News

An IRE in Workers’ Compensation

A hot issue for injured workers in Pennsylvania and under the Workers’ Compensation Act has been the “IRE.” The IRE has been in place in PA since 1996.  But the Supreme Court of Pennsylvania declared the entire IRE section of the Act (Section 306(a.2)) unconstitutional on June 20, 2017* and THEN… on October 24, 2018… WAIT. WAIT.

Before we talk about that, let’s talk about what is an IRE anyway? 

IRE stands for Impairment Rating Evaluation.

Under the IRE concept, once an injured worker receives 104 weeks of temporary total disability benefits, and has reached MMI (Maximum Medical Improvement), the workers’ comp insurance company has the right to send the injured worker for an IRE by a doctor. The IRE doctor is selected either by agreement between the parties or by the Bureau of Workers’ Compensation. The doctor examines the injured worker and reviews medical records. Once the doctor does both, he or she then refers to the 6th Edition of the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment. The doctor then comes up with a “Whole Body Impairment” (WBI) rating related to the work injury only. If the IRE results in a WBI rating is less than 35% (this had previously been at 50%), the status of workers’ compensation benefits can be changed from “total” disability to “partial” disability. This change does not affect the weekly compensation rate, but it does affect how long the injured worker can receive the benefits.

In Pennsylvania:

1) There is no limit to how long an injured worker can receive “total” disability benefits; and obviously, this explains why an IRE process and the results are important.

2) But an injured worker can only receive a maximum of 500 weeks of “partial” disability benefits. Therefore, once the status of benefits is changed from “total” to “partial” wage loss (aka indemnity) benefits may be capped at 500 weeks. There is no limit to the length of time an injured worker can receive medical benefits.

If the IRE is requested within 60 days of the expiration of 104 weeks of total disability benefits, the change in status is automatic (the PA workers’ comp insurance carrier only has to file a form called “Notice of Change of Status”). If the request is not made within this 60-day window, the PA workers’ comp insurance company must file, and litigate, a Petition for Modification to have the status changed.

Current Law:

But, as I mentioned earlier, what was ruled unconstitutional on June 20, 2017 became a short-lived victory as of October 24, 2018.  On October 24, 2018, the PA legislature enacted into law Act 111 of 2018, which reestablished the IRE process, now Section 306 (a.3). But, at least for the injured worker in PA, the previous 50% threshold for continuing on total disability was reduced to 35%. Other than that, it would appear the IRE process is back in PA. There is an established presumption of total disability at 35% whole body impairment.

Questions do remain how this new law will impact existing cases. This will require decisions from the appellate courts. If you have IRE situation, or a Petition for Modification has been filed in your case, come see us as soon as possible to discuss your situation. See Gabriella Hashem Farhat, Esquire, or Linda F. Gerencser, Esquire, for legal questions or representation.  Attorney Farhat has been handling and litigating workers’ compensation cases, on behalf of the injured worker/employee for over 30 years, call us at 717.299.7342. And, stay tune for our part 2 blog about this hot topic.

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*The case of Protz v. WCAB (Derry Area School District) effectively ended the entire IRE process in PA at the time.  The Court found that the IRE provision within the Act was unconstitutional because the impairment rating was to be determined by the latest version of the AMA Guide to Disability.  The Court believed this was an impermissible delegation of power. The case was sent back (remanded) to the Workers’ Compensation Judge (WCJ), to perform the IRE using the 4th edition (the edition which existed when the IRE provision was added to the Act).
The Pa. Supreme Court then decided the Commonwealth Court was correct only “in part.” Although the delegation power was unconstitutional, the Act does not mention use of the 4th Edition of the AMA Guides and so, a Court cannot rewrite a law; and without the use of the AMA Guides, the entire IRE provision must be struck. [But see “Current Law,” as of October 24, 2018].
~Gabriella Hashem Farhat, Esquire
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What You Should Know

1. We have evening and weekend appointments, upon request

2. We have one main office and 3 satellite offices to serve you: Lancaster, Willow Street, York and Ephrata

3. We make house calls when necessary

4. We are a General Practice Law Firm

5. We handle Personal Injury, Workers’ Compensation, Domestic, Criminal, General Civil, Wills and Estates, Social Security, Education Law, Veterans’ Work, Medical Marijuana Issues.

