PA hikes Workers Compensation rates after Protz Decision

The Pennsylvania Department of Insurance hiked the workers compensation insurance premium for the second time within a year.  The Department of Insurance already hiked rates 6.6% that went into effect on February 1, 2018.  This second hike will increase premiums by .7% to go into effect on April 1, 2018.

Both jumps follow a state Supreme Court ruling last summer invalidating a portion of the state’s workers’ comp law, a move that some expect to result in higher costs for employers.  The ruling barred the use of so-called impairment rating evaluations, or IREs. The evaluations allowed companies to cap costs for paying out wages lost due to injury, typically in cases where workers could not return to work.

Lawmakers have introduced legislation to restore use of IREs. But it has not moved.

Workers’ comp rates typically are adjusted once a year. But after the court ruling, the rating bureau took the rare step of asking for an interim increase, which is the 6.06 percent hike that took effect this month.

The Department of Insurance increased the rates twice within a year for the first time in 25 years due tot he PA Supreme Court’s Protz v. WCAB, which invalidated Impairment Rating (IRE) provisions of the PA Workers Compensation Act.  The IRE provision served as an avenue for Employers and Insurance Carriers to limit benefits.  You can read more about the Protz decision here.

In Pennsylvania Workers Compensation, what happens if my claim petition is not answered?

Over the past eight weeks, for some reason, I have had three different claim petitions filed on behalf in injured workers in which the employer and its insurance carrier failed to file a timely answer.  Kind of odd.  That is more than I have had in the prior two years.  So what happens then?

First, what is a timely answer?  Under the Pennsylvania Workers Compensation Act, an employer and insurance carrier has 20 days to answer a claim petition for the answer to be timely.    The statutory period for the 20 begins from the date of service by the Bureau (Department of Labor & Industry), which is nearly automatic now with the WCAIS (the state’s automated workers compensation adjudication system).  The Bureau notifies the parties via a Notice of Assignment that alters that parties to the Workers Compensation Judge assigned to the case.

So what happens if the employer fails to answer within 20 days?

What should happen is your attorney should make a motion called a “Yellow Freight Motion”.  The motion comes from the case of Yellow Freight Systems v. WCAB (Madara), 423 A. 2d 1125 (Pa. Cmwlth. 1981).  The court addressed this issue specifically.

In applying this Section, we must emphasize that the referee ruled that the employer’s failure to file its answer, within 15 days of being served with the claim petition, constituted an admission of the allegations in the petition. That decision was tantamount to a ruling that the employer had not shown an adequate excuse for not meeting the filing deadline fixed by Section 416, and therefore lost its right to file an answer at all.7 In short, the case was in a posture as if the employer had filed no answer.  Given that posture of the case, it became incumbent upon the referee to follow the procedure set by Section 416 where no answer has been filed: to decide the matter on the basis of the petition and evidence presented.8 The phrase “and evidence presented” must be construed to mean evidence presented by the petitioner. To construe the phrase to include evidence presented by the adverse party would negate the sanction for not filing an answer in accordance with the terms of the Section. That is, unless the phrase “and evidence presented” is restricted to evidence presented by the petitioner, the adverse party could refuse to file an answer and still come to the hearing and offer evidence in rebuttal or as an affirmative defense to the claim petition . . .  It is true that the general rules of pleading and civil procedure do not govern workmen’s compensation proceedings. However, Section 416 of the Workmen’s Compensation Act precludes evidence from an adverse party who has not filed an answer to a claim petition, in accordance with the terms of that Section, absent adequate excuse or dispensation.

So what does that mean?  It means that when an employer fails to file an answer within that statutory period without adequate excuse, every well-pleaded factual allegation in the claim petition is admitted as true and the employer is barred from presenting affirmative defenses and from challenging the factual allegations in the claim petition.   Since the Yellow Freight case, further case law has developed on lack of timely filed answer.    When a Claim Petition is alleging ongoing disability, meaning the injured worker remains out of work, a rebuttable presumption exists.  Essentially, the employer can present rebutting to try an overcome the presumption of ongoing disability. (Chik-Fil-A v. WCAB (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002).

Moreover, while Employer is barred from asserting affirmative defenses to the allegations contained in Claimant’s claim petition, Claimant is only entitled to a rebuttable presumption that her disability continues after the last date that Employer should have filed an answer. Heraeus. Employer is not barred, therefore, from presenting evidence itself, or attempting to discredit the Claimant’s evidence, to rebut the presumption that Claimant’s disability continues into the indefinite future. Id.

So the fight over ongoing disability could continue.  Certainly make the defense of the claim harder for the employer, the claimant can get paid benefits, but the case is not over.

