If you sustain a work injury, you may receive a letter from your employer requesting you appear for an Independent Medical Examination (“IME”).  Under the Workers’ Compensation Act, employers may, and often do, request their injured employees to submit to a physical examination by an appropriate healthcare provider or other expert. Because this is a regular practice in Workers’ Compensation cases, we thought we would shed some light on how this may look if you ever find yourself in this situation.

You will get a letter in the mail with a place and time of your IME appointment. You should know that the IME doctor is being paid by your employer and/or the insurance company.  The date, time and place of the IME are dictated by the employer and/or insurance company, however, the appointment must be at a reasonable time and place. It is not unusual for our clients to move or relocate. That is ok. If, for example, you decide to move permanently to Florida after sustaining a work injury, the Court will not force you to travel back to Pennsylvania to attend a local IME.  If the employer wants you examined by an expert, they need to schedule it with a doctor closer to where you live. Additionally, if you do not drive or have other means of transportation, the employer’s insurance company has to set up and pay for your transportation to and from the IME appointment.

There are some cases when an injured worker could be subject to multiple IMEs as a result of the type of injury suffered.  For example, you sustained a shoulder injury and developed PTSD after slamming into the steering wheel during a serious motor vehicle accident.  Because there is physical and mental component to your injury, the employer could request you submit to an orthopedic and psychological IME.  A different example is if you suffer a concussion and neck injury after falling off scaffolding on a construction site.  In that case, your employer could send you to a neurologist for the concussion and orthopedist for the neck.

These IMEs are very important and should be taken seriously. If you do not show up to the scheduled appointment, the employer can file a Petition for Physical Examination with the court.  If that happens, a Workers’ Compensation Judge will conduct a hearing, which will likely result in the Judge issuing a court Order compelling your appearance at the next scheduled IME.  If you miss the court-ordered IME without reasonable cause or excuse, the employer can file another petition, asking the Judge to stop your compensation benefits until you submit to the requested examination, which could be financially devastating. You may ask, what is a “reasonable cause or excuse?” That question is left entirely to the discretion of Workers’ Compensation Judge handling your case. We can tell you that reasons such as no ride, you thought it was a different day, or you were out of town visiting family, are not looked upon sympathetically in front of a Judge.

When you get to your IME appointment, know that the IME doctor will not render any treatment or create a physician/patient relationship with you.  He or she is examining you for the sole purpose of authoring an IME report at the request of the employer and/or insurance company. The IME doctor will probably have your medical records, diagnostic studies and other documents that have been exchanged between your attorney and defense counsel during the course of litigation. When the appointment begins, the doctor will take a history, asking you various questions related to the work injury and treatment you have received to date.  The doctor will ask you about your prior medical history and any injuries you suffered before the work injury. It will feel like an interview and it is important to give an honest and accurate description of your prior medical history, post-injury treatment and current complaints. They will then conduct a physical examination, asking you to perform different physical tasks to test your physical capabilities.  The entirety of the examination can last anywhere between 15 minutes to an hour, depending on that particular doctor’s procedure.

Within a few weeks, that doctor will issue an IME report that will be circulated to the attorneys and yourself for review.  In the vast majority of cases we handle, IME doctors’ opinions fall into two categories. 1) You did not sustain a work-related injury; or 2) there was a work-related injury, but you are fully recovered and able to return to your full-duty job as of the date of the IME. These outcomes are somewhat predictable since the doctor is being paid by the employer/insurance company and the best way to earn future business is to write a report that can be used by them to go to court.  That being said, it is also not highly unusual for the IME doctor to acknowledge an ongoing injury but release our clients to perform some form of modified work.  Regardless of the outcome of the IME report, do not panic.  This is just one opinion and the Judges do realize this.  Your doctor(s) will have the opportunity of having their opinions heard too.

