PENNSYLVANIA EXPANDS WORKERS’ COMPENSATION COVERAGE

Pennsylvania just passed a law which expands the availability of workers’ compensation coverage to small businesses and self-employed individuals. The new law authorizes insurers, including the State Workers’ Insurance Fund, to voluntarily offer workers’ compensation coverage to sole proprietors, partners in partnerships and members of limited liability companies.

For instance, if you work out of the union hall, but you also do side jobs, you can purchase workers’ compensation coverage. If you are injured while working a side job, you will be able to collect workers’ compensation benefits until you recover. We see many individuals who get hurt while working for themselves, on the weekends, and have no income protection.

Likewise, if you run a small business as a sole proprietor or a partnership, you can buy workers’ compensation insurance. This coverage is important even if you consider your job low risk for injury. For example, if you injure your back lifting that box of old records and need surgery, you can protect yourself with a workers’ compensation policy.

We often recommend that our self-employed clients purchase a short-term disability policy and/or a long-term disability policy. We still do. However, a workers’ compensation policy provides more complete coverage than a disability policy in many situations.

Planning is the key to your security - please call our office to review your particular circumstances.

Pennsylvania Firefighters Who Develop Cancer Are Covered By New Workers’ Compensation Law

Pennsylvania Governor Tom Corbett just signed into law a bill that can grant workers’ compensation benefits to firefighters suffering from cancer caused by dangerous carcinogens released from fumes. The new law is effective immediately.

Under the new law, the term occupational disease has been amended to include "cancer suffered by a firefighter which is caused by exposure to a known carcinogen recognized as a Group 1 carcinogen by the International Agency for Research on Cancer." Group 1 carcinogens include asbestos, benzene, coal and other emissions from fumes.

In order to file a claim for benefits under the new law, a firefighter must have served 4 or more years in continuous firefighting duties, must prove direct exposure to the carcinogen, and must have successfully passed a physical examination prior to engaging in firefighting duties. That exam must not have revealed any evidence of the condition of cancer.

This major change in the workers’ compensation law benefits both volunteer and paid firefighters. Of course, a firefighter must still prove that he or she was exposed to the carcinogen while fighting a fire. The presumption of occupational disease can be overturned by evidence that shows that the firefighter engaged in activities outside of firefighting duties that posed a substantial risk of causing the cancer, including the continuous use of tobacco products for 2 or more years.

If you serve as a firefighter, it is our recommendation that you undergo a baseline physical examination as soon as possible. In addition, if you or one of your friends or family are firefighters and are suffering from a cancer which you believe to be related to your firefighting duties, please contact us so that we can review how this new, important law may apply to you.

The NFL has to follow Pennsylvania Law when Player is Injured in Pennsylvania

If you have been following the saga of former Miami Dolphin player Kendall M. Newson, you know that he was injured in a preseason game against the Steelers at Heinz Field and was trying to obtain workers compensation benefits under Pennsylvania law, rather than Florida law. 

Florida law favors the NFL, his employer.  Pennsylvania law is more even-handed.  So, Newson filed his workers compensation claim in Pennsylvania.

You may remember that I spoke about this subject in a prior blog.  Our firm won the case which paved the way for all individuals who are injured in Pennsylvania to get compensated under Pennsylvania law, no matter where they live.

So, the NFL tried to side step Pennsylvania law by going into Federal Court and asking the judge to send Mr. Newsom back to Florida to get his benefits.  Well, Chief U.S. Magistrate Judge Lisa Pupo Lenihan declined the NFL request that she intervene in the Pennsylvania workers' compensation claim.

If Mr. Newson is granted workers' compensation benefits under Pennsylvania law, he would be entitled to $716 a week, (the maximum benefit for the year in which he was injured, even though his salary was much higher), plus coverage for medical expenses from the injury.

The NFL has opposed around 100 players' workers' compensation claims, but Mr. Newson's is believed to be the only one it has taken to federal court.

