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.

 

 

 

By: Douglas A. Williams

In April of 2016, the Pennsylvania Legislature passed the Medical Marijuana Act (or MMA). As many readers are probably aware, the MMA will eventually permit doctors in PA to prescribe marijuana for patients suffering from problems that including cancer, psychiatric conditions, chronic pain, and a wide variety of neurological disorders, among others. The MMA has not yet been fully implemented, but likely will be within the next year.

Injured workers may wonder whether or not workers’ compensation insurance carriers will be obligated to pay for medical marijuana. The MMA provides that, “Nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” On the other hand, the PA Workers’ Compensation Act provides that workers’ compensation insurance carriers must pay for all medical treatment that is reasonable, necessary, and causally related to the work injury. Thus, it appears that there is a conflict between the MMA and the Workers’ Compensation Act. This conflict will likely have to be resolved by the PA appellate courts.

Of course, it is certainly possible that workers’ compensation insurance carriers won’t always refuse to authorize medical marijuana. Indeed, in many cases, medical marijuana may be a cheaper, less addictive, treatment option than more expensive, narcotic medications. In those cases, medical marijuana may be the best option for both the injured worker and the workers’ compensation carrier.

Injured workers–particularly those who work for employers who require drug tests and prohibit the use of marijuana–may wonder how the use of medical marijuana will affect their employment. The MMA does include language that prohibits an employer from terminating or in any way discriminating against workers solely because those workers have been prescribed and use medical marijuana. Confusingly, though, the MMA does allow an employer to discipline a worker for poor performance, even if that poor performance is related to the use of medical marijuana.

If you are an injured worker whose doctor is considering prescribing medical marijuana, contact an attorney at Abes Baumann to further discuss your rights under the PA Workers’ Compensation Act.

 

By: Thomas C. Baumann

Recently, Tom Baumann of Abes Baumann, P.C., was invited by the House Labor Committee of the Pennsylvania Legislature to testify about the historic Protz v WCAB case which Mr. Baumann won before the Pennsylvania Supreme Court. In the Protz case, Mr. Baumann was successful in having the section of the Workers’ Compensation Act dealing with Impairment Rating Evaluations declared unconstitutional. The Legislature is looking to address the issues caused by the Protz case through a new law. The Legislature may be looking to reinstate the use of Impairment Rating Evaluations. Mr. Baumann was asked to talk about the case and constitutional issues involved with potential legislation.

Three other witnesses testified on the same panel as Mr. Baumann. One was a representative of the Bureau of Workers’ Compensation, another was a physician licensed in Pennsylvania who had conducted Impairment Rating Evaluations, and the third was a Worker’s Compensation defense attorney. Each testified regarding the use of the AMA guidelines from his professional perspective.

Abes Baumann P.C. remains heavily involved in defending the interests of injured workers in Harrisburg. If anyone has questions about possible changes to the Workers’ Compensation Act, they should speak to an Abes Bauman attorney. If you have a Worker’s Compensation case, and desire a free consultation with an experienced lawyer in this field, please contact our offices.

Pennsylvania veterans who served in the Persian Gulf conflict between August 2, 1990 and August 31, 1991, have one year, until August 31, 2018 to claim a bonus payment from the Commonwealth of Pennsylvania. This bonus provides $75 per month of service up to $525. The are additional benefits available for survivors of a service-member who died in Desert Shield or Desert Storm.

To be eligible, the veteran must have:

–Served with the United States Armed Forces, reserves, or Pennsylvania National Guard

–Served on active duty in the Persian Gulf Theater of Operations between August 2, 1990 and August 31, 1991

–Received the Southwest Asia Service Medal

–Been a legal resident of Pennsylvania at the time of service

–Been discharged from duty under honorable conditions or currently be still serving

For more details, please visit persiangulfbonus.pa.gov

By: Roger D. Horgan

Pennsylvania law requires the owner of every registered vehicle to maintain at least a minimum level of automobile liability insurance coverage. The law also imposes penalties on those who operate a vehicle without insurance: fines, license suspensions, and reduced rights in civil court. The question arises, however, as to whether or not a negligent driver who causes injury and damages to an operator of an uninsured vehicle is relieved of all responsibility for that negligence simply because the other driver lacked insurance. Does an uninsured driver lose all rights arising from an automobile accident caused by the negligence of another as a penalty for driving without insurance?

The short answer to that question is no, an uninsured driver does not lose all rights when injured by the negligence of another driver. That is not to say that there is no effect on the claim of the injured, uninsured driver. Rather, the price that is paid is a measured one. Aside from fines and potential suspension of a driver’s license, the fundamental penalty imposed under the Pennsylvania Motor Vehicle Financial Responsibility Act is that the uninsured driver is treated as if he had selected “limited tort” coverage. This means that he will have given up the right to pursue claims for non-economic damages, such as pain and suffering, unless he has sustained a serious injury, or some other exception to limited tort applies.

The uninsured driver also loses the right to participate in the first party benefits system established under the law, which is designed to make payment of accident related medical expenses and lost wages quick and easy. However, the uninsured driver is not precluded from recovering these losses from the negligent driver. This issue is addressed in a Pennsylvania Supreme Court decision in the case of Corbin v. Khosla where the Court unanimously ruled that the uninsured driver could indeed recover economic damages from the tortfeasor (wrongdoer). This was a surprising decision in the sense that the tortfeasor stands to pay more in medical expenses to an uninsured driver then he would to one who properly purchased automobile insurance. The Court concluded that the Legislature intended to provide incentives to purchase automobile insurance by imposing fines, suspensions, and the loss of the first party benefit system on those who fail to buy insurance, but that it did not intend to relieve negligent drivers of their responsibility for the injuries and damages they cause.

It goes without saying that one should not drive without automobile insurance in Pennsylvania, but it would be wrong to conclude that all is lost if the victim of automobile negligence happens to be one who lacks auto insurance. If you have been in an automobile accident, or have any questions regarding this particular issue, please contact us.