Navigation Types of Workers’ Compensation Claims
(Transcript)
Cindy Speaker: Good afternoon and welcome to our broadcast today. My name is Cindy Speaker. I have with me as my guest, attorney Bill Kovalcik of Michael J. O’Connor & Associates. Bill, nice to have you today.
Bill Kovalcik: Hi, Cindy. Looking forward to an interesting conversation.
Cindy Speaker: I am, too. We’re going to talk today about types of workers’ compensation claims.
Bill Kovalcik: Now this subject, I decided on because, what a lot of people don’t understand is there are many and varied workers’ compensation claims. The standard claim, man gets injured, obviously goes off work. But it’s much more complicated than that. What questions in particular would you have?
Cindy Speaker: Well, what about, you mentioned that the injured worker … What about someone who has a psychological injury, can that be part of a claim?
Bill Kovalcik: Right, right. The law does provide for that. Now, what exactly are we talking about? Well, what we see are a lot of different things. For instance, maybe one of the most common would be PTSD, or Post Traumatic Stress Disorder.
Cindy Speaker: Yeah, yeah.
Bill Kovalcik: Some people suffer from this as a result of some incident at work. Now, it could be a physical injury, or just a traumatic event.
I had a particular case that I recall where the individual really didn’t get hurt physically, but she was abducted by armed robbers from her place of business, and …
Cindy Speaker: Oh my goodness.
Bill Kovalcik: Put in a car. The cops eventually arrested them. She had to testify against them. The whole thing was very traumatic. She had a gun in her face, and …
Cindy Speaker: Oh my word.
Bill Kovalcik: Developed Post Traumatic Stress Disorder …
Cindy Speaker: Yeah.
Bill Kovalcik: Not uncommon for that to happen. Now, the one thing that a lot of people don’t know … This is again another thing that I’m going to call, unfair about the Workers’ Comp Act. They differentiate between mental injuries and physical ones.
If you have merely a, what we call, mental, mental case … In other words, the only injury is psychological, then the law puts an additional burden upon you. You can’t just come in with a doctor who says, “Yep, he has PTSD.” You have to show that you … Whatever happened at work, was an “abnormal” working condition.
Now, exactly what that means has been defined by cases for years.
Bill Kovalcik: Recently, it’s been eroded, because even though an individual may legitimately have a psychological problem as a result of something that happened at work, they can’t collect if it’s a normal working condition.
Say, for instance, a truck driver is in an accident, or sees an accident, or something. That’s normal for that business.
There was even a case with a police officer. Police officer is in a gun fight. That’s normal.
Even though the police officer suffered from PTSD, no doubt legitimately, for having bullets whizzing past his ears, there’s no collecting because that’s what police do.
Cindy Speaker: You’re kidding. Wow.
Bill Kovalcik: They shoot at people and people shoot back.
Cindy Speaker: Wow.
Bill Kovalcik: Anyway, these are some examples.
Cindy Speaker: Yeah.
Bill Kovalcik: The mental, mental case, where there’s no physical injury, sometimes this involves harassment at work.
A lot of people work in situations where they’re being harassed, either sexually, or bullied, or something. It’s just because outrageous, such that they can’t function. Now, you again, have to show that, that was abnormal working condition. A little harassment at work, apparently, is normal.
If it’s brutal, and it’s direct, and it’s usually a supervisor doing it, the courts may find that, that was abnormal.
However, I want to be clear that this issue about having to prove abnormal working condition only occurs when there’s just a psychological injury.
If it’s a physical injury, we don’t have to show that. I’ll give you an example of what I’m talking about.
One of my colleagues, who’s a very young and upcoming attorney, tells me that he is going to challenge the constitutionality of this provision, because it treats injuries differently. It’s an equal protection problem.
If you get a slice in your arm and you bleed all over the floor, no problem. But, if your scarring is emotional, you have to prove something else.
Cindy Speaker: You’ll have to keep us posted on that. That’s interesting.
Bill Kovalcik: Yeah.
Cindy Speaker: Yeah.
Bill Kovalcik: I find it to be interesting too.
Cindy Speaker: Bill, what about if the injured worker dies, what happens to that claim?
Bill Kovalcik: Before I get into that …There’s a couple other things I wanted to touch into …
Cindy Speaker: Sure.
Bill Kovalcik: That occurs to me. What we also see in psychological injuries is, they become attached to physical injuries. You get a bad back, you can’t work for three years, you get depressed.
Cindy Speaker: Yeah.
Bill Kovalcik: I’m going to file for depression. I’m going to try and include that diagnosis in your accepted injury. There’s no abnormal working condition required there. We just show depression came from injury. We can do that. We do that through what is called, a review petition. I just wanted to make that distinction.
