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Worker's Compensation

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Introduction

Workplace safety hazards are responsible for the disability and death of thousands of working men and women each year. Despite the massive efforts of organized labor to reduce the risk of workplace injury and death, every day you go to work you run the risk of being injured or killed while performing your job.

Awareness of workplace hazards is the most important way of avoiding injuries at work. Unfortunately, many of these hazards are not apparent to the work force and may even be unknown to your employer. Knowing your rights under Pennsylvania's Workers' Compensation Act is therefore of vital importance to every working man and woman in this Commonwealth. In most cases, the rights provided to you under the Workers' Compensation Act are your only rights against your employer when you are injured at work.

All workers' compensation benefits are paid by your employer or its workers' compensation insurance carrier. Too often, employers and insurance carriers are able to avoid their responsibility to injured workers simply because the workers do not know their rights under the Workers' Compensation Act. Next to being aware of the hazards of your particular workplace, the most important weapon you can have to protect yourself in the event of a work-related injury or fatality is your knowledge of your rights under the Workers' Compensation Act.

Who is entitled to worker's compensation?

Covered employees

An employee is anyone hired or otherwise selected by an employer to perform work of any type in exchange for money or other valuables. The employer retains the right to direct the way in which the work is performed and the right to terminate the employment relationship. Excluded from the definition of "employee" are certain independent contractors where the person paying the contractor does not have the right to control the way in which the work is performed. Other exceptions include workers whose rights are covered by federal laws, such as railroad workers and maritime workers.

Covered injuries

Any injury sustained by an employee while in the course and scope of employment is covered by the Workers' Compensation Act. "In the course and scope of employment" means actually performing one's job. Generally speaking, any injury which occurs on the employer's premises during work hours should be considered a covered injury as should any injury which occurs when the employee is doing his or her job, regardless of where it occurs. Injuries which occur at work as a result of horseplay are covered injuries. Self-inflicted injuries, however, are not covered injuries but the employer must demonstrate that an injury was self inflicted in order to avoid its responsibilities under the Workers' Compensation Act.

The types of injuries which give rise to workers' compensation rights obviously include burns, scrapes, sprains, strains, and broken bones. Heart attacks, mental or emotional problems, and conditions such as Carpal Tunnel Syndrome and nerve entrapment are also covered injuries. Generally speaking, any physical or emotional ailment which is even slightly related to one's work should be considered a covered injury for purposes of the Workers' Compensation Act.

Work-related aggravation of pre-exisiting conditions

The aggravation of a pre-existing condition (a physical or emotional condition which was not caused by work) is a covered injury under the Workers' Compensation Act. That is, if performing one's job aggravates a pre-existing medical condition, the aggravation of that condition by performing work duties constitutes a covered injury.

Employers and insurance carriers frequently will deny workers' compensation benefits on the grounds that an "injury" was not sustained at work but rather a pre-existing condition is responsible. The fact that the medical condition which is aggravated by performing one's work duties is not work-related does not mean that the aggravation of that condition is not a work-related injury.

Occupational Diseases

The Workers' Compensation Act recognizes that you are often exposed to highly dangerous, toxic substances in the workplace. The Act identifies specific occupational diseases, and industries in which these diseases are a hazard, which are recognized as "injuries" under the Workers' Compensation Act. These diseases include asbestosis, cancer, black lung, and many other specific occupational diseases. Because the number of occupational diseases which may result from exposure to toxic substances at work is endless, the Workers' Compensation Act also provides that any disease which is contracted as a result of exposure to a toxic substance at work, where that disease occurs more frequently in the workers' occupation than the general population, will be treated as an "injury".

Giving notice to your employer of occupational injury or disease

Any time you have been injured or believe that you have contracted a disease as a result of your work, you have the obligation of notifying your employer of the injury or disease.

For injuries, you must notify your employer that you were injured at work within 120 days of the injury or you will lose your right to workers' compensation benefits.

