Month: November 2020

The COVID-19 global pandemic is the largest public health catastrophe in over 100 years.  It has resulted in catastrophic loss, serious illness, and a taxing impact on our nation’s healthcare system.  The pandemic has also resulted in a serious impact on our nation’s economy.  Unemployment rates, although improved since the start of the pandemic, remain at alarmingly high rates.  Perhaps the most vulnerable to job loss are injured workers, who not only face the challenge of losing their job but also the realization that finding new employment is complicated by physical restrictions caused by a work injury.  For example, an electrician that suffers an injury at work and returns to a light-duty job only to lose the position to the fallout from COVID is faced with a job market that is severely compromised plus they cannot perform their usual trade.  The odds that a hiring electrical contractor would offer a job to someone with a weight restriction when it comes to lifting is highly improbable.

Fortunately, the caselaw on this issue is appropriately in favor of an injured worker in this predicament.  If an employee is hurt at work and returns with limitations in place (“light” or “modified” duty) and then is let go (fired, terminated, laid off, furloughed – all treated the same), the courts look at the employee’s role in the employment ending.  Obviously, if the employee is at “fault” or exhibits “bad faith,” then rights may be severely limited.  Thus, if there is an injury and a return to light duty and the injured worker then fails a random drug test, there is an uphill battle to seeking wage loss benefits here.  However, if there is an injury and a return to light duty and the employer eliminates this worker’s job due to economic constraints from the COVID-19 pandemic, clearly, this worker has done nothing wrong other than being a victim to unfortunate circumstances.  In this situation, the injured worker is entitled to the payment of workers’ compensation lost wage benefits.

I have seen this situation time and again since March 2020.  Insurance companies have preyed on injured workers by not paying lost wage benefits when they have sustained disabling injuries and have subsequently lost their job.  Instead, they have actually cheated their policyholders – Pennsylvania employers – and the employers have had to fund unemployment compensation claims.  The law entitles these individuals to workers’ compensation benefits.  Many times, these injured workers have consulted me for some other aspect of their claim and I have been able to inform them of their right to wage loss benefits.  In almost every circumstance, the workers’ compensation benefits are a larger weekly dollar amount than the unemployment benefits.

If you were injured at work and subsequently lost your job due to circumstances surrounding the pandemic, please call us right away.  The consultation is free and you deserve an explanation of your legal rights.  Frankly, if you are let go for ANY reason following a work injury, you ought to call us.  Do not leave compensation that is due to you on the table.  We have an excellent track record in these scenarios.

The answer to this question – like most questions in the law – is “it depends.”  Generally speaking, Pennsylvania workers’ compensation is a “no-fault” system.  In other words, regardless of fault, if you get injured at work, your sole remedy is your workers’ compensation rights.  If the injury was your fault, you still get these benefits.  If the injury was no one’s fault, you are entitled to your workers’ compensation benefits.  However, if the injury was the fault of your employer, the same rules apply – you get workers’ compensation and that is it.  You cannot sue your employer for their negligence.  When the Workers’ Compensation Act was written over 100 years ago, this was referred to as the “trade off.”  A worker gets these benefits regardless of fault, but, in return, cannot sue their employer.  Remember, the employer stands in the shoes of its employees.  Thus, if your injury is due to the negligence of your co-worker, that does not give you the right to sue the co-worker or the employer.  The co-worker is “the employer” in this analysis and as I described above, they cannot be sued.

There are some exceptions.  If your employer neglected to carry workers’ compensation insurance, you can actually sue them if your injury was due to their negligence.  If there was an intentional tort – very hard to prove, but if you can demonstrate that the employer intended to harm you, there is an avenue to be able to sue them.  There are also circumstances where the employer has umbrella companies and a deep dive into their corporate structure might open the door to be able to sue a parent or subsidiary for an injury at work.  Nevertheless, all of these situations are fairly rare.  For the most part, you cannot sue your employer for your work injury in Pennsylvania.

Despite the above, there are many occasions where an injury could be the fault of a third party.  The most obvious example is a car accident.  If your job involves driving and you are in a motor vehicle crash, then you have your workers’ compensation claim with your employer AND you have the right to sue the party at fault – the other driver.  Third-party cases are also commonly found on construction sites.  You are an electrician and you are walking across the job site and fall into a hole.  Odds are, it was not the electrical company’s responsibility to fix that hole or appropriately cover it up.  It could be the fault of the general contractor or another subcontractor on-site.  One or both of these companies can be sued, in addition to your workers’ compensation claim with your employer.  Moreover, many times, third party liability is more subtle.  Perhaps you are a nurse and slip on water or a recently waxed floor in a hospital.  If the maintenance of the floors was the responsibility of your employer, then you are limited to your workers’ compensation claim only.  But many times, floor maintenance is done by an outside contractor.  I would same the same for snow/ice removal on the premises of an employer.  If it is an outside company’s job to clean it up, they can be sued for your injuries.

