(Transcript)

Cindy Speaker:  Good afternoon. Welcome to Facebook Live. My name is Cindy Speaker. I have with me today Bill Kovalcik of Michael J. O’Connor & Associates. He’s going to talk with us about an interesting topic. It’s Workers’ Compensation and the fact that some people are actually afraid to report their work injuries, because they fear some type of retaliation. Bill, thanks for being with us today.

Bill Kovalcik: Well, thank you, Cindy. It’s good to see you again.

Cindy Speaker:  You too. Tell me about this. Some people apparently, they’re injured at work, they have a little bit of fear in reporting that injury, because of some time of retaliation or even being fired. What’s your experience with that?

Bill Kovalcik:  Let’s talk about this topic. You know, some of the people who fall into this category, in other words, those who don’t report or follow through with a work injury, are people that I never get to meet, because they never come to an attorney, but we do find out about this, because people do come to us, and they come with reservations. The reservations involve, “How does following through with a Workers’ Comp claim, or even reporting it, going to affect my relationship with my employer?

Now, they do get the impression from working wherever it is they work that a Workers’ Comp claim is not a very welcome thing. A lot of reasons are involved in that. Employers, first of all, don’t need an interruption in their production that’s caused by a lot of people being out on Comp, and also Workers’ Comp Insurance is very expensive. The more claims you have, the more expensive it gets for the employer. Often they will make that known to workers. They come, and they’re concerned about whether they’re going to ruin their relationship with their employer, but what I explain to them is this.

“This act, The Workers’ Comp Act, is for you. It was enacted in 1915 with primarily humanitarian purposes involved. Let’s not forget that.” Now, some employers forget that, but the purpose of it is to protect people, but still, they’re afraid. What are they afraid of? Well, theoretically getting injured could result in losing your job, either by attrition, lay off, termination, whatever. There are a lot of issues involved in that. Some are Workers’ Comp oriented. Some are not.

The other thing that we see is that there is this OSHA program whereby they track lost time, so lost time injuries. Any particular company or business under OSHA’s supervision may track and even publicize how many injuries and how much lost time are associated with those injuries. Of course as OSHA is monitoring these situations, they’re trying to determine what are safe places to work, and what are not so safe places to work? Obviously the not so safe places to work may get more visits by OHSA representatives to determine why so many people are getting hurt. It’s disruptive of the business.

If you’re ever driven by a large plant, a lot of them will have a big sign out front with a number and it says, “Days without injury.” They track it as every day, just like, you know, they change at the gas station the price. Someone is out there going from day 600 to day 601, and the message that sends to the public and to the workers who drive past that sign every day to come in is that, “Don’t get hurt. Stay safe, because this is all helping us.”

Cindy Speaker:  That is very interesting. Can I just interrupt you for a minute?

Bill Kovalcik: Oh. Sure.

Cindy Speaker: Okay. What you’re explaining here, and I’ve actually seen those signs in places that I’ve gone over the years, so what they’re really saying is they want to make sure there’s not too many injury … that their interest is if there’s not many injuries reported, OSHA’s not as likely to visit them?

Bill Kovalcik:  Correct.

Cindy Speaker:  But tell us who OSHA is. Are they state or federal?

Bill Kovalcik:  Federal Occupational Safety and Health Administration is who I’m talking about. Now, when it comes to State Workers’ Comp that organization is not really directly involved, but a report is made to OSHA when somebody is injured, and of course that becomes a State Workers’ Comp matter. But in this instance, in this kind of situation where people are reluctant, this is why I wanted to talk about this issue, because this is one of the reasons they’re reluctant. That public sign, and they have them inside the plant too, constantly reminding people not to get hurt has a psychological effect on people that, “Maybe, you know, I’ll just let this one slide.” People have a sore back at work, and they just try to work through it, and nobody ever finds out. This happens a lot.

The other type of incentive for workers to not be hurt, not be off, actually involves money. A lot of places, often they’re unionized, but not always, will have a safety incentive program whereby if you go so many days, or weeks, or months without any lost time injuries, everybody gets a bonus. That leads into the other issue that people are concerned about when they get hurt at work. How’s this going to affect my relationship with my coworkers? Well, if you have one of those financial incentive programs and you get hurt and miss a couple months, you just cost all your buddies a bunch of money.

Cindy Speaker: Wow.

