KWAK LAW FIRM


Copyright © KWAK LAW FIRM 
796 North Pennsylvania Avenue, Wilkes-Barre, PA  18705
Phone: (570) 825-7070     Fax: (570) 825-7773

​If you don't know your rights - you can't fight for them.

WORKERS' COMPENSATION


If you have been recently injured at work and your employer is denying you workers' compensation benefits, the Kwak Law Firm can help you win your case and receive the compensation you deserve.


The biggest advantage to having the Kwak Law Firm on your side is the Kwak Law Firm believes that our hard working friends and neighbors deserve the best representation during the difficult times of being out of work due to a work injury.


Under the Pennsylvania Workers' Compensation Act, attorneys are allowed to charge up to twenty percent (20%) of your wage loss benefits if they win your claim for you and you are granted workers' compensation benefits.


You definitely want a team that knows the system and is willing to fight for your rights and every penny that you are entitled to.  This is a small price to pay for the peace of mind that an experienced qualified attorney is handling your claim. 


Additionally, under the Pennsylvania Workers' Compensation Act, an attorney only gets paid when you get paid.  If you are being denied benefits or your employer is denying that the injury took place, you will need an attorney to file a Claim Petition against the employer and its insurance carrier.  When you win your claim, your attorney will receive his percentage directly from the carrier with the remainder being paid directly to you.


Likewise, if the carrier has accepted your claim and you are currently receiving benefits, the carrier can and most likely will file a petition against you to either Modify, Suspend or Terminate your benefits at some point.  You must remember the carrier is not in business to pay out money.


Once the petition is filed, you will need an attorney to represent you against the carrier's petition.  This petition process is call litigation. The attorney representing you would then be entitled to the percentage of your wage loss benefits.


The Kwak Law Firm in most cases is willing to "front" your litigation costs in any petition litigation.  These costs include the cost of medical records to support your claim, cost of deposition of your treating physician so that you doctor can provide his opinion to the Judge, cost of hearing and deposition transcripts.


When the Kwak Law Firm wins the litigation for you, the carrier is then responsible to reimburse the litigation costs back to the firm. The good thing for you is that you did not have to cover such costs out of your pocket during this difficult time when you are not working.  These costs can easily add up and could be an unexpected burden on you and your family.  You can put your mind at ease that the Kwak Law Firm will handle these expenses for you.


Though our firm is young, you can rest assure that Attorney Kwak is a very seasoned attorney who has been practicing workers' compensation law for well over twenty five years.


BRIEF HISTORY OF WORKERS' COMPENSATION IN PENNSYLVANIA


In the Commonwealth of Pennsylvania all work injuries fall under the jurisdiction of the Pennsylvania Workers' Compensation Act.  This Act was originally passed into law in 1915.  The enactment of this law was to provide a state wide, no-fault insurance system of benefits, to provide all employees, injured in the course and scope of their employment with entitlement to wage loss benefits and payment of medical expenses related to that specific work injury.


This Act also protects the employer, in most cases, from being sued by an injured employee.  In short, the injured gives up his right to sue the employer for non-economic damages, such as pain and suffering, to be granted the payment of wage loss benefits and to have their medical bills paid as they relate to the work injury.


Since 1915, every employer in the Commonwealth of Pennsylvania was and is required to purchase and carry workers' compensation insurance.  Some employers are self-insured, which means that they have a bond and pay benefits out of their own company funds, but regardless they are still insured.


Likewise, the employer that fails to carry workers' compensation insurance coverage is violating the law and is subject to potential criminal actions including fines and potential imprisonment.


On June 24, 1996, Pennsylvania passed amendments to the Act that dramatically changes the Act.  Those changes or amendments are commonly known as "Act 57".  An interesting note is that these amendments were passed, basically in the middle of the night by Governor Ridge and his administration.  Act 57 gave the employers, through their carrier or their third party administrator, more control and more ways to either deny and/or stop an injured worker's right to workers' compensation benefits, and it becomes more difficult for the injured employee to be paid benefits.


