Practice Area: Workers' Compensation

With limited exceptions, Pennsylvania requires employers to carry workers’ compensation insurance.

Employees will be happy to know that workers' comp coverage applies to those throughout their employment. But what if your employer doesn’t have workers’ comp?

First, your employer faces some harsh penalties. It’s considered a criminal offense where the employer faces fines up to $2,500 or a year in prison for each day the employer fails to provide coverage. Each day is considered a separate offense.

Second, suppose a court finds the lack of compliance intentional. In that case, the employer may face felony charges with fines up to $15,000 and seven years of imprisonment for each day they’ve intentionally violated the requirement.

So legally, it’s in a company’s best interest to carry workers comp. But what if your employer doesn’t have workers’ compensation and you’re injured? Other than talking with a work injury lawyer near you, where's that left you?

What Are Your Options with Employers Lacking Workers Comp Coverage?

The good news is that you do have options even if your employer doesn’t have workers’ compensation.

Option 1: Uninsured Employers Guaranty Fund (UEGF)

Many states have a fund to protect workers injured while working for an uninsured employer. Pennsylvania has the UEGF that allows you to file a claim. A workers’ compensation judge oversees your case, and the UEGF assigns a lawyer to defend your claim.

If your employer is uninsured, the UEGF holds them primarily liable, with the UEGF secondarily liable. Your employer then has 30 days to pay the money you’re owed.

Your employer is most likely not going to pay. So, the UEGF makes the payment you would have received from your employer for damages like medical bills, disability benefits, and lost wages.

Now, this approach has some downsides. And unlike the typical workers’ comp claim where you might consider hiring a workers comp attorney, with a UEGF filing, you’ll want a workers comp lawyer representing you.

First, the UEGF has limited financial resources because it’s state-funded. As a result, it could take months to receive payment.

Second, unlike an insurance company that can be penalized for failing to pay within a prescribed timeframe, the UEGF has no obligation.

And finally, the UEGF doesn’t have to pay annual interest on back benefits vs. an insurance company that does. So you’re beginning to see why a work injury lawyer makes sense.

By the way, you must file a claim within 45 days from the date you discover your employer is uninsured. Otherwise, your employer’s obligations cease.

Option 2: Personal Injury Lawsuit

If you decide against filing a UEGF claim, your next best option is to hire a personal injury lawyer and sue the employer. Even though injured employees typically can’t sue their employer for work-related injuries, most states, Pennsylvania included, make exceptions when employers don’t carry workers’ compensation.
One advantage to electing this option is seeking the total amount of your losses. Many states, for example, only pay two-thirds of a worker’s wage loss. Plus, you’ll receive no reimbursement for pain and suffering.

And that’s the other advantage to a suit; you can seek damages for pain and suffering, not to mention punitive damages. Pain and suffering cover not only the injury but also emotional distress. On the other hand, punitive damages reflect damages stemming from the employer’s misconduct. Neither of these damages can be collected through a workers’ compensation claim.

Although you can potentially collect more through a personal injury lawsuit, this approach has its downside. For starters, your case needs to go through the legal process. Unfortunately, that can lead to significant delays in getting payment, months or even years.

Plus, even if you win the personal injury suit, there’s no guarantee you’ll get paid. After all, if your employer fails to carry workers’ comp insurance, what’s to say they’ll pay compensation stemming from your lawsuit?

And yes, there’s the chance you could lose your lawsuit. Unlike workers’ compensation, a no-fault system, you’ll need to prove your employer was a fault for your injury. So, if you elect to take this route, it’s best to immediately talk with a work injury lawyer to start the process and ensure you take the proper steps to file a personal injury lawsuit.

Injured and Your Employer Doesn’t Have Workers’ Compensation?

Give us a call. Our workers’ comp lawyers will work with you to determine your best option for getting reimbursed for your injury. We also have personal injury lawyers on hand to support a potential lawsuit.
High Swartz is a long-standing law firm serving Bucks and Montgomery Counties clients. We offer various legal services to support you with almost any concern.

The impacts of COVID are undeniable. Chief among them has been the proliferation of a WFH (Work From Home) workforce. Gallup reported that 43% of employees work from home at least some time. Businesses and employees have had to adapt to that new reality. One of the questions that arises is whether or not workers' comp benefits apply for WFH.

The short answer is yes. Workers’ compensation benefits may apply for injuries sustained by employees while working from home. Employees are covered for injuries regardless of location, outside or inside the employer’s workplace. The primary consideration is whether the injuries are, in fact, work-related. That said, whether the injury is truly work-related is a more complex question. It comes down to the details.

