The Protz Impact

Ever since the Pennsylvania Supreme Court declared in Protz v. WCAB that the Impairment Rating Evaluation provisions of the Pennsylvania Workers’ Compensation Act are unconstitutional, my office has been deluged with calls asking how the decision impacts injured workers and how other lawyers should handle their existing cases. These calls have come because we regularly represent injured workers in workers’ compensation claims, because we regularly write briefs and handle appeals for other lawyers in workers’ compensation and other matters, and because we authored the Amicus Curiae (friend of the court) brief for the Pennsylvania Association for Justice (PAJ). Because the Supreme Court did not state how the decision applies to current claims, we are left to predict the results of future cases.

The PAJ will be sponsoring a webinar, “Forward to the Past: Protz and the Elimination of the IRE,” on Wednesday, August 9, 2017 from 12 to 1 p.m. I will be join Tom Baumann, counsel for Mr. Protz, and Larry Chaban, one of the deans of the claimant’s workers’ compensation bar, on the panel. Click here to register for the program.

And finally, thank you to one attorney who read my brief and offered the following observation:

A note to compliment you on your outstanding, world class writing style with your Protz Amicus Brief.

I enjoyed my 20 years of Claimant practice in Blair County, handling over 1000 cases and reading dozens of briefs (and case decisions) over the years. In reviewing your recent brief which lead to a landmark Pa Supreme Court decision - Wow... articulate, well reasoned, well organized, persuasive...it's the Super Bowl of them all!

Me? ... [I] still peruse the workers comp literature when I noticed your written gem.

Where there’s a Will there’s a way…

Here’s a topic no one wants to talk about – death. We don’t want to think about it, the realities of it, the when or how, but it is a reality that every single one of us is faced with. While there’s not much we can do about it, we can make it easier on our loved ones when the time comes by having a Will. According to a 2015 Rocket Lawyer estate-planning survey by Harris Poll, 64% of Americans don’t have a Will. A shockingly high number when you think about all the protections a Will provides.

A Will is a legally-binding document that allows you to determine how your belongings will be handled upon your death. A Will has the power to dictate how everything you own, down to the last penny, will be distributed. You want to make sure your great niece gets that special brooch she’s had her eye on – just write it into the Will. You want to make sure that terrible cousin doesn’t get her hands on anything – this is the way to control that. A Will allows you to leave a gift to anyone you want, including extended relatives, friends, and charitable organizations. Having a Will ensures that your wishes are followed in your absence.

Having  a Will prevents Intestate Succession. Meaning, state law determines what happens to everything a person owns when they pass away without a written Will – according to what are called the state’s “intestate succession laws,” which tell your heirs who will inherit your estate and in what proportion – no matter what you want. That’s right – the deceased and her family members have absolutely no say on what happens at this point. Each state has laws about how the property will be divided and to whom it goes, but if a person has no living relatives, the state will not permit distributions to a friend, charity, or any legally non-related person; instead, all assets end up going to the state.

A  Will can do more than just list beneficiaries for your assets. Other benefits of having a Will include:

  • Naming an Executor to take care of your estate. An Executor makes sure all your affairs are in order, all the bills are paid, and your wishes are properly followed. Writing a Will allows you to give this control to someone you believe to be honest and trustworthy;
  • Naming Guardians for your children and their property. A Will allows you to make an informed, thought-out decision regarding who should take care of your minor children in the event that you cannot. Absent a will, it is in the court’s discretion to choose a family member, or a state-appointed guardian to raise your family;
  • Creating Trusts for your children or other young beneficiaries to keep their assets safe and secure. A Will allows you to leave money for your minor children or relatives to be held in Trust until they reach a certain age or life-event. This gives you the peace of mind that they will have the necessary assets without the fear that they may be irresponsible with it if received at the wrong time; and,
  • Reduces Family Conflict – Saves Your Heir Legal Fees

Not only is a Will beneficial for all the above listed reasons, but it can also reduce family conflict. A death in the family is always hard and emotions tend to run high; having a Will takes the guess work out of “what she would have wanted” when dealing with the funeral and the division of property. In a world where blended families have become the new norm, Wills can help relieve some of the sting. Plus, if written properly, Wills can prevent costly legal battles, making sure that heirs, not lawyers, get your assets.