For occupational diseases, where the relationship of the disease to your work may not be clear, you must notify your employer within 120 days of when you became aware that your disease may be related to your employment and the disease keeps you from working.

Your obligation to give notice is absolute; if you fail to give notice within 120 days, you will, in most circumstances, have waived your right to workers' compensation benefits.

Filing a claim

If your employer denies your claim for workers' compensation benefits, you can file a petition and have your case decided by a workers' compensation judge. An employer has 21 days from the date they were notified of the injury in which they can accept or deny a claim. You must file your claim within three years of the date of the injury or your rights will be lost. For occupational diseases, the three year period starts when you learn that the disease may be related to your work and the disease has caused a wage loss.

Choosing your doctor

The Workers' Compensation Act gives employers some control over your medical treatment for work-related injuries. Whether the employer can dictate where you obtain medical treatment for a work injury depends on whether the employer has posted a list of six health care providers for you to choose from. If the employer has done so, you must be treated by one of the listed health care providers for a period of ninety days after the injury. After ninety days have passed, you can receive treatment from any health care provider you want.

If your employer has not posted a list of six health care providers to be seen in the event of a work-related injury, you may see any doctor of your choice.

The employer must provide written notification to employee explaining these rights and duties. Notification to employee must be evidenced only by a clear written acknowledgement signed by employee that employer provided the information. Failure of employer to provide the information relieves employee's responsibility and employer remains liable for all treatment rendered.

If an invasive procedure (i.e. surgery) is needed during the initial ninety day period, an employee is entitled to secure a second opinion from a doctor of employee's choice and follow that course of treatment but must abide by the following:

1.      The course of treatment and medical procedures designated in the second opinion shall be performed by one of the employer's doctors for a period of ninety days from the date of the visit with the second opinion medical provider; and

2.      Employee must comply with this additional 90 days of treatment with the employer's doctor or the employer will be relieved from liability for payment of medical bills incurred as a result of the alternative course of treatment.

After the 90 day period, employee can choose a health care provider but must notify the employer within 5 days of the first visit. Employee's failure to notify employer relieves employer from payment of medical bills.

When you have seen a doctor of your choice for treatment of a work injury, you must provide your employer with the name and address of the doctor or health care provider within five days of your first visit in order to have the employer pay your doctor's bills. Your doctor will then have to provide the employer with periodic reports about the treatment you have received. The first report must be sent to your employer within ten days of the first treatment. Reports then must be provided on a monthly basis for as long as you treat with that doctor for the work injury.

If you suffer from a condition or disease that you believe but are not sure is related to your work, it is very important to tell your doctor about your job, the type of physical activities you are required to do and any toxic substances you are exposed to. Your doctor can then advise you if your problem is or may be work-related.

Worker's compensation benefits available

The Workers' Compensation Act provides for wage loss benefits for total and partial disability, benefits for the loss of use of bodily parts, hearing, eyesight, facial scarring and medical benefits. Workers' compensation benefits ARE NOT subject to federal income tax.

Wage loss benefits: total disability

Where a work injury or occupational disease has kept you from working and you have suffered a wage loss, you are entitled to wage loss benefits for either total or partial disability. Wage loss benefits for total disability are payable when, as a result of a work injury or occupational disease, you are unable to perform your regular job and the employer has not made alternative work that you can perform available to you.

Wage loss benefits for total disability are subject to a weekly cap which increases every year (the state wide maximum weekly compensation benefit for 2000 is $611.00 per week). Wage loss benefits for total disability are payable for as long as you are unable to perform your regular job or other work that is actually available to you.

Wage loss benefits: partial disability

If you are unable to perform your regular job due to your work injury or occupationally related disease but are able to perform other work within your physical limitations, but for less pay, you are entitled to partial disability benefits. Wage loss benefits for partial disability are calculated by taking two thirds of the difference between your pre-injury average weekly wage and your weekly earnings after the injury or disease.