A huge advantage to hiring a lawyer is our ability to cross-examine the IME doctor. At some point during litigation, the IME doctor will present for a deposition.  At that time, the employer’s attorney will ask the IME doctor questions about their one-time examination, their IME report, and the doctor’s opinion related to your injury and capacity to work.  The doctor is then subjected to cross-examination, allowing your attorney to question each and every aspect of the doctor’s examination, including how much he/she was paid to conduct the IME and how much they are being paid for their deposition testimony.  We also like to know the number of IMEs that a particular doctor performs within a specific time frame. Our goal is to show the Workers’ Compensation Judge that this doctor is biased and lacks credibility in making their opinions.  This is done by bringing to light the fact the IME doctor saw you one time for the sole purpose of creating an IME report favorable for the employer. We always argue that the Judge should reject the IME opinions and accept the opinions of your treating doctor(s).  We always point out that their intimate familiarity with your condition after numerous office visits should be viewed as the more credible opinion.

Call us.  The consultation is free. We are here to help you obtain and keep the benefits you rightfully deserve.

The simple answer to this question is yes. However, it is important to understand how the Act works and what is needed to prove that you sustained a psychological injury. Psychological injuries fall into three discrete areas and are compensable if the elements needed to establish a claim are met. The three areas are:

1. 1. Physical stimulus causing mental injury (physical/mental injury)
2. 2. Psychological stimulus causing mental injury (mental/mental injury)
3. 3. Psychological stimulus causing physical injury (mental/physical injury)

Physical/Mental Injury

This type of psychological injury is the most common. This is a physical injury that brings about a mental “disability” (remember, “disability” under the Act refers to a workers’ ability to work their pre-injury job). A common example of a physical/mental injury is someone who is involved in an accident and sustains a concussion. For example, if you are a truck driver and you are involved in a motor vehicle accident that involves you injuring your back and your head, in addition to whatever symptoms you have in your back, you may experience lasting, ongoing symptoms related to your concussion. This may include symptoms such as memory loss, headaches, light sensitivity, blurred vision, etc. Thus, in addition to needing medical treatment for your head, regardless of whether your back injury resolves, you may not feel capable of returning to work because of the symptoms associated with your concussion, or Post-Concussion Disorder. Or, even if you do feel capable of returning to work and do in fact return to work, you may require medical treatment or medication to help with your symptoms relating to your concussion. Either way, you are entitled to workers’ compensation benefits if the physical stimulus of being in the motor vehicle accident resulted in the mental injury, in this case, Post-Concussion Disorder.

Another example is, say you were assaulted by a random customer at work. The actual assault is the physical stimulus. Regardless of the extent of your physical injury – i.e., maybe you sustained just scratches and bruises – if you have suffered psychologically as a result of the attack, this constitutes a compensable injury under the Act. For example, you may have post-traumatic stress disorder as a result, and you are unable to return to work – the scene of the injury – because of it. If that is the case, you are entitled to seek medical treatment, such as seeing a psychologist, to help you treat as well as get wage loss benefits for the period of time you are out of work because of it. This is another example of what a physical/mental injury may look like.

Oftentimes, these types of claims are somewhat obvious because of the physical aspect of the injury. However, it is important to remember that an employee does not have to prove or show that they suffered a physical disability as well as a mental disability. All that matters is that a physical stimulus, i.e., a motor vehicle accident, an assault, a slip and fall, etc., resulted in a mental disability. A mental disability alone is enough to be entitled to workers’ compensation benefits.

Mental/Mental Injury

This type of injury is often harder to prove, but it is recognized under the Act. This type of injury is an employee claiming they have a psychiatric disability due to emotional, nonphysical stimuli at work. The work-related stress must be caused by “actual objective abnormal working conditions”. It cannot be caused by subjective, perceived, or imagined employment events. The abnormal working condition can be a single, isolated event. On the flip side, a long-term process of mental or emotional deterioration can also be compensable.

The criteria for determining if a mental/mental injury is compensable is three-fold: (1) the claimant’s disability has been objectively verified, (2) it has been traced to an identifiable source, and (3) that incident alone, and not any purported comparable set of incidents, was abnormal.

The determination of an abnormal working condition is highly fact-sensitive. For objective employment events to be considered “abnormal”, they must be considered in relation to the specific employment. For example, if you are a police officer, the comparison will be made to other police officers. However, the conditions of employment or inherent risk related thereto are not a controlling factor in the determination of an abnormal working condition. This means that just because you are a police officer, which is, of course, a stressful job, does not mean you are not entitled to workers’ compensation for a mental/mental injury. There have been several cases finding that employees with inherently stressful jobs, such as police officers, firemen, rescue workers, etc., are entitled to benefits under the Act because of certain events they have seen or been a part of.

