WHO IS COVERED BY THE PENNSYLVANIA HEART AND LUNG ACT?
The Heart and Lung Act provides for complete wage replacement (at your full salary, but without overtime), plus medical expenses, for broad classes of Pennsylvania employees, specifically including the following:
When am I covered by the Heart and Lung Act?
- State Police
- Liquor Control Board Enforcement Officers
- Liquor Control Board Investigators
- Parole Agents
- Correction Employees with Principal Duties of Care, Custody and Control of Inmates
- Psychiatric Security Aides Employed by the Department of Public Welfare
- Psychiatric Security Aides Employed by the Department of Corrections
- Drug Enforcement Agents
- All Policemen (County, City, Borough, Town or Township)
- All Firemen (County, City, Borough, Town or Township)
- All Park Guards (County, City, Borough, Town or Township)
- Deputy Sheriffs
- Members of the Delaware River Port Authority Police
- Special Agents of the Office of Attorney General
A Pennsylvania employee in a job category covered under the Heart and Lung Act who suffers an injury while performing an official duty in that employment may be eligible for Heart & Lung Act benefits.
Assuming you are in a job category covered by the Act, the initial question of eligibility will focus on four questions. First, whether your injury occurred while you were performing an official duty. Second, whether the resulting disability is temporary or permanent. Only temporary disabilities will be covered, so don't let your employer harm your rights by having you to identify your injury or your resulting restrictions as "permanent". Third, does the injury temporarily prevent you from performing any essential functions of your job. Fourth and finally: will your employer take steps to temporarily restructure your employment to accommodate your limitations. Note that some collective bargaining agreements (union contracts) or other circumstances may limit the employer's right to compel you to work in light duty.
How do I get benefits?
Most employers with workers in covered job categories will require that when you have an "official duty" injury, you must make an injury report, usually on a prepared form. Often this is the same form used under the Workers' Compensation Act for reporting job-related injuries. If you feel you meet the Heart and Lung Act criteria, you may also be asked to include a statement detailing your position as to how the injury related to the performance of your official duties, why you believe the injury is temporary, and how it would keep you from performing an essential function (or several essential functions) of your job. Your employer may investigate the matter and/or seek statements from co-workers who have knowledge of any of these matters.
Your employer will review these statements administratively and should be expected to issue a written report after a reasonable investigation, with copies to you and to appropriate officials responsible for your employment status. This report should be kept confidential other than those needing to see it. In many cases, the report may be a simple letter.
If the responsible administrator determines that you are eligible for Heart and Lung Act benefits, those benefits should be awarded beginning on the first work day following the start of the disability.
If the employer takes the position at this stage that you are not entitled to benefits, the employer's position should be explained in their report. The same report (or letter) should also give you notice of your appeal rights, and tell you how and to whom you may make this appeal.
Your appeal will generally need to be made in writing, and should be delivered within the time frame set forth in your employer's appeal instructions. If you delay such an appeal, you may prejudice your rights.
When you appeal, your employer or the party to whom the appeal was directed should take steps to arrange a due process proceeding. This may take any of several forms, but should generally be a meeting or hearing conforming to certain legal procedural guidelines. Some employers will make these guidelines clear to you prior to the proceeding, others may not. Often, you may have very little guidance other than the time and place of the proceeding. While the hearings determine very serious and valuable rights, some attorneys familiar with Heart and Lung Act procedings call these "due process procedings" by the derisive nickname "kangaroo courts" -- because of the substantial deviation in the proceedings between various employers, because of the strong distinction between these employer-arranged proceedings and the more formal proceedings experienced litigators normally encounter in all other, more organized and/or more regulated forums.
Shouldn't I Just Use the Union Lawyer?
The short and simple answer is often: "No."
We've heard of too many instances where the "union lawyer" is simply the most junior attorney at the law-firm who either had an "in" with the union representatives at some higher level (meaning the firm and the attorney may or may not have a strong litigation background deeply invested in advancing the rights of the individual injured worker), or who offered the union representatives a reduced fee deal for bulk representation of union members at the cheapest rate. The cheapest rate will mean, yep, the most junior attorney available. Also, if relying on a lawyer supplied or referred by your union, beware that the attorney's loyalties may be divided somewhat based on their immediate responsibilities to not just you as an indidual client, but to a pool of clients who are also union employees. I have heard of union attorneys at Heart and Lung hearings being very seriously compromised: they decline to offer a solid argument or line of support to advance a particular client's claim only because they have a volume of cases with the same employer. I have specifically had clients tell me their union-designated attorney for their Heart and Lung Act hearing refused to make an argument critical to their case because they feared how it would impact the tribunal's decisions in their other cases immediately following. Meanwhile, the employer and the union lawyers often schedule a substantial number of Heart and Lung Act hearings for the same date, and take them one after another. The strong temptation, especially for a junior attorney handling files in bulk, is to treat all of the cases in the same cookie-cutter manner.
