Many injured workers often have questions about how and when to file a workers’ compensation claim. They may be left unsure if their injuries qualify for any compensation benefits and the types of benefits they may be entitled. They might even have questions about when an employer is required to start paying benefits.
If you were injured at work, it is important that you understand Pennsylvania workers’ compensation laws and your legal rights. The skilled Harrisburg workers’ compensation attorneys at Schmidt Kramer answer these and other frequently asked questions about Pennsylvania workers’ compensation claims. Schedule a free, no obligation consultation with us to discuss your work injury claim and all the legal options available to you.
Q) What is a Work Injury?
According to Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act:
A work injury is an injury, medical condition or disease that is caused by a person’s work. This includes injuries that occur from accidents, such as slips and falls, as well as occupational diseases that develop because of the job, such as hepatitis or allergies. It also includes an aggravated injury due to a pre-existing condition.
Q) How do I File a Workers’ Compensation Claim?
Immediately report your injury to your employer to begin the workers’ compensation claim process. There is not a specific form that you have to complete in order to file a workers’ compensation claim. However, you should provide as much detail to your employer about your injury, such as when the accident occurred, how it occurred and your symptoms. Your employer might ask you to complete a written accident report with this information.
Q) Is There a Time Limit to File?
You must provide notice of your injury to your employer within 21 days after it occurs, or within 120 days of the injury. However, you should inform your employer as soon as possible after an injury in order to ensure you receive medical treatment and you can establish the link between the accident and your injuries.
Q) What Happens After I File My Workers’ Compensation Claim?
Your employer must report your accident to its workers’ compensation company. The insurance company investigates your claim and determines your eligibility for benefits. This investigation may include:
- A review of your medical records
- An order for a functional capacity evaluation
- An order for a medical examination
- An analysis of your work experience, wages and education
Q) What Workers’ Compensation Benefits am I Entitled to?
The type of workers’ compensation benefits to which you are entitled to depends on the nature of your injury and the losses you incur. Some of the benefits include:
Medical benefits include the costs associated with reasonable and necessary medical care. When you are first injured, your employer provides you with a list of physicians from which to choose. You must receive medical treatment from this person for the first 90 days of treatment, but you can choose your own physician after this time. Your employer pays the cost of these medical treatments through the workers’ compensation policy.
If your injury impairs your ability to return to your job, you may be eligible to receive vocational rehabilitation benefits. This type of benefit provides training or education for a new line of work.
Specific Loss Compensation
In some work injuries, you may receive benefits that are based on certain losses, such as the loss of use of a body part or an amputation. These benefits are based on the particular type of injury you sustained.
Total and Partial Disability Benefits
You may also be eligible to receive a portion of your lost wages. These benefits are based on your average weekly wage, typically two-thirds of the amount you receive each week as your normal rate of pay. In some cases, workers may receive 90 percent of their average earnings, depending on certain factors. However, there are maximum benefit rates.
Q) When Is My Employer Required to Start Paying My Benefits?
An employer is required to start paying benefits on a workers’ compensation claim within 21 days from receiving notice of the injury if the claim is approved. Alternatively, they can deny the claim within this timeframe.
Before you can get benefits for your lost wages, you must have medical proof confirming the following information:
- A description of your injuries
- When you can return to work
- Whether there are any restrictions on the type of work you do
May 11, 2012 – The Commonwealth of Pennsylvania provides an excellent summary of various questions and answers to many issues involving worker’s compensation. Below are some of the more frequent questions and answers. If you still have questions or need an attorney for a work related accident where you or a loved one sustained an injury contact Melissa Leininger at our firm anytime.
In Pennsylvania, disputed workers’ compensation cases are handled by Workers’ Compensation Judges (WCJs) within the Workers’ Compensation Office of Adjudication. There are over ninety WCJs located in twenty-five offices throughout the Commonwealth.
Q) How Does My Case Get To A WCJ?
The injured worker, employer or insurance company files a petition with the Bureau of Workers’ Compensation.
