Commonwealth Court Rules that Pre-Protz IREs are Invalid When a Petition to Reinstate is Filed Within Three Years of the Most Recent Payment

The Commonwealth Court ruled today that injured workers in Pennsylvania whose benefits were limited because of an impairment rating examination (IRE) may seek additional benefits if they file a petition within three years of the date of the most recent payment of compensation (wage losses). Applying the Pennsylvania Supreme Court’s landmark 2017 decision in Protz v. WCAB (Derry Area School Dist.), the Commonwealth Court – in Whitfield v. WCAB (Tenet Health System Hahnemann LLC)  – invalidated an IRE that modified the Claimant’s benefits in 2008, holding:

Because Claimant filed her Petition within three years from the date of her last payment of compensation as permitted by Section 413(a) of the WC Act, she was entitled, as a matter of law, to seek modification of her disability status based upon the Protz decisions, which found the IRE provision unconstitutional. Allowing Claimant to seek modification under these circumstances does not prejudice employers or insurers by upsetting their expectation of finality because such determinations are not yet truly “final” until three years have passed since the date of last payment.

The en banc Opinion by Judge Renée Cohn Jubelirer contains a thorough history of the decisions in Protz v. WCAB (Derry Area School District), in which the Pennsylvania Supreme Court declared as unconstitutional the impairment rating evaluation (IRE) provision in Section 306(a.2) of the Workers’ Compensation Act, as well as other cases that have addressed IRE issues.

In the underlying litigation in Whitfield, the WCJ found that Claimant was not entitled to reinstatement of her benefits. The Commonwealth Court disagreed, concluding that Claimant had a statutory right to seek reinstatement because she filed her Petition within three years of her most recent compensation payment, and had not waived her constitutional challenge:

The impediment that rendered her partially disabled under the WC Act, i.e., the impairment rating, is no longer a valid means of changing a claimant’s status. There was no longer a legal basis for Claimant’s disability status to remain partial because the IRE upon which the change in status was predicated was found, as a matter of law, unconstitutional and invalid. This change in the law was a basis upon which Claimant could seek reinstatement.

The Court remanded the case for a determination whether Claimant continues to be totally disabled irrespective of her IRE status. The Opinion did not address whether Protz applied to cases in which the last payment was made outside the three-year period under Section 413(a) of the Act. Judge Covey was the lone dissent.

Click here to read the Whitfield opinion.

Professionals @High_Risk on Social Media

Pundits swiftly smacked down Rosanne’s recent racist and anti-Semitic tweets, comparing them with New York Lawyer Aaron Schlossberg’s videotaped, racist rant against people for standing in front of him in a line. In a situation, where honestly, blameless people were supporting a local business, Attorney Schlossberg fumed at them shamelessly, calling them undocumented immigrants for inconveniencing him. He went so far as to threaten to report them to “ICE” (the deportation and enforcement branch of the United States Customs Immigration Service (USCIS)).

This has raised a question of whether the “digital divide” is blurring the line between opinionated and derogatory. Have we abandoned the ancient wisdom passed down to us from prior generations?

  • “If you would not feel comfortable saying it to your grandmother, then don’t put it in writing.”
  • “If you wouldn’t want to see it in the newspaper, then don’t say it.” Or,
  • “If you don’t have anything nice to say, then don’t say anything at all.”

Sound familiar?

Of course, the novelty and thrill of seeing one’s opinion in print makes social media platforms addictive. Facebook builds upon the indescribable feeling that getting “likes” simulates. It cannot be understood from a rational dimension separate from the feelings that posts create. There are millions of people on Twitter; rationally speaking, does your opinion even matter? The rational answer is generally no, not even if you’re the President of the United States.

As we increasingly publicize our own views, we simultaneously begin to believe that our views are important. By narrowing our focus on our limited perspective, we may fail to honestly assess the valid opinions of others. We lose our audience. We gain only extreme followers who share our views. As a result, the world around us begins to shrink. Our newsfeed populates with limited perspective.

Like Roseanne or Schlossberg, professionals are the most high-risk population on social media because they can lose their reputation, clients, dignity and prestige from a poorly worded post. As we have the most to lose, we must think twice about what we say, how we say it, and be ever mindful of the risks of posts being conscience-shocking, racist, bigoted, and/or incriminating. Is your opinion perhaps unique only because no one would ever actually say it to their grandmother?

Not only does social media pose a risk to a professional’s reputation, it may put an injured person at risk if they post on Facebook, or put an attorney at risk for attorney discipline or a legal malpractice claim if they reveal client information online. If you or someone you know has a personal injury matter or you are a lawyer with a professional discipline matter, call the Law Offices of Daniel J. Siegel, LLC, the lawyer other lawyers call for advice.

A 94% Percent Success Rate – Wow!

