Workers’ Compensation 3

Major changes are coming to PA’s workers’ comp system – unless you act now!

Eric Abes on February 1, 2018

SB 936, sponsored by Chairman of the Senate Insurance Committee Senator Don White (R-Indiana) and championed in the House by Representative Ryan Mackenzie (R-Lehigh), calls for a dramatic change to the state’s workers’ compensation law and is now pending before the House Labor & Industry Committee,

This bill will establish a pre-approved list of prescription drugs – a “drug formulary” – for every injured worker. This would allow the insurance companies to overrule doctors’ medical judgment and deny workers the medicine prescribed to them.

It’s worth noting that this bill was written, introduced, and passed the PA Senate in four days without any meaningful public input.

But that doesn’t mean that you need to stay silent. The bill still has not passed the PA House of Representatives.

Please call these instrumental State Representatives – it will only take a few minutes of your time. Follow the provided script and be polite and courteous.

REP. ROSEMARY BROWN – MONROE & PIKE COUNTIES (570) 420-8301

REP. JONATHAN FRITZ – SUSQUEHANNA & WAYNE COUNTIES (570) 253-5533

REP. JIM MARSHALL – BEAVER & BUTLER COUNTIES (724) 847-1352

REP. DAVE MILLARD – COLUMBIA COUNTY (570) 759-8734

REP. TEDD NESBIT – BUTLER & MERCER COUNTIES (724) 458-4911

REP. CHRIS QUINN – DELAWARE COUNTY (610) 325-1541

REP. TODD STEPHENS – MONTGOMERY COUNTY (215) 368-5165

REP. JEFF WHEELAND – LYCOMING COUNTY (570) 321-1270

• Hello. My name is _______, and I’m calling to let the Representative know that I’m opposed to Senate Bill 936.

• I’m concerned about how the bill would impact me – and people like me – if I get injured at work.

• By creating a drug formulary, insurance companies can overrule my doctor and deny me the medicine that my doctor prescribed.

• This bill is about putting more money in insurance companies’ pockets, not about what’s best for me if I get hurt at work.

• SB 936 requires utilization review organizations to be certified by some national accreditation agency – likely governed by insurers. This could allow insurers to “stack the deck” and guarantee the outcome of appeals in the workers’ compensation system.

• Under current law, injured workers have given up their right to sue in exchange for a system that provides timely and proper medical care. This is a HUGE hit to the workers’ comp system and the “grand bargain” as a whole.

• SB 936 would hurt me and others who get hurt at work. This bill is detrimental to hard-working constituents.

• Thank you for your time.

Thank you for your help!

Do you have any further questions from us? You can always email us at info@abesbaumann.com or call us at 412-228-4786. As always, we’re happy to help.

First Post Protz IRE Decision is Helpful

Eric Abes on September 25, 2017

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.

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

Eric Abes on June 26, 2017

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

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

Eric Abes on June 16, 2016

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 workers’ compensation insurance, the Fund is NOT obligated to provide “compensation” from the date of the injury, but rather from the date the Fund received notice of the claim. The Court stated that “compensation” includes both wage loss benefits and medical benefits.

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

Who Decides if a Doctor is Lying?

Eric Abes on April 12, 2016

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.

Who Chooses my Doctor for a Work Injury?

Eric Abes on March 9, 2016

If you have been injured at work it’s possible that your employer, or its workers’ compensation insurance carrier, have instructed you to treat with one particular doctor. Many injured workers believe that they must treat with the doctor to whom they are sent. However, this is not the case.

The Pennsylvania Workers’ Compensation Act permits an employer to maintain a list of panel of physician. Each list must contain at least six (6) different medical providers. It is true that, if your employer maintains such a list, the workers’ compensation insurance carrier only has to pay for treatment provided by those doctors – at least during the first 90 days after the first date of treatment for the injury. But, what employers and insurance carriers rarely tell injured workers is that the worker has the right to choose the doctor (or doctors) who will provide treatment. So, if your employer tries to tell you that you must see one particular doctor, ask your employer to see the list of panel physicians – and then choose whichever doctor with whom you want to treat.

It’s also important to remember that you have the right to switch from one doctor to another if you desire. Thus, if you’ve chosen to treat with one doctor on the list of panel physicians and you are not pleased with that doctor, you have the right to begin treating with a different doctor. In fact, you can treat with all of the doctors on the list of panel physicians if you wish. As long as you are treating with one of the doctors on that list, the insurance carrier must pay for the treatment.

Finally, you should also be aware that, if you’re employer doesn’t maintain a list of panel doctors, you are free to treat with any doctor of your choosing. Moreover, if you wish to see a specialist – such as an orthopedic surgeon, neurologist, etc. – you are not required to get a referral from your family doctor as is often the case with health insurance plans. Rather, you may simply call the doctor, make the appointment, and the insurance carrier will have to pay for the treatment as long as the treatment was necessitated by the work-related injury and is reasonable and necessary.