Wage loss benefits for partial disability are payable for a period of 500 weeks (nine years, forty weeks). In calculating the partial disability rate, lost overtime should always be considered.

Any employee injured after June 24, 1996 who is receiving total disability for two years (104 weeks) is required to submit to a medical exam at the request of the employer within 60 days in order to determine degree of impairment. The degree of impairment is determined by a doctor chosen by agreement of the parties or designated by the Department of Labor. The determination of the degree of impairment is made pursuant to the American Medical Association "Guides to the Evaluation of Permanent Impairment."

If impairment is found to be 50 percent or less of total body impairment, then the employee shall receive partial disability for a period of 500 weeks. In cases of partial disability, the earning power of the individual will be determined, following an interview by a vocational expert selected by the employer. Partial disability applies if the individual can engage in some type of "substantial gainful employment" as determined by the vocational expert regardless of whether or not a specific job vacancy exists, or whether the individual would be hired. The employee on partial disability would have his compensation reduced by two-thirds of the difference between his time of injury wage and what is determined to be his earning power.

At the request of the employer, any individual may be required to submit to no more than two independent medical examinations per year. An employer may show, at any time prior to or during the period of partial disability, that the employee's earning power has changed with the result that the compensation would be modified. The employee would have the right to appeal the change to partial disability, and total disability benefits would be continued until it is agreed, or adjudicated, that the employee's condition has improved to an impairment rating of less than 50 percent. Partial disability cannot exceed 500 weeks regardless of the changes of disability that may occur thereafter as long as the impairment rating is less than 50 percent.

Notice of temporary compensation payable

If your employer has not decided whether to treat an injury or disease as compensable under the Workers' Compensation Act, it may send you a Notice of Temporary Compensation Payable. This notice will state that the employer will pay you compensation benefits until it decides whether your injury or disease is compensable. Temporary compensation benefits are payable up to ninety days. In order to stop paying you temporary compensation benefits, the employer must either send you a Notice of Stopping Temporary Compensation Benefits within five days of your receiving your last check or send you a Notice of Denial within the ninety day period that temporary compensation benefits are payable. If your employer fails to do either, benefits should continue after the ninety day period.

Medical benefits

The Workers' Compensation Act makes it your employer's responsibility to pay for all reasonable and necessary medical treatment required as a result of a work injury or occupational disease. Your employer is required to pay medical bills within thirty days of receiving of your doctor's bill and report. Be aware, payment of medical bills alone, without payment of workers' compensation benefits, does not mean an employer has accepted liability for your injury.

Your employer can challenge the reasonableness and necessity of treatment or challenge the causal relationship of any bill. Where your employer refuses to pay your doctor's bill or when your employer challenges the reasonableness or necessity of your treatment with your doctor, either you or your employer may request that a Utilization Review Organization review the dispute. When you or your employer has requested review by a Utilization Review Organization, the Organization must issue its opinion within thirty days. Regardless of whether you or the employer has requested review, the employer is responsible for paying for the first utilization review. If you or your employer disagree with the determination of the Utilization Review Organization, a Petition for Review may be filed and the issue will be decided by a workers' compensation judge.

If your employer does not pay an entire medical bill which was incurred for treatment of a work injury or occupational disease, the doctor or health care provider is not permitted to seek the balance from you.

Medical benefits for work injuries and occupational diseases are payable for as long as you require treatment provided that the treatment continues to be reasonable, necessary and related to the work injury or occupational disease.

You are entitled to reimbursement for any travel expenses incurred in order to obtain medical treatment ONLY where you have received treatment outside of your community and that type of treatment is only available outside of the community where you live. Travel expenses which are subject to reimbursement include mileage, bus fare, tolls and parking expense.

Specific loss benefits

If your hand, finger, arm, leg, foot, toe, your hearing or your sight has lost some or all of its function due to your work, you may be entitled to benefits for that loss. These benefits are payable regardless of whether you lost wages as a result of the injury or condition in question. The bodily part need not be amputated or rendered totally useless to be compensable. The legal test is whether the bodily part, or eyesight has been lost for "all practical intents and purposes". For specific loss of bodily parts or eyesight, the Workers' Compensation Act provides for a specific period during which compensation benefits are paid as well as a "healing" period during which benefits are paid.

