On June 20, 2017 the Pennsylvania Supreme Court issued its long awaited Decision in the case of Protz v. WCAB (Derry Area School District). Unfortunately, the Pennsylvania Supreme Court held that Section 306 (a.2), which gave Employers and Carriers the right to request an Impairment Rating Evaluation, was unconstitutional, and struck this provision from the Pennsylvania Workers' Compensation Act. The Court’s ruling in this case will have a detrimental effect on any cases in Pennsylvania which utilized the Impairment Rating Evaluation (IRE).
By way of background, in 1996, the State Legislature enacted Section 306 (a.2), which permitted Employers to schedule an IRE. If the IRE yielded an impairment rating of less than 50 percent, the Claimant's disability status could be modified from total to partial disability without having to litigate any type of petition. When the law was enacted, the Fourth Edition of the American Medical Association (AMA) Guidelines was the most recent edition. The AMA was revised in 2001 and again in 2008.
In Protz, the Claimant injured her knee in 2007. In 2011, the Employer requested an IRE. The IRE physician assigned her a 10 percent impairment rating based upon the Sixth Edition of the AMA. The Employer filed a Modification Petition seeking to convert the Claimant's disability status from total to partial disability. The Workers' Compensation Judge (WCJ) ruled that the impairment was less than 50 percent and granted the Modification Petition. The Claimant appealed to the Workers' Compensation Appeal Board (WCAB) challenging whether the legislature "unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment." The WCAB affirmed the Judge, and the Claimant appealed to the Commonwealth Court. The Commonwealth Court reversed the WCAB and declared the law unconstitutional only "insofar as it proactively approved versions of the AMA Guides beyond the Fourth Edition without review." The Court remanded the case back to the WCJ with specific instructions to apply the Fourth Edition of the Guidelines, the version that was in existence when the law was enacted in 1996.
When this Decision was issued by the Commonwealth Court, we instructed our clients to make certain that any IREs that were being utilized were following the Fourth Edition of the Guidelines. In many circumstances, the Employers had to schedule updated evaluations to make sure the ratings were done in accordance with the AMA's Fourth Edition. Although it seemed like an inconvenience, the Commonwealth Court still permitted the Employers to have an IRE performed and potentially limit the number of weeks of total disability... Continue Reading»
In the past few months, Naulty attorney Robert Dillon has obtained five (5) defense verdicts on behalf of healthcare providers.
In May of 2017, Mr. Dillon successfully defended a surgeon in a case held in Dauphin County. The plaintiff alleged that the surgeon negligently performed two (2) colonoscopies that failed to detect a cancerous tumor that eventually spread and caused the death of the patient. The Jury returned a verdict in favor of the defendant surgeon who had performed the colonoscopies.
In April of 2017, Mr. Dillon successfully defended a urologist in a case involving an allegation that the surgeon was responsible for improper surgery in order to correct a varicocele that resulted in the lost function of a testicle, decreased testosterone and sexual dysfunction of a forty (40) year old male. The Jury returned a verdict in favor of the urological surgeon.
In February of 2017, Mr. Dillon successfully defended two (2) podiatrists in a two and a half (2 1/2) week trial involving allegations that both podiatrists participated in a surgical procedure that resulted in the plaintiff developing nerve damage to her foot. The Jury returned a verdict in favor of both podiatric surgeons.
In November of 2016, Mr. Dillon successfully defended a podiatrist in Montgomery County concerning allegations that the defendant podiatrist misdiagnosed and improperly treated a patient who had developed an infection in the heel, which in turn caused years of disability, several surgeries and significant pain and discomfort. The Jury returned a verdict in favor of the defendant podiatrist.
In October of 2016, Mr. Dillon represented a podiatrist in Chester County in which it was alleged that the podiatrist mismanaged an infectious process that was developing in the patient’s foot, which in turn caused hospitalization, bone infection, surgery and a partial foot amputation. The Jury returned a verdict in favor of the defendant podiatrist.
