Archive for the ‘Insurance Disputes’ Category

The Pennsylvania Commonwealth Court has ruled that a detoxification program was “reasonable medical treatment” and upheld an Order granting a suspension of wage loss benefits. Under the Pennsylvania Workers’ Compensation Act, if an injured employee (the “claimant”) refuses reasonable treatment, the employee shall forfeit all rights to compensation for any increase in incapacity resulting from such refusal. Treatment has been deemed “reasonable” if it is highly probable that the treatment will cure the health problem and enhance the claimant’s prospects for gainful and fulfilling employment. In the case of Bereznicki v. W.C.A.B. (Eat “N Park Hospitality Group), the employer offered the claimant entry into a detox program and claimant refused the offer. The employer filed a suspension petition, alleging that the claimant refused reasonable medical treatment.

In support of their Petition, the employer offered expert medical testimony which indicated that the claimant was taking various medications (Methadone, Oxycodone, Neurontin, Alprazolam, Zanaflex, Effexor, Wellbutrin, Depakote and Etodolac) and that a chronic pain management program would allow claimant to return to normal neurologic function by decreasing the toxic doses of the medications. The employer’s medical expert also noted that any program that would decrease the toxic dose of the opioids would be in claimant’s best medical interest, that a supervised detox program entails very little risk and that although such a program would not help her return to her pre-injury job, it would make it possible for her to function with activities of daily living.

The WCJ ruled that, while the detox program would not guarantee that the claimant could return to her pre-injury job, an improvement of functioning would make it possible for claimant to work. Thus, the WCJ decided that the claimant refused reasonable medical treatment that would improve her ability to function and return to work.

The Commonwealth Court has upheld the WCJ’s decision in stating that a detox program would wean the claimant from toxic doses of medication, curing that health problem, and would allow the claimant to return to normal functioning and enhancing her prospects for gainful and fulfilling employment. Although the detox program would not return the claimant to her pre-injury job, her refusal of such treatment certainly increased her incapacity.

In a recent settlement, personal injury Attorney Brian Walsh of the DLP law firm secured an award of the insurance policy limits ($300,000.00) for an injured motorist who had initially agreed to settle the case for $3,000.00.

Plaintiff, a 19 year old male, was injured in a motor vehicle accident.

Within a week of the accident, a representative from the defendant’s insurance company met with the plaintiff, who had not yet secured legal representation. The insurance representative convinced the plaintiff to sign a release settling the case for a sum of $3,000.00. The plaintiff then contacted the DLP law firm. DLP was able to void the release and ultimately settled the case for $300,000.00.

“It’s important to know your rights and not sell your claim short” commented DLP’s Brian Walsh, who represented the plaintiff and was able to secure the applicable policy limits in the case. “This gentleman thought he was getting a fair shake when he met with the adjuster. In reality, he wasn’t. Fortunately, he came to us and we were able to void the release. The settlement we were able to secure for him is fair compensation for the injuries he suffered. The moral of the story- obtain legal counsel early”, Attorney Walsh added.

Jennifer was a passenger in a car being driven by her friend, Carol. While going down Main Street in Hawley, a car came out of one of the side roads being driven by Madison. Madison ran a stop sign and drove her vehicle directly in front of Carol’s vehicle, resulting in an accident. Jennifer was injured in the accident and suffered a broken shoulder as well as a bad neck sprain.

When Jennifer brought suit against Madison, Madison’s lawyer joined Carol as an additional defendant in the lawsuit, stating Carol was also partially to blame because Carol did not keep an adequate lookout at the time of the accident.

The case went to trial, and Jennifer was awarded $150,000. Madison was found to be 95% negligent and Carol only 5%. Unfortunately, Madison only had $15,000 in coverage, while Carol had $100,000 in coverage.

Issue: How much can Jennifer collect from Carol’s insurance company?

Answer: While it seems unfair, Jennifer is entitled to collect the entire $100,000 from Carol’s policy. She will have collected $115,000 out of the total verdict of $150,000. Carol’s insurance company will have a right to try to recoup some of the monies directly from Madison, but the likelihood of that happening is very unlikely.