It’s clear that if an employee slips while moving a box on the employer’s premises while performing work, the corresponding injury is work-related and subject to workers’ compensation benefits. But what if that same action occurs while the employee is working from home? The answer depends on how and why the accident happened.

• Did the injury occur while the employee was doing something on the employer’s behalf? Compare a fall while walking down the stairs to perform a personal household function, versus a fall while walking down the stairs carrying work files to the employee’s at home desk.
• Was the employee required to conduct the activity by the employer? I.e., does the activity resulting in the injury further the interests of the employer.
• Was the action approved by the employer even though it happened off-site? I.e. did the employee take work home on a voluntary basis, or has the employee been authorized or directed to work from home, either part time or full time.

The burden of proof is on the employee. But, if an employee is able to explain how the injury was work-related, they may very well be given the benefit of the doubt. According to courts, it’s irrelevant whether or not the employer has control over the home-based work environment.

Commonwealth of Pennsylvania Rulings

Pennsylvania addressed the issue of workers’ comp for WFH employees during a 2006 case, Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Alston). An employee was working from home and fell down her stairs injuring her neck.

The injury happened when the employee left her basement office to get a drink. When returning to answer the phone, she fell. She filed a claim alleging she was injured furthering her employer’s business interests. The Commonwealth Court ruled in her favor.

The ruling was determined based on two factors:

1. The home office was approved “secondary work premise.” Essentially, the employee’s home was an extension of the employer’s premises.
2. The timing of the injury fell under the “personal comfort doctrine”. The employee was authorized to work from home by her employer and was working prior to leaving her office to get the drink. The Court focused on the their determination that the employee sustained an “injury arising in the course of his employment.”

With regard to “off premises” work injuries, the Commonwealth Court has consistently determined that minor deviations from work, like getting a drink, does not remove an employee from the “course and scope of employment” and therefore an employee may still qualify for benefits. This concept has come to be referred to as the “personal comfort doctrine.” Employees are entitled to deviate from work for personal comfort like going to the bathroom or getting lunch to perform work more effectively.

Addressing Workers’ Compensation Risks for WFH Employees

Generally speaking, courts error in favor of employees regarding distribution of workers’ compensation benefits. The premise is that the Courts are to interpret the facts of a given case in the context of the humanitarian nature of the workers’ compensation law.

By law, employers are responsible for providing a safe work environment regardless of whether an employee is on premises or telecommuting.

A business owner, may take steps to reduce liability for a workers’ compensation claim.

1. Establish policies relating to WFH employees. Create a written policy that governs employees obligations for working from home.
2. Define work hours. WFH workers may fail to take appropriate breaks leading to fatigue. As a result, injuries may occur, including carpal tunnel, neck pain, back pain, and posture issues. Musculoskeletal disorders annually exceed $50 billion in workers’ comp claims according to OSHA.
3. Establish home office guidelines. Make sure employees understand and agree to WFH guidelines. They should have an appropriate workstation setup to prevent repetitive stress injuries.
4. Examine home office setups. By reviewing home office setups, you can eliminate potential work hazards that might lead to an accident.

Filing a Workers’ Comp Claim

Pennsylvania employers are required to carry workers’ compensation insurance. The system of workers’ compensation is considered a no-fault system . If an employee is granted WFH privileges, their home is their workplace and injuries occurring there may result in workers’ comp benefits.

Should an injury occur at home, both the employer and the employee should follow the same protocol as if the injury occurred on the employer’s premises. The first step an employee should take is to report the workers’ compensation claim. Work from home injuries may be viewed with some initial skepticism by the employer and the workers’ compensation carrier, so WFH workers need to pay particular attention to the details surrounding the circumstances that lead to the injury, and making sure they accurately communicate that information to their employer.

The first step for the employer and it’s worker’s compensation carrier is a thorough investigation. Naturally, an immediate on premises investigation may not be possible, but a thorough telephonic fact finding is a necessity. Remember, these claims are highly fact specific.

Talk to a Workers’ Comp Lawyer

If you have any questions or are looking at a workers’ compensation claim, it pays to talk with a lawyer near you. Our local law offices are located in Doylestown and Norristown and now Cherry Hill. We’ve helped countless clients with workers’ compensation claims.

Our law firm offers comprehensive legal services ranging from workers compensation to business law, litigation, and employment law.

