“Smart, Tough Attorneys”

Fieschko  & Associates, Inc.

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Workers Compensation

Since Fieschko and Associates was established in August of 1981, we have concentrated our practice to just four areas of the law; personal injury, workers compensation, social security disability and bankruptcy. This changed on January 20, 1994. I was flying home from Los Angeles. My mother was dying of scleroderma at the time and I visited her occasionally on the weekends. Throughout the flight I had been dictating and working on files. Towards the end of the flight, the man sitting in front of me introduced himself to me and asked if I was a lawyer (it was pretty obvious that I was.)

He told me he was an insurance adjuster who had worked on the Ashland oil spill in Pennsylvania and on the Exxon Valdez oil spill in Alaska. He had been paid by the hour on these projects and he had worked long hours, sometimes over one hundred hours per week, but he had not been paid overtime. He asked me if he had the legal right to be paid overtime, and I told him I didn't know, but I would look it up for him when I got back to Pittsburgh.

The long and short of it is that he was entitled to overtime, but his employer refused to pay him what was due. We filed a lawsuit for the $49,000.00 he was due in overtime. We won at trial, we won on appeal to the Third Circuit Court of Appeals, and then we won in the United States Supreme Court in April of 1997. The employer still refused to pay, until I threatened to execute on their corporate office building in Atlanta. My client received $142,000.00, which included the unpaid overtime, a like amount in liquidated damages, attorney's fees, costs, and interest. With this case, we began to practice in a fifth area of the law, class actions for overtime wages under the Fair Labor Practices Act.

THE BASICS

The theory behind workers' compensation is very simple. If you are injured at work, you are paid for your lost wages and your medical bills. You don't have to prove that your employer was negligent; the fact that you were injured at work is all that is needed. On one hand, your employer does not have to compensate you for the pain and suffering you endure as the result of your injury. The underlying philosophy behind workers' comp is to make sure that you receive your basic loss benefits promptly and in a fair amount, but not to punish your employer.

If you are injured at work, you cannot recover your first week of lost wages. However, after that you will receive a check every two weeks equal to two-thirds (2/3) of your gross (or before tax) wage. For example, if you earn $600.00 per week, your workers' compensation will be $400.00 per week. This is tax-free. Additionally, all of your medical bills will be paid directly by your employer's workers' compensation carrier. Every employer in the state of Pennsylvania is legally required to carry workers' compensation insurance unless they are so large that they qualify as being self-employed, so all workers are covered.

MISTAKES TO AVOID

There are several items that you have to keep in mind in a workers' compensation case. First, make sure that you report your injury. If you don't report your injury immediately, questions can be raised as to whether the injury actually occurred while you were working, and that can lead to problems down the line. Second, you will need to cooperate with your employer. Your employer is permitted to designate what doctor you go to for the first ninety (90) days after the injury. You have to go to their doctor for that time period. Also, even after that time period has expired and you are being treated by your own doctor, your employer is permitted to have you examined by a doctor of their choice.

If your employer offers you light duty work or work within your functional capacity, you must accept that work, and those wages will be deducted from your workers' comp check. Finally, it is important for you to understand that while you are on workers' comp, there is a strong likelihood that your employer will hire a private investigator to watch you. If you are working "under the table" or you are performing tasks which you have told people that you are unable to perform, you will probably get to watch yourself on videotape in front of a workers' compensation judge, and this, of course, will have a very negative effect on your future benefits.

WHEN YOU NEED AN ATTORNEY

Many workers' compensation cases do not result in litigation. However, it is always a good idea to consult an attorney early. We have written three (3) brochures about workers' comp, and if you are injured at work, you should at least call us, and we can send you a copy of the brochures so that you have a good understanding regarding your rights.

Normally, there are three (3) circumstances where you will actually need to retain an attorney. First, sometimes your employer will challenge your right to workers' compensation benefits initially. If this is the case, you need to go to an attorney and file a Claim Petition to get your benefits. The second circumstance where you need an attorney is where the workers' compensation insurance company is trying to stop your benefits. This might be based on the allegation that you have recovered from your injury or that you are not cooperating with the insurance company as required by law. Finally, you can settle your Workers' Compensation case. Basically, the insurance company offers you a lump sum settlement, and in return, you waive your rights to any future wage loss benefits and/or medical benefits.

