First Post Protz IRE Decision is Helpful

By: Thomas C. Baumann

The Commonwealth Court had offered its first interpretation of Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II) in Thompson v. WCAB (Exelon Corporation) No. 1227 C.D. 2016. This decision is helpful to individuals representing claimants.

Debra Thompson underwent an Impairment Rating Evaluation in October of 2005. The examining physician found an impairment rating of 23%. Thompson then received a Notice of Change of Workers’ Compensation Disability Status changing her compensation from total disability to partial.

Litigation commenced between the parties in 2010 with the filing of a Modification and Suspension Petition by Employer. In 2011, the Claimant filed a Review Petition seeking to review the IRE determination because she had not reached maximum medical improvement. The Judge consolidated the petitions and found that the employer was entitled to modify the Claimant’s benefits from total disability to partial disability. However, the Judge changed the effective date of the Modification Petition to a later date than that noted in the Notice of Change of Status.

Both sides appealed to the Workers’ Compensation Appeal Board. The Appeal Board addressed only the issue of whether the claimant was time-barred from challenging her disability status. The Board felt that she was time-barred, as she had not filed her appeal within the 60 day period following her receipt of the Notice of Change of Status.

Claimant appealed to the Commonwealth Court, but did not raise any of the constitutional issues associated with the Protz decision. Instead, one of the main issues was whether or not the Claimant was deprived of due process through the use of the Notice of Change of Status. In Thompson I, the court held that the Claimant was deprived of her due process right due to the inadequacy of the language in the Notice of Change of Status. The Commonwealth Court remanded to the Appeal Board at that point. In a decision dated July 18, 2016, the Appeal Board determined that an automatic modification of the Claimant’s benefits under Section 306 (a.2) of the Workers’ Compensation Act was appropriate and ordered the benefits to be modified from total to partial disability, effective August 30, 2005. The Claimant had received severance benefits after the cessation of employment in lieu of workers’ compensation benefits. The appeal board determined that this period of benefits did not count toward the receipt of total disability. Therefore, the employer’s requests for an Impairment Rating Examination was timely.

The Claimant then appealed to the Commonwealth Court. For the first time, she raised the issue of whether the Workers’ Compensation Judge erred in modifying the claimant’s benefits based on that IRE performed under the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment. At the time of filing the appeal to the Commonwealth Court in Thompson II, Protz I had been decided by the Commonwealth Court. The Employer did not argue that the use of the Fifth Edition of the guides was not unconstitutional. It argued that Thompson failed to timely raise the constitutional issue. In other words, this is the waiver issue put forth by the defense bar. Footnote Four of the decision is confusing, yet instructive. It notes there, “Because this matter began before Protz I and Protz II were decided and this appeal implicates the validity of Section 306 (a.2)(1) of the Act, Claimant raised this issue at the first opportunity to do so. See Pa. R.A.P. 1551(a). Thus, Claimant is not precluded from raising the issue of the improper use of the Fifth Edition of the AMA guides on appeal.”

This decision potentially represents a mortal blow to the waiver issues being raised and/or contemplated by the defense bar. While the reasoning of the court is not especially developed in the above-mentioned language, this is a case all practitioners must use in dealing with the Protz case and waiver issues.

No Auto Insurance, but in an Auto Accident?

By: Roger D. Horgan

Pennsylvania law requires the owner of every registered vehicle to maintain at least a minimum level of automobile liability insurance coverage. The law also imposes penalties on those who operate a vehicle without insurance: fines, license suspensions, and reduced rights in civil court. The question arises, however, as to whether or not a negligent driver who causes injury and damages to an operator of an uninsured vehicle is relieved of all responsibility for that negligence simply because the other driver lacked insurance. Does an uninsured driver lose all rights arising from an automobile accident caused by the negligence of another as a penalty for driving without insurance?

The short answer to that question is no, an uninsured driver does not lose all rights when injured by the negligence of another driver. That is not to say that there is no effect on the claim of the injured, uninsured driver. Rather, the price that is paid is a measured one. Aside from fines and potential suspension of a driver’s license, the fundamental penalty imposed under the Pennsylvania Motor Vehicle Financial Responsibility Act is that the uninsured driver is treated as if he had selected “limited tort” coverage. This means that he will have given up the right to pursue claims for non-economic damages, such as pain and suffering, unless he has sustained a serious injury, or some other exception to limited tort applies.

The uninsured driver also loses the right to participate in the first party benefits system established under the law, which is designed to make payment of accident related medical expenses and lost wages quick and easy. However, the uninsured driver is not precluded from recovering these losses from the negligent driver. This issue is addressed in a Pennsylvania Supreme Court decision in the case of Corbin v. Khosla where the Court unanimously ruled that the uninsured driver could indeed recover economic damages from the tortfeasor (wrongdoer). This was a surprising decision in the sense that the tortfeasor stands to pay more in medical expenses to an uninsured driver then he would to one who properly purchased automobile insurance. The Court concluded that the Legislature intended to provide incentives to purchase automobile insurance by imposing fines, suspensions, and the loss of the first party benefit system on those who fail to buy insurance, but that it did not intend to relieve negligent drivers of their responsibility for the injuries and damages they cause.

It goes without saying that one should not drive without automobile insurance in Pennsylvania, but it would be wrong to conclude that all is lost if the victim of automobile negligence happens to be one who lacks auto insurance. If you have been in an automobile accident, or have any questions regarding this particular issue, please contact us.


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