| PENNSYLVANIA STATE COURT DECISIONS | | | | claimant can meet the statute's requirement |
| | | | that he or she have a 50 percent impairment |
| It seems as though the Pennsylvania Supreme | | | | means that any defenses will, at best, delay |
| Court ends every calendar year by issuing | | | | the inevitable. |
| numerous Opinions, with the volume increasing | | | | |
| any year in which a Justice is leaving the | | | | ►Physical Versus Mental Injuries |
| bench. With Justice Nigro's unceremonious | | | | |
| removal from the bench at the behest of | | | | ♦ Panyko v. Workers' Compensation |
| voters irate because the legislature decided | | | | Appeal Board No. 37 WAP 2004 (December 28, |
| to award a large pay raise to itself and the | | | | 2005) |
| judiciary, 2005 was no exception. | | | | |
| Consequently, the decisions reviewed in this | | | | Holding: A claimant who suffers a purely |
| issue are grouped by Court rather than by | | | | physical injury, such as a heart attack, |
| topic. | | | | because of a psychic reaction to a working |
| | | | condition, is not required to establish that |
| 1. SUPREME COURT OF PENNSYLVANIA | | | | the working condition was abnormal. Thus, |
| | | | claimants allegedly suffering from physical |
| 1.1. AUTOMOBILE INSURANCE | | | | injuries are not required to show that their |
| | | | injuries are the result of abnormal working |
| ► Uninsured & Underinsured Motorist | | | | conditions. Rather, they need only show that |
| Claims | | | | (1) they are suffering from an objectively |
| | | | verifiable physical injury, and (2) the |
| ♦ Insurance Federation of Pennsylvania, | | | | injury arose in the course of employment and |
| Inc. v. Commonwealth, Department of Insurance | | | | was related thereto. Justice Saylor filed a |
| No. 2007 MAP 2003 (December 30, 2005) | | | | concurring opinion, and Justice Newman filed |
| | | | a dissenting opinion. |
| Holding: The Insurance Department overstepped | | | | |
| its legislative mandate and does not have the | | | | ►Supersedeas Fund Reimbursement |
| authority to require mandatory binding | | | | |
| arbitration in uninsured and underinsured | | | | ♦ Comm., Dept. of Labor & Industry v. |
| motorist disputes. Consequently, insurance | | | | Workers' Compensation Appeal Board (Exel |
| carriers may require that UM and UIM claims | | | | Logistics) No. 37 WAP 2004 (December 28, |
| be resolved in the courts or, presumably, by | | | | 2005) |
| other means specified under the insurance | | | | |
| contract. Justice Saylor filed a dissenting | | | | Holding: An employer is not entitled to |
| opinion, joined by Justice Castille. | | | | Supersedeas Fund reimbursement for |
| | | | compensation and medical bills paid while a |
| This decision will likely portend the demise | | | | Petition for Forfeiture is pending because |
| of arbitration as the preferred method for | | | | the petition for forfeiture was pursuant to |
| deciding uninsured and underinsured motorist | | | | § 306(f.1)(8), and not § 413 or § |
| claims. It seems ironic, however, that | | | | 430 of the Act. Justice Newman filed a |
| carriers would seek to avoid arbitration when | | | | dissenting opinion, in which Justices |
| insurers, credit card companies, and | | | | Castille and Baer joined. |
| businesses of all types, are including | | | | |
| arbitration clauses in their agreements. Of | | | | 1.4. NEW RULES OF CIVIL PROCEDURE |
| course, these anti-consumer provisions | | | | |
| generally preclude appeals, limit punitive | | | | ►Disclosure of Legal Malpractice |
| damages, and otherwise restrict the nature of | | | | Insurance Coverage |
| allowable claims. It is safe to assume that | | | | |
| auto insurers will likely propose similar | | | | ♦ Rule of Professional Conduct 1.4(c) |
| provisions for approval by the Insurance | | | | |
| Department. With this Supreme Court Opinion, | | | | Effective July 1, 2006, lawyers in private |
| the question arises whether the Insurance | | | | practice are required to notify their clients |
| Department can prohibit such provisions. Time | | | | if they do not have professional liability |
| will tell. | | | | insurance of at least $100,000 per occurrence |
| | | | and $300,000 in the aggregate per year, |
| ♦ State Farm Mutual Automobile | | | | subject to commercially reasonable |
| Insurance Co. v. Foster No. 2007 MAP 2003 | | | | deductibles. The Rule also specifies the |
