Posts Tagged ‘Tom Cummings’

The twelve personal injury attorneys at Dougherty Leventhal and Price LLP are handling serious personal injury and workers compensation cases in North Central Pennsylvania. The Law Firm includes six (6) Super Lawyers as voted by Philadelphia Magazine and is representing accident victims in Bradford, Susquehanna, Tioga, Potter, Wyoming. Sullivan and Wayne County. DLP has handled numerous serious injury cases involving tractor trailers, cars, motorcycles, defective products and other types of negligence. Recently, Attorneys Joe Price and Tom Cummings attended a seminar in Houston , Texas to help the firm represent clients injured or killed while involved in the drilling industry or when involved with a vehicle used in the gas drilling industry. The firm has represented clients from many communities including Wellsboro, Coudersport, Mansfield, Towanda, Athens, Waverly. Montrose, Sayre, Tunkhannock and other towns. If you suffer injuries as a result of an accident or while at work, please contact any of our lawyers at dlplaw.com or call 570-call-dlp.

The Pennsylvania Workers’ Compensation Act requires that a Notice of Ability to Return to Work form must be issued to an injured worker (the “claimant”) in a “prompt” fashion in order for an employer to pursue a modification or suspension of the claimant’s wage loss benefits based on an earning power assessment. However, the Act does not define what constitutes “prompt” written notice. Pennsylvania courts have held that the purpose of this statutory requirement is to provide notice to an injured worker that (1) there is medical evidence that the claimant can perform some work, (2) that benefits could be affected, and (3) that the claimant has an obligation to look for work. A claimant must have notice that her benefits could be affected before the employer attempts to modify benefits by showing earning power which is typically done by expert vocational testimony showing open and available work that falls within the claimant’s work-related restrictions and is within the claimant’s geographical area. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of work. The appellate courts have thus determined that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received within a reasonable time after its receipt lest the report itself becomes stale. It also requires an employer to give notice to the claimant a reasonable time before the employer acts upon the information. This necessarily requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice.

In a case involving the recently-created Uninsured Employer Guaranty Fund (UEGF), Attorney Thomas Cummings of the DLP law firm secured an award of wage loss benefits and payment of medical expenses for a gentleman who was injured while employed for an entity whose workers’ compensation insurance coverage had lapsed.
On November 9, 2006, Governor Rendell signed Act 147 into law. Act 147 established and funds the Uninsured Employer Guaranty Fund, which provides benefits to injured employees of uninsured employers. Article XVI of the act requires that an injured worker notify the Fund within 45 days after the injured worker knew that the employer was uninsured. Further, Act 147 prohibits an injured worker from filing a claim petition against the Fund until at least 21 days after notice of a claim is made to the Fund. Prior to the creation of the UEGF, employees of uninsured employers were limited in their ability to secure payment of benefits under the Pennsylvania Workers’ Compensation Act. With the creation of the UEGF, injured employees could now seek recovery from a state-administered fund which streamlined the litigation process and afforded the opportunity to recover benefits from a viable entity.
The facts in the instant case were both shocking and newsworthy. The injured worker was employed by Zigzag.net, an internet marketing firm. The owner of Zigzag.net also was involved in a separate private investment company. An investor in that company called for a meeting that was scheduled at the Zigzag facility on February 12, 2007. Unfortunately, the investor showed up for the meeting armed with a handgun and a semi-automatic pistol and opened fire, killing three people and wounding a fourth. The surviving victim, the claimant in this case, was able to splice together telephone lines that had been cut by the shooter and call “911″. The shooter subsequently shot and killed himself when confronted by police.
Zigzag.net had allowed it’s workers’ compensation insurance policy to lapse. Fortunately, the UEGF was now in place which afforded the victim the opportunity to pursue a claim based upon the fact that the shooting and resultant injuries had occurred while he was “in the course and scope” of his employment, despite the fact that there was no insurance coverage in place. The UEGF fund was given proper notice and the claim was filed. Depositions and hearing testimony were offered by the victim and a representative of the police department which investigated the shooting. Thereafter, the parties were able to agree to an amicable resolution which provided payment of medical bills and wage loss benefits.
If the shooting had occurred just 4 months earlier prior to the enactment of the UEGF provisions, the injured worker would have been faced with the task of pursuing a claim against an uninsured entity with little assets. The creation of the UEGF allowed the victim the opportunity to secure an award of benefits which justly compensated him for his work-related damages.
If you or a loved one has been injured at work, please feel free to contact me, Attorney Tom Cummings at 570-347-1011 or email me at tcummings@dlplaw,com.

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 tcummings@dlplaw.com

Thomas P. Cummings, Esq. December 29, 2006

ACTION ALERT
The Senate is about to begin full consideration of House Bill 2738, a Workers’ Compensation reform bill.  The Pennsylvania Bar Association generally stands in support of this legislation.  There are, however, two very troubling developments with the bill that have broader ramifications than workers’ compensation.

First, the original legislation proposed the professionalization of the Workers’ Compensation Appeal Board.  It would have required standards for Appeal Board members that are consistent with the existing requirements for Workers’ Compensation Judges: being an attorney in good standing before the Supreme Court, five years of Workers’ Compensation practice before administrative agencies or equivalent experience, and annual continuing professional development requirements.  Workers’ Compensation adjudication involves making sophisticated evidentiary rulings, reviewing fact patterns in light of an increasingly complex statutory scheme and understanding of an ever-growing body of complex case law. It is unconscionable that a non-attorney can be responsible for reviewing a decision of a judge who is an attorney and meets certain standards. Second, HB 2738 has been amended to eliminate the salary correction for Workers’ Compensation judges that would bring them to a level of compensation comparable to other administrative law judges.  The elimination of this salary parity provision is a political response to the Court’s pay raise decision, despite the fact that this Worker’s Compensation issue is wholly unrelated to the controversy of judicial pay.  There is no defensible reason to punish a small group of Worker’s Compensation judges in a Worker’s Compensation measure that is completely separate from the judicial pay political issue.  Such action serves no useful purpose, even to inform. We ask you to write to your Senator.  Request that the professional requirements for the Worker’s Compensation Board of Appeals and that simple pay parity for the small class of Workers’ Compensation Judges be reinserted in HB 2738–issues of integrity and professionalism for Pennsylvania’s Worker’s Compensation system and the legal profession, generally. We have made it easy to communicate – go to the PBA’s Legislative Action Center (click here) and compose a Message to Your Legislator on Workers’ Compensation Reform (click on Write Your Legislators).  Complete your Contact Information, and the Legislative Action Center will help you through an easy step-by-step process to edit, and send an e-mail message or download a letter for mailing.  The site has bullet points and a sample letter for you to personalize. Please try to personalize the form message before you send the e-mail or letter. If you choose, you may Compose Your Own Message, using the bullet point arguments noted above, (by clicking on Write Your Legislators under the Compose Your Own Message heading).

- Attorney Tom Cummings

Attorney Tom Cummings is on the committee for the Our Lady Of the Snows annual “Night at the Races” event. This year’s event will take place on March 6, 2010. The event raises funding for the church’s summer vacation Bible school. Personal injury attorney Tom Cummings has been a member of this committee for 4 years.