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Light Duty Jobs and Union Rules

Eric Abes on September 1, 2016

By: Thomas C. Baumann

Recently, the Worker’s Compensation Appeal Board ruled on a situation where the time of injury employer offered a modified duty job to its injured worker. In Gibson-Bowman v. Apex Tool Group, LLC, the injured worker was off work as a result of a back injury. She had back surgery as a result of the injury and was released to work with certain limitations. The employer offered her a modified duty packaging job for which she was required to place a bid. If she placed such a bid and got the job she would have been forced to give up her heat treat job which she had held for 11 years and paid substantially more than the packaging job. Her rights were spelled out under the collective bargaining agreement.

The Appeal Board reviewed the case of St. Joe Container Company v. WCAB (Staroschuck),534 Pa.347,633 A.2d 128(1993), a Pennsylvania Supreme Court case which dealt with the availability of work as applied to union workers. St. Joe stands for the proposition that a modified duty job offer is not available to an injured union worker if that worker would be required to give up union benefits as part of accepting the modified duty job. In light of the fact that claimant would lose her seniority on her regular job, and face a substantial pay cut, the Appeal Board concluded the job was not truly available to her and did not constitute a valid job offer.

Injured workers in the Pennsylvania Worker’s Compensation system often find themselves with a modified duty job offer from the time of injury employer. Whether or not to accept such an offer is often a complicated question. The Worker’s Compensation attorneys at Abes Baumann have been dealing with these issues for many years. We have dealt with this from State College and Altoona to Greensburg and Uniontown as well as Mercer and New Castle. If any injured workers have problems of this nature, feel free to give us a phone call with no cost or obligation to you.

VA Benefits Despite Missing Records

Eric Abes on August 18, 2016

By: Susan Paczak

I receive many calls from veterans who ask: What can I do to prove my claim if my service records were lost or don’t mention my service-connected injury? The VA often denies claims because the service records are unavailable or service-connected injury or illness isn’t mentioned in the records. You can still win this claim if you provide other evidence.

In cases where the VA cannot find the service records because they were lost or destroyed, it has a duty to tell the veteran what other evidence they need to prove the claim. In these cases, the most important evidence the veteran can submit is a very detailed statement of when, where, and how the injury/illness happened, and, if the veteran received medical treatment, when and where that happened. The veteran should send in statements from “buddies,” family members or friends that the veteran told about the injury/illness, or who witnessed the veteran’s problem (such as limping after a knee injury). I have used letters that the veteran’s mother kept in which they described what happened in service. Medical records of treatment shortly after service can also be helpful. The VA has a duty to get records from the Department of Defense, such as unit records or histories that may mention the incident.

If the service records are available, but don’t mention the injury/illness, the veteran should submit a detailed statement, statements from buddies or family members, and civilian medical records. If the injury happened during combat, but isn’t in the records, the veteran’s statement must be accepted by the VA as the truth, even if there is no other evidence that the injury happened in service.

The VA system make it hard for veterans to know what they need to do to get benefits. If you want to know what you need for your claim or if your claim was denied and you want to appeal, please call ABES BAUMANN today for help.

Assume Nothing, Especially with Uninsured Employers

Eric Abes on August 1, 2016

By: James R. Burn, Jr.

It is a felony in Pennsylvania for an employer not to have workers’ compensation insurance. Employees assume in good faith that the people for whom they work are doing the right thing. Unfortunately, with respect to insurance coverage for work injuries, that is not always the case.

If you are injured at work, you should promptly report the injury to your supervisor and ask him or her the name of the workers’ compensation insurance carrier. If they balk or push back, be respectful but insistent. Sometimes employers are reluctant to provide the information because they do not want the hassle or aggravation of a workers’ compensation claim. Too bad for them, you are hard at work, and it is your right to file a claim. If gentle nudging does not get you the name of the provider, red flags should go up. At that point, it is in your best interests to talk to an attorney at no obligation to see what next steps you need to make.

Lack of insurance does not prevent you from filing a claim but it certainly makes the navigation of a claim a little more complex than it would be if the employer would have done the right thing. The workers’ compensation attorneys at Abes Baumann have significant experience litigating and winning claims against uninsured employers.

A Workers’ Late Notice of the Employer’s Uninsured Status Limits Both Medical and Wage Loss Benefits

Eric Abes on June 16, 2016

By: Sandra Weigel Kokal

In a recent Commonwealth Court Case, the Court held that if an injured worker fails to notify the Uninsured Employers Guaranty Fund (Fund) within 45 days after the injured worker knows that the employer does not have workers’ compensation insurance, the Fund is NOT obligated to provide “compensation” from the date of the injury, but rather from the date the Fund received notice of the claim. The Court stated that “compensation” includes both wage loss benefits and medical benefits.