Meanwhile, the union heart and lung lawyers are likely to be the same lawyers who handle other legal matters for the union. They may be well versed in what we call "labor law", which governs, among other things, interactions between unions and employers. It is equally likely they will not have practice concentrations in workers' compensation litigation, a highly specialized field. Many union lawyers are merely "dabblers" in the workers' compensation system, and don't have a full or deep understanding of the interplay between Heart and Lung Act proceedings and workers compensation litigation. This is important because Heart and Lung Act benefits can and often are stopped on the basis that an injury is more than "temporary." And because Heart and Lung benefits apply only to temporary disability, such claims cannot give rise to lump sum recovery for the kind of long-term exposure recognized in the workers' compensation forum, where "permanent" or long-term injuries are not only compensable, but very valuable.
Certainly, any attorney admitted to the bar of Pennsylvania will be bound by their ethical responsibility to provide competent representation, but a union-referred attorney may not be the best or only option for individualized attention to the particulars of YOUR claim. We recommend you talk with us before committing to representation with a union lawyer.
When pursuing your rights under the Heart and Lung Act, it is wise to go outside the union and obtain representation from a lawyer handling both Heart and Lung Act rights and Workers' Compensation, and certified as a specialist in workers' compensation law. Call our office.
General Expectations for a Heart and Lung Act Hearing:
In most cases, the hearing or meeting you will be afforded will be recorded, often by a court stenographer. Your employer will almost certainly have a lawyer representing their interest. Be sure you understand who has the burden of proof in your given circumstance.
You also have the right to be represented by legal counsel. Do NOT simply accept "representation" by a union representative if you are in a collective bargaining unit - this can end very badly. Enforce your right to have an attorney present, in your corner, protecting and advancing your very important rights.
The issues to be decided will generally have been outlined in a letter or other document you will have received stating the bases for denial of your Heart and Lung Act claim. However, you will often have very little if any written advice as to the procedures to be followed or how to present your case, unless you have retained your own lawyer.
At these hearings, witness testimony is taken under oath. In general, these proceedings are governed by the rules of evidence -- applied very loosely, consistent with general principles of Pennsylvania administrative law. You and your lawyer should be afforded an opportunity to present documents and other evidence, and to question and cross-examine witnesses. Your employer's representatives will be able to cross examine you, and any witnesses you may present, and may challenge other elements of your evidence on legal or substantive grounds. Because you will be subject to cross examination, under oath and on the record, your testimony may prejudice other rights or claims (such as your potentially very valuable workers' compensation claim) if you do not have prior guidance and preparation by an experienced attorney.
When the hearing is completed, the party before whom the administrative proceeding is held will render a decision in writing. Some tribunals may require or allow you to present a "brief" or proposed adjudication following the meeting or hearing, often with particular requirements as to format and content. This is essentially a legal brief. This is best done by a competent attorney.
You will have a right of appeal from this proceeding, but often such appeals are problematic in that the appeal requirements after this level of proceedings can be extremely onerous. Appeals at this level generally require the work of an attorney simply to assure that the procedural requirements that now come into play will be met. This may involve a substantial investment of attorney time, often of a nature that will require prepayment of an attorney retainer, and often with the outcome of such further appeal deferred for several months. For this reason it is important that the due process proceeding discussed above be treated seriously and handled competently, with the advice, guidance and advocacy of an experienced lawyer. However, in the event of an adverse decision at this level, a competent attorney who is knowledgeable about the interplay of the Heart and Lung Act with other systems of adjudication, most particularly the Pennsylvania Workers' Compensation Act, will be able to outline options for you that will allow you to continue to protect and advance your rights to get the fullest benefits available to you under the law, in both the short term and the long term.
Termination of Heart and Lung Act Benefits:
Generally, your benefits will continue unless it is determined by an administrative proceeding such as what is discussed above that you are no longer eligible or you agree that you are no longer eligible in some way (such as by returning to work, accepting a retirement, or confirming that your injuries or limitations have become permanent).
Heart & Lung Act benefits may be stopped when it is shown that a disability is no longer temporary. The standard under which benefits may be stopped as no longer temporary is rather loose, such that even evidence short of showing the problem to be permanent may be enough to stop your benefits. Where the injury can be said to be of indefinite duration, this may be enough for a determination that harms your rights. Similarly, if you are found to be "no longer disabled" this too will cut off your benefits.
