|Pennsylvania Workers’ Compensation| & Disability Lawyer

“Employee,” “independent contractor,” “consultant.” In the area of employee benefits, labels matter.

I represented a worker this week pursuing unemployment compensation benefits. He had worked for years as an employment recruiter. He was laid off by his employer and he began to collect unemployment compensation. He put his resume out on Monster, and similar sites.

Then he was approached by a temporary agency that wanted to place him with another company to perform recruitment services. He accepted the offer and worked in the new position. He worked there for many months and was laid off again.

He sought to reopen his claim. THE PROBLEM – his contract with the last employer identified him as an independent contractor.

You can’t collect unemployment compensation benefits if the last work you performed was self-employment. Because of this interim self-employment, he was ruled ineligible for unemployment compensation benefits.

After reviewing the matter with him, it appeared that he was not “self-employed.” Rather, it appeared that he was an “employee” when the appropriate factors were considered. We appealed the denial of his claim and are awaiting a decision. I am confident his denial will be overturned.

Employment benefit systems  like workers’ compensation and unemployment compensation require that the worker be separated from “employment” due to injury or reasons that are not the workers fault. Workers should be careful not to allow themselves to be called independent contractors when they are really employees.

Even if your employer does call you and “independent contractor” or a “consultant,” workers should consult a lawyer if they become disabled or unemployed. The label that was applied to the relationship by the parties may not be the label that the legal system applies after all the facts are considered.

In an investigative report published March 31 regarding the use of independent medical examinations in the New York workers’ compensation system, the reporter related several examples of abusive IMEs, including:

Dr. Samuels, an independent medical examiner in the state workers’ compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.

Yet the report Dr. Samuels later submitted to the New York State Workers’ Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

It is striking that Dr. Samuels feels “compelled” to write slanted reports to defer his retirement to Florida, when the worker he is examining is simply trying to keep his family clothed and fed. For a full copy of the article,  click here.

Unlike New York, Pennsylvania does not allow the recording or videotaping of an examination to protect against abusive IME practices. In fact, a Pennsylvania injured worker can only bring a doctor or a nurse into the examination with her. Obviously, very few injured workers can make such arrangements.  Therefore, it is important that injured workers talk to a workers compensation lawyer before an independent medical examination to learn what steps they can take to detect and prove an abusive examination.

In a previous post, I discussed how the COBRA Subsidy will temporarily help close the insurance gap that many injured  or disabled workers face. At the Pennsyslvania Labor & Employment Blog, Michael Moore notes that the IRS has issued important clarification of COBRA Subsidy issues. If you are still wondering whether you qualify for the subsidy, check out Michael’s nice summary, or follow his link to the IRS publication.

At the Lancaster Law Blog, Christina Hauser previously noted that many employers were awaiting the issuance of model COBRA Subsidy notices. These model notices were published on the Department of Labor’s web site on March 19, 2009. If you became elgible for COBRA after September 1, 2008, and did not elect the coverage or had to discontinue it, your employer must send you a notice by April 18, 2009.

In addition to the information in these two posts, you can find out more information about the Subsidy at the Department of Labor’s web site.