On November 9, 2006, the Act was changed again with those amendments know as Act 147.  These amendments were under the administration of Governor Rendell, and gave the employee additional rights.  Now the employee has a way to be covered and compensated should his employer violate the law and not carry workers' compensation insurance.


Act 147 established the Uninsured Employers Guaranty Fund to pay those benefits regardless of the employer's failure.  This gives the injured worker a way to seek workers' compensation benefits for which they would have been entitled without being penalized for their employer's fail to comply with the law regarding insurance coverage.


INJURIES COVERED BY THE WORKERS' COMPENSATION ACT


The Workers' Compensation Act applies to ALL injuries or occupational disease that occurred while you are in the course and scope of your employment.  This includes the aggravation, acceleration and/or a worsening of a preexisting condition whether known or unknown by the employer.


Should your employer, through their carrier deny your claim on the basis of a preexisting injury or condition, contact an attorney immediately. Either the person denying your claim does not know the law or they are just lying to you.


You have the absolute right to receive workers' compensation benefits even though you may have a preexisting condition or if your injuries were in some way caused by your own actions.


Additionally, occupational illnesses and disease are included as compensable injuries.  These injuries can include certain cancer causing chemicals and/or lubricants, along with hearing loss, heart and lung conditions from exposure to heat, smoke, gases or poisons, to name a few.


There is also SPECIFIC LOSS BENEFITS.  These benefits are payable should you suffer an amputation or loss of use of various body parts, to include but not limited to, fingers, toes, hand, vision or hearing, related to your employment.  Any permanent disfigurement or scarring of your head, face and/or neck falls into the same category.  Payments are based upon a designated number of weeks of compensation and healing time for each specific loss and are paid at your compensation rate.


The Workers' Compensation Act also provides for DEATH BENEFITS, should the employee's injuries result in the death, the employee's spouse and/or dependents can be entitled to wage loss benefits and funeral expenses.


ALL EMPLOYEES ARE ENTITLED TO WORKERS' COMPENSATION BENEFITS


​The key word in that state is EMPLOYEE. An employee is someone who performs a service for another person or party for valued consideration meaning money.  It can be part-time or even a seasonal position.  In short, you are an employee if you are being paid by the employer and are having taxed deducted from your paycheck.  If you choose to work "under the table", you chose not to have injury protection provided for under the Workers' Compensation Act.  There is an exception to this employee rule, which include members of volunteer organizations such a rescue squads and fire department.


Federal government employees, military personnel, railroad and maritime workers, and National Guard members are all covered under either the Federal Workers' Compensation Act or the Longshore and Harbor Workers' Compensation Act, both of which have their own rules and regulations.


THE TWO MOST IMPORTANT THINGS FOR YOU TO DO IF YOU ARE INJURED AT WORK


​1.     REPORT YOUR INJURY to your employer immediately or as soon as physically possible.  Likewise, if you have been advised by your physician that you have a medical condition related to your work (occupational illness or disease) as discussed above, you should also report that condition to your employer immediately upon receiving the diagnosis from your doctor.


In all instances when giving notice to your employer, take note as to the person you contacted, the date and time of the contact, and your method of contact, such as in person or via telephone.  It is also best to follow up this injury notice in writing to ensure that there will be no notice issue in the future.


If contacting via telephone, we would suggest that you use your cell phone for all phone calls.  Information regarding those calls will be available in your cell phone billing records in the event that your employer should dispute that notice was given.


Technically, under the Act, you have 120 days to report any injury to your employer starting on the date of injury or the date you became aware that your occupational illness or disease is related to your work.


Failure to give notice within the 120 days will forever bar you from collecting workers' compensation benefits of any kind including wage loss benefits and/or medical expenses.


We cannot stress enough the importance of immediate notice to your employer to eliminate speculation that your injury did not happen at work.


2.     SEEK MEDICAL TREATMENT as soon as possible.


It is very important that you seek medical treatment so that a medical provider documents your injury. It is also very important that you fully advise your doctor about your injury, your job duties and your physical limitations.


Delaying treatment only gives the appearance that you were not injured on a specific date at work or that your injuries do not warrant compensation.


