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ZUber v. Boscovs–A Lesson in Completeness

By: Douglas A. Williams

In Pennsylvania, if an injured worker and his employer wish to settle a workers’ compensation claim, they must do so with a document known as a Compromise & Release Agreement (C&R). The C&R is typically prepared by the attorney that represents the insurance carrier. The injured worker’s attorney then reviews the C&R and makes any changes that are necessary. Ultimately, the C&R is presented to a Workers’ Compensation Judge. The injured worker must appear before that Judge and convince the Judge that he understands the terms of the C&R. If the Judge believes that the injured worker does understand the C&R, the Judge will issue an order approving the C&R and, at that point in time, the employer must issue payment to the injured worker in accordance with the terms as outlined in the C&R.

In a recent Federal Court case, Zuber v. Boscov’s, the United States Court of Appeals for the Third Circuit ruled that the existence of a C&R did not prevent the injured worker from suing his employer under the terms of the Family Medical Leave Act (FMLA). Mr. Zuber sustained a work-related injury in August of 2014 while working for Boscov’s. He returned to work shortly after the injury and Boscov’s ultimately terminated his employment approximately a month after the injury. The following year, Mr. Zuber and Boscov’s entered into a C&R resolving all aspects of his workers’ compensation claim. Subsequently, Mr. Zuber filed suit against Boscov’s in Federal Court. In his suit, Mr. Zuber claimed that Boscov’s had violated the FMLA. Boscov’s moved for dismissal of the suit claiming that Mr. Zuber, by entering into the C&R, had waived his right to file suit under the FMLA. The District Court agreed with Boscov’s and dismissed Mr. Zuber’s claim. However, on appeal, the United States Court of Appeals for the Third Circuit reversed that decision and held that Mr. Zuber, by signing the C&R, had only released his rights to workers’ compensation benefits. The Court held that the C&R did not prevent Mr. Zuber from suing Boscov’s for a FMLA violation or, for that matter, for any other cause of action unrelated to the Workers’ Compensation Act.

It is important to note that Zuber v. Boscov’s does not prevent an employer from insisting that an injured worker sign a General Release separate and apart from the Compromise & Release Agreement that resolves a workers’ compensation case. In fact, this is frequently done in workers’ compensation cases. General Release documents often include language in which the injured worker not only resigns his employment but forfeits his right to bring suit against the employer for any reason. Again, this document is separate and distinct from the C&R and is not reviewed by the Workers’ Compensation Judge. Some employers will refuse to resolve a workers’ compensation case unless an injured worker signs such a General Release. Of course, the injured worker has the right to refuse to sign the General Release. However, this may mean that the workers’ compensation case will not resolve without litigation.

At Abes Baumann, we strongly discourage our clients from signing General Releases, or any other documents, before they have the opportunity to speak with a competent employment lawyer who can advise them as to whether or not signing such agreement is a wise decision. If you are considering settling your workers’ compensation case and are concerned that your employer may try to pressure you into signing a General Release, please contact our firm to discuss the matter further.

A Client’s Perspective

By: Susan Paczak

The thanks and praise of a happy client is the most satisfying reward we at Abes Baumann can receive. One client of Attorney Susan Paczak put his feelings into writing:

I am a service connected disabled Marine Corps veteran and was always told by other so called expert VA lawyers including a law professor that thought he was also a VA expert lawyer that my VA case was unwinnable against the VA. Well Susan Paczak a VA lawyer with years and years of experience fighting and beating the VA’s lawyers all the way to the federal courts thought differently and told me that my VA case was winnable and if I hired her she would win my VA case. Well Susan Paczak not only won my case against the VA and BVA but got me a 100% Permanent Total VA rating, something that the so called VA expert lawyers said couldn’t be achieved, well they were wrong and Susan was right! Susan Paczak isn’t done yet with my VA case and continues to keep in contact with me and always confers with me on VA case matters and continues to develop new strategies against the VA to complete my VA case. Thank you Susan, I and many others owe you a debt of honor, you are truly what every other VA lawyer aspires to be but few make it to your level of experience, caring, wisdom, courage and fighting ability against a foe like the VA, it’s just very sad and too bad that the VA works against us as veterans and not for us like they were commissioned too many years ago….. Kindest regards and GOD’s divine blessings and protection, disabled veteran USMC

