C&W Journal

The Work Product Privilege vs. Expert Disclosure

2010-03-09T13:46:37Z

Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, et al., In Re: Opinion Pursuant to Rule 1925, No. 07-3604 (C.P. Cumberland County, Dec. 15, 2009)

]]> Under PA Rule of Civil Procedure (Pa.R.C.P.) 4003.3, a party may obtain discovery of any matter discoverable under the Rules, but such discovery shall not include the disclosure of the mental impression of a party’s attorney, which includes his/her conclusions, opinions, memoranda, notes or summaries of legal research or legal theories. Under Pa.R.C.P. § 4003.5, a party is permitted to seek discovery of facts known and opinions held by an expert. So what happens when these two Rules collide?

Many Common Pleas Courts face the same issue when an injured Plaintiff’s treating physician also acts as the Plaintiff’s medical expert. In Barrick, the Plaintiff’s treating physician was also his expert witness. When defense counsel subpoenaed the treating doctor’s file and all documents pertaining to Plaintiff, the only documents produced were the Plaintiff’s treating records. Other documents from the Plaintiff’s attorney to the doctor were withheld because Plaintiff claimed that they were prepared in the anticipation of litigation and were addressed to the role of the physician as an expert witness.

The Barrick court scrutinized the issue and noted that there is no controlling authority on this issue in PA. The Court looked to a case decided in Court of Common Pleas of Pike County involving the same issue (Pavlak v. Dyer, 59 D. & C. 4th 353 (Pike, 2003). In Pavlak, it was concluded that plaintiff’s counsel was permitted to redact the expert’s opinion work product from correspondence before forwarding them to defense counsel. In addition, plaintiff’s counsel was required to provide the court, within seven (7) days, the redacted correspondence and the unedited correspondence for an in camera inspection to ensure that plaintiff’s counsel had not inappropriately redacted factual allegations. If they did, the court would then forward copies of the unedited correspondence to the defense attorney.

The court in Barrick did not pursue the in camera inspection. Instead the court looked to the federal courts for guidance. Many federal courts have concluded that the expert disclosure requirement “trumps” any assertion of the work product privilege. Accordingly, Barrick held that where an expert is being called to advance a plaintiff’s case in chief and the nature of the expert’s testimony may have been materially impacted by correspondence with counsel, such correspondence is discoverable and must be produced.

Sputum, Specific Loss and Average Weekly Wage

2010-03-09T13:36:10Z

Lancaster General Hospital v. WCAB (Weber-Brown), Pa Cmwlth. (Dec. 15, 2009)

]]> In this case, the Claimant sustained an eye injury sometime in 1979 or 1980. Claimant was a nurse cleaning the tracheotomy of a patient with herpes simplex virus (“HSV”). The patient coughed causing sputum to spray into Claimant’s left eye. The injury was timely reported to employer. Claimant believed she contracted HSV due to the spraying incident. The testimony by the Claimant and her time of injury employer as well as the medical records at the time were inconclusive as to when the original injury occurred. Over the next 25 years, Claimant would periodically suffer from eye infections, receive treatment, the condition would dissipate, and her vision would return. Claimant stopped working for this employer in 1985. In October 2006, the infection returned but did not improve. Eventually by February 2007, Claimant lost vision in her left eye. She had a cornea transplant in May 2007 which resulted in scarring and no improvement in her vision.

After reviewing the employment records, the testimony of Claimant and numerous fact witnesses, the Commonwealth Court agreed with the WCJ and WCAB that there was more than enough evidence that a reasonable mind might accept the conclusion that the claimant's loss of sight was the result of work related HSV exposure. The Court held that the exposure to HSV occurred in 1980. Nevertheless, the Court determined the date of injury for purposes of specific loss was May 16, 2007, which was the date of the cornea transplant. The Court also determined that the Average Weekly Wage and compensation rate should be calculated from Claimant’s wages in 2007, not 1980.

