraining, and job placement. “OVR” has several offices throughout the Commonwealth of Pennsylvania and it is geared towards assisting individuals with disabilities to find employment. Acceptance into the program is not guaranteed and is based, in part, on the severity of your condition. There may be some cost associated with services based on your present income level.
In order to determine whether you are eligible, you should apply for assistance with the closest “OVR” office to you. There are several throughout the state. While “OVR” can be an effective tool in assisting an injured worker in returning to work, it is not always effective and the activities of the “OVR” representative can affect your rights with respect to Workers’ Compensation Benefits.
You should consult with your workman’s comp attorney prior to applying for assistance with “OVR” to ensure you understand how your application and involvement will impact on your case.
What is a Notice of Ability to Return to Work?
A Notice of Ability to Return to Work is a standard form that was developed by the Bureau of Workers’ Compensation after the laws changed in 1996. The Pennsylvania Workers’ Compensation Act now requires all Workers’ Compensation Insurance Companies to send this to injured workers whenever they receive medical evidence that reflects a change in physical status affecting that workers’ ability to earn income.
For example, if the Workers’ Compensation Insurance Company sends an individual to an IME, and the IME physician opines that the individual can work light duty, the insurance company must send the worker a Notice of Ability to Return to Work informing that person that the IME doctor feels you can work. Medical records evidencing that change should also be enclosed with the Notice of Ability to Return to Work.
What do I do when I receive a Notice of Ability to Return to Work?
The first thing you should do is relax. The insurance company is required to send this form to you and may not be planning to take any further action in the immediate future.
As soon as you are relaxed, call or see your treating doctor to discuss the medical opinions accompanying the Notice of Ability to Return to Work. It is very important to know what your doctor believes about whether you can work. Often, your treating doctor will disagree with the opinions of the IME or panel doctors that generally cause the issuance of the Notice of Ability to Return to Work. The Notice of Ability to Return to Work will inform you that you have a responsibility to look for work within the restrictions outlined.
Once you know what your doctor thinks, call your workers’ compensation attorney because the next step is dependent on the particular facts in your case.
Do I have to treat with the company “panel” doctor?
No. The Workers’ Compensation Act does not require that you treat with a doctor selected by the Employer/Insurance Company (hereafter referred to as “Employer”) and an injured worker always has the right to treat with any doctor they wish. However, if an injured worker chooses to treat with a doctor not approved by the Employer/Insurance Company, the Employer may not have to pay for any treatment received within the first 90 days after a work injury.
In order to establish the ability to avoid payment, Employer must properly post/provide a list of approved physicians prior to the work injury and the Employer must follow proper procedures in creating the list. If the list is not properly posted/provided before the work injury, the Employer has relinquished any ability to control who you treat with.
Several Workers’ Compensation Judges take the position that a valid panel only applies to accepted injuries and that if the Employer is disputing responsibility, the 90-day period for treatment with a panel doctor does not apply. These rights can be altered by collective bargaining, so check your union contract.
If you are not sure whether your Employer has created a valid panel, call me.
My Employer claims to have a list of pre-approved doctors, how do I know if its valid?
Often, the Employer will represent that it has a list, but the requirements of the Act are not met, so the list is invalid.
As a basic rule, the Employer must create a list of at least six health care providers (no more than four of them can be coordinated care organizations) and the Employee must be aware of this list prior to the work accident. To retain its rights, the Employer must obtain written notification from the Employee acknowledging that (s)he was aware of the list and other rights under the Act. If the Employer fails to comply with the technical requirements of the Act, it may not be able to avoid payment of medical expenses incurred with “non-panel” doctors. Also, if the panel does not include a type of medical provider that is appropriate for treatment of the injury sustained (ie a chiropractor), the Employer may not be able to avoid payment.
If you are not sure whether your Employer’s panel is valid, call to discuss it.
Do not sign forms verifying notification of the panel after your injury. Even if you did, that verification is unlikely to be binding. Finally, always remember that an Employee must notify the Employer within five (5) days of the first visit to a non-designated healthcare provider, or the Employer will not have to pay for that visit or any others until notified properly.
What happens to my Workers’ Compensation Benefits if I retire?
The answer to this question is somewhat unresolved. However, the case law is clear that “retirement” in and of itself can cause one to lose lost wage benefits. A “retirement” is considered a voluntary removal from the work force and if one voluntarily removes oneself from the work force, then (s)he is not losing money because of the work injury and is not entitled to lost wage benefits under the Workers’ Compensation Act.
However, if an injured worker is forced by his work injuries to retire, then that worker may be able to maintain lost wage benefits even after retiring. Obviously, taking retirement while claiming entitlement to or receiving Workers’ Compensation Benefits is fraught with risk and should be done as carefully as possible. It is highly recommended that you consult with a workers’ comp lawyer before taking any retirement.
If you do chose to retire while receiving Workers’ Compensation Benefits, be sure that you indicate that your work related injuries are forcing you to select this course of action (if its true). Failure to indicate this may result in the suspension of your benefits. Each case must be analyzed individually. There may be additional reasons to retire immediately or wait to retire.
How does the money I receive through a disability retirement/pension plan impact on the amount of my compensation benefits?
The answer depends on a few key factors. The first is the date of injury. If your disabling work injury occurred before June 24, 1996, the Act does not require an offset and you may be able to receive your full pension and your Workers’ Compensation Benefits.
However, if your disabling work injury occurred on or after June 24, 1996, the Act now calls for an offset or deduction from compensation benefits. The amount of the offset is based on the extent that the employer funded the pension plan. If you paid all the money in, there is no offset. However, if you paid some amount and the employer matched your contribution, there would be an offset in the amount of 50% of the pension benefit.
The Defendant has the burden of proving the extent of the employer contribution. Finally, recent case law calls into question whether any offset can be taken where an insurance company is paying the Workers’ Compensation Benefits. It appears that offsets will only be allowed if the employer funds it own Workers’ Compensation Benefits plan.
If you are not sure whether an offset applies in your case or whether you should apply for a pension, please feel free to call me.
Can I be fired if I go out on Workers’ Compensation?
The answer to this question depends on whether you have an employment agreement or are a union member employed under a contract. If there is any kind of employment agreement or contract, that document must be reviewed to determine under what circumstances you can be fired. However, if you are employed in the Commonwealth of Pennsylvania without a contract, you are considered to be an “at will” employee. This means that an employer can fire you at any time for any reason, so long as that reason is not against public policy.
Recently, the Pennsylvania Supreme Court held that it was against public policy to fire someone because they filed a Workers’ Compensation claim. However, a smart employer will not tell you that you are being fired in retaliation for filing a claim. That employer is more likely to tell you that they need to hire a replacement or you have been absent from the job too long to hold it open for you any longer.
In the case of an “at will” employee, these are considered reasonable basis for termination from employment. However, your rights may be altered by other legislation, such as the Family Medical Leave Act. In the event you feel you were wrongfully terminated from employment, you must report your claim promptly to the EEOC or another similar agency or you may lose your right to pursue such a claim.