October 2004 Email Newsletter
Welcome to the BSH Email Newsletter!
Setting Up a Workers' Compensation Committee
Being Prepared in Advance of a Work Injury
Commonwealth Court Clarifies "Positive Work Order"
Calculation of Average Weekly Wage Does NOT Account for Maternity Leave
Upcoming Seminars
Welcome to the BSH Email Newsletter!
Welcome to the Blaufeld Schiller & Holmes, LLP Email Newsletter!!! In each coming issue, we will be writing about Workers' Compensation and Social Security Disability issues in an effort to better educate our union friends and clients. As you well know, a united and informed workforce is the best protection for an injured worker.
Each newsletter will include articles about a specific aspect of workers' compensation or social security, as well as information on recent court decisions. The newsletter will also list upcoming seminars and dates when our attorneys will be in your area for consultation. Please note that if you, or one of your members, need to speak with our attorneys, we are always on hand at (800) 343-9384. Call anytime, as we would be more than happy to assist you. Local appointments are available.
If you have any specific topics or questions that you would like us to address in our newsletter, please email us at bsh@bshlaw.net or call us at the above listed number. Our goal is to be your resource for questions about workers' compensation and disability, so please contact us at any time.
Please feel free to print a copy of this newsletter and give it to anyone who might benefit from the information it provides. You are also welcome to provide the names and email addresses of anyone who would like to receive our newsletter. Past editions of our newsletter will be archived at our website, www.bshlaw.net, for your review. Our website also provides detailed information about our attorneys and the services we provide.
Since 1981, Blaufeld Schiller & Holmes, LLP has represented the working men and women of western and central Pennsylvania. We are passionate about our work, and value our friends and clients. We hope you find this newsletter helpful. We look forward to working with you!
Setting Up a Workers' Compensation Committee
Workers' Compensation can be very confusing. Many times, injured employees do not know who can answer their questions and provide assistance with respect to their dealings with the company, insurance company, and company doctors, particularly in the early stages of a work injury. One of the most helpful things a union can do to assist injured employees is to set up a Workers' Compensation Committee, much like a Safety Committee, to assist injured employees in navigating through the difficulties in establishing a work injury and workers' compensation claim. Advice about how to handle a work injury is the most important advice the union can provide after assisting with grievances, and is part of why a union presence in a shop is so important.
The most valuable asset for a workers' compensation committee is people who are interested in assisting their union brothers and sisters, and who are willing to be educated about the workers' compensation system. Our firm provides free seminars with respect to the Workers' Compensation Act, and has resources available to educate committee members about the law. It is essential that the members of the workers' compensation committee be willing to take the time to gain an understanding of the workers' compensation system, and be willing to update their knowledge with additional seminars or training, as necessary, to keep current on the law. The local union needs to get behind this effort, and be willing to compensate members who attend these seminars by compensating them for their lost time.
Committee members also need to be available to fellow employees. This means that fellow employees know who the members of the compensation committee are, and how to contact them. We recommend that the compensation committee be comprised of members from each shift in the plant, so that injured employees do not have to wait for a different shift to contact a comp committee member.
Communication is key! The union should advise its members that the comp committee exists, and support the comp committee in its actions. Communication is also key between the workers' compensation committee and the company. The company should be aware that the committee exists, is there to assist each injured worker, and if necessary, protect them from inappropriate action by the employer. The company should be aware that injured employees will ask for a compensation committee member to be present when accident reports are completed and that the committee will want to be involved in injury investigation.
Another important role for the compensation committee is to keep good records. The law requires that the employer complete an injury report, which is to be provided to the Bureau of Workers' Compensation and to the workers' compensation insurance carrier. The committee should ask each employee to request a copy of that report and provide a copy to the committee, which can be kept with committee records. Any investigation by the compensation committee should be documented and kept with that injury report. The committee should also ask employees to provide copies of any insurance carrier information they receive, so that a workers' compensation committee member can review the paperwork for the appropriate information: Is the accident report complete? Is the wage statement correct? Is the Notification of Suspension and Modification correct?
