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Can I Claim Workers’ Compensation for an Accident That Was My Fault?

October 19, 2023 • 4 minutes to read

Employee Actions and Workplace Injuries

Workplace accidents occur every day no matter how careful workers are or what policies and procedures are in place. These accidents could result from faulty machinery, someone else’s negligence, or weather conditions. Nonetheless, injuries can also result from an employee’s actions. When such accidents happen, it’s crucial to understand that, in most cases, you can still seek compensation for the injury, even if it was your fault. Pennsylvania Workers’ Compensation Law is a no-fault system through which an employee can receive benefits as long as the injury occurs in the course and scope of employment no matter who was at fault for the injury. However, certain circumstances may bar an employee from receiving workers’ compensation benefits, especially in situations where the employee is the one responsible for the accident.  

Compensable Injuries

Almost all injuries that occur while the employee is actually working will be compensable even if the employee is at fault. This includes injuries that occur at your place of work, on the road while conducting business, and on company property. A typical example of an injury that would be compensable under Pennsylvania Workers’ Compensation law, would be an employee walking across their employer’s premises, who trips and falls due to a wet spot on the floor injuring themselves. Since the employee is required to be on the premises during work hours and the injury occurred as a result of the employer’s premises, the injury is compensable. Another example would be an employee climbing a ladder, and he misplaces his hand, which causes him to miss a rung on the ladder and fall off of the ladder injuring himself. This is another compensable injury even though the employee caused the accident as it was a simple mistake that occurred on the employer’s premises. These examples make clear that accidents happen and when they do happen, employees should be compensated regardless of whether they were the ones at fault. 

When Injuries Aren’t Compensable

However, some circumstances may arise and cause the employee’s accident to become no longer compensable under Pennsylvania Workers’ Compensation law. An accident and consequential injury are not compensable when the employer can prove that the injury occurred because of one of the following circumstances: 

  • The employee was commuting to or from work: Employees that are injured while they are driving/taking public transportation to work and home from work are not compensable as the employee is not performing work duties and not on the employer’s premises. So, if you are injured during an accident that occurs as you are driving home from work, you will not be eligible to receive workers’ compensation benefits.
  • The employee was engaged in horseplay or engaged in an activity known to be hazard: If an injury results from horseplay and activities known to be hazardous it is not compensable. One can imagine a scenario in which employees are having fun at work throwing a football around and the employee running to catch it sustains an injury straining their back or shoulder. To provide another example, imagine an employee operating a forklift after work hours for fun. While using the forklift, the employee falls off of the machine and injures himself. These injuries are not compensable as the employee was engaged in horseplay and the forklift is an activity known to be dangerous.
  • The employee was engaged in a fight: If an employee is injured as a result of their own personal animosity or engaging in a fight that is unrelated to work, the injury is not compensable. Thus, if two employees engage in a fight over something as simple as a family matter which results in an injury, that injury would not be compensable as it was unrelated to work.  
  • The employee intentionally self-inflicted harm to themself: Unfortunately, many people every day harm themselves for a variety of reasons. These injuries caused by self-harm are not compensable whether the employee is doing so to seek compensation, or the self-harm is for other personal reasons.   
  • The employee was violating a direct order from the employer: Even if the act that causes the injury generally falls inside the scope of duties of the employee, if an employer specifically tells an employee not to engage in the act and the employee does so anyway, the injury will not be compensable. Consider an employee who works as a carpenter. The employee typically must cut wood using a saw prior to installing the wood to build a roof. If the employer tells the employee not to use the saw anymore and to only work on installation, but the employee uses the saw anyway and accidentally cuts his hand, then the injury is not compensable.  
  • The employee was under the influence of drugs or alcohol: Injuries caused by intoxication are not compensable. For example, if an employee shows up to work drunk and is unable to operate machinery properly because of intoxication, any injury that arises from the misuse of the machinery is not compensable.  
  • The employee was injured offsite: Injuries that occur off of work property are not compensable as long as the employee is not conducting work activities or on the premises. For example, if you are injured while mowing your lawn at home, the injury is not compensable.  

To Sum It Up

These are the most significant situations in which injuries resulting from an employee accident will not be compensable. To sum it up, an employee’s injuries due to their own accidents are generally compensable under Pennsylvania Workers’ Compensation Law. An employee can only be denied benefits under Pennsylvania Workers’ Compensation Law if the accident resulted from the employee’s gross negligence or purposeful misconduct, and the employer can provide evidence that the injury occurred due to such gross negligence or purposeful misconduct. An employee is not barred from compensation when the accident and injury simply arise due to a mistake or general negligence as employees are often forgetful and frequently cause accidents harming themselves. Prior to bringing a workers’ compensation claim for an accident that the employee caused, the employee should consider whether they were attempting to perform their job duties properly and whether the employee was engaged in activity that is inappropriate for a work setting

Determining your eligibility for workers’ compensation benefits in cases where you were responsible for the accident may present complexities. Contact our legal experts for assistance and guidance.

