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Workers Who Are Unable to Return to Their Pre–Injury Job

What if I can’t return to work?
When will the insurance company try to show that I can make money?
How will the insurance company try to prove that I can work?
Can the insurance company just stop or reduce the amount they are paying me?
Why will the insurance company do this?
What can I do to respond to the insurance companies effort to limit my benefits?
What are the advantages or disadvantages of settling my case?
How much can I expect to get from a settlement?
Who comes up with that comprehensive rehabilitation plan?


What if I can’t return to work?

If you have been completely out of work and have been unable to perform your pre–injury job, you have been receiving “temporary total disability benefits” under the Pennsylvania Workers’ Compensation Act. Depending upon your pay prior to the work in injury, you are receiving a certain percentage. Most people receive 2/3 of their pre–injury pay. Higher paid people can receive less than 2/3. Lower paid individuals can receive up to 90% of their pre–injury pay.

“Total temporary disability (TTD) benefits” are temporary. The law assumes that you will recover to the point that you will no longer be totally disabled. Pennsylvania law does not provide for a permanent total disability. Rather, the system assumes that the benefits are a temporary bridge between your injury and your return to some form of gainful employment. However, TTD benefits are unlimited in time. It is up to the insurance company to pay you TTD benefits until they show that you can earn some money.

Once the insurance company shows that you can earn some money, you become entitled to “partial disability benefits” if your earnings are less than your pre–injury wages. Partial disability benefits are calculated by subtracting what you could make from what you used to make. You are paid 2/3 of that difference. If you could make more than you used to make, your wage benefits are “suspended.” Unlike TTD benefits, partial disability benefits are limited in time. You are entitled to a maximum of 500 weeks of partial disability benefits.

When will the insurance company try to show that I can make money?

The length of time that a workers’ compensation claimant receives benefits before the insurance company tries to show they have earning potential varies a great deal from case to case. It depends on the seriousness of the injury, whether treatment was successful or unsuccessful, whether surgery occurred and a multitude of other factors. The insurance company will try to show that you have earning capacity when it feels that you have reached a point in your recovery where you have the ability to work. Often they will send you for an examination to determine whether you have reached “maximum medical improvement” (MMI), but you don’t need to be fully recovered, nor do you have to be finished treatment for the insurance company to argue that you can return to work.

How will the insurance company try to prove that I can work?

First, they will have you examined. Then they will ask the examining doctor to offer an opinion about what physical capabilities you have. They might use your own treating doctor, but they will probably hire their own doctor to conduct this examination. By law, the insurance company must notify you of the results of this examination. They will then talk to your pre–injury employer to determine whether they the employer has work for you to do within those capabilities. If the employer doe not have modified duty work for you, the insurance company will as a vocational expert to interview you. They will then ask the vocational expert to: 1) send you on interviews with prospective employers, or 2) offer an expert opinion about what you can earn.

Can the insurance company just stop or reduce the amount they are paying me?

If you havwe been out of work for more than 90 days, the answer is (generally) no. The insurance company cannot stop or reduce your checks unless they have your agreement, a workers’ compensation judge issues an order directing that your checks be stopped or reduced, or you actually return to work. If you actually return to work, the insurance company must issue proper notices that it intends to stop or reduce your benefits. There are exceptions. For example, if you are incarcerated, the insurance company can stop paying your benefits. If you receive unemployment compensation benefits, pension or retirement benefits, or social security retirement benefits, the insurance company can reduce your benefits simply by filing a notice.

Why will the insurance company do this?

For you, the management of your claim is a very personal matter. Your livelihood and your family’s livelihood depend on that check. For the insurance company, the management of your claim is not a personal matter. It is a business matter. The insurance company is in the business of making money for its stockholders. In short, they are in the business of making more money selling insurance than they pay out in claims. You are not a person to them. You are “red ink” on the company’s ledger. They have a legal obligation to their stockholders to limit the “red ink.”

It is very natural to react emotionally when you have suffered a work injury. The American culture places great importance on what we do. When you meet someone new, you can expect to ask and to answer the question “What do you do?” very quickly. When you are injured and cannot work, you lose the answer to that question. You lose the security of knowing that you can provide for your family. You become uncertain about your future. And, if your claim was contested in any way, you feel like you honesty has been called into question. These feelings are all very natural, but they sometimes get in the way of responding to the cold, calculating, and business approach of the insurance company to your claim.

What can I do to respond to the insurance companies effort to limit my benefits?

First, you should talk to a lawyer before the insurance company starts to exercise its rights under the Pennsylvania Workers’ Compensation System. A good time to contact a lawyer is when you are scheduled for an “independent medical examination” (IME) with one of their doctors. A consultation with a workers’ compensation lawyer is free.

This document only begins to scratch the surface of what you need to know. You should talk to a lawyer about: 1) your rights; 2) your options; 3) whether you should apply for Social Security Disability Benefits, 4) whether you should apply for short or long term disability benefits, 4) whether you should apply for unemployment compensation benefits; 5) whether you are entitled to any other benefits; 6) whether you have any other type of claim (e.g. personal injury, medical malpractice, products liability, etc. As you can see, you workers’ compensation specialist should be familiar wit workers’ compensation, social security disability, disability contract claim, employment, and personal injury law.

One of the options you have when you reach this stage of the case is to consider settling your claim for a lump sum. You are not required to settle your case. You may prefer to continue to receive your benefits on a weekly or bi–weekly basis. The advantages and disadvantages of settling your case or staying on the regular check will be a significant topic of conversation with your workers’ compensation lawyer.

What are the advantages or disadvantages of settling my case?

The answers to that question are highly dependent on the facts of your individual case. It is a question that you need to ask a lawyer who knows all about your case.

How much can I expect to get from a settlement?

Again, that answer depends upon the specific facts of your case. The amount of your settlement depends upon your pre–injury wages, your age, education, work history, acquired work skills, the severity of your injury, the severity of your loss of function, and numerous other factors.

I can share two general rules. First, the more you made before you were injured, the more you can generally expect to receive in a settlement. There are exceptions to this rule, but not often.

Second, you will not be able to live on your settlement without returning to work or having some other income source to replace your checks. After twenty years of experience, I have observed that an injured worker who tries to live off their settlement will run out of money in 2 to 2 ½ years.

Therefore, your settlement fund is not something you should plan to use for your support. It should be used for something special like re–training, education, paying down or paying off a mortgage, etc. In short, settlement of your workers’ compensator claim should be part of a comprehensive rehabilitation plan.

Who comes up with that comprehensive rehabilitation plan?

You do. Pennsylvania law does not provide for rehabilitation benefits as part of its workers’ compensation system. Your employer or its insurance carrier is not required to retrain or re–educate you.

Helping you create your rehabilitation plan is another service that a qualified workers’ compensation attorney will provide you. He or she can tell you about resources, such as the State Office of Vocational Rehabilitation, that may be able to assist you with identifying a new career and getting the training. He or she may recommend that you consider applying for Social Security Disability benefits as a means of providing replacement income if you settle your case. Workers’ compensation lawyers know about a lot of jobs and can help you consider whether a particular alternate career is suitable for you.