Workers Compensation 101: Work-related CRPS/RSD
Workers' Compensation 101: An Overview of WC for Employees With Work-related
By R. Steven Shisler, Esquire
Workers' compensation (WC) laws generally vary from state to state. As I am admitted
to practice law in Pennsylvania, this article only will address WC issues in accordance
with Pennsylvania law. Explanations of the law and recommended strategies are not
applicable to those whose claims fall outside of the Pennsylvania Workers' Compensation
Act (PWCA). Also, because strategy and professional judgment are fact specific and
may vary among claims, this article is written for your general knowledge only.
Lastly, if you are seriously injured at work, and especially if this results in RSD/CRPS, I
strongly suggest that you retain an attorney as soon as possible after the injury. It is
simply too dangerous to pursue your claim without counsel. Regardless of your
relationship with your supervisor and the company, remember that your employer's
insurance carrier controls the WC benefits and is most concerned about paying as little
as possible. The attorney you retain must represent claimants (employees) in WC
matters and also should have some knowledge of RSD/CRPS.
In my first year of law school, my contracts professor "set up" a fellow student. Proper
application of the law in accordance with the facts of the case resulted in a horrendous
and unjust ruling. When the professor asked how the student felt about the Court's
conclusion, she said she understood that this was a proper application of the law; but the
result was unfair. The professor nearly went berserk.
He shouted, "Fair? Young lady, the law is the law and justice is justice; and if you want
justice, go across the street!" and he pointed toward the divinity school where future
priests were taught.
I usually tell this story to new clients, and I advise them that I cannot obtain justice for
them; my job is to maximize their recovery (benefits) within the boundaries established
by the law. It is nothing more than a high-stakes chess game.
In order to establish a right to compensation under the PWCA, you must be employed
and have been injured at work in a work-related accident. You do not have to prove your
employer negligent, only that you sustained a work-related injury.
Benefits consist of earnings loss benefits for total or partial disability, medical benefits,
specific loss benefits, death benefits, and illegally employed minors' benefits, and may
include an award of interest, costs, and attorneys fees to be assessed against the
employer for unreasonable contest of the claim.
A compensable injury under the PWCA must leave you disabled (an inability or limited
ability to work) leading to a loss of earning power, which is determined by your average
weekly wage at the time of injury. You are entitled to 66.6% of your lost earning power,
with a specific top and bottom compensation rate.
Most WC claimants who suffer work-related RSD/CRPS have difficulty understanding
the limitations of WC benefits. They have heard of large settlements in other types of
cases and believe that their extreme pain and suffering should account for a high
settlement. However, the PWCA does not provide for, nor are you entitled to,
compensation for pain and suffering. It doesn't matter whether you had a great future
and you can no longer do your former job. If you can work at any job, even one not
available at your former workplace, and if you can earn the same weekly wage, you are
no longer entitled to WC earnings loss benefits. This means that if you have RSD/CRPS
in all four limbs but can do any job within your usual employment area (generally within
30 miles from your home) such as testing chewing gum or mattresses in your home, you
are not totally disabled. If these other jobs pay the same as your pre-injury wage, you
can lose your benefits.
Pain and suffering is recoverable in negligence cases, but not in WC matters. Moreover,
the PWCA is the sole remedy you have. This means that even if your employer or a
co-worker caused your injury through negligence, the company, its workers, and even the
company's WC insurance carrier are immune from a negligence lawsuit. However, if
your employer or its insurance carrier violates the PWCA, your attorney should file a
Penalties Petition. The employer may be assessed penalties in addition to any unpaid
compensation (up to 50% of unpaid, overdue, or illegally suspended compensation;
statutory interest and/or attorneys' fees for unreasonable contest).
You are entitled to be paid for reasonable and necessary diagnosis and treatment. The
question is: "What is reasonable and necessary?" If you seek medical treatment far
away, and the same type of physician, e.g. neurologist, pain management physician, is
practicing within a reasonable distance from home, the insurance carrier is not required
to pay for the longer-distance treatment. Moreover, if you have RSD/CRPS and you can
travel a distance for treatment, it will likely harm your case. The argument can be made
that if you can sit for the length of time required to travel, then you can do work that is
sedentary and has limited use of your hands, such as answering telephones using a
The insurance carrier will likely deny payment for any treatment that may be even
slightly unusual, such as a ketamine drip or acupuncture. In some cases, such as surgery
for the implantation of a morphine pump or spinal cord stimulator, the hospital may
require pre-certification approval by the WC insurance carrier. The carriers often deny
pre-certification. Additionally, if your RSD/CRPS has spread, the insurance carrier may
deny the claim as being unrelated to the original work injury. Finally; because of the bad
press on OxyContin®, I have noticed that insurance carriers are often refusing to pay for
the drug. In the meantime, as medication and payment for treatments are denied, the
patient's RSD and pain become aggravated and often spreads and the injured employee
becomes frustrated and lost. The insurance carrier may take advantage .of this denial to
influence your settlement decision.
