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A Summary Of Recent Pennsylvania Appellate Decisions

PENNSYLVANIA  STATE  COURT  DECISIONSclaimant can meet the statute's requirement
that he or she have a 50 percent impairment
It seems as though the Pennsylvania Suprememeans that any defenses will, at best, delay
Court ends every calendar year by issuingthe  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 decidedAppeal Board No. 37 WAP 2004 (December 28,
to award a large pay raise to itself and the2005)
judiciary, 2005 was no exception.
Consequently, the decisions reviewed in thisHolding: A claimant who suffers a purely
issue are grouped by Court rather than byphysical 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  PENNSYLVANIAthe working condition was abnormal. Thus,
claimants allegedly suffering from physical
1.1.  AUTOMOBILE  INSURANCEinjuries are not required to show that their
injuries are the result of abnormal working
► Uninsured & Underinsured Motoristconditions. 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 Insurancewas 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, insuranceWorkers' Compensation Appeal Board (Exel
carriers may require that UM and UIM claimsLogistics) No. 37 WAP 2004 (December 28,
be resolved in the courts or, presumably, by2005)
other means specified under the insurance
contract. Justice Saylor filed a dissentingHolding: 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 demisePetition for Forfeiture is pending because
of arbitration as the preferred method forthe petition for forfeiture was pursuant to
deciding uninsured and underinsured motorist§ 306(f.1)(8), and not § 413 or §
claims. It seems ironic, however, that430 of the Act. Justice Newman filed a
carriers would seek to avoid arbitration whendissenting opinion, in which Justices
insurers, credit card companies, andCastille  and  Baer  joined.
businesses of all types, are including
arbitration clauses in their agreements. Of1.4.  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 ofInsurance  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 Insurancepractice are required to notify their clients
Department can prohibit such provisions. Timeif 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 Automobilesubject to commercially reasonable
Insurance Co. v. Foster No. 2007 MAP 2003deductibles. 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 uninsuredthe disclosures for six years after
motorist benefits to an insured claimant whotermination of the representation of a
fails to report the accident to the police orclient.
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 that1331
regardless of the language of the MVFRL, a
carrier may include a police notificationEffective February 1, 2006, the Court has
provision in the terms of an auto insurancepromulgated Rules of Civil Procedure
policy. Justice Baer filed a dissentinggoverning proceedings to compel arbitration
opinion, joined by Justice Castille, in whichand to confirm an arbitration award in a
he characterized the provision at issue as aclaim arising from a consumer credit
"technical escape hatch by which to denytransaction.
coverage in the absence of prejudice."
Justice Nigro did not participate in the2.  SUPERIOR  COURT  OF  PENNSYLVANIA
decision  of  the  case.
2.1. ►Defamation - Conditional
1.2.  CIVIL  PROCEDUREPrivilege
►  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 actionconditional privilege in a defamation
to the defendant in order for the purpose oflawsuit.
the statute of limitation to be fulfilled. A
complaint should, therefore, only be2.2.  ►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 Civil2005 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 dissentingestablish 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 itsthe 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 thator her behavior, i.e., would not have
a plaintiff need not strictly comply with theprescribed the drug, and the injury would
Rules by repeatedly reissuing a writ ofhave  been  avoided.
summons; instead, the Court looks to the good
faith efforts of a plaintiff to effectuateThis is an unpublished opinion, although
service, including considering whether acounsel for Wyeth has stated that he will
defendant has actual notice of the litigationrequest  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 clear3.1. ►Workers' Compensation - Hepatitis
violation of the Rules - are certain toC
generate further litigation. The true food
for thought - and further litigation -♦ City of Philadelphia v. Workers'
appears in Justice Eakin's dissent, in whichCompensation Appeal Board (Sites) No. 1410
he  states:C.D.  2005  (December  21,  2005)
The "majority has developed a new ruleHolding: Hepatitis C may be deemed an
holding a trial court may only dismiss a caseoccupational disease even if the condition
where there is ineffective service in twowas not specifically identified as an
distinct situations: (1) where theoccupational disease until after the
plaintiff's actions evidence an intent toclaimant's  diagnosis.
stall the judicial machinery, or (2) where
the plaintiff's failure to comply with the3.2. ►Workers' Compensation -
Rules of Civil Procedure has actuallySuspension/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 lessBoard (County of Lehigh-Cedarbrook) No. 1167
proper  service,  may  be  unnecessary."C.D.  2005  (December  22,  2005)
1.3.  WORKERS'  COMPENSATIONHolding: 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' Compensationresponsibilities. 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' compensationworkers 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 Impairmentof allegedly unsatisfactory job performance.
Rating Evaluation within sixty (60) days fromThis case answers the questions, holding that
the date that the claimant receives, or comesworkers' compensation benefits may be
into possession of 104 weeks of totalsuspended under those circumstances. Of
disability benefits in order to obtain thecourse, 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 withinthe Court to uphold the suspension. What
this time period, it may still request an IREhappens, 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 traditionalat light duty and, as employees frequently
administrative process in order to modify aclaim, their firing is a pretext because the
claimant's disability status. Justice Nigroemployer only wants them to work at full
filed a concurring opinion, and Justiceduty?  Time  will  tell.
Newman  filed  a  dissenting  opinion.
SUPERIOR COURT OF NEW JERSEY, APPELLATE
Workers' compensation practitioners who hadDIVISION  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'sNo.  A-2909-04T2  (December  27,  2005)
right to an IRE is that the employer cannot
avail itself of the automatic relief underHolding: An employer on notice that one of
the Act if the exam is not requested withinits employees is using a workplace computer
60 days of the employee's receipt of 104to access pornography, possibly child
weeks of benefits. In reality, this meanspornography, has a duty to investigate the
that a workers' compensation carrier is nowemployee's activities and to take prompt and
able to reduce virtually every claimant toeffective action to stop the unauthorized
partial disability status at any time afteractivity, lest it result in harm to innocent
the claimant has received two years ofthird parties. No privacy interest of the
benefits. Although a claimant can try toemployee stands in the way of the duty on the
defend against a modification petition basedpart of the employer.
upon an IRE, the fact that literally no



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