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
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?
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.
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'
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.
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'
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
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
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
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:
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
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
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
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
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
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
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.
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
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
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'
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:
Weeks of Comp.
Index Finger (1st)
Middle Finger (2nd)
Ring Finger (3rd)
Little Finger (4th)
Any Other Toe
Maximum 275 Weeks
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
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
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
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
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.
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.
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.
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
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
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.
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'
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
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.
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.