Pennsylvania Supreme Court Rules in Favor of Abes Baumann Client in Landmark Workers’ Compensation Case

Ruling Expected to Help Thousands of Injured Workers Secure Greater Disability Benefits

The Pennsylvania Supreme Court last week declared a key provision in Pennsylvania’s Workers’ Compensation Act “unconstitutional in its entirety” in its ruling on the case Protz v. Workers’ Compensation Appeal Board.

“This is the most significant workers’ compensation ruling in Pennsylvania in the past 30 years,” said Thomas C. Baumann of Pittsburgh firm Abes Baumann, P.C., attorney for the disabled worker who was the claimant in the case. “It could open the door for thousands of severely injured workers to receive benefits more accurately aligned with the extent of their injuries.”

“We are thrilled that Mary Ann Protz, whom experts have determined is unable to work due to her injuries, will now receive the full benefits she deserves for as long as she needs them,” Baumann added.

Protz had sustained a serious knee injury on the job that led to knee replacement surgery and subsequent reflex sympathetic dystrophy. Although an expert hired by the defendant’s insurance company found Protz “unable to perform any job that exists in the local or national economy,” Section 306(a2) of the Workers’ Compensation Act requires the Bureau of Workers’ Compensation to utilize American Medical Association (AMA) guidelines in its Impairment Ratings Evaluations (IRE) to determine level of need. These guidelines set Protz’s level of disability at only 40%, capping her benefits.

“Commonwealth Court ruled and the Supreme Court has now affirmed that Section 306(a2), which delegates decision-making authority to the American Medical Association rather than the legislature, violates the non-delegation doctrine and is unconstitutional,” explained Baumann, who has been seeking justice for Protz since 2011.

The use of AMA guidelines in IREs has created hardships similar to Protz’s for injured workers not only in Pennsylvania, but across this United States. “This ruling likely will usher in a new approach to ensuring benefit levels are accurately aligned with individual workers’ injuries,” Baumann noted. “In addition to future cases, injured workers already on partial disability can consider filing petitions for total disability status,” Baumann said.

Abes Baumann was founded in 1979 as a workers’ compensation firm. Today, Abes Baumann has a reputation for making every client the priority across disciplines including workers’ compensation, veterans’ benefits, personal injury, and pro athletes.

For more information contact:

Thomas C. Baumann, Esq., 412-389-7403


Or visit: abesbaumann.com

The Consumption of Alcohol Is Not Always Admissible at Trial

By: Roger D. Horgan

It is perfectly legal for a driver over the age of 21 years to drink and drive in the Commonwealth of Pennsylvania! That may come as a surprise to people, given the popular admonishment, “Don’t Drink and Drive!” In reality, there is a prohibition only against driving while under the influence of alcohol to such a degree that it renders the driver incapable of safe driving. Impaired driving may be proven by behavior such as swaying, slurred speech, etc., coupled with a police officer’s opinion of intoxication. It can also be proven by testing the driver’s blood alcohol level. In Pennsylvania, the blood alcohol limit is .08%. That is the criminal side.

What happens in a civil lawsuit when the injured party, the Plaintiff, has consumed alcohol? One might think that proof of the consumption of any alcohol whatsoever should be admissible into evidence. It should be left up to the jury as to what weight should be placed upon the consumption of minor amounts of alcohol, right? Historically, that has not been the case. Pennsylvania courts have ruled that in the absence of proof of alcohol induced impairment, the mention of alcohol consumption is too prejudicial to allow a jury to hear. In 1956, the Pennsylvania Supreme Court said, “While proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.”

The interplay of the factors surrounding alcohol as evidence in an auto accident case is demonstrated in a recent Pennsylvania Superior Court case of Rohe v. Vinson in 2016. Mr. Rohe was a motorcyclist who was injured in an accident involving a truck which turned into his lane of travel. Mr. Rohe admitted to having drunk several beers over the course of an afternoon of riding and dining, but denied that he was intoxicated. He asked the trial court to prevent any evidence of his consumption of alcohol from being presented to the jury. The trial court denied that request, and Rohe lost his claim for damages.

He appealed to the Superior Court, which reversed the decision of the trial court, and ordered a new trial at which evidence of Rohe’s alcohol consumption will not be presented to the jury. The Superior Court concluded that the defendant had no viable proof that Mr. Rohe was unfit to drive as the result of alcohol consumption. The record established that none of the individuals with whom Rohe interacted after the accident, including a State Trooper, observed anything in Rohe’s demeanor to indicate that he was under the influence of alcohol. Further, his blood alcohol level as tested two hours after the accident was found to be below the state limit of .08%, at .0706%. The Court also ruled that the defendant’s efforts to calculate the blood level at the time of driving by way of the expert opinion of a toxicologist amounted to no more than speculation, and that the opinion should not have been admitted. The Court was critical of the expert’s methodology, and found the opinion to be too unreliable to have been submitted to the jury.

While one is best served refraining from driving after consuming any alcohol, the law remains that evidence of alcohol is only permitted where it can be shown that the alcohol the driver consumed rendered him unable to drive safely.

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

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 workerscompensation insurance, the Fund is NOT obligated to provide compensationfrom the date of the injury, but rather from the date the Fund received notice of the claim. The Court stated that compensationincludes both wage loss benefits and medical benefits.

In this recent case, the WorkersCompensation Judge (WCJ) had granted the injured workers Claim Petition against the Fund for both wage loss and medical benefits from the date of the worker’s injury. The employer appealed the WCJs decision to the WorkersCompensation Appeal Board (WCAB). The WCAB agreed with the WCJs decision to grant medical benefits from the time of the workers injury, but it limited the workers receipt of wage loss benefits to the date that the worker had notified the Fund of the employers lack of workerscompensation 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 WorkersCompensation Act within 45 days after he knew the employer was uninsured, he could only receive workerscompensation benefits for wage loss AND medical expenses incurred after the date notice was given to the Fund. In other words, because the workers 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 workerscompensation benefits.

Who Decides if a Doctor is Lying?

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.


Claims Against the King

By: Roger D. Horgan

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)

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.


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