  

If you or a loved one has been hurt at work, call Stern & Cohen at (215) 999-1443 or fill out a contact form below to get in contact with a Pennsylvania Workers’ Compensation Attorney. 

Is Workers’ Compensation Taxable Income in Pennsylvania?

By Chloe Murray on September 21, 2023 • 4 minutes to read

This is a very common question with an easy answer: no. Workers’ compensation lost wage benefits are not taxable.

The weekly or bi-weekly payments are not subject to income tax. Similarly, a workers’ compensation settlement is not taxable income.

The policy behind this rule is that income is a person’s earnings or wealth. Contrarily, workers’ compensation benefits are paid or awarded to make you whole again after an injury, not necessarily to be your income. There are other types of monies considered to be non-taxable as well such as:

1. Payments from programs administered by a public welfare fund

2. Settlements or awards in personal injury claims

3. Disability benefits paid from a no-fault auto insurance policy covering loss of income due to an accident

4. Damages paid from a settlement to compensate for the permanent loss of a body part or function. 

  

You can receive workers’ compensation benefits in a lump sum settlement or on a weekly or bi-weekly basis. 

Let’s talk about weekly benefits first. 

The amount of pre-taxed benefits you are entitled to following a work injury, or more commonly called the temporary total disability (“TTD”) rate or compensation rate, is based on your pre-injury average weekly wage. Similar to your income bracket for tax purposes, the Pennsylvania Department of Labor categorizes income into certain brackets depending upon how much you make. If your pre-injury average weekly wage is below a certain number determined by the Department, your pre-tax TTD rate is 90% of your pre-injury average weekly wage; if you make the “average” amount per the PA government, your pre-tax TTD rate is 66 2/3% of your pre-injury average weekly wage; if your pre-injury income is between two specific numbers set by the Department of Labor, your pre-tax TTD rate is automatically a specific amount; if your income prior to the injury is a certain amount or more, determined by the government, your pre-tax TTD rate is capped. Keep in mind that the numbers in each category differ from year to year, and the year your injury occurred is the relevant year used to determine your specific disability rate.  

Let’s use 2022 as an example here. In 2022, if your average weekly wage is between $903.756 and $1,807.50, then your non-taxable compensation rate is 66 2/3% of your pre-injury average weekly wage. If your average weekly wage is between $669.44 and $903.75, your non-taxable workers’ compensation rate is automatically $602.50. If your average weekly wage is $669.43 or less, then your non-taxable workers’ compensation rate is 90% of that number. Finally, if your average weekly wage is $1,807.50 or higher, you get the maximum benefit rate for 2022, $1,205.00 weekly.  

Keep in mind that the calculation of your benefit rate includes all the jobs that you had at the time of your injury.

Many times, insurance companies will short injured workers by not including earnings from concurrent employers. Do not allow this to happen to you.

Get A Free Same-Day Case Evaluation

 

You may also receive a settlement following a work injury.

The most common scenario for a settlement is consideration of both past and future wage loss. Simply put, when considering what your case is “worth,” the parties usually take into consideration the wages you have been missing due to your time out of work due to the injury, and wages you may miss in the future if you need to continue to remain out of work without an income. The wage loss calculations are based on the above TTD rates. When considering both past and future wage loss, neither are taxable. In fact, regardless of what factors are taken into consideration for a settlement, the settlement is not taxable.  

The question of whether workers’ compensation benefits are taxable seems like a simple one. However, ensuring that you get benefits you are entitled to; ensuring you receive the correct amount of benefits and ensuring that your benefits are not illegally stopped can be complex. It is important to retain an attorney as soon as you sustain a work injury. Your employer and their insurance company are always looking out for themselves.  

  

If you or a loved one has been hurt at work, call Stern & Cohen at (215) 999-1443 or fill out a contact form below to get in contact with a Pennsylvania Workers’ Compensation Attorney. 

Will a Pre-Existing Condition Prevent Me From Getting Workers’ Compensation in PA?

By Katy Luchansky on May 12, 2023 • 2 minutes to read

A common question we hear is, “Will a pre-existing condition prevent me from getting Workers’ Compensation benefits in Pennsylvania?”

In short, no! In fact, many injured workers have pre-existing conditions. Sometimes, the pre-existing conditions may be due to the years of physical labor the employee has done. Other times, the pre-existing condition has nothing to do with the job, but nevertheless has an impact on the subsequent work injury. Either way, a pre-existing condition does not prevent an injured worker from being entitled to workers’ compensation benefits in Pennsylvania if they suffer a work injury.

