Monday, February 24, 2014

SO YOU THINK YOU’VE BEEN WRONGFULLY TERMINATED?


On an almost daily basis, one prospective client or another informs me that he or she has been wrongfully terminated from a position of employment, and asks me if I can help.  Many of these workers tell me they had been faithfully employed by the same employer for years, even decades.  Some report that they have been fired for an insufficient reason or for patently incorrect reasons, or for no stated reason at all.

It is often difficult to hear these stories, and impossible not to empathize, particularly for workers in their 50’s and 60’s who (let’s face it) are going to have a difficult time restarting their careers.  Unfortunately though, and far more often than not, it is my sad duty to advise them that, apart from helping them with unemployment compensation and perhaps negotiating the details of a settlement package, there is little else that I can do for them, however unfair it may seem.

The question is why.  The answer is the Pennsylvania doctrine of “at will” employment.  Under the doctrine of “at will” employment, an employer can terminate an employee’s employment for any reason or for no reason at all, even an unfair or inaccurate reason, so long as it is not an illegal reason.  Illegal reasons for termination include discrimination on the basis of a protected status (such as race, religion, gender, age (over 40), disability, etc.) and discrimination on the basis of protected activity (such as requesting or taking leave under the Family and Medical Leave Act, filing a Workers’ Compensation claim, whistleblowing (in narrowly defined circumstances), etc.).  However, in the absence of discrimination on the basis of a protected status or protected activity, and in the absence of an employment contract prohibiting termination except for specified “cause”, an employer can fire at will, regardless of the employee’s years of service and regardless of the adequacy of fairness of the reasons for termination.

There is also an exception to the “at will” employment doctrine known as the “public policy” exception.  Generally, this exception makes it unlawful for an employer to fire an employee for refusing to commit a crime or for complying with a legally imposed duty (such as serving jury duty) or when specifically prohibited from doing so by a controlling statute.  Thus, under Pennsylvania law an employee may have a claim for wrongful discharge if he or she is terminated for filing a workers’ compensation claim.  But beyond these rather clear-cut cases the public policy exception has only limited application. 

It is arguable that the “at will” employment doctrine is a legal anachronism, not in keeping with the consumer protection and employee protection laws enacted and implemented across America over the last half century.  On an individual level the obvious unfairness that flows from the “at will” employment doctrine can work significant injury to the lives and livelihoods of employees and their families.  It is also arguable, and to some degree unavoidably true that on a larger level, the “at will” employment doctrine may actually promote employment.  If an employer could not fire “at will”, that employer would be far less likely to hire an employee in the first place for fear that the employer could never thereafter get rid of that employee.

As a practical matter, the “at will” employment doctrine is not entirely without limits.  Although a Pennsylvania employer can fire an employee for any reason or no reason at all, so long as it is not an illegal reason, if an employer actually does fire an employee for no reason at all or for a patently ridiculous reason, that termination almost inevitably gives rise to an inference that there must have been an illegal reason at play.  That is, if the stated reason for firing makes no sense, the logical conclusion is that the stated reason was nothing but a pretext for an unstated proper reason.  The silver lining for such fired workers is that even if they have no wrongful termination claim, they likely do have a claim for unemployment.

I just received a notice of an impairment rating evaluation, will my benefits stop?


Clients often ask whether a workers’ compensation insurance company which is paying workers’ compensation benefits could potentially simply stop paying those benefits at any given time.  Fortunately for an injured worker, the simple answer is no.  In Pennsylvania, there are only a few ways that a workers’ compensation carrier can stop paying workers’ compensation benefits to an injured employee once benefits have been paid pursuant to a Notice of Compensation Payable or an Agreement for Compensation.   An impairment rating evaluation, or IRE, is frequently a last resort for insurance carriers.  More commonly, insurance companies try one of the other strategies discussed below.

First, if the injured worker returns to work and the adjuster who is in charge of the file has personal knowledge that the Claimant is back to work without any loss of wages, then the adjuster can issue what is known as a Section 413 Notice of Suspension.  This document is essentially saying that the adjuster has personal knowledge that the Claimant is back to work earning at least as much as his or her preinjury wages, and that benefits can be stopped accordingly.  However, the employee has the ability to file an appeal to this document, called an Employee Challenge, within 20 days of receipt of the Notice of Suspension.  In other words, if the employee disagrees that he is back to work without any loss of wages, or if he returns to work and is unable to continue to work at the job offered for more than a few days, the employee can file an appeal to this notice and usually have his benefits restarted relatively quickly.