Our firm is unique because many of our clients are lawyers, including firms that you see on TV or on I-95. They consult with us about ethical questions, and they hire our firm to prepare their appeal briefs, answer motions to dismiss and other court filings. We always knew that we won the majority of motions and appeals we handled, but never knew how successful we were. So last year we began to compile whether we won or lost the motions and appeals we handled. We were pleasantly surprised to learn that we won 94% of the motions and appeals we handled last year. Obviously, we don’t win every motion or appeal, but we regularly explain that there is a difference in results depending upon how an attorney presents information. Ask most attorneys, and they won’t be able to say they won 94% of the motions and appeals they handled. We look at cases differently, we write differently, and we use different methods of presenting our clients’ cases, all with the goal that they win their motions and appeals, and get the best results for their clients.

Of course, we use the same techniques for our clients, including our workers’ compensation and personal injury clients. No one wins everything, but winning 94% of our motions sure makes us feel good. The next time someone says all attorneys are the same, and that’s why it’s OK to hire one of those guys on TV, remember that cases are won – and lost – based on how well lawyers handle the various motions and other filings before trial, or on appeal. That’s when you will see the difference at the Law Offices of Daniel J. Siegel, LLC.

The Small Firm Difference – A Freudian Slip of the Tongue That Tells the Truth

We are often asked why a client should hire a small firm where clients speak directly with their attorney rather than a larger firm, with a large staff, large overhead, and levels of bureaucracy?

When it comes to heavily advertised areas of law such as workers’ compensation and personal injury, there may be another enormous difference: many of the larger firms have to feed their seemingly endless advertising budgets and pay for their TV ads and billboards. As a result, their business model (that’s what they call it) requires them to “move” files (in other words, settle cases) rather than fight every case as much as possible — even if that means going to trial, filing an appeal, or merely waiting to settle the case until the best tactical moment. After all, trials, appeals and waiting all take time, don’t generate fees, and don’t pay the advertising agencies’ bills.

Recently, one large advertising law firm included a page on its website in which it said that they “aren’t afraid to back down from any opponent.” That’s right, they are not afraid to back down from an opponent. Well, they are telling the truth. If they fought every case the way they should, it could mean a trial or an appeal, or waiting months until it’s the best time to settle. That’s why they aren’t afraid to back down.

Our office doesn’t have an advertising agency, we don’t have billboards, and we don’t run TV ads. We’re small, allowing us to provide client-focused representation that does what’s right for our clients, even if it means waiting months to settle a case to assure our client receives the maximum settlement.

We aren’t afraid to fight, and we don’t back down.

Insurance companies and defense attorneys know that we go as far as needed for our clients. They know this, and they know that they will have to either fight us, or pay top dollar to settle our clients’ case.

Some firms aren’t afraid to back down.

We aren’t afraid to fight long and hard if we have to. We don’t need to feed the advertising machine. That’s our small firm difference.

 

Authenticating Social Media Evidence Is Harder Than Lawyers Think

Let’s play a game. You’re the judge. Under the following facts, is the social media evidence admissible?

After obtaining a Court Order allowing him to obtain a criminal defendant’s Facebook records, the prosecutor files a motion seeking permission to introduce into evidence the following items:

  1. Screenshots of the defendant’s Facebook account
  2. Various undated mobile and online “chat” messages
  3. A bloody hands photo posted by another individual

So, which items were admissible? Not which items should have been admissible?

The answer: None.

Why? Even social media obtained pursuant to a court order must be authenticated properly to be admitted into evidence. In other words, the prosecutor failed to establish sufficiently that the items were “connected” to the defendant even though the Facebook account in question bore the defendant’s name and other characteristics. The chat messages were excluded because they contained insufficient contextual clues establishing the defendant’s identity as the author to allow them in as evidence.

Pennsylvania Evidentiary Standards for Authenticating Electronic Data

The Superior Court, in Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Mar. 15, 2018), ruled that social media evidence authentication requires, at a minimum:

  1. An adequate foundational showing of its relevance and authenticity, and
  2. Direct or circumstantial evidence that tends to corroborate the identity of the author of the communication, such as testimony, or contextual clues in the communication tending to reveal the identity of the sender.
  3. The admissibility is to be evaluated on a case-by-case basis for an “adequate foundational showing of its relevance and authenticity.”

Direct Evidence such as electronic communications or documents require more than mere confirmation that the number or address belonged to a particular person to be authenticated and used in court.

Circumstantial evidence may include personal knowledge of participants, and verification to authenticate computerized instant messages, cell phone text messages, Facebook posts, and other contextual clues that tend to corroborate the identity of the sender to verify authorship.

So, was Mr. Mangel lucky that his Facebook chats were not admitted? Yes. But, why? Because the Commonwealth did not do its research and obtain corroborating data to authenticate the messages. In fact, no one testified about the veracity of the messages; thus, they were unverifiable.

Of note, as our office has explained to many clients, as well as lawyers attending continuing legal education programs where we speak, social media records and communications can be properly authenticated within the existing evidentiary rules. To authenticate social media chat messages or emails, the proponent (person offering the evidence) must present sufficient direct and circumstantial evidence to establish its authenticity, that the matter is what it purports to be, and/or testimony of a witness with personal knowledge. See Pennsylvania Rule of Evidence 901.

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