We’re litigating psychological diagnoses all the time, because it’s common for someone to get depressed or anxious when they can’t work.
The judges are willing to believe that a claimant has suffered. The only exception is, there are a lot of people who have a history of psychological problems throughout their life, then they get hurt. Naturally, that exacerbates it. But often, it just looks like the same thing they’ve suffered from for years. That’s a tough distinction to make sometimes.
Cindy Speaker: Okay.
Bill Kovalcik: Before I cut you off, you were asking me something about death on the job.
Cindy Speaker: Right, yeah.
Bill Kovalcik: It’s really one of the reasons that the Pennsylvania Workers’ Compensation Act was enacted in 1915. Before then, these were people working in steel mills and mines, keep in mind in Pennsylvania, a lot of deaths, a lot of deaths. Where did that leave the widow and children? Nowhere, with no remedy and no help.
In 1915, now we see the Pennsylvania Workers’ Comp Act come into effect. It specifically covers death in the course of one’s employment.
Of course all you have to show is that individual was employed, by that particular employer. That individual was working in the course and scope of his employment. His death was caused by that employment, through no particular fault of his own.
Now, I’m not saying if an individual is negligent, and dies, the widow can’t collect. They can, but there are some defenses to this. Obviously suicide, in the course of employment, that does happen. Or, if an individual is not following the rules or is committing a crime, for instance.
Envision a truck driver who’s going 100 miles an hour and blows through a red light causing his death. They’re going to defend that. They’re not going to just pay it.
But, if it’s just a regular day on Route 80, and he gets snarled up in traffic, and he dies, well, that’s a compensable claim.
Cindy Speaker: Yeah.
Bill Kovalcik: I had a really interesting claim, we almost took several years ago. But we ended up not taking it. We have an individual, a traveling salesman, who was driving his car down one of the highways. The witnesses say, veered off into a ramp, or a natural dirt ramp in the median strip. Goes flying a couple hundred yards, or something. Lands head first, blunt trauma, dies.
Nobody can figure out why. The coroner thought it was suicide. We knew if we were going to file it, that we would have to show that it was not suicide. We didn’t think we could do that.
We didn’t take it, because nobody just veers into the median.
Cindy Speaker: Yeah, just didn’t make sense.
Bill Kovalcik: There was no evidence that the car was malfunctioning. Again, in that case, the widow is out of luck.
Cindy Speaker: Wow.
Bill Kovalcik: Anyway, when the claims are compensable, there are benefits for the funeral, and certainly any medical bills that would precede the death. Then there are weekly, or biweekly, benefits for the widow.
Cindy Speaker: Oh okay.
Bill Kovalcik: If she has children, she gets more. It could be a widower, it doesn’t matter.
In fact, I was just looking at something. They’re changing the Act, because the Act has everything in the masculine. They’re changing the Workers’ Comp Act, because obviously, it doesn’t matter what sex the deceased worker is, if he or she is married, that person.
Cindy Speaker: Yeah, sure.
Bill Kovalcik: You get more if you have children. A widow would be relegated, if she has no children, to 51 percent of the average weekly wage.
Cindy Speaker: Okay.
Bill Kovalcik: Whereas an injury case, they’re generally getting 2/3, or 67 percent.
The widow gets that amount. But if she has children, she can get more.
Cindy Speaker: For how long?
Bill Kovalcik: That’s a good question. Now, as far as the children are concerned, well we do know, that they’re only eligible until the age of 23, at the maximum. After they turn 18, they have to be enrolled in an accredited college or university, to still be eligible for those benefits.
Cindy Speaker: Okay.
Bill Kovalcik: If they turn 18 and they go to work, the benefits are going to end. Needless to say, most of the kids in that category go to college.
It certainly makes sense for them to do so.
Cindy Speaker: Yeah. What about the widow, how long can she collect?
Bill Kovalcik: Again good question, because there’s no real answer here.
I have a woman, I believe, who’s still collecting widows’ benefits, whose husband died in 1980, I think.
She’s 85.
Cindy Speaker: Wow. How about that?
Bill Kovalcik: I know. Here’s what happens. The law is that they’ll collect indefinitely, unless they remarry, or unless they are found to be living in a “meretricious” relationship. That’s a fancy way of saying, shacking up. That’s what it is.
Cindy Speaker: That’s really interesting.
Bill Kovalcik: Yeah. If an individual gets remarried, they get what’s called, a dowery, which again, is also ancient.
Cindy Speaker: Oh, that’s so funny.
Bill Kovalcik: The dowry is 104 weeks, which is two years of benefits.