If you need an attorney, Fieschko & Associates always bases their attorney's fees on a percentage of your recovery. Normally, the attorney's fee on a workers' compensation settlement is twenty percent (20%) of the settled amount. Normally, in Termination or Claim Petitions, we charge twenty percent (20%) of your benefits for a maximum of five (5) years. There are always costs associated with workers' compensation cases. We realize that most people cannot afford to pay the costs associated with this litigation, so we normally advance those costs for you. If we are unsuccessful in the litigation, we do not ask you to reimburse us. If we are successful in the litigation, the workers' compensation insurance company is required by law to reimburse our costs.

SPECIAL AREAS OF WORKERS' COMPENSATION LAW

The first area of Workers' Compensation Law that deserves special attention is Work-Related Hearing Loss. Specifically, if you work in a noisy environment, there is a very good chance that you have suffered a partial hearing loss. If your hearing loss is in excess of ten percent (10%), you can recover a lump sum of money from workers' compensation. These lump sums can be substantial; they range from around $13,000.00 to around $130,000.00. There are time limits involved in filing such a claim; specifically, you need to file the claim within three (3) years of the last date that you are exposed to noise at work. If you or anyone else you know works in a noisy area and feels that they may have suffered a hearing loss, you should definitely contact us. We have handled hundreds of these cases in this very specialized area of the law.

Although the general rule in workers' compensation is that the only recoverable benefits are wage losses and medical bills, there are exceptions. One of the major exceptions concerns an injury where you suffer a scar to your face or neck. You can receive a lump sum settlement for that type of disfigurement. Also, if you suffer the "loss of use" of part of your body, you can recover a lump sum settlement, for the loss. If your work injury is the result of an auto accident that was not your fault, you can recover for your pain and suffering. Finally, if your injury is the result of a defective product at work you can recover for your pain and suffering against the manufacturer of that defective product.

CLASS ACTIONS FOR UNPAID OVERTIME
THE LAW

The law governing overtime pay is the Fair Labor Standards Act. The law itself is fairly simple. If you work over forty hours per week, your employer must pay you at a rate one and one half times your normal rate. This is not a custom, it is the law. It applies equally to union and non-union workers. The law does not require employers to pay time and one half to workers who work holidays, or who might work over eight hours per day. Those are customs. Time and one half is the law for over forty hours per week.

There are three major exceptions to the law. If you work as a "professional" in a job requiring advanced education, such as a doctor or a lawyer, you are not entitled to overtime. If you are an "executive" who heads his or her own company and sets company policy, you are not entitled to overtime. Finally, if you have an "administrative" job in which your primary function is to supervise others, you are not entitled to overtime. Except for these three narrow exceptions, and a few exceptions which protect particular industries such as trucking, farming and computer programming, the law requires your employer to pay you overtime.

Our law firm has discovered that many Pennsylvania employers ignore this law. We have represented nurses, factory workers, warehouse workers and insurance investigators in these cases. Other cases have included assistant managers at fast food restaurants, paralegals, police officers, fire fighters, and television producers. This law is very far-reaching. If you are being paid by the hour and you are not receiving overtime wages once you work more than forty (40) hours per week, your employer is probably in violation of the law. You and all of your fellow employees are entitled to the overtime wages that you have not been paid, plus an equal amount of liquidated damages, attorney's fees and costs. If you fall into this category, you should contact our office, and we will investigate for you. Don't be afraid to contact us even if your claim is very small. The law recognizes that individual's claims are often for a small amount of money, so most of these cases are now filed as class actions.

Also, if you are paid a "salary", you are still entitled to overtime if you worked more than forty (40) hours per week unless you fall into one of the three exempt categories ("professional", "executive", or "administrative".) For example, if you are a secretary earning $20,000.00 per year, but your boss makes you work more than forty (40) hours per week, your wage rate is based upon forty (40) hours per week over a one year period at the rate of $20,000.00 per year. For any hours over the forty (40) hours that you worked each week, you are owed money, and we can collect it for you. To work out your overtime rate in this example, you multiply forty (40) hours per week times fifty-two(52)weeks for 2080 regular work hours per year. If you are earning $20,000.00 per year, then your regular rate of pay is $9.62 per hour, and therefore your overtime rate should be $14.42 per hour (even if you are ''on salary".)

One word of caution. There is normally a two year statute of limitations on these claims, so if you have a claim you need to move quickly. If the court finds that your employer has intentionally violated the law, the statute of limitations is expanded to three years. Also, if your employer failed to post the required Fair Labor Standards Act poster informing you of your right to overtime, the statute of limitations does not run until you learned of your right to overtime. However, these two exceptions can make a claim much more difficult, so you should definitely file the claim within two years whenever possible.

THE DO'S AND DONT'S OF WORKERS COMPENSATION

History