Finally, you may be entitled to benefits for the specific loss of the use of a limb. This can
mean actual amputation, or simply the inability to use that limb. For example, if you had
four fingers amputated by a snow thrower and those fingers have been reattached but
are unusable, you may be entitled to benefits for specific loss of those fingers or even the
hand. The benefit amount and payment for an appropriate healing are set forth in the
WC issues are not decided by a jury but by a WC judge employed by the Commonwealth
of Pennsylvania Department of Labor and Industry. The claim may never reach a judge.
The employer files a Report of Occupational Injury with the Department of Labor and
Industry, Bureau of Workers' Compensation after being notified of the injury. It is
imperative to report your work-related injury to your employer immediately following the
injury. Failure to do so may result in your claim beingpermanently barred. No
compensation is paid the first seven days, but if disability lasts at least 14 days you are
entitled to WC earnings loss benefits, retroactive to the date disability began. Your
employer then has 21 days after receiving notice of the disability to pay WC earnings
loss benefits. If the employer hasn't paid, file a Claim Petition for compensation benefits
and a Penalties Petition seeking penalties, interest, cost, and attorney's fees, with the
Bureau of Workers Compensation.
Many RSD/CRPS sufferers continue to work despite their pain and the detriment to their
health and their claim because of financial concerns. If you cannot work without pain,
you and your physician should strongly consider whether you arc able to work.
After a Petition is filed, there will be a number of court appearances, some of which will
involve only the attorneys. The burden of proof is on you to prove that you have suffered
a work-related injury and that you are disabled and can't return to work. This is done
with your testimony as well as that of your physician and other witnesses.
Often, you may feel that your attorney is doing nothing and that an unreasonable period
has passed without any benefits being paid. Unfortunately, this is the nature of the
system. Schedules-the judge, attorneys, and physicians-play a large part in the time
After the taking of evidence, the judge will issue a briefing schedule, giving your attorney
several months in which to write his brief, which is akin to a written closing argument.
Then the defense will have the same amount of time to write a responsive brief. After
the briefs are filed, the judge's workload determines when an opinion is issued.
Unfortunately; there is little you can do to expedite this process. Your attorney can
object to any time extensions requested by the defense and request that the judge limit
the time for submission of evidence or briefs. The judge decides whether to do so or not.
As a last resort, if you have been denied benefits, you may have to turn to public
assistance, or welfare, for survival monies and medical assistance while your claim is in
As in all injury cases, the defense takes advantage of the delays inherent in the system to
manipulate you. Your employer may attempt to force you to accept a lower settlement.
Remember, your employer has no incentive to settle until the case reaches a point where
all of the evidence is admitted, and the insurance carrier feels there may be a high risk of
losing the case. The law does not force either side to settle the case.
Settlement amounts in WC cases are generally low, since they are based wholly upon
negotiations regarding how long you will be disabled and whether you will be totally or
partially disabled. Additionally, the PWCA caps the length of time you may collect WC
benefits for partial disability.
Your employer is also entitled to insist on a complete settlement of the claim, including
future medical benefits. If you have RSD/CRPS, you should be very cautious about
anysuch settlement, and agree to it only if you have no choice.
After negotiations are final, your attorney will file a Petition to Seek Approval of a
Compromise and Release Agreement. At the hearing, you will be questioned by your
attorney; the judge, and/or defense counsel to make sure you understand the
ramifications of settlement. In the event that any of your medical bills for work-related
injuries have been or may in the future be paid by Medicare, you must make
arrangements with Medicare to reimburse them for past and future bills from your
As mentioned previously, you are entitled to payment of reasonable and necessary
medical bills for diagnosis and treatment. If you are denied medical treatment or your
bills aren't being paid, respond promptly. If you have medical insurance coverage and
have been denied by the WC insurance carrier, your attorney must direct your healthcare
providers to submit the bill or pre-certification request to your private insurance carrier.
In the case of an HMO, the primary care physician must first make the referral. In
conjunction with the referrals and submissions, your attorney should tell your medical
insurance carrier you have been denied by the WC insurance carrier and remind the
medical insurance carrier that it is required to approve and/or pay for the treatment and
seek subrogation, or recovery of the medical carrier's payments, from the proceeds of
the WC case.