Additionally, ask your treating physician for a "work slip" at every visit.  This slip will provide you with your work restrictions and/or your no work order if applicable.


ONLY A DOCTOR CAN REMOVE YOU FROM WORK AND/OR PLACE RESTRICTIONS AS TO YOUR PHYSICAL CAPABILITIES. 


The amendments to the Act, permits the employer to control immediate post injury medical treatment for the first 90 days only if specific requirements are met by the employer.  These requirements are basically two-fold.


1.     The employer must post a list of at least 6 medical providers for you to choose for treatment, and;


2.     The employer must have you sign an "acknowledgement of rights and duties", both before and after your injury.


Most employers will have you sign the first "acknowledgement of rights and duties" at the time of your hire and then sign the second acknowledge at the time you report your injury.


UNLESS YOU SIGNED BOTH ACKNOWLEDGEMENTS REGARDING YOUR RIGHTS, AND YOUR EMPLOYER CAN PRODUCE BOTH DOCUMENTS, YOU HAVE NO OBLIGATION TO TREAT WITH ANY OF THEIR DOCTORS/FACILITIES ON THEIR LIST OR REFERRED BY YOUR EMPLOYER. 


REQUIRED CLAIM DOCUMENTS TO ACCEPT OR DENY YOUR CLAIM


Your employer and its carrier are required to file certain documents with the Bureau of Workers' Compensation in Harrisburg at the time of your injury or shortly thereafter.


THEY ARE ALSO REQUIRED TO PROVIDE YOU WITH A COPY OF ANY/ALL FILINGS. 


​Your claim for benefits is based upon which documents were filed and/or on file in Harrisburg.  If no documents were filed, you do not have a claim regardless of what your employer or its carrier may have represented to you.


If you have not received copies of any filings, you should contact an attorney to request and review all documents on file in Harrisburg and possible file a Claim Petition for your to start the litigation process to receive benefits.


These documents should be:


1.     FIRST REPORT OF INJURY. This document contains your personal information such as your name, address, phone number, your employer's information and its carrier's information and most important the details of the injury.  The document should be filed within 7 days of the notice of the injury.


2.     Within 21 days of the notice of your injury, the carrier is required to file one of the following:


2.a.     NOTICE OF WORKERS' COMPENSATION DENIAL. This document denies that you suffered a work injury.  To file a claim for benefits, you need an attorney.


2.b.    NOTICE OF TEMPORARY COMPENSATION PAYABLE.​  This document allows the carrier additional time to investigate your claim.  This document expires in 90 days.  If the carrier does not file a Notice Stopping Compensation Payable in that 90-day time frame, the Bureau will convert the Notice of Temporary Compensation Payable to a Notice of Compensation Payable.  Both will be further discussed below.


2.c.     NOTICE STOPPING TEMPORARY COMPENSATION PAYABLE. If filed within the 90-day time frame, you benefits have been denied.  If you at still out of work, and/or treating with a doctor for your injury, you need an attorney.


2.d.    NOTICE OF COMPENSATION PAYABLE - MEDICAL ONLY.​ This document accepts liability for your medical treatment only.  It does not provide you with wage loss benefits should your treating physician have you out of work related to your work injury.  If you are not working due to your work injury, you need an attorney.


2.e.    NOTICE OF COMPENSATION PAYABLE. ​This document accepts your claim for wage loss and medical benefits.


Carefully review all of these documents, especially the description of injury.  In most cases, your injury is probably described as a sprain/strain.  The carrier will always list the slightest injury in an attempt to argue that you have recovered from your injury in a short period of time limiting their liability of your claim.


If this description is not correct and does not match the diagnosis you have received from your treating doctor, you need an attorney.


WAGE LOSS BENEFITS


Your wage loss benefits are calculated via a Bureau form called a STATEMENT OF WAGES. This is one of the most miscalculated forms by the carrier.  It is used to calculate your AVERAGE WEEKLY WAGE. There are several calculations methods and the carrier's adjuster does not always apply the correct method, which can result in you receiving less wage loss benefits than you are entitled to.


