Briefs
DuffyConnors publishes an email newsletter, Briefs, to help keep clients informed of the latest developments in relevant areas of the law.
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Briefs is also available online.
Current Issues
Phantom Prejudice
Addressing an insured’s notice requirement for a phantom vehicle accident when claiming entitlement to uninsured motorist benefits, the Pennsylvania Supreme Court recently held, in Vanderhoff v. Harleysville Insurance, decided on July 6, 2010, that the insurance carrier must prove that it has been prejudiced by an insured’s failure to provide earlier notice, thereby reversing the Superior Court’s ruling that the insured’s notice was not sufficiently timely to allow the uninsured claim to be pursued by its insured.
Save the Date for National Workers' Compensation Defense Network Seminar Conference, Chicago, October 6 & 7, 2010
To our most valued clients and contacts, the National Workers’ Compensation Defense Network, a premier defense counsel network that our firm is a member of, has confirmed the dates for its next Seminar Conference, to be held in Chicago, at the Wyndham Hotel, on October 6, 2010 and October 7, 2010.
Digest of Appellate Decisions June 2010
Riley v. WCAB (DPW/Norristown State Hospital), 1533 C.D. 2009 (Pa. Cmwlth. 2010)
Phoenixville Hospital v. WCAB (Shoap), 2188 C.D. 2009 (Pa. Cmwlth. 2009)
National Workers’ Compensation Defense Network’s (NWCDN) Seminar
Los Angeles, CA, June 16 & 17, 2010
Attached is the National Workers’ Compensation Defense Network’s (NWCDN) 2010 Summer Conference Brochure. We invite all of our most trusted workers’ compensation clients to consider attending this two-day free conference, hosted semi-annually by the NWCDN.
The Seminar will begin on June 16, 2010, with a cocktail reception at the fabulous Café Pinot, located in Los Angeles’ spectacular downtown at the magnificent main branch of the Los Angeles County Public Library, recently restored to its beautific opulence.
The following day, the NWCDN seminar will be launched and hosted by the prestigious AV-rated member firms of the NWCDN, with all of their clients and contacts invited to attend the free Seminar.
Digest of Appellate Decisions May 2010
Department of Public Welfare v. WCAB (Harvey), 14 EAP 2009 (Pa. Sup. Ct. 2010)
Scranton School District v. WCAB (Carden), 1567 C.D. 2009 (Pa. Cmwlth. 2009)
Milner v. WCAB (Main Line Endoscopy Center, 2331 C.D. 2009 (Pa. Cmwlth. 2009)
Black v. Labor Ready, Inc., Williamsport Steel Container Corp. and Rheem Manufacturing Company, Inc., 312 MDA 2009 (Pa. Superior Ct. 2010)
Moberg v. WCAB (Twining Village), 1767 C.D. 2009 (Pa. Cmwlth. 2010)
ICT Group v. WCAB (Churchray-Woytunick), 2315 C.D. 2009 (Pa. Cmwlth. 2010)
Forbes Road CTC v. WCAB (Consla); Consla v. WCAB (Forbes Road CTC), 919 and 920 C.D. 2009 (Pa. Cmwlth. 2010)
Digest of Appellate Decisions April 2010
Lindstrom Co. v. WCAB (Braun), 1815 C.D. 2009 (Pa. Cmwlth. 2010); Braun v. WCAB (Lindstrom Co.), 1970 C.D. 2009 (Pa. Cmwlth. 2010)
Shaw v. WCAB (Melgrath Gasket Co.), 1871 C.D. 2009 (Pa. Cmwlth. 2010)
Kleinhagan v. WCAB (KNIF Flexpak Corporation), 2009 C.D. 2009 (Pa. Cmwlth. 2010)
DuffyConnors Mourns the Passing of Attorney Christopher S. Jordan
It is with profound sadness that we report the sudden death this weekend of Chris Jordan, an associate with our firm. Chris was an integral part of our firm for the last three years. He was an excellent and respected attorney practicing primarily in the Courts of Common Pleas in Philadelphia and the surrounding counties. Only thirty-five years old, Chris recently learned that he was to be named a “Rising Star” in the upcoming edition of Super Lawyers. It was well deserved.
Chris was beloved in our office. His graciousness and his dry wit will be much missed. He will not be forgotten.
We extend our deepest sympathies to Chris’ family and friends.
