Posts Tagged ‘Court’

            Carol and Dave had just finished a wonderful dinner in Hawley and were traveling on Route 590 back to their home in the Hamlin area. Jim and Sue, who had accompanied Carol and Dave for dinner, were in the back seat. It was approximately 9:30 PM. It was dark but the road was dry. From what seemed out of nowhere, a car came through a stop sign quite violently striking Carol and Dave’s car broadside. Unfortunately all four occupants of Carol and Dave’s car suffered serious injuries.

            As it turned out, the car that struck Carol and Dave’s vehicle had minimum insurance with only $15,000.00 in coverage. That amount would have been grossly inadequate to cover the injuries of any one of the victims let alone all four. It was also unfortunate that neither Carol and Dave nor Jim and Sue had underinsurance on their own vehicles. Thus the four injured victims would have to split up the $15,000.00.

ISSUE:          How will the money be split?

ANSWER:     The insurance company for the negligent driver will simply pay the money into court and allow the court to divide up the money. Unfortunately, no matter how the division occurs, none of the four victims will be compensated even closely for the amount of damages that they sustained physically and economically. Every insured driver should make sure they have adequate underinsurance coverage on their policy and carry at least $100,000.00 in coverage.

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. 

Federal judge rules in favor of Lenox Twp. families whose well pad was contaminated.

MATT HUGHES [email protected]

SCRANTON – For the time being, at least, a natural gas drilling company may be held strictly liable for drinking water contamination near one of its well sites, a federal district judge ruled Wednesday.

Lawyers for Southwestern Energy Production Co., Houston, Texas, moved to dismiss a count of strict liability in the civil lawsuit filed against the company by 13 Susquehanna County families in federal court for the Middle District of Pennsylvania.

The families filed a federal class-action lawsuit in September against the drilling company, saying that hydraulic fracturing at a Lenox Township well pad has contaminated drinking water and damaged the health and quality of life of area residents.

Southwestern maintains the alleged water contamination has no factual basis.

Judge A. Richard Caputo ruled Feb. 3 that though strict liability has not been found in analogous cases, the court will wait until after evidence has been presented in the trial’s discovery phase to determine Southwestern Energy’s liability.

Parties may be held to strict liability for damages caused to other persons, land or property when their activities are determined to be abnormally dangerous.

All but two of the plaintiffs live along state Route 92 in the township between 700 and 1,700 feet from the Price No. 1 Well Pad, which is operated by a wholly owned subsidiary of Southwestern Energy Production Co., Houston, Texas. Two other families do not live in the area but state in the suit that they regularly drank contaminated water at the residences of two other families listed as plaintiffs.

The plaintiffs claim their drinking water supplies were contaminated by improper or insufficient cement casings around the Price No. 1 well pad, which allowed industrial waste, including hydraulic fracturing fluid, to enter drinking water wells.

Hydraulic fracturing, or fracking, fluid is the mixture of water, sediment and chemicals injected into the ground to create fissures and release the natural gas being extracted from Marcellus Shale.

Copyright: Times Leader

The Pennsylvania Commonwealth Court has addressed the issue of what constitutes an “abnormal working condition” for the purposes of establishing a work related mental injury. In McLaurin v. W.C.A.B. (SEPTA), the claimant was a SEPTA bus driver with a set route in West Philadelphia. One day, several hooded young men entered his bus without paying their fares. At the end of the bus route, one of these men approached McLaurin and pulled a gun. McLaurin pleaded with the gunman, who eventually put away his weapon and got off the bus. McLaurin then drove to the bus depot and told his supervisor what had happened. He was unable to work the next day nor any other days after that. He then filed a claim petition seeking workers compensation benefits alleging that he suffered work-related post-traumatic stress disorder, anxiety, and angina as a result of the bus incident. The Commonwealth Court has held that Mr. McLaurin did not experience an “abnormal working condition” which he would need to establish to meet his burden of proof in establishing a psychiatric injury. The Court noted that the record contained substantial evidence which showed that life-threatening situations had occurred to its employees “with sufficient frequency that methods of dealing with dangerous passengers were built into employees’ training, and that the bus driver could have thus anticipated his assault”.

The Pennsylvania Superior Court has ruled that an employee who signed a Workers’ Compensation Disclaimer at the time of commencing employment effectively waived her right to file claims against clients of her employer for damages otherwise covered under the Workers’ Compensation Act. In this case, Bowman v. Sunoco, Inc., the employee, Ms. Bowman filed a negligence claim for injuries she sustained on Sunoco property. At the time of the injury Ms. Bowman was employed as a private security guard with Allied Barton Security Services. Bowman contended that the Disclaimer she signed was contrary to public policy and, therefore, unenforceable. The Court disagreed and ruled that the release was not violative of public policy since it did not eliminate Bowman’s right to file a claim for workers’ compensation benefits.