Hills and Ridges Doctrine and General Icy Conditions

2010-03-09T13:23:47Z

Tucker v. Bensalem Twp. School Dist., 2009 WL 4877767 (Dec. 17, 2009)

]]> Cipriani & Werner, P.C. successfully defended an appeal to the Commonwealth Court arising out of the trial court’s denial of Plaintiff’s Post-Trial Motion. In the case of Tucker v. Bensalem Twp. School Dist., 2009 WL 4877767 (Dec. 17, 2009)(Leavitt, J., Kelley, S.J., Flaherty, S.J.), the Commonwealth Court upheld the defense verdict in favor of the school district in a parking lot slip and fall accident involving black ice. Prior to the start of trial, defense counsel was able to obtain a stipulation from Plaintiff that she was only pursuing a claim for the negligent failure to maintain the parking lot and not a design defect.

The Commonwealth Court concluded that the jury properly concluded that the Plaintiff failed to establish a cause of action for negligence. In setting forth the standard of care owed by an owner/possessor of land during generally icy conditions, the Commonwealth Court held that a property owner is not required to keep his parking lot free from ice at all times, as weather conditions can make this difficult if not impossible. The Commonwealth Court went on to hold that there is no liability where there are generally slippery conditions from a recent or current storm.

The Commonwealth Court upheld the Hills and Ridges standard as being applicable during general icy conditions. To recover, the Court confimed that a person must prove that there was a dangerous condition created by hills and ridges, which was created by the defendant's negligence, or which was allowed to remain for an unreasonable length of time. At trial, the Plaintiff only presented testimony that the ice was clear and smooth. The Defendant offered evidence that the local roads and parking lots were also icy and slippery due to the recent bad weather. There was also additional evidence that the parking lot had been plowed and salted by the school district the night before the incident. Because of the disputed evidence, the Commonwealth Court held that the jury had sufficient evidence to determine that the school district was not negligent.

Anatomy of A Job Offer

2010-01-26T17:11:15Z

Published in the January 2010 issue of PSIA Workers' Compensation

]]> One of the greatest pitfalls in mitigating indemnity exposure occurs where the employer fails to make a legally sufficient job offer that will hold up in litigation. In the most common real world scenario, an injured worker will call or report back to the employer with restrictions imposed by the emergency room or panel provider. If the employer can accommodate the restrictions, then the employer communicates job availability verbally to the employee. In the best case scenario, the injured worker will perform within his restrictions, make a full recovery and ultimately transition back to the pre-injury position in a timely fashion.

Unfortunately, not all injured workers cooperate or communicate with the employer. Moreover, workers' compensation litigation is nothing like the real world. In order to preserve one of the most common and effective affirmative defenses, job availability, there are a number of prerequisites imposed on an employer by the Pennsylvania Workers' Compensation Act. This article will out-line how to make a legally sufficient job offer that will hold up during litigation.

Failure to issue a Notice of Ability to Return to Work (LIBC-757) is by far the most fatal mistake that will undermine any attempt to modify or suspend wage loss benefits on the basis of a specific job offer. In the context of litigation, a verbal job offer during a face to face meeting or via telephone will not be sufficient to prove job availability. In the context of workers' compensation litigation a job offer must be in writing and must be sent after or contemporaneous with the Notice of Ability to Return to Work.

Section 306(b)(3) provides that if the insurer receives medical evidence that the employee is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the Department, when states all of the following: the nature of the employee's physical condition or change of condition; that the employee has an obligation to look for available employment; that proof of available employment opportunities may jeopardize the employee's right to receipt of ongoing benefits; and, that the employee has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions. The form prescribed by the Department is the Notice of Ability to Return to Work (LIBC-757).

The issuance of the Notice of Ability to Return to Work is a mandatory prerequisite to obtain modification or suspension of benefits whether in the context of an original claim petition or in a petition filed after the claim has been accepted. The notice must be received by the claimant before the job offer expires in order to be effective. The only exception where the notice is not legally required is when modification is based on expert vocational testimony and surveillance showing imputed earnings rather than a change in medical condition.

As a general practice tip, if the employer receives a medical release and has work available to accommodate the restrictions, then the employer should issue the Notice of Ability to Return to Work attached to the formal written job offer letter. Alas, in litigation even the job offer letter must contain certain elements in order to meet the employer's burden of proof on job availability.