Call us for all your legal needs.

Pyfer Reese Straub Gray & Farhat PC

Lancaster

128 North Lime Street

Lancaster, PA 17602

717.299.7342

Willow Street

2801 Willow Street Pike

Willow Street, PA 17584

717.464.5900

York

2550 Kingston Road

Suite 310

York, PA 17402

717.650.6707

Ephrata

115 South State Street

Ephrata, PA 17522

717.733.7997

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How Does Your School Determine if Your Child Needs Accommodations?

The school will assemble a team to perform a “big picture” evaluation of the child.  The team must look at any and all areas of the child that would relate to the suspected disability.  These areas may include: 1) health 2) social skills and emotional status 3) general intelligence 4) academic performance 5) communication needs and 6) motor skills. The evaluation must be thorough enough to identify all of the child’s requirements.

Other sources of information the team must review include teacher recommendations, the child’s social or cultural background, the child’s self-help skills, and any other information that helps the team make an accurate decision about whether the child has a disability and needs special services, and what those services should include. The evaluation should take into account all the reasons why a child might be struggling in school.

Once the evaluation is complete, the team must make a two part decision.  First, does the child have a disability that affects his/her ability to learn?  If “yes,” the team must then move to the second part of the analysis: whether the child needs special education services and support as a result of that disability. The child must meet both criteria to be eligible for special education. 

Did you know that children with no learning disability may be entitled to accommodations by the school?  A child with a disability who does not need “specially designed instruction” may still need supports or accommodations in the school setting. That child may be eligible for these supports under a law, Section 504 of the Rehabilitation Act of 1973. A child who has a physical or mental disability that “substantially limits” a major life function (like learning, thinking, walking, breathing, seeing, or hearing) may qualify for reasonable accommodations or other support services in the regular classroom.

It is important to know all of your rights as a parent and all the rights of your child.  An education attorney can help you make sure the school is providing everything that you and your child are entitled to under the law.  Please call our office at 717.299.7342 and speak with Attorney Gerryanne Cauler to discuss your rights and the rights of your child.

~Gerryanne P. Cauler, Esquire

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Pennsylvania Passes Driver’s License Suspension Reform

On April 22, 2019, a new law affecting driver’s license suspensions will go into effect.  The new law removes mandatory PennDOT-imposed license suspensions for those convicted of certain crimes and for those who fail to pay child support.  On October 24, 2018, Governor Wolf signed into law House Bill 163 which removes drivers’ license suspensions as a penalty for many non-violent offenses that are not connected to driving.  Proponents of the Bill argued that license suspensions had a negative impact on defendants long after they had completed their sentence.  Many Pennsylvanians faced license suspension from PennDOT after being convicted of drug offenses, underage drinking, or failing to pay child support.  The suspensions hindered those trying to find employment or those traveling to and from work, driving to various appointments  or the ability to utilize support-based services that offer help for those trying to better their lives.  

House Bill 163 does not remove a mandatory license suspension for crimes where someone is operating a vehicle, such as DUI.  The Bill removes a license suspension for the following:  drug offenses, purchase of tobacco by a minor, underage drinking, misrepresentation of age to buy alcohol, carrying a false ID card, and failing to pay child support.  

It is important to note that House Bill 163 is not retroactive, meaning that if you are convicted of the affected offenses before April 22, 2019, PennDOT will still suspend your driving privilege.  

What this means for you:  If you have a current charge of possession of drugs, underage drinking, or facing a suspension for failing to pay child support, contact us to discuss how you may be able to take advantage of this new law. Call 717.299.7342 to schedule a consultation with Attorney Heather Adams.

~Heather L. Adams, Esquire

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Pyfer Reese Is Now Open In Ephrata

Attorney K. L. Shirk, III, is a longstanding, highly respected member of the Ephrata Community. He is an experienced attorney whose practice focuses primarily on Business, Zoning and Estates.  He has now affiliated with the Lancaster Firm of Pyfer Reese Straub Gray & Farhat (“Pyfer Reese”).  Pyfer Reese is a General Practice Firm with 11 experienced attorneys.  Pyfer Reese has Offices in Downtown Lancaster, Willow Street, York and now Ephrata, at 115 South State Street.

