Stadium Hazards and Workers’ Compensation for Athletes

By: Edward Jaffee Abes

Sometimes professional athletes suffer work-related injuries but not the kind one would expect such as a collision at second base or a hard hit by a linebacker. Former New York Yankee outfielder, Dustin Fowler, found this out the hard way. He suffered a season ending injury when he collided with an electrical box in right-field foul territory while attempting to catch a fly ball. His right knee collided with the unprotected electrical box. The resulting injury, a rupture of his patellar tendon, ended his season before his first major league at bat.

Fowler should be eligible for Workers’ Compensation benefits, but because this electrical box was not wrapped in foam or similar protection, he has filed suit against the Chicago White Sox and the Illinois Sports Facilities Authority in Cook County Illinois.

Hopefully other stadiums will do a check of their facilities so that this type of danger will be eliminated.

Blue Water Navy Vets and Agent Orange–UPDATE 12/18/2018

By: Susan Paczak

Recently, the United Stated House of Representatives passed a bill that gives Blue Water veterans the same presumption of exposure to Agent Orange that those who were “boots on the ground” in Vietnam have had for years. The bill also gives the same presumption to veterans who served in the Korean DMZ from September 1967 until August 1971.

Now before the Senate Veterans Affair Committee, the bill is slated for a hearing on August 1st. The Chairman of the Committee says the bill is a top priority.

If the Senate passes the same bill the House passed, then it goes to the President for signature, and becomes law. If the bill is different from the House bill, then it has to go to a committee made up of members of the House and the Senate. They then have to come up with a bill that both houses will pass, and send to the President to sign.

If the bill is made law, then these Blue Water and Korean vets will be able to get compensation for the same diseases for which other Vietnam vets get benefits. However, it will still be many months until the VA comes up with procedures to process these claims, then more time for the claims to be processed.

Please call your Senators (go to whoismyrepresentative.com to find your Senator’s phone number) to tell them to vote YES on this bill, and to do it fast. Veterans have been waiting long enough! Justice delayed is justice denied.


Some more news on Blue Water vet legislation. The proposed law to expand the Agent Orange presumptive diseases to Blue Water vets came up for a vote in the Senate.  Senator Kirsten Gillibrand D-NY asked for unanimous consent to pass the law. However, when this procedure is used one senator can object and the bill does not pass. One senator, Mike Enzi R-WY objected so the bill did not pass.  It is unlikely it will brought up for another vote before the end of the year. This means that a new bill will have to be introduced in 2019.

Injured Playing on Company Sports Team – Eligible for Workers’ Compensation?

By: Sandra Weigel Kokal

In order to be eligible for workers’ compensation benefits, the law requires that the injury must be sustained in the “course of employment.” When discussing injuries which occur while playing on an Employer’s Sports Team, the following criteria determine whether an injured worker is entitled to benefits: where the employee, whether on or off the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs.

If you are injured while participating on the employer’s softball, baseball, basketball or any type of team, you may be eligible for workers’ compensation benefits. The analysis by the court will be based on the specific facts of your situation. If the employer sponsors the team, pays a membership fee for the team, provides the team uniforms, and in general supports the team, then you will be eligible to collect workers’ compensation benefits if you are injured while playing on the team. The Courts have held that participation on the team actually furthers the business or affairs of the employer.

The same is true if you are injured at a company-sponsored picnic or while volunteering at a company-sponsored event. Again, the Courts have held that attendance at the picnic promotes the employer’s interest in good relationships with and among the employees, which in turn fosters good morale and furthers the business or affairs of the employer. If volunteering at company-sponsored charity run, the participation promotes a positive image of the company which furthers the business of the company. In both these situations, if you are injured while participating, you may be eligible for workers’ compensation benefits.

The facts surrounding your injury should be carefully looked into to determine your eligibility for workers’ compensation benefits. If you have suffered an injury while engaging in an employer-sponsored event, please contact us to discuss your specific situation.

Nurse Case Managers: Injured Workers Beware

By: James R. Burn, Jr.

Earlier this year, I posted a caution about the concerns of signing blank medical authorizations for insurance carriers. Another concern is the insurance carrier sending a nurse case manager with you to your medical appointments. Case managers have a reputation for lobbying doctors against work restrictions.

In other words, if a doctor treating you thinks you should be restricted to sedentary work, the case manager may advocate to the doctor that light or medium duty work is more appropriate. This makes it more likely that a case manager and an insurance adjuster will attempt to use these work restrictions to force an injured worker back to work at a job that is beyond their physical restrictions, hampering their recovery and potentially making the work-related condition worse.