Some examples of types of events/circumstances that have been found to cause a mental/mental injury is verbal harassment, including sexual harassment at work, being robbed at gunpoint while working, having a near encounter with death at work, being wrongfully accused of a crime by a supervisor, and witnessing someone be killed at work. Of course, there are many more examples. Contact us to find out if the circumstances surrounding your mental/mental injury entitle you to workers’ compensation benefits.

After showing that an abnormal working condition exists, unequivocal medical evidence is required to establish that the resulting psychological disability is causally related to the abnormal working condition. This medical evidence is often established by the testimony of your treating physician, likely a psychologist or psychiatrist, and is something your attorney can handle.

Because of the high burden placed on employees trying to prove this type of claim and the highly fact-specific nature of the claim, for this type of injury, it is particularly important to hire an attorney. Our attorneys are experienced and understand how to handle these types of claims. Further, if you have not been able to obtain medical treatment yet for your psychological injury and feel as though you need to see a medical professional about it, our attorneys can refer you to a doctor to get the treatment you require and deserve.

Mental/Physical Injury

A work-related psychological stimulus, such as stress, that results in a “purely physical injury” falls into the mental/physical category. Proof of an abnormal working condition is NOT required for this type of claim. For these types of injuries, there are two common elements: (1) psychological stimulus that causes a physical injury, which continues even after the stimulus is removed; and (2) a disability or loss of earning power which is caused by the physical condition rather than by the psychological stimulus. This is another type of injury that is fact-intensive and requires an attorney to analyze the facts giving rise to the alleged claim.

If an employee can show a work-related psychological stimulus, such as work-related stress or anxiety, caused physical injuries, it is covered under the Act. Examples of these types of injuries may include high blood pressure, gastrointestinal (stomach) issues, or even heart attack that is caused by something at work. If you are experiencing a physical injury from a work-related psychological stimulus and it has caused you to miss work, or, even if you have continued working it has caused you to require medical treatment, your mental/physical injury should be covered by workers’ compensation. To prove that there is a physical injury resulting from a psychological stimulus, there needs to be medical evidence. Again, typically this would involve medial testimony of the doctor you treat with for the physical condition, and your attorney would handle the testimony.

What should you do if you think you have suffered a psychological injury?

Contact us. The consultation is always free. We will be able to properly assess your claim and determine if your work-injury entitles you to benefits under the Act.

In order to establish a right to compensation, the Workers’ Compensation Act requires:

1. 1. An employment relationship
2. 2. During which an accident or injury arises
3. 3. In the course of employment 
4. 4. And is related to the employment

However, it is not always clear-cut whether an individual has “an employment relationship”. How do you know if there is an employment relationship? This comes down to whether you are considered an “employee”. 

Who Is An Employee Under The Workers’ Compensation Act

The determination of an employment relationship under the Workers’ Compensation Act requires a review of the relationship on a case-by-case basis. Four key elements must be analyzed:

• The right to select the employee
• The right and power to remove the employee
• The power to direct the manner of performance
• The potential power to control the employee

Generally speaking, an employee is defined as a servant and includes persons who perform services for another for a valuable consideration. Valuable consideration is typically money but can be other benefits. On the flip side, employers are considered masters, because they control what an employee does. As such, an employment relationship requires a master/servant relationship between the employer and employee. 

Many times, the existence of an employment relationship is obvious in nature. For example, you may have an employment contract or job offer letter that clearly outlines your employment. It is clear who controls your schedule, sets your wages, defines your job duties, etc. 

However, oftentimes determining whether an employment relationship exists can be complex. This could be because even though you are injured while working, you are labeled as an “independent contractor”. It is important to understand what effect, if any, that classification has on your rights. 

What is an Independent Contractor?

It is important to understand the difference between an employee and an independent contractor. Independent contractors do not have the right to workers’ compensation benefits because there is not an “employment relationship”, which, as noted above, the Act requires. However, simply being labeled an independent contractor does not mean you are legally an independent contractor under the Act. You should contact us to help determine whether you are actually an employee. 