Pyfer Reese has attorneys with extensive experience in the areas of Personal Injury, Family Law, Workmen’s Compensation, Social Security, Wills and Estate Planning, Educational Law, and Criminal Defense.  Pyfer Reese is a unique Firm in that their practice uses a team approach to help serve their clients.

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Grandparents Have Rights Too, Don’t They?

This year saw two important changes in the law for non-parents seeking custody of a child.  The law was changed to allow anyone to seek any form of legal or physical custody of a child as long as they can show the court that they are willing to assume responsibility for the child and have a sustained, substantial and sincere interest in the welfare of the child.  23 Pa.C.S.A. §5324. However, this only applies when neither parent has custody or control of the child. The exception to this broad rule is when a dependency action is pending in juvenile court or the child has found to be a dependent child in juvenile court. The act is retroactive, meaning it applies to cases that started even before the act went into effect in July 2018.  Now, any individual who is willing to be responsible for the child and who has an interest in that child’s welfare can seek legal and physical custody.  The court will examine the nature, quality and extent of the involvement by the individual in the child’s life in determining if they have an interest in the child’s welfare.  Prior to the change, an individual had to be a parent, grandparent, great-grandparent or be acting as a parent (in loco parentis) to seek full legal and physical custody.  

In addition, the new laws gave additional rights to grandparents and great-grandparents to pursue partial or supervised physical custody of the child.  A grandparent or great-grand parent can seek partial or supervised visitation where at least one parent consents to their relationship with the child, the parents have a custody case pending and the parents cannot agree as to whether the grandparent should have a role in the child’s life.  It is important to note that if neither parent wants the grandparent to participate in the child’s life, the grandparent does not possess these additional rights under 23 Pa.C.S.A. §5325 and must proceed under the first statute 23 Pa.C.S.A. §5324, to seek custodial rights.

The law was changed to expand the rights of grandparents and third parties following the Pennsylvania Supreme Court’s decision in D.P. v. G.J.P., 146 A3d 204 (Pa. 2016).  D.P. severely limited a grandparent’s rights to seek custody by requiring that a divorce action be pending between the parents in order for a grandparent to seek partial or supervised visitation under 23 Pa.C.S.A. §5325.  This effectively prevented grandparents from seeking custody of a child unless they were the grandparent to the child of a deceased parent, the parents were going through a divorce or the individual had acted as a parent to the child.  

The new law is designed to expand custodial options for children.  The court will have more options to choose from in determining the best interests of the child.  Children across the state will benefit from being with the best caretaker possible.  Our legislature has stated the statute is necessary, in part, because of the opioid crises in our state.  Through the rise of addiction and overdoses many children in our state are being robbed of their parents, requiring other adults to step in and care for the children. 

If you are interested in seeking custody of a child and you are not the parent of that child, it will be critical for you to obtain legal counsel to ensure that you proceed under the appropriate law to exercise your rights.  Pyfer Reese Straub Gray & Farhat have several talented and experienced custody attorneys who will assist you in exercising your rights.

~Gerryanne P. Cauler, Esquire
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50/50 Custody and Your Child Support Obligation

There appears to be a common understanding among participants in custody litigation that the parent having primary custody—that is, the majority of overnights with a child—will be eligible to pursue child support on behalf of the child.  That understanding is generally correct.  Many of those same participants believe that the eligibility of the primary custodial parent to pursue child support ends if the parties equally share physical custody of their child.  That understanding is not always correct.  Here is what you should know:  

In the case of one parent having primary custody of a child, the child support guidelines in Pennsylvania have been established to consider that the child spends 30% of overnights annually with the partial custodial parent.  In other words, the guidelines assume that the partial custodial parent has expenditures for the child while the child is in his/her custody, and the guideline amounts have been adjusted to consider those expenditures.  This is true even if the child spends less than 30% of the overnights—or no overnights—with the partial custodial parent.

