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One Accident; Multiple Cases

Eric Abes on January 11, 2016

By: Roger D. Horgan

Our firm has a varied, injury based practice. We handle workers compensation claims, automobile accidents, trip and fall accidents, social security claims, veteran’s claims, and other injury related matters, often all for one client, for one injury. An individual is struck and permanently disabled by an automobile on the job may well have several claims to bring: a Worker’s Compensation claim, a claim against the negligent driver, a claim against his own automobile insurance Company, a claim against a disability plan, and, finally, a claim for Social Security disability benefits. Our experience and expertise across these various types of cases can be very important when a particular accident leads to two or more claims.

Proceeding with any one of these claims without accounting for its impact upon other potential claims can lead to unexpected, and potentially disastrous, results. One potential disaster would be failing to meet the prerequisites for bringing an underinsured motorist claim, also known as UIM, against one’s own insurance company. A UIM claim arises when the defendant driver’s automobile insurance policy limits are not adequate to meet the value of the claim against him. If the victim has purchased UIM coverage it would step in where the defendant’s liability limits leave off. So, if the defendant has the state minimum liability limits of $15,000, and the case is worth $30,000 a victim who has purchased UIM coverage will have a claim for the difference. However, if the victim has taken the $15,000 offered by the defendants insurance company without notifying and obtaining approval from his own insurance carrier, he will have lost his right to bring the claim for UIM benefits. That is because his insurance company has the right to pursue a claim against the driver for anything it is required to pay its policyholder. This is commonly known as a waiver of subrogation. While insurance companies very rarely refuse to waive subrogation, they routinely rely upon the failure to obtain waiver of subrogation before the settlement with the defendant driver to defeat claims for UIM benefits.

As another example of one case affecting another was seen in the recent case of McConnell v. DelPrincipe from Lawrence County. The victim in that case was hit by a car during the course of his work day. Because it was a work related accident his first step was to bring a Worker’s Compensation claim. In that case, the Worker’s Compensation Judge determined that the victim was not disabled, did not sustain a loss of earnings and that he had fully recovered from his cervical strain/sprain caused by the accident. The victim did not file an appeal from the Worker’s Compensation judge’s decision.

Thereafter, he brought a lawsuit against the driver claiming that he had suffered injuries including a herniated disc in his cervical spine, headaches, cervical sprain/strain, aggravation of degenerative disc disease, and other injuries that limited his work activities. However, because the issue of his injuries had been previously litigated in the Worker’s Compensation claim he was prohibited under the doctrine of collateral estoppel from claiming anything more than a cervical sprain/strain in the lawsuit against the driver. The failure to coordinate the handling of these cases, and in particular the failure to file an appeal from the Worker’s Compensation decision, made the claim against the defendant driver nearly worthless.

At Abes Baumann, we are vigilant and experienced in coordinating the various claims that may arise from one accident so as to maximize recovery and prevent unexpected and negative results.

Impairment Rating Evaluations (Will Supreme Court Rule on their Fairness)

Eric Abes on January 11, 2016

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.

Impairment Rating Evaluations (Insurance Company Cutting Your Benefits)

Eric Abes on November 10, 2015

Even if you win your case, Workers’ Compensation Benefits are not a lifetime guarantee. The insurance company may try to limit your benefits with the Impairment Rating Evaluation (IRE). An IRE is a physical examination. A doctor determines your level of disability on a scale from 0 to 100. After receiving 104 weeks of benefits, the law requires an injured worker to submit to an IRE.

A doctor will examine you under the guidelines of the latest edition of the American Medical Association’s Guidelines for Permanent Impairment. The doctor must be licensed in Pennsylvania; in active practice at least 20 hours per week; and approved by the Licensing Board. While you can only be required to submit to two IRE’s in a 12 month period, there is no requirement that your condition change prior to an exam. The insurance company can use the exam to see if your condition has changed.

If the doctor finds that the worker’s impairment is over 50%, the worker will continue to receive total disability benefits, but if the doctor finds the impairment is less than 50%, the worker’s status will change from total disability to partial disability. Partial disability means your benefits will be limited to 500 weeks, as opposed to possible lifetime benefits for total disability.

