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.

In 2016, Abes Baumann celebrated its 37th year helping injured workers and disabled veterans get the benefits they deserve. We welcomed more than a few new staffers. Catherine Balsamo and Alexis Glod head up the front of the office, welcoming clients and guests, performing intakes, and keeping things running smoothly. New secretaries Robin Hale and Sharon Driscoll have added to the efficiency and procedures of the office. Kathi Oles came on board to help our Veterans Benefits practice and has proved a seamless fit as a legal assistant. We also were fortunate to find an excellent new office manager in Holly Packy, who, among learning the procedures and tasks of her new job, also found the time to plan and coordinate a sprucing up of our office space.

We were fortunate to be able to sponsor a few charity events this year including Barbells for Boobs benefiting breast cancer and a couple of hard working veterans’ charities, such as The Ancient Order of Hibernians Veteran’s Affairs Committee.

Tom Baumann appeared before the Pennsylvania Supreme Court to argue what could possibly be a game changing case concerning the legislature’s ability to delegate its authority.

Edward Abes received the Irvin Stander Memorial Award from the Pennsylvania Bar Association. This award is akin to a lifetime achievement award. We could not be prouder of Ed for this accomplishment.

As you can see it was an exciting 37th year here. And we look forward to another 37 serving you.

By: Edward Jaffee Abes

A final decision of a Judge is not final. Decisions can be appealed. In Pennsylvania Workers’ Compensation cases, the following can be appealed:

1. the workers’ compensation judge’s decision was not in conformity with the terms of the Workers’ Compensation Act—meaning the Judge did not follow the law

2. the judge committed an error of law—again meaning the Judge did not follow the law

3. the findings of fact made by the judge were not supported by sufficient competent evidence—there was insufficient evidence to support the decision

4. the findings of fact made by the judge were obtained by fraud, coercion or any other improper conduct of any party of interest

5. the judge’s findings of fact and conclusions of law did not clearly and concisely explain the rationale for the decision—the judge did not issue a “reasoned decision” which an appellate court could review.

If your attorney finds that any one of these criteria have been met, the attorney may file an appeal with the Workers’ Compensation Appeal Board. This appeal must be filed within 20 days of the date of the judge’s decision.

After the appeal is filed an oral argument will be scheduled. This argument is not like the hearings held before the judge. No evidence is presented at these hearings. The attorney who filed the appeal will file a legal brief which explains why the judge’s decision was in error. The other side may submit their own brief on the case. After the argument and once the briefs are filed, the Board will issue its decision. This is not a quick process. It may take up to a year for the Board to make a decision.

Either side may file an appeal of the Board’s decision with the Commonwealth Court of Pennsylvania. Your attorney will discuss the rules for such an appeal to see if there is a valid reason for further appeals.

By: Sandra Weigel Kokal

In an earlier blog, it was discussed that the “Bunkhouse Rule” from 1924 was revived in a 2014 workers’ compensation case. The “bunkhouse rule” provides that, if an employee is required to live on the employer’s premises, the employee should be compensated for injuries that might happen during the employee’s leisure time on the employer’s property.

In the 2014 case that revived this rule, a mother was employed as a health care worker for her adult son under a state funded program. The mother provided attendant care for her son at her home in exchange for hourly wages. The son needed care due to significant medical issues, including the amputation of his leg. The mother worked 40 hours Monday thru Friday and 12 hours per day on Saturday and Sundays. While the mother was sleeping one evening, the son came into her bedroom and attacked her with a kitchen knife. She suffered serious physical injuries and post-traumatic stress disorder as a result of the attack.

The Workers’ Compensation Judge awarded her workers’ compensation benefits. The Commonwealth Court affirmed the award of benefits invoking the “bunkhouse rule.” Now, a divided Supreme Court of Pennsylvania has disagreed. The majority of the Supreme Court reversed the award of benefits stating that the mother had not shown her injuries were within the type of harm the Legislature intended to provide compensation for under the Workers’ Compensation Act.

The Supreme Court agreed with the dissenting Judge on the Commonwealth Court who had stated it “defied logic” to find that this case involved a work related injury. The Supreme Court acknowledged the remedial nature of the Workers’ Compensation Act which is intended to benefit workers, but stated the Act was not intended to make the employer an “insurer of its employees’ lives and health.” So since, the mother was sleeping when she was attacked by her son, her injuries were not sustained in the course of her employment.

By: Roger D. Horgan

First responders like police, fire, and EMS crew’s respond to emergencies, so do ordinary citizens, often at great personal risk. What happens when these first responders are injured? Typically, their remedies are limited to workers compensation and health insurance. However, when the emergency is created by someone’s negligence, the first responders are permitted to recover damages from that negligent party.

If a rescuer responds to an auto accident caused by the negligence of one of the drivers, and is injured when one of the vehicles explodes, the rescuer will be able to recover damages from the negligent driver. It is reasonable to anticipate that there will be rescue efforts made following an accident caused by the negligence of a driver. It is only right that the person who created the emergency be held liable for damages sustained by those responding to the emergency.

However, there are limits to everything, including the rescue doctrine. A Pennsylvania Supreme Court case known as Bole v. Erie Ins. Exch., 616 Pa. 479, 50 A.3d 1256 (Pa. 2012) demonstrates those limits. The court held that the negligent party would be responsible for all reasonably anticipated dangers to rescuers, but not for dangers that were so unusual that they could not have been reasonably anticipated. In this case, Ronald Bole, a volunteer firefighter, was seriously injured when a bridge on his own property collapsed as he was driving to the firehouse to respond to an accident caused by a negligent driver. He intended to go first to the firehouse and then to the accident scene. The Court found that the collapse of the bridge on Mr. Bole’s own property was so unusual, so unexpected, and so remote from the accident itself that it had to be considered to be a “superseding cause” for which the negligent driver could not be held responsible.

The Court explained, “The rescue doctrine may allow recovery if the rescuer was struck by a car while driving to the scene, for that is reasonably foreseeable — it would not allow recovery if the rescuer was struck by a meteor as that is not reasonably foreseeable.”

At Abes Baumann, we pride ourselves on helping injured first responders and disabled veterans.

By: James R. Burn, Jr.

In recent years, many large corporations and insurance companies have been conspiring to write legislation—state-by-state—that would allow for employers to “opt out” of state workers’ compensation. These opt out laws would allow employers to write their own workers’ compensation laws.

Workers’ compensation laws across the country were written to protect injured workers’ rights and access to due process. Some states’ laws are better than others, however, because some states have handed over the ability to write Workers’ Compensation laws to the companies. This is like giving the fox the keys to the henhouse.

Early attempts in the State of Oklahoma created an incentive for companies and insurance companies to take these laws to other states in order to see if they could enact them, further restricting employee’s rights across the United States.

Studies clearly showed that the types of laws which employers were writing were incredibly restrictive on employees. The plans normally showed much lower benefits and fewer rights for the injured worker, which directly contradicts the humanitarian purposes of most workers’ compensation acts including the act here in Pennsylvania.

States have begun to strike down these restrictive and oppressive laws. The most recent court to do so was the Supreme Court of the State of Oklahoma, one of the states where these attempts began.

Please know that, despite recent State Supreme Court victories which is struck down such oppressive laws, we are fighting an enemy with unlimited financial resources. They will continue to attempt to find ways to write legislation and create difficulties, roadblocks, and obstacles for injured workers to get to just compensation they deserve. This firm will continue to fight with others in Pennsylvania and across the nation to prevent that from happening.