Posts Tagged ‘Pa.’

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.

PRESS RELEASE
6-10-09

SCHOTT NORTH AMERICA, INC. TO PAY $1.45 MILLION TO SETTLE EEOC SEX BIAS SUIT

Company Laid Off Class of Women Workers Based on Gender, Federal Agency Said

SCRANTON, PA. — The U.S. Equal Employment Opportunity Commission (EEOC) today announced a major settlement of a sex discrimination lawsuit for $1,450,000 and significant equitable relief against Schott North America, a multinational developer and manufacturer of special glass and specialty materials, components and systems, based in Elmsford, N.Y.

The EEOC charged that Schott laid off women because of their sex after a company reorganization in October 2004 of its specialty glass plant in Duryea, Pa. Prior to the reorganization, glass production at the plant was generally divided into two parts, the “hot end” and the “cold end”; 95.3% of the hot-end workers were male and 76.6% of the cold-end workers were female.

As part of the reorganization, the company created a new position of “melting line operator” and used a “skills matrix” to determine who would obtain these new positions. The glass company laid off employees whom it did not select for the melting line operator position. In its lawsuit, the EEOC charged that the skills matrix system benefited male employees, did not accurately measure the skills truly needed to perform the melting line operator job and had an adverse impact on female applicants – who were selected for layoff at a significantly higher rate than male employees. The EEOC contended that six plaintiff intervenors and five class members were not selected for melting line operator positions and were laid off because of their sex, in violation of Title VII of the Civil Rights Act of 1964.

Acting EEOC Chairman Stuart J. Ishimaru said, “This significant settlement demonstrates the EEOC’s commitment to securing meaningful relief for victims of systemic sex discrimination.”

In addition to the $1.45 million in monetary relief, the three-year consent decree provides substantial equitable relief, including: injunctive relief enjoining Schott from engaging in unlawful discrimination under Title VII or retaliation; annual anti-discrimination training of all supervisors and managers at the Duryea, Pa. facility; and the posting of a notice about the settlement.

“Companies must make hiring and layoff decisions based on the individual’s qualifications and abilities, and not because of gender,” said EEOC Philadelphia District Director Marie M. Tomasso, who oversaw the agency’s administrative investigation which preceded the litigation. “The EEOC will take action if a company reorganization has an adverse impact on women.”

The EEOC filed suit (Civil Action No. 06-CV-1246) in U.S. District Court for the Middle District of Pennsylvania after first attempting to reach a voluntary settlement out of court. Schott did not admit liability in the consent decree, which is pending judicial approval. Sean P. McDonough, of the Dougherty, Leventhal & Price law firm, and Pete Winebrake, of The Winebrake Law Firm, LLC, represented plaintiff intervenors in their private claims against Schott.

Judith O’Boyle, the supervisory trial attorney responsible for handling the litigation, noted, “We are pleased that the parties were able to resolve this matter and that Schott agreed to a variety of remedial measures designed to prevent problems in the future.”

Karen McDonough investigated the charges of discrimination filed with the agency.

According to its web site, http://www.us.schott.com/, “SCHOTT Corporation is the North American headquarters and holding company for the SCHOTT Group. With 16 divisions and subsidiaries in the United States, Canada, and Mexico, SCHOTT Corporation employs approximately 2,500 people for the manufacture and distribution of special glass and glass-related systems. The SCHOTT Group employs 17,300 people worldwide and has sales of approximately $3 billion.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at http://www.eeoc.gov/

ABC News – July 22, 2008
By Megan Chuchmach

Hundreds of thousands of senior citizens are at risk because they are living among registered sex offenders, parolees and residents with violent histories, according to a nursing home watchdog who studied residents at nursing homes, assisted living homes and long tern care facilities.

“What is shocking is we have now found 1,600 registered sex offenders across the country [in facilities with seniors],” said Wes Bledsoe, who is set to testify tomorrow at a Congressional hearing on predators in these facilities. Bledsoe tracked the number of offenders living at these homes over the past four years by matching addresses from sex offender registries with a database of care facilities from Medicare.

Bledsoe said that in many of these cases the offenders are young adults who are often placed in the facilities because of disabilities or behavioral problems.