Q) How Will I Know When A Petition Is Filed By The Other Party?
The party filing the petition must send a copy to all other parties. The Bureau of Workers’ Compensation will then send you a “Notice of Assignment” telling you that a petition has been assigned and identifying the WCJ who will hear the case.
Q) What Types of Issues Go Before WCJs?
Common petitions types include: Claim: Used to establish that an employee is entitled to benefits for a disputed work injury.
- Termination: Injured worker is fully recovered from a work injury, and is no longer entitled to any workers’ compensation benefits from that injury.
- Suspension: Injured worker is not fully recovered, but has either returned to work or is capable of returning to available work without a loss of earnings.
- Modification: Injured worker is not fully recovered, but has either returned to work or is capable of returning to available work with some loss of earnings.
- Review: Correct errors in compensation documents (such as description of injury or average weekly wage).
- Review Medical: Establish whether specific health care is related to a work injury.
- Utilization Review: Address whether specific health care treatment is reasonable and necessary.
- Seek Approval of A Compromise and Release: Ask a WCJ to approve a proposed settlement.
- Employee Challenge: Whether a Notification of Suspension or Modification (filed by the employer when the injured worker returns to work) is correct.
Q) How Are Petitions Assigned?
When a petition is filed, the Petitions Section of the Bureau of Workers’ Compensation, located in Harrisburg (“Bureau”) will assign the petition to a WCJ who hears cases in, or near, the county where the employee resides. You will then receive the “Notice of Assignment”.
Q) What Happens After the Petition Is Assigned?
It may be essential that the responding party file an Answer within a specific time limit. Information concerning the filing of the answer is contained on the Assignment Notice.
Any employer receiving a blank answer form should promptly contact the workers’ compensation insurance company or adjusting company.
The WCJ will schedule a hearing shortly after receiving the petition assignment. The WCJ’s office will mail you a written notice telling you the time, date and place of the hearing.
Q) What If I Can’t Get To The Hearing?
If there is a good reason why you can’t attend the hearing, you must tell your attorney as soon as you get this notice. If you don’t have an attorney, you must write to the assigned WCJ and ask for a postponement of the hearing. Explain the reasons you can’t get to the hearing. You must ask the other side’s attorney if there is an objection to the postponement request, and tell the WCJ what the attorney says. You must send a copy of your letter to the other side’s attorney. The WCJ will notify all parties and their attorneys if the postponement is granted.
Not all postponement requests are granted. Never assume that your hearing has been postponed unless the WCJ’s office tells you it has been!
Q) Do I Need An Attorney?
To read more about having an attorney, click here: Lawyer Referral Service
Q) Can I Bring Someone To The Hearing With Me?
You can bring a spouse, parent, or friend with you. They may not speak on your behalf unless called to testify as a witness. If so, they might be instructed to leave the room while other witnesses testify.
Q) What Will Happen At The Hearing?
The WCJ will ask both parties what evidence they intend to present. One or both parties may present testimony or submit documents, or both. The WCJ will set a schedule for the submission of all other evidence. More information concerning the WCJ’s first hearing procedures may also be obtained at the Office of Adjudication Judgebook.
Q) Will I Testify At the Hearing?
The injured worker usually testifies before the WCJ at some point in the case. In many cases, injured workers testify at more than one hearing. Employer representatives also frequently testify before the WCJ. Whether you testify at the first hearing (or at all) depends on the type of petition, whom the law requires to submit evidence first, the WCJ’s case management rules and your attorney’s advice. If you do testify, your testimony will be taken down by a court reporter.
Q) Should I Bring Evidence With Me To The Hearing?
You should discuss with your attorney in advance what items to bring to the hearing. If you do not have an attorney, you should bring at least three copies of any document that you want the WCJ to consider. (One copy is for the WCJ, one must be given to the other party and one is for you.) Since the WCJ is bound by the rules of evidence, the WCJ may be unable to consider some or all of the documents you offer. The WCJ will address this at the hearing if it happens.