Pre-Existing Conditions

Many people have pre-existing conditions that they manage every day, such as diabetes or asthma. However, they are able to work despite these pre-existing conditions. The pre-existing condition, nevertheless, may have an impact on a work injury. For example, if an employee is working in a warehouse and lacerates his foot, that may be a relatively simple injury for some people. For a diabetic, though, it can complicate and can even prolong the healing time of wounds, and the injured worker may have to be out of work longer than if an employee without diabetes got cut. The fact that the injured worker has a pre-existing condition – diabetes in this case – does not prevent them from being able to collect workers’ compensation benefits for the time they missed from work and medical bills related to this wound. In other words, the employer cannot say the injured worker missed time from work because they are diabetic. The injured worker missed time from work because of the injury itself. The injured worker just so happens to also have diabetes, complicating the injury.

This is because of the legal concept of the eggshell plaintiff doctrine. An employer takes an employee as he/she comes. In the example above, the employee had been working without any problems with diabetes. Then, the employee was injured and unable to work for a prolonged period of time due to a pre-existing condition, diabetes. The fact that the employee has diabetes is not a defense or a valid reason to deny the injured worker workers’ compensation benefits.

What is an “aggravation” under the law? 

Under the Act, an aggravation of a pre-existing condition is also considered a work injury. A common example of this is a worker who has arthritis. For example, a carpenter may have had knee arthritis for years and even would periodically treat for the knee arthritis. There is no dispute that it existed before the work injury being claimed. However, let’s say the worker twists his knee one day while getting up, and the knee pain becomes unbearable, preventing him from being able to work. The MRI may even only show arthritis. The insurance company will likely try to deny the claim, indicating that you have had arthritis all along. This is obviously true. But, that should not prevent you from being able to recover workers’ compensation benefits. This is because the twist clearly aggravated and worsened the knee condition to the point where the injured worker could no longer work. The injured worker had been able to work with this pre-existing condition before the injury at work aggravated it to the point where he could no longer tolerate the work.

If you or a loved one has been injured at work, call Stern & Cohen, We can assist you with any type of Workers’ Compensation claim.  The consultation is always free.

How Do You Pay for a Pennsylvania Workers’ Compensation Attorney to Represent You?

By Chloe Murray on April 13, 2023 • 3 minutes to read

When you are injured at work and need legal representation, one of the first questions you may ask yourself is, “How will I afford an attorney?” 

How does a Workers’ Compensation Lawyer get paid? 

In a Pennsylvania workers’ compensation case, your attorney will likely charge a contingent fee. This means that the only time the attorney receives money for your case is if they win the case for you. If they lose the case on your behalf, they will not get any money and will not charge you any money out of your pocket. In Pennsylvania, your workers’ compensation lawyer is not legally allowed to take a fee of more than 20%. Generally speaking, a personal injury attorney will take 33% or more of any money recovered on your behalf. In a Pennsylvania workers’ compensation claim, only wage loss benefits and medical benefits can be awarded. In most circumstances, Stern & Cohen will only take a fee on wage loss benefits, meaning that payment of your medical bills will not be affected when you retain a lawyer. Once both you and an attorney at Stern & Cohen determine that we should represent you, you will sign a Contingent Fee Agreement, agreeing that Stern & Cohen will receive 20% of benefits recovered on your behalf.  

If you and your attorney win your case, you will split your winnings, 80% to you and 20% to your attorney. The same is true if you settle your case—you will get 80% of the lump sum settlement and your attorney will get 20%. If you lose the case, no one gets anything. In the circumstance of a Claim Petition, where the insurance company is not paying you your workers’ compensation benefits and we need to litigate the case for you to get paid, the fee will not start until we win the case or the case settles. In the circumstance where you are being paid and the insurance company tries to stop your benefits, the fee may start once Stern & Cohen becomes involved, as we would need to immediately present evidence to ensure the insurance company does not stop your benefits unless and until the Judge orders so. In either circumstance, a Judge must approve the Fee Agreement. Unless and until that document is approved, the fee will not start. In most cases, though, a lawyer will not work on your case until the Fee Agreement is signed.  

Do I have to pay for the litigation costs? 

Another worry that some clients have is whether they will be responsible for the out-of-pocket legal expenses that may be incurred during litigation. These costs include obtaining medical records, payment of transcripts of depositions and hearings, and costs for a doctor’s deposition. There is no need to worry about these fees. If you and your attorney win your case, the Judge will order that the insurance company must pay for reasonable litigation costs. If you settle your case, roughly nine times out of 10, the insurance company will pay for the litigation costs. If you lose your case, generally speaking, Stern & Cohen will pay for the costs incurred of litigating the case. 

