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

tcb@abesbaumann.com

Or visit: abesbaumann.com

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.

The Phantom Insurance Company

By: Roger D. Horgan

We all know that one must have insurance to drive the car. However, when you get in an accident, the other guy might only have minimal insurance. Therefore, Pennsylvania residents have the option of purchasing under-insured motorist coverage (UIM coverage). This coverage is designed to permit you to recover more than the limit of the other guy’s insurance. Frequently an accident victim pursues two claims at once: one against the responsible driver and another against his own insurance company for UIM coverage.

This allows the courts to address those suits together. It also creates certain complications which arise from judicial tradition and Rule 411 of the Rules of Civil Procedure, prohibiting the mention of liability insurance to a jury. This prohibition requires the jury to focus on the facts of the case rather than upon the amount of insurance coverage available to satisfy the claim.

This creates an inherent difficulty when the case is tried in front of a jury. The insurance companies have successfully argued that the jury considering the case should not be told that one of the defendants is an insurance company. Nevertheless, because the insurance company is a party to the lawsuit it is permitted to have its attorney participate fully in the trial. So, the jury does not know who the second defense attorney is  representing, but the victim’s attorney is required to contend with two attorneys. Two attorneys are better than one, and the plaintiff has a harder case. 

In one recent case, the judge decided this was unfair and ordered a new trial following a defense verdict. In that case, the jury was not told that State Farm insurance Company was a party to the case or that the second defense attorney who participated in the trial represented State Farm. The jury eventually found that the driver was not negligent, and the jury returned a defense verdict. After the trial, Judge O’Reilly concluded  that the procedure designed to hide the identity of the insurance company denied the plaintiff due process of law, and ordered a new trial. In doing so, he concluded that Rule 411 did not  require that the identity of the insurance company in an UIM case be hidden. He stated in his opinion that the practice of not identifying insurance carriers in motor vehicle cases was the perpetuation of a myth that had outlived its usefulness. He concluded that it was fundamentally unfair to permit the double-teaming of the plaintiff in the name of serving this outmoded principle. 

Not surprisingly, the defendants appealed. The Superior Court reversed the judge’s order, and remanded the case to the trial court with instructions to enter judgment in favor of the defendants. What is most interesting about the Superior Court’s decision is that it did not definitively rule whether the procedure of hiding the identity of the UIM carrier resulted in a denial of due process. Rather, it focused on the jury’s decision that the defendant driver was not negligent. Since the driver was found to be not negligent there could be no judgment against either that driver or the UIM carrier. The Superior Court relied upon the rule of law that a violation of due process does not necessarily lead to a remedy. A party who demonstrates a violation of due process is entitled to a remedy only if that party can also show that the violation resulted in prejudice to him. The Superior Court concluded that the plaintiff could not show prejudice since the identity of the insurance company had no bearing on whether or not the defendant driver was negligent. 

It is anticipated that UIM carrier’s will rely upon this case to argue that their identities should never be disclosed in these circumstances. However, plaintiffs will respond that this is a case that is very much limited to the fact that the defendant driver was not negligent. Plaintiffs’ counsel can be expected to continue to fight for the right to have cases tried on the reality of the parties, and not on the basis of myths and phantoms.

“Idiopathic” Falls Are Compensable in PA

“Idiopathic” in medical terms means “unknown cause.”  But in the workers’ compensation field, “idiopathic” means “unique to the individual.”

Pennsylvania is one of the few states that find an employee who suffers an “idiopathic fall” while on the job, can collect PA workers’ compensation benefits.   The two leading cases in PA that granted benefits for an “idiopathic fall” did not have similar fact patterns. 

In one case, the employee fell while on duty at her work station.  She sustained a serious head injury when her head struck the linoleum floor.  As a result of the fall,  she suffered frequent seizures and underwent two brain surgeries.  It was unclear how the fall occurred: if the employee had tripped or if she had fainted.  The Court held that it did not matter.  The Court accepted the conclusion that the employee’s head injury, resulting from her fall at work, caused uncontrollable seizures that rendered her disabled.  Workers’ compensation benefits were properly granted. 

In another leading case, the employee had an epileptic seizure while driving his car in his employer’s parking lot prior to the start of his workday.  The employee lost control of his car and crashed into a few cars before hitting a concrete abutment on employer’s premises.  He was killed in this tragic accident.  The PA Court found this accident compensable and the employee’s widow was awarded workers’ compensation benefits.  

Pennsylvania is in the minority in granting workers’ compensation benefits for idiopathic falls.  A majority of the states hold that if a employee has a personal condition that causes the employee to lose consciousness and faint or fall, the resulting injuries are compensable only if the work conditions contributed to the injuries sustained.  

Pennsylvania Supreme Court: “A job must be open and available to count in a Labor Market Survey.”

The Pennsylvania Supreme Court has recently issued a ruling that will help injured workers who are faced with labor market surveys by a vocational expert hired by the workers compensation carrier. In Phoenixville Hosp. v. Workers’ Comp. Appeal Bd., 81 A.3d 830 (Pa. 2013), the court concluded that a job must be actually open and available in order for it to be used to stop or reduce a claimant’s benefits.

Under the Worker’s Compensation act, the carrier has the right to hire a vocational expert and compel the injured worker to meet with that expert. The expert gathers information about the worker’s employment history, educational background, interest and skills. The expert then analyzes the skills the worker has that could be transferred to another job. Then, a review is made of the local job market to identify positions which the injured worker has the physical ability to perform, along with the vocational ability to qualify for the job. Insurance companies often file petitions to stop or lower and injured worker’s compensation based on the opinion of the vocational expert that work exists that the worker is capable of performing.

Claimant’s attorneys have often recommended to their clients to apply for the jobs which are found by the insurance company vocational expert. Not every vocational expert has been willing to notify the injured worker about the jobs as they become available. However, when our firm has been able to get the expert to agree to notify our clients about the job, we have urged them to apply. We felt this was often the best test of whether the job actually existed for our clients and also demonstrated good faith by our clients. The Supreme Court, in Phoenixville Hospital, has now essentially adopted our position. The court has concluded that an injured worker’s application for the job is relevant evidence that has to be considered by the workers compensation judge in a modification petition based on a labor market survey. If the worker applies for the position and is not hired, this can be evidence sufficient for a workers compensation judge to find that the work does not exist such that benefit should be lowered or stopped. This case also clarifies that a job has to not just exist in an abstract sense in that someone is working such a position. The position actually has to be open such that an injured worker could actually get hired for the job. As a result, this case has a favorable outcome for injured workers in the state of Pennsylvania.

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