But, if they’re found to be living in a meretricious relationship, they’re not going to get anything. The courts are just going to cut it off. This is very rare. As you can expect, it’s hard to prove. Not only do you have to prove that the significant other is living there, you have to prove that they’re involved in a relationship that is intimate.
One of the ways you can do this, and this has happened over the years … A widow gets pregnant. Okay, the father is determined to be the guy who lives in her house. Well, there you go.
Cindy Speaker: It’s interesting. You have to really think through everything, and again, I’ve said this to you before. This stuff is really complicated.
Bill Kovalcik: Oh it is. Generally, how long do people collect this? Sometimes widows will collect for five or ten years before they settle it. They can settle it. You can imagine, if an insurance company is faced with paying indefinitely, or is sitting around waiting for someone to get married, they’d rather just get it over with and give them money.
The question is, how much are they going to give them? That’s where we come in. That’s where the skill comes in.
I’ve settled widow cases where the woman is 50, and has been on it for 10 years. I settled one for a 23 year old, who was only on it for six months, but she had a three year old child. She wanted to get a lump sum of money and buy a house. It worked out for her.
Cindy Speaker: Wow.
Bill Kovalcik: These cases are all different.
Cindy Speaker: Yeah.
Bill Kovalcik: It’s interesting too. They can settle for a very large amount of money. In fact, usually they’re the largest settlements. Especially with a younger person, the prospects of paying for 30 years, it could be a million dollars, that the insurance company is faced with paying.
Cindy Speaker: Yeah.
Bill Kovalcik: Or, they can settle it now. I just had one last year that I litigated successfully, where we had to first prove that they were married. They were only common-law married.
Cindy Speaker: Okay.
Bill Kovalcik: In 2005, the Pennsylvania legislature outlawed common-law marriage for all purposes. In this case, they had become common-law married before 2005. In fact, for 30 years they lived together as husband and wife.
The law still allowed us to show a common-law marriage that was consummated prior to the Act of 2005. Therefore, once we proved that, we could then have the widow collect Workers’ Comp benefits. It was a lot of money involved.
Cindy Speaker: Wow.
Bill Kovalcik: They had denied the claim from the beginning because there was no marriage certificate. She went from getting nothing, to getting a lot of money. It worked out really good for her.
Cindy Speaker: That is really interesting. Just to think through these things, I think you really need an attorney to think through this. Nobody could navigate this. Nobody could figure this out on their own.
Did you litigate that one?
Bill Kovalcik: I did. It was just last year. The attorney who referred it to me … We have a lot of attorneys who don’t do workers’ comp, …
Cindy Speaker: Yeah.
Bill Kovalcik: So they refer it to us. Just like a doctor sends you to a specialist.
Cindy Speaker: Sure.
Bill Kovalcik: It’s the same thing. They send us the cases. We had a discussion. He said, “You know, when she first came to me, she had no idea she might be entitled to hundreds of thousands of dollars.” Look, here we are a year and a half later, and she has it in the bank.
Cindy Speaker: That’s great.
Bill Kovalcik: It did work out. That’s for sure.
Cindy Speaker: Yeah, yeah. Bill, what about amputation and scarring? What kind of benefits are there when that happens on the job?
Bill Kovalcik: Right, again, another provision of the Workers’ Comp Act, that provides for the unfortunate reality, is that people get things cut off.
Cindy Speaker: Yeah.
Bill Kovalcik: It’s limited, limited in a couple different ways. Again, I’m going to talk how this is unfair, because that’s what I do, if you’ve noticed.
People, obviously, hands, fingers, arms, legs, feet, these are the limbs that are provided for. There’s a schedule. There’s a graph …
Cindy Speaker: Okay.
Bill Kovalcik: That shows you, if you lose one half of this finger, you get X. That X is not a dollar number. It’s weeks. For instance, one half of a finger … Different fingers you get different amounts for.
Cindy Speaker: That’s amazing.
Bill Kovalcik: Yeah, because the index finger is more important.
Cindy Speaker: Yes.
Bill Kovalcik: You get more for that. The thumb is the most important. You get the most for that.
Anyway, say you’re going to get 40 weeks for half a finger, it’s paid in weeks.
Cindy Speaker: Okay.
Bill Kovalcik: What does that mean? That means they have to go through the process of, like I said in the past, scheduling, calculating the average weekly wage, coming up with a compensation rate, multiplying it by the number of weeks provided for in the Act.
If it’s $300 a week, is your compensation rate, and you get 40 weeks, there you go, $12,000.
Cindy Speaker: Okay.
Bill Kovalcik: That’s all you’re going to get.
Cindy Speaker: Okay.
Bill Kovalcik: Now, obviously, what that means is, if you’re an individual who makes a high wage, your finger is worth more. For the life of me, I don’t understand how that’s fair.
