Workers’ Compensation 5

Abnormal Working Conditions

Eric Abes on February 24, 2015

In a recent Commonwealth Court case (PA Liquor Control Board v. WCAB (Kochanowicz), the Commonwealth Court held that experiencing an armed robbery while working in a liquor store was not a normal working condition, and the Claimant is entitled to workers’ compensation benefits for post traumatic stress disorder (PTSD).

In this case, the Claimant had worked for the Employer for over 30 years. He was the general manager in the Employer’s retail liquor store. Near closing time at the store, a masked gunman held Claimant and a clerk at gunpoint while he took the store’s money. When Claimant showed anxiety, the gunman prodded Claimant with the gun to his head and asked Claimant if he was impatient. The gunman then duct taped the Claimant and clerk to chairs, warning them not to call police for at least 20 minutes as he might return.

After this incident, Claimant was unable to return to work. Claimant testified that he continued to fear for his life and feared that another robbery would occur. Medical evidence confirmed that Claimant was suffering from PTSD.

Employer had argued that an armed robbery in a liquor store was not an abnormal working condition as they had provided training on workplace violence, including pamphlets and educational tools on the handling of a robbery. Employer also argued that there had been other armed robberies in nearby stores in the area. Originally, the Commonwealth Court agreed and stated that Claimant could have anticipated being robbed at gunpoint, so this was a normal working condition for his retail liquor store employment. Claimant appealed to the Supreme Court. The Supreme Court remanded back to the Commonwealth Court finding that mental injury cases are highly fact sensitive; therefore, the Court should give deference to the fact finding of the Workers’ Compensation Judge.

The Workers’ Compensation Judge in this case had found that robbery at gunpoint is an abnormal working condition. He stated that the fact that Employer acknowledges that workplace violence occurs does not place workplace violence into the realm of a normal working condition. A gun being held to the back of the head is neither a normal societal occurrence, nor a normal working condition. The Judge also found that, in 30 years of employment there, Claimant had never a gun pointed to his head. Therefore, Claimant had shown that the specific armed robbery here was not a normal working condition. Claimant was properly granted his workers’ compensation benefits.

No two cases are the same. To protect your rights, contact an Abes Baumann, P.C. Attorney today.

The Truth about Workers’ Compensation Fraud

Eric Abes on January 16, 2015

Many media sources speak to the existence of workers’ compensation fraud. The emphasis is normally on fraud perpetrated by injured workers. Unfortunately, the big picture is rarely discussed in our traditional media.

The dollar value of fraud perpetrated by employers and medical providers dwarfs that perpetrated by other players in the system. Of the ten largest workers’ compensation fraud matters in 2014, the only one involving an injured worker was a nurse in Georgia who filed a fraudulent federal workers’ compensation claim. The other nine of the top ten all included employers or medical professionals.

The largest case involved a California medical equipment company which was indicted with multiple felony counts of over billing for therapy machines in the amount of $36 million dollars. The second largest fraud scheme involved medical professionals who were charged in a $25 million dollar workers’ compensation fraud. This fraud involved the creation of a pain relief cream and kickbacks to doctors who agreed to prescribe it.

When you see information about individual workers engaging in fraudulent activity in the traditional media, remember you are getting only part of the story. For more information, see the following articles:

Lowe’s Settled Independent Contractor Misclassification Case for $6.5 Million

Medical Equipment Company Overbills $36 Million

15 Medical Professionals Indicted in $25 Million Scheme – Small Child Dies

Paving Company Cheats System of $4 Million

False Insurance Certificates Check Cashing Scheme Defrauds Insurance Company of $1 Million

Man to Pay $806,000 for Underreporting Payroll to Workers’ Comp Carrier

Paul Johnson Drywall Inc. Agreed to Pay $600,000 in Back Wages, Damages and Penalties

Summit Drywall, Inc. Ordered to Pay $550,000 in Unpaid Wages and Damages to 384 Workers

Drywall Company Owners Arraigned on $420,000 in Fraud Charges

Independent Medical Examinations

Eric Abes on January 9, 2015

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.

“Idiopathic” Falls Are Compensable in PA

Eric Abes on January 5, 2015

“Idiopathic” in medical terms means “unknown cause.” But in the workers’ compensation field, “idiopathic” means “unique to the individual.”

Pennsylvania is one of the few states that find an employee who suffers an “idiopathic fall” while on the job, can collect PA workers’ compensation benefits. The two leading cases in PA that granted benefits for an “idiopathic fall” did not have similar fact patterns.

In one case, the employee fell while on duty at her work station. She sustained a serious head injury when her head struck the linoleum floor. As a result of the fall, she suffered frequent seizures and underwent two brain surgeries. It was unclear how the fall occurred: if the employee had tripped or if she had fainted. The Court held that it did not matter. The Court accepted the conclusion that the employee’s head injury, resulting from her fall at work, caused uncontrollable seizures that rendered her disabled. Workers’ compensation benefits were properly granted.

In another leading case, the employee had an epileptic seizure while driving his car in his employer’s parking lot prior to the start of his workday. The employee lost control of his car and crashed into a few cars before hitting a concrete abutment on employer’s premises. He was killed in this tragic accident. The PA Court found this accident compensable and the employee’s widow was awarded workers’ compensation benefits.

Pennsylvania is in the minority in granting workers’ compensation benefits for idiopathic falls. A majority of the states hold that if a employee has a personal condition that causes the employee to lose consciousness and faint or fall, the resulting injuries are compensable only if the work conditions contributed to the injuries sustained.

Workers’ Compensation and Pension Benefits

Eric Abes on November 13, 2014

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.

Limits of the Independent Medical Examination

Eric Abes on October 15, 2014

Employers are entitled to have an employee examined by their own doctor after an alleged work injury. Many times a client will hear what the “independent” doctor said after the examination and be understandably angry. “How can he say I’m not hurt? I hurt every day. Let him live in my body, then he will see.”

Claimant’s attorneys know that it is the rare defense doctor who will find a claimant suffered a work injury. Claimant is treating with five doctors who all say that claimant has two herniated discs. The lone IME doctor says there is nothing wrong with the claimant. It infuriates attorneys as well but sometimes there is a silver lining. Sometimes the doctor’s arrogance loses the case for the employer.

Claimant is hurt at work. The employer accepts the injury and pays medical and lost wages benefits. Some years later, the employer does not want to continue paying benefits. They send the claimant to be examined. Their doctor testifies that, not only is Claimant perfectly fine, but there was never a work injury in the first place. This is not allowed and can lead to the Judge throwing out all of the doctor’s testimony.

Once a judge decides that there is a work injury the employer cannot go back later and try to argue that no such injury occurred. Likewise, once the employer accepts responsibility for an injury, they cannot reargue it later.

If you were hurt at work, protect yourself. Call an attorney immediately.

Abnormal Working Conditions

The Truth about Workers’ Compensation Fraud

Independent Medical Examinations

“Idiopathic” Falls Are Compensable in PA

Workers’ Compensation and Pension Benefits

Limits of the Independent Medical Examination

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