Tom Baumann of Abes Baumann, PC was recently asked to speak at a seminar by the Western Pennsylvania Trial Lawyers Association. At a continuing legal education seminar on October 9, 2017, Mr. Baumann was the sole speaker at a Seminar entitled “Protz v. WCAB–The Art of the Possible.” The purpose of the seminar was to inform Western Pennsylvania attorneys about  the implications of the landmark Pennsylvania Supreme Court decision in Protz v. WCAB. In this case the Supreme Court determined that a portion of the Pennsylvania Workers’ Compensation Act was in fact unconstitutional. This has been a very important development that has positively affected the lives of many injured workers’ who receive workers’ compensation in Pennsylvania. Mr. Baumann was the injured workers’ attorney in the Protz case. Mr. Baumann was warmly received by the many attorneys present and thanked the Association for the opportunity to speak before it. Abes Baumann attorneys are well-versed in the legal ramifications of the Protz decision. Any injured worker who has questions along this line should feel free to contact the firm at info@abesbaumann.com.

Tom Baumann Testifies Before State Legislature

In September of 2017, Abes Baumann Attorney Tom Baumann testified at an informational hearing before the Labor and Industry Committee of the Pennsylvania House of Representatives. He was invited by the Committee to testify regarding his participation in the landmark Protz decision which held that the use of the American Medical Association Guides for Evaluation of Permanent Impairment to convert injured workers to partial disability was unconstitutional. Mr. Baumann testified along with an employee of the Pennsylvania Bureau of Workers’ Compensation, a doctor familiar with the AMA Guides, and an attorney who represents insurance carriers in workers’ compensation cases.

The legislature is trying to determine how to deal with the change in the Workers’ Compensation Law caused by the Protz case. Mr. Baumann was invited on behalf of Ms. Protz, his client in the case, and as a representative of the Pennsylvania Association for Justice. Mr Baumann notes that he felt honored to be asked by the Committee to speak. He will continue to do everything he can to support the positive changes for injured workers that have come about as a result of the Protz decision.

Learning Never Stops

At Abes Baumann, learning never stops. Whether you have been practicing for 50 years or 50 days, we always strive to stay on top of new laws, new strategies, and new technologies. If it helps us represent our clients, we want to know it.

Recently, the heads of our Veterans and Appellate Practices, Susan Paczak and Sandra Kokal, attended the National Organization of Veterans’ Advocates conference. This semi-annual conference is invaluable to the practice of representing Veterans. NOVA is the premier organization of Veteran advocates and attorneys. Covering topics from reviewing Compensation & Pension exams to reviews of recent cases to roundtables with appellate judges, this conference provided Susan and Sandra an outstanding opportunity to build on their years of experience.

If you want to know how their expertise can help you, please call. There is no charge to talk.

Ask your Doctor

By: James R. Burn, Jr.

Oftentimes we receive phone calls from our clients asking whether or not they can engage in certain physical activities. In order to establish a winning Workers’ Compensation claim, we need to show that our clients are injured and limited from doing their normal and customary job duties. This standard, however, does not require that our clients be totally incapacitated from any activity whatsoever.

Unfortunately, many insurance companies and their representatives lead injured workers to believe that they have done something wrong or that they can’t do anything if they can’t work. That is not the case.

When our clients ask us if they can go to a picnic or engage in activities around the house or yard, we advise them to make decisions about what they can and cannot do physically as if they did not have a workers’ compensation case. Specifically we tell them to ask their doctor what they believe their limitations are before engaging in any activities which could worsen their injury.

If an insurance lawyer or insurance adjuster asks our client what they can or cannot do outside of work they then have a direct answer based on what their physical limitations are from the work injury and advise the insurance company that they are engaging in activities within the restrictions of their injury as approved by their physicians.

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