In order to be legally sufficient, a job offer letter must contain the following elements: the category of work for which the claimant has received medical clearance for example, sedentary duty, seated work only, no overhead lifting, etc.; the job title and a brief description of the proposed job; the available hours and rate of pay and a firm date, time and location where claimant will be expected to return to work. These elements are mostly self-explanatory. The job title and description can be "limited to a general job classification along with a basic description to give the claimant something to go on." (Four-way Construction Company v. WCAB (Snyder), 536 A.2d 873 (Pa. Cmwlth. 1988)).

The job offer should be sent via regular and certified mail. The following is a sample of a legally sufficient job offer letter:
Dear Claimant:
We are pleased to learn that you have been released to return to work by Dr. X. Dr. X has indicated that you are able to return to work in a light duty capacity with no lifting over 20 pounds. As such, we are hereby offering you the position of ____________.
The duties of the position are:
(briefly describe job tasks)
This position conforms to the restrictions imposed by Dr. X. Please report to human resources on __/__/____ at 8 a.m. This position is available ___ hours per week at the rate of $___ per hour.
Enclosed herein is a copy of Dr. X's medical release and accompanying Notice of Ability to Return to Work. We look forward to your return to work.
Sincerely,

If the employer is fortunate enough to have suitable work to accommodate the restrictions of an injured worker, that is very powerful evidence to mitigate exposure for wage loss benefits. Hopefully, the claimant will respond favorably to the job offer and litigation can be avoided entirely. All too often, however, the claimant does not want to return to work and instead files a claim petition. So long as the employer followed the above requirements, the affirmative defense of job availability remains viable in litigation.

Court Upholds Venue Clause in Auto Insurance Policy

2009-12-02T15:43:32Z

O'Hara v. First Liberty Insurance Corporation (PA Super., Nov. 9, 2009

]]> In the most recent appellate case addressing the new way of litigating UM/UIM matters in Pennsylvania, the Superior Court upheld the venue clause requiring that consumers file suit in the county in which he or she lives. A three-judge panel in the case of O'Hara v. First Liberty Insurance Corporation (PA Super., November 9, 2009 per judge Kelly) rejected arguments by the claimant that venue selection provisions are void as against public policy or in violation of Pennsylvania law (PA Rule of Civil Procedure 2179). In this case, a Philadelphia County venue preferred by the claimant was rejected. The case was transferred to Delaware County where the O'Hara's live.

Carmack Provides Exclusive Cause of Action for Interstate Transportation Losses

2009-12-02T13:53:09Z

Carmack Amendment, 49 U.S.C. §14706

]]> Unless a shipper and carrier have a contract which excludes the Carmack Amendment, the federal statute provides the exclusive remedy for loss or damage to goods arising from the interstate transportation by a common carrier. A trucking company is a carrier, essentially, if it provided motor vehicle transportation for compensation. However, the shipper can only bring a claim against the receiving carrier or the delivering carrier. If there was an intermediate carrier, the shipper cannot bring a claim against it, but the receiving or delivering carrier can bring a claim against the intermediate carrier to recover what they paid under a shipper’s claim.

In order to show a prima facie case of liability under Carmack, a shipper only needs to show delivery of the goods to the carrier in good condition and arrival of the goods in a damaged condition at the final destination. If this is shown, the trucking company can avoid liability by proving that it was free of negligence and that the damage or loss to the goods was caused by: (1) an act of God; (2) act of public enemy; (3) act of shipper; (4) act of public authorities; or (5) by the inherent vice or nature of the goods.

If liability is established, the only remaining issue is damages. Under Carmack, a shipper can recover actual loss or injury, which means the difference between the monetary value of the shipment after the damage or loss. The Carmack Amendment generally does not allow for special or consequential damages, such as the shipper’s loss of profits or business that resulted from the damaged or lost goods. The exception to this rule is if the carrier knew at the time of entering into the contract that the shipper would suffer a specific type of damage, other than the actual loss, if the cargo was lost or damaged. Special or consequential damages are generally not recoverable by a shipper in these circumstances because the Carmack Amendment preempts all state law claims. This preemption also precludes the right to recover attorneys’ fees.

Federal Law Creates Private Rights for Nursing Home Residents

2009-12-02T13:32:42Z

Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 F.3d 520 (3rd Cir. 2009)

]]> In order to obtain a remedy under Title 42 U.S.C. §1983, a plaintiff must assert the violation of a federal right, not merely the violation of a federal law. Whether a federal statute creates such a right, which is enforceable by an action for damages, requires a court to determine if Congress, in enacting the statute, intended to confer individual rights upon a class of beneficiaries.