This is referred to as joint and several liability that allows these types of outcomes. It is still the law in Pennsylvania and, as mentioned before, has resulted in many unfair outcomes where people that are found only slightly negligent bear the greater the cost of covering judgments.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

The Pennsylvania Commonwealth Court recently issued a decision in a case involving an Impairment Rating Evalaution (IRE) that was not requested within the statutory time frame, i.e. within 60 days of the claimant’s receipt of 104 weeks of temporary total disability (TTD) wage loss benefits. This issue had previously been discussed by the Pennsylvania Supreme Court in the case of Gardner v. WCAB (Genesis Health Ventures). In Gardner, the Court held that an employer may request a claimant to submit to an IRE more than 60 days after the date the claimant comes into possession of 104 weeks of TTD benefits. Gardner also held that to modify the claimant’s benefit status from total to partial, the employer must seek a change in status via “the traditional administrative process”. Since the Gardner decision was issued in 2005, the question has been “what is meant by the traditional administrative process”?
In Diehl v. IA Construction, the Commomwealth Court addressed this issue. THe Court ruled that the defendant’s actions in securing an IRE under 50% (in the Diehl case, 28%), filing a Petition to Modify Benefit Status, and the presentation of the IRE findings into evidence was sufficient to meet the defendant’s burden of proof. Accordingly, the Diehl Court modified the claimant’s benefits status from total to partial and wage loss benefit entitlement was capped at 500 weeks.

Bad Luck Bob had only been working for several months for Four Aces Construction Company when he fell off his scaffolding breaking both legs. Bob was being paid $500 a week and ordinarily his workers’ compensation benefits per week would total $389.50.

Bob had three children and a wife to support and had always worked two jobs for many years. Beside working at Four Aces, Bob also worked sometimes nights and weekends at the Home Depot where he was able to earn up to an additional $300 per week.

Question: Because Bob’s injury prevented him from going back to his moon lighting job, does Bob have a right to have an increase in his workers’ compensation benefits?

Answer: Yes. Since Bob was injured at a time that he had concurrent employment with Home Depot, Bob will be able to combine his gross wages from both jobs when it comes time for the compensation carrier to figure out how much workers’ compensation benefits he is to receive per week. In this case, instead of simply the wages of $500 per week, from which to base the compensation rate, the combined total of both jobs or $800 will be used. Instead of receiving $389.50 per week, Bob will receive $533.33 per week while he is disabled. Bob’s benefits, since they are workers’ compensation benefits, will not be subject to state and/or federal taxes.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

It was a beautiful, sunny day in Hawley, and Amos McCoy decided to take out his prize 1922 Ford Model T touring car for a little ride up Route 6 towards Milford. Amos cranked up the car and his wife, Sweetpea, joined him in the front seat, and they started on their way.

Unfortunately, “In A Rush Ron” flew through the stop sign at Routes 402 and 6 and caused a collision with Amos’ vehicle. Fortunately, no one was injured but Amos’ vehicle was severely damaged. Before the accident Amos’ vehicle was 100% original parts and was in mint condition. It was estimated that the cost to repair the vehicle would be around $15,000 and Amos’ insurance company offered him that amount. Because of the fact that the vehicle before the accident was in absolute pristine shape with all the original parts, the car was valued well over $60,000. Even if Amos had the vehicle repaired, because of the fact that many of the replacement parts would not be original, the value of the car would be greatly reduced to around $25,000.

Amos’ insurance company took the position that they would only owe the amount to repair the vehicle and nothing else. Amos felt that he was owed both the costs to repair the vehicle as well as the difference between what the vehicle would be worth after it was repaired, which was about $25,000, compared to what it was worth before the accident which was about $60,000.

Question: Who is right?

Answer: In this case, Amos would get his full recovery. Amos’ vehicle was a classic, and the insurance company would be liable for the difference for not only the repair costs, but also the loss of value of the antique automobile.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