Bill Kovalcik: That doesn’t go over well, so there’s a lot of pressure to not miss time, and so I’ve heard these stories, and I have a speech that I give to my clients. I’ll give you the short version, but people will come in, “Oh.” This is more about hiring an attorney. “What if I hire an attorney? Won’t that make my employer angry?” I say indignantly that, “This is America. The worker’s Comp Act is for you. My job is to use that act to protect you. If nothing else, what was America founded on, but the ability to have decent basic human rights and be able to protect them and enforce them? That’s exactly what we’re doing. If somebody gets angry because of that, so be it, but as an American it’s your right.” Usually when I give that speech I’ll have some patriotic music playing in the background. It’s great. It’s really great. They love it.

Cindy Speaker:  That’s a great speech. That’s a great speech. What’s interesting, Bill, is the things that you’re talking about, I’ve observed them over the years, you know, different places that I think I’ve worked or that I’ve walked through, the signs. I’ve heard of the safety incentives, and I never thought about it from the perspective of somebody that’s been injured, and now really it’s almost like it’s been built into you to kind of think, “Oh. No. I don’t want to be the one that messes this up for everybody.”

Bill Kovalcik: It’s true.

Cindy Speaker:  I’m sorry. Can the employer retaliate? Are their fears justified?

Bill Kovalcik:  Well, obviously any employer can violate the law, and that leads me into another topic. That is if you’re an injured worker and you’re concerned about retaliation, you’re concerned about peer pressure, you’re concerned about losing your job, what protection do you have? Have employers fired people because they got hurt? Yes. Is that legal? No. But does it happen? Yes. I’ve seen it. In all my years of practice it’s rare to come across actual evidence that that was the case, but many years ago I was going through a batch of documents sent to me by the employer’s attorney, and in there was a memo from one vice president to another saying that, in regard to my client’s injury, “We need to take the bull by the horns and get rid of this guy before it becomes a long term compensation program.”

Cindy Speaker: Wow.

Bill Kovalcik: That was direct evidence of an illegal termination. Obviously that led to a good result for my client, but this is what I’m talking about. Rarely do you see that. It’s usually a lot more subtle, a lot more covert. If someone gets injured at work, it may not lead to a direct termination, but what I can say and what often happens is if that person comes back to work at some point, light duty or full duty, we do notice and we’ve heard many stories that they are now treated differently.

Cindy Speaker: Wow. Yeah.

Bill Kovalcik:  Sometimes that different treatment will rise to the level of discrimination, harassment, or a violation of law. There are lots of things that protect injured workers in this regard in both the state and the federal level. One of the more prominent ones is the Americans With Disabilities Act. 15 years ago this act was enacted to make sure all workers had protection of any disability, either work related or not work related, an access to the workplace. There were a lot of things. If in fact it can be determined that somebody was either terminated or discriminated against because of a work related disability, that could invoke the Americans With Disabilities Act, and that could invoke a federal lawsuit. We don’t do that work, but we refer people out for that type of thing.

One of the most common things in Workers’ Compensation, in regard to that federal law, is what is called a reasonable accommodation. After somebody develops a disability a company, which is subject to the ADA … Not every company is. You have to have at least 50 workers and some other requirements. Regardless, if you are under the protection of that act, you have to be able to make a reasonable accommodation. That means if you have a light duty job that fits the restrictions of an injured worker, you’re required to offer it to them. This also, you know, is something that involves state law as well, because if you can do that, it can change the nature of the Workers’ Comp claim as well.

I would say to anybody, after you’ve been injured if you feel that after you are injured you are discriminated against in any way, if you are terminated unjustly, that you should seek redress under your state anti-discrimination laws, Human Relations Commission of Pennsylvania, or federal law. Now, in Pennsylvania we are employees at will. Keep that in mind that anybody can be terminated for no reason. You could be laid from your job for no reason, unless you have a contract. What you can’t be is fired for a reason that implicates a right that you have, be it a civil right, like your race, your religion, be it a disability, also illegal. In those instances we refer people out to lawyers who are employment lawyers, and they sometimes will sue if someone has been wronged.

Now, one of the things that occurs to me when I think about fallout from work injuries is unions. Now, unions, unfortunately, unions used to rule Pennsylvania, from Philadelphia to Pittsburgh and all places in between. Almost every heavy industry, and even service industries, were unionized. That’s not so much the case anymore, so most of my clients are not in a union, are not subject to a collective bargaining agreement. This is how it affects this type of thing. If you are an injured worker and you have a union behind you, it’s a lot easier to assert and protect your rights. I can go into more detail about that, and I’d like to. Unfortunately, most people don’t have that protection in Pennsylvania.

