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An Injury to One is an Injury to All

November 21, 2002

Exclusivity Clause for Pennsylvania Worker's Compensation

Expressed opinion by Michael A. Kerstetter, PFIW Dauphin County

The Pennsylvania Worker's Compensation Act offers employers protection from lawsuits under section 303.  This is the basic concept of worker's compensation; workers give up the right to sue an employer in exchange for worker's compensation.  (I don't think this agreement would have been achieved if workers would have known that the workers compensation act was going to be legislated into more protection for employers and their insurers then it offers for injured workers).  The employers worker's compensation insurer enjoys the same protection from lawsuits under section 305.  Why does the worker's compensation insurer need this protection?  Because behind this protection the insurer can hire a third party to gain evidence that would discredit an injured worker's claim and remain immune from a lawsuit.  Such actions against injured workers are often unethical and illegal.  Some of the evidence gathered by the third party to be submitted might come from such actions as:

1. illegal surveillance & stalking of injured workers
2. phone harassment
3. denial of payment of medical bills
4. denial of specialized medical treatment
5. entering fraudulent information into medical records via ex-parte communication
6. altering official documents to change dates of events
7. defamation of character aimed at injured workers

The list could go on but I will stop there for now.  The insurer gets away with using this type of evidence because it gets overlooked by a referee for one reason or another and they enjoy protection from civil action.  Maybe without this protection an insurer would be more likely to obey the worker's compensation act and pay out benefits for workplace injury claims and stop trying to discredit legitimate claims with fraudulent evidence.  You would think this type of evidence would be identified by the worker's compensation referee but it is often overlooked or ignored.  How does this happen?  When Pennsylvania adds or replaces worker's compensation referees they select them from a pool of attorneys that are practicing worker's compensation law.  That means you have a pool of attorneys that is tainted by personal prejudices from the start.  The attorneys who were practicing worker's compensation law on behalf of employers will have a soft place for employers and the same is true for attorneys that practiced worker's compensation law on behalf of injured workers.  Section 1404 of the worker's compensation act says that the referees are to be impartial but I can tell you for a fact, that is not always being done.  Some areas of Pennsylvania have referees that are so prejudice that attorneys for injured workers don't want to go in front of them because they know they can not win a case for their client.  That is a fact and if you look at some of the decisions handed out by those referees you can see which one's fall into that category. 

Section 23 of the Pennsylvania Worker's Compensation Act offers the referees and all Commonwealth employees involved in a worker's compensation claim the same protection as the employers and their insurers.  The Pennsylvania Worker's Compensation Bureau know about these referees but does nothing to stop the violation of the Pennsylvania Worker's Compensation Act.  The Worker's Compensation Bureau claim that it can not investigate a complaint about a referee while a claim is in litigation.  If that is true then the Pennsylvania Worker's Compensation Bureau can never get involved in a claim complaint because a claim is in litigation from the time an injured worker files for worker's compensation benefits.  This puts the Pennsylvania Worker's Compensation Bureau in violation of section 1401, of the very act they are mandated to enforce.  The Pennsylvania Worker's Compensation Bureau's solution to a complaint about a referee is to file an appeal if you are unhappy with the referee's decision.  All that policy does is add more litigation and more expense to the worker's compensation claim and allows the Worker's Compensation Bureau to avoid an investigation.

According to information obtained through the Pennsylvania Department of Labor and Industry Helpline e-mail, the Pennsylvania Worker's Compensation Act does not offer any protection from civil liability for third party participants to a claim.  Examples of such third parties are as follows:

1. private investigators
2. vocational rehabilitation experts
3. IME doctors
4. expert witnesses

Civil action can be brought against third party worker's compensation claim participants for causing a financial loss do to their fraudulent and unethical actions.  I have yet to hear of any attorney representing an injured worker pursuing any kind of civil action against any third party.  So they do enjoy a weird type of protection, not in the Pennsylvania Worker's Compensation Act, from civil action due to lack of action by most injured worker attorneys.

Since the Pennsylvania Worker's Compensation Bureau and the worker's compensation attorneys representing injured workers don't stand up for all of an injured workers rights the unethical actions of third parties to a worker's compensation claim will continue to happen.  This leads to a failure of due process!

Where is the protection for the injured worker?

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Last modified: 04/29/08