Scarring of the head, neck, or face caused by a work injury is also compensable as a specific loss with a maximum of 275 weeks of compensation payable. The amount of weeks awarded is at the discretion of the workers' compensation judge.

If you have only lost part of the use of a finger or toe, you may be entitled to receive one half of the compensation provided in the Workers' Compensation Act. Set forth below are the periods of time for which compensation is payable for the various specific losses recognized by the Workers' Compensation Act:

For hearing loss, the amount of loss is determined by comparing an employee's audiogram (hearing test) results with the AMA Guides to the Evaluation of Permanent Impairment. You must have a work-related hearing loss of 10% or more in both ears in order to recover benefits. If you have hearing loss in one ear caused by a traumatic work event, you may be entitled to benefits.

Workers' compensation benefits for fatality

Where an employee dies from a work injury or occupational disease, the Act provides for specific types of workers' compensation benefits including wage loss, medical expenses and burial expenses.

The widow, widower or dependent children of an employee who dies from a work injury or occupational disease are entitled to wage loss benefits in the amount of two thirds of the deceased employee's highest average weekly wage. Widows and widowers are entitled to these wage loss benefits if he or she was living with and at least partially dependent upon the deceased employee at the time of death. These benefits are payable to a widow or a widower for life unless the widow or widower remarries, in which case the benefits are payable for two years after the remarriage.

Dependent children are also entitled to wage loss benefits. As long as the children or child are under the age of 18. Benefits are payable after the age of 18 as long as the child is enrolled in college.

In the event of a fatality, any medical bills incurred as a result of the work injury or occupational disease which resulted in death are the responsibility of the employer.

In addition, the Workers' Compensation Act provides that the employer must pay a burial expense up to a maximum of $3,000 in the event of a work-related fatality.

When the company accepts your claim - being on workers' compensation

If your employer has accepted your claim, or a judge has awarded you benefits, you must be aware of your obligations under the Workers' Compensation Act to maintain eligibility for benefits. There are income reporting requirements which each employee receiving workers' compensation must follow or potentially risk fraud charges. You should also understand the duties imposed on your employer when it seeks to stop paying your workers' compensation benefits.

Generally speaking, an employer who is paying workers' compensation benefits for wage loss CANNOT simply stop paying benefits without the benefit of either your written consent or a workers' compensation judge's decision. The ways in which you can consent to having your workers' compensation benefits cut off and the circumstances when you should consider such consent are set forth below.

Agreements and supplemental aggrements for compensation

Where the employer is paying wage loss benefits under either a judge's decision or after it has issued a Notice of Compensation Payable, and wants to decrease or eliminate your benefits, it will usually employ an Agreement for Compensation or a Supplemental Agreement. These forms should be inspected carefully before you sign and should set forth not only any compensation benefits to which you will still be entitled under the agreement but also the way in which your benefits will be stopped.

Termination of benefits

You should agree to a termination of your workers' compensation benefits by signing an Agreement for Compensation or a Supplemental Agreement which provides that benefits will be "terminated" IF AND ONLY IF your doctor has advised you that you suffer no residual effects of the work injury, that no treatment will be required in the future AND you have returned to your time of injury job without any wage loss. If you have agreed to a termination of your benefits, you have agreed that you have healed completely from your work injury and that you no longer suffer a wage loss as a result of that work injury. If you have not completely healed from a work injury or are still sustaining some form of wage loss, including lost overtime, you should not sign Agreements or Supplemental Agreements for Compensation which provide that your benefits will be "terminated".