Your weekly COMPENSATION RATE is based upon this average weekly wage calculation.  Depending on the final calculation, your compensation rate will be 66 2/3% of your average weekly wage up to the state maximum for that particular year. The exception is for injured workers with a low calculation, they may be eligible to receive 90% of the average weekly wage.


Wage loss benefits are not taxable but your benefits are fixed for the life of your claim.  There are no "cost of living" increases regarding wage loss benefits.


Your wage loss benefit checks will be issued for the same period as your paycheck.  If you were getting paid every week, your compensation check will be issued every week.  If bi-weekly, your compensation check will be issued bi-weekly.


If your Statement of Wages does not appear to be correct, you should gather all of your pay stubs from your employer, and contact an attorney to review your Statement of Wages for the proper method and calculations.


Additionally, if you were working for more than one employer at the time of your injury, you should contact an attorney for you may be entitled to a high compensation rate based upon the additional wage loss that was not taken into consideration at the time of the calculation.


If you have received a Notice of Compensation Payable with a correct description and a Statement of Wages with the correct wage calculations, Congratulations!! You are one of the few.


But unfortunately, you must remember that the carriers are not in business to pay out money.  The insurance industry is basically a form of legalized gambling.  They are "gambling" that the premiums they are taking in will surpass the amount of money they will pay out in claims/benefits.


You can rest assure that if the carrier does start to pay you, they will use all the tools at their disposal to try to stop your benefits and limit their loss.


WAYS THE CARRIER CAN LIMIT YOUR CLAIM AND THEIR LIABILITY


There are several ways for the carrier to attempt to stop your benefits either totally (wage loss and medical) or partially (stop your wage loss).


1.     The first is what the carrier calls an INDEPENDENT MEDICAL EXAMINATION (IME).  The term "independent" is definitely used loosely. It is a medical examination with a doctor of their choice that is being paid big bucks to render an opinion about your injury.  Chances are that since the carrier is paying the doctor, the doctor's opinion will be favorable to the carrier.  The carrier is entitled to two examinations in a 12-month period.


If you receive a letter advising you that an examination has been scheduled, you should contact an attorney to verify if you need to attend and if the carrier is entitled to the examination at this time.  Depending on the circumstances you may not need to attend.


Additionally, the carrier is responsible to provide you with transportation to and from the examination or reimburse you for mileage and tolls to attend the examination. Other expenses like your lunch during the trip to the examination do not qualify for reimbursement.


Remember these examinations are for the sole purpose of limiting their liability and to gather evidence against you.  It is in your best interest to know your rights about this examination, and again we suggest you contact an attorney.


If the carrier receives an opinion that you are fully recovered from your "sprain/strain", the carrier can and most likely will file a Petition to Terminate your benefits, which would stop both your wage loss and medical benefits.  In essence, close your claim.  If this happens, you need an attorney to represent you in the litigation process.


If the carrier receives an opinion that you are able to return to work in some capacity, the carrier can and most likely will file a Petition to Suspend your benefits, which would stop your wage loss benefits but keep your medical benefits open.  If this happens, you need an attorney.


If you do not attend the scheduled medical examination, the carrier can and most likely will file a Petition to Compel to have a Judge order you to attend the examination. If this happens, you need an attorney.


2.     The next means to limit your claim is what is called an IMPAIRMENT RATING EVALUATION (IRE).  Like the Independent Medical Examination, the carrier is entitled to 2 examinations within a 12-month period but they cannot request the first examination until 60 days after you have received 104 weeks of wage loss benefits or any time after the required time frame.  


The sole purpose of this examination is to limit your future wage loss to an additional 500 weeks from the date of the exam. This 500 week period determination changes your disability status, not your disability rate, from total to partial.  Partial starts the 500-week clock ticking.


The only way the clock does not start is if the evaluation comes back from the doctor with an impairment rating of 51% or greater, only taking into consideration your accepted work injury.  Remember, our discussion about your description of injury?  Sprain/strain injuries will not have a very high impairment rating.


