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C&W Journal

March 27, 2008

Good Faith Defense In Dram Shop Cases

The Pennsylvania Dram Shop Act holds that it is negligence per se to serve a minor with alcohol. However, under Section 495 of the Act, no penalty shall be imposed on the bar if it establishes that the minor was required to produce an identification card and that such document was relied upon by the bar in good faith. The defense applies to all...

March 27, 2008

Spoliation Of Evidence In Fire Cases

In Schroeder v. DOT, 710 A.2d 23 (Pa. 1998), the Pennsylvania Supreme Court adopted the spoliation of evidence standards set forth in Schmid v. Milwaukee Electric Tool Corporation, 13 F.3d 76 (3rd...

March 27, 2008

Impairment Rating Evaluation Impact On Modification And Termination...

In Sign Innovation v. WCAB (Ayers), the Pennsylvania Commonwealth Court addressed the impact of an Impairment Rating Evaluation (IRE) on the Employer’s attempt to modify a Claimant’s benefits...

March 27, 2008

The Importance Of Timely Payments Of Settlement Proceeds

A recent Commonwealth Court case upheld an award of a 5% penalty for the Defendant/Employer’s failure to timely pay an Order approving a Compromise and Release Agreement. Although the facts of the...

February 27, 2008

Attack On URO Application Limitation Fails

The Commonwealth Court rejected the employer’s proposed twist on the Bucks County decision holding that a utilization review determination that treatment is not reasonable and necessary cannot be...

February 27, 2008

Medical Expert Must Recognize Formal Injury Description

In Denise Elberson v. WCAB (Elwyn, Inc.), the Commonwealth Court held that an employer’s medical expert witness must first recognize the full and complete description of the work injuries accepted...

February 27, 2008

Failure To Secure New UIM/UM Form May Give Rise To Coverage

The Supreme Court addressed the issue of whether auto insurers are required to secure new UI/UM forms on “after acquired vehicles”. Earlier this year, the Supreme Court had held that new forms...

February 27, 2008

Employer Must Specifically Preserve Right To Supersedeas Fund...

In the matter of Bureau of Workers’ Compensation v. WCAB (U.S. Food Services), the issue before the Commonwealth Court was whether, after the parties entered into a Compromise and Release...

February 27, 2008

No Stacking Of Fleet Policies

This case addressed the issue of whether auto accident claimants may stack UIM/UM coverage under commercial fleet auto policies. The Supreme Court of Pennsylvania unanimously affirmed the Superior...

February 27, 2008

Court Continues To Liberally Construe Course Of Employment

The Commonwealth Court continues to liberally construe what actions off the employer’s premises fall within an employee's course of employment. Here, the Court affirmed the granting of a fatal...

February 27, 2008

Bad Faith Claims Subject To Two Year Statute

The Pennsylvania Supreme Court in Ash held that causes of action brought under the Pennsylvania bad faith insurance statute, 42 Pa.C.S. 8371, sound primarily in tort. As such, the two-year Statute...

February 27, 2008

C&W Successfully Removes Case From Plaintiff Friendly Court

Philadelphia County, Pennsylvania, is considered a notoriously plaintiff friendly forum. Accordingly, plaintiffs clamor to bring lawsuits in Philadelphia County. Petitions contesting the...

November 27, 2007

“Serious Injury” Exception To Limited Tort Election

If a Plaintiff has selected limited tort coverage, he or she is precluded from recovering non-economic damage in a subsequent lawsuit pursuant to the PA Motor Vehicle Financial Responsibility Law ...

November 27, 2007

Personal DUI May Result In CDL Suspension

In Wagner, a CDL driver appealed a one-year CDL disqualification after accepting Accelerated Rehabilitative Disposition ("ARD") for a DUI charge received while operating his personal vehicle....

November 27, 2007

Indemnification Requires Clear Statement Of Intent

Owner hired general contractor, Thermal C/M, to construct an addition to its facility. In turn, Thermal C/M contracted with Refrigeration Design and Services (RDS) to provide refrigeration...

November 27, 2007

Commonwealth Court Chimes-In On Timely Revoking NTCP

In Galizia v. WCAB (Woodloch Pines, Inc.), the PA Commonwealth Court provided an important decision on the time limitations for a valid revocation of a Notice of Temporary Compensation Payable,...

November 27, 2007

Massage Therapy Not Compensable Treatment

In this case, the Claimant provided a prescription from her treating physician for massage therapy treatment. The employer stipulated that the treatments were causally related to the Claimant's...

September 27, 2007

Admission Or Hearsay - Store Employee Witnesses

A common exception to the hearsay rule is an admission of a party. An admission of an employee may be admissible against an employer, provided that the admission was made within the scope of the...

September 27, 2007

Temporary Notice Of Compensation Payable Revised

The Notice of Temporary Compensation Payable has been revised to include an optional checkbox for medical only cases. Additionally, the reverse page now includes an area for remarks, similar to a...

September 27, 2007

Certificate Of Merit Rule Evolves

One of the hottest areas in the law concerns Pennsylvania Rule of Civil Procedure 1042.1 through 1042.8 – Certificates of Merit in Professional Liability Actions. There can be dire consequences...

September 27, 2007

New LMS Rules Require Increased Disclosure

The amendments to the Code appear to respond to recent arguments by the claimant’s bar that a job cannot be deemed available if the claimant was not made aware of the position. While that argument...

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