The fact is, workers compensation law is quite complex.  If you have been injured at work, call Mooney & Associates today for a FREE consultation.  We represent injured workers throughout Pennsylvania and have 16 office scattered throughout Central Pennsylvania from Chambersburg east to Lancaster, and from the Maryland line north to Lebanon.  Call today at 717-200-HELP.

Federal Workers Compensation and Attorney Fees

Are you a federal employee who has suffered an injury while on the job?  Whether you work for US Postal Service, Homeland Security, the VA, or other federal agencies, you are entitled to benefits under the FECA.  The Office of Workers Compensation Programs (OWCP) manages all Federal Workers Compensation claims.  So what if my claim is denied?  What if OWCP is trying to terminate my benefits?  Where can I get help?

Mooney & Associates offers a Federal Workers Compensation practice in Central Pennsylvania.  Although we can represent injured federal employees nationwide, most of our clients come from Pennsylvania, Maryland, and Virginia.

So how do attorney fees work with Federal Workers Compensation.  Is it a contingency fee like regular workers compensation?  The answer is NO.

Contingency fees are illegal under OWCP.  The Employees Compensation Appeal Board (ECAB), the highest appellate authority in Federal Workers compensation, has ruled that only fees based on an hourly rate agreement will be approved in accordance with 5 U.S.C. §8127, and OWCP has stated that it will conform its fee approval standards to that of the ECAB.  So, if an attorney offers you a contingency or percentage retainer agreement, that attorney is not complying with the law regarding fees and fee approvals and is not familiar with Federal Workers Compensation.

So how do the attorney fees work then?

Attorney fees for Federal Workers’ Compensation must be paid on an hourly basis.  In Federal Workers Compensation, the attorney is paid at the end of the case, after OWCP has reviewed the fee statement and agrees that the charges were reasonable given the nature of the injury and the work performed.  At Mooney & Associates, I take an initial retainer for services, which is placed into a trust account and held there until we receive the go-ahead from OWCP to pay the fee at the end of the case.  I keep track of my work on the case and keep you informed regularly as to the status and amount of my billing.  Additionally, there are times I may charge a flat fee, rather than a retainer and ongoing hourly expense.  Again, it depends on the issue.  This arrangement is similar to other types of cases where an attorney accepts a retainer, such as family or criminal law.  The difference is,  I am not permitted to remove the retainer from the trust account until the case is done and OWCP agrees with the fee.  You also will be asked to agree or disagree with the fee.  The client is also responsible for cases expenses.

I would be happy to meet with you and discuss our fees work and the retainers we require, dependent on your issues within your Federal Workers Compensation case. You can contact Mooney & Associates toll-free at 1-877-632-4656 or 717-200-HELP.

Federal Workers Compensation Appeal Rights

Federal Workers Compensation is an entirely different system than your traditional state workers compensation.  Federal Workers Compensation is for employees of the Federal Government and claims are handled by the Office of Workers Compensation Programs (OWCP) within the US Department of Labor and Industry.

So, what happens in you are an injured Federal Government employee, you get injured at work, and OWCP subsequently denies your claim?  Does a Federal Government employee have any appeal rights?  The answer is — YES, they do.   Essentially, there are three appeal avenues.   All three carry different ramifications and timelines.

  1.  Request for an Oral Hearing or Written Record Review.  An injured Federal employee can request an oral hearing or a written record review with the Branch of Hearings and Review.   This avenue has a deadline of 30 days from the date of the final decision by OWCP.  Testimony at oral hearings can be done in person or by telephone, teleconference, or video conference.   Hearings are often useful because a Hearing Representative from outside the District Office that denied the claim will evaluate the Decision. The in injured worker CAN submit new evidence at the hearing, either through testimony or documents. The Hearing Representative will usually ask questions.  If the injured worker chooses to, he/she can opt to waive the right to appear and instead request a  Review of the Written Record. Unless a decision is reversed, a claimant will only have one chance at a hearing.  It could take 8 or more months to get an oral hearing scheduled.  Finally, a Hearing must be requested BEFORE any Reconsideration on the matter.  If a Reconsideration has already been filed on the same matter, the there is no right to an Oral Hearing.
  2. Request for Reconsideration.  An injured worker can also file a Request for Reconsideration.  You can certainly submit additional evidence or legal arguments to establish your claim, within a reconsideration.  A reconsideration request must be made within one year of the date of the OWCP decision.  Reconsideration will be handled by supervisory claims examiners located in the same District Office that issued Decision denying the claim.
  3. Appeal to the Employees Compensation Appeal Board (ECAB).   The ECAB is an appellate body in the Department of Labor separate and apart from OWCP.  This should be the LAST appeal resort, because the ECAB decision is FINAL.  The ECAB WILL NOT consider new evidence.   Thus, this level of appeal should not be completed until such time that there is no new evidence that would support the claim.  Request for review by the ECAB must be made within 180 days from the date of this decision.   You can appeal tot he ECAB a decision of an OWCP hearing representative, an OWCP decision from an Oral Hearing or review of the written record, or following a decision on a Motion for Reconsideration.  Time frame wise, the ECAB usually takes 10 to 12 months to issue its decision.  It is important to note that once ECAB makes a final ruling on your case, you cannot appeal it and you cannot seek recourse from another federal agency.  It is final.
     