You have a constitutional property right in your Heart and Lung Act benefits. It is for this reason that your employer must afford you a due process hearing (sometimes called a "Loudermill" hearing, after a U.S. Supreme Court ruling) before your employer can properly cut off your Heart and Lung Act benefits. The due process considerations will include: (1) Your employer should provide a justification to you, explaining its belief that you are no longer eligible for Heart & Lung Act benefits; and (2) You shall, if you desire, respond explaining why you believe you are still eligible for those benefits. Have a tough, independent attorney for your Loudermill hearing or you will strongly regret it later.
Where you are getting Heart and Lung Act benefits and you disagree with your employer's claim that you are no longer eligible, your employer will force the issue by referring your case for an administrative law proceeding, specifically to determine your right to ongoing benefits. The burden of proof will be on the employer. The hearing and adjudication should follow the same general procedure described above.
Can I lose my Benefits WITHOUT a Due Process Hearing?
Basic Constitutional Considerations:
Sometimes you can lose your right to Heart and Lung Act benefits without any right to a hearing. Things like being convicted of certain types of crimes, etc., could disqualify you from your employment and give the employer a basis to end Heart and Lung Act benefits unrelated to your disability status. There might also be grounds for a stoppage of your benefits if you have a separate injury that totally disables you, independent from the temporary disability from your work injury.
Also, accepting or being deemed eligible for a disability pension or social security benefits will operate to end your rights. DON'T DO IT WITHOUT TALKING TO US FIRST! Here again, reliance on a union attorney can steer you far wrong. They may know more about your employer's specific pension options and may set you along that road, wrongly thinking it is your best or most natural option - while overlooking your extremely valuable rights under the Workers' Compensation Act for the same injury that has paid Heart and Lung Act benefits. We have seen claimants whose workers' compensation rights could have easily been settled for six figure sums -- often with enhanced pension rights (such as full benefits from a premature retiremement due to disability) thrown into the mix -- miss out on those valuable rights because they called us only after accepting the retirement package promoted by their union representatives while they were still under restrictions for a work injury.
In fact, many injured workers covered by the Heart and Lung Act are pushed into a disability retirement when it becomes clear their qualifying injury will result in permanent (or other than temporary) incapacity from their career job. Let there be no mistake: moving from Heart and Lung benefits directly to a disability retirement or any other pension is a mistake! It will cause you to miss out on what is often a six figure lump sum recovery you should have collected along the way!
Specifically, your rights under the Workers' Compensation Act are not dependent upon your Heart and Lung Act status, and Workers' Compensation benefits will be payable even in circumstances where Heart and Lung Act benefits may be cut off. Your workers' compensation rights are very valuable, and generally can be converted into a lump-sum settlement which will not interfere with your right to later take a pension, usually with such pension kicking in at the same time the lump sum settlement of your workers' compensation claim is approved.
In fact, maintaining your workers' compensation rights at the same time you pursue your Heart and Lung Act claim can help put pressure on the employer to often accept your early retirement and/or disability retirement with rights to early receipt of a full pension, on top of a lump sum resolution of your valuable Heart and Lung and Workers' Compensation rights!
In Cleveland Board of Education v. Loudermill, 470 U.S. http://en.wikipedia.org/wiki/United_States_Reports 532 http://supreme.justia.com/us/470/532/case.html (1985), the United States Supreme Court http://en.wikipedia.org/wiki/United_States_Supreme_Court held that:
Some public-sector employees can have a property interest in their employment, per Constitutional Due Process.
This property right entails a right to "some kind of hearing" before being terminated -- a right to oral or written notice of charges against them, an explanation of the employer's evidence, and an opportunity to present their sides of the story.
Accordingly, the pre-termination hearing should be an initial check against mistaken decisions -- not a full evidentiary hearing, but essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.
In this case, because the respondents alleged that they had no chance to respond, the District Court erred in dismissing for failure to state a claim.
As a result of the case, public sector employers are required to provide a Loudermill hearing http://en.wikipedia.org/wiki/Loudermill_hearing and/or a Loudermill letter http://en.wikipedia.org/wiki/Loudermill_letter before terminating an employee.
Pennsylvania state law has since developed additional legal considerations that your attorney must be aware of to effectively pursue and protect your interests in a claim involving Heart and Lung Act rights.
Call us today to discuss your valuable rights and how they may be best advanced and protected. Law Offices of Timothy Kennedy (484)453-8144.