Ask your Doctor

By: James R. Burn, Jr.

Oftentimes we receive phone calls from our clients asking whether or not they can engage in certain physical activities. In order to establish a winning Workers’ Compensation claim, we need to show that our clients are injured and limited from doing their normal and customary job duties. This standard, however, does not require that our clients be totally incapacitated from any activity whatsoever.

Unfortunately, many insurance companies and their representatives lead injured workers to believe that they have done something wrong or that they can’t do anything if they can’t work. That is not the case.

When our clients ask us if they can go to a picnic or engage in activities around the house or yard, we advise them to make decisions about what they can and cannot do physically as if they did not have a workers’ compensation case. Specifically we tell them to ask their doctor what they believe their limitations are before engaging in any activities which could worsen their injury.

If an insurance lawyer or insurance adjuster asks our client what they can or cannot do outside of work they then have a direct answer based on what their physical limitations are from the work injury and advise the insurance company that they are engaging in activities within the restrictions of their injury as approved by their physicians.

Employee or Independent Contractor?

By: Sandra Weigel Kokal

Whether you are considered an employee or an independent contractor will determine whether you are entitled to receive workers’ compensation benefits. To determine your status these terms are defined under the Pennsylvania Workers’ Compensation Act.

An employee is considered a servant defined as a person that performs services for another for valuable consideration, usually defined as pay. In addition, if:

1. the manner and means of performing the work are controlled by the master (or employer)

2. the tools needed to perform the work are supplied by the master, and

3. taxes are withheld,

the servant is considered an employee of the master. An independent contractor is not an employee because of the absence of this master/servant relationship.

There are a number of factors the workers’ compensation judge will consider in determining whether you are an independent contractor or an employee. These factors include:

1. the terms of the agreement between you and the employer;

2. the nature of the work;

3. the skill required for performance of the work;

4. whether it is a distinct occupation or business;

5. who provides the tools to perform the work;

6. whether the work is part of the employer’s regular business; and

7. the right to terminate the employment at any time.

Furthermore, in the construction industry there is the Construction Workplace Misclassification Act which must be looked at to determine whether one is an employee or independent contractor. This Act provides that an individual who performs work in the construction industry for pay is an independent contractor if:

1. the individual has a written contract to perform such services;

2. the individual is free from control or direction over the performance of such work; and

3. as to these services, the individual is customarily engaged in such trade, occupation or business.

As you can see, there is a lot to consider in determining if you are an employee or independent contractor. It is important to speak with an attorney to determine your status and your entitlement to workers’ compensation benefits if you are injured performing your job.

If you have questions regarding workers’ compensation benefits, contact an attorney at Abes Baumann.





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