Those are the three avenues to appeal a Federal Workers Compensation denial.

Each level of appeal has its own complexity.  If you are an injured Federal employee and your claim has been denied, and you are a Pennsylvania or Maryland resident, call Mooney & Associates today for a consultation on how we can help you.  You can contact Mooney & Associates at 717-200-HELP or 1-877-632-4656.

 

 

Worker killed at Manitowoc in Shady Grove, PA

A crane accident at the Manitowoc plant in Shady Grove, PA has killed a workers and injured several others.   The accident occurred today at around 830 AM.

“There’s definitely a serious accident with a fatality involved. That’s all I can tell you at this time,” Warner said around 9:30 this morning.

The Franklin County Coroner and Pennsylvania State Police were called to the scene on the Manitowoc property that fronts Route 16 in Shady Grove, between Greencastle and Waynesboro.

Manitowoc manufactures crane in Shady Grove, Pennsylvania, formerly known as Grove Manufacturing.  In 2016, Manitowoc announced it would be closing its manufacturing operations in Manitowoc, eliminating 528 positions. Work from the facility moved to operations in Shady Grove, Pennsylvania. The Shady Grove operation employees between 800 and 900 employees.

Death on the job have been rising in recent years.  In 2013, OSHA reported 3,635 deaths on the job.  That rose to 3,728 in 2014, then to 3,751 in 2015, and 4,098 in 2016.

In Pennsylvania,  widows and children of injured workers are entitled to workers compensation death benefits.  It can be a complicated issue and the litigation that could result from the death of an injured worker can be quite complex.   At Mooney & Associates, we have a full workers compensation litigation practice.  We operate 16 offices throughout Central Pennsylvania.  Injured workers are entitled to a FREE consultation with us and can call 717-200-HELP or 1-877-632-4656.

ADA Employment Discrimination Filing Deadlines

How long do I have to file a complaint of employment discrimination under the Americans with Disabilities Act (ADA)?  The answer is — it depends on where you file?  Let me explain.

When you have been discriminated against at your place of employment due to a disability, you may have an action through the ADA.  Firs thing to know is that you can file your complaints at the Federal level with the EEOC, or the state level with the PA Human Relations Commission (PHRC), or you can elect dual filing, while you file with one.  Whether you file with one or the other, it depends on several factors and you should speak with an attorney beforehand.

There are two things you need to know right away when choosing which agency, state or federal, to make your complaint.  First, if your employer has less than 15 employees, then the EEOC is not a choice.  You must file with the PRHC.  EEOC only takes complaints under Title VII against employers who have 15 or more employees.  On the other hand, PHRC accepts complaints against employers that have 4 or more employees.

Second, the time limitation to bring a complaint are different between the EEOC and the PHRC.   With the PHRC, a claim must be filed within 180 days of the alleged act of discrimination, such as a termination, denial of employment, denial of promotion, etc . . .  In order to file a claim with the EEOC, the claim must be filed within 300 days of the alleged act of discrimination.

Now, if you miss the PHRC deadline, does that mean you are barred from bringing any complaint?  Not necessarily.  If you failed to bring a claim within 180 days, but before 300 days, you will lose your right to pursue a claim for discrimination in state court under state law, but you can proceed with the claim through the federal courts under federal law.

If you feel that you have been discriminated against at work due to a disability, contact Mooney & Associates right away.  We have 16 offices throughout Central Pennsylvania to meet at your convenience.  Call today at 717-200-HELP or 1-877-632-4656.

Carlisle man wins workers compensation benefits despite prior injury

Recently, I have done several posts on pre-existing conditions and work injuries.  I’ve done so because pre-existing conditions are a common thread in many workers compensation denials.  However, again, the fact a pre-existing condition exists IS NOT a bar to workers compensation benefits when an injury occurs on the job.