Tonight, Monday, December 19, 2016, Naulty, Scaricamazza & McDevitt partner Laurie A. Carroll provides her legal expert opinion in a very timely discussion of opioid use and/or abuse in Workers' Compensation. The Emmy award-winning American Law Journal presents, "Are Opioids & Big Business Killing Workers' Comp?" The discussion will be moderated by Christopher Naughton the program's premier host. Other members of the panel include claimant's attorney George Badey, respondent attorney Matt Wynn, Workers' Compensation Judge the Honorable Joseph Hakun and Pennsylvania Chambers Government Affairs Director Alex Harper. The program will be broadcast tonight at 7:00 p.m. on CNN-News Philadelphia affiliate WFMZ-TV on Channel 69.
The panel will also address State House Bill 1800, which would require "all medical care for injured workers be consistent with nationally recognized, evidence-based medical treatment guidelines". The American Law Journal has also posted the entire video of the program on their YouTube channel which can be viewed here.
On Friday, April 29, 2016, Naulty partner Angelo L. Scaricamazza won a directed verdict on behalf of his client - a regional public transit carrier. The case was tried in the Philadelphia County Court of Common Pleas before the Honorable Marlene Lachman from Wednesday, April 27, 2016 through Friday, April 29, 2016. The case concerned allegations that the train operator failed to brake in time to avoid a collision with a vehicle partially stopped on the tracks.
During the course of the trial, Angelo presented a safety inspector who testified that the train operator would not have been able to see the vehicle until it was within 638 feet of the train. He also testified that sand from the brakes - indicating the moment when braking began - was found 618 feet from site of the collision; nevertheless, the train came to a stop 200 feet past the vehicle. Subsequently, the train operator testified that the dark and rainy conditions made it more difficult than usual to see the vehicle. Angelo argued that the train operator acted properly and there was no way to stop the train in time to avoid the collision.
At the conclusion of the defense case, Angelo made a motion for a directed verdict; he argued that the plaintiff had not presented enough evidence for a jury to reasonably conclude that the plaintiff had met the burden of proof. Judge Lachman then ruled that despite plaintiff's counsel's claims that the train operator was traveling too quickly and had not kept an assured clear distance, there was insufficient evidence to support these allegations.
Tonight, Monday, April 11, 2016, Naulty, Scaricamazza & McDevitt partner Laurie A. Carroll will be among four panelists interviewed by Christopher Naughton on the 'The American Law Journal' television program. Other members of the panel include claimant's attorney George Badey, Workers' Compensation Judge the Honorable Todd Seelig and private investigator Joseph Gill. The program will be broadcast on CNN affiliate WFMZ-TV Channel 69 tonight at 7:00 p.m.
The title for the broadcast is "Workers' Comp Fraud or Employer 'Bad Faith'?" The subject matter for the discussion will focus on topics such as claimants faking injuries and potential malingering to employers not providing proper workers' compensation insurance and denying seemingly legitimate claims. The panel will also discuss concerns regarding the matter of Pipeline Systems, Inc. v. WCAB. The American Law Journal posted a preview of the feature on their YouTube channel which can be viewed here.
On Monday, November 18, 2015, Naulty, Scaricamazza & McDevitt partner Laurie A. Carroll was interviewed by Gina Passarella on the 'The American Law Journal' television program. The program will be rebroadcast on the local CNN affiliate WFMZ-TV (channel 69) on Monday, February 15, 2016, and can also be viewed online on their YouTube channel.
The subject matter for the interview was whether or not workers' compensation is still a "grand bargain" after one hundred years of existence. Particularly, the panel focused on concerns that injured workers suffer from diminished protections and that some states have opted out of the workers' compensation system.
On Monday, April 13, 2015 from 12:45 until 1:15 p.m., Naulty partner Ronald P. Bartash, will be a panelist at the "Tough Problems in Workers' Compensation 2015" seminar presented by the Pennsylvania Bar Institute. Ron will be joined on the panel by two Workers' Compensation Judges: the Honorable Geoffrey Dlin (retired) and the Honorable Audrey Beach and the topic will be "Specific Loss Issues (Strategy / Sword / Shield)". Ron will present Defense strategies for handling Specific Loss cases in light of recent case law developments.
The “Tough Problems” seminar is a half day program and features a wide variety of other topics pertinent to the everyday practice of Workers’ Compensation Law in the Commonwealth of Pennsylvania. The seminar will be held from Noon to 4:15 p.m. at the Pennsylvania Bar Institute's CLE Education Center in the Wanamaker Building - at the intersection of 13th and Market Streets in Center City Philadelphia, 10th Floor, Suite 1010. The lecture will count for 4.00 Pennsylvania CLEs.