The workers' compensation committee can provide valuable assistance to the injured employee off-site, too. Sometimes injured employees need someone to take them to the doctor; the committee member can do this, and assist the injured employee in providing all relevant information to the doctor. Our firm provides informational questionnaires for injured employees to complete and provide to treating doctors, whether company doctors or employee-chosen. Compensation committee members should have a supply of those questionnaires on hand, and provide them to injured employees attending evaluations-and assist in the completion of those forms if necessary. When an employee is injured, the committee member who initially discusses the injury should provide the employee with a calendar for the employee to record appointment dates, return to work dates, and information about light duty assignments. Our firm has several of these calendars on hand, and would be happy to provide them.
Other ways the members of the workers' compensation committee can assist all employees is to be knowledgeable about light duty assignments in the plant, and if possible, to make the availability of light duty a part of the collective bargaining agreement and negotiation process. The compensation committee can also be proactive, and work with the Safety Committee on various issues in the plant that are important from a safety perspective. It is also essential that the committee members know the timing of and take part in any testing done by the company with respect to noise and dust levels in the plant, as these test results could become part of the company's defense in future hearing loss or occupational disease cases.
Setting up a workers' compensation committee is a positive step for a local union, because it shows that the union is committed to the safety of its members and the protection of injured employees' rights. A knowledgeable workers' compensation committee is an asset for any local union, and for each union brother and sister privileged to belong to that local. Please let us know how we can assist in making your workers' compensation committee more productive!
Being Prepared in Advance of a Work Injury
In our practice, we have found that many people do not care about workers' compensation, and their rights and duties under the law, until an injury occurs. Unfortunately, this is often too late. We have seen too many cases where an injured employee has made a mistake, in the early stages of an injury, which has served as a barrier to their ability to receive workers' compensation. As this mistake often occurs before an injured worker contacts us for assistance, we feel that it is imperative for you to know how to be prepared in advance of a work injury. In other words, if you got hurt tomorrow, what would you need to know?
At the outset, it is important for injured employees to have at least a passing knowledge of what the law requires. You must give notice of your work injury. You must inform your supervisor or boss how you were hurt, where and when, and what part of your body was injured. If your company has a designated list of medical providers, you must treat with one (or more) of those designated providers for 90 days after the first appointment, not after the date of the injury itself. An employee needs to know that it is essential to keep track of those dates. Having a pocket calendar in advance of any injury would be a sure way to be prepared. After the 90 days has passed, please initiate treatment with a doctor of your choosing who is not on the company's list.
An injured employee must know the procedure at his/her company for reporting an injury. Notice is a critical element of any claimant's burden of proof, as the employer must be made aware of the injury. It is not sufficient to tell co-workers only. Therefore, an employee should know who they are required to tell and who at the company has injury reports that need to be completed and sent to the workers' compensation carrier. Compensation committee members would be wise to have copies of these forms in their possession so an injured employee can get one if the company "loses", "forgets" or "refuses" to provide the reports. You have 120 days, from the date of your injury, to give notice. However, the longer you wait to notify your employer, the more likely it is that your employer will contest liability.
Because some companies are not cooperative when injuries are reported, it would also be of benefit for an injured employee to know who the company's workers' compensation carrier is. That information is supposed to be posted at some accessible place in the plant. Before an injury happens, take a moment to check bulletin boards and see if that information is readily available. Most workers' compensation carriers have "800" numbers that will allow an employee to contact the carrier free of charge to report an injury. If the information is not posted, and there is a union in the plant, it is time to get the compensation committee inquiring about the carrier information and posting that information where employees can find it readily. The carrier's name and address is important to know when getting medical treatment, so the doctor knows where to send the bills. It would make sense to have this information in advance of any injury, so that an employee in pain and in need of treatment is not delayed in getting medical attention because this information is lacking.