I recently won workers compensation benefits for a Carlisle area truck driver.  My client was injured while loading product on a truck.  He injured his shoulder.  His employer and the workers compensation insurance carrier denied him benefits because he had a previous shoulder injury at another job that resulted in a partial shoulder replacement.  In fact, he had just settled his first work injury claim five months prior to this injury.

We were able to convince the Workers Compensation Judge that he fully recovered from his prior injury, that he had moved on to a new job and had experienced no shoulder problems, and that the new injury, changed the condition of his shoulder which caused him to be unable to work.  Eventually, he had his partial shoulder replacement converted to a total shoulder replacement.   By winning his case and having his claim petition granted, my client will and has received wage loss benefits back to the date of injury and ongoing, and that his medical bills, including the cost of the total shoulder replacement surgery, are to be paid by the workers compensation insurance carrier.

The important point here is this — if you have a pre-existing condition, if you had a prior injury — and you experience a new work injury which is then denied, you can fight and win benefits.  Call Mooney & Associates today for a FREE CONSULTATION to discuss your case.  We have 16 offices scattered throughout Central Pennsylvania, for your convenience.  Call us at 717-200-HELP or 1-877-632-4656.

 

Social Security Disability is NOT an entitlement program

It really is a shame that Social Security Disability has such a stigma attached to it.  And there is.  There is that thought out there that people on Social Security Disability are getting nothing but ‘hand outs’ or ‘entitlements’ or ‘welfare’.  It’s our political world of uninformed opinions that grips our society today.

Fact is, that workers have paid for these benefits through their payroll taxes over their entire career.   Just like you to pay into unemployment or car insurance, YOU funded the program through taxes that YOU paid.  It is not a hand out.  It is your tax money.

SSD Benefits

Mooney & Associates representing social security clients

When you pay social security taxes, a portion of those taxes go into the The Disability Insurance Trust Fund.   The Disability Trust Fund provides monthly cash benefits to disabled-worker beneficiaries and their spouses and children.   It was created to benefit  workers who are unable to work any longer.  Workers pay a tax of 0.9 percent of their wages up to $113,700, and their employers pay an equal amount. These tax contributions go directly into the Disability Insurance Trust Fund.

So AGAIN, ALL U.S. workers pay Social Security taxes over a life time may receive Social Security retirement or survivors’ benefits. This has nothing to do with welfare, as you are simply being paid out by a fund that you paid into during your working years.  To be eligible for Social Security Disability, the general rule is, you must have worked and paid Social Security taxes for five out of the 10 years prior to have enough credits to be eligible for disability.

Now, in terms of Disability Benefits, don’t confuse Social Security Disability (SSD) and Social Security Supplemental Income (SSI).  Those are two very distinct programs and the information above is applicable to SSD benefits.  You can read about the program differences right here.

The application process for SSD benefits can be daunting as well.  Here at Mooney & Associates, we make it easy for you.  We make the application for benefits for you.  Not only that, but if you are denied at the application level, which most applicants are, we have a full Social Security Disability litigation practice.   If you live in Pennsylvania or Maryland and have questions regarding Social Security Disability, call us today for a FREE consultation at 717-200-HELP or 1-877-632-4656.

 

2018 Pennsylvania Average Weekly Wage rates released

The Pennsylvania Department of Labor and Industry has released it’s 2018 average weekly wage rates.  Your average weekly wage determines your corresponding compensation rate, the rate your would be paid each week if you were out of work for your work injury.  I recently published an article on our official Blog at Mooney & Associates.  You can see the blog post here for the new rates.

Ensuring your average weekly wage rate is calculated properly is critical to your case.  Here is why.

It is absolutely critical that your wages are calculated correctly. A small error in calculating your average weekly wage can have a significant financial impact in your case. For instance, let’s assume an individual gets hurt at work in 2018 and his wages are calculated to be $500.00 per week (AWW). That would provide a weekly disability compensation rate of 90% of $500.00 per week, which would make the compensation rate to be $450.00 per week. If your employer accepted your work injury, that is what you would receive per week while out of work. Now, say that you settle your claim for two years of disability. That would provide you a settlement of $46,800.00. Now, let’s assume that your AWW was calculated incorrectly, the insurance carrier had wrong wage information or forgot bonuses. Let’s assume then your AWW should have been $550.00 per week, instead of $500.00 per week. At $550.00 per week, your weekly disability rate would be $495.00 per week, instead of $450.00 per week. A two year settlement at $495.00 per week would be $51.480.00. When you settle your case, that is a $4,680.00 mistake. A correct calculation would be an additional $4680.00 in your pocket. Think about that. That is only a $40.00 per week mistake. That is why ensuring your AWW is calculated correctly is absolutely critical to you.

