By: Roger D. Horgan

A careless person or business causes an accident. The accident leads to injuries and medical expenses. An insurance company or other type of health plan will pay expenses for the victim. But then seeks reimbursement if the victim recovers money. Certainly, the party that pays the medical expenses should be made whole every bit as much as the victim who suffers the injuries. What could be simpler?

However, health insurers pay medical expenses that arise from accidents with and without someone at fault. In most situations there is no expectation of repayment. Nevertheless, virtually every health plan includes language permitting them to recover what they have paid in cases where the insured obtains a recovery from a negligent party.

What happens in the situation where the person at fault has no assets, no insurance, or inadequate insurance? Shouldn’t the law require the available funds to be divided evenly between the accident victim and the health insurer? What happens when the case against the negligent party is not perfect, and the situation calls for a compromise? Is the health insurer compelled to join in the settlement of the case?

Generally speaking, the answer to these questions is no.

The primary example of this lack of equity is seen in the case of self-funded health plans established by employers. Most of these are written with language which permits the plan to receive 100% of what it has paid out. This is true whether or not the accident victim recovers any money. The insurers are not even required to reduce their claims to account for the costs of litigation, including attorney’s fees. The courts enforce that language literally, whether or not doing so will leave the accident victim without any compensation.

What about when the accident occurs during the course and scope of employment? If a truck driver is injured by the negligence of another driver, his employer will pay workers’ compensation benefits. The payment of those benefits creates a lien against the negligent driver. The employer is given first preference in recovery of whatever funds are available. The injured party (the employee), may be left with no recovery at all.

Liens arising from payment of medical expenses by Medicare, Medicaid, and private insurance plans also create similar problems.

There is no perfect answer to the problems created by liens and subrogation, but we handle them on a case-by-case basis. We recommend purchasing as much underinsured motorist coverage as possible in your automobile insurance policy. Purchasing private disability policies may also provide relief.

Abes Baumann and other plaintiffs’ attorneys, fight the battle within the battle. We pursue every legitimate avenue to reduce or eliminate liens and undertake tough negotiations to obtain reductions or waivers of the liens where possible. Despite the lopsided playing field, we may be able to resolve liens in a manner that is acceptable to our clients and the lienholders alike. If you find yourself in a similar situation, please call Abes Baumann for advice.

By: Sandra Weigel Kokal

Generally, if you are injured on your commute to or from work, you are not eligible under the PA Workers’ Compensation Act for workers’ compensation benefits. This is generally known as the “Coming and Going Rule.” However, there are four exceptions to this rule:

1. The employment contract includes transportation to or from work;

2. The employee has no fixed place of work;

3. The employee is on a special assignment or mission for the employer; or

4. Special circumstances are such that the employee was furthering the business of the employer.

The Commonwealth Court of Pennsylvania addressed these exceptions in a recent case where the employee was seriously injured in a car accident on his way to work. As a result of his injuries, he was unable to return to his job as Director of Maintenance, a position where he was required to respond to all emergencies. If an emergency occurred on a day he was off, the employer gave him “comp time.” The “comp time” would run from when he was called to work until he arrived back home.

The employee in this case was sick on the morning of his car accident. He was in the process of calling off work sick when he received a phone call from his employer telling him he needed to come in to handle an emergency with one of the security cameras. Employer told him there was no one else available to handle the emergency. The car accident occurred on his was in to handle the emergency.

The employer denied workers’ comp benefits, taking the position he was hurt on his commute. The Workers’ Compensation Judge found otherwise and granted his benefits finding that employee was on a special mission for employer – “Claimant was sick…, and except for the special need of the Employer…Claimant would not have gone to work.” The Workers’ Compensation Appeal Board upheld this decision but called it a “special circumstance” exception.

The Commonwealth Court agreed. The Court found that the only reason Claimant went in to work that day was to help Employer with an emergency. He was entitled to “comp time” which covered his travel time. Workers’ compensation benefits were properly awarded.

Cases involving injuries sustained commuting to work are always difficult and are dependent on the specific facts of each individual case. Consult one of our attorneys to discuss the facts of your case.

By: James R. Burn, Jr.

If you have filed a claim for workers’ compensation benefits or you are receiving benefits for lost wages or medical care, workers’ compensation insurance carriers will frequently “check up on you” by sending you forms for updated information. These forms ask if you are receiving any other benefits or working.

As with any type of document, these forms need to be filled out truthfully and accurately. Anyone receiving these documents should avoid entering any information which could be perceived as an attempt to mislead the insurance company.

These forms state quite clearly that fraudulent, inaccurate, or misleading information could be used against the injured worker.

Recently, an injured worker was receiving a salary while receiving workers’ compensation benefits at the same time. He misled the insurance company and withheld this information. Not only was he charged with a crime, but he was also ordered to pay restitution in the amount of $80,000.

Workers’ compensation fraud is what makes it difficult for us in our battles with the insurance company. The insurance companies are of a mindset of suspicion on all claims even the legitimate claims of our hard-working clients.

If you receive any of these forms, we would be happy to discuss them with you. We urge you to share all relevant and accurate information with your insurance carrier to avoid any misunderstandings or problems. Abes Baumann attorneys can help you with your workers’ compensation problems in Pennsylvania.

Failure to have workers’ compensation insurance is a crime in Pennsylvania; one which the state does prosecute, as a business owner found out. George Limberiou of Bern Township pleaded guilty to charges stemming from his failure to have insurance from 2009 to 2012 for Riveredge, his restaurant and banquet facility. He was sentenced to seven years of probation and ordered to pay $111,000.00 in restitution. As is often the case, no one found out about his lack of insurance until one of his workers was injured on the job.

If you suspect your employer does not have insurance, be sure to protect yourself. If you are injured, contact an attorney immediately, even if your employer says they will take care of everything.

By: Eric D. Abes

The Veterans Administration recently announced an effort to review and potentially upgrade the discharge status of Veterans who may have been discharged improperly. Many times when a soldier suffers from PTSD, the effects of a sexual assault, addiction, or other psychological traumas, they are booted out of the military for misconduct, instead of receiving the help and benefits they deserve.

The military occasionally breaks someone but refuses to take responsibility for putting them back together. Now the VA is working to fix that problem. The 2017 National Defense Authorization Act contains bipartisan language to help Veterans in these circumstances.

If you suffer from PTSD, are a survivor of a sexual assault, or any other psychological trauma, contact Abes Baumann for help getting the benefits you earned. You never have to go it alone.

By: Susan Paczak

The Veterans Administration periodically reviews its list of Agent Orange disease to decide if new diseases should be added. If a disease is added, a veteran who was exposed to Agent Orange will be eligible for benefits for that disease. The VA is currently considering adding hypertension, also known as high blood pressure to the list. Additionally, based on scientific evidence, various veteran groups are pushing he VA to add bladder cancer and certain thyroid conditions.

If disease are added, veterans can file claims for those conditions. If the veteran was previously denied, that claim can be reopened, with veterans receiving benefits back to the date of their initial application.

The criteria for obtaining benefits is complicated. Don’t try to navigate the process alone. Contact an Abes Baumann attorney for help.