The final receipt

Where the employer believes that an employee has completely healed from a work injury or occupational disease and that the employee has returned to his time of injury job without a wage loss, the employer may ask the employee to sign a Final Receipt. Unfortunately, many employers represent to the employee that a Final Receipt is merely a receipt for a workers' compensation check. Signing a Final Receipt is an acknowledgement by the employee that he or she has fully healed from the work injury and has returned to work without a wage loss. If, at the time an employee signs a final receipt, he or she is either not completely healed from the work injury or is sustaining a wage loss, a petition may be filed before a workers' compensation judge to set aside the Final Receipt.

Suspension of benefits

Workers' compensation benefits should be "suspended" when you have returned to your time of injury job without any wage loss, but have not completely healed from the work injury. If your doctor has advised you that you need periodic check-ups and treatment for the work injury or, for any reason, you have not completely healed, but you have returned to your time of injury job without wage loss, you are entitled to a "suspension" of benefits. A suspension of your workers' compensation benefits is an acknowledgement by your employer that medical treatment and possibly wage loss may occur in the future as a result of the work injury. A suspension of workers' compensation benefits lasts for a period of 500 weeks. During the period of suspension, the company should pay any medical bills related to the work injury. In addition, it should be easier to receive wage loss benefits if a wage loss occurs in the future as a result of the work injury.

If you have returned to your time of injury job without a wage loss and have been advised by your doctor that you are not completely healed or that future treatment may be necessary, you should sign an Agreement or Supplemental Agreement for Compensation providing that benefits are to be "suspended".

An employer can suspend compensation during the time in which an employee has returned to work provided that notification is given to the employee. The employer must notify the employee and the Department of Labor by mail within seven days of the suspension.

If the employee desires to contest the facts in the notification, a special supersedeas hearing can be requested by the employee on a Department notification form. The employee would have 20 days to file the notice of a challenge with the Department. A special supersedeas hearing would be held within 21 days. If no challenge is filed within the 20 days, the employee is deemed to have admitted a return to work at time of injury or greater earnings.

The employer's notification would have the effect of a fully binding agreement to suspend benefits. The same notification procedure can also be used by an employer who is seeking a modification of benefits.

Employer cannot suspend, terminate or decrease compensation benefits without a supplemental agreement, final receipt or filing a petition alleging a return to work or full recovery as set forth above without being subject to a penalty.

An adverse party who has been served proper notice of a Claim Petition has 20 days to file an Answer with the Department or judge. Every fact in a Claim Petition not specifically denied in the Answer from an adverse party shall be deemed to be admitted. However, a judge may require proof of fact. If the adverse party fails to answer, appear or be represented at the hearing, the judge must decide the merits on the basis of the petition presented.

Special supersedeas

Any petition to terminate, suspend or modify benefits will automatically contain a request for a supersedeas if the petition alleges that the employee has recovered from the work-injury and is accompanied by a physician's affidavit based on an examination completed within 21 days of the petition filing.

A supersedeas hearing shall be held within 21 days of the filing and the Worker's Compensation Judge shall rule on supersedeas within seven days of the hearing. The judge must grant the supersedeas if employer provides evidence of a change in medical status or any other evidence relating to modification or suspension is submitted. Unless the employee provides compelling contrary evidence that he is likely to prevail, benefits will likely be suspended. The ruling of the judge cannot be appealed.

The supersedeas provision may affect all injured workers regardless of date of injury.

Notification requirements

The employee who has filed a Claim Petition, is required to report a change in employment status no later than 30 days after employment occurs and must cooperate with the employer in the investigation of employment.

Employer may request employee to fill out a verification of employment which must be filed by employee within 30 days of receipt. If the verification form is not returned, employer can stop payment of benefits until the verification is received. Such verification by the employer can be requested twice a year.

Upon request, the employee must provide employer proper authorization to secure information regarding receipt of Social Security benefits. The employee is required to report regularly to employer the receipt of unemployment compensation, wages, Social Security or severance pension which post date the compensable injury.

Without a doubt, these notification requirements and verification forms will be the cause of confusion and litigation regarding whether they were received in a timely matter.