There is no risk in speaking with a lawyer at Stern & Cohen. The consultation is free. From there, we will determine whether we can take your case, and thus, whether a Fee Agreement needs to be signed. Once again, whatever the outcome of your case, you will not have to pay anything out of pocket to Stern & Cohen. 

The Pennsylvania Supreme Court recently issued an Opinion that slightly changed the landscape of attorney’s fees. The Court held that attorney fees can be awarded when the injured worker prevails. This means that the Judge can order money to be paid to the attorney over and above the “award” for wrongdoing on the part of the insurance company. Judges have discretion as to when they award these fees and usually, they are only awarded in very limited circumstances, so it is important to have a lawyer that knows when it is appropriate to request such a fee. While this case is new and there has not been much litigation surrounding it, attorneys have predicted that these fees will most frequently be awarded when only medical benefits are in dispute.  

If you or a loved one has been injured at work, call Stern & Cohen, We can assist you with any type of Workers’ Compensation claim.  The consultation is always free.

5 Important Factors in the Settlement of Your Workers’ Compensation Case

By David Stern on March 27,  2023 • 4 minutes to read

When the appropriate time has come to settle your case, the credibility of your workers’ compensation lawyer is very important. Your best interests must be the sole focus of your lawyer. If they are thinking about their own financial needs, you will be led down the wrong path. If they fear risk for selfish reasons, your case will be settled short. This does not mean your lawyer should be oblivious of risk, but they should never allow it to paralyze them. Fear of losing out-of-pocket case costs invested in your file (when the odds of an unfavorable outcome are low), can make for bad decision making on your behalf.

 

Having settled thousands of cases on behalf of injured clients, the lawyers at Stern & Cohen know precisely how to navigate a potential settlement of your case. One comment that we often hear from clients is something along the lines of: “but my friend down the street got X dollars and his injury was only…”  First, usually said friend has embellished his or her settlement. Second, and the focus of this blog, many factors go into a settlement and no two cases are the same. The following are five items that play a huge role in what your settlement will be:

 

1. Your Workers’ Compensation Benefit Rate

Pennsylvania workers’ compensation cases are “wage loss cases.” You cannot get pain and suffering, nor punitive damages. Your cash recovery is limited to the recovery of your lost earnings. Those earnings are determined by your workers’ compensation rate. If your workers’ compensation benefits are $600 per week, that means the insurance company will pay you $31,200 per year ($600 * 52 weeks).  That number is very important and will largely determine what the insurance company will be willing to pay to settle your individual case. For example, if the insurance company perceives a risk of paying benefits for three years, they will likely be willing to settle for $90,000 – $100,000. Of course, if everything else is equal, and your workers’ compensation rate is $1200 per week, the same case might yield a settlement of $180,000 – $200,000 (as this is 3 years at $1200).

 

2. Is Your Case in Litigation?  Know Your Risks!

Although risk does not have to garner fear, it is clearly worthy of consideration.  If your case is in court, and there is any risk of potentially losing your benefits, this might be a reason to consider slightly less in your settlement than perhaps your original expectations. Of course, if your case is not in court, you may wish to be a little bolder. It is always good to know if litigation may be lurking around the corner too. An experienced workers’ compensation lawyer, like the team at Stern & Cohen, can guide you on this and help you understand what litigation means for your settlement expectations.

 

3. The Judge

This factor would seem obvious, but truly requires a good deal of knowledge on your lawyer’s part. Has your attorney tried cases all the way to a decision with your judge? Do they know His or Her tendencies? If not, how are you getting sound advice on your chances of winning versus losing? Knowing what your judge might do is critical in helping you make an informed decision about a resolution of your case. If your chances of winning with your judge are high, bend less in negotiations. If your chances of losing with your judge are higher than with others, be ready to have more flexibility in your negotiations. Your attorney must be well-versed in your judge’s tendencies and philosophies.

 

4. The Truth About Your Earning Capacity

As workers’ compensation cases are wage loss cases, understanding your future earning capacity is very important for helping you to decide whether to settle and for how much.  First, if you are confident that you can eventually move on from your injuries and secure new employment, be mindful of this when considering what you might be willing to accept.  If you feel that you may be able to work again within a year and you are getting an offer of four years’ of pay to settle, this may be a very good result for you.  However, if your prospects of ever becoming employed again are dim, then the same offer may not be wise for you.  This conversation with your lawyer is “privileged” and will never be shared.  It is good to have that honest discussion to level expectations.  Second, it is good to know what the employer/insurance company might have up their sleeves to try and prove a future earning capacity.  Is your employer the type of place that may be able to offer you a very easy, light duty job to try and get your benefits stopped?  Having a complete understanding of how the employer may be able to prove your earning capacity (or their inability to prove this) is invaluable.  This is clearly an item that warrants consideration in determining a settlement.