If the number of overnights with the partial custodial parent reaches 40% during the year, a presumption arises that the partial custodial parent is entitled to a reduction in child support.  In general terms, the reduction will be 10% of the support amount, with that reduction “increasing incrementally to a 20% reduction at 50% parenting time.”  See Pa.R.C.P. 1910.16-1.  

In a situation in which parents equally share physical custody (i.e., 50/50) of a child, it is important to know that the guidelines may permit the entry of a support obligation depending on the income of the parties and the child-related expenses paid by either party.  For example, a support obligation may be entered against the parent with higher income by applying a 20% reduction as discussed above, with care taken to ensure the support obligation does not result in the parent receiving support having a larger share of the combined income.  Further, a support obligation may be entered against a parent with similar income or lower income level to cover child care costs, health insurance premiums, private school tuition, and unreimbursed medical expenses.  

The formula for calculating child support can be found in Pa.R.C.P. 1910-16-4, but often times the support guidelines can be complex and nuanced.  If you have questions regarding child support matters, please contact us at 717.299.7342 to meet with one of our Family Law Attorneys.        

~Jeffrey C. Murse, Esquire      

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BEWARE – School is Back in Session!

Bus stops, school zones and increased traffic have been slowing down your morning commute.  You have probably noticed police presence in and around schools as a reminder to SLOW DOWN.  Be alert and be cautious!  School-related traffic offenses in the vehicle code are summary offenses in Pennsylvania, but have serious consequences. Violating Pennsylvania’s school-related traffic offenses could cost you a lot of money and could result in a suspension of your driver’s license! 

Many of us pass school speed zones during our morning or afternoon commute.   The speed zone in a school zone is marked by an official traffic-control device at the beginning and end of each zone.  The speed limit for marked school zones is 15 MPH.  Speeding in a school zones greater than 5 MPH carries higher fines and if you are cited for speeding in a school zone greater than 11 MPH over the limit, you face a fine of at least $500.  

What about bus stops and approaching buses with flashing “amber” lights?  If you see a bus approaching with the yellow flashing lights, you are to proceed past the bus with caution but be prepared to stop when the yellow lights are flashing.  However, if you see the red lights flashing and the stop arm activated, you must stop!   Also, be aware that if a school bus is stopped at an intersection with flashing red lights, you must also stop at that intersection until the lights are no longer activated – regardless of which way you may be turning or which way the students may be walking.  And, if you encounter an approaching school bus on a multi-lane road, yes, you guessed it – STOP!  A driver is only exempt from stopping for an approaching bus when the bus is on a “separate” roadway (such as a divided highway).  

A violation for failing to stop for a school bus in any of the above scenarios will result in a fine of $250, five points being assigned to your driver’s record and a 60-day license suspension!  

What this means for you:  If you have been cited for a violation of the school-related traffic offenses or ANY traffic-related offense, we can help! Many traffic offenses carry fines and suspensions that are unknown to the common motorist.  Make Pyfer Reese your choice!  Call 717.299.7342 to schedule a consultation with Attorney Adams before entering a guilty plea to any traffic-related offense. 

~Heather L. Adams, Esquire

 

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Linda F. Gerencser, Esquire, joins Pyfer Reese Straub Gray & Farhat PC

Ms. Gerencser has joined Pyfer Reese Straub Gray & Farhat PC and brings with her an excess of 30 years of legal experience. She will practice in the following areas: Social Security Disability, Unemployment Compensation, Workers’ Compensation, Wills and Estates, and Family Law.  

Linda F. Gerencser graduated from Boston College, Magna Cum Laude with a Bachelor of Arts Degree in English. Following completion of her undergraduate degree she obtained a position working with disabled children at St. Agatha Home in New York.   After working there for two years, Ms. Gerencser attended Villanova University School of Law.

After she completed her law degree, she served as a Judicial Law Clerk to the Honorable Richard A. Powers, III, who was a Judge Magistrate for the Eastern District of Pennsylvania, at the Federal Courthouse in Philadelphia.  After completing her Clerkship, she married her husband John and moved to Lancaster County, Pennsylvania. She and her husband went on to have three children together: Steven, Susan and Nicholas. 