The second way that an injured worker’s benefits can be stopped is for the insurance company to file some type of petition before a Judge and obtain an Order from that Judge allowing the carrier to either stop or modify the benefits which are being paid.  To get such an Order the injured worker will certainly have plenty of notice and usually litigation involving any petition would take at least eight months to a year.  In other words, if the carrier wishes to stop a Claimant’s benefits by obtaining an Order from the Judge, no matter what the petition, it will likely take at least eight months and possibly a full year or longer. 

Addressing this second method of stopping benefits, the following is a brief summary of the different possibilities available to an insurance company which believes it should no longer have to pay workers’ compensation benefits.

First, if the insurance company obtains the opinion of a doctor who believes the Claimant is fully recovered and can return to the pre-injury job without any restrictions, it can file a Termination Petition.  In this type of petition the carrier’s burden is very high.  It must prove that the injured worker can return to his pre-injury job with any restrictions, essentially showing that the Claimant has fully recovered.

The second type of petition would involve a job offer from the Claimant’s employer.  If the employer offers the injured worker either his pre-injury job, or some other alternative work, and the Claimant refuses that job, the carrier can file a petition with a Judge to prove that there is work available and that the Claimant has refused to return to work.  If the carrier were to be successful in this petition, a Judge could order the Claimant’s benefits to be suspended.  This means that the carrier would still remain responsible for any medical treatment related to the work injury, but it would no longer be responsible for paying wage loss benefits.

The third type of petition that a carrier may file would be related to what is called a Labor Market Survey.  This sounds complicated, but it essentially involves the carrier paying a vocational counselor to assess the injured worker’s abilities and to identify work in the employee’s geographic region which the Claimant could be doing.  In other words, the carrier does not actually have to provide the Claimant a job, but must only show that there is work available that is within the Claimant’s physical capabilities and which is vocationally appropriate.  If the carrier were to prove to a judge that the Claimant could perform one or all of the jobs identified by the vocational expert, the Judge could modify the Claimant’s benefits by the amount of money the injured worker could be making.  This type of petition often results Claimant’s wage loss checks being reduced to very small amounts.  However, these types of petitions are very difficult for the employer to win, and they are very expensive as well.  The Claimant’s attorney could certainly find many things wrong with the jobs offered, especially if the Claimant still has significant physical restrictions as to what type of work he or she could do.

So if none of the above methods of stopping a Claimant’s benefits appear to be a viable option for an insurance carrier, what other options are there?  This brings us to the title of the article.  In 1997, the PA state legislature enacted Act 57, which allowed insurance carriers to request an impairment rating evaluation.  This article is certainly not meant to be a comprehensive review of that legal process, but rather a summary for what it really means to someone who is injured at work.

When an insurance company seeks an impairment rating evaluation it requests that the Workers’ Compensation Bureau appoint a doctor to perform an Impairment Rating Evaluation, or IRE, as it is known. 

In simple terms, an IRE is an examination done by a doctor who must follow the latest edition of the American Medical Association’s Guidelines for Permanent Impairment, to determine what percentage of the injured worker’s body is impaired.  If that percentage is over 50% then the Claimant’s benefits shall continue to be paid as total disability benefits.  If the percentage is less than 50%, the insurance company will have the right to change the Claimant’s benefits from “total” disability status to a “partial” disability status.  What this means to the injured worker is that the benefits will now have a 500 week limit.  In other words, once an IRE doctor determines that the Claimant is less than 50% impaired, the clock begins ticking on the 500 week timeline.  What is important to remember is that an injured worker receiving total disability benefits can potentially receive those benefits for the rest of his or her life, so long as he or she remains disabled.  However, partial disability benefits, which are more typically collected when the Claimant returns to part-time work, or at a wage that is less than when he or she was making when originally injured, can only be collected for 500 weeks, or approximately 9.6 years.  This type of petition has no effect on the Claimant’s medical benefits, however, it impacts the amount of time that the Claimant can continue to receive wage loss benefits. 

Claimant’s attorneys can raise defenses to a change to their client’s benefits under an IRE.  Probably the most effective defense is that the insurance carrier must meet the threshold criteria that the injured worker has achieved maximum medical improvement.  This essentially means that the carrier must show that the impairment is permanent and stabilized and unlikely to change substantially in the next year with or without medical treatment.  In simple terms, if the Claimant is a surgical candidate inside of the next 12 months, the insurance carrier would be hard-pressed to show that the Claimant is at maximum medical improvement.  Further, there are specific time periods which dictate whether the insurance company must file a specific petition related to an IRE.  The technical defenses to this type of petition should be explained by an attorney who is a Certified Specialist in workers’ compensation.  

Workers’ compensation practice in Pennsylvania is full of traps for the unwary.  An injured worker concerned about his or her wage loss benefits should always consult with an experienced workers’ compensation attorney.  Especially when Impairment Rating Exams come into play, a workers’ comp claimant would be wise to consult with legal counsel.