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.

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.

 

Don’t Sign Blank Medical Authorizations

By: James R. Burn, Jr.

In Pennsylvania Workers’ Compensation, once your claim has been accepted by the insurance company, the defendant’s insurance company is entitled to have you examined two times per year. These exams are called Independent Medical Evaluations.

Occasionally, the workers’ compensation claims adjuster will send medical authorizations to you at your home. They want to check on your medical status. Be wary of these authorizations. Blank authorizations, if signed, allow insurance companies to go after any medical record for any reason even for items that are not connected to your work-related injury.

Insurance companies are always looking for reasons to get out from underneath their workers’ compensation obligations. If you are treating for an ailment or an issue that is non-work related, the defendant’s insurance carrier could try to pin your disability on one of those non-work-related issues in an effort to get out of their obligations to pay your workers’ compensation benefits.

Records in the hands of an insurance company adjuster that are irrelevant to your workers’ compensation claim could be sent to an independent evaluator in conjunction with an exam potentially causing a misinterpretation of those records to occur. In other words, an independent evaluator could attribute your disability to non-work related issues by a misinterpreting or misunderstanding those records.

Never sign blank medical authorizations. Medical authorizations should always be specifically listed for a provider that is treating you for your work-related injury and time limitations should be on those authorizations. We at Abes Baumann are always available to answer any questions about medical authorizations and the “do’s and don’ts” associated with them.

Retaliatory Discharge for Filing Workers’ Compensation Claim

By: Sandra Weigel Kokal

If you file a claim for workers’ compensation benefits and your employer fires you, you may have a claim for retaliatory discharge.

To do so you must establish a “prima facie” case of retaliation. This means you must prove the following:

  1. You were engaged in a protected activity (you were properly performing your job);
  2. your employer took an adverse employment action against you (fired you); and
  3. a casual nexus existed between the protected activity and the adverse employment action (you got hurt doing your job, filed for workers’ compensation and employer fired you).

Once you establish a “prima facie” case of retaliation, the burden shifts to your employer to prove otherwise. Your employer must provide a legitimate reason for firing you. If your employer offers a legitimate reason for firing you, you have to prove that  reason was a pretext and that the real motive was the workers’ compensation claim. You must show that the employer’s reason for firing you was fake and/or made up.

In a recent case, an employee was injured on the job and the company doctor stated his injury was work-related. The employee was in the process of applying for workers’ compensation benefits with the help of the company doctor. The employer fired him 2 days later for “working unsafely.” The Court found this was a retaliatory discharge.

If you are injured on the job, file for compensation benefits and are then terminated, you should seek the help of an attorney.

We’re proud to announce a major award for one of our partners

Everyone at Abes Baumann congratulates Ed Abes on being inducted as a Fellow of The College of Workers’ Compensation Lawyers at their twelfth annual induction dinner on March 3, 2018 in Nashville.

Ed joins his partner Tom Baumann as a fellow, an honor which has been established to recognize attorneys who have distinguished themselves in their practice in the field of workers’ compensation. Members have been nominated for the outstanding traits they’ve developed in their practice of twenty years or more. Even more, they’ve convinced their peers, the bar, bench and public that they possess the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership.

Additionally, fellows stand out to newer attorneys as a model of professionalism in deportment and advocacy; displays civility; is a student of the law and has a thirst for knowledge in all areas of the law that affects how they represent their Workers’ Compensation clients.

Those of us who are privileged to watch Ed’s day-to-day commitment to representing injured workers know this honor is highly deserved.

Ed and fellow partner Tom Baumann were named to the Best Lawyers in America and Super Lawyers lists this year and in numerous years past. Through hard work and dedication to their clients, Ed and Tom have set the example for the attorneys and staff at Abes Baumann.

Major changes are coming to PA’s workers’ comp system – unless you act now!

SB 936, sponsored by Chairman of the Senate Insurance Committee Senator Don White (R-Indiana) and championed in the House by Representative Ryan Mackenzie (R-Lehigh), calls for a dramatic change to the state’s workers’ compensation law and is now pending before the House Labor & Industry Committee,

This bill will establish a pre-approved list of prescription drugs –  a “drug formulary” – for every injured worker. This would allow the insurance companies to overrule doctors’ medical judgment and deny workers the medicine prescribed to them.

It’s worth noting that this bill was written, introduced, and passed the PA Senate in four days without any meaningful public input.

But that doesn’t mean that you need to stay silent. The bill still has not passed the PA House of Representatives.



Please call these instrumental State Representatives – it will only take a few minutes of your time. Follow the provided script and be polite and courteous.

REP. ROSEMARY BROWN – MONROE & PIKE COUNTIES (570) 420-8301

REP. JONATHAN FRITZ – SUSQUEHANNA & WAYNE COUNTIES (570) 253-5533

REP. JIM MARSHALL – BEAVER & BUTLER COUNTIES (724) 847-1352

REP. DAVE MILLARD – COLUMBIA COUNTY (570) 759-8734

REP. TEDD NESBIT – BUTLER & MERCER COUNTIES (724) 458-4911

REP. CHRIS QUINN – DELAWARE COUNTY (610) 325-1541

REP. TODD STEPHENS – MONTGOMERY COUNTY (215) 368-5165

REP. JEFF WHEELAND – LYCOMING COUNTY (570) 321-1270

 

• Hello. My name is _______, and I’m calling to let the Representative know that I’m opposed to Senate Bill 936.

• I’m concerned about how the bill would impact me – and people like me – if I get injured at work.

• By creating a drug formulary, insurance companies can overrule my doctor and deny me the medicine that my doctor prescribed.

• This bill is about putting more money in insurance companies’ pockets, not about what’s best for me if I get hurt at work.

• SB 936 requires utilization review organizations to be certified by some national accreditation agency – likely governed by insurers. This could allow insurers to “stack the deck” and guarantee the outcome of appeals in the workers’ compensation system.

• Under current law, injured workers have given up their right to sue in exchange for a system that provides timely and proper medical care. This is a HUGE hit to the workers’ comp system and the “grand bargain” as a whole.

• SB 936 would hurt me and others who get hurt at work. This bill is detrimental to hard-working constituents.

• Thank you for your time.

 

Thank you for your help!

Do you have any further questions from us? You can always email us at info@abesbaumann.com or call us at 412-228-4786. As always, we’re happy to help.

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