Tom Baumann Discusses Workers Compensation in Pittsburgh

Tom Baumann discusses his landmark workers compensation victory – Mary Ann Protz vs. Workers Compensation Appeal Board – and other aspects of treatment for work-related injuries with Workers Compensation Experts.

Baumann’s work in the Protz case voided the use of the Sixth Edition of the American Medical Association’s Guide to Evaluation of Permanent Injuries as a reason to reduce severely injured workers status – and benefits – from permanently disabled to partially disabled.

“Our state does a reasonable job compensating minimally and moderately impaired workers,” Baumann said, “but the severely impaired … NO!”

The Pennsylvania legislature undid the court decision a year later, though the impairment rating level to move people from permanent to partial disability was reduced from 50% to 35%.

“It was a partial victory,” Baumann said. “A lot of people who had their benefits unfairly

reduced, saw total disability benefits reinstated. With the subsequent bill reducing the level to 35% impairment, more injured workers qualified for total disability benefits and that was a positive development. You’re always trying to come up with novel ways to help your client and I think we did that.”

Baumann goes on to discuss signs workers should see that their case needs help from an attorney; what workers compensation attorneys actually do to make a difference in the case’s outcome; and why it’s worth having an attorney on your side in a workers compensation claim.

Find the complete article here: Workers Comp in Pittsburgh

Football Players –Seasonal Employees?

Recently, Abes Baumann participated in an en banc argument before the Commonwealth Court of Pennsylvania revisiting the precedent that professional football players are “seasonal employees”under the Pennsylvania Workers’ Compensation Act. In the case of Pittsburgh Steelers Sports, Inc. v. Workers’ Compensation Appeal Board (Trucks), Tom Baumann argued that Mr. Trucks signed a yearly contract with the Steelers and as a year-round employee was required to perform year-round obligations for the team. Therefore, Mr. Trucks workers’ compensation benefits should be based upon the contract he signed.

Below, theWorkers’ Compensation Judge and Workers’ Compensation Appeal Board ruled in Mr. Trucks favor, finding his workers’ compensation benefits should be based upon the contract he signed with the Steelers. The Steelers appealed arguing that Trucks was a “seasonal employee.” The Commonwealth Court seemed skeptical of the Steelers’ claim that the contract was seasonal and questioned both sides on what constituted an NFL season. It appears that the Commonwealth Court will now revisit prior cases finding that football players are “seasonal employees”

See, “NFL Players Aren’t ‘Seasonal Employee’ Pa. Court Told” in www.law360.com for a summary of the Commonwealth Court argument.

To Apply or Not Apply? Recent Developments in Labor Market Surveys

By: Douglas A. Williams

In Pennsylvania, when an injured worker receives workers’ compensation benefits, the insurance carrier may require the injured worker to meet with a vocational “expert.” After the meeting, the vocational expert will prepare a “labor market survey.” The insurance carrier may then use that document to try to reduce or stop the injured worker’s benefits.

A recent decision by the Pennsylvania Commonwealth Court, Smith v. WCAB (Supervalu Holdings Pa, LLC), A.3d, No. 796 C. D. 2016 (Pa. Cmwlth. 2018), addressed the parties’ rights and obligations when an insurance company files a petition based on a labor market survey. In that case, the Commonwealth Court held that “a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as the claimant (injured worker) is afforded a reasonable opportunity to apply for them.” Furthermore, the Court held that the employer, and not the injured worker, bears the burden of proving all elements of the modification petition, including whether or not jobs remain available for a reasonable time after being identified by a vocational expert. Nonetheless, the Court further concluded that, “if a claimant offers evidence about his or her experience in pursuing the jobs identified in the labor market survey, that evidence can be considered on the issue.”

Furthermore, the Court explained that evidence that the injured worker submitted an application – regardless of whether such evidence is submitted by the injured worker or the employer – does not establish that a prospective job was open and available at the time that the injured worker applied. However, the Court also held, “testimony of an in person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding (that a job was open and available).” Applying that rule of law to the Smith case, the Court concluded that the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) had mistakenly held that it was the injured worker’s burden to prove that all five jobs identified in the labor market survey were not open. Likewise, the Court held that the WCJ erred in concluding that the three jobs for which the injured worker had applied, but had not been interviewed, were open and available. No evidence existed to support that conclusion. However, the Court further determined that the WCJ had properly determined that the positions with AM Guard Security – for which the injured worker had applied and been interviewed– were properly utilized by the WCJ to modify the injured worker’s benefits. The Court stated that the fact that the employee had been interviewed supported the conclusion that the jobs were open and available. Thus, it was proper to modify the injured worker’s benefits based on an earning capacity calculated on the two, AM Guard Security jobs.

