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.