October 12, 2007

Pennsylvania: Blood on the Forms?

The good people governing the Commonwealth of Pennsylvania have a major concern. They want to make sure that each and every worker injured in the course of employment knows his/her rights and benefits under the comp statute. Most states accomplish this by requiring a posting by the employer, detailing the name and address of the insurance carrier. Employers usually include workers comp benefits in the employee handbook. It's an employer "best practice" to fully inform employees of the need to work safely, report hazards and report injuries immediately. Most states have websites where injured workers can view the statutory benefits and the mandated procedures under comp. For the most part, injured workers seem to be able to find the comp system without too much trouble.

Well, a system that is mostly working is just not good enough for Pennsylvania. They want proof, they want documentation, and they want signatures. So they have come up with a process that requires employers to provide a form to all new employees and to injured workers at the time of the injury. The one pager, entitled "Workers' Compensation Information," (sort of) explains the basics of comp.

The form includes the following statement: "You (injured employee) should report immediately any injury or work-related illness to your employer."
Department of Duh: While this language is fine when the form is provided during orientation, the same form is also given to the employee after the injury has been reported. Do you really need to tell the employee who has reported an injury to report an injury?

The one pager goes on to say that "if your claim is denied by your employer, you have the right to request a hearing before a workers' comp judge." Gee, aren't we getting a little ahead of ourselves here? (And by the way, unless the employer is self-insured, the carrier - not the employer - denies the claim.)

At the bottom, the employee signs the following statement:

I, _____________, employee of ____________ (employer), certify that I received, read, and understood the above information on _____________ (date of work-related injury or disease).

Form Two
If the employer participates in a Preferred Provider Network, the employee must be given another one pager, explaining in detail the rules and procedures for the PPN. This form contains 11 bullet points in relatively small print. At the bottom of this form, the employee signs the following statement:

My signature indicates that I have been informed and understand my rights and duties pertaining to medical treatmant for work-related injuries.

With two required forms, that's a whole lot of "understanding" under less than ideal circumstances. After all, these forms are signed at the time an employee reports an injury to the supervisor. Often enough, the employee will be suffering some pain and discomfort as a result of the injury. I'm sure the attorneys who pushed for adoption of these requirements revel in the enormous loophole contained in the concept of "understanding" the requirements. Yes, my client signed the form (under duress, while waiting for the ambulance), but he didn't really understand what he was signing. So the employer failed in his duty...Just what we need: another opportunity for attorneys to play "Gotcha!"

When I called the PA Comp Bureau for clarification, they confirmed that two separate forms and signatures are required. I said that I hoped the injury did not involve a cut on the injured employee's dominant hand: that might result in blood on the forms. The bureau contact laughed, albeit nervously.

Free Advice for PA
Here's a bit of advice for the bureaucrats in the Keystone State: Chill, baby. You have a comp system that is working reasonably well. Requiring two signatures at the time of injury will not increase employee awareness of rights under the comp statute. People will sign (if their injuries permit) because they have to, but they won't understand much of what they're signing. Following an injury, people are mostly concerned about getting medical treatment and getting back to their jobs.

Requiring employers to retain copies of the signed documents is a random and extremely ineffective means of ensuring compliance. As my mother-in-law used to say, "Don't borrow trouble." With these burdensome requirements, Pennsylvania has borrowed trouble and accomplished very little in the process. There is a reason why no other state requires this type of documentation. It's pretty darn useless - and it interrupts the natural flow of caring for an injured worker. Pennsylvania should just do away with the bloody forms.

| 7 Comments

7 Comments

Good story Jon. All I envision is an HR director chasing an ambulance with workers yelling, "Run, Forrest, Run!"

PS Go Sox. Go Pats. Go Eagles (BC - not Philly).

Another excellent example of government gone awry...and why lawyers with little, if any practical life experience should be prohibited from making our lives excessively complex simply to create another guaranteed income stream. Good post!

Why are you attacking "bureaucrats" when the regulation you refer to (as to information and notice) has its genesis in the statute?

You don't mention section 306(f.1) of the WC Act, 77 P.S. sec. 531(1)(i), under the auspices of which the regulation was promulgated.

Your further theory that the regulation is the result of conniving trial lawyer machinations is baseless.

Your posting is also problematical in that it ignores context and history. The statute was amended in 1993 and a early regulation was in place by 1995. The requirements of the law were at that time identified as seemingly burdensome and complicated but in practice that has not been the case.

The regulation requirements as to posting of WC information and employee notice constitute a reasonable attempt by the bureaucrats you criticize to comply with the mandates of the legislature. They were subject to public review and comment and were considered by an Indepedent Regulatory Review Commission and the Pennsylvania legislature as part of the regulatory review process.

It is remarkable that you undertake this broad criticism without acknowledging the law or interviewing some boots on the grounds.

David: thanks for the background. I agree that bureaucrats don't make law, they just carry it out. But I cannot accept your argument that this statutory requirement does no harm. I work with employers in Pennsylvania and I have seen how disruptive and counter-productive the requirements are. Furthermore, if this is such an effective way of informing employees of their rights, why are no other states doing it? We try to keep our eyes on the bottom line: getting injured workers to prompt treatment and getting them back to work. In light of that, the PA statute needs a tune up!

Jon, thanks for blogging this issue!

As the Director of the Workers’ Compensation program of a large Pennsylvania employer, I already find the requirements of the “Rights and Duties Form” to be a burden, and often a loop for Claimant Attorneys to exploit. This new information form is redundant and like the “Rights and Duties Form” will only act as another loop hole to be exploited. Additionally, the obligation to get all of the forms signed gets in the way of what is most important; caring for the injured worker and facilitating a transition back to work. I have a difficult enough time getting highly educated medical professionals to complete a good accident report so accidents can be a learning tool, now I need to have them get one more form signed so there are no loop holes.

At the end of the day I only see the Claimant Bar in Pennsylvania benefiting from this new requirement. I believe strongly that the playing field for Workers’ Compensation should be tilted slightly toward the injured worker to protect them, but when an employer is asked to complete more cover your rear paper work I feel the field moving too far and becoming too difficult for even the most well intentioned employer to comply with the Act.

Is this a problem? In my practice, my clients are accustomed to preparing these forms and have done so since the 1993 amendments ( 14 years ago!) Initially,We prepared our own "form" listing the rights and duties of employees and employers, before there was any official form, as the law was enacted and we had to comply.
I do not see this as a problem. The regulations require the "rights and duties" information be provided at the time of hire AND "immediately thereafter the injury, OR are soon thereafter as POSSIBLE under the circumstance of the injury." see 127.755(c).
It is not necessary to run after the ambulance !

You reminded me of my early seminar "joke" where I covered the forms with plastic wrap to make them "waterproof" for rainy day injuries. Of course that is not necessary, just an exaggeration to make a point. You can mail the forms to your employee, that seems to be a simple way to comply and confirm your employee has a current list of the Employer designated health care providers THIS is what I want to confirm, so that my clients have some "control" over the first 90 days of treatment.
This seems to be a portion of the Pa act which is functioning well.

When did this go into effect?

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This page contains a single entry by Jon Coppelman published on October 12, 2007 1:02 PM.

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