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  1. #1
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    Tunkhannock, PA
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    Default Ire Found Unconstitutional in Pa

    On June 20, 2017, the Supreme Court of Pennsylvania Declares Impairment Rating Provisions of the Workers' Compensation Act to be Unconstitutional. 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.

    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.'"

    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.

    Anyone who has been subjected to an IRE should contact their attorney to discuss how this case affects their ongoing rights. This is true even if their benefits have already been modified or even suspended based upon the prior IRE.
    Timothy D. Belt, Esquire
    Helping injured workers in Northeast Pennsylvania.
    belt-law@belt-law.com
    www.belt-law.com

    DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.

  2. #2
    Join Date
    Dec 2009
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    61

    Default Re: Ire Found Unconstitutional in Pa

    OH MY GOD......This is fantastic news. My company never wanted to settle my claim and I'm now 9 years into my 500 weeks. I would be willing to bet that every corporate comp. lawyer ran out and got a prescription for Prozac last week. Thanks Mr. Belt you have made my day....week....year!!!

  3. #3
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    Dec 2007
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    Tunkhannock, PA
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    Default Re: Ire Found Unconstitutional in Pa

    Good for you. I don't believe that application to old cases is necessarily going to be automatic, so I would strongly suggest that you contact your lawyer as soon as possible to potentially file a petition.
    Timothy D. Belt, Esquire
    Helping injured workers in Northeast Pennsylvania.
    belt-law@belt-law.com
    www.belt-law.com

    DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.

  4. #4
    Join Date
    Oct 1971
    Posts
    5,158

    Default Re: Ire Found Unconstitutional in Pa

    Timothy Belt
    I don't believe that application to old cases is necessarily going to be automatic,
    From what I see, probably not - your state has set a precedent on that issue.
    Below is info from a decision back in 2015 on this same case - they ruled the AMA guides where unconstitutional

    Monday, October 26, 2015
    Recent Decision Muddles the IRE Process in Workers’ Comp Act
    by Joseph C. Romano, Esq.
    In a significant and surprising decision in Protz v. WCAB (Derry Area School District), No. 1024 C.D. 2014 (Pa.Cmwlth. 2015), the Commonwealth Court of Pennsylvania determined that the Impairment Rating Evaluation (IRE) process utilizing the Fifth and Sixth Editions of the AMA Guides to the Evaluation of Permanent Impairment is unconstitutional.

    It is important to note that the Decision did not include any language applying the holding retroactively.
    While we expect that claimant’s attorneys will attempt to argue retroactive application, Pennsylvania law has generally held that appellate decisions only apply to pending litigation at the time of the decision, including litigation at any stage of the appeal process, and future litigation.
    http://www.sterlingeducation.com/the...mpensation-act

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  5. #5
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    Default Re: Ire Found Unconstitutional in Pa

    The Supreme Court decision was an appeal from the same case so the Commonwealth decision no longer has any presidential value. The Supreme Court found the entire section of the Act to be unconstitutional and affectively eliminated the entire section. The question becomes can the insurance company benefit from prior determinations rendered on an unconstitutional statute or are those decisions void. In my opinion there are strong arguments that the prior decisions are now void. Mark your calendar for 3 years from now when a few of these cases have worked their way through the system, and we will see if I was correct.
    Timothy D. Belt, Esquire
    Helping injured workers in Northeast Pennsylvania.
    belt-law@belt-law.com
    www.belt-law.com

    DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.

  6. #6
    Join Date
    Oct 1971
    Posts
    5,158

    Default Re: Ire Found Unconstitutional in Pa

    Timothy Belt
    The question becomes can the insurance company benefit from prior determinations rendered on an unconstitutional statute or are those decisions void. In my opinion there are strong arguments that the prior decisions are now void.
    From what I see, I'd have to agree.
    But, sometimes for the "good of all" (the 1%) the courts will rule against logic - this may be one of those cases.
    The ramifications would be catastrophic to the insurance industry - you could be talking billions of dollars, they'll find a way out.

