04/10/2023
Politics and Misconceptions: Work Injuries Hurt
When I speak with a client for the first time, its quite common, almost axiomatic, that at some point, they disclose to me that they "are not the type to sue." I'm still waiting to meet that client who admits to me that they are the type to sue, and, in fact, love being in a situation where they have to sue.
In the below article, that I wrote in 2018, I spare the semantic debate about whether filing a workers' comp claim is suing or not, and focus on common misconceptions. Five years later, and not much has changed. If you are a loved one are hurt at work, don't be ashamed. Get help from a lawyer who knows the law and will fight for you.
Lawyers, if you are not a workers' compensation specialist, and encounter a workers' compensation client, please refer them to someone who is. Navigating the substantive law and procedures of our system may be daunting for a novice. The workers' compensation bar, and bench, can spot a "dabbler" from a mile away, and your client's result may be negatively impacted, if you decide to wing it.
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In Harrisburg, the rights of injured workers are constant fodder for debate. Those who have never experienced a work injury or do not have a close relationship with someone who has, may really not grasp the often catastrophic impact a work injury can have on an entire family. Thus, changes in the Pennsylvania Workers’ Compensation Act may not be important to them.
Moreover, the public perception of an injured worker may not be favorable. Same is based less on reality and more on hyperbole. The insurance lobby pushes reform by spinning stories of insurance fraud and prescription drug abuse. Have you ever listened to a Phillies’ game on the radio and heard the insurance industry sponsored commercials retelling stories of bumbling Pennsylvanians getting caught submitting ill-conceived and false claims? Those commercials irk me. Not because I condone fraudulent claims, because (a) they have a chilling effect on the reporting of legitimate claims and (b) they perpetuate the perception that the insurance industry is pious and that those who dare avail themselves of benefits that they are entitled to are taking advantage.
The vast majority of my firm’s clients are dealing with their first work injury when they seek our counsel. They come in feeling broken and confused. We take pride in being able to shoulder some of their worry, while they focus on getting themselves healthy. However, much of the information we must relay during our initial consultations is shocking to our clients. For example, please consider the below for illustration of our current workers’ compensation law’s shortcomings:
* An employer does not need to hold your job while you recover from a work injury. You may have protection for 12 weeks under the federal law known as the Family and Medical Leave Act (FMLA), and nothing more. Same goes for your employer group health insurance. Your employer does not need to carry your health coverage while you are out on a work injury, and if you are terminated because you remain disabled by a work injury, your health coverage bids adieu as well. Not a free ride.
* Only permanent and unsightly facial and neck scars entitle an injured worker to a disfigurement award. Third degree burns to arms or legs, a large surgical scar on your knee or shoulder. Sorry, you will just have to live with that and you will not be compensated. Not a bowl of cherries.
* If you suffer an amputation of a digit or limb, you will be awarded a statutorily set number of weeks worth of benefits for your loss. For example, the loss of an index finger will get you 50 weeks of workers’ compensation benefits, plus a six week healing period. For someone earning between $29,000.00 and $39,000.00 per year, this equates to $27,860.00 paid in weekly installments of $497.50. Slightly more than a year after you lose your finger, the workers’ compensation carrier is done paying you and you are now living with nine fingers. Not easy street.
* You may not sue your employer for pain and suffering, even if their actions are illegal and/or grossly negligent. Barring an intentional infliction of injury levied by an employer, an injured worker’s exclusive remedy against an employer is workers’ compensation. No windfalls here.
* There is no award for permanent impairment under Pennsylvania Workers’ Compensation law. You may have a limp, a permanent click in your shoulder or a burning sensation in your fingers that just won’t go away. Those are your problem, not the problem of the insurance company. Can’t lift up your baby or play catch with your child? Too bad.
Do you still think injured workers are getting a free ride? The above list is by no means comprehensive. Workers' compensation reform is necessary. Unfortunately, the reform sought by our elected officials is not to right the above wrongs, but is typically to curtail the rights of injured workers, in favor of employers and insurance companies. You may be fortunate enough to never suffer a work injury. Please consider, though, the deck is stacked against injured workers. Remember, you may wake up one day and you and/or your family member may suffer a work injury. I suggest that if you do, your perspective will change. Be proactive, engage your state representatives and state senators. Make sure your voice is heard on issues pertaining to injured workers.