Section 1983 is an instrument for imposing liability against anyone who, under color of state law, deprives a person of rights that are secured by the Constitution and federal laws. One of the most significant points to remember about Section 1983 claims is that they provide for the recovery of attorneys’ fees by a successful plaintiff.

The Federal Nursing Home Reform Amendments places certain requirements on nursing homes with respect to the care provided to residents. The Third Circuit Court of Appeals (which encompasses both Pennsylvania and New Jersey) in the Grammer case held that the requirements of the federal statute bind States and nursing homes to a defined standard of care. Moreover, the federal statute contains “rights-creating language” thereby granting nursing home residents individual federal rights enforceable under §1983.

Liability for Replacement of Prosthesis

2009-12-02T13:01:15Z

Bowlaway Lanes v. WCAB, 496 A.2d. 99 (Pa.Cmwlth 1985); Thiele, Inc. v. WCAB, 586 A.2d 489 (Pa.Cmwlth. 1991).

]]> In Bowlaway Lanes, the Claimant sustained a work-related injury in 1975 while employed by Eleventh Frame Lounge. The injury resulted in the replacement of Claimant’s hip with a prosthesis. Claimant subsequently became employed by Bowlaway Lanes, where, in 1979, he suffered a stress fracture to his artificial hip joint, necessitating the replacement of the damaged hip joint with a new prosthesis. The referee held that the 1979 incident resulted in a new injury and ordered Bowlaway Lanes to pay benefits and medical expenses related to the replacement of Claimant’s damaged hip implant. The WCAB and Court affirmed, holding that where the replacement of a prosthesis has been necessitated due to a second work-related injury, as defined in Section 301(c) of the Act, 77 P.S. § 411, the second employer shall be responsible for the costs of replacing the damaged prosthesis. 90 Pa.Cmwlth. 534. 496 A.2d. 99 (1985).

Bowlaway Lanes was upheld in Thiele, Inc. v. WCAB, where the Claimant sustained an original work-related injury to his right knee in 1973, requiring a prosthesis. In 1973, the Employer was insured by Pennsylvania National and in 1981 the Employer was insured by Westmoreland. In 1981, Claimant reinjured his right knee, necessitating the replacement of the prosthesis. The Judge ordered Pennsylvania National to pay only those medical expenses related to the replacement and care of the prosthesis necessitated by the 1981 injury and ordered Westmoreland to pay all other medical expenses. Westmoreland subsequently filed a Review Petition, joining Pennsylvania National as a party. The Judge found that the replacement of the Claimant’s knee prosthesis in 1981 was necessitated by a new injury and he ordered Westmoreland to pay all medical expenses incurred by Claimant as a result of the 1981 Decision. The WCAB applied Bowlaway Lanes and affirmed. Westmoreland appealed to the Commonwealth, which also affirmed, holding that the Judge had substantial evidence in support of his finding that the replacement of Claimant’s knee prosthesis, as well as the subsequent treatments of his right knee, were all necessitated by a new injury suffered in 1981.

Cost of Cervical Surgery Scars on the Rise

2009-04-07T13:14:05Z

Dart Container v. WCAB (Lien), 959 A.2d 985 (Pa. Cmwlth. 2008).

]]> The Claimant sustained disfigurement of her neck as is typical of anterior cervical surgeries and was awarded 22 weeks for disfigurement by the Workers' Compensation Judge. On appeal to the Workers' Compensation Appeal Board, the Claimant sought a larger award on the theory that the WCJ’s award of 22 weeks was outside the range most WCJ’s would select. The WCAB agreed and amended the award to 70 weeks of benefits, ruling in the process that most WCJs would award between 60 and 75 weeks for the same scar. The Commonwealth Court remanded the matter back to the WCAB for further consideration because the WCAB failed to describe the scar and explain the reasoning for its decision.