The Pennsylvania Commonwealth Court has recently determined that the doctrine of res judicata precludes the filing of a second review petition to expand the description of the work related injury when the parties previously entered into a stipulation that expanded the description of injury.
In Weney v. WCAB (Mac Sprinkler Systems, Inc.), the claimant was injured on October 21, 2005 when he fell from a ladder and sustained a left shoulder strain. As a result of that injury, Weney was unable to work. Hie employer acknowledged the work injury via a Notice of Temporary Compensation Payable (NTCP), which was later converted into the NCP. On March 27, 2006, claimant filed the first Petition to Review Compensation Benefits (Review Petition I), which sought to amend the NCP to include a left shoulder injury in the nature of a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis. The parties then entered into a Stipulation of Facts (Stipulation) wherein they agreed that the NCP should be amended to include the additional shoulder injuries as asserted by claimant in Review Petition I. On May 19, 2006, the Workers’ Compensation Judge issued a decision and order adopting the Stipulation and granting claimant’s Review Petition I. Neither party appealed this decision and order. On May 30, 2006, Weney filed a second Review Petition (Review Petition II) which sought to further amend the NCP to include four herniated discs at the C2-3, C3-4, C4-5, and C5-6 levels, which he allegedly sustained as a result of the October 21, 2005 work incident. The employer filed an Answer denying the allegations set forth in Claimant’s Review Petition II and asserting the affirmative defense that Review Petition II was barred by the doctrines of technical res judicata and/or collateral estoppel. The WCJ held two hearings at which the parties were given the opportunity to present evidence regarding Claimant’s Review Petition II.
The WCJ granted Claimant’s Review Petition II and amended the NCP to include Claimant’s herniated discs. The WCJ did not address Employer’s allegation that Claimant’s Review Petition II was barred by the doctrines of technical res judicata and/or collateral estoppel. Employer appealed and the WCAB reversed the WCJ’s decision and order. Claimant then appealed to the Commonwealth Court.
The Commonwealth Court agreed with the WCAB and concluded that technical res judicata applies and that Claimant’s Review Petition II was barred. The Court noted that the subject matter of both the Review Petition I and Review Petition II proceedings was the nature and extent of the injuries that Claimant sustained as a result of the October 21, 2005 work incident. Thus, the ultimate issue in both proceedings was whether the NCP accurately reflected the nature and extent of Claimant’s injuries.

Jack had been working construction for 20 years and was extremely safety conscious. Jack would always wear a hardhat or safety eyewear when around the construction sites.
As fate would have it, Jack was on his day off when he got an emergency call from one of the construction sites. Jack was a foreman, and there was a dispute over the way some of the electrical work was being done. Jack arrived at the site and proceeded into the building that was under construction. Jack had no sooner entered the building when a metal fragment came flying into his right eye which, despite extensive treatment, would be lost.

Question: What are Jack’s rights under the Workers’ Compensation Act?

Answer: Jack would be entitled to what is called loss of use of the eye which will entitle him to payment of all of his medical bills as well as compensation benefits for 275 weeks regardless of whether he works or not. If Jack’s compensation rate would have been $700/week, he would receive that amount for the full 275 weeks. The Pennsylvania Workers’ Compensation Act provides these types of benefits for loss of use of limbs, eyesight, hearing and even for scarring of the head, neck and face.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Carlos was in America on a work visa. Carlos worked during the summer for the Waterproof Roofing Company. Carlos would send two-thirds of his pay back to his wife in Mexico every payday. Carlos was a very hard worker but as fate would have it, Carlos fell from a roof he was working on as a result of a freak accident causing his death.

Question: Is Carlos’ wife in Mexico entitled to Workers’ Compensation benefits as a result of Carlos’ untimely death?

Answer: Alien widow’s, children and parents, not residents of the United States, are entitled to compensation but only to the amount of 50% of the compensation which would have been provided if they were residents of the United States. Since Mexico does provide compensation benefits for residents of the United States, this would hold true. If Mexico or any foreign country did not provide for this type of protection, then the injured worker’s relatives would have no benefits forthcoming.

If it was Carlos’ wife that was fatally injured and Carlos was living in Mexico, then Carlos would not be entitled to any benefits as alien widowers, and brothers and sisters who are not residents of the United States are never entitled to receive any compensation.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Matt and his lovely wife, Kitty, had been married for 30 years. Kitty would always prepare Matt’s lunch which consisted of a kielbasa sandwich, and chocolate Tasty Kakes. Matt worked at a local lumber yard as a jack-of-all-trades.

On April 22nd, Kitty got a call from the employer that Matt had had a serious heart attack while at work. Matt was taken directly by ambulance to the hospital but, unfortunately, he expired before Kitty arrived at the hospital. Matt and Kitty had been able to save very little and whatever extra money they had, they usually gave to their children. Kitty was able to get Social Security but sought advice as to whether or not she would be able to collect workers’ compensation death benefits in her capacity as the widow of Matt.

Question: Is Kitty entitled to workers’ compensation benefits?

Answer: The mere fact that Matt had his heart attack while at work does not establish a compensable workers’ compensation claim. Kitty, through her attorney, would have to show that Matt’s work in some way caused Matt’s heart attack. If this could be done at all, it would have to be through showing the fact that Matt was performing heavy duty activity at some time prior to the fatal attack. Kitty would also have to have a doctor verify that Matt’s activity was either a precipitating or aggravating cause of Matt’s underlying cardiac condition, thus, triggering the heart attack.

In this particular case, Matt’s heart attack was purely coincidental to the fact that he was at work and really had no relationship to the activities Matt was doing while Matt was at work. Unfortunately, Kitty will not have a claim for death benefits under the Workers’ Compensation Act.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.