Q) Will I Get A Decision At The Hearing?
In disputed cases, no. The law requires the WCJ’s final decision to be in writing. Also, there is almost always more evidence to be given to the WCJ before the case can be decided. It often takes time to gather this evidence, especially medical records and testimony. Even if no additional evidence is needed, both parties usually want to file briefs.
Q) What Will Happen After The Hearing?
In most cases, one or both parties must collect and offer more evidence. Many cases require the scheduling of medical depositions by both parties. It can take a number of months to gather this information. The WCJ often schedules additional hearings to receive this additional evidence.
Q) How Will I Know What The WCJ Decides?
The WCJ must send a written decision to all parties. The decision is sent after all of the evidence and briefs have been given to the WCJ. You and your attorney will receive the decision in the mail.
Q) What If I Disagree With How The WCJ Decided The Case?
You have the right to appeal a WCJ’s decision to the Workers’ Compensation Appeal Board. Information on the time limit to appeal will appear on the WCJ decision’s cover letter. Whether your appeal succeeds will depend on a number of factors. You should discuss any possible appeal with your attorney as soon as you get the WCJ’s decision.
Q) Should I Settle My Case?
You cannot be forced to settle your case. It’s always up to you whether you want to talk settlement with the other party. For more details about the settlement process, read our brochure here: ADR Brochure
Q) How Do I Go About Talking Settlement?
Settlements are negotiated between the parties. If the parties have attorneys, the attorneys usually represent them in settlement discussions. The parties can negotiate directly with one another, or they can use a mediator. The Office of Adjudication provides WCJs who conduct mediations and settlement conferences in litigated cases.
Q) Is There Someone I Can Call If I Have Other Questions?
The Bureau of Workers’ Compensation has Helplines available. These Bureau employees do not provide legal advice. However, they are able to provide answers to many questions concerning workers compensation in Pennsylvania.
Q) I am going to jail for a short time. Will I continue to get my workers’ compensation benefits?
There’s good new and bad news:
Bad news: the insurance company is entitled to a suspension if you are incarcerated post-conviction.
Good news: just as they were able to automatically suspend your benefits, the workers’ compensation insurance company will have to automatically reinstate your benefits upon your release.
Q) I am out of work due to a work injury. I’m getting weekly benefits but it’s not enough. Can I take part of my pension that I’ve earned?
You can take your pension, but it most likely would not be good for your workers’ compensation case. Most pensions are either totally, or heavily contributed to by your employer. If your employer has contributed to your pension, and you decide to take out your pension while collecting wage loss benefits, your employer can assert a credit against your benefits. This means your weekly checks can be reduced AND it will lower the ultimate value of any settlement of your workers’ compensation case.
Even if money is getting tight, you at least want to talk to an experienced workers’ compensation attorney before making a move that could hurt your entitlement to workers’ compensation benefits.
Q) I was recently injured at work and I’m collecting PA workers’ compensation benefits. I’m getting $466.00 per week but I don’t know why. How did they get that number?
The workers’ compensation insurance company uses various formulas to calculate the compensation rate depending upon the type of employment and the duration an injured worker was with the employer. After the Average Weekly Wage is calculated, a corresponding compensation rate, or TTD rate is calculated.
If you were injured in 2020 and your Average Weekly Wage is less than $517.77, your compensation rate will be 90% of your Average Weekly Wage. If your Average Weekly Wage is between $517.78 and $699.00, your compensation rate will be $466.00. If your Average Weekly Wage is between $699.01 and $1398.00, your compensation rate will be 2/3 of your Average Weekly Wage. If your Average Weekly Wage is above $1398.00, you will reach the statewide maximum workers’ compensation rate of $932.00. The insurance company should present a Statement of Wages to you explaining how they arrived at the Average Weekly Wage and corresponding compensation rate.
It’s important to keep in mind that the insurance company often calculates these figures incorrectly so it’s always worth checking with an attorney to determine if your getting everything you deserve.
Q) I have been collecting workers’ comp wage loss benefits for a while. How long can I continue to collect?