“We found teenagers, two nineteen year olds living in these facilities, many in their twenties, thirties, and forties,” Bledsoe said.

“We have also documented over 60 rapes, murders, and assaults committed by criminal offenders in these facilities,” he said.

Pennsylvania Attorney Sean McDonough will appear at the hearing to speak about Lillian Guernsey, who was 86 years-old in 2002 when she was raped by another resident at a Pennsylvania facility. The assailant, a 31 year old fellow resident, had eight prior adult arrests, three convictions and two adult commitments to correctional facilities before he arrived at the home, according to McDonough’s statement. Her assailant is now in prison, convicted of rape and sexual assault.

And six years to the day after her elderly mother was raped in a Florida nursing home, Sandra Banning will also testify.

Banning said she had no choice but to place her mother Virginia Thurston in a nursing home after Thurston, who suffered from dementia, was repeatedly found wandering the streets alone in the middle of the night.

“Growing up, Momma always said, ‘If you place me in a nursing home, I’d never forgive you’,” said Banning. “But that’s what we had to do for her safety.”

Banning, 60, said she had no idea that the facility she placed her mother in was also the home of a violent offender with a history of arrests. She found out after nursing home staff called her July 23, 2002 to tell her the offender had raped Thurston, then 77, in her bed.

“They found him right in the act,” said Banning. “This man was 83 years-old and in a wheelchair. Not someone you’d think would be a rapist.”

But Batming says it was only after the rape occurred that she found out the man had been arrested 58 times and that a court ordered him to move from a homeless shelter into the assisted-living facility.

Banning said she’ll never forget the “look of terror” in her mother’s eyes when she had to explain to her that she had been raped or the moment when she had to hold her mother’s hand inside a sexual assault response center when she was examined.

“I think that at that point reality was there and she knew what was going on,” Banning said of her mother, who didn’t recall the rape because of her dementia. “The tears were streaming out of her eyes.”

Banning says that despite physical evidence of sexual assault, the man was found incompetent to stand trial and has since been relocated to another Florida nursing home. She won a civil suit against the nursing home in the amount of $750,000 last year, which has not yet been paid out.
“She was my best friend,” said Banning of her mother, who passed away in 2003. “After that happened, I had such guilt from putting her away where that could happen. So I vowed that I would make a change.”

Tomorrow, Banning will tell her story to Congress, an opportunity she calls “awesome.” And when she retires August 1 from her job as a medical staff manager for the Navy Medicine Support Command, she says she will “take up predators in nursing homes full-time.”

“I believe that’s why God put me here on this Earth,” said Banning, fighting off tears. “It may be trips back and forth to Washington, but I’d go to the moon if I had to. Because someday it could be me; it could be you.”

‘There is no law, federal or state, that keeps violent or sexual offenders out of long-term care facilities as residents,” said Bledsoe, who founded the citizens’ advocacy organization A Perfect Cause in 2001 after his grandmother died in an Oklahoma City nursing home from what he says were negligent acts. A civil suit against the facility was settled out of court.

“The problem we have is that these offenders are being warehoused in nursing homes because the excuse is, ‘Well, where else are we going to put them?’”

Bledsoe will present his findings on what he calls a “national disgrace” to the House Subcommittee on Investigations and Oversight tomorrow. In his prepared testimony, Bledsoe calls for the establishment of separate and secure long-term care facilities for violent and sexual offenders, criminal background checks for all residents, and notification of offenders residing in the facilities, among other recommendations.

Bledsoe said that offenders are placed in long-term care facilities by district court judges, county sheriffs, adult protective services workers, and corrections workers, as well as by offenders themselves and their families. And he said that while these offenders deserve care, seniors living in the homes deserve protection.

“I hope that some of the congressional leaders don’t sleep soundly tomorrow,” said Bledsoe, “and that this makes an impression on them that right now, in this moment, we have people in harm’s way.”

Rep. Mary Fallin (R-OK), who organized tomorrow’s hearing, issued a statement today in which she described seniors living in long-term care facilities as “some of the most vulnerable of our citizens.”

“The rare cases of sexual assault and abuse that have been documented in these facilities are particularly abhorrent,” said Fallin, adding that the hearing will “investigate both the scope of the problem and the possible roles the federal government might play to eliminate it.”

