Impairment Rating Examination Reinstated by State Legislature

As followers of Abes Baumann know, our firm was successful in a constitutional challenge to the use of Impairment Ratings under the American Medical Association Guides to the Evaluation of Permanent Impairment to convert injured workers from total disability compensation to partial disability compensation. The conversion would put a limit on how long workers could receive wage loss benefits. In the landmark case of Protz v. WCAB, Abes Baumann’s attorneys successfully convinced the Pennsylvania Supreme Court that the delegation to the AMA constituted an unconstitutional delegation of authority. The Act was therefore voided.

The Legislature scrambled to reinstate the use of Impairment Ratings to convert people to partial disability. Hearings were held at which Tom Baumann of Abes Baumann testified. Ultimately, the state legislature passed a bill using the Sixth Edition of the AMA Guides to evaluate injured workers. The percentage impairment rate necessary to keep people on total disability was lowered from 50% to 35%, largely because of the Protz decision. Therefore, injured workers can now be compelled to attend Impairment Rating Evaluations in order for insurance companies to convert people to partial disability.

Abes Baumann continues to challenge the constitutionality of the new law. The status of how that law is applied will continue to remain in flux for an extended period of time as challenges wind their way through the appellate courts. If any injured worker is being subjected to an Impairment Rating Evaluation, please call the attorneys at Abes Baumann for a free evaluation of your case.

Blue Water Vets Courtroom Victory!

On January 29, 2019, the United States Court of Appeals for the Federal Circuit decided the case of Procopio v. Wilkie. This case involved the claim of Alfred Procopio a veteran of the U.S. Navy who served in waters off Vietnam and sought service-connected compensation for prostate cancer and diabetes, two conditions that the VA has found are caused by exposure to Agent Orange. Mr. Procopio’s claim was denied by the VA as he did not set foot on land in Vietnam. He was considered a Blue Water vet and, by VA definition, ineligible for benefits for diseases caused by Agent Orange.

The Court held that the law Congress passed in 1991, allowing compensation for vets exposed to Agent Orange, included vets who served in the territorial waters of the Republic of Vietnam (South Vietnam). The Court found that the term Congress used in the law, “Republic of Vietnam,” included the country’s territorial waters (a zone extending for 12 miles off its shore lines.)

This is a great victory for these veterans. For years they have been denied benefits that were available to vets who set foot on land in Vietnam, even though they were exposed to Agent Orange in the water and air during their time on board ships off the coast of South Vietnam.

The VA has not yet decided if it will ask the Supreme Court to review this decision. Please continue to check our website for updates.

If you have any questions about how this decision may affect you, please call the veteran’s practice attorneys at Abes Baumann, P.C. for a free consultation.

New Agent Orange Developments

By: Susan Paczak

There are some new developments regarding the VA and Agent Orange. In the summer the House of Representatives easily passed a bill that would have given Blue Water vets the same presumption of exposure to Agent Orange and other herbicides given to vets who served on land in Vietnam. The bill then went to the Senate. The bill stalled in committee in the Senate. It stalled because the Secretary of Veterans Affairs, Robert Wilkie opposed the bill. The Chair of the Senate Veterans Affairs Committee tried to come to deal to get some legislation passed, but without the support of the Secretary he would not bring the bill up for a vote in the full Senate. As this Congressional term is almost over, a new bill will have to be introduced in the House in 2019, and the process will have to start over again. Once again, justice is denied to Blue Water vets.

In other news, the National Academies of Sciences, Engineering, and Medicine issued its 2018 update on Veterans and Agent Orange. This organization is required by law to provide an update every 2 years on whether, based upon research, certain diseases are linked to Agent Orange exposure. The VA then uses this report to decide if disease should be added to the Agent Orange presumptive list. This year the report included high blood pressure (hypertension) on its list of diseases that there was sufficient evidence to conclude that Agent Orange caused this disease. In the past, all other disease that were found to have sufficient evidence to link Agent Orange to the disease were put on the list. In my opinion, the Secretary will not put high blood pressure on the list. It is clear from the VA’s position on the Blue Water vets that they do not want to add more veterans to the list of those eligible for benefits for Agent Orange exposure. However, this evidence can be used by an experienced attorney to argue that even without the presumption, the veteran should be compensated for high blood pressure caused by Agent Orange exposure.