This is just another example of why treading through a workers compensation case on your own is a dangerous venture.  Getting expert advice will ensure your wage are calculated correctly, that you do not sign forms from the insurance carrier that you should not sign, that you get the medical treatment you need, and that you get the benefits the Act provides and that you deserve.  Insurance companies have their defense counsel reviewing your case, shouldn’t you be protected on your end?  Call Mooney & Associates today at 717-200-HELP or toll free at 1-877-632-4656 for a FREE CONSULTATION.

Warehouse growth expected to continue growing in Chambersburg, Shippensburg, and Carlisle

Growth in warehouse development and subsequent jobs that follow are expected to continue to grow in the Chambersburg, Shippensburg, and Carlisle areas of South Central Pennsylvania, in 2018.   It is kind of obvious given the continued development underway.

Looking at Shippensburg, you can see warehouse development currently underway off Interstate 81 Exit 24.  There is expected to be an additional warehouse to be built after the one behind the new Sheetz Store is completed.  The warehouses being developed off Exit 24 are considered to be Spec Warehouses.    Specifically, Spec Warehouses are built to be leased out, meaning, it is not being built for a specific company, such as Procter & Gamble on the Olde Scotland Road or Georgia Pacific off Exit 29 in Shippensburg.  Additionally, there is expected to be continues development off Exit 29 in Cumberland County by the Beistle Company and Georgia Pacific locations.

Just a bit North on Interstate 81. you will witness an ongoing boom in warehouse construction in Carlisle.  Many of these huge warehouses that are being erected are again, Spec Warehouses, being developed to lease.  Currently, you can see warehouse development continuing to boom off Exit 44, the Allen Street exit.  This all goes along with the booming construction in Chambersburg off Interstate 81.  The booming distribution economy along the Interstate 81 corridor is causing low unemployment rates in Franklin and Cumberland Counties.  Many of these jobs are either temporary employment or temporary to start before being hired on full-time by employers.

Warehouses jobs, such as order selectors, fork lift drivers, loaders, and more, are at risk for work injuries.  You can view the actual phamplet from OSHA on the most common injuries int he warehousing industry.   I also published an article here on the most common warehouse injuries that walk into my office.

Here are a few pointers for injured warehouse employees.

First, know who your employer really is.  Let me explain.  If you work at Procter & Gamble in Shippensburg and are specifically hired by a temporary agency, your employer for workers compensation purposes, is the actual temporary agency you work for, NOT Procter & Gamble.   It is important to identify the proper employer in a workers compensation case.

Second, notice of injury is critical.  Always remember to report your injury immediately to a supervisor.  If you work for a temporary agency, you must also report the injury to the agency, not just a floor supervisor.  Failure to report an injury right away almost always leads to a denial of your claim.

Third, be careful what you sign.  Employers tend to put a ton of paperwork in front of an injured worker.  Before signing it, make sure you understand exactly what you are signing and what is means to your rights.  Call us right away if you have question on what you are signing.  We always offer FREE consultations for worker injuries.

Fourth, seek immediate medical treatment.  Sometimes, I hear stories of injured workers who just try and ‘grunt’ through pain. They think the injury will just go away.  Then it doesn’t.  That lack of medical treatment in the beginning can trigger a denial of your claim as well.  Second, ‘grunting’ through an injury can worsen an injury.  Sometimes we see that in partial rotator cuff tears that end up being full thick tears.  There is a substantial difference in terms of need for surgery and recovery.   Don’t risk it.  Get checked out.

Fifth, ask your employer if they have a panel list of medical providers.  They are required to in order for the 90 day panel provisions to be in effect.  Second, if they do have a list, you are FREE to treat with any provider on that list.  Your employer can’t dictate which one you treat with.

Finally, ask your employer for a work injury incident report.  Keep notes on employer responses.

Workers Compensation is a complex area of law.   If you are hurt at work, call Mooney & Associates right away for a FREE consultation with me.  Your rights and benefits under the Workers Compensation Act are too valuable to risk.  At Mooney & Associates, I have litigated hundreds of cases.  I have deposed tons of doctors.  I have recovered millions of dollars for injured workers.  I stand ready to fight and protect your benefits.  Call today at 717-200-HELP or 1-877-632-4656.    If you prefer, you can also email me right here through this site.  We have offices throughout Franklin, Adams, Cumberland, Dauphin, Perry, Lancaster, Lebanon, and York counties In Pennsylvania.  I will meet you at the office most convenient for you.