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