Understanding Workers Compensation

If you sustain a job injury or a work-related illness, the Pennsylvania Workers' Compensation Act provides for your medical expenses and, in the event that you are unable to work, wage-loss compensation benefits until you're able to go back to work. This can be a difficult, scary, and confusing process for anyone. Here are some insights to help you better understand workers compensation.

Q: What are some of my options if I'm injured at work?

A: There are a number of potential sources for disability or wage benefits, depending on the circumstances of the individual.  Among the most common sources of disability and wage replacement benefits include:

1. Short or long term disability benefits, often provided either through an employer or via an independently purchased short or long term disability insurance policy;
2. Unemployment benefits, for people who have worked for the amount of time required and who have lost their jobs due to no fault of their own;
3. Social Security Disability benefits, for people who have worked for the amount of time required and who are disabled and unable to work due to a condition or conditions that have lasted or are medically expected to last for more than a year;
4. A lawsuit against the negligent party that caused the loss of income;
5. Workers’ Compensation benefits; and/or
6. Supplemental benefits through your collective bargaining unit or employer.

Q: The insurance company denied my claim. How do I get Pennsylvania Workers’ Compensation Benefits?

A: Your employer and its insurance company have 21 days from the time you notify them of a work injury to accept or deny your claim. If denied, you will need to file a petition to have your claim litigated before a Workers’ Compensation Judge.

Q: How long can I expect this workers' compensation process take?

A: Although no case is the same, The workers’ compensation litigation process can take up to a year. So, frequently, an injured worker may apply for Unemployment Compensation, or Short Term and Long Term Disability, and in some cases Social Security Disability.

Q: How much wage replacement will I receive from workers’ compensation?

A: The general rule is that an injured worker receives 2/3 of his or her pre-tax weekly pay in workers’ compensation benefits. There are multiple exceptions. There are maximum and minimum amounts by law. Wage replacement benefits are based on two thirds of a worker’s “average weekly wage”. The 2020 maximum weekly workers’ compensation wage loss benefit was $1,081.00. That weekly compensation has been upped by $49 in 2021 to $1,130. The rate is based on the injured worker’s “Average Weekly Wage,” which is a number often in dispute.

Q: Can I collect Unemployment?

A: If the injured worker is capable of working, but not at her preinjury job, she may be eligible for unemployment. The injured worker could collect the unemployment benefits, but then the employer would be entitled to a dollar for dollar offset against any worker’s compensation benefits covering the same period.

Q: Do I get paid for my “pain and suffering,” and the interruption my work injury has on my life?

A: Unlike a personal injury action, the Pennsylvania Workers’ Compensation Act pays wage loss and medical benefits related to the work injury, but no pain and suffering, and no loss of consortium.

Q: Is it possible to sue a third party - like the manufacturer of the defective materials I worked with?

A: It is sometimes possible to pursue a personal injury lawsuit against a negligent third party while simultaneously collecting workers' compensation benefits. It would be best to consult a Workers' Comp Lawyer, like those here at High Swartz, to review your options.

Q: The insurance company wants me to go to a specific doctor. Do I have to go?

A: There are two categories of physicians an employer may ask you to see through the workers’ compensation system.

The first are “Panel Physicians.”  If your employer posts a list of physicians designated to treat employees for work injuries, Pennsylvania law requires you to treat with a physician from the panel for the first 90 days of treatment for a work injury. There are exceptions to this rule.

The second category is IME or DME physicians. Pennsylvania law allows the insurance carrier or your employer to have you evaluated by a physician of its choosing at reasonable intervals. These evaluations, known as independent medical evaluations (IMEs) or defense medical evaluations (DMEs), are not for the purpose of treatment. Instead they are designed for the insurance carrier to get an opinion “independent” of your treating doctor regarding the status of your work injury.

There are consequences for not attending an IME.

Q: Can I settle my workers' comp claim for a lump sum?

A: Yes. A Pennsylvania Workers’ Compensation claim may be settled, by agreement of the parties. All aspects of a claim are negotiable in a settlement. After negotiating and reaching an agreement, the parties must file a petition to present the settlement to a Workers’ Compensation Judge, in a hearing, before it can be approved and finalized. There are multiple facets of non-workers’ compensation benefits to be considered as part of any negotiation and settlement.

