Posts Tagged ‘Ohio’

The January 14th edition of the New York Times contains a thought-provoking editorial piece authored by Adam Cohen that addresses a “legal Catch-22″ created by tort reform measures in Alabama. Mr. Cohen’s article can be found at http://www.nytimes.com/2007/01/14/opinion/14sun2.html

THEY SAY WE HAVE TOO MANY LAWSUITS? TELL THAT TO JACK CLINE

By ADAM COHEN
Published: January 14, 2007
Birmingham, Ala.

Jack Cline is in a hospital here fighting for his life, stricken by leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene. But Alabama’s all-Republican, wildly pro-business Supreme Court threw out his case.

In a ruling that would have done Kafka proud, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early. Alabama law requires people exposed to dangerous chemicals to wait until a “manifest” injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.

Mr. Cline, who says God has kept him alive so he can challenge the unfairness of Alabama’s law, told his lawyer, Robert Palmer, to keep fighting. Mr. Palmer started a statewide petition drive, wrote a flurry of op-ed pieces and asked the court to reconsider. In an extraordinary move, it reopened the case and heard new arguments last spring.

Big business and its allies are loudly promoting “tort reform” by arguing that America is drowning in frivolous lawsuits. They are winning the public relations battle. Everyone knows the story of the woman who sued McDonald’s because she was burned by hot coffee. But few people know of the Jack Clines — and there are many of them — who have been denied their day in court.

Corporate America — with its large contributions to political and judicial candidates, and its top-dollar lobbyists — has had remarkable success persuading legislatures and courts to erode the bedrock principle of civil law: when people are injured, they are entitled to sue for damages.

At the top of industry’s list of tactics is immunity — the rather brazen notion that companies should be shielded from lawsuits no matter how negligently or dishonestly they act. Gun makers and dealers, notoriously, persuaded Congress in 2005 to give them immunity when their guns are used to maim and kill.

Industries are also winning immunity at the state level, and attracting far less attention. Pharmaceutical companies pushed through a law in Michigan protecting them when their drugs injure or kill people, as long as the drugs were approved by the Food and Drug Administration. There is no reason F.D.A. approval, a deeply flawed process, should be a shield.

When corporations do end up in court, they have lowered the stakes substantially by undermining punitive damages, which have long been one of the main ways that society deters people from unreasonably putting others at risk. The United States Supreme Court struck a major blow against punitive damages a decade ago, ruling that it was unconstitutional for a jury to award $2 million in punitive damages against an auto dealer that knowingly sold a damaged, repainted BMW as new.

Lower federal court judges, many of whom have been screened by the Bush administration for pro-business sympathies, and state court judges, many of whose campaigns were bankrolled by big business, are eagerly joining in. So are state legislatures. Last month Ohio’s legislature voted to cap punitive damages in many cases against paint companies — which have been accused of selling lead-based paint that causes retardation in children — at a paltry $5,000.

Perhaps the most insidious tactic for slamming the courthouse door on injured people is the stealth use of “pre-emption.” When federal and state laws conflict, the federal law pre-empts, or invalidates, the state law. The Bush administration is taking advantage of this principle by issuing weak regulations in a wide range of areas to wipe out stronger state-law protections. When people try to sue, they may find that their legal rights have been swept away. Among the areas the administration has focused on are automobile roof crushes and mattress flammability.

These incursions on the right to sue, taken together, are a serious assault on justice. In the most extreme cases, they may also be unconstitutional. Mr. Cline’s lawyer, Mr. Palmer, argued that preventing him from ever suing denied him his rights under the Alabama Constitution to seek a legal remedy for his injuries.

Mr. Palmer was encouraged when the Alabama Supreme Court reopened the case. He also saw it as a good sign when it scheduled oral arguments for a special public session on a law school campus, an indication it considered the case particularly significant. The arguments went well. “Questions asked by several justices indicated they were troubled by the legal Catch-22,” The Birmingham News reported.

The court ruled this month. It affirmed the dismissal of Mr. Cline’s case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, it said, he would have to take it up with the State Legislature — a body every bit as pro-business as the Alabama Supreme Court.

Mr. Palmer intends to take the case to the United States Supreme Court. In the meantime, Mr. Cline can take some small comfort in the close vote. Four Alabama justices, at least, would not accept a legal system that told people like him that “no matter when” they “file the action, it is either too soon or too late.”

SOURCE: The New York Times, Sunday, January 14, 2007

On December 27, 2006, the Pennsylvania Supreme Court issued a decision holding that a claimant’s prior “bad faith” in failing to accept a job position offered by his employer relieved the employer of the duty to establish subsequent job availability. In the case of Pitt Ohio Express v. WCAB (Wolff), No. 54 WAP 2005, the Court upheld the “bad faith” standard previously enunciated in Spinabelli v. WCAB (Massey Buick, Inc.), 614 A.2d 779 (Pa. Cmwlth. 1992), and followed in JA Jones Construction Co. v. WCAB (Nelson), 784 A.2d 280 (Pa. Cmwlth. 2001).

In Wolff, the claimant had failed to accept an offered position with the employer for which he had been medically released. On the initial petition to suspend wage loss benefits, the Workers Compensation Judge (WCJ) held that the claimant had refused the offer in “bad faith” and benefits were suspended. Wolff subsequently had back surgery that was related to the work injury. He was voluntarily placed on total disability and paid wage loss benefits as of the date of the surgery.

When his condition improved post-surgery, the employer filed a another petition to suspend on the basis of the job previously offered, the claimant’s previous “bad faith” in failing to follow through on the job offer and that the claimant’s condition had improved to the extent that he could have performed the job that provided the basis of the prior suspension petition. The claimant argued that the employer should again have to prove job availability due to a change in circumstances. The employer argued that the claimant’s previous “bad faith” in failing to return to work per the previous job offer relieved them of the duty to show job availability under the Spinabelli and JA Jones precedent. The WCJ granted the suspension holding that the employer did not have to demonstrate job availability. The WCAB reversed, but Commonwealth Court reinstated the WCJ decision based on its prior precedent.

The Pa. Supreme Court has affirmed the Commonwealth Court and held that “an employer will not be forced to prove job availability following a period of total disability after an employee has made a bad faith rejection of an available modified position”.

The Court further stated “claimant’s bad faith relieved employer of the requirement to again demonstrate a continued suitable position was available. An employer cannot be given a never-ending duty to keep a job available for a claimant who rejects it in bad faith. If we allowed a claimant to reject a job in bad faith and then place a burden on the employer to provide the claimant another job whenever he chooses, we would reward bad faith conduct and circumvent the purpose of the Workers’ Compensation Act.”

If you have been injured at work, it’s important to fully understand your rights and what benefits you may recover. It is also important to understand, as the Wolff decision shows us, your duties and obligations with respect to how you should respond to job offers made by your employer post-injury.

If you should have any questions regarding your workers’ compensation case, call me, Attorney Tom Cummings, at (570) 347-1011 or email me at [email protected]

Thomas P. Cummings, Esq. December 29, 2006