Tonight, Monday, February 2, 2015 at 7:00 p.m., Naulty, Scaricamazza & McDevitt partner Laurie A. Carroll, will be among the three person panel on 'The American Law Journal' television program. The program airs on the local CNN affiliate WFMZ-TV (channel 69), and can also be accessed on their YouTube channel.
The subject matter for tonight's discussion will be the strategy of the injured worker and the third party claim. The host for the program will be Christopher Naughton. Laurie will also be joined by claimant's attorney George Badey and Workers' Compensation Judge Todd Seelig on the discussion panel.
From January through May of 2014, Naulty, Scaricamazza & McDevitt attorney Robert E. Dillon obtained defense verdicts in the following five matters:
In January of 2014, Mr. Dillon obtained a defense verdict in case tried in Montgomery County on behalf of a podiatrist. It was alleged that the patient suffered from significant pain and ambulatory dysfunction from improper surgical and post-operative care of a heel fracture.
Also in January of 2014, Mr. Dillon obtained a defense verdict in case tried in Lebanon County on behalf of General Surgeon. The plaintiff claimed that the patient had experienced continued suffering and the need for additional surgeries following a procedure to remove the gallbladder and a repair of the diaphragm.
In March of 2014 in a case tried in Bucks County, Mr. Dillon obtained a defense verdict on behalf of a podiatrist. It was alleged that there was a failure to diagnose and treat a fracture of the ankle, which resulted in a delayed procedure that caused long term problems with the plaintiff's ambulatory function and the probable need for a fusion of the ankle in the future.
Again in March of 2014, Mr. Dillon obtained a defense verdict in case tried in Northampton County (Easton) on behalf of podiatrist. The plaintiff's attorney contended that the podiatrist misdiagnosed the patient with a bone infection, which resulted in the unnecessary amputation of the patient’s big toe causing ambulatory dysfunction.
In May of 2014, Mr. Dillon obtained a defense verdict in case tried in Philadelphia County on behalf of a nursing home. It was alleged that the nursing home provided improper care and treatment to a patient who suffered a cardiac arrest that resulted in an untimely death.
On Wednesday, July 30, 2014, the Supreme Court of New Jersey reversed the earlier decisions of both the original Judge of Compensation and the Superior Court in the matter of Renner v. AT&T. The Supreme Court decided in a unanimous vote of 5-0 supporting the Opinion of Judge Ariel A. Rodriquez, which denied workers' compensation benefits to the claimant for an embolism suffered by his late wife while working at home for AT&T.
This Supreme Court of New Jersey decision is clearly favorable to the employer and shows a reluctance of the Supreme Court to give the benefit of the doubt in favor of the petitioner merely in sympathy or as part of a greater remedial purpose of the Act. At first glance, it may appear that this holding may be of use to employers in "occupational" cases where petitioners claim that their ordinary work activities have precipitated a wide array of orthopedic repetitive stress injuries or pulmonary conditions. However, the decision in this case may be of limited scope; the unique facts and cardiovascular claims may not be applicable to occupational injury claims or occupational claims under N.J.S.A. 34:15-31.
To briefly review the facts: the decedent was working from home on the night and morning prior to her death from a pulmonary embolism purportedly caused from a blood clot in the leg due to deep vein thrombosis (DVT). She had spent the night at home working until at least 12:26 a.m., and possibly throughout the entire night, as her son saw her working at home at 7:00 a.m. She worked until she completed the project at issue at 10:30 a.m. While working, she performed activities including: sending e-mails, reading, making phone calls, and participating in conferences. About an hour after she completed her last e-mail, the decedent called for an ambulance, and upon the arrival of EMS, resuscitative measures were not successful.
The Workers' Compensation Judge below found in favor of the petitioner-widow. The judge adopted the petitioner's expert's testimony that the work effort of sitting at her desk for the extended period of time contributed in a material degree to the DVT and her death. The sedentary nature of the job was found to be the precipitant in the pulmonary embolism... Continue Reading»