As a workers comp law firm, we certainly don't expect these FAQs to give you a full understanding of workers compensation. If you are considering filing a workers’ compensation claim, or if a claim has been filed against you, don't go it alone. Please consider contacting High Swartz's Workers' Comp team lead by Thomas E. Panzer at 1-833-LAW-1914 or tpanzer@highswartz.com. Our workers comp lawyers at our Bucks County and Montgomery County law firm are here to assist you.

The information above is general: we recommend that you consult a workers comp lawyer regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

If you contract COVID-19 at work, you may have a compensable Pennsylvania workers’ comp (WC) claim. However, it might not be the easiest route to financial relief.

This blog touches on the process, proofs, and pecuniary benefits of pursuing a workers comp claim.

First Things First

If you believe you’ve contracted COVID-19 at work, the first step in pursuing a workers comp claim is to notify your employer of that belief. Failure to timely notify your employer could result in the claim being permanently extinguished. After notifying your employer, the workers comp carrier will be contacted, and will need to investigate the claim and make a decision to accept, deny, or provisionally accept (accepted, but still needs to be verified) the claim, within 21 days. After this is done, it's might be prudent to consult with a workers comp lawyer near you.

Providing Proof for a Workers Comp Claim

This is where the proofs come in. Under the WC injury provisions, an injured worker needs to establish that the COVID-19 virus was contracted at work, or while the worker was in the course and scope of their employment, even off of the employer’s premises. A travelling employee may have a much more broad “course and scope” than a stationary employee. The employee also needs to establish that the exposure was “related” to the employment.

With COVID-19 being essentially everywhere, proving that the exposure was work related may be challenging. On the other hand, health care workers and emergency services personnel may have an easier time making their case because of obvious exposures. In addition, under the occupational disease standard of the Workers’ Compensation Act, the employee needs only to initially show that the presence of COVID-19 is more prevalent in that occupation. In either event, medical support for your claim is necessary.

If the COVID-19 claim is denied, the process leads to litigation which starts with filing a workers compensation claim with the Bureau of Workers’ Compensation. An injured worker is usually best served to involve knowledgeable injury lawyer to assist them through this process.

Workers Comp Benefits for a COVID-19 Claim

All of this begs the question, what does the injured worker get for the effort of going through this process? With modifications to new and enhanced wage replacement benefits due to the unprecedented COVID-19 pandemic, someone who suffers wage loss due to COVID-19 may be in for a long and complicated battle.

The primary benefits of workers’ comp are wage loss benefits resulting from the illness and medical bills related to the illness. There are certain limitations though. Wage loss benefits are typically two-thirds of an employee’s average weekly wage. There are exceptions. There is also a waiting period.

If the employee loses no more than seven (7) days, no wage loss benefits are payable. On the eighth (8th) day wage loss is payable. If the employee simultaneously receives unemployment compensation (UC), the employer gets a dollar for dollar credit for the UC paid. Please see the High Swartz blog, Can I Collect Unemployment Compensation During the Coronavirus Pandemic?

Regarding medical care, the employee must treat with the posted panel of physicians for the first ninety (90) days of treatment or the bills may not be paid. In the extreme case, workers comp does pay a death benefit to dependents.

FFCR Coverage for COVID-19

Employees should also be aware that effective April 2, 2020, an additional, or alternative, Federal benefit is available for paid leave related to the Coronavirus. The Families First Coronavirus Response Act provides for a wage loss benefit caused by the Coronavirus whether contracted at work or not. Coverage under the FFCR is more broad than the WC Act, but the benefit cap is lower than workers compensation. In any event, receipt of both benefits will undoubtedly be coordinated with credits for one against the other. Please see the High Swartz blog, How the Families First Coronavirus Response Act Will Affect Local Business

Talk with a Workers Comp Lawyer

In summary, lost time wage replacement and payment for related medical care resulting from COVID-19 illness may be covered by workers comp, but subject to the above process and proofs. Benefits will be coordinated with other employer sponsored plans to allow for recovery but not double-recovery.

The benefit landscape directly related to COVID-19 and Coronavirus is changing daily. The new Federal, State, and Employer sponsored benefits may eliminate or mitigate the need to file a workers comp claim. On the other hand, for long term wage loss or death claims, where dependent benefits are at stake, a workers comp claim may be necessary.

If you have any questions or concerns, talk with a workers comp lawyer near you or here at High Swartz in our Doylestown law office. Our law firm provides legal services to clients in Bucks and Montgomery Counties.

Have you suffered a wage loss as a result of accident or work injury?