| (December 30, 2005) | | | | language of the required disclosures, and |
| | | | mandates that attorneys maintain a record of |
| Holding: An insurer may deny uninsured | | | | the disclosures for six years after |
| motorist benefits to an insured claimant who | | | | termination of the representation of a |
| fails to report the accident to the police or | | | | client. |
| other governmental authority as required by | | | | |
| the policy and the Motor Vehicle Financial | | | | ►Consumer Credit Transactions |
| Responsibility Law, 75 Pa.C.S. §§ | | | | |
| 1701-1799.7. Justice Saylor filed a | | | | ♦ New Rules of Civil Procedure 1326 to |
| concurring opinion, concluding that | | | | 1331 |
| regardless of the language of the MVFRL, a | | | | |
| carrier may include a police notification | | | | Effective February 1, 2006, the Court has |
| provision in the terms of an auto insurance | | | | promulgated Rules of Civil Procedure |
| policy. Justice Baer filed a dissenting | | | | governing proceedings to compel arbitration |
| opinion, joined by Justice Castille, in which | | | | and to confirm an arbitration award in a |
| he characterized the provision at issue as a | | | | claim arising from a consumer credit |
| "technical escape hatch by which to deny | | | | transaction. |
| coverage in the absence of prejudice." | | | | |
| Justice Nigro did not participate in the | | | | 2. SUPERIOR COURT OF PENNSYLVANIA |
| decision of the case. | | | | |
| | | | 2.1. ►Defamation - Conditional |
| 1.2. CIVIL PROCEDURE | | | | Privilege |
| | | | |
| ► Service of Process | | | | ♦ Moore v. Cobb-Nettleton |
| | | | |
| ♦ McCreesh v. City of Philadelphia No. | | | | 2005 PA Super 426 (December 21, 2005) |
| 31 EAP 2005 (December 28, 2005) | | | | Holding: A social worker, who makes |
| | | | professional disclosures required by |
| Holding: After an action has been commenced, | | | | Pennsylvania law, is entitled to a |
| a plaintiff must provide notice of the action | | | | conditional privilege in a defamation |
| to the defendant in order for the purpose of | | | | lawsuit. |
| the statute of limitation to be fulfilled. A | | | | |
| complaint should, therefore, only be | | | | 2.2. ►Learned Intermediary Doctrine |
| dismissed in those cases in which the | | | | |
| plaintiff has demonstrated an intent to stall | | | | ♦ Lineberger v. Wyeth |
| the judicial machinery or when plaintiff's | | | | |
| failure to comply with the Rules of Civil | | | | 2005 Westlaw 3547682 (Pa. Super., December |
| Procedure has prejudiced the defendant. | | | | 21, 2005) Holding: In a pharmaceutical |
| Justice Newman filed a dissenting opinion. | | | | failure to warn case, the plaintiff must |
| Justice Eakin also filed a dissenting | | | | establish both a duty to warn and a failure |
| opinion, joined by Justice Nigro. | | | | to warn. The plaintiff must also show that, |
| | | | had the defendant issued a proper warning to |
| The Supreme Court has yet again revisited its | | | | the physician (the learned intermediary), the |
| decision in Lamp v. Heyman, 366 A.2d 882 (Pa. | | | | learned intermediary would have altered his |
| 1976). In McCreesh, the Court now holds that | | | | or her behavior, i.e., would not have |
| a plaintiff need not strictly comply with the | | | | prescribed the drug, and the injury would |
| Rules by repeatedly reissuing a writ of | | | | have been avoided. |
| summons; instead, the Court looks to the good | | | | |
| faith efforts of a plaintiff to effectuate | | | | This is an unpublished opinion, although |
| service, including considering whether a | | | | counsel for Wyeth has stated that he will |
| defendant has actual notice of the litigation | | | | request that the Court publish the opinion. |
| and is not prejudiced by the lack of strict | | | | |
| compliance with the Rules of Civil Procedure. | | | | 3. COMMONWEALTH COURT OF PENNSYLVANIA |
| The facts here - in which plaintiff attempted | | | | |
| to serve the writ by certified mail in clear | | | | 3.1. ►Workers' Compensation - Hepatitis |
| violation of the Rules - are certain to | | | | C |
| generate further litigation. The true food | | | | |
| for thought - and further litigation - | | | | ♦ City of Philadelphia v. Workers' |
| appears in Justice Eakin's dissent, in which | | | | Compensation Appeal Board (Sites) No. 1410 |
| he states: | | | | C.D. 2005 (December 21, 2005) |
| | | | |