After moving to Lancaster County, Ms. Gerencser initially worked for a small general practice law firm.  She subsequently joined the Lancaster County Public Defender’s Office.  While serving as an Assistant Public Defender, she represented clients at preliminary hearings before District Justices and in court hearings before Judges in the Lancaster Court of Common Pleas.  Ms. Gerencser also represented clients in appellate proceedings before the Pennsylvania Superior Court and Pennsylvania Supreme Court.     Ms. Gerencser later served as a court appointed attorney in child dependency proceedings. 

Ms. Gerencser worked at another area law office for twelve years where she practiced administrative law, primarily Social Security Disability,  Unemployment Compensation, Workers’ Compensation, and Estate Planning.  She has also served as a court appointed Guardian Ad Litem. In addition, she taught  Business Law classes at the Penn State, Lancaster Campus and Harrisburg Area Community College. 

Ms. Gerencser is active in her community, and enjoys serving as a volunteer in various capacities.   She has served on the Board for the Arc of Lancaster County. She was Vice President of the Warwick Track and Field Parents’ Association for six years.  She volunteers regularly at her church, and is on the planning committee for the annual 5K running event that the church sponsors.

In her spare time, Ms. Gerencser enjoys spending time with her husband, children, and dogs, as well as extended family and friends.  Her hobbies are jogging, biking, reading, gardening, and journaling.      

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Tax? What tax? We’ll Help You Unravel the Mystery.

Unlike Federal Estate Tax which is only assessed if the value of an estate exceeds 

11 Million Dollars, Pennsylvania Inheritance Tax applies regardless of the size of an estate.  Pennsylvania’s Inheritance Tax is a transfer tax on the property that a beneficiary will receive from your estate.  The tax amounts vary based upon your relationship to the decedent and the value of the property you will be receiving.  In Pennsylvania, the inheritance tax rates are as follows:

—  Parents, children, grandchildren and stepchildren, are taxed at a rate of 4.5%.

—  Siblings are taxed at a rate of 12%.  

—  Nieces, nephews and unrelated individuals are taxed at a rate of 15%.  

If a child under the age of 21 dies with assets, the assets passing from the child to the parent or stepparent will not be taxed.

Charities are exempt from Pennsylvania Inheritance Tax, as are assets which are owned by spouses with the right of survivorship.

At the time counsel for the Executor or Administrator prepares the Tax Return, the tax is not  imposed on the gross value of the estate.  The outstanding debts are deducted, as are the funeral expenses and other estate settlement costs.  There is also a $3,500 family exemption deduction for relatives with whom the decedent resided.  

Some types of property are entirely exempt from taxation.  Typically, a husband and wife own their property jointly.  Upon the death of the first spouse, there will be no Pennsylvania Inheritance Tax due.  If one spouse owns property in his or her name alone, then it would be taxable; however no tax would be owing because the spousal tax rate is set at zero percent.

Life Insurance proceeds and certain types of retirement plans are exempt from Pennsylvania Inheritance Tax, as are family owned businesses that meet the qualifications set forth in Act 52 of 2013.  Farms may also be exempt if they are passing to a child, grandchild or sibling.

In addition, certain bank accounts, stocks, bonds, mutual funds and other securities can be designated as “pay on death” or “transfer on death” to make for a smoother transfer of those assets upon your death; however, they are still subject to the applicable tax.  It is also very important when designating assets in this way that you make sure you are not contradicting the terms of your Will.

If a parent gifts their home or other assets to a child but does not survive for a period of one year thereafter, the gift would be subject to the 4.5% inheritance tax if it had a value in excess of $3,000.  Likewise, when gifting a home to a child, but reserving a lifetime right to reside in the home, upon your death, the value of the home would be taxed.

Pyfer Reese is here to assist with your estate planning and to help you navigate through the complex  estate administration process.  Our experienced attorneys can provide you with an individualized plan to ensure your beneficiaries receive the maximum net amount possible from the inheritance you leave for their benefit.  Contact us today at 717-299-7342 for a convenient appointment with one of our attorneys.

~Christopher C. Straub, Esquire

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