Fraud

What constitutes worker's compensation fraud is expanded to include any employee who knowingly and with intent to defraud fails to report required information about employment or self-employment, including wages, dates of employment or self-employment, and the names of employer. It is also fraudulent for an employee to receive total disability benefits while employed or receiving wages. Nothing prevents the prosecution of anyone under 18 years of age for fraud. There is a five year statute of limitations for fraud prosecution.

Violations of the fraud provisions shall result in fines of $5,000 for the first offense, $10,000 for the second violation and $15,000 for every subsequent violation. Each day alleged fraud occurs can potentially become separate misdemeanor counts for fraud.

Layoff

Under present case law, if an individual working restricted duty due to a work injury is laid-off, the employer is obligated to reinstate wage loss benefits. In most cases, the employer will not do so voluntarily and a petition to reinstate benefits must be filed by the employee. Where the employer demonstrates that his or her workers' compensation benefits were improperly suspended (either the employee had not completely healed from the work injury and/or was incurring a wage loss as a result of the injury) and was subsequently laid off, the employer must then demonstrate that either the employee was completely healed from the work injury at the time of the layoff or must reinstate workers' compensation benefits. If the layoff was for purely economic factors and the employee's layoff is not related to the work injury or employee's inability to work, it is much more unlikely that benefits will be reinstated.

Job availability: your rights and responsibilities

If you are receiving workers' compensation wage loss benefits, your employer may attempt to return you to work either in a light duty position for that employer or by hiring a vocational rehabilitation company to find a job for you within your physical restrictions. Both you and your employer have certain rights and obligations in this situation. If you fail to comply with the return to work effort, you risk losing your workers' compensation benefits.

The first step an employer must take before making work available to you is to receive medical clearance that you are able to perform the type of work they are making available. In most cases, they will seek medical clearance from a physician of their choosing. You are obligated to subject yourself to an examination by a physician chosen by your employer periodically when you are on workers' compensation.

Before your employer can attempt to have you return to light or restricted duty work, it must first receive and provide you with the written opinion of its physician as to the type of work you are able to perform. If your employer tells you that a light or restricted duty job is available for you and has not told you that this job has been approved by a physician as a job you are capable of performing, you do not have to return to that job. In that regard, the employer is obligated to advise you that a specific physician has approved you for a certain level of work and that a job within those restrictions is available for you. The employer is not required to receive medical approval for every specific job but rather for a certain level of work capability (light work, sedentary work).

If the employer has advised you that a physician has approved you for a certain level of work and that a job within those restrictions is available for you, you have certain rights and responsibilities. Primarily, you have the right to get the opinion of your doctor as to whether you can perform the type of work that has been made available. If your doctor does not believe you can perform that work, he should notify your employer in writing of this fact and the reasons that you cannot perform the work. While you do not have to return to work in this situation, it is likely that the employer will eventually file a petition and have the workers' compensation judge decide which opinion, the employer's physician's or your own physician's, should be followed.

If your doctor believes that you are able to perform the type of work the employer has made available to you, you must attempt to perform the work. You should keep in contact with your physician once you have attempted to return to work and report any difficulties you may be having. If the job you return to pays you less on a weekly basis than your pre-injury job, you are entitled to partial disability benefits for a wage loss.

Where the employer has retained a vocational rehabilitation company to find employment opportunities for you, you are obligated to apply for every job which you have been notified about so long as the employer has received medical clearance. As a general rule, you should apply for every job you are notified about even if you believe you could not perform the job or that you, for whatever reason, are not suited for the job.

If applying for the job does not result in actual employment, you are still entitled to receive the full amount of your weekly wage loss benefits. In order for the employer to avoid paying you wage loss benefits because of available restricted duty work, the job has to be actually available. That is, you have to be offered the job. If you are offered a job and refuse for reasons unrelated to your work injury, your workers' compensation benefits will be reduced from total disability to partial disability.

