Workers’ Compensation Handbook
IV. Benefits and Rights Available Under the Workers’ Compensation Act
Workers’ compensation benefits are only available for wage loss benefits resulting from total and partial disability, medical benefits, benefits for facial and neck scarring, and benefits for the loss of use of bodily parts, loss of hearing and eyesight. Benefits are not available for pain and suffering, inconvenience, or loss of life’s pleasures, even if an injured worker sustains a life altering injury.
Total and Partial Disability
Disability under the Workers’ Compensation Act means that you are unable to perform the job duties of your time of injury job. When a work injury or occupational disease keeps you from working your regular job without restrictions further causing you to suffer a wage loss, you are entitled to wage loss benefits for either partial or total disability. Total disability wage loss benefits are payable when you are unable to perform your time of injury job and your employer has not made alternative work available to you.
These benefits are subject to a cap for the year in which you are injured (and there is no cost of living increase). The cap is based on the statewide average weekly wage. Total disability wage loss benefits are payable for as long as you are unable to perform your time of injury job and no alternative work has been made available by your employer. The chart below shows how your weekly benefit rate is calculated and the maximum weekly benefit allowed for injuries occurring from 2019 through 2022.
WEEKLY BENEFIT CALCULATION CHART
If your employer makes work available to you within your doctor’s restrictions, then you may be entitled to partial disability benefits. Partial disability wage loss benefits are payable for up to 500 weeks (9 years, 32 weeks). Partial disability benefits are calculated based on the employee’s time of injury wages and his or her wages while on restrictions. An employee is entitled to a two-thirds difference between the employee’s average weekly wage at the time of injury and the current wage. For example, if the average weekly wage at the time of injury was $900 and the current weekly wage is $600, then the employee would be entitled to a partial disability rate of $200 per week. ($900 – $600 = $300 x .666 or 2/3 = $200).
When calculating your average weekly wage, past overtime and concurrent employment should always be considered.
At the request of the employer, an individual who is receiving workers’ compensation benefits may be required to submit to no more than two Independent Medical Examinations (IME) per year. Based on such exams, an employer may show at any time during the period of total or partial disability that the employee’s earning power has changed, potentially resulting in a modification of compensation benefits. These changes are documented by a “Notice Of Ability To Return To Work,” and do not necessarily need to take into account the treating physician’s opinions. Be aware that any exam scheduled by employer could be counted toward this number.
Impairment Rating Evaluation (IRE)
In the past, any employee injured after June 24, 1996, who has received total disability for 2 years (104 weeks), is required to submit to a medical exam at the request of the employer in order to determine degree of impairment, should the employer make such a request. In the event that an impairment rating exam is requested, a doctor chosen by agreement of the parties or designated by the Department of Labor evaluates the employee and determines the degree of impairment. The American Medical Association Guides to the Evaluation of Permanent Impairment is used to determine the percentage of impairment that will apply based on the employee’s work injury.
Based on these Guides, if impairment is found to be less than 50 percent of total body impairment, then the employee’s benefits will be automatically converted from total disability to partial disability for a period of 500 weeks based on the employer’s filing of a Notice of Change of Workers’ Compensation Disability Status. However, this conversion will not be automatic if the employer failed to request the exam within 60 days from the date the employee received 104 weeks of total disability. To convert the employee’s benefits, the employer must file a Petition to Modify Compensation Benefits.
The employee would have the right to appeal the change to partial disability, and total disability benefits would be continued until it is agreed or adjudicated that the employee’s impairment is less than 50 percent. Partial disability cannot exceed 500 weeks, regardless of the changes of disability that may occur thereafter, as long as the impairment rating is less than 50 percent. Impairment ratings that are over 50 percent are rare and most injuries fall into the less than 50 percent category based on the AMA Guides.
New Change in IRE Law
The Supreme Court of Pennsylvania has rendered a decision which has declared the Impairment Rating Examination Process unconstitutional. Therefore, the preceding information about IRE no longer applies. Since there is recent change in the case law and it is more likely that there will be legislation to address this ruling, we have retained the information on the old law to properly inform any workers’ compensation recipients.
Thereafter Act 111, was passed which permits on IRE but changed the percentage of impairment for total disability to 35%. This area of the law is in flux and each case will need to be examined on a case by case basis until this sorts out.
How Do You Know That Your Employer is Paying You Workers’ Compensation Benefits?
Sometimes, an employer will continue paying your regular wages rather than pay workers’ compensation benefits. Be very cautious if this is your situation. It is important to be sure that your injury is properly documented to secure your future rights in the event your injury causes you problems in the future.
Once your injury has been accepted as a workers’ compensation injury, your employer is responsible for all reasonable and necessary medical expenses that are related to your injury and treatment. If your employer is paying your medical expenses and you are not missing any time from work, be sure that your injury has been accepted as work-related and properly documented. Often, the employer, rather than the workers’ compensation insurance company, will pay the medical expenses so that the employer does not have to record the injury with its insurance company or the Bureau of Workers’ Compensation. This arrangement could potentially cause you to lose valuable benefits in the future.
The employer can contest payment of medical bills in situations in which they do not believe the treatment is reasonable and necessary. If this occurs, the employer is required to follow the Utilization Review process, whereby an independent healthcare provider will review the treatment and render a written determination regarding the reasonableness or necessity of the treatment. If the employee does not agree with this determination, the employee must appeal the decision to a Workers’ Compensation Judge, or the employer will not be required to pay for the treatment that was determined to be unreasonable or unnecessary.
The employer can also contest the payment of medical bills in situations in which they do not believe the treatment is for the work-related condition. In this situation, the employee will have to file a petition with the Bureau of Workers’ Compensation in order to obtain a decision from a Judge about whether the treatment is related to the work injury. Since medical evidence will be necessary to be successful in a claim, it is important that your injury is properly described to avoid problems with a denial of payment of crucial medical treatment.