Workers who have suffered work injuries simply want to get better. But often they need time to heal so that they can return to being employees as soon as possible. The impatience, and oftentimes shortsightedness, of the insurance company and their adjusters can hamper the ability of an injured worker to go back to work.

Insurance adjusters are trained on the law. They know every twist and turn that can lead the unrepresented, injured worker into pitfalls that they may not be able to get out of, jeopardizing their entitlement to workers’ compensation benefits.

This firm stands ready to assist anyone who feels they are being pressured back to work or their doctors are being pressured to write work releases that do not accurately reflect their level of disability.

To Apply or Not Apply? Recent Developments in Labor Market Surveys

By: Douglas A. Williams

In Pennsylvania, when an injured worker receives workers’ compensation benefits, the insurance carrier may require the injured worker to meet with a vocational “expert.” After the meeting, the vocational expert will prepare a “labor market survey.” The insurance carrier may then use that document to try to reduce or stop the injured worker’s benefits.

A recent decision by the Pennsylvania Commonwealth Court, Smith v. WCAB (Supervalu Holdings Pa, LLC), A.3d, No. 796 C. D. 2016 (Pa. Cmwlth. 2018), addressed the parties’ rights and obligations when an insurance company files a petition based on a labor market survey. In that case, the Commonwealth Court held that “a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as the claimant (injured worker) is afforded a reasonable opportunity to apply for them.” Furthermore, the Court held that the employer, and not the injured worker, bears the burden of proving all elements of the modification petition, including whether or not jobs remain available for a reasonable time after being identified by a vocational expert. Nonetheless, the Court further concluded that, “if a claimant offers evidence about his or her experience in pursuing the jobs identified in the labor market survey, that evidence can be considered on the issue.”

Furthermore, the Court explained that evidence that the injured worker submitted an application – regardless of whether such evidence is submitted by the injured worker or the employer – does not establish that a prospective job was open and available at the time that the injured worker applied. However, the Court also held, “testimony of an in person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding (that a job was open and available).” Applying that rule of law to the Smith case, the Court concluded that the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) had mistakenly held that it was the injured worker’s burden to prove that all five jobs identified in the labor market survey were not open. Likewise, the Court held that the WCJ erred in concluding that the three jobs for which the injured worker had applied, but had not been interviewed, were open and available. No evidence existed to support that conclusion. However, the Court further determined that the WCJ had properly determined that the positions with AM Guard Security – for which the injured worker had applied and been interviewed– were properly utilized by the WCJ to modify the injured worker’s benefits. The Court stated that the fact that the employee had been interviewed supported the conclusion that the jobs were open and available. Thus, it was proper to modify the injured worker’s benefits based on an earning capacity calculated on the two, AM Guard Security jobs.

Prior to Smith, most attorneys who represent injured workers would advise their clients to promptly apply for all jobs identified in a Labor Market Survey. This may still be the best course of action, but doing so may now incur additional risk. If an injured worker applies for a job and is interviewed for that job, but is not hired, the mere fact of his interview can be used to satisfy the employer’s burden of proof. Without such evidence, the employer might not have been able to satisfy its burden of proof. To receive advice on the best course of action in your case, feel free to contact our firm.


Pain Can Be a Disability

By: Susan Paczak

The United States Court of Appeals for the Federal Circuit has made an important decision about how a veteran can prove they are entitled to compensation for a service-connected disability. In Saunders v. Wilkie, the Court decided that pain itself can be a disability.

To get VA compensation the Veteran must show:

  1. they had an injury or disease in service;
  2. they have a current disability; or
  3. a connection between the injury or disease in service.

In Saunders, the veteran was diagnosed with a knee condition in service. She showed that she had knee pain after service. A VA examiner said the knee pain after service was related to the knee condition diagnosed in service, and it caused her problems with daily activities and caused her to miss work. However, the VA examiner did not find a disease or injury to the knee, just the pain. The VA denied the claim.

The veteran appealed. The VA argued that since she had knee pain after service, but no diagnosed condition, she did not have a current disability for VA purposes. The Court overruled that finding ruling that pain by itself was a disability for VA purposes.

This decision does not mean that just because you have pain from an injury or disease in service, you will automatically receive benefits. You must show that you had a disease or injury diagnosed in service, that you now have pain, and that this pain affects your daily life, including your ability to work. In other words, you still need a medical provider to verify that the pain comes from the problem you had in service and how it affects you.

If you have any questions about how this decision may affect your claim, or any other claim related issues, please call and speak to one of our veteran’s benefits attorneys.

Please note the VA may decide to appeal this decision to the Supreme Court.


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