Joining Bledsoe to speak at the hearing will also be Oklahoma State Representative Kris Steele, who authored legislation passed in Oklahoma in May to establish separate living facilities for registered sex offenders. The state is now preparing a request for private bids to build such a facility.

Megan Chuchmach is a 2008 Carnegie Fellow at ABC News in New York. She recently graduated from Columbia University’s Graduate School of Journalism.

Congress of the United States
U.S. House of Representatives Committee on Small Business
2561 Rayburn House Office Building
Washington, DC 26515

July 16, 2008 VIA E-MAIL
Mr. Sean McDonough Dougherty, Leventhal, and Price, LLP
75 Glenmaura National Blvd.
Moosic, PA 18507

Dear Mr. McDonough:

I am writing to invite you to testify at a hearing of the U.S. House of Representatives Committee on Small Business, entitled “The Impact of Predators in Long-Term Care on Small Business Operators.” The hearing will take place on Wednesday, July 23 2008, at 10:00 a.m., in room 1539 of the Longworth House Office Building.

The entire written statement will be entered into the record. You should be prepared to summarize the written testimony in a five-minute oral presentation. The Rules of the Committee require that testimony is submitted at least two days prior to the date of the hearing, as well as a copy of witness’s curriculum vitae (or other statement describing education, employment, professional affiliations and other background information pertinent to the testimony), and a completed witness disclosure form (enclosed).

The Rules of the Committee also require that an electronic copy of the testimony is submitted for the Committee majority and minority staff by sending it to: DarienneGutierrez@ mail.house.gov and Lisa.Christian@ mail.house.gov. In addition, please provide 75 copies of your testimony for distribution at least one day prior to the date of the hearing. Testimony should be delivered to the Committee’s office at 2361 Rayburn House Office Building and a copy should also be delivered to the office of the minority staff in Room B-363 Rayburn. The Committee looks forward to your participation. Should you have any questions, please contact Melody Reis, Counsel, at 202-225-4038.

Sincerely,

Nydia M. Velazquez, Chairwoman

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 recently ruled in Boleratz v. W.C.A.B. (Airgas, Inc.) that treatment in the nature of massage therapy was not subject to payment by the employer under the Pa. Workers’ Compensation Act. In Boleratz, the treatment in question had been prescribed by Claimant’s treating physician. The parties also agreed that the treatment was causally related to the work injury. The Court held hold that the services of the massage therapist, who is not licensed or otherwise authorized by the Commonwealth to provide health care services, are not reimbursable under the Act, even if the services are prescribed by a health care provider as the services did not constitute “services rendered by a health care provider under the Workers’ Compensation Act”. 77 P.S. § 531(1)(i)(ii); 77 P.S. § 29.
Thomas P. Cummings, Esq.
[email protected]
(570) 347-1011

In Tannenbaum v. Nationwide Insurance Company, 919 A.2d. 267 (Pa.Super. 2007), the Pennsylvania Superior Court ruled that an insurer is not entitled to a credit for private disability benefits received by an insured against an award of underinsured (UIM) motorist benefits to the insured.  The Court held that benefits derived from self-paid disability coverage do not duplicate benefits payable under a UIM insurance policy.

Prior to the arbitration hearing in Tannenbaum, the insurance company submitted a motion in limine seeking to preclude the Claimant from introducing evidence relating to amounts paid or payable from two personal disability policies subscribed to Claimant, and one group policy supplied by his employer under an earned employee incentive program, all three of which were issued by the same company, UNUM. The motion was granted, and after a hearing the arbitrators credited and/or set off $984,432.52 against their award of $1,875,000.00, leaving a net amount of $890,567.48.  The Claimant’s petition to vacate the arbitrators’ decision was granted after a hearing, and the insurance company appealed to the Pennsylvania Superior Court.

The motion in limine was based on the theory that because Claimant had already received disability benefits in the form of payments from UNUM, receipt of UIM payments without set-off would constitute duplicate recovery, or “double dipping,” a practice the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1722, was specifically designed to prevent. That section provides:

§ 1722. Preclusion of recovering required benefits

In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.

