Blog 15 - Abes Baumann

Claims Against the King

Eric Abes on January 11, 2016

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.

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.

Top Workers’ Compensation Lawyers in PA

Eric Abes on August 21, 2015

Congratulations to three of the top workers’ compensation lawyers in PA.

Super Lawyers has named Tom Baumann to the top 100 Pennsylvania Super Lawyers for 2015. He has also been named the Best Lawyers 2016 Pittsburgh Worker’s Compensation Law/Claimant “Lawyer of the year.” Only a single lawyer in each practice area and each community is honored as a “Lawyer of the year.”

In addition, Ed Abes, Douglas Williams, and Tom Baumann have all been honored by Best Lawyers of America for their work in Workers’ Compensation. Less than 5% of the lawyers in the country receive this honor. Furthermore, all three lawyers have been named Super Lawyers in Workers’ Compensation by Philadelphia Magazine. Approximately 4% of Pennsylvania attorneys achieve this honor.

Ed Abes has been named to the Best Lawyers of America since 2004. He has also been a Pennsylvania Super Lawyer since 2004. Doug Williams has been listed in the Best Lawyers in America since 2010, and named a Pennsylvania Super Lawyer since 2013. Tom Baumann has been listed in Best Lawyers in America since 2005, and Pennsylvania Super Lawyers since 2005.

Abes Baumann congratulates it’s members on these latest honors. The firm believes these honors demonstrate the zeal and commitment it brings to representing injured workers in the Commonwealth of Pennsylvania. These are truly three of the top workers’ compensation lawyers in PA.

Did you drink the water at Lejeune?

Eric Abes on August 20, 2015

In 2012 Congress passed a law recognizing that the water at Camp Lejeune was contaminated from August 1, 1953 to December 31, 1987. This law allowed the VA to pay for medical treatment for certain health problems caused by the water. The law did not allow the VA to pay any service-connected compensation for these problems. The VA is now deciding whether it will recognize certain medical conditions as presumptively related to the contaminated water at the camp. This means that the VA will pay compensation for certain diseases if the veteran was at Camp Lejeune between 1953-1987. The veteran does not have to show an actual connection between the disease and the water. The diseases the VA is thinking of paying compensation for are: kidney cancer; angiosarcoma (a type of cancer) of the liver; and acute myelogenous leukemia.

It will take the VA time to decide if it will pay compensation for these diseases. However, a veteran with one of these diseases should not delay filing a claim. The date compensation begins will be decided by when the claim was filed. Even if the claim is filed and denied, the veteran can appeal. If the VA decides to pay compensation, the veteran will already have a claim in the system ensuring the earliest effective date can be assigned.

If the veteran has medical evidence that the disease was caused by the chemicals in the water, a claim can also be filed for any other disease that was caused by the water at the camp.

If this sounds confusing, it’s because it is. A qualified attorney can help you sift through the regulations. If you think a medical problem may be connected to your time in service, contact Abes Baumann and speak to an attorney today.