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How long can my workers’ compensation benefits continue?

There has been a very recent Commonwealth Court case of Mary Ann Protz vs. W.C.A.B. (Derry Area School District), No. 1024 CD 2014 (filed 9/18/15) where our Commonwealth Court has determined that a test called an Impairment Rating Evaluation (IRE) is unconstitutional. What this means is for the time being, the existing 500 week (9.61 years) cap on your total disability benefit is not going to be applied to you if your physical injury from your work injury renders you less than 50% whole body impaired. I know that that is a mouthful and I will break it down.

Before the Commonwealth Court declared that portion of the law unconstitutional, the law provided that if your work injury, as a whole body impairment, rendered you less than 50% whole body impaired that your disability was no longer considered total disability but partial disability.  Partial disability according to the law even though the amount may not have changed, only goes on for 500 weeks.  Accordingly, if your work injury did not render you greater than 50% whole body impaired according to the most recent American Medical Association Guidelines, your benefits would be significantly impacted as far as continuing on into the future.  After 500 weeks the workers’ compensation insurance company could stop your total disability benefits.  It is very difficult to get over 50% whole body impaired.  Out of a 1000+ cases that I have had, I think three have made it over and those poor people were very, very, seriously injured with injuries resulting in either quadriplegia or paraplegia or the loss in the function of two or more extremities.

Now the Commonwealth Court case has basically put the use of an Impairment Rating Evaluation on hold for various legal reasons the use of the IRE will probably not be occurring in the very near future until such time as our Supreme Court rules on what is likely to be an appeal.  This is good news for injured workers!!

Therefore at the present time the question is can the insurance company stop my total disability after 500 weeks and for present purposes the answer is no.  This of course is subject to a review of this case by the Pennsylvania Supreme Court.

Otherwise, when can an insurance company stop your workers’ compensation wage loss benefits?  This is a question often asked and it is answered by saying they cannot stop your benefits without one or more of the following:

  1. You actually do return to work at wages that equal or exceed your average weekly wage when you were hurt.
  2. You sign an agreement allowing them to stop your pay.
  3. A Judge’s Order allows the insurance company the right to stop your payments but only after you have had an opportunity to have a hearing on whatever issue they have raised whether you are actually earning wages that equal or exceed your average weekly wage or whether you have the earning capacity to have earnings that equal or exceed your average weekly wage. In other words the insurance company does not actually have to find you a job they just have to, through the litigation process, convince a Workers’ Compensation Judge that you have the earning capacity to make your average weekly wage despite your work injury; or the Insurance Company can actually find you a real job.

The next question then becomes what if the insurance company does stop paying me without the right to do so?  The answer to that is they can be penalized and penalties can be up to 50% of the amount that is in controversy plus legal fees that would be incurred by your lawyer who although the lawyer would not bill you the injured worker but the lawyer would keep track of his or her time and part of the damages that you would be awarded would be to have the insurance company pay your lawyer fees for the time spent working on your case to get your benefits reinstated.

In sum there is a lot of change in our law and there is a lot that you should know about your rights and please feel free to contact my office at 610-691-2522 or visit my website at www.aristidelaw.com.  You can also email directly at aristide@aristidelaw.com.