However, in order to have a Will that can hold up in Court, it must meet the legal requirements:

  • The “Testator” (the one who the Will is for) must be at least 18 years old,
  • The Testator must have the proper “legal capacity” (be of sound mind),
  • The Testator must sign the Will (there are certain exceptions of the Testator cannot sign the document himself), and
  • It must be in writing.

There is no requirement in Pennsylvania for a signed Will to have witnesses; like in many other states, the presence of witnesses can help alleviate any potential issues that may occur down the road when the Will is probated. And that can help avoid costly court battles in case misunderstandings arise.

It is important to have a Will and review it every few years to ensure that it is up to date and still properly reflects your wishes. You want your will to properly reflect any changes in family, assets, and location. A relative passes away, a new child is born, a new home is bought, whatever the scenario is, a proper review of your will every few years will ensure an up-to-date thorough Will.

While some law offices may charge for each update to a Will, our Office only requires you to pay once. A one-time fee for drafting your Will provides you with a lifetime of updates as you see fit. We will work with you to ensure that every single one of your wishes is properly reflected and that your beloved ones are taken care of. If at any time, and as many times, you would like to update your Will, we are happy to make the necessary changes at no additional cost.

Wills and Estate plans must meet specific state laws. As Brian Peston wrote on The Money Guy Show: “For this reason, work with a legal expert in your area – don’t try to skimp on costs and cut corners by using a fill-in-the-blank form found online. Any errors could result in it being conducted in court. Get it done and reviewed by a professional, with witnesses and all.”

The need for a Will is not an easy topic to think about and discuss, it is important to understand why you need a Will – this document will protect you and your loved ones and the assets you’ve worked so hard to acquire. Having a Will is the only way to ensure that your property is dealt with your way.

Available Soon – Fee Agreements in Pennsylvania (6th Edition) – Edited by Attorney Daniel J. Siegel

Almost hot off the presses. I just received a copy of the cover of my newest book, Fee Agreements in Pennsylvania. I edited the book (now in its 6th edition) and authored one chapter. The book will be available for purchase in the next few weeks from the publisher, the Pennsylvania Bar Institute. The book provides practical and ethical guidance that will help attorneys draft comprehensive fee agreements, and contains sample fee agreements covering a wide range of practice areas. My office regularly provides guidance to attorneys about how to improve their agreements and avoid fee disputes with clients.

Pick a leader, not a law firm that plays follow the leader — and takes credit for the leader’s success

We all remember the childhood game of “Follow the Leader.” Some lawyers still play the game, and want to take the credit for the leader’s work. The recent Court decision in Protz v. WCAB in which Attorney Dan Siegel authored the friend of the court brief for the Pennsylvania Association for Justice — which invalidated the Impairment Rating Evaluation (IRE) process under the Pennsylvania Workers’ Compensation Act, is a great example. Just look around, watch the ads on TV, and listen to your radio to learn about all the law firms who suddenly are “there” to help the injured workers whose benefits were increased as a result of Protz. They are the followers.

In a recent email, one law firm, which devotes countless dollars to advertising,  admitted that the firm had “been waiting” for the decision, which it described as “the most significant workers’ compensation decision in years, if not decades. The recent ruling should ensure that thousands of injured workers across the Commonwealth will continue to receive necessary benefits aligned with the true extent and duration of their injuries.” I thank the firm for acknowledging that the lawyers handling Protz ensured that thousands of injured workers across the Commonwealth will continue to receive necessary benefits aligned with the true extent and duration of their injuries. I also thank them for acknowledging that “Pressure and time were key to this monumental decision.”