The employer's ability to compel you to apply for jobs is not unlimited. An employer is obligated to use "good faith" in returning you to some form of gainful employment. While there is no hard and fast definition of "good faith", the employer cannot require you to drive outside of your general community to apply for jobs and must take into account your available means of transportation to apply for jobs (if you do not own a car, the employer must make sure that public transportation is available to you). While the employer may violate its obligation to use good faith in attempting to return you to work in numerous ways, as a general rule, you should still attempt to apply for any job you have been made aware of by your employer or its vocational rehabilitation company.

You are also obligated to use good faith in the process of applying for any jobs made available to you. You must appear for any interview and conduct yourself appropriately. While you cannot mislead the prospective employer when you are being interviewed and filling out your application, you are not required to keep secret the fact that you are on workers' compensation for a work injury and your physical restrictions. If you are found by a workers' compensation judge to have willfully sabotaged job interviews, your benefits will be modified.

Refusing medical treatment

Your workers' compensation benefits, both wage loss and medical, can be terminated if you refuse reasonable and necessary medical treatment for a work injury. The employer, of course, must first file a petition if you have refused to undergo suggested medical treatment. If your treating physician does not believe you should undergo the suggested treatment, he or she should advise the employer in writing. In this situation, a workers' compensation judge will have to decide whose opinion, your doctor's or the employer's doctor's, should be credited. If the workers' compensation judge decides that you should undergo the medical treatment, your choices are to either undergo the suggested treatment or to lose your workers' compensation benefits.

Credits and offsets

For injuries occurring after June 24, 1996, worker's compensation benefits are offset by one-half of "old age" Social Security benefits unless Social Security eligibility occurred before the work-related injury. Employer funded pension benefits and severance pay will be offset if it is received from the employer who is directly liable for the payment of the workers' compensation benefits except in cases in which the compensation benefits are for a specific loss (i.e., scar, disfigurement, amputations) rather than a disability.

Settlement

If you are receiving workers' compensation benefits for a wage loss, you may be approached by your employer or its insurance company and offered a "lump sum" to settle your workers' compensation case. While this is certainly legal and in many cases appropriate, you should not agree to settle your workers' compensation claim for a lump sum without first talking with either your union representative or an attorney experienced in workers' compensation.

If you agree to settle your workers' compensation case for a lump sum, you will no longer receive weekly wage loss benefits but instead will receive one lump sum. If you have agreed to commute your workers' compensation claim, your employer remains responsible for the payment of your work-related medical expenses. If you agree to compromise and release your claim, you may be giving up future payment of work-related medical expenses and the ability to re-open your claim for total disability if that should occur.

Workers' compensation benefits and retirement

If you are receiving workers' compensation benefits for wage loss and you retire, your retirement should have no effect on the amount of workers' compensation benefits you receive or how long these benefits last. Many pension agreements, however, provide that a pension will be reduced or offset by the receipt of workers' compensation benefits. You should therefore consult with your union representative before deciding to retire if you are presently receiving workers' compensation benefits.

If you retire before receiving or filing for workers' compensation benefits and you retired in whole or in part as a result of a work-related injury, condition or disease, your retirement should not preclude you from receiving workers' compensation benefits. If, however, you have retired for reasons unrelated to your work injury, condition or disease and you had no intention of returning to the work force, this may preclude you from receiving workers' compensation benefits. If you feel that you are forced to retire in whole or in part as a result of a work related injury, condition or disease, you should make it clear to your employer when you are retiring that your work injury, condition or disease has played a role in your decision to retire.

Other rights available to injured workers

Although your only avenue to recover money against your employer as a result of a work injury or occupational disease is the Workers' Compensation Act, very often work injuries and occupational diseases give rise to other rights outside the Workers' Compensation Act.

Rights against third parties

If your work injury or occupational disease was caused by either: 1) a product or piece of machinery manufactured by someone other than your employer, or 2) the conduct of someone at the workplace who is not an employee of your employer, such as an independent contractor, you may have rights against these third parties.

If you have been injured by any product in the work place, you should consider a lawsuit against the manufacturer of that product. Product manufacturers are obligated to supply products which are not dangerous for their intended use or, if they are dangerous when used as intended, to provide adequate warnings of the danger. You should consult an experienced attorney if your injury or disease resulted from a product supplied to your workplace by someone other than your employer.

You should also consult an experienced attorney if you believe your injury was caused by the conduct of someone else at your workplace who is not an employee of your employer.

If you recover money damages from a third party as a result of a work injury or occupational disease, you may be required to pay back some of that money to your employer or its workers' compensation carrier if you have been paid workers' compensation benefits for the injury.

Social Security disability benefits

You may be entitled to Social Security Disability benefits if you have a physical problem or a combination of physical problems that prevent you from performing most types of work, regardless of whether your physical problem or problems are work-related. If you have been out of work as a result of a physical problem or a combination of physical problems for six months or more, you should apply for Social Security Disability Benefits at the social security office located in your community. The initial application for Social Security Disability Benefits may be denied. If this happens to you, you should request "reconsideration". If you have been denied Social Security Disability benefits after reconsideration, you are entitled to a hearing before a social security judge. You should contact an experienced attorney after being denied after either the initial application or upon reconsideration. Most attorneys experienced in representing social security disability employees will agree to represent such a employee on a contingency fee basis. Any attorney's fees to which the lawyer may be entitled must then be approved by the Social Security Administration.

Unemployement compensation benefits

Unemployment compensation benefits are available to workers who have lost their jobs for any reason unless the job was lost as a result of the willful misconduct of the employee. If you receive unemployment compensation benefits and then receive workers' compensation benefits for wage loss for any injury occurring after September 2, 1993, your workers' compensation benefits for wage loss will be reduced by any unemployment compensation benefits you receive.

Americans with Disabilities Act

The Americans with Disabilities Act provides injured or disabled employees with valuable rights which are enforceable in Federal court. If you are not working because you are unable to perform your last job as a result of a physical impairment or disability, regardless of whether this impairment or disability was caused by a work injury, the Americans with Disabilities Act obligates your employer to call you back to work if you can perform the "essential functions" of your job. The Americans with Disabilities Act not only obligates your employer to return you to work if you can perform the essential functions of your job, but also obligates the employer to make "reasonable accommodations" or minor adjustments to your job if doing so would allow you to perform its essential functions. If you believe that you may have rights under the Americans with Disabilities Act, you should contact a lawyer experienced in this area of the law.

Family and Medical Leave Act

The Family and Medical Leave Act covers employers with at least fifty full time employees and gives rights to such employees who have worked at least 1,250 hours within the previous twelve month period. If you and your employer are covered by the Family and Medical Leave Act, you are entitled to twelve weeks of unpaid leave during any one year period for the birth of a child, the adoption of a child, the acceptance of a child for foster care, to care for a spouse, child or immediate family member who suffers from a serious health condition, or for your inability to work as a result of a serious health condition.

The health conditions which are covered by the Family and Medical Leave Act include any condition requiring either inpatient care at a hospital or two or more treatments by any health care provider.

Under the Family and Medical Leave Act, you are entitled to twelve weeks of unpaid leave in any twelve month period. You can choose to take twelve weeks at once or to break it up during the twelve month period. Although your employer is not required to pay your wages during your leave, the employer cannot terminate your employment, terminate your health or pension benefits or otherwise discriminate against you for taking leave.

Conclusion

Knowing your rights and responsibilities under the Workers' Compensation Act is the most important weapon you can have if you or a family member has been injured or killed at work. While you may require the assistance of an attorney knowledgeable in workers' compensation to ensure that all of your rights under the Workers' Compensation Act are protected, you may be able to enforce these rights yourself. If you believe that you have rights under the Workers' Compensation Act that are not being acknowledged by your employer, at the very least see your union representative or contact an attorney.