    Argument for Retroactive
    EFFECT OF UNCONSTITUTIONAL STATUTE
    That an unconstitutional statute is to be considered as though it had never been enacted by the legislature is also the view of a number of other courts. For example, the United States Supreme Court has
    said,""That act was therefore as inoperative as if it had never been passed, for an unconstitutional act is not a law, and can neither confer a right or immunity nor operate to supersede any existing valid law."

    In accord with this doctrine that a statute which is declared unconstitutional is void ab initio it has been held that a person accused of a crime and convicted under an unconstitutional statute is entitled
    to a reversal and as a consequence, his freedom. This is true even though the accused pleaded guilty, and even though the defective statute related only to the term of court at which the accused was
    tried,"' having no relation to the substantive law under which he was tried. The same rule has been applied to judgments rendered by a court in civil cases.' 2 It has also been held that unconstitutional
    statutes which purported to incorporate'13 or disincorporate 4 municipaites fail entirely to accomplish their purpose and as a result of this the taxes which are paid to the city may be recovered.15

    http://www.repository.law.indiana.ed...96&context=ilj

    Ab Initio
    [Latin, From the beginning; from the first act; from the inception.] An agreement is said to be "void ab initio" if it has at no time had any legal validity. A party may be said to be a trespasser, an estate said to be good, an agreement or deed said to be void, or a marriage or act said to be unlawful,
    http://legal-dictionary.thefreedictionary.com/ab+initio

    Argument against Retroactive:
    UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.110:650
    But prospective judicial overruling has become an accepted technique in some states and perhaps under this influence, the Supreme Court has more recently declared that there are appropriate limits to
    treating unconstitutional federal law "as though it had never been passed."
    According to a unanimous opinion by Mr. Chief Justice Hughes in Chicot County Drainage Dist. v. Baxter State Bank: s[I]t is quite clear . .. that such broad statements as to
    the effect of a determination of unconstitutionality must be taken with qualifications.
    The actual existence of a statute, prior to such a determination, is an operative fact and may
    have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
    considered in various aspects,-with respect to particular relations, individual and corporate, and particular conduct, private and official.

    Questions of rights claimed to have become vested, of status, or prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions
    that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.
    '
    http://scholarship.law.upenn.edu/cgi...enn_law_review

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  7. #7
    Join Date
    Dec 2009
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    61

    Default Re: Ire Found Unconstitutional in Pa

    I contacted my atty. and they are going to file a petition. It is a large firm and they are reviewing thousands of cases that could be impacted by this ruling. I was wrong about corporate W/C lawyers being upset by the ruling. I was told these firms are going to love it also as they will be able to clock many billable hours to insurance companies and businesses.

    The good news for me is that my IRE was not filed in the time frame allowed and the first 104 weeks of W/C did not count towards my 500. I have a few more years for all this to get worked out. I always enjoy reading posting from Atty. Belt and Tony, I don't understand all the legalese, but I do get the gist of things.

  8. #8
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    Default Re: Ire Found Unconstitutional in Pa

    We are happy to help.
    Timothy D. Belt, Esquire
    Helping injured workers in Northeast Pennsylvania.
    belt-law@belt-law.com
    www.belt-law.com

    DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.

  9. #9
    Join Date
    Jan 2014
    Posts
    10

    Default Re: Ire Found Unconstitutional in Pa

    This is off topic a little bit but the more you think about it, maybe it's not: anyhow this is what i'm going through. I f this sounds like the way work comp is going for some of you other guys on work comp or have been through the system like I just did for the past 10 yrs total 4 working and 6 being off.

    As a result of my Aug. 2010 IRE, I was considered to Be Totally Permanently disable which I understand meant I could be on workman’s comp forever and the 500 week max didn’t pertain to me.
    In 2012 I was sent for an IME and after that I got a letter from my employer stating that the IME doctor said I could go back to work so they wanted me to go back to work. My lawyer told me to throw the paper away not to pay any attention to it. Ever since the IRE the company for some reason keep badgering me to settle my claim. I always told them that I didn’t want to settle that it took me a long time to get a job at their company and it was the best job I ever had and that eventually the medical field might find some new procedure that could make me better. Well in 2013 I had to go for another IME and when I went it was with the same doctor, again I got a letter stating that the doctor thought I could go back to work. so I called my lawyer and ask do I just forget about it like last year. This time she said maybe you better go try and see if you can do it. That if I didn’t they could possibly fire me then I would be off of work comp. The only thing I could figure is the lawyer wanted me to settle so they could get paid something.

