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Abes Baumann Attorney Argues to Commonwealth Court

Eric Abes on May 15, 2015

Recently, the law firm of Abes Baumann participated in an en banc argument before the Commonwealth Court involving a challenge to the constitutionality of a portion of the Pennsylvania Workers’ Compensation Act. In the case of Protz vs. WCAB, Tom Baumann argued that the use of the American Medical Association Guides to the Evaluation of Permanent Impairment to determine whether or not an injured worker converts from total disability to partial disability of Workers’ Compensation benefits constituted an unconstitutional delegation of authority by the Pennsylvania State Legislature.

If an injured worker received 104 weeks of total disability benefits, the employer/insurance carrier can compel the injured worker to submit to a rating examination. The injured workers’ whole body impairment is evaluated under the AMA Guides. If the whole body impairment comes out as less than 50%, compensation can be converted from total disability to partial disability merely by sending a form to the Claimant if the examination is requested within a certain time frame. The AMA Guidelines change over time, being reissued approximately every seven (7) years. When the State Legislature amended the Workers’ Compensation Act in 1996 to mandate use of the Guides, the 4th Edition of the Guides was in effect. The language of the law stated that when an examination is performed, it shall be done under the most recent version of the Guides. Commonwealth Court has interpreted that to mean that the examining physician should use the Guides that are in effect at the time of the evaluation not at the time the law was originally passed. Since the Guides change without any input from anyone affected by the Guides, including injured workers and employers and insurance companies, Abes Baumann argued that this was unconstitutional as the legislature could not adopt the future work product of the AMA sight unseen.

The Commonwealth Court has taken significant interest in the argument as it scheduled an en banc argument meaning 7 of the 13 Judges sitting on the Court participated in oral argument. No matter what happens, the issue is likely to end up at the Pennsylvania Supreme Court. Interested readers may watch the video of the oral argument here.

Judicial Elections

Eric Abes on February 3, 2015

Along with the election of local judges and intermediate appellate Judges, the 2015 election features openings on three of the seven seats on the Pennsylvania Supreme Court. It is unprecedented that three of seven seats are open in one election, and the stakes are high. Control of the Court is up for grabs.

This situation has developed because one Justice was removed from office after having been convicted of election-related crime, while another resigned under the cloud of inappropriate communications and the use of public property in that process. The last seat is up due to the retirement of another Justice.

The fact that control of the Court is at stake has generated a great deal of interest in this election. In addition, the need to replace two Justices who departed under such tawdry circumstances has again brought to the forefront the question of whether it is better to elect or appoint judges. Pennsylvania judges are elected. Federal judges are appointed. Other states vary. 

The knock against elected judges is that the public is likely to elect people who may be great, partisan politicians, but who are ill-suited to serve in what is supposed to be the neutral and dispassionate role of a judge. The judicial candidate must wade through the same political system as any other candidate for office, but be expected to be that special sort of person who can put his or her personal views aside, and decide cases solely upon the facts and the law. That is difficult enough for any person to do, let alone one who has sprung from the ideological, partisan and dealmaking world of politics.

On the plus side is the belief that the elected judge may be closer to the people, and that his or her serving as judge derived from a fair and open election rather than as the result of backroom, undisclosed deals which were made by politicians.

The argument against the appointment of judges is just that. It always comes down to politics in one way or another. Consider that many people believe that the most enduring thing that a President of the United States achieves while in office is the appointment of federal judges from his own party, who are expected to reflect the principles of that party in future judicial decisions. If that is how the appointed system really works, what is the point? If the public is left with judges who put their personal beliefs above their obligation to serve as impartial and disinterested arbiters, how could this system suit a representative democracy such as the United States?

On the plus side of appointed judges, is the fact that the credentials and background of a candidate for appointment as a judge are subject to public scrutiny during the appointment process. It is argued that appointing judges results in a bench composed of more academic and professional jurists. Election results tend to be related to party affiliation or name recognition, neither of which relates to a candidate’s qualifications, character, or ability to serve as a judge. In an appointment system there is the hope that those best suited to serve are appointed.

Things do not always turn out as expected when it comes to judges. American history is replete with examples of judges who have surprised and disappointed those who appointed them. The most notable are probably Chief Justice of the Supreme Court Earl Warren, who was at the helm during a period of great change, and his latest successor, Chief Justice John Roberts, who cast the deciding vote upholding Obamacare. Both of these Judges sorely disappointed the Presidents who appointed them. The courts of Pennsylvania are full of hard working, honest, elected judges who have taken their oaths seriously, who dispense justice in accordance with the law, and who have grown into the office they hold notwithstanding the fact that they had to cross the quagmire of Pennsylvania elective politics to achieve it.

Most judges, like most lawyers, doctors and other professions, seek the post for all of the right reasons, and they perform the job admirably once they have it. Most judges, whether appointed or elected, possess the integrity and talent to do the job properly and well.
Since we are in a state in which judges are elected, it is incumbent upon the voters to familiarize themselves with the candidates before they go to the polling place. Obtaining information about candidates is far easier today than in the past. So, do a little homework, and regardless of your political affiliation, take the time to vote in this and all elections.