Your attorney should also file an immediate Review Petition, asking the judge to review
the medical issues and enter an Order regarding the denied medical treatment. Your
attorney should also file a Penalties Petition referencing your aggravated RSD/CRPS,
which may have occurred as a result of being denied medical treatment, and the
increased stress and resultant threat to your health from denied medical care.
Your attorney should request a hearing on an emergency basis in the letter submitting the
Petition to the Bureau of Workers' Compensation for filing. Additionally, the attorney
should write to the judge and request an emergency hearing on an expedited basis.
If your medical insurance carrier delays accepting the claim, you can threaten to sue for
breach of contract and insurance bad faith. You can put pressure on both workers
compensation and the medical insurance carriers by filing a complaint with the State
Insurance Commissioner for violation of the Pennsylvania Unfair Insurance practices
Act. However, this only leads to investigation and possible punishment by the State
Insurance Commissioner and does not give you a private cause o action against the
As a last resort, if you have been denied benefits, you may have to turn to public
assistance, or welfare, for survival monies and medical assistance while your claim is in
process. Public assistance will have a lien against any WC proceeds that you may
ultimately obtain. You may also apply for Social Security Disability Benefits and/or
supplemental Security Income; however these benefits are customarily denied and the
appeal process may take a year or more. If you are receiving WC benefits, the amount
of social security benefits will be reduced. Additionally; qualifying for Social Security
Disability does not determine the right to we benefits, or vice versa, and receiving Social
Security will likely be deemed inadmissible in the WC case; it certainly doesn't hurt to
attempt to have it admitted.
Suspension of Benefits
If you are receiving WC benefits, sooner or later your employer will me a petition to
modify; suspend, or terminate your benefits. The process begins with the "independent
medical examination." Your employer can request that you undergo a medical
examination by an employer chosen physician twice a year. In reality, there is no such
thing as an independent medical examination; it is a defense medical examination by a
physician who receives large sums of money from insurance carriers for conducting
these exams, and who is likely biased toward the carrier
Based on the restriction, or lack thereof, as determined by the physician, the carrier will
have you submit to a vocational examination, after which a report will be issued
indicating whether there are any jobs in your geographic area you can perform within the
established limitations. Rest assured, the vocational expert, hired by the insurance carrier,
will always find jobs you can do. The employer does not have to prove that the employee
would be hired for any of these jobs.
Now the process for terminating your benefits begins. This must be countered with
medical testimony contradicting the defense physician, you must testify regarding
your limitation and perhaps there would be testimony from another vocational expert.
If you do not submit to the medical examination or the vocational interview; your
employer's carrier will me a petition to compel you to do so. After the examinations and
reports are completed, your employer will file a petition to suspend, modify; or terminate
Your attorney should leave no stone unturned in the search to determine whether an
outside party, aside from you employer or a co-worker, also may be liable for your
injuries and damages. This could include delivery people, a company contracted to clean
and wax floors, the driver of another vehicle in a work-related car accident, or
manufacturers, distributors, and vendors of defective machines. These related claims are
not governed by WC law. If you are injured as a result of a negligent third-party, or
manufacturer, distributor, and/or vendor of a defective machine, you areentitled to
damages for pain and suffering, payment of all or a percentage of lost wages, depending
on the type of case, and payment of all and/or a percentage of your medical bills.
Additionally; your spouse may be entitled to recovery for loss of consortium, which
includes society, services, and companionship.
The WC carrier, any medical insurance carrier who paid for the accident -related
injuries, and the Department of Public Assistance/Medicare, may have a lien against any
third party recovery and must be repaid. Failure to do so may result in legal action
against you, your attorney, or both. Additionally; any lien holders must deduct from their
lien, at least a pro rata share of attorney's fees and costs incurred in pursuing the liability
claims and may be willing to negotiate additional reductions in the amounts they accept
as payment in full of their liens.
Editor's note: For information on workers' compensation in your state, please go to
R. Steven Shisler, Esq., is an attorney whose practice concentrates in plaintiffs' personal
injury, malpractice, and WC matters involving RSD/CRPS. He is an RSD/CRPS
survivor, whose desire to become an attorney was motivated by his own injuries,
including RSD, resulting from an accident.
R. Steven Shisler
Law offices of R. Steven Shisler
1515 Market Street Suite 810 Philadelphia, PA 19102
Cross-posted from MySpace Blog /twinklv
Update- June 11, 2009 To my readers
It is important to verify your source of information before proceeding to use it. Please
remember to do so.
Thank you Mr. Shisler for contacting me. I am grateful for being allowed to use your
article and any updates per your decision.
Sincerely, Twinkle V.
Reflex Sympathetic Dystrophy Syndrome
Complex Regional Pain Syndrome