Senate Bill 1195
Senate Bill 1195 would amend the Pennsylvania Workers' Compensation Act to severely limit injured workers' access to the Uninsured Employers Guaranty Fund. Bill information from Pennsylvania General Assembly website
An analysis of the bill is provided below courtesy of PAJ Member Eric Betzner, Esq. of Yablonski Costello & Leckie, P.C., Washington County. Find your legislator.
1. If an employer as employees working in the Commonwealth of Pennsylvania who are injured, and that employer does not have coverage in Pennsylvania, the employee can be forced to use any other state's workers compensation plan that does cover that employer/employee. This is obviously bad, as it will allow employers who operate in multiple states (i.e., truck drivers) to force employees to accept less generous workers comp benefits from other states.
2. No interest is payable on benefits from the UEGF. As anyone who has litigated these cases knows, they rarely pay voluntarily and force extended litigation and a decision from a WCJ, and the inability to receive interest is therefore significant.
3. The notice provisions applicable to an injured employee would be much tougher. Failure to notify the fund within 45 days of being told by someone that the employer does not have insurance will preclude the claim. The current standard, per a WCAB decision that is currently on appeal, requires actual knowledge, and ties that into receiving notification from the Bureau of a lack of insurance. This lower standard could be met by an employer simply coming in and saying they told the employee they did not have insurance, and if found credible, would preclude the claim. Further, the 120 day filing requirement now becomes a hard rule, in that if a claim is not filed within 120 days, the claim is forever precluded.
4. The new legislation provides that the UEGF can establish panel providers for each County. If an employee does not treat with a panel provider during the first 90 days, no payment is due. This leaves a huge gap in between the time of the injury and the time that the employee would learn of this requirement, we are substantial medical bills might be incurred and are not payable.
5. The standards for proving a wage loss requires one or more types of documentation, which is not always available to someone who is working for an uninsured employer. If the employer pays cash, or if the employee receives a check but immediately catches that rather than processing it through a bank account, they may not be able to prove the wage loss and receive benefits.
6. The legislation gives authority to the department to unilaterally cut benefits to all recipients if they project an insolvency is likely to occur.
7. Significantly, this bill is being submitted under the guise of providing additional funding ($4 million) to the UEGF. However, this is a one time funding, and therefore fails to address the problem of ongoing funding which is really what should be the focus.