Who applied the pressure? Not the firm quoted above. The lawyers who championed this cause included Dan Siegel, Thomas Baumann of Abes Baumann in Pittsburgh (who authored a terrific brief and argued the case superbly before the Pennsylvania Supreme Court), Larry Chaban, Brian Steiner, and a small group of lawyers who discovered the issue and were determined to fight until the Pennsylvania Supreme Court ruled. Most firms did nothing; many never even realized that there were Constitutional problems with IREs. One firm now brags that since 2016 they were “denying ALL IRE requests.” Our firm – the Law Offices of Daniel J. Siegel, LLC – has  objected to having our clients attend IRE exams since 2010 (more than six years before the follower firm began to follow the leaders).

Most importantly, insurance companies defending against our cases made generous settlements to avoid facing our firm in a Pennsylvania appeals court. 

It is easy to jump on a bandwagon, but our firm has been willing to take the lead and fight in court, where results matter, not just in newspaper articles, where bravado can win the day. Our successes mean that injured workers throughout Pennsylvania receive more benefits — and we have always fought to expand the rights of all injured victims. Consider the list of precedential cases handled by Dan Siegel:

Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), 2014 Pa. Commw. LEXIS 162 (Pa. Commw. Ct. Mar. 12, 2014)

The Pennsylvania Commonwealth Court ruled that a physician must have an active clinical practice, i.e., the physician must provide preventive care and the evaluation, treatment and management of medical conditions, at least 20 hours per week, in order to be qualified to perform Impairment Rating Evaluations under Section 306(a.2)(1) of the Workers’ Compensation Act, 77 P.S. § 551.2(1).

Ferguson v. Morton, 2013 PA Super 329, 2013 Pa. Super. LEXIS 4574 (Pa.Super. 2012)

The Pennsylvania Superior Court reversed the trial court’s order granting a new trial based upon the inflammatory closing argument by plaintiff’s counsel. In particular, the Court held that trial court erred in presuming that the jury’s verdict improperly included punitive damages. Thus, the trial court abused its discretion by concluding that the summation so prejudiced the jury as to require a new trial.

Commonwealth v. Workers’ Compensation Appeal Board (Harvey), 993 A.2d 270 (Pa. 2010)

The Pennsylvania Supreme Court affirmed that the use of actuarial data to calculate pension offsets for injured employees who also receive pension benefits from a defined benefit plan. By not foreclosing a claimant’s ability to challenge the calculations and the assumptions underlying them, injured workers may still employ actuaries to establish when improper and inaccurate calculations form the basis for a claimed offset.

Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), 964 A.2d 963 (Pa.Cmwlth. 2009)

This en banc Pennsylvania Commonwealth Court decision held that when an employer seeks an offset from workers’ compensation benefits for pension benefits paid to an injured employee, the offset must be calculated based upon the net amount of the benefits received by the worker.

McElheney v. Workers’ Compensation Appeal Board (Kvaerner Phila. Shipyard), 940 A.2d 351 (Pa. 2008)

The Pennsylvania Supreme Court held that a worker injured while on a ship in a graven dry dock was not injured upon the “navigable waters of the United States,” and was entitled to benefits under both the federal Longshore and Harbor Workers’ Compensation Act and the Pennsylvania Workers’ Compensation Act. The Court ruled that the graven dry dock, which by definition was cut and dug out of the land, was not within the limits of the navigable waters of the United States.

Thorne v. Miller, 317 N.J. Super. 554, 722 A.2d 626 (1998)

This is the first reported case in New Jersey to address the obligation of a driver who waves or signals another vehicle into traffic. The trial court held that a driver who waves to another driver to proceed is under a duty of reasonable care that, at the least, requires the driver who waved to observe whether traffic conditions were such as to allow the other driver to proceed without accident; whether, in this case, the waving driver breached that duty and whether the breach was a proximate cause of the accident is for the jury.