Our workers comp lawyers here at our Doylestown and Norristown law offices work together to coordinate a strategy to file for a compensation claim and maximize any disability benefits available to someone who has  suffered a sudden or unexpected loss of income due to illness or work injury.

There are a number of potential sources for disability or wage benefits, depending on the cause of the disability and the personal circumstances of the individual. (See, When Unexpected income Loss Strikes Home: What Are Your Options?, December 6, 2017).  A client needs to be advised which benefits are appropriate. Then, those benefits need to be coordinated with any additional benefits available.

This article focuses on compensation claims and benefits. We will discuss what benefits are available through the Pennsylvania Workers’ Compensation system, how to get those benefits, and how those benefits are affected by other available disability benefits.

The Pennsylvania Workers’ Compensation Act provides payment of wage replacement benefits, specific loss benefits, and payment of reasonable and necessary medical treatment related to an individual’s work related injury.  Wage replacement benefits are based on two thirds of a worker’s “average weekly wage”. The 2018 maximum weekly workers’ compensation wage loss benefit is $1,025.00.  The wage loss benefit is paid when a worker is temporarily totally disabled.  A reduced benefit may be paid if the worker is partially disabled.  Additional benefits may be paid, regardless of wage loss, if the worker has suffered a specific loss, like a scar or an amputation.  Any of these benefits, or benefit claims, may be settled for a negotiated lump sum under the Compromise and Release process.

The employer’s obligation to pay workers’ compensation benefits can arise voluntarily or through litigation.  If the employer voluntarily pays, it will issue a document, usually a Notice of Compensation Payable, describing the nature of the injury and documenting the amount of weekly compensation to be paid.  If the employer does not voluntarily pay, then the injured worker must file a petition to be heard by a Workers’ Compensation Judge.

When the employer does not voluntarily pay workers’ compensation benefits, the injured worker is often out of work, without pay. The workers’ compensation litigation process can take up to a year. So,  frequently, an injured worker may apply for Unemployment Compensation, or Short Term and Long Term Disability, and in some cases Social Security Disability.

A complete discussion of each of these alternative benefits is beyond the scope of this article, but the point to know is that each of those benefits may be available, but will likely offset, or  be offset by, the compensation claim and associated benefit.

For instance, if the injured worker is capable of working, but not at her preinjury job, he or she may be eligible  for unemployment.  The injured worker could collect the unemployment benefits, but then the employer would be entitled to a dollar for dollar offset against any compensation claim and benefits covering the same period.

Similarly, when the employer challenges whether the illness or injury is work related, the employee may apply for and provisionally receive, contractual short term and long term disability benefits.  If the illness or work injury is later determined work related, the short term and long term disability benefits may have to be repaid, in whole or in part, depending on the language of the contracts.

In addition, once an injured worker files a compensation claim for short term or long term disability benefits, he or she may be contractually obligated to file for Social Security Disability benefits (SSD).  The injured worker may receive both Social Security Disability and Worker’s Compensation benefits at the same time without credit or offset, but when the injured worker reaches full Social Security Retirement age (SSR), the SSD benefits convert to SSR, and the employer then takes credit for 50% of the SSR benefits paid against any workers’ compensation benefits. It may be beneficial to talk with one of our disability lawyers at our Bucks County and Montgomery County law offices for legal advice.

The employer is also entitled to a dollar for dollar credit for Pension and severance benefits, to the extent those benefits are funded by the employer “directly liable for the payment of compensation”.

The standards for being eligible for Social Security Disability, Short Term and Long Term Disability, and Unemployment will be discussed in more detail through other High Swartz Coordination of Benefits articles.  The point of this article is to emphasize that an injured worker may be entitled to his or her workers’ compensation benefits, plus other benefits; but those benefits must be coordinated by knowledgeable legal counsel involving a workers comp lawyer or even disability lawyer.

Both our workers comp lawyers and disability lawyers at our legal firm in Doylestown and Norristown have decades of experience handling both employees and employers in Pennsylvania. Our Bucks County and Montgomery County workers’ comp lawyers have knowledge and experience in all facets of workers’ compensation and SSDI issues.

• Workers’ Compensation for Injured Workers
• Workers’ Compensation Defense
• Social Security Disability

If you are considering filing a compensation claim, or if a compensation claim has been filed against you, please contact Thomas E. Panzer at 215-345-8888 or tpanzer@highswartz.com. Our workers comp lawyers in Bucks County and Montgomery County are here to assist you.

The information above is general: we recommend that you consult a workers comp lawyer or disability lawyer regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.