On appeal the insurance company assigned error to the trial court’s determinations that: 1) that § 1722 does not prevent Claimant’s receipt of benefits from both his UIM coverage and his disability policies; and 2) that Claimant should be able to plead and prove the amount of benefits paid or payable from his personal policies where a dispute still existed as to whether the group policy was paid for by Claimant or his employer.

The insurance company argued essentially that § 1722 must be construed to regard any benefit payments other than those received pursuant to UIM coverage as, by definition, duplicative. In so arguing, the insurer confused double recovery, which the Act does not permit, with recovery of excess benefits, for which the Act makes provision. See 75 Pa.C.S.A. § 1719(a).^FN2

FN2. 75 Pa.C.S.A. § 1719. Coordination of benefits

(a) General rule.-Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712(1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers’ compensation.

The crux of the insurer’s argument was that “ § 1722 does not exempt plans because of the source of the payment and to adopt such an approach would defeat the very purpose of the MVFRL.” (Appellant’s Brief at 24). Specifically, the insurer insisted that Claimant having himself paid for his personal disability policies does not entitle him to benefits under both that coverage and his UIM policy, since such recovery would undermine the intent of the statute to prevent duplicate benefits. The Court noted however that it was not persuaded, as a review of case authority in the area revealed a clear intent to acknowledge the legitimacy of excess benefits.^FN3

FN3. The insurer’s challenge to the order was based almost entirely on Austin v. Dionne, 909 F.Supp. 271 (E.D.Pa.1995), which, as a Federal District Court decision, is both non-binding on this Court, and prior in time to the controlling authorities discussed herein.

The Court noted that preliminarily the disability policies at issue on their face stated, as § 1719(a) requires, that they were in excess of first party benefits available under the MVFRL. Excess clauses have long been understood to “provide protection to the insured in addition to other coverage which might be available to him.” Connecticut Indemnity Company v. Cordasco, 369 Pa.Super. 439, 535 A.2d 631, 633 (1985) (citation omitted). Our Supreme Court in Panichelli v. Liberty Mutual Insurance Group, 543 Pa. 114, 669 A.2d 930, 932 (1996), addressed the question of whether sick pay and social security benefits were deductible in calculating actual loss of income under the MVFRL. The Court made clear that benefits for which an employee has paid, either “in the form of lower wages for the sick leave benefits and in the form of payroll deductions for the social security benefits,” id., are not duplicative, since “the reference in § 1719(a) to § 1712(2) ^{FN4 shows an intent on the part of the Legislature to allow excess recovery of wage benefits payable under any program, group contract, or other arrangement.” Id. (emphasis added).FN4. § 1712. Availability of benefits}

^{An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title … shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:}

^{(2) Income loss benefit.-Includes the following:}

^{(i) Eighty percent of actual loss of gross income.}

^{(ii) Reasonable expenses actually incurred for hiring a substitute to perform self-employment services thereby mitigating loss of gross income or for hiring special help thereby enabling a person to work and mitigate loss of gross income.}

^{Similarly, in Browne v. Nationwide Mutual Insurance Company, 449 Pa.Super. 661, 674 A.2d 1127 (1996), appeal denied, 545 Pa. 674, 682 A.2d 306 (1996), the Supreme Court found that payment under the MVFRL was not subject to offset for social security disability benefits because the source of the latter is the claimant himself. Id. at 1129. The Court noted as critical appellant’s having paid for the coverage out of his own pocket, and found that fact rendered the benefits recovered in excess of his UIM benefits, not in duplication.}

^{In Carroll v. Kephart, 717 A.2d 554 (Pa.Super.1998), the Supreme Court again concluded, after reviewing Panichelli and Browne, that sick pay, because of which the Claimant received lower wages, was not a reprise of wage loss benefits under the MVFRL: “benefits [] which a plaintiff has *271 paid for or earned through his employment are not within the purview of § 1722 and the receipt of those benefits do not constitute a double recovery.” Id. at 558.}

^{This view is further developed in Ricks v. Nationwide Insurance Company, 879 A.2d 796 (Pa.Super.2005), appeal denied, 587 Pa. 698, 897 A.2d 459 (2006). There the question involved whether the claimant’s recovery of uninsured motorist (UM) benefits under his own policy was duplicative of benefits received under his employer’s workers’ compensation coverage. The Court found that it was not, as the statute prohibits subrogation by a workers’ compensation carrier against a claimant’s personal UM insurance policy. Id. at 801 n. 8.}