Cindy Speaker:  Yeah. Yeah. That makes sense. Bill, what if someone cannot return to work? How long are they going to be able to collect Workers’ Compensation? Does that end at a certain time, or how does that work?

Bill Kovalcik:  Well, before we get into that, let me talk a little bit about labor unions.

Cindy Speaker: Oh, okay.

Bill Kovalcik: Now, labor unions affect the Workers’ Compensation process in a number of different ways, and this is something that occurs to me when I think about the differing clients that I have. The first thing that I notice is that there’s a better support system. For instance, you may have a union steward, trustees, a vice president, a president, who are constantly educating their members about what to do in terms of getting injured and what your rights are. A lot of companies don’t follow the law in regard to the procedure about Workers’ Comp injuries. For instance, they may not provide a list of physicians that you can treat with, called the panel. In most union shops the union officials make sure that’s properly posted, so that everybody’s informed about what they can and cannot do.

The other thing, the one great benefit of a union shop is that a lot of workers, when they get hurt, they go off of work. Now, their job is not assured, and their job may go away. The company may just replace them. They may lose their health insurance, which is also a big thing. They need to keep working to get that health insurance, and now they can’t work because of their injury. However, if you’re a union worker, usually your collective bargaining agreement provides that they’re going to hold your job open for a period of time, and some strong unions have been able to negotiate up to two year, and usually during that period of time the individual keeps his health insurance, which often that affects his whole family. He or she’s in a much different position than someone who after 90 days loses all of that. Sometimes that happens.

Union workers also have certain rights that un-unionized people do not. For instance, a lot of these issues that would normally be considered maybe an unfair labor practice that employers do to workers apply to Workers’ Comp cases, so they have the right grieve it. They have the right to file a grievance, have a hearing over that issue, which ultimately could help them with regard to their position in the WOrkers’ Comp case. Now, there’s also case law in Pennsylvania that puts union workers on a different level than other workers in regard to one type of action, and that is the type of action where the insurance carrier’s trying to reduce or stop the benefits of the injured worker based upon available work outside of their usual employment.

Now, if you’re not in a union, any type of work that is vocationally and physically appropriate could be found to be available to you and could thusly result in a reduction of your benefits. However, if you’re in a union, you can defend that action by showing that working in that non-union job that they’re trying to show is available to you would interfere with or cause you to lose some union rights and benefits, so that’s something we invoke every time we have a union worker in that situation.

Cindy Speaker:  Excellent. Excellent. Then you want to go back to if someone cannot return to work, how long will they collect Workers’ Compensation?

Bill Kovalcik:  Right. That’s an interesting question, because we get it a lot, because there’s a lot of misconception. It’s funny too, because I get a lot of people telling me that they believe or they’ve heard certain things about Workers’ Comp law, in other words, how long it’ll last, how much you can get, and all this, and often it’s misinformation, because they’re getting it from people who don’t know, or who speculate, or who have access to the internet, whatever. I always say to people, “If you really want to know, make sure you’re asking a Workers’ Comp attorney.”

In this instance when people ask me, “Okay. So, how long will I be on Comp if I just can’t go back to work?”, because usually people’s initial thought is, “I’m hurt. I’ll get better. I’ll go back to work.” Usually that’s in their best interest to do that. However, the reason I exist and the reason attorneys like me exist is because a lot of people can’t go back to work, so now what do you do? Well, you have to protect your income, and that’s what we do. What I say to the initially is, “How long are you going to be on Comp? Well, I don’t know, because every case is different. Could you be on Comp indefinitely? Theoretically, yes.” I say theoretically, because there are a lot of caveats there, but yes. I have had individuals who’ve been on Comp for 15 or 20 years. That is true.

Cindy Speaker: Wow. Okay.

Bill Kovalcik:  Some of them retire on Comp. However, the law has evolved over the years to favor insurance companies, such that that doesn’t really happen anymore. Most cases settle before that, because there are things that are available to employers and their insurance companies to get people off Comp, and there’s a myriad of things. I don’t have time to go into all of them now, but trust me. Between having an independent medical exam, and insurance company doctor examine you, getting impairment rating evaluation after two years that rates you in percentage of whole body impairment, utilization reviews, which can challenge any medical bill, offering light duty work, there are a lot of thing that companies can do to keep these benefits confined to a certain period of time, because like we’ve said before, they don’t want to pay them indefinitely. It’s hugely expensive. It’s hugely expensive.

