Written by Attorney Michael O’Donnell
Representing injured workers in Pennsylvania workers compensation cases over the last 15+ years has consistently led to addressing various misconceptions about the way the system works (or is supposed to work). Whether these “myths” are born from misinformed shop talk among co-workers or accepted tactics of employers and their insurance carriers, there is no difference. The bottom line is that they are out there and people believe them. Don’t go it alone. Get advice from a certified Pennsylvania workers’ compensation specialist and someone who knows the law.
“I have to get my medical treatment from the doctor my employer uses”
Many new clients come in saying they received less than satisfactory treatment with a company doctor, but didn’t seek better care because they were told or led to believe that they couldn’t. While it is true that under Pennsylvania Workers’ Compensation laws the employer and its insurance company have some limited ability to control an injured worker’s treatment after a work injury, that ability is not absolute.
There are a number of regulatory requirements that employers must satisfy in order to limit the injured worker’s ability to choose their own doctor. Further, the employer’s so-called control does not allow them to send the injured worker to a specific doctor or facility. The injured worker is entitled to a list of doctors from their employer and gets to choose from the providers on that list. Most importantly, the injured worker can always go wherever they want for medical care after a work injury. The question really boils down to one of, “Who pays?” It’s a complex and often misunderstood area of the law that requires careful legal analysis, especially when time is of the essence in choosing the best healthcare provider to handle your injury.
“Workers’ comp pays two-thirds of my lost wages when I can’t work, right?”
Sometimes. It depends on how much money you were making before you became injured. Each year, the State puts out figures regarding the Statewide Average Weekly Wage for all Pennsylvania workers. From there, your workers’ compensation payment rate is determined based on where you fall on the State’s compensation scale.
In some instances, the injured worker is eligible for 2/3 of their pre-injury wages; in others, the injured worker can actually receive more than 2/3, and in some, the injured worker is eligible for up to 90% of their pre-injury wage. It all depends on properly calculating your pre-injury wage rate and fitting it into the State’s payment scale.
“My employer fired or laid me off while I was out on workers’ comp. They can’t do that”
This happens a lot. Generally, unless there is a pre-injury employment contract, union collective bargaining agreement, or Family Medical Leave Act (FMLA) protection in place at the time the worker is relieved of their position, the termination is not automatically illegal.
The trade-off, however, is that so long as the injured worker has medical limitations related to their work injury that impair their earning capacity, then the workers’ compensation insurer must continue to pay wage loss benefits even after the termination letter comes out. Employees eligible for FMLA can take advantage of the law to hold their job for up to 12 weeks following a work injury. Otherwise, unless an employment contract or union agreement provides for the position being held, the employer is free to end the employment relationship.
Oftentimes this will lead to litigation at a later time through something called a “Labor Market Survey,” where the insurer tries to show that the injured worker can still work somewhere else and make some kind of wage even though their job has been eliminated and limitations from their injury remain. There are a number of ways to fight back against these types of challenges, but thorough advance preparation and communication is key.
“I was sent for an IME with the insurance doctor who said I’ve recovered. My case is over”
Also incorrect—especially when your own doctor, who actually has a doctor-patient relationship with you, has a different opinion. IMEs (Independent Medical Exams) are medical-legal exams coordinated by insurance companies to secure an opinion about the injured worker’s injury description, extent of disability, and more.
More times than not, these exams are pre-determined. Insurance companies often pick doctors who they have a past relationship with and who they know will offer an opinion that is less favorable to the injured worker than their own doctor. Just because the IME doctor says you are better or can do more than your own doctor says does not mean your doctor’s treatment plan and opinions are meaningless. To the contrary, your doctor’s opinions are now more important than ever.
Follow your own doctor’s recommendations—it’s often the best way to recover from your injuries. Also, just because a doctor hired by the insurance company says you’ve recovered does not give the insurance carrier the right to suddenly stop your benefits. Additional legal process is required before the insurer can cut you off.
“My doctor says I have a permanent injury. I can stay on workers’ comp for life, right?”
While possible in some circumstances, it is not likely. When an injured worker is receiving full total disability benefits, there are a number of tools the defense can use to challenge the ongoing right to benefits. The insurer can request additional medical examinations, seek job modifications, or try to cap the claim through an Impairment Rating Evaluation.
They may even seek full recovery opinions from their own doctors in an effort to terminate the claim. Insurance doctors will frequently acknowledge limitations but blame them on factors other than the work injury, such as natural aging or degeneration.
It’s also important to understand that workers’ compensation claims in Pennsylvania can be settled via a lump sum payment. Once an injury reaches a permanent status and all reasonable avenues of treatment have been exhausted, it may be time to consider settlement options. Having your own attorney involved early on to defend against strategic efforts by insurance carriers is your best weapon.