Independent Medical Examinations

Many recipients of Workers’ Compensation benefits will be required to submit from time to time to a so-called Independent Medical Examination with a physician selected by the Employer/Insurance Carrier. Injured workers should understand that the examinations are in no way independent. Many of the regular providers of these examinations are paid hundreds of thousands of dollars a year by insurance companies to conduct these evaluations. Given the lucrative nature of such a practice, the providers obviously know where their bread is buttered.

Injured workers receiving Workers’ Compensation benefits can protect themselves when they attend such exams. Each worker should time the examination, including how much time they actually spend in the room with the doctor. The worker should, immediately upon the conclusion of the examination, make notes regarding what happened during the exam. After receiving a copy of the report of the examination, the workers should compare the information in the report to the note taken following the exam. He should then discuss any differences between the two with his counsel.

Under Pennsylvania Law an injured worker can have a health care provider of his or her own choosing present at the insurance evaluation. As defined under the Pennsylvania Workers’ Compensation Act, this can include a nurse. If the injured worker has a nurse in his or her family, the worker would be wise to ask that person to attend with them. On occasion, with some of the more egregious providers of insurance medical exams, our firm will hire nurses to attend the examination.

The so-called Independent Medical Examination is one of the pressure points placed on injured workers. If the worker has not talked to an attorney before such an exam is scheduled, our firm recommends a call be placed at that time.

Workers’ Compensation and Pension Benefits

If you receive both workers’ compensation benefits and pension benefits, it’s likely that your employer began reducing your compensation benefits when you started receiving pension benefits.  If so, it’s entirely possible that your employer has been taking MORE of a credit than it is entitled to take under the law. 

The Workers’ Compensation Act allows an employer to reduce an injured workers’ compensation benefits against pension benefits, to the extent that the workers’ pension benefits were funded by the employer.  Most injured workers learn that their employer plans to offset workers’ compensation benefits when they receive a “Notice of Workers’ Compensation Benefit Offset” form in the mail.  In many cases, the employer fails to fully explain how it calculated the offset; or, the calculations, if provided, may seem remarkably complex.  As a result, many injured workers simply accept their employers’ representations regarding the amount of the offset. 

For many years, the attorneys at Abes Baumann have aggressively fought efforts by employers to reduce our clients benefits based on pension payments.  When an injured worker chooses to challenge a “Notice of Workers’ Compensation Benefit Offset” form, the employer bears the burden of proving the extent to which the employer funded the pension.  If the employer is unable to convince the Workers’ Compensation Judge (WCJ) that it funded a specific portion of the pension, the WCJ can disallow ANY reduction.  Even if the Judge allows some reduction, the WCJ has the ability to determine whether or not the amount of the reduction claimed by the employer is accurate. 

We are currently litigating several cases involving former employees of the State of Pennsylvania who are currently receiving pension benefits through the State Employee’s Retirement System (SERS).  We believe that SERS has miscalculated the reduction and, as a result, the State of Pennsylvania has taken a larger reduction than that to which it is entitled.  We also believe that SERS has applied the same, flawed, method of calculation in many other cases. 

If you are an injured worker whose workers’ compensation has been reduced because of pension benefits, please contact our firm.  We can determine whether or not your employer is entitled to an reduction and, if so, whether or not the amount is correct. 

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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