As mentioned earlier, the law allows employers to designate doctors for employees to use when they are hurt, so most employers do have specific providers listed on a panel for treatment of work-related injuries. This list is not required to be posted, but is to be provided an injured employee at the time of injury. Therefore, it makes sense for employees to know who is on the employer's panel of designated physicians in the event of an injury. Remember that an injured employee's medical bills will not be paid within the first 90 days if an injured worker does not treat with the company doctor. Therefore, knowing who you can see before an injury would help you be prepared in the event of an injury, particularly if it happens at the end of a day and there is no one able to take a report and provide the information at that time. Please note that if you require immediate medical treatment, you are permitted to go to the nearest hospital emergency room regardless of the company list. If your employer does not have a list of physicians with whom you are to treat in the event of a work injury, you can treat with any doctor you choose.
An injured employee should know that workers' compensation provides for payment of lost wages and medical bills only- not pain and suffering. However, not all injured employees will automatically be entitled to these benefits. These benefits are only given to those employees whose injury has been officially accepted by the workers' compensation carrier as work-related. Unfortunately, this is where most injured workers get into trouble. An employer will go out of its way to make you think you have an accepted work injury when you actually do not. For example, payment of medical bills alone does not necessarily mean that your employer has accepted liability for your work injury. Most employers pay the medical bills when an employee treats with a company doctor, especially if the injury is not one which has disabled you from work. Therefore, it is essential for an employee to know what does and does not constitute official acceptance of a work injury. The following Bureau documents act to officially accept your work injury: "Notice of Compensation Payable" and "Agreement for Compensation." If you do not receive one of these two documents, odds are that your employer has not assumed liability for your work injury and you have no official right to receive lost wages or payment of medical bills for your work injury. Our goal, at Blaufeld Schiller & Holmes LLP, is to ensure that injured workers have their injury officially accepted by the workers' compensation insurance carrier. If you have a work injury and do not timely receive one of those documents, you need to call us! Please note that if you receive a "Notice of Workers' Compensation Denial," your injury has been denied and you need to call us.
It is absolutely essential for an injured worker to keep copies of any and all paperwork associated with the injury. Do not give your only copy of a work excuse to the plant nurse. Keep all documents you receive from the workers' compensation insurance carrier. It is also essential that an injured employee not sign any papers for the compensation carrier or employer without reading them thoroughly and asking questions about them. If you have questions about a document, call us! We are a resource for your use, and it does not cost you anything to call!
Remember- "Be Prepared" is not just a good motto. It is a must with workers' compensation!
Commonwealth Court Clarifies "Positive Work Order"
Does the Violation of a "Positive Work Order" mean that compensation will be denied?
Facts: In Asplundh Tree Expert Company v. WCAB (Humphrey), the injured worker was employed as a tree trimmer. His injury occurred when he fell from a tree, breaking his right arm, and subsequently suffered nerve damage. The employer denied compensation on the basis that Mr. Humphrey violated the employer's "ground-to-sky" policy, taught in safety training. The policy required fixing a safety line in the tree prior to climbing off the ladder. At the time the claimant was hurt, he did not have his safety line affixed in accordance with company policy.
The employer offered testimony from several witnesses to show that the employee's violation of this policy caused his injury and compensation should not be paid. Claimant's supervisor testified that he reviewed safety policies with his crew daily, that he had left the area to get a pole for use in fixing the safety line, and told Mr. Humphrey he was going to do so before the claimant started to climb. Claimant's general foreman testified about his review of the accident scene, including the claimant's lanyards and stated that Mr. Humphrey could not have followed the policy requiring the tying-in of the safety line. A company investigator testified that his interview with the claimant and his investigation at the scene resulted in a finding that Mr. Humphrey was "free climbing" in opposition to the defendant's "ground to sky" policy.
Initial Ruling: The Workers' Compensation Judge awarded benefits in spite of finding that the claimant had violated the company's safety policy.