Cindy Speaker: Yeah.
Bill Kovalcik: If you work in an entry level job, right out of high school, you’re making $7.85 an hour, and you get your entire hand cut off, you’re going to get whatever, $20,000-30,000. If you’re a fifty year old person and you’re making $37.00 an hour, you’re going to get $150,000 for that same hand.
Cindy Speaker: Yeah, you’re right, not fair at all.
Bill Kovalcik: It isn’t, but, what the Legislature will say, and what the history of it is … This is a wage loss act. This is about how injuries affect your right or ability to work. You don’t have a hand now. Certain jobs you’re just not going to be able to do. We’re going to pay you in weeks, because that’s affected your income.
Cindy Speaker: Yeah.
Bill Kovalcik: Again, it’s not about pain and suffering. I understand that. But, I think it should be across the board, the same hand, is a hand, is a hand, anyway.
Cindy Speaker: Yeah. Go ahead, were you going to say something there?
Bill Kovalcik: No go ahead.
Cindy Speaker: What about if the worker contracts some kind of a occupational disease?
Bill Kovalcik: Oh, okay. Well, before we get into that, why don’t we talk about scarring?
Cindy Speaker: Oh yeah right, go ahead.
Bill Kovalcik: There is provisions for occupational disease. It’s a whole different thing.
Cindy Speaker: Okay.
Bill Kovalcik: In the same part of the Act that provides for amputation, there’s also provisions for scarring. Again, people, they get scarred, they get burnt. They get cut, all kinds of things.
It’s limited to scars that are above the clavicle. Again, for the life of me, I can’t understand why this is.
Cindy Speaker: That’s interesting.
Bill Kovalcik: We’re talking head and neck, face. That’s all we’re talking.
Cindy Speaker: Okay.
Bill Kovalcik: I’ve had a lot of people who have terrible scars on their hands …
Cindy Speaker: Yeah.
Bill Kovalcik: Or their body, particularly on women. If they want to go to the beach, or whatever, a lot of their body is visible. A big scar on their leg or their stomach, may be visible, they get nothing for that. I guess the theory is, it doesn’t affect your ability to work.
I don’t know how scarring on your neck really affects your ability to work either, but that’s what we’re faced with.
Cindy Speaker: Okay.
Bill Kovalcik: Again, scarring, there’s no schedule, because obviously, every scar looks different.
Cindy Speaker: Right.
Bill Kovalcik: It’s purely subjective.
Cindy Speaker: Okay.
Bill Kovalcik: The judge will look at you and make a determination about how bad it is, make an award, in again, weeks. Again, another really unfair thing …
Cindy Speaker: Okay.
Bill Kovalcik: If you’re that entry level worker, and you have a terrible scar on your cheek, it’s going to be worth less, but why should it be?
Cindy Speaker: Right.
Bill Kovalcik: It will be. It will be based on your average weekly wage, and your compensation rate. I think judges should take this into account. I’ve noticed that they don’t all do this.
Cindy Speaker: Yeah.
Bill Kovalcik: I had a woman who … She got hurt. It was a part-time job. If it’s a part-time job, your comp rate is going to be very low.
Cindy Speaker: Yeah.
Bill Kovalcik: She has a terrible scar on her neck. He gave her like 25 weeks, which may have been okay, if she was a high wage earner working a full-time job, which she wasn’t.
Cindy Speaker: Yeah.
Bill Kovalcik: She got only a few thousand dollars for something that’s permanent.
Cindy Speaker: Oh my.
Bill Kovalcik: Judges, some are more liberal than others, in regard to giving away benefits.
Cindy Speaker: Yeah.
Bill Kovalcik: This is an art. This putting in controversy, these injuries, and these scars, because, you can get it for teeth knocked out, anything that’s disfiguring.
Cindy Speaker: Okay.
Bill Kovalcik: Your attorney has to recognize it, and bring the issue to court.
Cindy Speaker: Wow.
Bill Kovalcik: Anyway, you wanted to know about …
Cindy Speaker: Occupational disease.
Bill Kovalcik: Occupational disease.
Cindy Speaker: Yeah.
Bill Kovalcik: Now, in the Pennsylvania Workers’ Compensation Act, there are provisions, obviously for injuries and for specific enumerated diseases. There’s also a catch-all, and I’ll explain that in a minute.
Cindy Speaker: Okay.
Bill Kovalcik: Anything that is a disease caused by work, it can also be an injury …
When I say that, I mean, there are different provisions of the Act you can litigate under. You could litigate a disease under the injury portion of the Act if you wanted to.
Let me explain this in more detail. The Act says, if you get these diseases, all you have to prove is that you were exposed to the hazard of this disease in your work.