Judge Lenihan, of the Western District of Pennsylvania, found that there is no legal basis for her to intervene in either an ongoing arbitration in Mr. Newson's case, or in the workers' compensation claim that is moving through a state process. 

The morale of the story.  If you come to Pennsylvania, don't mess with the Steelers and don't mess with the Pennsylvania Workers Compensation Act!   

MISCLASSIFICATION OF WORKERS AS INDEPENDENT CONTRACTORS:

On Feb. 10, 2011, the Construction Workplace Misclassification Act took effect in Pennsylvania.  It is now illegal for any commercial and residential contractor, in Pennsylvania, to misclassifify employees as independent contractors.

The new law lays out a very narrow definition of “independent contractor.”  You cannot be classified as an independent contractor unless: 

1. You have a written contract to perform construction services with the business or person for whom you are doing the work.
2. The individual or business has no control or direction over the the services that you are providing, and:
3. You customarily and independently engage in the established trade, occupation, profession or business that you are doing for the employer.

What does it mean to “customarily engage in an independently established trade, occupation, profession or business”?  All of the below factors must be present: 

1. The individual possesses the essential tools to perform the services independent of the business for which the services are performed.
2. The individual must realize a profit or suffer a loss for the project.
3. The individual must have a proprietary interest in their business. 
4. The individual must have a business location separate from the business or person for whom   the services are being performed. 
5. The individual independently performed the same services for another person, or was available and able to independently perform these services for another person and represented that these services could be independently performed for another person. 
6. The individual must maintain liability insurance of at least $50,000 during the term of the contract.

In order to make sure that businesses or individuals do not coerce a worker into the category of independent contractor, the new law prohibits an employer from requiring or demanding that an individual enter into an agreement or sign a document which improperly classifies you as an independent contractor.  And, of equal importance, an employer may not retaliate against any person who exercises rights under this new law, including the filing of a complaint or reporting an employer’s noncompliance with the Act.   Finally, an employer may not intentionally contract with another employer knowing that the other employer intends to misclassify employees.

Each person who is misclassified is a separate violation of the law.  The Employer is subject to fines for each violation. 

If you feel that you, or someone you know, is being misclassified as an independent contractor instead of an employee, please call our office 888-288-9748 and we will guide you in reporting the violation and your possible remedies for being misclassified.

All Marcellus Shale Workers are Covered by the Pennsylvania Workers' Compensation Law.

Based on a decision of the Pennsylvania Supreme Court, in a case handled by Vincent J. Quatrini, Jr., Esquire, all workers on the Marcellus Shale, who are injured in the course of their work, are covered by the Pennsylvania workers' compensation law.

Therefore, even if you are from Texas or Oklahoma, if you are injured in Pennsylvania while working on the Marcellus Shale, you are entitled to be paid under the Pennsylvania Workers' Compensation Law. Unfortunately, many workers are not aware of this important court decision. As a result, many workers go back to their home state and do not take advantage of the protection under our compensation law. If you have any question about whether or not you are covered by the Pennsylvania workers' compensation law, please call Vincent J. Quatrini, Jr., Esquire, at 724-837-0080, or email him at vjq@qrlegal.com for a free consultation.

The Marcellus Shale discovery has brought new opportunities to Pennsylvania workers. However, unfortunately, many workers will be injured, and some workers will lose their lives as a result of the dangerous nature of the gas drilling industry. Explosions, exposure to toxic chemicals, working on poorly-maintained equipment, are all hazards surrounding the gas drilling operation of the Marcellus Shale.

Was your Employer Uninsured at the Time of your Work Injury?

Injured at work? Did your employer fail to carry workers' compensation insurance, and, therefore, was uninsured on the day that you were injured? What do you do? Do you have to sue your employer? Are you still covered by the Workers' Compensation Act?

