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A single incident can often result in a variety of claims and available benefits. Consider a car accident, while a person is “at work”. This could involve driving to a sales meeting; a construction or landscape laborer travelling between sites; a police officer pursuing a suspect; a food delivery person; the list of possibilities is endless. This single accident could lead an attorney to believe they can gather the medical records, fill out forms, use boilerplate pleadings, and thereby pursue each of the various claims this single accident could create, such as:

  • A Negligence claim against other driver;
  • Workers Compensation;
  • FMLA;
  • Short/Long Term disability;
  • For Officers on Duty, a Heart & Lung Act claim;
  • For prolonged disability, Social Security benefits;
  • For complications from treatment – a Medical Malpractice claim;
  • For defects in one of the cars causing the accident, a products liability claim.

Few law firms, let alone sole practitioners, are equipped to capably handle all aspects involved in what may seem at first glance to be one, simple claim, not as a result of the lawyer’s particular skill or ability, but rather because each type of practice is so very different in their nature, procedures, scheduling issues and just plain “style” of practice. In order to maximize the value of each separate component of the claim, as well as to protect the client’s best interest, a lawyer needs to be wary about what they don’t know. Clint Eastwood probably put it best:  “A man’s got to know his limitations.”  (Magnum Force, 1973).

Origin

Personal Injury law originated in common law trespass. Workers’ Compensation is purely statutory. When rights and duties are created by statute, the Legislature giveth, and the Legislature may taketh away. Pennsylvania’s WC Act was called the Grand Bargain when created in 1915. The primary element given was the relaxed burden of proof (course of employment vs. negligence); while the benefit(s) taken away involve the types compensation available (ie., pain and suffering).

Burden of Proof

A personal injury claim requires proof of four elements: duty, breach, proximate cause and damages. The first two are typically subsumed by the term Negligence. The injured person (plaintiff) must prove that the defendant owed a duty to act (or not act), as a reasonable person would in similar circumstances. The failure to act reasonably is the breach of that duty. The plaintiff must have suffered some damage or injury, which was caused by the defendant’s “negligence”.  If any of the elements can not be proven with sufficient evidence, there will be no award.

The Workers’ Compensation Act essentially eliminates elements one and two. Negligence is not necessary to be entitled to workers compensation benefits; and no “extra” benefits are available even where it can be proven. Likewise, negligence on the part of the Injured Worker (claimant) is not a defense to a WC claim. Negligence is irrelevant. Instead, the claimant must prove the injury occurred while in the course of employment, and is related thereto. The additional element of disability determines the availability of wage loss benefits, but not the compensability of the claim.

Benefits Available and Duration

In Personal Injury matters, there is one single award or settlement, to cover all damages/injuries suffered. Elements of damage include economic losses (for medical bills, lost income), and the ubiquitous pain and suffering. Other components may include loss of enjoyment of life, loss of consortium, and even punitive damages. The settlement/award may include future injuries/losses, if supported by sufficient evidence. Once settled by the parties, or a Judgement is entered by the court, the plaintiff can not seek additional benefits for injuries lasting longer than expected, or consequences unforeseen at the time of settlement or trial.

Workers’ compensation provides a hybrid of benefits. As a general rule, the claimant is entitled to payment of medical bills for treatment that is reasonable, necessary and related to the work injury, and payment for lost wages (based on formulas in the Act). Wage loss and medical benefits may be payable on an ongoing basis, as long as the claimant remains disabled (compared to the one-time payment structure of negligence cases).  They can also be paid as a one-time settlement, discussed below. “Total disability” can, conceivably, last for life. “Partial disability”, typically where the claimant can work, but at restricted duties and less pay, may be available for up to 500 weeks. Additional benefits, commonly called “specific loss”, may exist for certain disfigurements, amputation or loss of use of a body part. Penalties may be awarded for a defendant’s violation of the terms of the law– subject to a Judge’s discretion.  There is no award or pain and suffering, loss of enjoyment of life etc. Furthermore, insurance companies have many tactics available to challenge a claimant’s right to benefits (ie, defense doctor stating clamant is recovered; vocational rehabilitation showing work available and many other strategies).

Settlements

A personal injury claim may be settled “out of court”, by forms prepared and signed by the parties, called a release.

Workers compensation settlements, called a compromise and release must approved by a Workers’ Compensation Judge. “Out-of-court” settlements are invalid. The parties can settle some or all benefits available. For example, the parties may settle the right to future wage loss benefits, but keep medical benefits “open”, to be paid by the insurance company. No Judge can force either side to settle. The amount of settlement, and every condition must be agreed upon, or there is no deal.

