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  1. #31
    Join Date
    Dec 2007
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    Tunkhannock, PA
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    1,264

    Default Re: Ire Found Unconstitutional in Pa

    I suspect it will be in next months advance sheets, but to date to the best of my knowledge it has not been published.
    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. #32
    Join Date
    Dec 2007
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    Tunkhannock, PA
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    1,264

    Default Re: Ire Found Unconstitutional in Pa

    Cases are mixed on this issue and the law is still very much in flux. I would strongly suggest that you talk to your lawyer about appealing this matter further, and if he doesn't want to appeal, I am sure there are a dozen lawyers in your area that would be happy to take over the file.
    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.

  3. #33
    Join Date
    Oct 1971
    Posts
    4,989

    Default Re: Ire Found Unconstitutional in Pa

    Quote Quoting Rug View Post
    I lost my petition to reinstate my WC the reason given was we never filled an appeal while I was still in my 500 weeks . Back in 2007 after my IRE came back my lawyer did get the judge to grant me a second IRE which came back 5 percent higher then my first but still under the 50 percent needed so what did I have to appeal you need a reason to appeal just because I did not like the ratings I was given is not a reason so I don't understand what the judge means I never appealed in the 500 weeks .
    He means just that, you did not raise the unconstitutionality of the IRE at the time, you accepted it - Whether you felt you had a reason to appeal at the time is irrelevant, that's on your lawyer.
    In the Thompson decision, the courts ruled "Protz II will be applied retroactively where the claim is pending and the unconstitutionality issue was preserved" and "is consistent with Blackwell’s holding that retroactive application of a decision that legislative power was unconstitutionally delegated to another body, is limited to pending cases where the litigant had timely preserved the unconstitutionality issue."

    If they allowed people to reopen decided cases based on new law, it would set a dangerous precedent and backlog the system - It would be impossible to endlessly re-litigate every case in the system any time a new law is passed.
    Under this scheme, no case would ever be final, they would be open to endless appeals - Can you imagine never knowing if your settlement is final and you may have to return it at a future date if there's a change in law?

    There's no precedent or reasonable argument to support giving Protz II blanket retroactivity - Not to mention, allowing that would bankrupt the Insurance Industry.
    Like Tim said, there may be lawyers out there willing to continue the fight but I sure don't see a basis.

    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.

  4. #34
    Join Date
    Dec 2007
    Location
    Tunkhannock, PA
    Posts
    1,264

    Default Re: Ire Found Unconstitutional in Pa

    I respectfully disagree with Tony in part. Since I am holding in my hands right now a decision from a Scranton Workers' Compensation Judge that granted a reinstatement under similar circumstances less than a month ago, I know it is possible. In this particular decision the Judge cited to Thompson, but stated that until Protz was decided the constitutional issue was not available at the Judge level since the Judge would not have had authority to provide relief, so having filed the Reinstatement shortly after Protz, the issue was preserved in a timely manner. This issue is not fully decided and will in all likelihood end up before the Supreme Court at some point. File the appeal. You have nothing to lose and a great deal to gain.
    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.

  5. #35
    Join Date
    Oct 1971
    Posts
    4,989

    Default Re: Ire Found Unconstitutional in Pa

    Timothy Belt
    File the appeal. You have nothing to lose and a great deal to gain.
    Maybe, maybe not.
    If they make Protz completely retroactive, it would then open the door to other decisions not so favorable to claimants
    You can't through out the Doctrine of res judicata in this case and not have it thrown out in others - You would then open the door for the carrier to appeal every settlement in the past based on a new ruling today - no case will ever be final.

    Does anyone really believe they'll throw out every IRE ever done in P.A and re-litigate every claim?
    I'm not sure it's even possible, it would implode the judicial system and bankrupt the carriers.
    I'm sure they'll come up with an equitable and sane remedy - they'll never allow the entire system to crash over one ruling.

    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.

  6. #36
    Join Date
    Dec 2007
    Location
    Tunkhannock, PA
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    Default Re: Ire Found Unconstitutional in Pa

    Settled is settled. If there has been a Compromise and Release the case is over. However, if the issue was never litigated the Doctrine of res judicata would not apply, and if the claim is still open for medical, yes I do believe that the prior IREs will be nullified. Since the vast majority of these cases settled after the prior IREs, I don't think the financial impact is going to be all that severe.
    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.

  7. #37
    Join Date
    Dec 2009
    Posts
    61

    Default Re: Ire Found Unconstitutional in Pa

    Rug, Keep us posted on the outcome of your appeals. Thanks

  8. #38
    Join Date
    Oct 1971
    Posts
    4,989

    Default Re: Ire Found Unconstitutional in Pa

    Timothy D. Belt
    If there has been a Compromise and Release the case is over. However, if the issue was never litigated the Doctrine of res judicata would not apply, and if the claim is still open for medical, yes I do believe that the prior IREs will be nullified.
    Now that, I will agree.
    I was addressing people with settled or closed claims ten years old thinking they're going to re-open based on the Protz decision.

    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.

  9. #39
    Join Date
    Dec 2007
    Location
    Tunkhannock, PA
    Posts
    1,264

    Default Re: Ire Found Unconstitutional in Pa

    That is really impossible to say without seeing the legislation. Some laws can be retroactive if they are considered procedural rather than substantive.
    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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