To discuss your claim for Agent Orange diseases and other conditions, call ABES BAUMANN.

Stadium Hazards and Workers’ Compensation for Athletes

By: Edward Jaffee Abes

Sometimes professional athletes suffer work-related injuries but not the kind one would expect such as a collision at second base or a hard hit by a linebacker. Former New York Yankee outfielder, Dustin Fowler, found this out the hard way. He suffered a season ending injury when he collided with an electrical box in right-field foul territory while attempting to catch a fly ball. His right knee collided with the unprotected electrical box. The resulting injury, a rupture of his patellar tendon, ended his season before his first major league at bat.

Fowler should be eligible for Workers’ Compensation benefits, but because this electrical box was not wrapped in foam or similar protection, he has filed suit against the Chicago White Sox and the Illinois Sports Facilities Authority in Cook County Illinois.

Hopefully other stadiums will do a check of their facilities so that this type of danger will be eliminated.

Blue Water Navy Vets and Agent Orange–UPDATE 12/18/2018

By: Susan Paczak

Recently, the United Stated House of Representatives passed a bill that gives Blue Water veterans the same presumption of exposure to Agent Orange that those who were “boots on the ground” in Vietnam have had for years. The bill also gives the same presumption to veterans who served in the Korean DMZ from September 1967 until August 1971.

Now before the Senate Veterans Affair Committee, the bill is slated for a hearing on August 1st. The Chairman of the Committee says the bill is a top priority.

If the Senate passes the same bill the House passed, then it goes to the President for signature, and becomes law. If the bill is different from the House bill, then it has to go to a committee made up of members of the House and the Senate. They then have to come up with a bill that both houses will pass, and send to the President to sign.

If the bill is made law, then these Blue Water and Korean vets will be able to get compensation for the same diseases for which other Vietnam vets get benefits. However, it will still be many months until the VA comes up with procedures to process these claims, then more time for the claims to be processed.

Please call your Senators (go to whoismyrepresentative.com to find your Senator’s phone number) to tell them to vote YES on this bill, and to do it fast. Veterans have been waiting long enough! Justice delayed is justice denied.


Some more news on Blue Water vet legislation. The proposed law to expand the Agent Orange presumptive diseases to Blue Water vets came up for a vote in the Senate.  Senator Kirsten Gillibrand D-NY asked for unanimous consent to pass the law. However, when this procedure is used one senator can object and the bill does not pass. One senator, Mike Enzi R-WY objected so the bill did not pass.  It is unlikely it will brought up for another vote before the end of the year. This means that a new bill will have to be introduced in 2019.

Injured Playing on Company Sports Team – Eligible for Workers’ Compensation?

By: Sandra Weigel Kokal

In order to be eligible for workers’ compensation benefits, the law requires that the injury must be sustained in the “course of employment.” When discussing injuries which occur while playing on an Employer’s Sports Team, the following criteria determine whether an injured worker is entitled to benefits: where the employee, whether on or off the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs.

If you are injured while participating on the employer’s softball, baseball, basketball or any type of team, you may be eligible for workers’ compensation benefits. The analysis by the court will be based on the specific facts of your situation. If the employer sponsors the team, pays a membership fee for the team, provides the team uniforms, and in general supports the team, then you will be eligible to collect workers’ compensation benefits if you are injured while playing on the team. The Courts have held that participation on the team actually furthers the business or affairs of the employer.

The same is true if you are injured at a company-sponsored picnic or while volunteering at a company-sponsored event. Again, the Courts have held that attendance at the picnic promotes the employer’s interest in good relationships with and among the employees, which in turn fosters good morale and furthers the business or affairs of the employer. If volunteering at company-sponsored charity run, the participation promotes a positive image of the company which furthers the business of the company. In both these situations, if you are injured while participating, you may be eligible for workers’ compensation benefits.

The facts surrounding your injury should be carefully looked into to determine your eligibility for workers’ compensation benefits. If you have suffered an injury while engaging in an employer-sponsored event, please contact us to discuss your specific situation.


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