The more common ones are, coworkers’ pneumoconiosis, which is black lung, silicosis, which a lot of people with steel mills get, or if they work in a brick factory, or anywhere where there’s silica. Beryllium poisoning, is enumerated.
There’s a specific Act on cancer in firefighters. This is a fairly new thing.
Cindy Speaker: Okay, oh.
Bill Kovalcik: It is, what we call, a rebuttable presumption. Now, that’s a legal term. It’s a rebuttable presumption that if you were a firefighter, and you were exposed to fires, and if you get cancer, it’s related.
Cindy Speaker: Okay.
Bill Kovalcik: Rebuttable presumption just means the stricken firefighter just need to come to court and show that he was exposed, as a firefighter. The defendant, the insurance company, can rebut it, or contest it by having exams, taking of history. Obviously if someone smoked, or there are issues with other causes.
Cindy Speaker: Yeah.
Bill Kovalcik: For any of the enumerated diseases, you could just name them and just show that you were exposed, and you have it, and you win, assuming there’s not a legitimate defense.
Cindy Speaker: Yeah.
Bill Kovalcik: One of the enumerated diseases is tuberculosis. I’m currently litigating a tuberculosis case. This is tricky because, like a lot of tuberculosis, it’s a real problem in nursing homes.
Cindy Speaker: Okay.
Bill Kovalcik: Most nursing homes have protocols, where they’re testing the residents and they’re testing the workers, on at least an annual basis …
Cindy Speaker: Yeah.
Bill Kovalcik: To see that they’re not getting it. Once tuberculosis gets into a nursing home, it apparently spreads like wildfire.
I have a young nurse trainee who comes to me and says she has tuberculosis, and she believes she got it at work, which is a nursing home. Now, I have to prove that somebody at the nursing home gave it to her.
The thing about a lot of these viruses and stuff, they’re in the air. You can’t see them. They’re invisible.
Cindy Speaker: Yeah. Right.
Bill Kovalcik: You don’t know when we walk into something infectious in our lives. It could be anywhere.
Cindy Speaker: Yeah.
Bill Kovalcik: I have to prove it was at work, which is not a small order. But, the other problem is this that we encountered. We realized that it might be difficult for us to find out if a particular resident has tuberculosis, because that particular resident’s medical history may be confidential, and protected by the HIPAA Act.
Cindy Speaker: Oh wow.
Bill Kovalcik: We’ve had to do some litigating to prove this.
Cindy Speaker:Wow. Yeah.
Bill Kovalcik: It’s a very interesting case. I took it because I realized, tuberculosis is a lifetime disease. The girl is 21 years old.
Cindy Speaker: Oh my.
Bill Kovalcik: She’s going to have it the rest of her life.
Cindy Speaker: Yeah.
Bill Kovalcik: Whether it becomes active, is the question. Once it becomes active, then you’re sick.
Cindy Speaker: Yeah.
Bill Kovalcik: When it’s dormant, you can function. She tells us she’s not even contagious right now. Anyway …
Cindy Speaker: Wow, so that’s a case that you’re working on right now.
Bill Kovalcik: Correct.
Cindy Speaker: Okay.
Bill Kovalcik: The … I’m sorry, those are examples of some the disease cases that are listed in the Act.
Cindy Speaker: Yeah. I was going to ask you, do you actually seek out the most challenging cases? All the ones you’re telling me about, it’s like they’re so complicated and so challenging. I think you like it.
Bill Kovalcik: I’m only talking about the interesting ones.
Cindy Speaker: Okay.
Bill Kovalcik: We’re on TV, and I don’t want to be boring.
Cindy Speaker: Right.
Bill Kovalcik: It’s true that if you’re a senior attorney, as I am, and you’re certified, you’re a specialist, that’s what you want. You want the cases that have high stakes, high difficulty. The easier, more routine matters, can be handled by people who are in the process of training themselves to be a Workers’ Comp attorney.
Cindy Speaker: Yeah, yeah.
Bill Kovalcik: Interesting, we’re litigating it as an injury … I have a Lyme Disease case right now.
Cindy Speaker: Mm-hmm (affirmative).
Bill Kovalcik: The individual definitely has Lyme Disease, definitely was able to testify that in the course and scope of his employment, when he was clearing brush in a cemetery, he got a lot of ticks on him.
When he left work, he looked down there, they were everywhere, on his arms and whatnot.
Cindy Speaker: Oh my.
Bill Kovalcik: When he got tested weeks later, sure enough, he had it. Again Lyme Disease, it’s a lifelong event.
He comes to me and he says, he’s not disabled at this point, but it needs to be established where that came from, so he has lifetime protection and medical coverage.
Cindy Speaker: Yes.