In most cases, the maximum period of time for which an injured worker can collect wage loss benefits is 11.6 years or 604 weeks. The reason for this arbitrary sounding period is that after 2 years of collecting TTD benefits, the insurance company can send you for an IRE. If the IRE finds you to have an under 50% total body impairment, you will be limited to collecting 500 weeks of additional weekly benefits. It is important to note that the medical benefits that accompany the workers’ compensation injury do not expire at the end of this 500 week clock. Unless you settle your case or a Workers’ Compensation Judge finds that you have made a full recovery, your medical benefits will continue for life.
This is not to say that you are guaranteed to collect 604 weeks of weekly checks; the insurance company will take steps throughout this period to reduce or cut off your benefits.
Q) I fell and suffered an injury when I slipped on ice at a job site. Do I have to show that my employer was negligent to collect WC benefits?
No, negligence on the part of your employer does not have to be proven to be eligible for workers’ compensation wage loss and medical benefits. As long as you are injured in the course and scope of your employment, you may be entitled to workers’ compensation benefits in the Commonwealth of PA.
Q) I had to go to an Independent Medical Exam for my workers’ comp case. Can I be paid for my travel to and from the IME?
Yes, an injured worker can be paid mileage for his/her trip to an Independent Medical Examination. To make sure you get paid what you are owed, you should record your starting mileage and ending mileage and submit it to the adjuster who is handling your file. If you are unable to drive yourself or get a ride to the IME, the insurance company will set up a ride for you.
On a bigger note, it’s important to remember that the IME doctor is there to examine you for the purpose of formulating an opinion that can help the insurance company in future litigation or to send you back to work. It’s important that if you have an IME coming up or recently attended one, you contact a workers’ compensation attorney to determine what your rights are moving forward.
Q) I’ve been on workers’ comp for over two years. I’m tired of the hassle. Is a lump sum settlement right for me?
Whether a lump sum settlement is the right call for you depends on a multitude of factors. The facts of your case play a huge role in determining if and when you should settle. Your pre-injury wages, compensation rate, need for future medical treatment, potential for surgery, and even whether you have personal health insurance all play a role as to the value of your case and whether you should look seriously at settlement. Personal factors also play a role in this decision. Whether you need more money now will dictate how motivated you might be to resolve a case.
The hassle and stress of being on workers’ compensation may also incentivize you to look at settling your case. Because there are so many factors in play, and because you don’t want to settle your case for less than it’s worth, it’s important that you reach out to an attorney as soon as possible to make sure your case is handled correctly.
Q) Does a new year mean that my workers’ compensation weekly benefits increase to account for increased costs of living?
Many injured workers think their weekly benefits increase as time goes on to account for changes in costs of living. Unfortunately this is not the case. Your workers’ compensation wage loss benefits in PA are calculated as of the date of injury. They do not increase for inflation, costs of living, or any other reason simply by virtue of you being on workers’ compensation for a longer period of time.
For this reason, it’s especially important to make sure you are getting every time you are owed. In many cases, the workers’ comp insurance company may have incorrectly calculated your benefit rate. There are petitions to be filed if you think this is the case. If you think your Average Weekly Wage or compensation rate have been incorrectly calculated, reach out immediately.
Q) I broke a few teeth due to a work injury. Does workers’ compensation pay for dental work? Do I get any money in addition to the bills.
In a Pennsylvania workers’ compensation claim, if you require dental work that is reasonable and necessary and caused by a work injury, your employer’s workers’ compensation insurance must pay for the treatment necessary to correct your injury.
Additionally, if you are left scarred or disfigured due to this accident, then you may be able to seek wage loss benefits. The amount of money you receive may be up to discretion of the judge and would come down to a finding of how severe the disfigurement might be.
Q) I’m out of work and collecting workers’ compensation. My company says I have to pay to maintain the health insurance I have through my work. Doesn’t workers’ comp have to pay them?