I should add here that you may be able to sue your employer for conduct that takes after your injury.  What comes to mind here is wrongful termination.  For example, if you get injured at work and report it to your employer and they fire you for reporting an injury, you have a workers’ compensation claim with them and you may have a wrongful termination claim.  Pennsylvania employees cannot be fired for reporting a work injury.  That is against the law.  You can then pursue your workers’ compensation case and an employment law case.

All legal remedies should be explored when you are harmed at work.  No stones should be left unturned.  There are damages that can be recovered in other lawsuits that are not available in a workers’ compensation claim.  The real key is having a lawyer that is adept at recognizing all potential cases.  I have uncovered cases for my clients that have resulted in substantial settlements beyond their workers’ compensation case.  Not all lawyers will do this deep dive.  At Stern & Cohen, we firmly believe in helping our clients explore all potential cases that may be available to them. Contact us today!

This is a very common question that I get from new and existing clients.  The answer is very simple:  “yes.”  Insurance companies have the right to conduct surveillance on the activities of an injured party that is making a claim for monetary/medical benefits.  This usually comes in two different forms.  The first is video surveillance.  As long as you are in a public space, you have no expectation of privacy under the law.  So, your front yard, shopping locations, driving, etc. are fair game for surveillance efforts.  You cannot be surveilled inside your home.  So, the investigator may not come up to your window and attempt to film you inside.  I had a case once where the investigator filmed my client in a house of worship.  I argued that this evidence should be precluded and the Judge agreed with me.  But, by-in-large, most surveillance is admissible in court.

I always counsel my clients not to have a lot of angst about video surveillance.  First, it is extraordinarily expensive.  Insurance companies hate spending money and use surveillance very judiciously.  Otherwise, they can end up spending a ton of money.  So, when a client tells me that they have been under surveillance for a month straight, I explain that they should call the police on that vehicle because it is clearly not an investigator hired by the insurance company.  A month of surveillance would be outrageously expensive!  Thus, although it is not rare for the insurance company to do surveillance on my clients, I would also not describe it as common.

I tell my clients not to be worried about it!  As long as you are not engaged in activities outside of what you and your doctor think you are capable of performing in a work setting, then it really becomes irrelevant.  If an insurance company gets video of my client carry light bags of groceries or wheeling a trash can to the curb and my client’s pre-injury job requires lifting 50 or more pounds frequently, then what possible relevance is there of such a video?  However, the flip side of the coin is that if your job is light to medium and you carry a bedframe to the corner, you may have trouble convincing a Judge that you cannot do that job.  Just be mindful of your limitations and carry on with your life within those restrictions.  Becoming anxious or fixated on video surveillance is not healthy.

It goes without saying that if you are caught working on surveillance and you are collecting your full workers’ compensation payments or you have made a sworn claim that you are not working, that would be very bad.  You could be subject to criminal prosecution.  Even if you escape that, your case will take a devastating blow.  Contrary to how insurance companies will try and deceive the public with commercials on television depicting fraud, this is actually exceptionally rare.  I have literally handled tens of thousands of workers’ compensation cases and I have maybe had a grand total of 2-3 situations where something like this happened.  Truth be told, I see fraud occurring far more often by insurance companies than insured workers – but, that is a good subject for another blog post in the future!

The second type of surveillance that we see is social media reviews.  Investigative companies will dive into injured workers’ social media accounts to see what they find.  They may even try to “friend” the worker if the account is private.  I caution clients to be very careful about their activity on social media.  I do not say this since we may have something to hide, but rather, things can be taken out of context.  If you post a video of you cliff diving in the Caribbean two years ago, the fact that you are re-posting it now could draw the illusion that you were doing this while you were injured.  Something you post might be suggestive of the fact that you are looking for work, even though you are claiming that your injury disables you.  Perhaps that is not how you meant your post, but it is not worth taking the chance.  I tell clients to back off posting to these accounts.  Once again, I find my clientele to be honest and truthful.  I rarely encounter a situation where a social media post becomes evidence in a case, but it has happened.

In summary, surveillance is not something that I spend a lot of time being worried about and neither should my clients.  Honesty and transparency and following doctor’s advice is a recipe for not having to be anxious about this.  I am always happy to have a conversation with a client about this concern in their case.  We pride ourselves on our accessibility to our clients to discuss any issue in their case.