Procedures

A negligence lawsuit begins when plaintiff files a complaint with the court. The court will typically issue a trial/case management schedule.  “Discovery” is managed by the parties, and must all be completed within the schedule. If not resolved by agreement (or a dispositive order), the court will hold a single trial, where all evidence is presented, and counsel may make opening and closing arguments. At the conclusion, the Judge or Jury will render a verdict/award, determining the outcome.

Workers compensation proceedings begin with a petition, filed by either party, with the Bureau of Workers’ Compensation. The claimant may be seeking benefits; or the insurance carrier may be trying to stop or reduce benefits. Each Judge sets their own rules and deadlines (within bureau guidelines). There are no juries.  Knowing each judge’s rules is extremely important. A typical case may involve 2-5 hearings, over the course of about 6-8 months. At the final hearing, all evidence is identified/certified, and then uploaded to the State’s computer system. The Judge orders each attorney to write a brief, usually within 30-60 days. After the Judge has reviewed all evidence and briefs, a written decision will be circulated.

Unlike the “immediate award” in personal injury claims, it can take 3 months (or more) after the final hearing to receive a Decision. Additionally, unlike the single trial procedure in PI claims, WC may involve serial petitions.  So long as the claimant is receiving benefits, multiple petitions can be filed (by either side), arguing a number of theories to stop, reduce, or even increase the benefits being paid.  There is no “permanent” award.

Attorney Fees & Expenses

Counsel fees in Personal Injury cases are determined by the contract between the client and lawyer, typically a percentage of the amount recovered by settlement or trial. The cost of litigation are also deducted from the amount recovered. A Distribution Summary is typically provided to the plaintiff, explaining the allocation of all funds, including fee, costs, outstanding medical bills or other liens/subrogation that may exist against the plaintiff’s recovery.

Counsel fees in workers compensation are regulated by the WC Act, at 20% of the benefits obtained or protected – and MUST be approved by a Judge before payable. They may be paid from the weekly wage loss benefits, settlement proceeds, or both.  In the (rare) event a Judge finds the defendant has “unreasonably contested” a matter, the Judge may order the defendant to pay claimant’s attorney fee. Costs of litigation are reimbursed by the insurance company – if the claimant wins. If claimant loses, those costs are borne by either counsel or claimant – subject to their retainer agreement. Common practice is for counsel to incur and risk the costs.

Though not impacting the allowable fee, attorneys meeting strict requirements, and passing a Bar Association test may be Certified as a Workers Compensation Specialist – a designation available in few areas of law.

Subrogation

A person injured in a work-related accident, with a related Personal Injury claim can not “double-dip”.  The workers’ compensation insurance carrier has an absolute right to subrogation, to recover all of the benefits paid to the claimant, to the extent recovered from the negligence claim. With knowledge and experience, a reduced payment can be negotiated, but the timing, strategy and Ethics must be carefully considered. Where the injured person is represented by separate law firms for each case or claim, it becomes more difficult to coordinate each attorneys’ actions to ensure the best interest of the client vs. either attorney getting the best deal for their specific part of the claim – but may harm another element of the claim.

Subrogation also encompasses medical bills paid by a private insurance carrier or Medicare/Medicaid, when the bills should have been paid by worker compensation or First Party benefits under the motor vehicle policy. This right is NOT absolute, and can be waived by lack of due diligence.

Conclusion

This article is but a brief overview of the differences between Personal Injury and Workers Compensation practice.  The Procedures, Burden of Proof, available benefits and even the method of paying counsel are drastically different in each forum.  This short outline does not even begin to address complicating factors, such as how an award of Social Security, Short or Long Term disability or other forms of benefits may influence both the procedures and benefits payable. The “point” of identifying these dramatic differences is to demonstrate that an attorney needs to recognize what they don’t know – and, even with the best of intentions, should not seek to represent a client – if not experienced, and equipped to REALLY HELP them. Moreover, when experienced and equipped to represent only one aspect of a client’s multiple claims, coordinate your efforts with other counsel – to ensure the clients best interest is fully served.

Mark R. Schmidt is a partner of Schmidt, Kirifides & Rassias, he has practiced workers’ compensation exclusively since 1990, and is a certified workers’ compensation specialist, as authorized by the Pennsylvania Supreme Court. 

George G. Rassias, received his undergraduate degree from University of Delaware in 1991 and his law degree from Dickinson School of Law of The Pennsylvania State University in 1994. Upon graduation from law school, Rassias clerked for the Hon. Albert W. Sheppard, Jr., Philadelphia County Court of Common Pleas, 1994-1996. He joined the law firm  in 2008. He currently practices civil litigation in Pennsylvania.