Digest of Appellate Decisions March 2010
Stancell v. WCAB (LKI Group, LLC), 1901 C.D. 2009 (Pa. Cmwlth. 2010)
Wells v. WCAB (Skinner), 1136 C.D. 2009 (Pa. Cmwlth. 2010)
Christy v. WCAB (Philadelphia Gear Corporation), 1276 C.D. 2009 (Pa. Cmwlth. 2010)
City of Philadelphia v. WCAB (Harvey), 1379 C.D. 2009 (Pa. Cmwlth. 2010)
City of Philadelphia v. WCAB (Ford-Tilghman), 1049 C.D. 2009 (Pa. Cmwlth. 2010)
"Show Me the Subrogation Lien Money!"
Recently, our Subrogation Practice Group (“SPG”) recovered a boatload of money (close to $1,000,000), for one of our priceless clients, in an extraordinary case involving the assertion of a subrogation lien for workers’ compensation benefits against a seven figure third-party settlement.
Graham v. Campo
The Pennsylvania Superior Court recently issued an Opinion in the above-captioned case on January 15, 2010, with there being two significant issues addressed by the Court. The case involved a hit and run automobile accident in Philadelphia, with the Plaintiff’s car being rear-ended by a car, whose driver then fled the accident scene. The Plaintiff was not able to identify the driver, but witnesses were able to identify the fleeing vehicle’s license plate, allowing the Plaintiff, who was injured in the accident, to file a personal injury lawsuit against the owner of the vehicle.
The Elephant in the Room Wants More Peanuts
Recalling the halcyon days of simple general releases extinguishing third party liability for any and all claims for economic and non-economic damages asserted by injured Plaintiffs, the administrative nightmares imposed by the Medicare Secondary Payor Statute, 42 U.S.C. § 1395, are now obsequiously ubiquitous for those of us involved in the resolution and extinguishment of third-party liability for personal injuries, as well as for workers’ compensation claims, with the responsibility now being imposed on both sides of the litigation “v”, settlement recipients, being Medicare-eligible Plaintiffs, and those “responsible” for the “injury” that ultimately necessitates future medical care otherwise falling under Medicare reimbursement protocols, in the absence of Medicare’s reimbursement interest being protected under a formal Medicare Set-Aside.
Digest of Appellate Decisions February 2010
Barrett v. WCAB (Sunoco, Inc.), 665 C.D. 2009 (Pa. Cmwlth. 2010); Sunoco, Inc. (R&M) and ESIS Wilmington WC v. WCAB (Barrett), 793 C.D. 2009 (Pa. Cmwlth. 2010)
Polis v. WCAB (Verizon Pennsylvania, Inc.), 1549 C.D. 2009 (Pa. Cmwlth. 2010); Verizon Pennsylvania, Inc. v. WCAB (Polis), 1602 C.D. 2009 (Pa. Cmwlth. 2010)
Marx v. WCAB (United Parcel Service), 1176 C.D. 2009 (Pa. Cmwlth. 2010)
Mackey v. WCAB (Maxim Healthcare Services), 1903 C.D. 2009 (Pa. Cmwlth. 2010)
Barrett v. WCAB (Vision Quest National), 984 C.D. 2009, (Pa. Cmwlth. 2010)
MV Transportation v. WCAB (Harrington), 974 C.D. 2009 (Pa. Cmwlth. 2010)
Paz Y Mino v. WCAB (Crime Prevention Association), 41 C.D. 2009 (Pa. Cmwlth. 2010)
Linton v. WCAB (Amcast Industrial Corporation), 104 C.D. 2009 (Pa. Cmwlth. 2010)
DuffyConnors Joins the National Workers’ Compensation Defense Counsel Network
2010 began with a bang for DuffyConnors, as its AV rating by Martindale was closely followed by its formal admission into the National Workers’ Compensation Defense Counsel Network (“NWCDCN”).
The NWCDCN is a network of workers’ compensation defense firms around the country, representing all 50 states, with its member firms specializing in the defense of workers’ compensation claims on behalf self-insured clients, third-party administrators, and insurance carriers.
Digest of Appellate Decisions January 2010
Ashman v. WCAB (Help Mates, Inc. and State Workers’ Insurance Fund, 1429 C.D. 2009 (Pa. Cmwlth. 2010)
Department of Labor and Industry, Bureau of Workers’ Compensation v. WCAB (Excelsior Insurance), 2012 C.D. 2008 (Pa. Cmwlth. 2010)
Bereznicki v. WCAB (Eat ‘N Park Hospitality Group), 1047 C.D. 2009 (Pa. Cmwlth. 2009)
Duferco Farrell Corporation and American Zurich Insurance Company v. WCAB (Zuhosky), 1304 C.D. 2009 (Pa. Cmwlth. 2009)
AV Rated!