Cindy Speaker:  Right.

Bill Kovalcik:  It is.

Cindy Speaker: Everything you’re saying here just says to me, I mean, you have to have someone on your side. I think that’s where you come in and the types of things that you do for these people, because I don’t know how you could navigate this alone, like you talk about utilization reviews, and ratings, and all these things. It sounds like you can have an impact in those types of things. I doubt that the person fighting the insurance company alone would have that kind of success.

Bill Kovalcik:  True. Just generally it makes sense to retain counsel in these matters, because of the nature of our fee agreement. It’s contingent. I do a lot of work for free. Sometimes I don’t get paid for a year or two, and then maybe the case will eventually settle. Without that advice of counsel the case may not have gone the same way. I mean, people will go back to work when they don’t have to or shouldn’t, and they’re forced into things that they don’t know, because they don’t have counsel on their side. I recommend everybody immediately get counsel.

You know, as I was saying, the Workers’ Comp law has evolved to the point where it’s becoming more complicated every day, so not only do you need an attorney, you need somebody who is a specialist. I think about the way the law is now as compared to when I started in 1985, and back then it was a little more simple, but 10 or 11 years later there was an amendment. Then a few years later there was another amendment. Everything has changed, so it really takes a specialist to navigate that.

Cindy Speaker:  Bill, how may of these cases go to court?

Bill Kovalcik:  Well, see, that’s an interesting question, and a lot of people don’t always understand how this works. Workers’ Compensation is an administrative system. It is a program that provides benefits to people. Now, if they get hurt and the employer accepts it, recognizes the injury legally, and begins paying them and paying their medical bills, there is no court involved at that point. I still tell people, “You need an attorney at that point just to help you along the way make the decisions,” and those decisions could be crucial about where your case eventually ends up.

A lot of people get the Comp, and they’re not in court. They’re just getting the check in the mail, and that’s fine, but many cases do go to court eventually. There are a lot of reasons that they would go. For instance, just because you’re getting Comp doesn’t mean it’s going to be uninterrupted. It doesn’t mean it’s not going to be challenged, and that challenge could come from the insurance company that insures your employer. There’s a number of things they can do to challenge it. At that point it’s going to be assigned to a judge. You’re going to need an attorney.

You know, the other thing is in Workers’ Compensation we can settle cases, but of course the cases that settle are the ones where an individual truly is not able to resume employment at that employer, and both parties want to break ties, so the individual is going to end up resigning. If that’s the case, the attorney can negotiate a settlement or a lump sum. I really have to stress to people when I talk to them about this it’s not a traditional settlement. If I get hit by a bus tomorrow, that case is eventually going to settle, or it’s going to go to trial where I get a verdict. If that bus driver was negligent, it’s going to happen. That settlement will include pain and suffering, loss of life’s conveniences, medical bills, wage loss, all these things that affect your life. You can even get money for your spouse, but not in Workers’ Comp.

When we talk about settlement we’re not talking about it in the traditional sense, in civil law, in negligence law. Workers’ Compensation is a no fault system. There is no negligence involved, so when I say settlement what I mean is at some point you’ve been on Comp for so long, you’ve cost this insurance company so much that they want to get you off Comp and close the file. They’re willing to pay you for the privilege to do that, so then if your attorney can negotiate such a thing, it must be approved by a judge, so again, in those instances we find ourselves before a judge who will approve the settlement.

Now, that’s non-confrontational, non-adversarial. It’s just a formality, but again, the court plays a part in that, along with every other petition that can be filed by both insurance carriers and by your attorney. That’s why, you know, at the beginning of the case there are things that need to be filed sometimes. They may accept your claim, but maybe they’re not paying you the right amount. Maybe they’re not paying all your medical bills. Maybe they’re telling you to go to a doctor that you don’t need to go to, many, many things that we can get involved with and help these people from the start, Cindy.

Cindy Speaker:  I can see that. This is a wealth of information, a lot of great details here. Bill, how can they reach you if they have specific questions?

Bill Kovalcik:  They can call us. Our main office is in Frackville, Pennsylvania, and it’s 1-800-518-4LAW. That’s 518-4LAW. You can find us on the web, www.OConnorLaw.com as well.

Cindy Speaker:  Okay. Very good. Bill, thanks for your time today.

Bill Kovalcik: All right. Good to see you, and I hope to talk to you again soon.