Bill Kovalcik: Anyway, we’re currently litigating that one.
Cindy Speaker: Wow.
Bill Kovalcik: I expect a favorable result in that. The evidence is pretty clear.
Cindy Speaker: Excellent. Excellent.
Bill Kovalcik: The reason we’re not litigating that as an occupational disease is this. The occupational disease provisions of the Act say that, if it’s not on the list, IE: enumerated, you have to show that, that disease occurs in a higher incidence, in that particular profession, than others.
Cindy Speaker: I see.
Bill Kovalcik: A lot of times you can’t show that. In this case … Excuse me.
There’s nothing about Lyme Disease that is common in this kind of profession. He just happened to be wrong place, wrong time.
Cindy Speaker: Right. Right.
Bill Kovalcik: We’re not going to be able to show that. All we’re going to show is that it’s an injury, and it occurred during the course and scope of his employment.
Cindy Speaker: Yeah.
Bill Kovalcik: Another interesting case …
Cindy Speaker: Were you going to tell me another interesting one?
Bill Kovalcik: No, that was the interesting one, the Lyme Disease.
Cindy Speaker: Oh yeah, that was very interesting.
Bill Kovalcik: There are others but, I don’t want to go on forever you know.
Cindy Speaker: No. I was going to ask you about current developments in the law. You’re very up on this stuff.
Bill Kovalcik: Sure.
Cindy Speaker: What kinds of things are happening in the law now?
Bill Kovalcik: I was reading some cases recently, and I came across this one that I thought was very interesting. It’s what we would call, a case of first impression. In other words, it’s never been decided before.
Cindy Speaker: Okay.
Bill Kovalcik: There was this case where a roofer is up on the roof. At the end of the day, he didn’t realize, but everybody had left but him. He’s on the roof, and they took the ladder. Right. He decides, that I don’t look at … It must be a young person, because only a young person would do this.
He decided, well, I can probably jump from this roof.
Cindy Speaker: Oh my goodness.
Bill Kovalcik: I’ll just go to the lowest part and I’ll jump. He does, and of course, he gets injured. Of course, they defend it. They don’t want to pay him. They’re saying, you intentionally hurt yourself.
Obviously, if there was a situation where … We just discussed this today. You intentionally hurt yourself on the job, you can’t get benefits.
Cindy Speaker: Yes.
Bill Kovalcik: The court found that he wasn’t trying to intentionally hurt himself, he was just trying to get down from the darn roof.
Cindy Speaker: Good.
Bill Kovalcik: He got benefits, but not without some litigation. I thought that was an interesting case.
Cindy Speaker: That is very interesting.
Bill Kovalcik: They can defend these cases based on another theory they call, violation of the positive work order. Say, I employed that guy.
Cindy Speaker: Yeah.
Bill Kovalcik: I said, okay, at the end of the day you must use a ladder. If you jump off this roof, we’re not responsible. You get that? What did I just say? Must use ladder. Okay.
That’s a positive work order. It didn’t happen in this case. If it did, they could defend it, …
Saying, I told you not to jump off a roof. Think you would know that being a grown-up.
Anyway, one of the things I have access to, because one of our attorney’s is a member of the Pennsylvania State House of Representatives … I use his office to keep me abreast of developments in the law, proposed bills, what’s being discussed in committee, things like that, very valuable to me to have him here.
Cindy Speaker: Excellent. Yeah.
Bill Kovalcik: Anyway, I got some memos on some of the things that are going on. Representative Ryan MacKenzie, who is fairly very solicitous of insurance companies, is pursuing this evidence based … I talked about this before, evidence based medicine, where doctors are no longer free, in a workers’ comp setting, to just prescribe.
There’s going to be a chart. There’s going to be a graph. It’s going to tell them what you get, how much you get, for what condition you’re treating, no discretion from the judges.
This year he’s reviving that. It’s not passed yet. This particular representative is still pushing that.
Cindy Speaker: Okay.
Bill Kovalcik: It’s not the law yet.
Cindy Speaker: Yeah.
Bill Kovalcik: Now, there’s another, Senator Gordner from Pennsylvania, is interested in legislation to help the Uninsured Employers Guaranty Fund, which I had mentioned before. I think what I mentioned before was, often we find they don’t have enough money.
Cindy Speaker: Right.
Bill Kovalcik: They’re contesting everything, because they can’t just settle it. Now, one of the ways he’s trying to fix that, is not to give them more money, but to make it more difficult to go against them, to put limits on it. Again, I don’t think this is good for injured workers.
Cindy Speaker: Right.
Bill Kovalcik: The problem with uninsured employers is constant. I don’t think every state has this. If in some states, you get hurt and you don’t have any insurance, your employer doesn’t, I think you’re out of luck, but not in Pennsylvania.