3.     If the carrier decides to try to stop paying for your medical bills, they can file what is called a UTILIZATION REVIEW REQUEST naming your treating doctor. If they want to be very aggressive, they can file this request of each and every one of your treating doctors.  This request is to determine the "reasonableness and necessity" of the specific treatment with a specific doctor you are treating with.  The Workers' Compensation Bureau in Harrisburg with assign an independent organization and/or doctor regarding the Utilization Review process. The Utilization Review Organization (URO), will contact your doctor, review you medical treatment records and issue a report.


As part of this process, you have the right to submit a statement regarding your medical treatment with the doctor under review.  This statement must be submitted within 23 days of the assignment of the URO. We strongly recommend that you submit this statement and again we would suggest you contact an attorney to assist you.


If the Determination is that the treatment is reasonable and necessary, then the carrier will remain responsible to pay for the medical treatment. Likewise, if the Determination is that the treatment is unreasonable and unnecessary, and then the carrier will not be responsible to pay for the medical treatment.


Based upon the Utilization Review Determination as to whether the treatment is or is not "reasonable and necessary, all parties, you, your treating doctor or the carrier, can file a Petition to Review if they do not agree with the determination.  This petition is asking a workers' compensation judge to make a decision regarding the medical treatment.  If any party files a Petition for Review, you need an attorney.


Additionally, be advised that while under review your treating physician may not be willing to continue to treat you until the determination is found in their favor.


4.     VOCATIONAL INTERVIEW/LABOR MARKET SURVEY. Another tool that the carrier can use is to request a vocational interview and a labor market survey in an effort to reduce or suspend your wage loss benefits.  This is usually performed after the independent medical examination is given the opinion that you are capable of returning to work in some capacity.


A vocational rehabilitation counselor performs the interview.  This person is hired by and works for the carrier.  Their only job is to get you off workers' compensation and get you back to work whether you are physically capable of returning or not.  It does not matter whether your treating physician has released you to return to work or not.


SIMPLY STATED, THEIR SOLE PURPOSE IS TO STOP YOUR BENEFITS.


If a vocational counselor contacts you, you need an attorney so that you can understand your rights and obligations.  Any interviews with our client, take place in our office with a member of our staff present to make sure all questioning is proper and in conjunction with the rules and regulations.


After the interview, the counselor will perform a labor market survey.  This is a report stating which jobs in your geographical area, the counselor feels you are capable of performing taking into consideration your past work history, your education and your physical capabilities.


In most labor market surveys, you will find jobs like a third shift night clerk at a hotel or a clerk at Turkey Hill.


It is in your best interest, to go in person to each of these alleged job openings and apply for the job. There is also additional information that you should ask and obtain regarding each alleged job.


This is one of the many reasons you need an attorney if contacted by a vocational counselor.


OUR LEGAL TEAM


The Kwak Law Firm has a staff of highly qualified paralegals to assist in successfully resolving your case.


We are a very progressive office, and most of our paralegals work from home, though rests assure, each of our staff has years of experience.


In today's day and age, it is not necessary for qualified employees to travel to the office to sit an their assigned desk or office.


All of our paralegals are available to our clients via direct dial numbers and/ or email.


Additionally, though your case is always a team effort, you will be assigned one of our qualified paralegals as your personal contact regarding your case.


OVERVIEW


As you can see from this quick overview, the workers' compensation system is complicated and not an easy process to navigate without the knowledge of your rights and responsibilities.


In closing, it is very important, in a workers' compensation claim, or in anything else in life, DO NOT sign any document that you do not fully and completely understand.


Likewise


1.     You should ALWAYS verify everything told to you by the carrier with a qualified, experienced workers' compensation attorney.


2.     You should ALWAYS have any/all workers' compensation documents reviewed by a qualified, experienced workers' compensation attorney.


CONTACT ON OUR OFFICE FOR A FREE CONSULTATION 


EVENING, WEEKEND AND HOME APPOINTMENT ARE AVAILABLE

AT THE DISCRETION OF THE ATTORNEY.


IF YOU DON'T KNOW YOUR RIGHTS

YOU CAN'T FIGHT FOR THEM

and

KNOWLEDGE IS POWER