^{In Standish v. American Manufacturers Mutual Insurance Company, 698 A.2d 599 (Pa.Super.1997), the Court considered the situation of a worker injured in the course of his employment while driving his personal vehicle. Because the automobile insurance premiums had been paid exclusively by the Claimant, the Court found that his receipt of benefits pursuant to his own automobile policy was not duplicative of workers compensation benefits, and therefore not subject to subrogation. Id. at 601.}

^{All of these cases involved types of personally paid insurance different than that of the Claimant in Tannenbaum, and the insurer insisted that the holdings in each were limited to the specific type of excess insurance considered. However, the Court was not persuaded, as the overarching principle remains constant: where the personal policies resorted to are both separate from UIM, or UM, coverage, and paid for exclusively by the claimant either directly, or through payroll deductions which result in lower wages, payments received from these coverages do not duplicate benefits under the MVFRL as they are fundamentally different from those benefits.}

^{The insurer also contended that the trial court erred in finding that Claimant should be allowed to plead and prove the amounts paid or payable from his disability policies. The error lies, the insurer insisted, because the information on these matters was not submitted to the arbitration panel which therefore did not resolve the question of whether the disability policy Claimant received through his employment was paid for by him or his employer. Again, the Court was not convinced.  The absent information was not provided to the arbitrators because they had, in granting insurer’s motion in limine, refused to receive it. As already noted, in so doing they erred. Given this circumstance, the argument that the trial court erred in ordering that Claimant “is permitted” to produce this evidence is one most charitably described as circular.}

^{In Ricks, supra, a panel of arbitrators was found by the Pennsylvania Superior Court to have prohibited the appellant improperly from “pleading proving and recovering” from his UM carrier the amount of worker’s compensation he had received, an amount deducted from his UM coverage. We determined that because the two payment streams were not duplicative under § 1722, “the arbitrators ‘had refused to hear evidence material to the controversy,’ such that their award should be vacated. 42 Pa.C.S.A. § 7314(a)(iv).” Id. at 801. The Court noted the arbitrators in this case made the same mistake.}

^{If you have any questions about UM or UIM coverage, or a UM or UIM claim, please contact DLP for a free consultation.}

^{John P. Finnerty, Esquire}

In Urmann v. Rockwood Casualty Insurance Company, 905 A.2d 513 (Pa. Super. July 31, 2006), the Pennsylvania Superior Court held that the trial court did not commit an abuse of discretion when it approved a settlement in which the workers’ compensation carrier was not fully compensated for it’s lien and most of the settlement was apportioned to loss of consortium.

John Urmann was injured in a work-related, single-car accident. As a result of the accident, he received workers’ compensation benefits and also pursued a third party claim. The initial offer of settlement in the third party case was $25,000 but after mediation, the case was settled for $300,000, with $250,000 being apportioned to Mrs. Urmann’s loss of consortium claim, and $50,000 to Urmann’s bodily injury claim. The civil trial court approved the settlement. The workers’ compensation carrier appealed the approval because its recovery from the $50,000 portion of the settlement would have left its lien substantially less that what it was owed.

Rockwood Casualty Insurance Company argued that the Urmanns unilaterally apportioned the settlement funds with the majority of the money going towards the consortium claim and, thus, violated Section 671 of the Workers’ Compensation Act.
The Superior Court held that Rockwood did not present any evidence of an improper apportionment and that the trial court was not in violation of the decision of Pendleton v. WCAB (Congoleum Corp.), 625 A.2d 187 (Pa. Commw. 1993) because there was an agreement with the third party and an adjudication by the trial court after reviewing the agreement and after a hearing.
After reviewing the evidence presented before the trial court, the Superior Court concluded that the trial court did not err or abuse its discretion when it determined that the Urmann’s had presented sufficient “non-economic” evidence in support of their petition to approve the settlement agreement. The Court noted that the unusual facts of the case supported apportionment since claimant was oblivious to or unaware of his limitations from brain injuries and his spouse was the true victim of his personality changes, and no public policy imperative existed to require maximization of carrier’s subrogation interests.

Thomas P. Cummings, Esq.