At least we have something.
Cindy Speaker: Yeah.
Bill Kovalcik: Anyway …
Cindy Speaker: It seems like there should be harsh penalties for that.
Bill Kovalcik: Absolutely, and there are. We’re talking about previously some of the prosecutions for not having insurance.
Cindy Speaker: Yeah.
Bill Kovalcik: Usually a misdemeanor, sometimes it’s a felony.
Cindy Speaker: Wow.
Bill Kovalcik: It depends on how much money is involved.
Cindy Speaker: Okay.
Bill Kovalcik: What we find though, is these people don’t usually go to jail, unless they’re multiple offenders. What we see is, they get probation, plus a big order of restitution against them.
Cindy Speaker: Okay.
Bill Kovalcik: Well, to make the injured worker whole, is the main point in all that.
Cindy Speaker: Sure. Yeah, yeah.
Bill Kovalcik: In November of ’17, Representative Ed Gainey said that he planned to introduce legislation to change those death provisions in the Pennsylvania Workers’ Compensation Act, that we were just discussing.
Cindy Speaker: Yeah.
Bill Kovalcik: I was talking to you about how, when a widow may get remarried, she may be entitled to the dowery of 104 weeks, in a lump sum.
Cindy Speaker: Yeah.
Bill Kovalcik: However, this particular Representative, and I think he’s right, thought that, that was unfair for people who die as a first responder. He’s introducing this bill, that if you die in the course and scope of your employment as a first responder, police, fire, ambulance, your widow can remarry and continue to collect her benefit.
Cindy Speaker: Okay.
Bill Kovalcik: He analogizes this with pensions. You know, your spouse dies in the course and scope of his employment, and you’re on his pension, you don’t lose that just because you got married.
Cindy Speaker: Yeah.
Bill Kovalcik: It was earned.
Cindy Speaker: Right.
Bill Kovalcik: He wants to make it similar to the pension.
Cindy Speaker: Yeah.
Bill Kovalcik: Anyway, that’s not yet, I don’t think even introduced.
Cindy Speaker: Well bravo to the people who champion these kinds of causes. Without those champions, change wouldn’t happen.
Bill Kovalcik: Right. I think an open-minded Representative will let people bring him ideas.
Cindy Speaker: Yeah.
Bill Kovalcik: I’m sure there are some, the FOP, the Fireman’s Association, brought it to his attention that they’re risking their lives, for God’s sake, more so than most people.
Cindy Speaker: Sure.
Bill Kovalcik: When they lose their life, the widow shouldn’t suffer.
Cindy Speaker: I agree.
Bill Kovalcik: She should be fixed for life …
Cindy Speaker: Yeah.
Bill Kovalcik: Because if you give your life in the service of others, your family should be taken care of.
Cindy Speaker: Yes, absolutely.
Bill Kovalcik: Absolutely. There’s another interesting bill that’s being proposed by Representative Patrick Harkins. He thinks that there is no protection for workplace bullying.
Now bullying is something that we hear about in schools, but how often do we hear about it in work?
Cindy Speaker: Yeah.
Bill Kovalcik: Trust me, from representing people who are injured at work for years, I can tell you, it’s a real thing. People do act like children against other people in the workplace, and it causes them to go crazy, and to be unable to work, to quit, to feel like they’re being harassed.
Cindy Speaker: Yeah.
Bill Kovalcik: He’s introducing something to allow you to sue, under the Pennsylvania Human Relations Act, for this bullying. This crosses over with Workers’ Comp too. Bullying could result in a mental disability.
Cindy Speaker: Yes.
Bill Kovalcik: I’ve had people tell me, “I can’t go back in there. I can’t leave my house. The thought of going back in there with those people is just nerve-racking.”
Cindy Speaker: I think that sounds like great legislation and very necessary. Nobody should have to suffer under bullying.
Bill Kovalcik: Right. In his memo, the Representative points out, that bullying causes stress related diseases …
Cindy Speaker: Yeah.
Bill Kovalcik: Hypertension, autoimmune disorders, PTSD, whatever.
Cindy Speaker: Right.
Bill Kovalcik: It’s a real problem.
Cindy Speaker: Yeah.
Bill Kovalcik: Then it becomes … Let’s say, for instance, it becomes a work injury. We have that. But again, we’ve talked about how hard that is to prove.
Cindy Speaker: Yeah.
Bill Kovalcik: Sometimes they need to just sue and get some kind of recovery for their pain.
Cindy Speaker: Yeah.
Bill Kovalcik: Harkins is looking at that.
Cindy Speaker: Interesting.