Prior to Smith, most attorneys who represent injured workers would advise their clients to promptly apply for all jobs identified in a Labor Market Survey. This may still be the best course of action, but doing so may now incur additional risk. If an injured worker applies for a job and is interviewed for that job, but is not hired, the mere fact of his interview can be used to satisfy the employer’s burden of proof. Without such evidence, the employer might not have been able to satisfy its burden of proof. To receive advice on the best course of action in your case, feel free to contact our firm.


Pain Can Be a Disability

By: Susan Paczak

The United States Court of Appeals for the Federal Circuit has made an important decision about how a veteran can prove they are entitled to compensation for a service-connected disability. In Saunders v. Wilkie, the Court decided that pain itself can be a disability.

To get VA compensation the Veteran must show:

  1. they had an injury or disease in service;
  2. they have a current disability; or
  3. a connection between the injury or disease in service.

In Saunders, the veteran was diagnosed with a knee condition in service. She showed that she had knee pain after service. A VA examiner said the knee pain after service was related to the knee condition diagnosed in service, and it caused her problems with daily activities and caused her to miss work. However, the VA examiner did not find a disease or injury to the knee, just the pain. The VA denied the claim.

The veteran appealed. The VA argued that since she had knee pain after service, but no diagnosed condition, she did not have a current disability for VA purposes. The Court overruled that finding ruling that pain by itself was a disability for VA purposes.

This decision does not mean that just because you have pain from an injury or disease in service, you will automatically receive benefits. You must show that you had a disease or injury diagnosed in service, that you now have pain, and that this pain affects your daily life, including your ability to work. In other words, you still need a medical provider to verify that the pain comes from the problem you had in service and how it affects you.

If you have any questions about how this decision may affect your claim, or any other claim related issues, please call and speak to one of our veteran’s benefits attorneys.

Please note the VA may decide to appeal this decision to the Supreme Court.

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.

First Post Protz IRE Decision is Helpful

By: Thomas C. Baumann

The Commonwealth Court had offered its first interpretation of Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II) in Thompson v. WCAB (Exelon Corporation) No. 1227 C.D. 2016. This decision is helpful to individuals representing claimants.

Debra Thompson underwent an Impairment Rating Evaluation in October of 2005. The examining physician found an impairment rating of 23%. Thompson then received a Notice of Change of Workers’ Compensation Disability Status changing her compensation from total disability to partial.

Litigation commenced between the parties in 2010 with the filing of a Modification and Suspension Petition by Employer. In 2011, the Claimant filed a Review Petition seeking to review the IRE determination because she had not reached maximum medical improvement. The Judge consolidated the petitions and found that the employer was entitled to modify the Claimant’s benefits from total disability to partial disability. However, the Judge changed the effective date of the Modification Petition to a later date than that noted in the Notice of Change of Status.

Both sides appealed to the Workers’ Compensation Appeal Board. The Appeal Board addressed only the issue of whether the claimant was time-barred from challenging her disability status. The Board felt that she was time-barred, as she had not filed her appeal within the 60 day period following her receipt of the Notice of Change of Status.

Claimant appealed to the Commonwealth Court, but did not raise any of the constitutional issues associated with the Protz decision. Instead, one of the main issues was whether or not the Claimant was deprived of due process through the use of the Notice of Change of Status. In Thompson I, the court held that the Claimant was deprived of her due process right due to the inadequacy of the language in the Notice of Change of Status. The Commonwealth Court remanded to the Appeal Board at that point. In a decision dated July 18, 2016, the Appeal Board determined that an automatic modification of the Claimant’s benefits under Section 306 (a.2) of the Workers’ Compensation Act was appropriate and ordered the benefits to be modified from total to partial disability, effective August 30, 2005. The Claimant had received severance benefits after the cessation of employment in lieu of workers’ compensation benefits. The appeal board determined that this period of benefits did not count toward the receipt of total disability. Therefore, the employer’s requests for an Impairment Rating Examination was timely.

The Claimant then appealed to the Commonwealth Court. For the first time, she raised the issue of whether the Workers’ Compensation Judge erred in modifying the claimant’s benefits based on that IRE performed under the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment. At the time of filing the appeal to the Commonwealth Court in Thompson II, Protz I had been decided by the Commonwealth Court. The Employer did not argue that the use of the Fifth Edition of the guides was not unconstitutional. It argued that Thompson failed to timely raise the constitutional issue. In other words, this is the waiver issue put forth by the defense bar. Footnote Four of the decision is confusing, yet instructive. It notes there, “Because this matter began before Protz I and Protz II were decided and this appeal implicates the validity of Section 306 (a.2)(1) of the Act, Claimant raised this issue at the first opportunity to do so. See Pa. R.A.P. 1551(a). Thus, Claimant is not precluded from raising the issue of the improper use of the Fifth Edition of the AMA guides on appeal.”

This decision potentially represents a mortal blow to the waiver issues being raised and/or contemplated by the defense bar. While the reasoning of the court is not especially developed in the above-mentioned language, this is a case all practitioners must use in dealing with the Protz case and waiver issues.


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