1 - 2016 - Abes Baumann

One Accident; Multiple Cases

Eric Abes on January 11, 2016

Our firm has a varied, injury based practice. We handle workers compensation claims, automobile accidents, trip and fall accidents, social security claims, veteran’s claims, and other injury related matters, often all for one client, for one injury. An individual is struck and permanently disabled by an automobile on the job may well have several claims to bring: a Worker’s Compensation claim, a claim against the negligent driver, a claim against his own automobile insurance Company, a claim against a disability plan, and, finally, a claim for Social Security disability benefits. Our experience and expertise across these various types of cases can be very important when a particular accident leads to two or more claims.

Proceeding with any one of these claims without accounting for its impact upon other potential claims can lead to unexpected, and potentially disastrous, results. One potential disaster would be failing to meet the prerequisites for bringing an underinsured motorist claim, also known as UIM, against one’s own insurance company. A UIM claim arises when the defendant driver’s automobile insurance policy limits are not adequate to meet the value of the claim against him. If the victim has purchased UIM coverage it would step in where the defendant’s liability limits leave off. So, if the defendant has the state minimum liability limits of $15,000, and the case is worth $30,000 a victim who has purchased UIM coverage will have a claim for the difference. However, if the victim has taken the $15,000 offered by the defendants insurance company without notifying and obtaining approval from his own insurance carrier, he will have lost his right to bring the claim for UIM benefits. That is because his insurance company has the right to pursue a claim against the driver for anything it is required to pay its policyholder. This is commonly known as a waiver of subrogation. While insurance companies very rarely refuse to waive subrogation, they routinely rely upon the failure to obtain waiver of subrogation before the settlement with the defendant driver to defeat claims for UIM benefits.

As another example of one case affecting another was seen in the recent case of McConnell v. DelPrincipe from Lawrence County. The victim in that case was hit by a car during the course of his work day. Because it was a work related accident his first step was to bring a Worker’s Compensation claim. In that case, the Worker’s Compensation Judge determined that the victim was not disabled, did not sustain a loss of earnings and that he had fully recovered from his cervical strain/sprain caused by the accident. The victim did not file an appeal from the Worker’s Compensation judge’s decision.

Thereafter, he brought a lawsuit against the driver claiming that he had suffered injuries including a herniated disc in his cervical spine, headaches, cervical sprain/strain, aggravation of degenerative disc disease, and other injuries that limited his work activities. However, because the issue of his injuries had been previously litigated in the Worker’s Compensation claim he was prohibited under the doctrine of collateral estoppel from claiming anything more than a cervical sprain/strain in the lawsuit against the driver. The failure to coordinate the handling of these cases, and in particular the failure to file an appeal from the Worker’s Compensation decision, made the claim against the defendant driver nearly worthless.

At Abes Baumann, we are vigilant and experienced in coordinating the various claims that may arise from one accident so as to maximize recovery and prevent unexpected and negative results.

Claims Against the King

Eric Abes on January 11, 2016

By: Roger D. Horgan

King! What King? There is no royalty in Pennsylvania, correct? No, there is not. However, when it comes to claims against the Commonwealth of Pennsylvania, or its subsidiaries, our law harkens back to English law, making use of concepts from another age and another society.

Just as the King and Queen in England were generally immune from suits, the Commonwealth, and its subsidiaries, are immune from suit unless for claims for which Pennsylvania has agreed to be liable. An injury victim can bring a claim against the Commonwealth or its subsidiaries only in certain, limited circumstances, and subject to limitations that would not apply to other defendants. Different rules apply depending on whether the claim is being brought against the Commonwealth itself or one of its statewide agencies (known as Commonwealth agencies), or one of its local subsidiaries such as a township or a borough (known as local agencies).

One of the important elements of bringing a claim against the Commonwealth or a local agency is that the normal two year statute of limitations is modified such that a victim must provide written notice to the Commonwealth or local agency in a specified form within 180 days of the accident. While suit need not be brought within 180 days, the victim will generally be precluded from bringing suit if proper written notice was provided. It is imperative that a person with a potential claim against a governmental agency promptly consult with a lawyer to determine whether a potential claim exists and comply with the many technical requirements involved in bringing such a claim.

Another important consideration is that the Commonwealth has limited the amount which it will be required to pay if found responsible for the accident. Claims against a Commonwealth agency are limited to $250,000 per person and no more than $1 million for any one accident. As to local agencies, the limit is $500,000 per accident. These limits can lead to incomplete compensation in cases involving extremely serious injuries, or numerous victims. In the recent case of Zauflik v. Pennsbury School District, the Pennsylvania Supreme Court agreed that it was necessary to reduce a $14 million verdict to just $500,000. This was a tragic case in which a school bus went out of control and ran into 20 students. This was the result even though the school district had insurance covering claims up to $11 million. The Court recognized the apparent injustice of the result but concluded that any change in the law governing these cases must come from the Legislature.

These are but two examples of the many complexities involved in bringing an injury claim against the Commonwealth and local agencies. This is not an area of law in which an unrepresented victim can be expected to achieve a favorable result without a lawyer. If you have a claim against any person or entity that is in any way related to any part of the government please contact an attorney, and do so promptly.

Impairment Rating Evaluations (Will Supreme Court Rule on their Fairness)

Eric Abes on January 11, 2016

By: Thomas C. Baumann

As noted in my last blog entry, many injured workers in Pennsylvania receiving Worker’s Compensation benefits are obligated to undergo an impairment rating evaluation after they have received 104 weeks of total disability benefits. When the Pennsylvania state legislature passed the changes to the Worker’s Compensation act (in 1996), it required such evaluations to be done under the “most recent” version of the AMA Guides to the Evaluation of Permanent Impairment. Recently, Abes Baumann attorneys have attacked the constitutionality of the use of the AMA Guides in a case known as Protz v. WCAB. Abes Baumann argued that the use of the Guides constituted an unconstitutional delegation of authority by the state legislature to the American Medical Association. In Protz the Commonwealth Court determined (in a four – three decision) that the use of the fifth and sixth editions of the Guides for impairment rating evaluations was not constitutional. The court concluded that ratings could still be done using the fourth edition of the AMA Guides, which was in effect at the time the Worker’s Compensation act was amended in 1996.

Both Abes Baumann and the attorneys for the employer in the Protz case have requested that the Pennsylvania Supreme Court accept an appeal on the issues in the case. The Pennsylvania Supreme Court is not a court which must accept any and all appeals. It determines itself which cases to accept and not to accept.

The Abes Baumann firm maintains that use of the AMA guides in any manner is not constitutional. If this were to be upheld by the Supreme Court, many injured workers in the state of Pennsylvania would benefit from such a decision. The parties are not likely to hear from the Supreme Court as to whether it will accept the appeal until late winter.

Claims Against the King

Impairment Rating Evaluations (Will Supreme Court Rule on their Fairness)

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