DuffyConnors is proud to announce that Martindale-Hubbell recently awarded our partners, Kevin Connors and Kate O’Dell, AV ratings. Their AV ratings are accessible on Martindale’s web page at.http://www.martindale.com/DuffyConnors-LLP/law-firm-1833446-people.htm. Securing AV ratings from Martindale, Kevin and Kate have been recognized by their peers as being “pre-eminent” in their respective practice areas, being the defense of personal injury and workers’ compensation claims for Kevin, and the defense of workers’ compensation claims for Kate.
Digest of Appellate Decisions December 2009
Southwest Airlines/Cambridge Integrated Service v. WCAB (King), 136 C.D. 2009 (Pa. Cmwlth. 2009)
Yespelkis v. WCAB (Pulmonology Associates Incorporated and AmeriHealth Casualty), 1150 C.D. 2009 (Pa. Cmwlth. 2009)
Lancaster General Hospital v. WCAB (Weber-Brown), 1482 C.D. 2009 (Pa. Cmwlth. 2009)
Employers’ Championship Season
The Phillies had a great year in 2009, finishing with 93 wins in a 162-game season for a winning percentage of .574. Currently, the Eagles have eight wins with a .660 winning percentage. Alas, our Flyboys and 76ers are struggling with the Flyers just under .500 and the Sixers at a disturbing .227. However, for Employers throughout the Commonwealth 2009 was a championship appellate season with 37 wins out of 52 published appellate cases, which translates to over a .700 winning percentage. Following are the highlights, and some lowlights, of Employers’ championship season.
Top Thirteen (huh?) Claim/File Handling Boo-Boos
With apologies to David Letterman, we offer you, sans flashcard format, the top claim/file handling boo-boos to avoid, either in maintenance of claim sanity or in preservation of job security.
Digest of Appellate Decisions November 2009
Presby Homes and Services v. WCAB (Quiah), 978 C.D. 2009 (Pa. Cmwlth. 2009)
Bentley v. WCAB (Pittsburgh Board of Education), 1560 C.D. 2008 (Pa. Cmwlth. 2009)
Leisure Line, Adventure Trails, Coach USA Company v. WCAB (Walker); Elmore Walker v. WCAB (Leisure Line/Adventure Trails/Coach USA), Nos. 2174, 2434, 2230 (Pa. Cmwlth. 2009)
Giant Eagle v. WCAB (Givner), 813 C.D. 2009 (Pa. Cmwlth. 2009)
“Locating” Earning Power in Pennsylvania
Riddle me this: your employee sustains a work-related injury, receives workers’ compensation benefits mandated by the Pennsylvania Workers’ Compensation Act, continues receiving compensation benefits for several years, voluntarily relocates out of the sylvan compensation sanctum of Pennsylvania, crossing state lines through the mailed facility of uninterrupted compensation payments, while slowly recovering, years later, from the work injury, such that the injured employee is found to have sufficiently recovered from the work injury to be physically capable of performing some level of full-time, light-duty work; the question being what geographic anomaly must be applied to the gleeful irony of “earning power”, such that the Pennsylvania employer is entitled to petition for a modification of compensation benefits from temporary total to temporary partial disability?
Is Independence Self-Evident?
How many times, whether in the last year or over the course of your tenure as a savvy workers’ compensation practitioner, have you received a Claim Petition, alleging a work-related injury occurring in the alleged course and scope of employment, against an insured, who then proceeds to tell you that the injury was never reported, as the Claimant is not an employee, as the insured contends that the Claimant is an independent contractor, for whom no payroll-based premium has ever been collected?
UIM Update
The Pennsylvania Superior Court issued an important UIM decision on September 23, 2009, in Pusl v. Means, et al. Pusl involved the Plaintiff appealing a trial court judgment in her favor, with the Superior Court affirming the trial court judgment, which judgment had resulted in the Plaintiff’s jury trial verdict being molded to account for a credit/offset against the verdict, by virtue of the Plaintiff having recovered UIM benefits prior to the verdict being rendered by the trial jury.