What do we mean by this? An independent contractor is not an employee because of the absence of a master/servant relationship. That means an independent contractor is free of control from the alleged employer. However, many times, even though a person has a contract that states they are an independent contractor, their relationship with the alleged employer qualifies them as an employee under the Act. I.e., their work for the alleged employer is more like a master/servant relationship. Even if you are labeled as an independent contractor, there are fact-specific considerations used to determine whether you are an independent contractor. As such, a workers’ compensation attorney should look at the facts of your case. 

The primary factor looked at is the alleged employer’s right to control either the work to be done or the manner in which the work is to be performed. For example, if the alleged employer is telling you when to work and what to do, that tips the scales in favor of an employment relationship. Other considerations include the terms of the agreement between the parties, the nature of the work/occupation, the skill required for performance, whether the one employed is engaged in the distinct occupation or business, which party supplied the tools, whether payment is by the time or by the job, whether work is part of the regular business of the alleged employer, and the right to terminate the employment at any time. 

As noted above, much of the analysis is placed on how much direction and control the alleged employer has. It is whether the alleged employer had the right to control the individual’s activities and not the actual exercise of that right that is determinative of the employment issue. When the alleged employer has the right to control an individual’s activities, an employment relationship is found, even when an individual is allowed to decline work whenever she/he chooses to. Control exists where an alleged employer possesses the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance, and the power to control the employee. 

An agreement describing a relationship as an independent contractual relationship is not enough to prove you are an independent contractor if the facts surrounding your employment qualify as an employment relationship. Further, even your tax form is not enough, on its own, to prove the employment status in the context of workers’ compensation.

Construction Workplace Misclassification Act

Additionally, all individuals employed in the area of construction are subject to the Construction Workplace Misclassification Act (“CWMA”). To qualify under the CWMA, the employer must be in the construction industry. An individual who performs services in the construction industry for money is an independent contractor ONLY if all three of the following criteria are satisfied: (1) the individual has a written contract to perform such services, (2) the individual is free from control or direction over performance of such services both under the contract of service and in fact, and (3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession, or business. 

Because Pennsylvania employers are required to carry workers’ compensation insurance for employees, but not independent contractors, the CWMA was put in place to protect workers from being intentionally misclassified as independent contractors. For example, if a construction company had mostly “independent contractors”, they would not have to pay as much for workers’ compensation insurance. Thus, companies can save money by labeling employees as independent contractors. As such, the criteria for being classified as an independent contractor is harder to meet in the context of construction. 

If you have been injured in a construction accident contact us today!

What Should You Do?

As you can see, there are many things to consider in making an employment relationship determination, not all of which was discussed in this blog. If you are unsure of whether you qualify as an “employee” under the Act, you should contact an attorney. Our attorneys understand how to analyze whether you are owed benefits under the Act. Do not let an employer use the term “independent contractor” to prohibit you from receiving benefits you deserve when you are, in fact, an employee. If there is a dispute regarding your work status, our attorneys are equipped to handle testimony and present evidence to prove an employment relationship. Furthermore, under the Act, certain miscellaneous occupations are considered employees, such as volunteer firefighters or even “Good Samaritans”. 

The most important thing to remember is that no one fact is determinative on its own. Every case is unique. Many factors are analyzed in determining an employment relationship, and it is important to find out if you are an employee. It could mean the difference between receiving the benefits you are owed or being wrongly denied. 

Contact Us – the consultation is always free. 

TERMINATION PETITION

You are injured on the job and your Employer accepts the work injury by issuing a Notice of Compensation Payable (“NCP”).  You are going to physical therapy and seeing an orthopedist to treat the work injury.  During that time, you are being paid wage loss benefits and your medical bills are being taken care of by the employer’s Workers’ Compensation insurance company.  Then one day, the Employer sends you to a random doctor for an Independent Medical Examination (“IME”).  That doctor says, “Vwaa-laa”, you are fully recovered and ready to return to your pre-injury job without any restrictions. You receive in the mail a Termination Petition based on that doctor’s one report.  The employer is suddenly trying to stop paying you wage loss benefits or cover your medical bills. You, on the other hand, know that you cannot physically return to work because you are still having ongoing symptoms from the work injury.  Do not panic! Seek representation so you can effectively rebut the IME doctor’s opinion that you are able to return to work.

