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.

Impairment Rating Evaluations (Insurance Company Cutting Your Benefits)

Eric Abes on November 10, 2015

Even if you win your case, Workers’ Compensation Benefits are not a lifetime guarantee. The insurance company may try to limit your benefits with the Impairment Rating Evaluation (IRE). An IRE is a physical examination. A doctor determines your level of disability on a scale from 0 to 100. After receiving 104 weeks of benefits, the law requires an injured worker to submit to an IRE.

A doctor will examine you under the guidelines of the latest edition of the American Medical Association’s Guidelines for Permanent Impairment. The doctor must be licensed in Pennsylvania; in active practice at least 20 hours per week; and approved by the Licensing Board. While you can only be required to submit to two IRE’s in a 12 month period, there is no requirement that your condition change prior to an exam. The insurance company can use the exam to see if your condition has changed.

If the doctor finds that the worker’s impairment is over 50%, the worker will continue to receive total disability benefits, but if the doctor finds the impairment is less than 50%, the worker’s status will change from total disability to partial disability. Partial disability means your benefits will be limited to 500 weeks, as opposed to possible lifetime benefits for total disability.

One defense to an unfavorable IRE is that the injured worker was not at maximum medical improvement (MMI) at the time of the IRE. MMI means that the injury/impairment is permanent, stabilized, and unlikely to change in the next year. If surgery or some form of treatment within a year might help the worker, then the worker is not at MMI.

As with most aspects of Workers’ Compensation claims, an Insurance Company may use an IRE to limit your benefits. The best way to protect yourself is to call an attorney.

Estate Planning and Disabled Children

Eric Abes on September 24, 2015

How can parents of a disabled child be assured that monies they have worked hard for and saved will not prevent their disabled child from accessing government benefits such as Medicaid or Supplemental Security Income once the parents are deceased?

To prevent this from happening, Congress passed the ABLE Act in December, 2014. This Act modeled after 529 College Savings Account creates tax favored accounts for children and adults whose disability occurred before age 26. These accounts, modeled after the Section 529 College Savings Accounts, will not have their assets count against the disabled child when applying for need based government expenses such Supplemental Security Income and Medicaid. 

Of course there are limits such as only the first $100,000 in each ABLE account would be disregarded. Also, the accounts can receive only the amounts up to the annual gift tax exemption. 

Each state must pass enabling legislation. Over half of the states have done so. Pennsylvania has not. Although enabling legislation was introduced in the State House February 12, 2015 and in the State Senate April 23, 2015, the process has not been completed. These Bills now reside in various committees. Contacting your state legislator to move this enabling legislation along will hasten the day that qualified disabled Pennsylvania residents can benefit from this legislation.

What Benefits am I Entitled to—Part 2 Lost Wages Overview

Eric Abes on September 15, 2015

By: Eric D. Abes

In Workers’ Compensation, injured workers are entitled to two main types of benefits: lost wages and medical care. Lost wages benefits are relatively self-explanatory: replace the wages you are not earning due to your injury.

Each year, the Pennsylvania Department of Labor and Industry, Bureau of Workers’ Compensation sets the ranges for workers’ compensation indemnity benefits. As benefits are paid weekly, so too are the wages calculated. This is referred to as the Average Weekly Wage. But how do you calculate the wages at the time of injury?

For someone with a fixed salary, it is easy. However, in my experience, very few injured workers are paid a fixed wage. More common are those paid hourly wages where the hours vary. Typically, you add up the wages for the past four thirteen week periods of work, immediately prior to the injury, take an average of the three highest periods, and calculate the weekly average. But what about overtime? What about per diem for travel, food, or lodging? What about bonus? What if an employee only works seasonally?

As you can see, all of this is very complicated. Over my next few posts I will attempt to explain at least some of this. However, your best bet is to contact an attorney. The laws governing workers’ compensation are very complex and confusing. You need a professional who knows the law and can make sure you receive the benefits you deserve.

Veterans’ Survivors Benefits and the Disabled Child

Eric Abes on September 8, 2015

How can a disabled child of a deceased military veteran receive the veteran’s Survival Benefits and still be eligible for Supplemental Security Income and other public benefits based upon financial need?

Until now, a disabled child of a deceased veteran could receive the veteran’s Survivor Benefits, but they would be counted as income when determining their eligibility for Medicaid, Supplemental Security Income, and other benefits. It may add up to too much thus disqualifying the child for them. This all changed on December 12, 2014 when Congress passed the National Defense Authorization Act of 2015 (NDAA). This Act provided among other things that disabled children of a deceased veteran can now have the Veterans Survivor Benefits going to a Special Needs Trust rather than directly to them. Thus, the disabled child would remain eligible for needs-based government benefits which are essential to the disabled child’s care. These assets can now be held in a trust for the disabled child without being considered as the child’s assets in determining their eligibility for Medicaid or SSI. They can now use these funds to pay for everyday living expenses and other care above that which the government provides and still not be disqualified for those government benefits. 

Thus, the veteran doing his service can have a little extra piece of mind knowing that the Survivor Benefits will not impede the disabled child’s ability to obtain government benefits so necessary to their well-being.

If you have questions about Veterans’ Benefits, contact us today.

412-228-4786

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