One defense to an unfavorable IRE is that the injured worker was not at maximum medical improvement (MMI) at the time of the IRE. MMI means that the injury/impairment is permanent, stabilized, and unlikely to change in the next year. If surgery or some form of treatment within a year might help the worker, then the worker is not at MMI.

As with most aspects of Workers’ Compensation claims, an Insurance Company may use an IRE to limit your benefits. The best way to protect yourself is to call an attorney.

Top Workers’ Compensation Lawyers in PA

Eric Abes on August 21, 2015

Congratulations to three of the top workers’ compensation lawyers in PA.

Super Lawyers has named Tom Baumann to the top 100 Pennsylvania Super Lawyers for 2015. He has also been named the Best Lawyers 2016 Pittsburgh Worker’s Compensation Law/Claimant “Lawyer of the year.” Only a single lawyer in each practice area and each community is honored as a “Lawyer of the year.”

In addition, Ed Abes, Douglas Williams, and Tom Baumann have all been honored by Best Lawyers of America for their work in Workers’ Compensation. Less than 5% of the lawyers in the country receive this honor. Furthermore, all three lawyers have been named Super Lawyers in Workers’ Compensation by Philadelphia Magazine. Approximately 4% of Pennsylvania attorneys achieve this honor.

Ed Abes has been named to the Best Lawyers of America since 2004. He has also been a Pennsylvania Super Lawyer since 2004. Doug Williams has been listed in the Best Lawyers in America since 2010, and named a Pennsylvania Super Lawyer since 2013. Tom Baumann has been listed in Best Lawyers in America since 2005, and Pennsylvania Super Lawyers since 2005.

Abes Baumann congratulates it’s members on these latest honors. The firm believes these honors demonstrate the zeal and commitment it brings to representing injured workers in the Commonwealth of Pennsylvania. These are truly three of the top workers’ compensation lawyers in PA.

Abes Baumann Attorney Argues to Commonwealth Court

Eric Abes on May 15, 2015

Recently, the law firm of Abes Baumann participated in an en banc argument before the Commonwealth Court involving a challenge to the constitutionality of a portion of the Pennsylvania Workers’ Compensation Act. In the case of Protz vs. WCAB, Tom Baumann argued that the use of the American Medical Association Guides to the Evaluation of Permanent Impairment to determine whether or not an injured worker converts from total disability to partial disability of Workers’ Compensation benefits constituted an unconstitutional delegation of authority by the Pennsylvania State Legislature.

If an injured worker received 104 weeks of total disability benefits, the employer/insurance carrier can compel the injured worker to submit to a rating examination. The injured workers’ whole body impairment is evaluated under the AMA Guides. If the whole body impairment comes out as less than 50%, compensation can be converted from total disability to partial disability merely by sending a form to the Claimant if the examination is requested within a certain time frame. The AMA Guidelines change over time, being reissued approximately every seven (7) years. When the State Legislature amended the Workers’ Compensation Act in 1996 to mandate use of the Guides, the 4th Edition of the Guides was in effect. The language of the law stated that when an examination is performed, it shall be done under the most recent version of the Guides. Commonwealth Court has interpreted that to mean that the examining physician should use the Guides that are in effect at the time of the evaluation not at the time the law was originally passed. Since the Guides change without any input from anyone affected by the Guides, including injured workers and employers and insurance companies, Abes Baumann argued that this was unconstitutional as the legislature could not adopt the future work product of the AMA sight unseen.

The Commonwealth Court has taken significant interest in the argument as it scheduled an en banc argument meaning 7 of the 13 Judges sitting on the Court participated in oral argument. No matter what happens, the issue is likely to end up at the Pennsylvania Supreme Court. Interested readers may watch the video of the oral argument here.

THE INSECURITY OF WORKERS’ COMPENSATION

Eric Abes on March 23, 2015

A recent article by Pro Publica (a Peabody Award winning, non-profit news source), shines a bright light on the dismal state of Workers’ Compensation laws in this country. While it comes as no surprise to attorneys who represent injured workers, it is must-read for anyone with a job. From inequities in benefits across state lines, to the systematic dismantling of access to benefits and medical care, this article should serve as a wakeup call to our nation’s workers.

http://www.propublica.org/article/the-demolition-of-workers-compensation

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