Workers’ compensation does not have to pay the premiums required by your employer to maintain your health insurance. You may be either stuck paying your employer monthly to maintain your insurance or when you return to work you might be hit hard by premiums that you accrued while you were out of work. It is important to remember that while the workers’ compensation insurance will cover the reasonable and necessary treatment that is related to your work injury, you may have plenty of health costs that are unrelated.
For this reason, and because the Affordable Care Act, or “Obamacare”, requires people to maintain health insurance, you should maintain the health insurance you had prior to your work injury.
Q) Do I have to pay federal or state income taxes on my Pennsylvania Workers’ Comp benefits?
No. Workers’ Compensation benefits are not taxable by either the federal or state government. While you are not getting your full salary through workers’ compensation, you don’t have to pay taxes on what you do receive weekly. Additionally, if you receive a lump sum settlement from the workers’ compensation insurance carrier, you do not have to pay taxes on that lump sum either.
Q) I’m out of work and collecting workers’ compensation benefits. I received paperwork from my company asking me to apply for FMLA? What are they trying to do? Can I collect both?
You can be on both FMLA and workers’ compensation because the two systems are very different. FMLA, or Family Medical Leave Act, provides no payment for the time you miss from work. FMLA simply holds your job while you are out on leave. This means that your employer will not terminate you while you are missing work. If your employer provides FMLA, it’s probably a good idea to apply but if you have any questions about how it works you should reach out to an attorney immediately.
Workers’ compensation benefits provided you with pay for lost wages while you are missing work but workers’ compensation benefits do not ensure that your employer will not terminate you or fill your position while you are injured an missing work. Be advised that an employer terminating your employment while you are out of work collecting workers’ compensation is not necessarily a bad thing in relation to your workers’ compensation case.
Q) I just received a Notice of Ability to Return to Work. I’m still injured. Do I have to go back to work now?
Not necessarily. In many situations, the mailing of a Notice of Ability to Return to Work is just a procedural step taken by the workers’ compensation insurance company. In many cases, a Notice of Ability to Return to Work may precede either a lighter duty job offer from your time of injury employer or the beginning of a Labor Market Survey.
The Notice of Ability to Return to Work does not mean you need to report to work immediately. A Notice of Ability to Return to Work doesn’t mean much without either a job offer within your restrictions or a job referral. It does suggest that you will need to speak to an attorney though. If you’ve received a Notice of Ability to Return to Work or any other documents you don’t understand, you need to reach out to an experienced workers’ compensation attorney as soon as possible.
Q) I’m collecting workers’ compensation wage loss benefits but my budget is still tight. I just turned 62. Should I start collecting my Social Security Retirement benefits now?
One of the worst things you can do for your workers’ compensation case is to collect Social Security Retirement benefits. The reason is simple: the workers’ compensation insurance company can reduce your wage loss or indemnity benefits by 50 percent of the amount of SSR benefits you are collecting. This decision has a huge effect not only on your weekly compensation rate but on the ultimate value of your case if you were ever going to settle your workers’ compensation case through a lump sum settlement.
If your budget is extremely tight due to being on workers’ compensation after a work injury, you should look at applying for Social Security Disability. Social Security Disability does not have the same effect as SSR benefits; In fact, collecting Social Security Disability will not reduce your WC benefits at all.
Q) How long must an injured worker treat with the doctor picked by the employer?
Generally speaking, if the employer has provided the injured worker with a list of panel physicians, the injured worker must treat with one of the physicians for the first 90 days of treatment. After 90 days of treatment (calendar days, not 90 separate visits to a medical provider), the injured worker can begin treating with a doctor of his own choosing and the workers’ comp insurance will have to foot the bill, assuming the injury has been accepted, the treatment is related to the accepted work injury, and the treatment is deemed reasonable and necessary.
If you’re nearing 90 days from the date of your injury, or you just need advice about if/why you should consult another medical opinion, contact the experienced team at Schmidt Kramer in Central Pennsylvania today for a free consultation.