    On January 5th 2014 my employer sent me for a physical and told me to be dressed to go to work when physical was over. I took the physical and was unable to continue to my job due to pain. The new job they had for me was going to pay me $15 a week less than what I was getting at the time on my workman’s comp claim which was $700 a week. So they said they would supplement my pay with a weekly workman’s comp check of $15 dollars since the new job was going to pay me $685 a week and that was going to be before taxes were taken out.

    After the day of physical I called off without notice of any return date. I saw my surgeon the next day and he said they had to be crazy for even thinking I could go back to work. So I never returned to work and they quit paying me anything except for that $15 dollars a week. After 2 or three months without getting paid anything I had to take them to court so they would start paying me my regular workman’s comp checks of $700 a week. After waiting a month or so without hearing anything from the judge I ask my lawyer why is it taking so long. My lawyer said the judge either has a big case load and hasn’t gotten to mine yet or she thinks I could have done my job and she is giving me time to settle my claim. Naturally my employer asks my lawyer if I was ready to settle yet. Well after hearing my lawyer say that if the judge thinks I could have done the job The could fire me and I would no longer collect work comp. Not knowing the judge and most of all not knowing what kind of relationship she had with the company I worked for. I almost had to settle. So I met with my lawyer the day prior to the settlement hearing to discuss what was going to happen at the hearing. I just assumed I was going to get the 500 weeks’ times the $700 I was getting on my claim from the beginning. But when I mentioned this to my lawyer she said it would be 500 x 15 = $7500. She told me that since I went back to work that day my new work comp rate was $15 a week. (but I never did go to work, I did the physical and I laid up at the dispensary for the rest of the day, plus I don’t think they ever paid me for that day either) She said I was going to have to come up with a figure for the next day. Well trying to figure out how much money you think you need to get you through the rest of your life in one night isn’t easy. I came up with some figure I forget exactly what it was but it was something like $285000. And some odd cents. I ended up getting like $100000. It worked out to pretty close to the $700 a week I was getting times the amount of weeks I had left before I reached 500 weeks.

    I talked to 3 different lawyers about this and all three told me “I’m not saying you don’t have a case here all I know is we are not interested in taking your case, talk to someone else.” It really seems like what they did to me has to be dishonest. I just read in the forum about the Pennsylvania not having IRE’s anymore. But they did when I was on Comp and I was considered Totally Permanently Disabled. I think I was entitled to 500 weeks’ Pay at my $700 a week rate.

    Is there a statute of limitations on something like this? And what do you think? Do I have a reason to think the way I do? I’ve tried getting a lawyer to represent me with no luck. The last lawyer I tried was Edgar Snyder, I thought for sure he would take it. I was thinking of trying to get in touch with the Labor relation board but don’t know how. I need help, I spent all my 401k that I had most of it with that early withdrawal penalty. I’m ready to lose my house.

    Somebody please tell me what to do!






    I think it was dishonest and illegal how my employer and my lawyer set me up for this settlement. During the settlement hearing me and my wife were negotiating with the company the amount and after the didn’t want to pay me what I wanted my lawyer would say well you better think about it if the judge thinks you were well enough to go back to work you will be fired and you won’t get anything. That’s all my wife had to hear. She would have settled for anything. Even at the settlement hearing when the company turned down my price I told them forget about the settlement let’s just wait to hear what the judge has to say, but with my wife there crying and stuff what else could I do but go along with it.

  10. #10
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    Default Re: Ire Found Unconstitutional in Pa

    When you settled your claim there would have been a hearing. At that hearing you would have been asked questions to establish that you understood that by entering into the agreement you were giving up your right to additional compensation. You would have had 20 days to appeal the decision approving the agreement. If that 20 days has passed, and payment has been made of the compensation in the agreement, I don't see anything that could be done for you under the PA Workers' Compensation Act.
    Timothy D. Belt, Esquire
    Helping injured workers in Northeast Pennsylvania.
    belt-law@belt-law.com
    www.belt-law.com

    DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.

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