 

5. What Are Your Goals?

This is an important one.  This is when your lawyer needs to be able to take off his or her “attorney hat” and speak with you on a different level.  We often say to our clients:  “What do you want to do from here?”  Sometimes we have a client that tells us they want to open their own business.  We have had clients tell us about their financial needs for a child attending college.  It is incredibly meaningful to understand these items.  Your lawyer can tell you what your case is worth and try and approximate how long it will take to get it settled near that figure, but if you have other timelines that need to be met, that is important.  Maybe you have to take less to settle your case to make a tuition payment in a timely fashion.  This can often lead to the most rewarding discussions.  A peek into your life can lead to a solid bond with your attorney and help them understand what your motivation is.  Holding out for a little more money and losing out on a great employment opportunity could prove to be a misstep.  These global discussions of your whole life picture play an important role in your settlement.

Obviously, there are many items that warrant consideration in the settlement of your case.  This is just a look at five important factors in our view.  If settling your workers’ compensation case is something that you want to review, call us at Stern & Cohen.  The consultation is always free.

What Does A Paralegal Do?

Aside every workers’ compensation lawyer is a dedicated paralegal.  At Stern & Cohen, our paralegals work diligently to make sure your Workers’ Compensation matter is a seamless process.

So, if you’ve been hurt on the job, we’ve got you covered.

Paralegals are responsible for a wide range of legal tasks.  A few main responsibilities include:

  • Preparing files for upcoming hearings.
    • This entails reviewing the file, preparing exhibits, and preparing our clients for testimony.
  • Advising the covering workers’ compensation attorney what has been done thus far, status of litigation, and what needs to be done.

Our paralegals work alongside the attorneys to ensure everything is prepared and ready when it is time for your hearing.

Because of the large role paralegals play in legal research, preparation, organizing files, and drafting documents, it is likely clients will frequently be in contact with Stern & Cohen paralegals. 

C&Rs

When it comes to Compromise and Release agreements (C&Rs), our paralegals will always review C&Rs internally as well as with the client.  Stern & Cohen paralegals will always prepare the client for Teams meetings to ensure minimal technical difficulties.  Alongside those tasks, they will also set up any preparation for testimonies.

Mediations

Additionally, paralegals will also conduct all preparation for mediations.  This includes preparing the pre-mediation memo and preparing costs.  Cost preparation includes ensuring medical balances are done and double checking the covering attorney has completed the memo for the judge.

Miscellaneous

Our paralegals take on a lot of additional, miscellaneous tasks such as stipulations, subpoenas, moving party forms, etc.

Stern & Cohen paralegals are here to answer questions and put your mind at ease throughout any point in your Workers Compensation matter.

If you or a loved one has been hurt at work, give us a call at (215) 999-1443 or fill out a contact form below to get in contact with a Pennsylvania Workers’ Compensation Attorney.

Can You Receive Workers’ Compensation if You Work Remotely?

By Katy Luchansky on February 14, 2023 • 3 minutes to read

The simple answer is yes. Many people think that workers’ compensation benefits are specific to people working in an office or at a job site, but workers’ compensation benefits cover all employees – even those who work at home.

This has become increasingly important to be aware of with a shift to remote work or hybrid work for many employers since the COVID-19 pandemic.

Remember – workers’ compensation benefits cover wages and medical bills for people injured while in the course and scope of employment. Just because an employee may work from home does not exclude them from their entitlement to these benefits if they are injured while performing their job duties. Oftentimes in these types of injuries, the key question becomes whether the employee was injured while they were engaged in the furtherance of the business or affairs of the employer and whether you were in the course and scope of your employment.

Challenges Unique to Remote Work Injuries

Remote work injuries provide unique challenges. One of the challenges is that because the employee is injured at home, there is likely not going to be a coworker or supervisor on the scene to corroborate the incident or on-site medical to immediately go to. This makes reporting the injury to your employer even more crucial in these circumstances. Not only reporting the injury – but making it clear to your employer that it was work-related.

For example, let’s say you tripped and fell at home, injuring your back. You tell your employer that you are injured and will be missing time from work. If you are a remote employee, your employer may assume was simply a fall that occurred at home while outside of the course of your employment, perhaps while doing personal lawn work or after getting out of the shower. If that is the case, then it would not fall under workers’ compensation. Moreover, the fact that the injury occurred during work hours is not enough to prove an entitlement to workers’ compensation benefits. As work-from-home has become more commonplace, so have habits such as quickly changing a load of laundry during the day or perhaps showering before a video meeting. If your injury occurs during those personal activities, under the law, you are not entitled to workers’ compensation benefits.