The Pennsylvania Commonwealth Court has ruled that the employer/insurance carrier is responsible to pay for repair of modifications to a bathroom required to accomodate an injured worker who was rendered a paraplegic by a work-related injury. The Court chracterized the bathroom as an “orthopedic appliance” such as a wheelchair, which Employer is obligated to provide per Section 306(f .1) (1)(ii) of the Workers’ Compensation Act. Thus, the Court held that the cost to repair or replace the bathroom is compensable under the Pa. Workers’ Compensation Act.

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.

Slim Jenkins was crossing Main Street in downtown Honesdale in front of the post office on a specially designated area marked as a pedestrian crossing. Main Street was particularly busy because the summer camps were starting to close, and many parents were picking up their campers and returning home. Big Al and his wife, Debbie, from Manhattan had just picked up their son and were heading south on Main Street. Al was looking for a place to stop to get a bite to eat and did not notice Slim crossing the street. It was too late when Al noticed Slim. Al ended up hitting Slim dead on, throwing Slim about ten feet in the air.

Poor Slim suffered fractures of his left hip and arm as well as other injuries. If it wasn’t for the expert care that Slim received from the orthopedic surgeon at Wayne Memorial, Slim’s injuries may have been permanent.

Issue: Where could Slim bring a lawsuit to recover from his pain and suffering?

Answer: Because of the fact that Big Al was from New York State, Slim would be able to bring a lawsuit in the Middle District of Pennsylvania in Federal Court. This is because there is what is called diversity of citizenship as Big Al was from New York and Slim was a resident of Pennsylvania, and the amount in controversy is in excess of $75,000.00 as a result of the serious nature of Slim’s injuries. Slim could also bring a lawsuit in County Court in Honesdale or even in the court which would have jurisdiction where Big Al lives. In this case, Slim’s attorneys will certainly file suit in the Middle District of Pennsylvania, and the trial will take place in Federal Court in Scranton.

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.

In Knechtel v. W.C.A.B. (Marriott Corporation), 934 A.2d 697 (Pa. 2007) the Pennsylvania Supreme Court affirmed an earlier order issued by the Commonwealth Court regarding the issue of whether an injured worker’s health care provider may attend and observe a medical examination scheduled by the defendant employer. Jusice Baer, in his concurring opinion, noted that the Pa. state legislature intended to allow the claimant’s health care provider “a first-hand view of the examination process, through attendance and observation”, but also noted that the legislature did not intend to permit the treating health care provider to engage in any active conduct which might disturb the examining physician and the examination process. Justice Baer went on to state that nothing in the Court’s affirmance of the Commonwealth Court’s opinion, “limiting a healthcare provider to attending and observing an employer’s physician’s examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam”. Justice Baer also indicated that a workers’ compensation judge “retains the discretion to grant a claimant’s reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer’s physician’s ability to conduct an examination”.

The Pennsylvania Supreme Court recently issued a decision indicating that a van modified to meets a quadriplegic claimant’s needs may fall within the definition of an “orthopedic appliance” that an employer is obligated to pay for under the provisions of the Pa. Workers’ Compensation Act (hereinafter “the Act”). In the case of Griffiths v WCAB (Seven Stars Farm, Inc.), the Court addressed an appeal by the claimant of a prior decision of the Pa. Commonwealth Court which held that the Act did not require the employer to pay for the purchase of the van.
The Supreme Court, in a decision issued on March 19, 2008, held that the van “is crucial to restore some small measure of the independence and quality of life that existed before the work injury.” The Court also noted that “the present restrictions on (claimant’s) life and mobility were caused by his service to his employer, and a modified van directly addresses and helps to remediate that very harm”. The Court thus concluded that a wheelchair accessible van qualifies under the broad definition of “orthopedic appliances” set forth within the Act.
The Court then took the analysis one step further noting that, while the Act is remedial in nature, “it does not authorize windfalls”. The Court remanded the case to the Workers’ Compensation Judge for findings of fact as to the claimant’s circumstances prior to his injury (whether he owned and regularly operated a vehicle, the age and type of the vehicle, its value, etc.).
If you have a question on your Workers’ Compensation claim, please feel free to call me (570-347-1011) or email me : [email protected]

Thomas P. Cummings, Esq.

The Pennsylvania Commonwealth Court has ruled that an employer is not entitled to recoupment of an overpayment of workers’ compensation benefits under Section 413(a) of the Workers’ Compensation Act absent the existence of an incorrect “agreement” to modify.

The decision in Dollar Tree Stores, Inc. v. WCAB affirms the ruling of the Workers’ Compensation Appeal Board that had reversed a Workers’ Compensation Judge’s decision that allowed the defendant to recoup $112 per week from the plaintiff. The facts of the case indicate that the excess payments were a result of the employer’s miscalculation of plaintiff’s weekly compensation rate. The Court noted that a stipulation of facts signed by the parties did not meet the definition of aan “agreement” under the provisions of the Act.

Thomas P. Cummings, Esq.
[email protected]
570-347-1011