In this recent case, the Workers’ Compensation Judge (WCJ) had granted the injured worker’s Claim Petition against the Fund for both wage loss and medical benefits from the date of the worker’s injury. The employer appealed the WCJ’s decision to the Workers’ Compensation Appeal Board (WCAB). The WCAB agreed with the WCJ’s decision to grant medical benefits from the time of the worker’s injury, but it limited the worker’s receipt of wage loss benefits to the date that the worker had notified the Fund of the employer’s lack of workers’ compensation insurance.

The Commonwealth Court reversed both the WCJ and WCAB decisions. The Commonwealth Court stated, in accordance with a recent PA Supreme Court decision, because the injured worker did not give notice pursuant to the Workers’ Compensation Act within 45 days after he knew the employer was uninsured, he could only receive workers’ compensation benefits for wage loss AND medical expenses incurred after the date notice was given to the Fund. In other words, because the worker’s notification to the Fund was late, the Fund was NOT required to pay for medical or wage loss benefits prior to receiving formal notice of the claim.

As this case demonstrates, you should consult with an experienced workers’ compensation attorney so you do not miss any important notice requirements and forfeit your workers’ compensation benefits.

Filing a Notice of Disagreement with the VA

Eric Abes on April 26, 2016

By: Susan Paczak

Before March 24, 2015, if veterans want to appeal a Rating Decision they just had to send something in writing to VA saying that they were not satisfied with the decision and wanted to contest it. On March 24, 2015, new rules, written by the VA, went into effect. Under these rules, if veterans want to appeal, they now have to send in a special form—Notice of Disagreement (NOD) (VA Form 21-0958). On this form, veterans indicate what part(s) of the decision they are appealing. In other words, if the veteran claimed service connection for five conditions and wants to appeal the decisions on all five, all five must be listed on the NOD. Veterans must also list what they are specifically appealing: service connection, rating, effective date, or other. The rules say that veterans must also state that they want appellate review. However, the form does not state that you have to ask for appellate review.

The rules that require use of the form were challenged by several Veterans’ Service Organizations and the National Organization of Veterans Advocates (NOVA). Recently, the United States Court of Appeals for the Federal Circuit held that it was legal for the VA to require veterans to file a specific form to appeal. This means that unless one of the parties appeals to the Supreme Court, and the Court overturns the Circuit Court’s ruling, veterans must follow these rules, or their appeals will be dismissed.

The VA is making the process for getting and appealing benefits more difficult. There are back logs of initial claims and appeals, and the VA is trying to make the process more complicated and difficult, in order to cut back on the number of veterans claiming benefits or appealing their claims. This is totally out of step with the VA’s mission to help veterans. A more difficult process means that more veterans will need help with their appeals. An accredited attorney can help a veteran file and present an appeal to the VA to increase the veteran’s chance of receiving the benefits they earned.

Who Decides if a Doctor is Lying?

Eric Abes on April 12, 2016

By: Thomas C. Baumann

Recently, Abes Baumann argued a case before the Pennsylvania Supreme Court regarding credibility determinations for physicians who perform Impairment Rating Evaluations. In the case of Rhodes vs.WCAB, Tom Baumann argued that the Workers’ Compensation Judge was correct in refusing to convert the claimant’s disability benefits from total disability to partial disability. Under the Worker’s Compensation act, an employer or insurance company can require an injured worker to undergo an impairment rating evaluation after receiving 104 weeks of total disability benefits. If the examination is requested within 60 days of the receipt of 104 weeks of benefits, the claimant’s compensation automatically converts from total disability benefits to partial disability benefits if the impairment rating evaluation finds a whole body impairment of less than 50%. If the examination is not requested within that timeframe, the insurance carrier has to litigate the conversion from total disability to partial disability. This means that the physician who performs the rating exam is subject to cross-examination and can be disbelieved by the workers compensation judge.

In the Rhodes case, the Workers Compensation Judge did not believe the IRE physician. The judge refused to convert disability from total to partial, which would have limited how much longer the claimant could receive benefits. The carrier appealed to the Worker’s Compensation Appeal Board which upheld the Judge’s decision that the doctor was not credible. The carrier appealed to the Commonwealth Court which reversed the judge and the Board. The Commonwealth Court found that there was not sufficient evidence of record to allow the Workers Compensation Judge to disbelieve the IRE physician.

The Supreme Court accepted the appeal. There, the claimant argued that the burden of proof and burden of persuasion was held by the insurance company. He argued that the Workers Compensation Judge properly exercised her discretion in finding that she was not persuaded by the IRE physician. Both sides have filed briefs, and a decision will be rendered by the Court sometime later this year.

 

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