Medicare Reporting Enforcement Begins July 1, 2009

2009-04-07T13:09:53Z

Medicare, Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. 1395y)

]]> Starting in 2009, carriers with primary responsibility for medical coverage will be required to report any settlement, judgment, award or instances in which such responsibility ceases. The reporting is due the quarter after the cessation of medical benefits. Further, the Clamant’s governmental benefit status must be confirmed. Failure to comply can result in a $1,000 per day penalty.

Long Awaited UIM/UM Litigation Takes Form

2009-04-07T12:54:39Z

Insurance Federation v. Koken

]]> For as long as most claim professionals have been in practice, all UM/UIM have been subject to the Pennsylvania Insurance Department’s mandatory arbitration requirement, forcing every unsettled UIM/UM claim in Pennsylvania to be resolved by arbitration, no matter how big or small. As discussed in a prior C&W Journal article, per Insurance Federation v. Koken, the Pennsylvania Supreme Court ruled that insurers no longer have to include an arbitration clause in their policies.

Insurers can now litigate UIM/UM cases in the courts. Still, insurers and claimants are not precluded from agreeing to arbitration or mediation. However, UIM carriers may be forced into the underlying third party BI action.

Procedurally, questions remain as to how these cases will be tried. In Allegheny County, separate UIM suits and the underlying 3rd party cases may be consolidated for discovery purposes. It has yet to be determined if such cases will remain consolidated for trial or not. The local Bench has indicated that these cases might be “reverse bifurcated," tried damages first.

Cipriani & Werner is at the forefront of this issue. We are currently involved in UM/UIM litigation and are paving the way in regards to ancillary issues that will continue to arise out of these matter.

DPW Gets Serious on Lien Reimbursement in PA

2009-04-07T12:47:52Z

55 Pa. Code Ch. 259 (Implementation of Act 2008-44); Arkansas Department of HHS v. Ahlborn, 547 US 268 (2006)

]]> The Pennsylvania Legislature has significantly changed its rules relating to the reimbursement of Department of Public Welfare (DPW) liens for Medical Assistance (MA) payments from recoveries by or on behalf of MA recipients. The changes place new obligations on defendants and their insurers arising from actions filed after September 1, 2008 and authorize significant civil fines for violations.

The changes create a direct relationship between the defendant/insurer and DPW's Division of Third Party Liability. The rules now require that the defendant and insurer notify DPW both that suit has been filed and in regards to settlement. These reporting obligations arise in any claim where the defendant and/or insurer knew or should have known that the claimant received MA benefits. Notice must be in writing, per new guidelines; however, the DPW has indicated that it will release information much more freely now, even via telephone inquiry.

Act 44 does include a safe harbor provision allowing the defendants or insurers to insulate themselves from potential liability to DPW. Under the safe harbor provisions, the defendant or insurer can avoid liability if they either pay the DPW lien directly, make the DPW a payee on the settlement draft so that DPW's endorsement is required to negotiate the draft, or obtain a statement from DPW that no lien exists.

As a result, if your defendant or insurer is reasonably on notice (from the documents you/they have or from other sources) that plaintiff received MA benefits, the above reporting requirements attach. Again, these new obligations apply only to tort actions commenced on or after September 2, 2008.

Recent Developments: Certificate of Merit

2008-12-22T15:50:19Z

PA Rule of Civil Procedure 1042.3; Sabo v. Worrall, Pa. Super. (2008)

]]> Pennsylvania Rule of Civil Procedure 1042.3 requires that a Plaintiff in a professional liability action file a Certificate of Merit verifying that a licensed professional has determined that a reasonable probability exists that another licensed professional deviated from the requisite standard of care with regard to the Plaintiff.

Licensed professional is defined pursuant to Pa. R.C.P. 1042.1 as any person who is licensed pursuant to an Act of the Assembly, including: healthcare providers; accountants; architects; chiropractors; dentists; engineers; land surveyors; nurses; optometrists; pharmacists; physical therapists; psychologists; veterinarians; and of course attorneys.

Where a Plaintiff fails to file a Certificate of Merit within the allotted time (either attached to the Plaintiff’s Complaint, or sixty (60) days thereafter) a Defendant may file a Praecipe of Non Pros which dismisses the Plaintiff’s claim for failure to file a Certificate of Merit. There are, however, exceptions to the above rule.