Don’t Give Up

Eric Abes on January 20, 2015

In the twenty-five years that I have practiced Social Security Disability, one of the most important things that I advise clients or potential clients is not to give up at the initial level. Most claims at the initial level are denied. It is amazing to me that many of these clients or potential clients needed to meet with a lawyer in the first place. What concerns me is that, for every one client with whom we meet, there are probably at least five other claimants with valid claims who throw their hands up and choose to do nothing.

If you have filed a Social Security Disability claim or an SSI claim and you have been denied at Level 1, do not give up. You have sixty days to appeal. I am prepared to meet with you and review your claim to see what steps we can take to ensure that you receive the Social Security Disability or SSI benefits that you deserve.

120 and 3—The Two Most Important Numbers in Workers’ Compensation

Eric Abes on January 9, 2015

Everyone makes mistakes. Thousands throughout our lives. Most end up causing little to no harm. These mistakes are often beneficial as the damage caused is outweighed by the lesson learned. Some mistakes are more severe. Some can never be undone. In Pennsylvania, if you are injured at work, 120 days and 3 years are two mistakes that cannot be fixed.

If you are injured at work in Pennsylvania, you have 120 days to report the injury to your employer. If you do not report the injury to your employer within this period, you will likely not be able to obtain any Workers’ Compensation benefits.

Reporting an injury is usually simple. You are at work, you slip and fall and break your wrist. You tell your boss what happened and that you are going to the ER. You just satisfied notice. In order to be safe, never assume that just because your boss was there when you got hurt that she knows you are hurt. Make sure you tell her. Email is a great way to ensure you satisfied notice, and it gives you a record of when you provided notice and what you said.

Besides 120 days to notify your employer of an injury, you have 3 years from the date of injury to file a claim with the Pennsylvania Bureau of Workers’ Compensation. This is called a Statute of Limitations. This is a fancy way of saying there is a limit to how long you have to pursue some legal action. This is to ensure that things are done without delay; records will be easily obtainable; and witnesses’ memories are fresh.

The best thing you can do to protect yourself is to contact Abes Baumann as soon as you are injured. That very day. There is no charge to talk. A few minutes of talk now, can save you a lifetime of pain later.

Independent Medical Examinations

Eric Abes on January 9, 2015

Many recipients of Workers’ Compensation benefits will be required to submit from time to time to a so-called Independent Medical Examination with a physician selected by the Employer/Insurance Carrier. Injured workers should understand that the examinations are in no way independent. Many of the regular providers of these examinations are paid hundreds of thousands of dollars a year by insurance companies to conduct these evaluations. Given the lucrative nature of such a practice, the providers obviously know where their bread is buttered.

Injured workers receiving Workers’ Compensation benefits can protect themselves when they attend such exams. Each worker should time the examination, including how much time they actually spend in the room with the doctor. The worker should, immediately upon the conclusion of the examination, make notes regarding what happened during the exam. After receiving a copy of the report of the examination, the workers should compare the information in the report to the note taken following the exam. He should then discuss any differences between the two with his counsel.

Under Pennsylvania Law an injured worker can have a health care provider of his or her own choosing present at the insurance evaluation. As defined under the Pennsylvania Workers’ Compensation Act, this can include a nurse. If the injured worker has a nurse in his or her family, the worker would be wise to ask that person to attend with them. On occasion, with some of the more egregious providers of insurance medical exams, our firm will hire nurses to attend the examination.

The so-called Independent Medical Examination is one of the pressure points placed on injured workers. If the worker has not talked to an attorney before such an exam is scheduled, our firm recommends a call be placed at that time.

“Idiopathic” Falls Are Compensable in PA

Eric Abes on January 5, 2015

“Idiopathic” in medical terms means “unknown cause.”  But in the workers’ compensation field, “idiopathic” means “unique to the individual.”

Pennsylvania is one of the few states that find an employee who suffers an “idiopathic fall” while on the job, can collect PA workers’ compensation benefits.   The two leading cases in PA that granted benefits for an “idiopathic fall” did not have similar fact patterns. 

In one case, the employee fell while on duty at her work station.  She sustained a serious head injury when her head struck the linoleum floor.  As a result of the fall,  she suffered frequent seizures and underwent two brain surgeries.  It was unclear how the fall occurred: if the employee had tripped or if she had fainted.  The Court held that it did not matter.  The Court accepted the conclusion that the employee’s head injury, resulting from her fall at work, caused uncontrollable seizures that rendered her disabled.  Workers’ compensation benefits were properly granted. 

In another leading case, the employee had an epileptic seizure while driving his car in his employer’s parking lot prior to the start of his workday.  The employee lost control of his car and crashed into a few cars before hitting a concrete abutment on employer’s premises.  He was killed in this tragic accident.  The PA Court found this accident compensable and the employee’s widow was awarded workers’ compensation benefits.  

Pennsylvania is in the minority in granting workers’ compensation benefits for idiopathic falls.  A majority of the states hold that if a employee has a personal condition that causes the employee to lose consciousness and faint or fall, the resulting injuries are compensable only if the work conditions contributed to the injuries sustained.  

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