Eric Abes - Abes Baumann

Retaliatory Discharge for Filing Workers’ Compensation Claim

Eric Abes on March 28, 2018

If you file a claim for workers’ compensation benefits and your employer fires you, you may have a claim for retaliatory discharge.

To do so you must establish a “prima facie” case of retaliation. This means you must prove the following:

You were engaged in a protected activity (you were properly performing your job);
your employer took an adverse employment action against you (fired you); and
a casual nexus existed between the protected activity and the adverse employment action (you got hurt doing your job, filed for workers’ compensation and employer fired you).

Once you establish a “prima facie” case of retaliation, the burden shifts to your employer to prove otherwise. Your employer must provide a legitimate reason for firing you. If your employer offers a legitimate reason for firing you, you have to prove that reason was a pretext and that the real motive was the workers’ compensation claim. You must show that the employer’s reason for firing you was fake and/or made up.

In a recent case, an employee was injured on the job and the company doctor stated his injury was work-related. The employee was in the process of applying for workers’ compensation benefits with the help of the company doctor. The employer fired him 2 days later for “working unsafely.” The Court found this was a retaliatory discharge.

If you are injured on the job, file for compensation benefits and are then terminated, you should seek the help of an attorney.

We’re proud to announce a major award for one of our partners

Eric Abes on March 7, 2018

Everyone at Abes Baumann congratulates Ed Abes on being inducted as a Fellow of The College of Workers’ Compensation Lawyers at their twelfth annual induction dinner on March 3, 2018 in Nashville.

Ed joins his partner Tom Baumann as a fellow, an honor which has been established to recognize attorneys who have distinguished themselves in their practice in the field of workers’ compensation. Members have been nominated for the outstanding traits they’ve developed in their practice of twenty years or more. Even more, they’ve convinced their peers, the bar, bench and public that they possess the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership.

Additionally, fellows stand out to newer attorneys as a model of professionalism in deportment and advocacy; displays civility; is a student of the law and has a thirst for knowledge in all areas of the law that affects how they represent their Workers’ Compensation clients.

Those of us who are privileged to watch Ed’s day-to-day commitment to representing injured workers know this honor is highly deserved.

Ed and fellow partner Tom Baumann were named to the Best Lawyers in America and Super Lawyers lists this year and in numerous years past. Through hard work and dedication to their clients, Ed and Tom have set the example for the attorneys and staff at Abes Baumann.

Sleepy Drivers and Truck Accidents

Eric Abes on March 6, 2018

By: Roger D. Horgan

The job driving a large truck over long distances is exhausting. A good driver must be on high alert at all times because of the complexity of the task and the great harm tractor trailer accidents can cause. The Federal Motor Carrier Safety Regulations exist to protect the public from harm that these enormous, heavily loaded vehicles cause.

Among the most important regulations are those that prohibit drivers of commercial trucks from driving for too long. It is entirely predictable that a driver who is on the road—beyond the normal and safe limits of human endurance—will lose his edge. The driver then becomes a far greater risk of harm than one who is well rested.

It is the predictability of accidents caused by tired drives that exposes drivers and their employers to punitive damages claims—intended to punish wrongdoers—on top of normal compensatory damages. Pennsylvania Courts have ruled that failure to adhere to driving time limits can be considered recklessness and supports a claim for punitive damages, for example Gaffin v. George Walker, Jr. and Pocono Produce Co., Inc. There is no specific limit on the amount of punitive damages. This is why punitive damages remain an incentive for drivers and their employers to comply with the regulations…and save lives!

Major changes are coming to PA’s workers’ comp system – unless you act now!

Eric Abes on February 1, 2018

SB 936, sponsored by Chairman of the Senate Insurance Committee Senator Don White (R-Indiana) and championed in the House by Representative Ryan Mackenzie (R-Lehigh), calls for a dramatic change to the state’s workers’ compensation law and is now pending before the House Labor & Industry Committee,

This bill will establish a pre-approved list of prescription drugs – a “drug formulary” – for every injured worker. This would allow the insurance companies to overrule doctors’ medical judgment and deny workers the medicine prescribed to them.

It’s worth noting that this bill was written, introduced, and passed the PA Senate in four days without any meaningful public input.

But that doesn’t mean that you need to stay silent. The bill still has not passed the PA House of Representatives.

Please call these instrumental State Representatives – it will only take a few minutes of your time. Follow the provided script and be polite and courteous.

