A frequent topic of blog entries here is the Uninsured Employers Guaranty Fund (UEGF), which steps in for an employer who (in direct violation of Pennsylvania law) fails to carry PA workers’ compensation insurance. There are many hoops through which an injured worker must jump successfully to obtain benefits from the UEGF.
The PA Workers’ Compensation Act was amended in 2007 to create the UEGF. Under this scheme, when an injured worker knows his or her employer does not have Pennsylvania workers’ comp insurance, he or she must first file a Notice of Claim against the UEGF, then file a Claim Petition against the UEGF. There are time limitations within this process which can derail an otherwise compensable claim, making this area very dangerous for the injured worker who does not have an attorney.
For example, under the Act, an injured worker has 45 days from when he or she “knows” that his or her employer failed to carry workers’ comp insurance. This time limit can be devastating to a case, as was the situation in Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Lyle and Walt & Al’s Auto & Towing Service). Here, the injured worker, a mechanic, suffered a compression fracture of his thoracic spine while doing his job on July 14, 2008. The injured worker filed the Notice of Claim against the UEGF on October 7, 2008, a few days after receiving a letter from the PA Bureau of Workers’ Compensation, suggesting his employer may have not had insurance coverage.
In litigating his Claim Petition against the UEGF, the injured worker testified that he was not sure there was no workers’ comp insurance coverage until he received the letter from the Bureau. The employer testified that he had told the injured worker shortly after the injury that there was no coverage. Ultimately, the Workers’ Compensation Judge (WCJ) found the injured worker not credible, and found that the Notice of Claim was not filed within 45 days of when the injured worker knew of the lack of insurance.
Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed, finding that the Notice was, in fact, filed in a timely fashion. The WCAB stressed that it was not substituting its factual findings for those of the WCJ (which the WCAB is prohibited from doing), but that the WCAB is just applying the facts as found to the law. According to the WCAB, the issue is whether the injured worker “knew” of the lack of insurance, as opposed to whether he “should have known” or “suspected” such status. Under the correct standard, said the WCAB, the Notice of Claim was timely. Upon further appeal, the decision of the WCAB was affirmed by the Commonwealth Court of Pennsylvania.
The Court noted that the evidence of record simply could not support a finding that the injured worker “knew” there was no workers’ comp insurance at an earlier date. Distancing itself from the WCAB, however, the Court said the letter from the Bureau is not a prerequisite to finding such notice; instead, the question of whether an injured worker “knew” insurance status in any case will be determined from the facts in each case.