Smith v. Pulcinella, 440 Pa. Super. 525, 656 A.2d 494 (1995)

This Pennsylvania Superior Court decision extended to general negligence cases the malpractice doctrine that, where the conduct of two or more tortfeasors causes an injury, and the damages cannot be reasonably apportioned among the negligent parties, any one of the tortfeasors may be held responsible for the entire verdict if that party’s negligence was a substantial contributing factor in causing the plaintiff’s injuries.

Curran v. Greate Bay Hotel & Casino, 434 Pa. Super. 368, 643 A.2d 687 (1994)

This Pennsylvania Superior Court en banc decision analyzed when a verdict may be reduced under the Comparative Negligence Act, and also held that the failure to request the correction of an inconsistent jury verdict constitutes a waiver of any objection to the verdict.

Denny’s v. Workmen’s Compensation Appeal Board (Stanton), 142 Pa.Cmwlth. 531, 597 A.2d 1241 (1991)

This Pennsylvania Commonwealth Court decision specified those actions by employees that are in furtherance of an employer’s business, thus requiring an employer to provide worker’s compensation benefits to employees injured under the circumstances.

Walsh v. City of Philadelphia, 526 Pa. 222, 585 A.2d 445 (1991)

This Pennsylvania Supreme Court decision defined the nature of permissible claims against municipalities under the Recreational Use of Land and Water Act, and outlines the standard for the types of injuries for which local governmental bodies are responsible for damages under the Political Subdivision Tort Claims Act.

So, when you are seeking a lawyer, consider whether they are willing to truly fight, or if they prefer to follow the leader.

Pa. Supreme Court Declares Impairment Rating Provisions of the Workers’ Comp Act Unconstitutional; Attorney Dan Siegel Authored Amicus Brief

The Pennsylvania Supreme Court today declared as unconstitutional the impairment rating evaluation (IRE) provision in Section 306(a.2) of the Workers’ Compensation Act. The decision in Protz v. WCAB (Derry Area School District) means that injured workers will no longer be subject to a cap on the length of wage loss benefits they received. Attorney Dan Siegel of the Law Offices of Daniel J. Siegel, LLC authored the friend of the court brief on behalf of the Pennsylvania Association for Justice (formerly the Pennsylvania Trial Lawyers Association).

In the 6-1 majority opinion authored by Justice Wecht, the Court concluded that the Pennsylvania legislature violated the state Constitution when it passed this provision because it (1) gave “unfettered discretion over Pennsylvania’s impairment-rating methodology” to the American Medical Association, and (2) “did not include in … any of the procedural mechanisms that this Court has considered essential to protect against ‘administrative arbitrariness and caprice.'”

Chief Justice Saylor authored a concurring opinion. Justice Baer filed a dissenting opinion. Pittsburgh attorney Tom Baumann represented claimant.

Click here to read the Protz opinion.

Click here to read Dan Siegel’s Amicus brief.

Before the decision, Section 306(a.2) of Act permitted employers to require an injured worker to undergo an IRE after receiving 104 weeks of disability benefits. If the IRE physician determined that the injured worker’s whole body impairment was less than 50 percent, as determined by the AMA Guides to the Evaluation of Permanent Impairment, the worker was limited to 500 weeks of future wage losses. The Court held that the delegation of the impairment determination was impermissible because only the legislature can make those decisions.

“I am pleased that the Supreme Court has conclusively ruled on this issue,” said Dan Siegel, “because we have been raising the issue on behalf of our clients, and in cases in which other attorneys have retained us to do so. In addition, it was a pleasure to work with attorney Tom Baumann, who handled the underlying case and successfully argued the case before the Supreme Court.”

Attorney Dan Siegel provides trial and appellate court writing services to attorneys throughout Pennsylvania. Contact Dan at dan@danieljsiegel.com or (610) 446-3457.

%d bloggers like this: