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
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.
Employee or Independent Contractor?
Whether you are considered an employee or an independent contractor will determine whether you are entitled to receive workers’ compensation benefits. To determine your status these terms are defined under the Pennsylvania Workers’ Compensation Act.
An employee is considered a servant defined as a person that performs services for another for valuable consideration, usually defined as pay. In addition, if:
1. the manner and means of performing the work are controlled by the master (or employer)
2. the tools needed to perform the work are supplied by the master, and
3. taxes are withheld,
the servant is considered an employee of the master. An independent contractor is not an employee because of the absence of this master/servant relationship.
There are a number of factors the workers’ compensation judge will consider in determining whether you are an independent contractor or an employee. These factors include:
1. the terms of the agreement between you and the employer;
2. the nature of the work;
3. the skill required for performance of the work;
4. whether it is a distinct occupation or business;
5. who provides the tools to perform the work;
6. whether the work is part of the employer’s regular business; and
7. the right to terminate the employment at any time.
Furthermore, in the construction industry there is the Construction Workplace Misclassification Act which must be looked at to determine whether one is an employee or independent contractor. This Act provides that an individual who performs work in the construction industry for pay is an independent contractor if:
1. the individual has a written contract to perform such services;
2. the individual is free from control or direction over the performance of such work; and
3. as to these services, the individual is customarily engaged in such trade, occupation or business.
As you can see, there is a lot to consider in determining if you are an employee or independent contractor. It is important to speak with an attorney to determine your status and your entitlement to workers’ compensation benefits if you are injured performing your job.
If you have questions regarding workers’ compensation benefits, contact an attorney at Abes Baumann.
Medical Marijuana and the Injured Worker
In April of 2016, the Pennsylvania Legislature passed the Medical Marijuana Act (or MMA). As many readers are probably aware, the MMA will eventually permit doctors in PA to prescribe marijuana for patients suffering from problems that including cancer, psychiatric conditions, chronic pain, and a wide variety of neurological disorders, among others. The MMA has not yet been fully implemented, but likely will be within the next year.
Injured workers may wonder whether or not workers’ compensation insurance carriers will be obligated to pay for medical marijuana. The MMA provides that, “Nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” On the other hand, the PA Workers’ Compensation Act provides that workers’ compensation insurance carriers must pay for all medical treatment that is reasonable, necessary, and causally related to the work injury. Thus, it appears that there is a conflict between the MMA and the Workers’ Compensation Act. This conflict will likely have to be resolved by the PA appellate courts.
Of course, it is certainly possible that workers’ compensation insurance carriers won’t always refuse to authorize medical marijuana. Indeed, in many cases, medical marijuana may be a cheaper, less addictive, treatment option than more expensive, narcotic medications. In those cases, medical marijuana may be the best option for both the injured worker and the workers’ compensation carrier.
Injured workers–particularly those who work for employers who require drug tests and prohibit the use of marijuana–may wonder how the use of medical marijuana will affect their employment. The MMA does include language that prohibits an employer from terminating or in any way discriminating against workers solely because those workers have been prescribed and use medical marijuana. Confusingly, though, the MMA does allow an employer to discipline a worker for poor performance, even if that poor performance is related to the use of medical marijuana.
If you are an injured worker whose doctor is considering prescribing medical marijuana, contact an attorney at Abes Baumann to further discuss your rights under the PA Workers’ Compensation Act.