However, if you fell while going to answer your work phone or packing up equipment to bring back to your employer, the injury is likely covered by workers’ compensation. Some cases have even found that falling while walking down your stairs can qualify as workers’ compensation if you were on a work call or while attending to your personal comfort. That is because you were injured while in the course and scope of your employment at home. A simple way to think of it is asking yourself “was I performing or in the process of performing a work duty when the accident occurred?” If yes, you might be entitled to workers’ compensation benefits. Remember, in the example above, tell your employer you fell while working. This will help clear up any course and scope issues that may arise if your claim is denied and you are forced to file a claim petition.

Bottom Line

As with most injuries, whether you are entitled to workers’ compensation benefits as a remote worker is highly fact sensitive. Generally speaking, Pennsylvania law requires employers to carry workers’ compensation insurance to cover all employees. This includes remote workers. Working from a home office does not preclude you from the benefits that would be available to you if you were working in your employer’s office. Call our office to see if your injury at home was in the course and scope of your employment.

At Stern & Cohen, we can assist you with your work from home injury or any type of Workers’ Compensation claim.  Call us.  The consultation is always free.

Do You Qualify for Workers’ Compensation Benefits?

By Chloe Murray on January 26, 2023 • 4 minutes to read

Understanding whether you qualify for Workers’ Compensation benefits can be complicated. There are many questions that must be answered. Were you in the course and scope of your employment? Were you an employee as required by law? Were you intoxicated at the time of the injury? Did you report the injury in a timely fashion? The list goes on. Defining who is considered an employee for purposes of Workers’ Compensation is the first step of your claim.

There are many definitions of an employee. A simple definition is a person hired to do a specific job for another. An employer is a ‘master’ of that person. If you are hired by another, you are that person’s employee. However, there are many, many caveats, or exceptions to this generality. Two of the most litigated issues surrounding this topic are statutory employers and independent contractors.

Statutory Employer

A statutory employer is “a master who is not a contractual or common-law one but is made one by the Act.” When we think of the term employer, we usually think of a boss or someone in Human Resources. This would be a contractual employer, i.e., you signed a paper or verbally agreed that this person or entity would be your employer. A common-law employer is one who has control over the work you do. For example, you are a salesperson at a mom-and-pop retail store. Your boss tells you a salary, the hours you will work, and what you will do each day at work. You may not have signed an employment agreement, but the mom-and-pop retail store is your common-law employer.

A statutory employer means that, while an employer may not have specifically agreed to be an injured workers’ employer, under the Act, they have made themselves so and are thus responsible for payment of Workers’ Compensation benefits. In general, the statutory employer doctrine is used for construction cases. If a subcontractor does not have Workers’ Compensation insurance, sometimes, you can go after the general contractor for Workers’ Compensation benefits. The general contractor would be the statutory employer. The Workers’ Compensation Act lays out the different factors that must be met for a general contractor to be statutorily liable.

Usually, the injured worker and the general contractor will litigate the question of whether the contractor is a statutory employer. The Court will then render a Decision. If the Court finds that the contractor is a statutory employer for purposes of Workers’ Compensation, they are liable as though they were a contractual or common law employer. Thus, an employee would be entitled to Workers’ Compensation benefits, assuming they have met other requirements under the Act.

Independent Contractor

The second issue that comes up when discussing employee-employer relationship is independent contractors. Generally, an independent contractor is not an employee. Therefore, they are generally not entitled to Workers’ Compensation benefits. However, just because you sign an independent contractor agreement or file a 1099, does not mean you are an independent contractor. This is a question of law and generally in a Judge’s discretion to decide whether a person is an employee or an independent contractor.

In order to determine a person is an independent contractor, the courts consider multiple factors including:

  • Terms of the agreement between the parties
  • The nature of the work or 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
  • The right to terminate the employment at any time

While all of these factors are important, the primary factor is the right to control the person’s work. Like above, generally, the injured worker and the employer will litigate this issue. The Judge then will come to a conclusion. Each situation is determined on a case-by-case basis. The Courts focus on whether the employer had a right to control the employee. For example, did the employer control the hours? Time of work? Manner of work? Generally, if a Judge finds that the employer had a right to control the work, the injured worker will be considered an employee, not an independent contractor. If so, they will be entitled to Workers’ Compensation benefits, assuming they have met other requirements under the Act.

Whether you are eligible for Workers’ Compensation benefits can be a complicated question.

At Stern & Cohen, we can also assist you with any type of Workers’ Compensation benefits.  Call us.  The consultation is always free.