THE EMPLOYER WANTS TO TERMINATE YOUR BENEFITS

You should know that the IME doctor is retained, and paid by, the employer’s Workers’ Compensation insurance company.  More likely than not, they will concoct some medical basis for finding you fully recovered from your work injury.  We see this on a daily basis. Once a Termination Petition is filed, the employer bears the burden to prove that your disability has ceased, or that any current disability arises from a cause that is unrelated to your work injury. The burden always stays with the Employer; it will never shift to you as the injured worker.  Therefore, you do not have to prove your case, the employer must prove theirs.  Not only does the burden stay with the employer, but it is a difficult one to overcome.  The employer must demonstrate by “substantial medical evidence that all disability has ceased.”  This is a considerable burden because, under the Workers’ Compensation Act, disability is presumed to continue until demonstrated otherwise.

The employer may also file a Termination Petition if they learn you suffered an intervening trauma or other medical condition after the employer accepted the work injury, alleging that your ongoing disability is no longer work-related.  In that case, the employer must demonstrate that there is an independent cause for the disability that arose after filing the NCP.  This is also a high burden for the employer to meet.

One term that you may hear with the filing of a Termination Petitions is “supersedeas.”  Supersedeas means your Employer is trying to stop your wage loss benefits immediately while your case is litigated.  Like the Termination Petition, the employer has the burden to prove they are entitled to supersedeas.

What does this look like?

To give you a peek into what this litigation looks like, the Employer files a Termination Petition and is seeking supersedeas.  The case is assigned to a Workers’ Compensation Judge who will hold a hearing within 21 days of the filing of the Petition to hear evidence on the request for supersedeas.  Most times, you as the Claimant will be given more time to respond to supersedeas, typically with a signed affidavit explaining why the IME doctor is wrong and your doctor’s medical reports showing your inability to work. Once you submit your evidence, the Judge will rule on the request for supersedeas within the next 14 days. If supersedeas is denied, you will continue to receive your wage loss benefits as usual.  If, on the rare occasion, supersedeas is granted, the employer will no longer pay your wage loss benefits throughout the duration of litigation. From this point forward, the timeline of your case is similar to if your claim was originally denied and you filed a “Claim Petition.”

Moving forward, the employer’s attorney will take your deposition.  A deposition is a form of testimony that is usually held away from a courthouse in an office of one of the attorneys involved in the case.  The Judge is not involved, but there would be a court reporter to take down what is said during the deposition and produce a written transcript of it, which the Judge will review at a later date.  The employer’s attorney will ask you a serious of questions regarding your injury, past medical history, current symptoms, recent medical treatment, past employment history, etc.  There is a wide latitude of topics that can be covered during a deposition.  Then, the IME doctor will be deposed. At that time, your attorney will have the opportunity to cross examine the doctor, questioning his/her basis for finding you fully recovered and able to return to work. Additionally, you will have the opportunity to produce your treating doctor to testify on your behalf.  Your treating doctor is a great witness because he/she has the ability to give detailed and sound insight on your physical condition over the course of your treatment, as opposed to the IME doctor, who only saw you once.

Once all the evidence is complete, the Workers’ Compensation Judge assigned to your case will hold a final hearing in order to finalize the evidentiary record and set deadlines for legal briefs.  The Judge may also want to hear brief testimony from you in order to get a sense of your credibility.  After the final hearing, the employer’s attorney will have 30 to 60 days to draft and submit their legal brief and your attorney will have 30 additional days to draft and submit their legal brief in opposition to the Termination Petition. Once briefs are submitted, the Judge will review the briefs in conjunction with the evidentiary record and issue a decision, usually in the next 30 days.

Keep in mind that a Workers’ Compensation lawyer will not collect a fee unless they have to go to Court to recover benefits or defend you from those benefits being terminated. So, even if you are being paid benefits, you should have an attorney in your corner so when you receive that Termination Petition in the mail, you know what to do.

Contacting An Experienced Workers’ Compensation Attorney

If you or a loved one has been injured in a work-related accident, call us at (215) 999-1443 or contact us by using the assistant or by filling out our contact form. The initial workers’ compensation consultation is free-of-charge!