Are you entitled to Specific Loss Benefits?

If you are an injured worker and you’ve been disabled as a result of your accident, you are probably receiving temporary total disability (TTD) benefits.  Those benefits are intended to compensate you for the wages that you’ve lost because of your injury.  TTD benefits are, by far, the most common type of benefits that are paid to injured workers in Pennsylvania.

However, there is another type of benefit available to some injured workers.  “Specific loss benefits” are payable to injured workers who have had a body part amputated or completely lost the use of a body part.  The body part at issue could be as small as part of a finger or as large as an arm or leg.  Unlike TTD benefits, specific loss benefits are NOT intended to compensate an injured worker for wages that he/she has lost.  Instead, specific loss benefits are designed to compensate the injured worker for the loss of his/her body part.  As a result, an injured worker could be entitled to a substantial sum of benefits even if that injured worker missed only a minimal time from work – or even no work at all. 

Specific loss benefits are also payable to injured workers who, as a result of their injuries, have permanent, unsightly scars on their heads, necks, or faces.  In many cases, injured workers can receive benefits for scarring years after they were injured, recovered, and returned to work.  Many injured workers even receive specific loss benefits for scars resulting from surgeries, such as cervical fusions, that were necessitated by work injuries.  

First Thing You Do: Call a Lawyer

If I could have one wish, it would be that, whenever someone was hurt at work they would call an attorney immediately. Because, even the simplest case can become complex without warning, and, the longer one goes without a lawyer, the more complex a case can become. People often think that they do not need a lawyer because their case is simple: I broke my leg at work, of course my employer will take care of my bills and time off. Yes a case can be that simple, but that does not mean your employer or their insurance carrier will do the right thing.

With any job, people often ask, what is the best part? No one asks what is the worst part? The worst part of being an attorney is having to break the news to clients that logic and common sense have no place in the law. This was the first lesson I learned when I began practicing, and it comes up in every case, with every client.

Whether it is explaining to a client how an Independent Medical Exam can actually harm the claim. Or that if you can return to work in some capacity, even at drastically reduced wages, you will be limited to 500 weeks of lost wages benefits. Or that, yes you are entitled to indemnity benefits for your lost wages, all the other benefits you earned, like health insurance for your family are gone.

Some attorneys say, “When in doubt call a lawyer.” I wish they would call an attorney doubt or no doubt.

The Power of the Civil Justice System

Michael Smerconish of CNN comments on the importance of our modern day Civil Justice System. Though often maligned, it is often to only way to protect the public from future harm as seen in the recent problems with General Motors ignition switches. Companies are not going to jump and say they did something wrong. Often, it is only through a lawsuit that we learn about dangerous conditions affecting the public. Watch his commentary here.

What are Punitive Damages?

In some circumstances, a jury is permitted to send a message in addition to making the victim of another’s wrongdoing whole. Sometimes, the conduct of an individual which results in harm to another is so extreme and outrageous that the law permits a jury to award damages intended to notify that particular defendant and others who might consider doing the same thing that society will not tolerate such conduct. In such cases, the defendant will be ordered to pay the normal damages, which usually include pain and suffering, lost wages, medical expenses etc. He may also be ordered to pay punitive damages due to the outrageousness of his conduct. To send a message.

As stated in a recent federal court case, “Pennsylvania law allows punitive damages when a defendant has an evil motive or reckless indifference to the rights of others; such damages are available only when the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct. This type of damage is not compensatory in nature, but is meant to heap an additional punishment on a defendant who was found to have acted in a fashion which is particularly egregious. To establish a claim for punitive damages the evidence must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that he acted, or failed to act in conscious disregard of that risk.” Coello V. Frac Tech Services, LLC, United States District Court, Middle District of Pennsylvania, Civil Action No. 3:13–534(2013)(citations omitted.)

In the Coello case, the Court refused to dismiss a victim’s claim for punitive damages where it was alleged that a serious accident was caused by a truck driver’s extreme sleep deprivation. It was undisputed that the truck driver fell asleep at the wheel at the time of the accident. The victim alleged that the employer of the driver knew or should have known that the driver posed a high risk of harm to others by driving with sleep deprivation. This was because the driver had been scheduled for 60 hours of work over the previous 4 days, and worked during the 19 hours leading up to the accident. This was not a case of simple negligence, but rather one of intentional conduct by the defendant that inherently created a high risk of harm to others. If this conduct is proven at trial, the driver and his employer may face a verdict far above that which would be expected in the absence of such outrageous conduct.

In a case being heard in the Court of Common Pleas of Northampton County, the Court likewise refused to dismiss a claim for punitive damages where the victim alleged that the defendant intentionally blocked all of the lanes of travel on a state highway with a tractor-trailer, knowing that the visibility at this sharp turn limited visibility by oncoming traffic. McPoyle v. Mast Excavating, Inc., No. C-48-CV-2013-7658. The argument was that this driver knew to a certainty that he was creating a high risk of harm to others, but did so anyway. If true, he put his interests far above those of his fellow citizens, and he will pay the price.

Other cases in which punitive damages are routinely claimed include cases in which the defendant drove under the influence of alcohol or drugs, and cases in which establishments serving alcoholic beverages serve a visibly intoxicated person who thereafter injures others or himself. While the courts generally do not favor forcing a defendant to pay for more than the actual harm he caused, there are certain cases where that would just not be enough. Those are cases for punitive damages.

Pennsylvania Supreme Court: “A job must be open and available to count in a Labor Market Survey.”

The Pennsylvania Supreme Court has recently issued a ruling that will help injured workers who are faced with labor market surveys by a vocational expert hired by the workers compensation carrier. In Phoenixville Hosp. v. Workers’ Comp. Appeal Bd., 81 A.3d 830 (Pa. 2013), the court concluded that a job must be actually open and available in order for it to be used to stop or reduce a claimant’s benefits.

Under the Worker’s Compensation act, the carrier has the right to hire a vocational expert and compel the injured worker to meet with that expert. The expert gathers information about the worker’s employment history, educational background, interest and skills. The expert then analyzes the skills the worker has that could be transferred to another job. Then, a review is made of the local job market to identify positions which the injured worker has the physical ability to perform, along with the vocational ability to qualify for the job. Insurance companies often file petitions to stop or lower and injured worker’s compensation based on the opinion of the vocational expert that work exists that the worker is capable of performing.

Claimant’s attorneys have often recommended to their clients to apply for the jobs which are found by the insurance company vocational expert. Not every vocational expert has been willing to notify the injured worker about the jobs as they become available. However, when our firm has been able to get the expert to agree to notify our clients about the job, we have urged them to apply. We felt this was often the best test of whether the job actually existed for our clients and also demonstrated good faith by our clients. The Supreme Court, in Phoenixville Hospital, has now essentially adopted our position. The court has concluded that an injured worker’s application for the job is relevant evidence that has to be considered by the workers compensation judge in a modification petition based on a labor market survey. If the worker applies for the position and is not hired, this can be evidence sufficient for a workers compensation judge to find that the work does not exist such that benefit should be lowered or stopped. This case also clarifies that a job has to not just exist in an abstract sense in that someone is working such a position. The position actually has to be open such that an injured worker could actually get hired for the job. As a result, this case has a favorable outcome for injured workers in the state of Pennsylvania.


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