4 Types of Workers’ Compensation Benefits

By Katy Luchansky on December 20, 2022 • 3 minutes to read 

One of the most common questions asked pertaining to Workers’ Compensation is what types of benefits are involved when an employee is hurt at work.

There are four main types of benefits: medical, wage loss, specific loss, and death benefits.

1. Medical Benefits 

When an employee is injured at work, they likely need medical treatment. After giving notice and filling out the proper paperwork, they will be given a claim number for the work injury. The employer will likely send them to a panel physician to examine their injury. All medical treatment for the injury, regardless of whether it is with a panel physician, at a hospital, or a with specialist, should be going through the employer’s worker’s compensation insurance. Even if the individual has their own private insurance, under the law, the workers’ compensation insurance carrier has the obligation to pay for medical treatment pertaining to the work injury. Moreover, even if the employee is not missing time from work, if they require medical treatment because of their work injury, the medical bills are payable.

Although it is straightforward that medical bills are covered – employers often contest liability to not have to pay for medical bills. This puts employees in a tough position; especially when they do not have their own private health insurance to fall back on. Oftentimes, an employee is injured, out of work because of their injury, and unable to get medical treatment because of the denial of their claim puts them in a financial position where they cannot afford the treatment they require. Therefore, it is crucial to hire a workers’ compensation attorney. We can file the correct petition to ensure you get the treatment required during the pendency of litigation to make your employer liable for your work injury.

2. Wage Loss Benefits

One of the most stressful components of a work injury is that on top of the debilitating pain, many workers are unable to perform their job because of the injury. This takes them out of work, causing financial strain. If you are out of work because of your work injury, you are entitled to workers’ compensation wage loss benefits. Compensability is based on an injury that produces disability resulting in a loss of earning power. Remember: in workers’ compensation, disability means loss of earning power, or the inability to work your preinjury job.

If you are unable to work and your claim has been temporarily accepted or accepted, you will be paid wage loss benefits based upon your average weekly wage (AWW). That is simply the calculation of what you earned weekly on average prior to your work injury. If you were a new employee, concurrently employer, or a seasonal employee, that calculation may be more complex.  Your wage loss rate for benefits is 2/3 of your preinjury wages, up to a maximum rate.

Let’s say you injured your knee at work and had to miss 6 weeks of work because of it. Your average weekly wage before getting hurt was $900. For the 6 weeks you were out of work, you should have received wage loss checks from your employer’s workers’ compensation insurer in the amount of $600 per week. Once you are back to work, those checks will stop, because you are now earning your regular wages and your “disability” has stopped because you no longer have a loss of earning power because of your work injury. Sometimes an injured worker may have to ease back into work after an injury or work in a light duty capacity, earning a lower rate of pay. If this is the case, you are entitled to partial wage loss benefits.

Remember, even if your claim has been wrongfully denied, if you are out of work, we can file a Claim Petition to get you the wage loss benefits you deserve.

3. Specific Loss Benefits

Compensation is payable for loss (amputation) or permanent loss of use of members of the body, binaural hearing impairment of greater than 10%, loss of vision in one or both eyes, and disfigurement. Importantly, compensation for specific loss is paid regardless of loss of earning power and even if the employee loses no time for work. In other words, for example, if you have sustained hearing impairment because of your work, but have continued working, you are still entitled to a lump sum over and above your regular wages. For loss of use, the loss must be permanent, and the loss must be for all practical intents and purposes, requiring medical evidence.

Disfigurement of the head, neck, or face, if serious, permanent, and unsightly, is compensated for a period of up to 275 weeks of the individual’s disability rate. Most commonly, this is seen as scarring after a work-related surgery. For example, if you require neck surgery for a neck injury you sustained at work, you may have a scar on your neck. You are entitled to compensation for the appearance of the scar. Another example is the loss of teeth.

4. Death Benefits

Unfortunately, some serious work injuries lead to death. This can be due to an injury or an occupational disease. In those situations, we can file what is called a fatal claim petition. These must be filed within 3 years after the death and include weekly compensation benefits as well as burial expenses. These are lifetime benefits.

In a fatal claim petition, the employee must also establish membership in a class of recipients entitled to benefits under the Act, as well as all the other elements of a claim petition. The dependents entitled to benefits includes the widower, children under 18, and if there are neither of those, parents, brothers, and sisters. Give our office a call to help determine if you may be entitled to this type of benefits.

At Stern & Cohen, we can also assist you with any type of Workers’ Compensation benefits.  Call us.  The consultation is always free.

What Is The Difference Between Workers’ Compensation and Personal Injury?

By Chloe Murray on December 6, 2022 | ~ 4 minutes to read |

When you suffer an injury at work, it is important to know who can be found responsible for the injury and what you can recover from that entity. 

What Are Workers’ Compensation Benefits? 