First, Pa. R.C.P. 1042.3 (b) provides that a Court, upon good cause shown, shall extend the time for filing a Certificate of Merit for a period not to exceed sixty (60) days. A Motion to extend the time for the filing of a Certificate of Merit must be filed on or before the filing date that the Plaintiff seeks to extend. The filing of the Motion to extend tolls the time period within which a Certificate of Merit must be filed until the Court rules on the Motion. As the Editorial Note to 1042.3(b) states, there are no restrictions on the number of Orders that a Court may enter extending the time for filing a Certificate of Merit provided that each Order is entered pursuant to a “New Motion,” timely filed and based upon a carsion as of the date of the filing of the new Motion. The moving party must act with reasonable diligence when filing the Motion i.e. insuring that it is promptly presented to the Court as required by local practice.

Second, in the case of Sabo v. Worrall, Pa. Super. (Sept. 22, 2008) the Superior Court determined that where the failure to file a Certificate of Merit resulted from inadvertent negligence (Plaintiff’s counsel had prepared a Certificate of Merit, but wrongly assumed that his paralegal filed it with the Court)Trial Court should have permitted the Plaintiff to reopen a Judgment of Non Pros since the Plaintiff had obtained the written statement from the licensed professional before the entry of Non Pros was entered, and where no prejudice to the Defendant from the late filing resulted. As such, the Superior Court reversed the Trial Court’s decision to deny the reopening of a Judgment of Non Pros.

Major Changes In Store For The New Jersey Workers’ Compensation Act

2008-12-22T15:45:16Z

N.J.S.A. 34:15-1 et. seq.

]]> We first reported in the July, 2008 issue of “The C&W Journal” that recent public scrutiny had spurred the New Jersey State Senate to pass bills amending key provisions in the Garden State’s Workers’ Compensation Act (N.J.S.A. 34:15-1 et. seq.). As expected, Governor Jon S. Corzine signed those bills into law, effective October 1, 2008.

The new law governs the practice of emergent Motions filed for medical treatment. By way of highlight, if a Motion for Medical Treatment is accompanied by medical documentation from a physician indicating that a delay of treatment shall result in “irreparable harm”, then an Answer to the Motion shall be due within five (5) calendar days (the prior law provided for a twenty-one (21) day response period). “Irreparable harm” has not been defined in the new law. Thereafter, an initial conference with the Court shall be scheduled within five (5) days of the filing of the Answer (previously, such conference did not take place inside of thirty (30) days). Of equal importance, the Employer will have only fifteen (15) days from the date of service to secure a medical examination (the prior law provided for thirty-five (35) days). Notably, the rule makes no mention of Motions requesting temporary disability benefits.

Further, the new law requires the carrier and self-insured employer designate a specific person to receive service and respond to all issues pertaining to Motions for medical and temporary disability benefits. The employer must provide the contact person’s full name, telephone number, address, e-mail address, and fax number to the WC Division. Failure to comply with the provisions within the proscribed period of time shall result in a fine of $2,500.00 for each day of noncompliance.

Receipt of Private Disability Benefits and UIM Benefits does not constitute double recovery under MVFRL

2008-12-22T15:37:28Z

Tannenbaum v. Nationwide Insurance Company, 919 A.2d 267 (Pa.Super. 2007).

]]> The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) was enacted to contain the rising costs of automobile insurance. Cases interpreting §1722 of the MVFRL have held that outside of some narrow exceptions, generally, a plaintiff cannot plead and recover medical expenses, wage loss and other benefits paid or payable by another source. Most notably, the MVFRL is preempted by any benefits that fall under a federal ERISA plan. However, specifically excluded from ERISA are private insurance policies, which are regulated under Pennsylvania law.

In Tannenbaum v. Nationwide Insurance, the carrier filed a Motion in Limine to preclude Tannenbaum in an underinsured motorist (UIM) arbitration from introducing evidence of amounts paid or payable by his private disability insurance policies. The motion was granted by the arbitration panel and Tannenbaum filed a petition to vacate the arbitrator’s award which was granted. An appeal to the Superior Court followed.

The Superior Court held that the private disability policies were separate and apart from UIM coverage, paid for exclusively by the claimant either directly or through deductions from his wages. Therefore the payments received from the policies did not duplicate benefits under the MVFRL as they were fundamentally different from those benefits.