Q) I worked in a temporary position and suffered a low back injury at work. My boss told me I haven’t worked long enough to collect Workers’ Comp benefits. Could I have a claim?
Yes, you may have a claim. Often times workers in temporary positions are injured on the job. Many of these jobs do not provide adequate training which leads to these workers being injured at a high rate.
Under the Pennsylvania Workers’ Compensation Act, there is no minimum requirement for how long you’ve worked for your employer before you can be eligible for benefits if hurt on the job.
Additionally, it is often difficult for these temporary employers to find suitable light duty work for injured workers, which increases the likelihood that you should be collecting disability benefits.
Q) I suffered an injury at work. I now have a scar on my face. The doctor said I was not disabled and I didn’t miss any time from work. Are there any benefits I can get from Pennsylvania Workers’ Compensation?
Yes, there are workers’ comp benefits for which you might be eligible. First off, any reasonable and necessary medical bills incurred as a result of a workplace injury or accident should be paid by your employer’s workers’ compensation insurance company.
Second, you may be entitled to specific loss benefits. Unlike wage loss benefits, specific loss benefits do not require that an injured worker misses time from work. Disfigurement of the head, neck, or face, if serious, permanent, and unsightly may be compensable under the Pennsylvania Workers’ Compensation Act.
Whether a scar is “unsightly” is a question of fact to be determined by the Workers’ Compensation Judge at a hearing on the matter. If you have suffered burning, scarring, or the loss of a body part, specific loss benefits are available under Pennsylvania law.
Q) I am a federal employee and I was injured while working in Pennsylvania. What are my rights? Can I bring a claim for Workers’ Comp in Pennsylvania?
If you are a federal employee, the federal workers’ compensation system would have jurisdiction over your claim. While this seems clear cut, often times the employer-employee relationship is not. For example, if your employer is a staffing agency, the Pennsylvania workers’ compensation system may have jurisdiction over your claim.
Q) I received documents called “Employee’s Report of Benefits” and “Employee Verification of Employment, Self-Employment or Change in Physical Condition” from the Workers’ Comp insurance company. Do I have to fill this out?
Yes. These forms are used by the insurance companies as a source of free information. The insurance company will usually send these forms to a Claimant every six months. The insurance company can collect information on whether the injured worker has earned any wages from employment, has become self-employed, or has collected unemployment. Additionally, the insurance company is looking for information as to whether the injured worker’s physical condition has improved (likely so the worker can be sent for an IME and eventually taken off of workers’ compensation).
The Pennsylvania Workers’ Compensation Act requires a claimant to complete these forms accurately and return them to the insurance company within 30 days. Failure to return these forms in a timely manner may result in a suspension of wage loss benefits. Additionally, if these forms are completed using false information with intent to defraud, the injured worker may be liable under the fraud provisions of the act.
Q) The WC insurance company scheduled me for a meeting with a “Vocational Expert”. Do I have to attend?
The answer is: at some point you will have to. Generally, an insurance company schedules you for a vocational interview as a means to get you off of workers’ comp. It’s often their go-to solution for suspending/modifying your benefits when your company cannot find any light-duty work for you after a work-related injury or if your company terminates you after you suffer an injury on the job.
Because it is a valuable tool for them, the insurance company has the power to compel your cooperation. Generally, the company does not initially petition a workers’ compensation judge to compel a claimant’s participation, but if the claimant avoids being interviewed, the matter will go to a workers’ compensation judge who will likely force the claimant to participate.
While the insurance company has rights, so do you! You may have a representative from your attorney’s office present for your vocational expert and you can (and should) consult with your attorney prior to the interview. If you have been contacted about submitting to a vocational interview or labor market survey, your case is at a pivotal point and you should reach out to the central Pennsylvania workers’ compensation team at Schmidt Kramer immediately.
Q) How is my Workers’ Compensation Average Weekly Wage calculated?
The calculation of your Average Weekly Wage is one of the most important factors affecting the value of your workers’ compensation case. A difference of even a few dollars per week can make a huge difference in the amount of your pote