Bill Kovalcik: There’s another issue. A few years ago, the Commonwealth passed what is called, the Construction Workers Mis-classification Act. What they were doing was basically codifying, when we say codifying, I mean making it the law, what had already been decided over the years in various cases. That was, if you were an independent contractor, you were not entitled to benefits from your employer’s insurance carrier. You have to be an employee.
What is an independent contractor, as opposed to an employee has been the question. There are numerous cases.
Cindy Speaker: Yeah.
Bill Kovalcik: Sometimes it’s easier just to put down the rules in a statute. That’s what they did.
There’s another way to deal with that too. I know other states have done this. It’s called Registration of Independent Contractors.
Cindy Speaker: Okay.
Bill Kovalcik: Say you’re a truck driver, or you’re a subcontractor in construction, whatever, maybe you have your own insurance, or whatever. Maybe you don’t care if you have coverage, whatever. You just want to work.
Cindy Speaker: Yeah.
Bill Kovalcik: You can register as an independent contractor. That’s like admitting, before you ever even get hurt, that you are independent. You do that, you’re basically waving your right to file a Comp claim if you get hurt, regardless of the circumstances.
Cindy Speaker: Yeah, okay.
Bill Kovalcik: Some people, though employers want to say, “Well, you’re an independent contractor,” when they’re really not. It’s just an employer trying to avoid liability.
Cindy Speaker: Yeah.
Bill Kovalcik: This registry would allow people to do it.
Most of us who represent people are against this kind of thing.
Cindy Speaker: Yeah.
Bill Kovalcik: What we believe is that most of them will enter into this registry without legal advice.
Cindy Speaker: Yeah.
Bill Kovalcik: They’re just trying to make a dollar.
Cindy Speaker: Right.
Bill Kovalcik: They know that the only way to earn a living in this particular profession, is if they admit they’re independent, therefore they can get to work.
Cindy Speaker: Yeah.
Bill Kovalcik: If they seek out legal advice, we would probably tell them, this is not a good idea.
Cindy Speaker: Yeah.
Bill Kovalcik: This will not protect you in the event of injury or death.
Cindy Speaker: Yeah.
Bill Kovalcik: Anyway, that’s on the table. Again, that’s an anti-worker bill, I would say.
Cindy Speaker: Yes.
Bill Kovalcik: I would say.
Cindy Speaker: Yeah.
Bill Kovalcik: The final one is Senator Folmer … I don’t know the status of this right now. He had tried this before, and he wanted to do it again. It was a Pennsylvania Workers’ Comp case where, someone successfully sued a parent company.
If you get hurt by a subsidiary, you can’t sue that subsidiary, because they have what’s called, Statutory Immunity, under the Workers’ Comp Act. You can’t sue your employer.
Cindy Speaker: Yeah.
Bill Kovalcik: If you could, all chaos would reign.
Cindy Speaker: Yeah.
Bill Kovalcik: You set up a system where you get these benefits, and that’s all you get. They sued the parent company, because they were saying, it wasn’t my employer, and they won. Therefore, the proposed legislation by Senator Mike Folmer, is to reverse that. You can’t sue the parent company.
Cindy Speaker: Okay.
Bill Kovalcik: I don’t know where it is right now, but I know it hasn’t been enacted.
Cindy Speaker: Yeah.
Bill Kovalcik: That’s about all I have for new and interesting things.
Cindy Speaker: Very interesting.
Bill Kovalcik: Yeah.
Cindy Speaker: I love that you are on top of all of this. It’s really interesting. Again, I think that anyone who’s listening, that is either has had a work injury, is already … Even if they are already collecting Workers’ Compensation, makes sense to check in with some of these things. It just seems to be constantly changing and evolving.
Bill Kovalcik: It’s so true.
Cindy Speaker: I would imagine the status of some of these injured workers could change over time.
Bill Kovalcik: It could. There’s no reason not … To protect yourself, you should always have an attorney.
Cindy Speaker: Yeah, yeah. Well Bill, if someone has questions, what’s the best way to reach your office?
Bill Kovalcik: We have an 800 number. It’s 1-800-518-4LAW. That’s the number four, L-A-W. Locally, it’s 570-874-3300. Call and tell them your problem. They’ll give you somebody to talk to. Hopefully you’ll end up talking to me or Deb about your Comp case quickly.
Cindy Speaker: Excellent. Well I look forward to the next time we talk.
Bill Kovalcik: Okay. Thanks Cindy.
Cindy Speaker: Thanks so much for your time.
Bill Kovalcik: All right. I’ll see you, bye-bye.
Cindy Speaker: Those of you that are watching, thank you for being with us today. You can leave your questions or comments right on this page and we’ll make sure they get answered. Bye everybody.