If you were injured on or after January 8, 2007, there is good news. Pennsylvania passed a new law which provides weekly disability benefits to injured workers if, at the time of your injury, your employer did not carry Pennsylvania workers' compensation insurance. However, just like any other injured worker, you must file a petition with the Bureau of Workers' Compensation. Our office has filed many of these petitions on behalf of our clients. You must still prove that you were injured in the course of your employment, and that you are unable to do your time-of-injury job. In the typical case, we write to your doctor to obtain medical proof of your disability, and we guide you through the testimony that you will give before a Workers' Compensation Judge.

A special fund for uninsured employers has been set up to pay these claims. Therefore, a Guaranty Fund has the right to contest our petition for benefits. We handle your case just the same as we do for any other client who has been injured, and the employer has denied the claim. Our goal is to get you your weekly disability check and medical coverage for your injury until you are physically able to return to your time-of-injury job.

The formal title for this new law is the "Uninsured Employer Guaranty Fund Law".

Amputation of Toes is a Separate and Distinct Injury from a Partial Foot Amputation.

Under the Pennsylvania workers' compensation law, there is a separate section which outlines the payment of additional weekly benefits to individuals who lose a body part. For instance, if an injured worker suffers the amputation of the big toe on the right foot, that individual is entitled to an additional 40 weeks of total disability benefits. However, agreeing to accept the additional 40 weeks of benefits may be a trap which ends up causing the injured worker to stop receiving the regular weekly disability check. The quirk in the Pennsylvania law is that if your injury is limited to the loss of the big toe, you will be paid 40 weeks of benefits, and your checks will stop. Therefore, it is critical to prove that your injury involves more than your big toe. For instance, if a portion of your foot remains inflamed or painful or limits your ability to ambulate, and this is a separate problem from the loss of your big toe, you will continue to receive your weekly disability benefit, and upon your return to work, you will be paid an additional 40 weeks of checks.

Over the years, we have counseled many, many clients on this critical and tricky question. We, typically, go and meet with your physician to explain this quirky provision of the Workers' Compensation Act. Your physician may think that he or she is helping you by indicating that you have lost the use of your big toe. However, as you can see from above, unless your physician is able to testify that you have a separate and distinct problem with your foot, the opinion of loss of use will hurt you, rather than help you.

Injured Worker Entitled to Act 534 Benefits and Social Security Disability Benefits at The Same Time.

Act 534 benefits are payable to employees of Pennsylvania penal and correctional institutions and mental hospitals. The injured individual is entitled to receive his or her salary until he or she is able to return to work for his or her employer at a salary equal to the salary earned at the time of the injury. Act 534 benefits are separate from the Workers' Compensation Act in Pennsylvania. There is a specific law which protects the above employees. For instance, an employee who is injured in a mental hospital by a patient of the hospital is entitled to receive "full salary". However, "full salary" as stated in Act 534, as amended, 61 P.S. Section 951, does not include overtime and shift differential for an hourly employee. Salary is a term intentionally used by the Pennsylvania legislature for a limited purpose. Salary does not include overtime and shift differential payments. Salary is defined as "fixed compensation paid regularly (as by the year, quarter, month, or week) for services." Overtime and shift differential are not fixed compensation regularly paid. In the Commonwealth Court case of Celi vs. Department of Public Welfare, the Commonwealth Court stated, "If the legislature had intended for overtime and shift differential to be incorporated into Act 534, it could have changed the term to wage or pay instead of salary."

Nevertheless, Act 534 and its companion Act 632, provide a more complete benefit than the Workers' Compensation Act which only, typically, provides for two-thirds of the injured worker's income.

Act 534 and Act 632 benefits mirror the provisions of the Pennsylvania Heart & Lung Act which provide temporary payment of full salary to specific Pennsylvania employees listed under the Heart & Lung law.

Act 534 benefits are also known as "Act 534/632" benefits. This law applies to an employee of a state penal or correctional institution under the Bureau of Corrections of the Department of Justice and any employee of a state mental hospital or Youth Development Center under the Department of Public Welfare. The Act applies to any employee who is injured by an inmate or an individual who has been committed to the mental institution. The Act also applies to any employee of the Department of Public Welfare who volunteers to be a firefighter and is injured while carrying out firefighting duties.