REP. ROSEMARY BROWN – MONROE & PIKE COUNTIES (570) 420-8301

REP. JONATHAN FRITZ – SUSQUEHANNA & WAYNE COUNTIES (570) 253-5533

REP. JIM MARSHALL – BEAVER & BUTLER COUNTIES (724) 847-1352

REP. DAVE MILLARD – COLUMBIA COUNTY (570) 759-8734

REP. TEDD NESBIT – BUTLER & MERCER COUNTIES (724) 458-4911

REP. CHRIS QUINN – DELAWARE COUNTY (610) 325-1541

REP. TODD STEPHENS – MONTGOMERY COUNTY (215) 368-5165

REP. JEFF WHEELAND – LYCOMING COUNTY (570) 321-1270

• Hello. My name is _______, and I’m calling to let the Representative know that I’m opposed to Senate Bill 936.

• I’m concerned about how the bill would impact me – and people like me – if I get injured at work.

• By creating a drug formulary, insurance companies can overrule my doctor and deny me the medicine that my doctor prescribed.

• This bill is about putting more money in insurance companies’ pockets, not about what’s best for me if I get hurt at work.

• SB 936 requires utilization review organizations to be certified by some national accreditation agency – likely governed by insurers. This could allow insurers to “stack the deck” and guarantee the outcome of appeals in the workers’ compensation system.

• Under current law, injured workers have given up their right to sue in exchange for a system that provides timely and proper medical care. This is a HUGE hit to the workers’ comp system and the “grand bargain” as a whole.

• SB 936 would hurt me and others who get hurt at work. This bill is detrimental to hard-working constituents.

• Thank you for your time.

Thank you for your help!

Do you have any further questions from us? You can always email us at info@abesbaumann.com or call us at 412-228-4786. As always, we’re happy to help.

Is VA RAMP Right for Me?

Eric Abes on January 21, 2018

By: Susan Paczak

In August 2017, the President signed into law a bill that changes the VA appeal process. The new process does not take effect until February 2019, at the earliest. However, the VA is now conducting a project to see how this new process may work. The VA has selected cases of certain veterans and is inviting those veterans to use the new appeals process. The VA calls this RAMP-Rapid Appeals Modernization Project.

The VA is picking cases that are already in the appeals process. If your case is picked, you will receive a letter from the VA inviting you to join RAMP. This sounds like a good process. The Veteran gets to have their appeal speeded up. However, that is not how it works. If you join RAMP, you have to withdraw your claim and file a new claim. If you win, the new claim will go back to the date of the claim you withdrew. If you don’t win and have to appeal this new claim, then you have to file a new appeal. This new appeal then goes to the end of the appeals line, because it is a new appeal. The VA will not take into account that your appeal was already in the system for years before RAMP started. This new appeal may then be in the system for many more years.

Here is an example: Vet files his claim in 2014, is denied in 2015 and appeals. In 2018, he is invited to join RAMP. Vet then withdraws his 2014 claim, and files a new claim. The new claim is denied in 2018. Vet appeals in 2018. The appeal is now a 2018 appeal-not a 2015 appeal. So, the appeal will now be decided after all the earlier appeals are decided. Vet now may have to wait another 3-4 years for the appeal to be decided. If Vet had stayed with the old appeal, it would most likely have been decided in 2018.

IF YOU RECEIVE A LETTER INVITING YOU TO JOIN RAMP IMMEDIATELY CALL ABESBAUMANN, P.C. TO DISCUSS YOUR OPTIONS.

Liens and Subrogation in Auto Accident Cases

Eric Abes on December 28, 2017

By: Roger D. Horgan

Medical liens and subrogation. These obscure misunderstood words can have a dramatic impact on the victim of automobile negligence. These concepts come into play when the victim’s auto insurance is insufficient to pay all of the medical expenses arising from an accident. After the auto coverage has been exhausted, the victim’s health plan will step in to pay the remaining bills, under the terms of that plan. The health plan’s claim well then seek reimbursement from the proceeds of the accident litigation, also known as enforcing a lien or seeking subrogation.

The problem with medical liens is that they can overwhelm a case and lead to negative and unjust results. If the defendants liability coverage is inadequate, and the health plan insists on 100% reimbursement of what it paid, the true victim may bear the shortfall and be left with little or nothing. Many accident victims are sorely disappointed to find that they must reimburse their health insurance company even though they have paid for that coverage.

The lienholders have enormous power over the resolution of the case and how much the accident victim ultimately receives. The best way to prevent being held hostage in this manner is to purchase as much uninsured and underinsured motorist protection as you can possibly afford. This enlarges the pot from with you and the lienholder are paid, and it increases the likelihood that you, the accident victim, can be fully and fairly compensated.