Court Rationale: The Commonwealth Court affirmed the Judge's award and explained that an employee can be denied benefits based on the violation of a positive work order only if the employer can prove that (1) the injury was in fact cased by the violation of the order; (2) the employee actually knew of the order; and (3) the order concerned an activity not connected with the employee's work duties. The Court rejected the employer's argument that climbing without a safety line is not a part of performing the tree trimmer's job, stating that Humphreys was clearly required by his job to climb trees, and what he was doing when he was hurt could not be divorced from or disconnected from his job duties. The Court accepted the Workers' Compensation Judge's finding that climbing a tree is "an essential and material job function" of a tree trimmer so the "ground to sky" policy concerned an activity connected with Mr. Humphrey's job. Therefore, his action could not be considered to be a violation of a positive work order sufficient to deny benefits because the employer could not meet the third requirement of its burden of proof.
Calculation of Average Weekly Wage Does NOT Account for Maternity Leave
Can an Injured Employee's average weekly wage be adjusted for wages lost while on Maternity Leave?
Facts: In Rebel v. WCAB (Emery World Wide Airlines), the claimant was injured following her return to work from maternity leave. Ms. Rebel argued that the employer's calculation of her average weekly wage as $386.91 with a compensation rate of $305.50 was artificially low, because she had missed a substantial amount of work in the four quarters prior to her work injury due to maternity leave. Ms. Rebel argued that her wages needed to be calculated under either subsection 309(d.1) or (d.2), which concern employees who are not continuously employed for the same employer, or who do not have a full 13 week period of wages. Ms. Rebel argued that her maternity leave meant that she was not "continuously employed" by the defendant, and she was entitled to a more favorable calculation, because the wage rate and compensation rate were artificially low.
Initial Ruling: The Workers' Compensation Judge awarded benefits consistent with the employer's calculation of Ms. Rebel's average weekly wage at the $386.91 wage rate, finding that Ms. Rebel was continuously employed with defendant during this period.
Court Rationale: The Commonwealth Court affirmed the Judge's award and held that the calculation under 309(d) and not one of the more favorable subsections was proper. The Court also set aside the employee's challenge on a constitutional basis, finding that maternity leave is not treated differently than any other non-work-related type of leave or disability for workers' compensation purposes. The Court explained that even the most recent cases that allowed for a more favorable calculation of average weekly wages did so under Section 309(d), but provided for the inclusion of other amounts-sick and accident benefits, the average weekly wage from a prior injury-into the 309(d) calculation. Interestingly, there was no discussion in the Court's opinion about whether Ms. Rebel had received disability benefits while she was on maternity leave. If she had, a prior case, Shire v. WCAB, may have allowed those amounts to be included in the calculation under 309(d). Because the opinion is silent as to these benefits, there was no discussion of that prior opinion of the Commonwealth Court. Therefore, a future case may allow for a higher average weekly wage if the injured worker did receive some wage replacement benefits while on maternity leave.
Upcoming Seminars
Open to Public Social Security Seminars:
| When | Where |
|---|---|
| October 20, 2004 at 12:00pm | Best Western Inn 82 N.Park Place Dubois, PA 15801 |
| October 21, 2004 at 2:00pm | Days Inn 2915 Pleasant Blvd. Altoona, PA 16602 |
| November 3, 2004 at 3:00pm | Days Inn 18360 Conneaut Lake Road Meadville, PA 16335 |
Consultations:
| When | Where |
|---|---|
| December 14, 2004 from 1:30-4:00pm | Meadville USW Office 287 ½ Chestnut Street, Second Floor Meadville, PA 16335 |
Workers' Compensation:
| What | When | Where |
|---|---|---|
| United SteelWorkers' Seminar | October 25, 2004 from 1:00-4:00pm | Linden Hall |
Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.
FREE Seminars for your union or group are also available.
If you wish to be removed from the BSH Email Newsletter list, please call or email our office.