Notice of Temporary Compensation Payable, Notice of Compensation Payable, Medical Only Notice of Compensation Payable, and Agreement for Compensation.
As mentioned earlier, the employer has 21 days to recognize your claim as a workers’ compensation injury. Your employer should issue to you, and file with the Bureau of Workers’ Compensation, one of the following four documents, which tell you that the employer has accepted your injury as work-related (at least temporarily), the specific description of your injury that it is recognizing and what benefits are currently payable: Notice of Temporary Compensation Payable, Medical Only Notice of Compensation Payable, Notice of Compensation Payable, or Agreement for Compensation.
The Notice of Temporary Compensation Payable states that the employer will pay you compensation benefits while they further investigate your injury. These benefits are payable for up to 90 days.
In order to stop paying temporary compensation benefits, the employer must either send you a Notice Stopping Temporary Compensation Benefits within 5 days of your receipt of your last check or send you a Notice of Workers’ Compensation Denial within the 90-day period that the benefits are payable. If your employer fails to do either, benefits should continue after the 90-day period. If you receive one of these documents, you should file a Claim Petition to have your injury recognized as work-related.
When an employer issues a Medical Only Notice of Compensation Payable, the employer is indicating that it will pay for your medical expenses related to the work injury, but it will not pay wage loss benefits because either you did not miss work due to the work injury or you missed less than 7 days due to the injury. A Notice of Compensation Payable is issued when your employer will also pay you wage loss benefits due to your work injury.
An Agreement for Compensation is an agreement between you and your employer or it’s insurance company on the nature of your work injury and the benefits due you as a result. You will be asked to sign this document, therefore, it is important that all of the information contained in the Agreement is correct.
It is very important that your injury is described correctly and in sufficient detail in any document that describes your injury or you may experience problems with your claim in the future. Once your employer issues a Notice of Temporary Compensation Payable, Notice of Compensation Payable, or an Agreement for Compensation, your benefits cannot be stopped without advance notice to you and without proper documentation. If your benefits are stopped, or you receive notification that they will be suspended, you should immediately seek the advice of a workers’ compensation attorney.
If you are unsure which documents or if any documents have been filed with the Bureau of Workers’ Compensation, contact our office and we can order these for you, or write to the following address to request them:
Commonwealth of Pennsylvania
Department of Labor and Industry
Bureau Of Workers’ Compensation
1171 S. Cameron Street, Room 109
Harrisburg, Pennsylvania 17104-2501
You must have a specific document from the Bureau of Workers’ Compensation recognizing your injury and should never rely solely on the verbal assurance of your employer or the insurance company that you are covered under the Workers’ Compensation Act.
Specific Loss Benefits
In addition to wage loss and medical benefits, there is another category of benefits available, known as specific loss benefits. If your hand, finger, arm, leg, foot, toe, hearing or sight has lost some or all of its function due to your work, you may be entitled to benefits for that loss. These benefits are payable for the specific loss and are not payments for lost time from work. You may be entitled to these benefits even if you have not missed time from work. The bodily part need not be amputated or rendered useless to be compensable. The legal test is whether the bodily part or eyesight has been lost for all practical intents and purposes. For specific loss of bodily parts, hearing or eyesight, the Workers’ Compensation Act provides for a specific number of weeks of benefits as well as a healing period during which benefits are paid.
Scarring of the head, neck, and face, and certain surgical scars caused by a work injury are also compensable as a specific loss with a maximum of up to 275 weeks of workers’ compensation payable. The amount of weeks awarded is based on the discretion of the Workers’ Compensation Judge.
If you have only lost part of the use of a finger or toe you may be entitled to receive one half of the compensation provided for in the Workers’ Compensation Act.
The chart shows the amount of benefits available for specific loss.
Hearing Loss Benefits
For hearing loss, the amount of the loss is determined by comparing an employee’s hearing test results with the AMA Guides to the Evaluation of Permanent Impairment. An employee must have a work-related hearing loss of greater than 10% in both ears in order to recover benefits and must have been exposed to continuous loud noise in the three years preceding the filing of a claim. For every percentage point of bilateral hearing loss an employee has he or she is entitled to 2.6 weeks of workers’ compensation benefits. So for example, a hearing loss of 20% would be the equivalent of 52 weeks of benefits (2.6 weeks x 20 = 52 weeks of benefits).
In addition, if an employee has hearing loss in one ear due to a traumatic work event, the employee may be entitled to .6 weeks of workers’ compensation benefits for every percentage of hearing loss.
It is the employer’s burden to prove that the employee is not exposed to sufficient noise or that the hearing loss is not related to work.
When an employee is fatally injured from a work injury or occupational disease, the Act provides benefits in the nature of wage loss, medical expenses and some burial expenses.
The dependent spouse and children of an employee who is fatally injured from a work-related injury or disease may be entitled to wage loss benefits based on a percentage of the average weekly earnings of the employee, not to exceed the statewide average weekly wage. In order to be entitled to benefits, the spouse must have been living with the decedent or financially dependent on the decedent at the time of death. These benefits are payable for life or until two years after the widow or widower remarries.
Dependent children who are entitled to wage loss benefits will be entitled to benefits as long as the children (or child) are under the age of 18. Children will be entitled to wage loss benefits until the age of 23 if they are attending an accredited school. A child who is disabled at the time of the death of a parent will be entitled to ongoing benefits.
In the event of a work-related fatality, any medical bills incurred as a result of the work injury or occupational disease, which resulted in death, are the responsibility of the employer. In addition, the Workers’ Compensation Act provides that the employer must pay a burial expense up to a maximum of $3,000.00.