Digest of Appellate Decisions October 2009
Riddle v. WCAB (Allegheny City Electric, Inc.), 54 WAP 2008 (Pa. Supreme Ct. 2009)
Nationwide Mutual Fire Insurance Co. v. Bureau of Workers’ Compensation Fee Review Hearing Office and Hospital of the University of Pennsylvania, 1132 C.D. 2008 (Pa. Cmwlth. 2009)
Johnson v. WCAB ( Sealy Components Group), 763 C.D. 2009 (Pa. Cmwlth. 2009)
Reutzel. v. WCAB (Allegheny General Hospital), 448 C.D. 2009 (Pa. Cmwlth. 2009)
Harvey v. WCAB (Monongahela Valley Hospital), 333 C.D. 2009 (Pa. Cmwlth. 2009)
Graves v. WCAB (Philadelphia HousingAuthority), 142 C.D. 142 (Pa. Cmwlth. 2009)
Gunn Fight at the Koken Corral
Several months ago, the Pennsylvania Superior Court issued a Decision, in Gunn v. Hartford, 971 A.2d 505 (Pa. Super. 2009) of critical importance to the approach to and resolution of first party claims for uninsured and underinsured motorist’s benefits.
Injury Amendment: Corrective versus Consequential
All workers’ compensation practitioners are aware that the Pennsylvania Supreme Court had previously established a very complicated legal precedent in Jeanes Hospital v. WCAB, 872 A.2d 159 (Pa. 2005), under which Claimants were permitted to seek to amend the accepted description of injury, with the Jeanes Hospital Court allowing Claimants to file Review Petitions to “correct” Notices of Compensation Payable that did not contain a description of injury for which the Claimant sought amendment.
In Cinram Manufacturing v. WCAB, decided on July 21, 2009, the Supreme Court granted the employer’s Petition for Allowance of Appeal, in order to address the “correctness” of Jeanes’ Hospital directive, as it applied to corrective amendments of injuries described on Notices of Compensation Payable.
The Real Diehl: Repairing Impairment
About a year ago, the Pennsylvania Workers’ Compensation community was turned on its head when the Commonwealth Court issued its initial opinion in Diehl v. WCAB (IA Construction Liberty Mutual Insurance). That opinion shocked compensation practitioners in the course of eviscerating the impairment rating provisions of Act 57, superimposing the requirement that employers seeking to modify injured employees’ compensation status from temporary total to temporary partial, in reliance upon an impairment rating, must present evidence of “earning power” as originally held by the workers’ compensation judge, with the Appeal Board’s reasoned analysis of that issue being overturned in the Commonwealth Court opinion that was issued on April 28, 2008.
Superior Court Allows Plaintiff to Withdraw PRCP 1311.1 Stipulation, Limiting Recoverable Damages to $25,000, Removing Limitation on Jury's Consideration of Plaintiff's Damages
In a case of first impression, the Pennsylvania Superior Court recently ruled, on May 1, 2009, in Dolan v. Fissell, No. 239 EDA 2008, that the Plaintiff, who was seeking personal injury damages from a motor vehicle accident, was permitted to withdraw her PRCP 1311.1 Stipulation, allowing a Plaintiff to admit medical records and reports into evidence at trial without the necessity of presenting expert medical witness testimony to offer foundation opinion concerning causation, in exchange for the Plaintiff’s recoverable damages being limited to a maximum award of $25,000.
Trial Case Note: Falling from Grace
With over $200,000 in special damages for related medical bills and “lost” wages, and a specious claim that the Plaintiff lost his job because of his slip and fall injuries, an element of damages vigorously contested through every phase of the trial, this trial, and its ultimate defense verdict, hinged on several key factors. This trial again illustrates the necessity of remaining true throughout any trial to a few critical concepts to enable the jury to trust the “more likely than not” truths initially raised in your Opening Statement to the jury.
A Drive-by of a Course and Scope Case
It was about 6:45 a.m., on an otherwise very normal Tuesday morning, a few days before Thanksgiving, when the Claimant, a 32 year old union painter, was involved in a two-vehicle collision, while driving his personal car to work, for which the Claimant never received any reimbursement from his union employer, for either time or expense when commuting to or from work.
To Be, or Not To Be Reimbursed
With the Bureau having been progressively more aggressive in its administrative denials and challenges to employers/insurers Supersedeas Fund Reimbursement Applications, the Commonwealth Court’s February 2, 2009 Decision in Department of Labor and Industry v. Crawford and Company is an all too welcome key to unlocking the Bureau’s Supersedeas Fund vaults, filled with dollars, shrinking in value as we speak, long ago paid by/assessed against, the very employers and insurers merely seeking reimbursement of funds finally adjudicated as never having been owed in the first place.