| The "majority has developed a new rule | | | | Holding: Hepatitis C may be deemed an |
| holding a trial court may only dismiss a case | | | | occupational disease even if the condition |
| where there is ineffective service in two | | | | was not specifically identified as an |
| distinct situations: (1) where the | | | | occupational disease until after the |
| plaintiff's actions evidence an intent to | | | | claimant's diagnosis. |
| stall the judicial machinery, or (2) where | | | | |
| the plaintiff's failure to comply with the | | | | 3.2. ►Workers' Compensation - |
| Rules of Civil Procedure has actually | | | | Suspension/Bad Faith |
| prejudiced the defendant. . . .The majority | | | | |
| goes so far as to suggest that without | | | | ♦ Virgo v. Workers' Compensation Appeal |
| prejudice, actual notice itself, much less | | | | Board (County of Lehigh-Cedarbrook) No. 1167 |
| proper service, may be unnecessary." | | | | C.D. 2005 (December 22, 2005) |
| | | | |
| 1.3. WORKERS' COMPENSATION | | | | Holding: An employer is entitled to a |
| | | | suspension of benefits when an employee is |
| ►Impairment Rating Evaluations (IREs) | | | | discharged from employment because of "bad |
| | | | faith" in carrying out her job |
| ♦ Gardner v. Workers' Compensation | | | | responsibilities. This is a classic example |
| Appeal Board No. 14 EAP 2004 (December 28, | | | | of bad facts making bad law (at least for |
| 2005) | | | | workers' compensation claimants). One of the |
| | | | most common questions raised by injured |
| Holding: An employer/workers' compensation | | | | workers is what happens if they return to |
| carrier must request that a workers' | | | | work at light duty and are then fired because |
| compensation claimant submit to an Impairment | | | | of allegedly unsatisfactory job performance. |
| Rating Evaluation within sixty (60) days from | | | | This case answers the questions, holding that |
| the date that the claimant receives, or comes | | | | workers' compensation benefits may be |
| into possession of 104 weeks of total | | | | suspended under those circumstances. Of |
| disability benefits in order to obtain the | | | | course, in this case, the employee did not |
| automatic relief under 77 P.S. § 511.2(2). | | | | have a "clean" record, and it was easy for |
| If an employer fails to request an IRE within | | | | the Court to uphold the suspension. What |
| this time period, it may still request an IRE | | | | happens, however, when the unsatisfactory |
| at a later date pursuant to 77 P.S. § | | | | performance occurs only after the employee is |
| 511.2(6), but must utilize the traditional | | | | at light duty and, as employees frequently |
| administrative process in order to modify a | | | | claim, their firing is a pretext because the |
| claimant's disability status. Justice Nigro | | | | employer only wants them to work at full |
| filed a concurring opinion, and Justice | | | | duty? Time will tell. |
| Newman filed a dissenting opinion. | | | | |
| | | | SUPERIOR COURT OF NEW JERSEY, APPELLATE |
| Workers' compensation practitioners who had | | | | DIVISION OPINION |
| been awaiting the decision in Gardner now | | | | |
| know that an employer/insurer can request an | | | | ► Doe v. XYC Corp. |
| IRE up to two times within any twelve-month | | | | |
| period. The only limitation on an employer's | | | | No. A-2909-04T2 (December 27, 2005) |
| right to an IRE is that the employer cannot | | | | |
| avail itself of the automatic relief under | | | | Holding: An employer on notice that one of |
| the Act if the exam is not requested within | | | | its employees is using a workplace computer |
| 60 days of the employee's receipt of 104 | | | | to access pornography, possibly child |
| weeks of benefits. In reality, this means | | | | pornography, has a duty to investigate the |
| that a workers' compensation carrier is now | | | | employee's activities and to take prompt and |
| able to reduce virtually every claimant to | | | | effective action to stop the unauthorized |
| partial disability status at any time after | | | | activity, lest it result in harm to innocent |
| the claimant has received two years of | | | | third parties. No privacy interest of the |
| benefits. Although a claimant can try to | | | | employee stands in the way of the duty on the |
| defend against a modification petition based | | | | part of the employer. |
| upon an IRE, the fact that literally no | | | | |