If you are injured at work, you may be entitled to workers’ compensation benefits. Workers’ compensation benefits consist of wage loss benefits, medical bills, and in some cases, specific loss benefits. Wage loss benefits are wages that you are no longer earning because you cannot work due to the work injury. An Employer may also be required to pay for medical bills that you incurred as a result of the work injury. Finally, specific loss benefits are benefits (or money) paid for a permanent disfigurement or scar of the head, face or neck or the loss of use of a body part, meaning the body part cannot be used or has been amputated.  

What Are Personal Injury Damages? 

If you are injured in a personal injury realm, meaning that you are suing for the negligence of another party, you may be entitled to tort damages. Negligence is when a person or party does not act in a way that a reasonable person would or should—they are not acting in a way that we would expect them to, and as a result, you are injured. Tort damages are what we think of as “pain and suffering.” If you are injured outside the realm of work, you can recover financially for the physical and emotional damage that you have endured due to the injury. You can also recover medical bills. Finally, you may be able to recover other damages that you qualify for. For example, if your home is damaged due to a negligent contractor, you may be able to recover property damages; if you cannot work due to your injury wherein you slipped and fell at the grocery story, you may be able to recover your lost wages and your future lost future earning capacity; if your husband was injured, you, as the wife, may be entitled to compensation for the loss of all services and companionship of the injured spouse, otherwise known as loss of consortium; if conduct by a defendant is so extreme, it may warrant an extra “layer” of damages where the defendant is being punished for what he did on top of making you whole again, otherwise known as punitive damages.  

Who Can Be Held Responsible For My Work Injury and What Can I Recover? 

Aside from some limited examples explained below, if you are injured in the course and scope of your employment, you cannot recover pain and suffering damages or any other tort damages. The only benefits, or financial recovery, that you can recover from your employer after a work injury, are the wages you may not be receiving because of the work injury and payment of medical bills. In most instances, an employer cannot be held responsible for both workers’ compensation liability and tort liability.  

When you suffer an injury at work, your first instinct may be to go after the person that was at fault for your injury. For example, if you were injured because you slipped and fell after your co-worker spilled water on the floor, you may want to sue your co-worker. Or, if a patient accidentally grabs your arm too tight while you were lifting them, you may want to sue the patient. However, in Pennsylvania, if you suffer a work injury, you can only sue your employer for workers’ compensation benefits. This means that in most cases, if you suffer a work-related injury, you cannot sue your employer, or anyone else at your employer (i.e, the co-worker or the patient), for negligence. This means that you cannot recover any of the tort damages discussed above—only workers’ compensation benefits. This is what is known in Pennsylvania as the exclusive remedy doctrine. 

You may also think that you do not have a workers’ compensation claim if you were at fault. The exclusive remedy applies here too—if you can meet the requirements of proving you sustained a work-related injury, the Employer will be responsible regardless of whether you were at fault.  

As such, if you are injured while in the course and scope of your employment, chances are, you can file a workers’ compensation claim, but you cannot file a personal injury claim. To reiterate, this means that you can recover wage loss, medical and/or specific loss benefits, but you cannot recover anything for your pain and suffering.  

Exceptions To The Exclusive Remedy Doctrine 

One exception to the exclusive remedy rule, or otherwise stated, a circumstance in which you may be entitled to tort damages in the context of a work injury, is if there is a third-party claim involved as well. This claim, or lawsuit, is separate and apart from the workers’ compensation claim. This type of case only arises in certain situations. For example, if you were involved in a motor vehicle accident while driving a client to a doctor’s appointment, you may have a claim against the other driver. Another example would be if you worked as a machine operator, a machine malfunctioned, and you were injured, you may have a claim against the machine manufacturer. In these two examples, you could have a claim against the third party, i.e., the other driver and the product manufacturer, and a claim for workers’ compensation because you were hurt at work. As such, you could potentially recover pain and suffering and other tort damages from the third party, and workers’ compensation benefits from your Employer. While these claims are technically distinct from one another, they can become intertwined. It is extremely important to have a knowledgeable attorney on your side to navigate the potential overlapping claims.  

Another exception to the exclusive remedy rule, is if you were intentionally harmed at work. Sometimes referred to as the “personal animus” exception, you can sue your employer for negligence if someone at your employer—your boss, your co-worker, or anyone else—intentionally harms you for personal reasons unrelated to your work. The standards to meet this personal animus exception are very high and can be complicated.  

Understanding the difference between personal injury and workers’ compensation and when you can sue who can be complex. When you are injured at work, it is important to have an experienced workers’ compensation attorney to navigate these types of claims. 
At Stern & Cohen, we can also assist you with Personal Injury.  Call us.  The consultation is always free.
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