My employer is closing. What are my rights under the Pennsylvania Workers’ Compensation Act?

If you have been a victim of a layoff while having an open workers’ compensation claim, , either medical or wage loss, you may be entitled to reinstatement of your workers’ compensation benefits.  There are multiple factual scenarios common when an employer decides to close up shop and move out.   As with everything, every factual scenario is unique and provides variations fact patterns in the law which we will generally discuss below.  If you have any questions or would like additional information, feel free to contact our office.

Scenario #1:   The injured worker is currently working his or her pre-injury job, with restrictions, at wages greater than or equal to the pre-injury wage.  It also assumes the injured worker has not signed a final receipt or benefits have not been terminated by a Judge.

• The burden of proof rests with the injured worker. The proper petition to file, with the help of an attorney, is a Reinstatement Petition.  The law requires that the injured worker prove the following;

1. Through no fault of his/her own, that his/her earning power is once again adversely affected by the work injury. In a layoff situation, once restrictions are in place and the injured worker has returned to work at their time of the injury job, this burden is easily met.
2. This simply means that the injured worker is earning the same amount of money as they did prior to their injury and on restrictions. These restrictions MUST BE issued by a medical provider and must be a direct result of the work injury.  Once the layoff occurs, there is no work, so a wage loss must now be recognized by the employer/workers’ compensation carrier with payments to be started as of the date of the layoff. 
   

Scenario #2:   The injured worker has returned to his/her pre-injury job but is not earning his or her pre-injury wages, i.e. the injured worker is receiving partial wage loss benefits because they are earning less than their pre injury wages as a result of the work-related injury.

• The wage loss must be supported by a medical opinion that the work restrictions are a result of the work injury. If the employer does not recognize the wage loss and immediately reinstatement total disability benefits voluntarily, then the Claimant must file a petition for penalties and a reinstatement. (The burden of proof on a Reinstatement Petition has been addressed in Scenario #1.  A penalty could also be filed in Scenario #1)   To be successful in a Penalty petition,  the injured worker must establish:

1. The Employer did not voluntarily pay the injured worker temporary total disability benefits upon his/her layoff. The key here is whether or not the injured worker, although not suffering a wage loss prior to layoff, was working with restrictions.
2. The Injured Worker had returned to a modified position earning less than their pre injury wages.
3. The Employer did not voluntarily pay the injured workers’ total disability benefits upon his/her layoff.

Scenario #3:   The Injured Worker has signed a Final Receipt, which is a document that states that a full recovery has occurred and is signed by the Claimant, after a thorough explanation of same.  It is important to note that this document should not be signed at work or signed in exchange for a “final” compensation check.  In this case scenario, the injured worker would have to establish:

1. His/her physical disability has reoccurred or his/her condition has worsened;
2. His/her worsened condition relates to the original work injury; and
3. The Injured worker was not fully recovered at the time the Final Receipt was signed; or the Final Receipt was signed under false pretenses or misrepresentation by the Company and/or its insurance carrier.

• If these conditions are met, a Reinstatement and Penalty Petition should be filed immediately.

Scenario #4:  The Employee has suffered a work-related injury but the work-related injury has not been recognized and the Injured Worker has not yet filed a Claim Petition.

1. The injured worker must provide his/her employer “notice” (Notice is the requirement that an injured worker provide the employer with sufficient facts to establish that an injury occurred in the course of employment) of the injury within 120 days of the injury.
2. The injured worker then has three years from the original date of the injury, not the notification, to file a Claim Petition.

Scenario #5: The Injured Worker is currently receiving Total Disability Benefits then his/her benefits will continue until the Employer has established one of the following:

1. The Injured Worker has an earning capacity; or

2. The Injured Worker has fully recovered from the work injury consistent with the Pennsylvania Workers’ Compensation Act.

Scenario #6:   The Injured Worker is unsure of their current Workers’ Compensation status. An attorney can request a copy of your record from the Bureau of Workers’ Compensation and will indicate whether the Injured Worker’s injury has been recognized and what, if any, Agreements have been subsequently entered into.

Scenario #7:   The Injured Worker has been directed to apply for Unemployment Compensation benefits in lieu of filing a Claim for Workers’ Compensation benefits.  This is a tactic often used by Employers’ so that Workers’ Compensation benefits are not pursued.  If income is immediately needed, this option is not unreasonable, however, unlike Workers’ Compensation benefits, Unemployment benefits are taxable and subject to limits on the length of time it can be collected.  In order to receive Unemployment Compensation benefits, the Employee must be ready, willing and able to perform some type of work.

1. Any Employee who suffered a work injury before September 1, 1993, is able to collect Unemployment benefits without a reduction to the Workers Compensation benefits the Injured Worker is entitled to.
2. Any Employee who suffered a work injury after September 1, 1993 and collects Unemployment while receiving Workers’ Compensation benefits; the Workers’ Compensation benefits will be reduced by the net amount of Unemployment benefits received. Typically the Unemployment benefits are less than the Workers Compensation benefits.

If you or any of your co-workers have any questions feel free to contact us and we can address your personal situation and how we may be able to help you. Contact our Harrisburg workers’ compensation lawyers to help you seek compensation for workplace injury and discuss the above scenarios.. Schedule a consultation with our attorneys at Ira H. Weinstock, P.C. Call at 717-238-1657 for a case review.