Timeline to Obtaining Workers Compensation
How Long Will It Take To Get Workers’ Compensation Benefits?
By Daniel E. McCabe Esq. Wolf, Baldwin, and Associates, P.C.
At nearly every consultation about Workers’ Compensation benefits, clients ask how long will it take to get benefits if my claim is denied? If the injured worker is seeing an attorney it’s usually because something has gone wrong and he or she does not know what to do, or how long the claim going to take. This article will address some of the timelines that one can expect if he or she is involved in the Pennsylvania workers’ compensation system.
When someone gets injured at work, the employer’s insurance company has 21 days to either accept or deny the claim as a compensable injury. Thus, after someone is injured, there may be a three week period before the person is aware of whether the employer’s insurance company has decided to accept liability for the claim. This assumes that the insurance company will choose to follow the 21 day rule under the Worker’s Compensation Act. Often, if the injured worker is not represented by an attorney (which would typically be the case immediately following an injury), the insurance company will begin to pay for medical bills and will neither officially accept nor deny the claim at all. The hope in this situation is that the injured worker simply goes to the doctor a few times, gets all better, and is never heard from again regarding the injury. In some situations the same injury may crop up again some six months later, and, since the insurance company never accepted or denied the claim, it may take the position that it is not responsible for any wage loss benefits or medical treatment. Thus, it is important for people injured at work to inquire as to whether their injuries have been accepted or denied. If the injury is accepted and the claim is “picked up”, the injured worker can expect to receive benefits with a few weeks. But what happens if the insurance company officially denies the claim? The injured worker usually will ask “what is taking so long and how long is this going to take?”
This is usually the point where the injured worker seeks legal counsel. If the injured worker has what appears to be a compensable claim, the attorney would normally file a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation. The claim would request medical benefits and wage loss benefits due to the fact that the person was injured work and can no longer perform his or her job. How long does a typical Pennsylvania workers’ comp claim take to litigate? A fully-litigated claim petition normally takes somewhere between 8 to 12 months before a workers’ compensation judge renders a decision. This length of time can obviously create a significant hardship on an injured worker who otherwise may have no funds coming in at all. The silver lining is that if the claim is successful the Workers’ Compensation Act allows for statutory interest of 10% per year to be paid on all past-due compensation.
A workers’ compensation case is a trial spread out over many months. The timeline of a litigated workers’ compensation claim can be summarized as follows. The Claim Petition is filed with the Bureau. The case is then assigned to a workers’ compensation judge within approximately 2 to 3 weeks from the filing of the petition. Then, depending on the judge’s caseload, a hearing will normally be scheduled a few weeks after that. However, if the assigned judge is particularly busy, that hearing may be scheduled up to six weeks from the filing of the initial claim. In some cases, the assigned judge will use the first hearing a preliminary hearing to gather information; however most judges in southeastern Pennsylvania will expect the claimant to testify at the first hearing. Following the first hearing the claimant is given 90 days to present medical evidence. This usually consists of the deposition of the treating physician. Within 45 days of the first hearing the insurance company is supposed to schedule a medical examination of the claimant with its own medical expert (often referred to as an “independent medical exam” or “IME”).
If the IME physician agrees that the claimant suffered an injury, frequently the case will be over and the insurance company will have little choice but to accept the claim. On the other hand, if the IME doctor does not believe that the injury is work-related, the insurance carrier will have 90 days to present fact witnesses from the employer and the doctor by deposition. So, at this point, the system has taken 4 to 6 weeks for a first hearing, then another 180 days to gather and present all witnesses and evidence. Then, depending on the judge and the complexity of the case, the judge will set a briefing schedule to allow each party’s attorney to have a chance to offer their respective legal arguments to the judge in writing, which usually takes another 30 to 60 days. These legal briefs are anything but brief; they can range from 10 to 40 pages long or more, and take a considerable amount of time for the lawyers to prepare. Then, when all the evidence and the briefs have been submitted, the judge might take up to 90 days from the receipt of the last brief to issue a decision. One can see that this process could easily take over a year before any decision related to the injured worker’s claim is made by workers compensation judge.
If the insurance company has decided to deny the injured worker’s claim, that means that no medical benefits related to the injury and no wage loss benefits will be paid while the parties litigate the case and await the judge’s decision. That means that the injured worker could be without any type of pay during the entire process. Needless to say, the economic damage that may do to the injured worker may very well cause that person to simply go back to work while still injured, or seek another job. And you can bet your bottom dollar that the insurance companies are well aware of this fact. However, there are a few other options for injured workers if their claims are litigated.
If the injured worker is only disabled from performing his or her pre-injury job, but not disabled from any and all types of work, that person may apply for unemployment benefits. If the worker’s claim for workers’ compensation benefits is ultimately found to be compensable by the judge, the workers’ compensation insurance carrier would simply be entitled to a credit for any unemployment benefits the person received, net of taxes, during the litigation of the claim. The unemployment benefits are treated like workers’ compensation benefits paid in advance. However, if the injured worker is disabled from any and all types of work, he or she would not be eligible for unemployment benefits, because in order to be eligible for unemployment benefits, the injured person available to enter the workforce to perform some type of work, albeit sedentary or light-duty. So, what other options are there for the injured worker to weather the 8 to 12 month storm?
If the employer has a short-term disability policy in place, or if the employee took it upon himself to purchase his own short-term disability plan, then short-term disability benefits (which may later turn into long-term disability benefits, depending on the policy) may be paid while the workers’ compensation claim is litigated. Then, if the claim is to be found compensable by the judge, much like the unemployment benefits discussed above, the insurance company would be entitled to a credit for the net short-term disability benefits received by the claimant which were paid for by the employer.. Thus, if the employer pays for 75% of the short-term disability insurance premiums, and the employee pays the other 25%, the insurance company would only be entitled to a credit of 75% of the net short-term disability benefits received by the injured worker, after taxes.
If none of the above options are available to the injured worker, he or she could apply for welfare benefits. However these benefits are often not even close to enough to keep that person afloat during this extremely difficult financial time. The one saving grace through all of this for the injured worker is that if the initial claim is accepted, all of the same timelines apply to the insurance company’s ability to stop those benefits. Thus, if the claim is awarded after a year of litigation, the injured worker will be paid for the entire year of wage loss benefits, plus statutory interest of 10% per year. If the judge finds that the disability continues, the claimant then begins to receive a weekly check. If the insurance company later obtains evidence that the injured worker has recovered from the injury, or wants to modify the claimant’s benefits based on a job offer or other proof of the claimant’s ability to earn wages despite the injury, the insurance company must follow the same long system to try to terminate or modify those benefits.
By its lengthy nature, the Pennsylvania workers’ compensation system weeds out the marginal claims of people who are not truly injured. Few workers are able to financially survive the litigation process easily without having had substantial savings already built up or a spouse who is able to singly support the household. Only people who are truly injured and cannot return to the workforce right away, the people who are forced into the system by necessity, are the people for whom the judges must make decisions.
It is readily apparent that workers’ compensation litigation in Pennsylvania is lengthy and complex. It is not a matter to be undertaken lightly, with so much at stake. Injured workers should always consult competent counsel, as early as possible in the claim, to make sure that all of their rights are fully protected.
Daniel E. McCabe Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C.. His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers. He can be reached by phone at 610-436-8300, or by e-mail.