Injured Worker Recovers Weekly Benefits for Hard Metal Disease Contracted in the Carbide Industry.

Hard metal disease, sometimes described as interstitial fibrosis, is a devastating pulmonary condition. We have represented a number of clients in the carbide industry, over the years, who have contracted this insidious and crippling disease. The tungsten carbide utilized to manufacture drill bits and grinding wheels and other high density products settles into the lung causing scarring and restriction of the air sacs. The culprit is usually the cobalt which is utilized in the process. Even when carbide manufacturers implement reasonable safety procedures to avoid the problem, the disease may strike vulnerable individuals. From our experience, short-term or long-term employees can contract the disease. Smokers and non-smokers may acquire the disease.

We have found that it is critical to have our clients examined and treated by pulmonologists - physicians who specialize in pulmonary medicine.

There is only one way to halt the progression of the disease; namely, removal from the exposure to the ingredients of tungsten carbide.

Widow and Children are Covered by a Structured Settlement when Husband/Father is Killed in Pennsylvania Truck Driving Accident.

Our client was fatally injured when he lost control of his rig outside of Pittsburgh, PA. He lived in Ohio with his wife and children. Under the Pennsylvania Workers' Compensation Act, his widow would be entitled to a portion of his weekly compensation benefit for her lifetime or until she remarried and/or co-habitated. At that point, she would be entitled to an additional two years of weekly checks, and the checks would stop. Our client's children would be entitled to a portion of his weekly income until each of them reached age 18, or if enrolled in an institution of higher learning, until the age of 23. (If any one of the children was disabled, that child's benefit would continue until the disability ceased.)

Our client's widow was interested in a future weekly benefit. Our office negotiated with the trucking company, and, eventually, came up with a proposal that paid a lump sum of money to the widow, along with periodic lump sum payments to the age of 65. We also obtained lump sum payouts to the children.

Since the widow was receiving Social Security Disability benefits for her children, she was comfortable giving up the weekly check from workers' compensation in order to have larger payouts over time. This also provided her the peace of mind to know that her children would receive payouts in order to pay for a college education or technical school education down the road.

The use of periodic lump sum and/or monthly payments is called a "structured settlement". A structured settlement is not right for every case; however, as in the above case, it provided long-term financial security for the widow and her children.

All Over-the-Road Truck Drivers who are injured in Pennsylvania are covered by the Pennsylvania Workers' Compensation Act.

Did you know that if you are an over-the-road truck driver who travels to many states around the nation, you may still be covered by the Pennsylvania Workers’ Compensation Act? Our office represented a truck driver who was hired by an Ohio trucking company. Our client was injured in New Stanton, Pennsylvania, and lived in Blairsville, Pennsylvania. The Ohio trucking company did not carry Pennsylvania workers’ compensation insurance. The trucking company owned a parking lot in West Virginia, enabling it to purchase cheaper workers’ compensation insurance under West Virginia law. As a result, the trucking company started to pay our client West Virginia workers’ compensation benefits.

Because he was injured in Pennsylvania, we believed that our client was entitled to be paid under the Pennsylvania workers’ compensation law. We filed a Pennsylvania workers’ compensation claim. The trucking company fought our claim, alleging that the injury was covered by the "extraterritorial" provision of the Pennsylvania Workers’ Compensation Act. Our argument was that the extraterritorial clause only applied to workers who were injured outside of Pennsylvania.

After a 10-year struggle, leading the whole way to the Pennsylvania Supreme Court, we won the case. The Pennsylvania Supreme Court announced that any worker injured in Pennsylvania is covered by the Pennsylvania Workers’ Compensation Act.

In summary, it doesn’t matter where you live. It doesn’t matter where you were hired. It doesn’t matter where your employer is headquartered. If you are driving your rig through Pennsylvania and are injured, you are covered by our workers’ compensation law. This is very significant, because many states like West Virginia, Texas, and Ohio are geared to protect the trucking company and not the injured worker. Pennsylvania gives more complete protection to the injured worker.