New Case Law on Serial Termination Petitions

In Prebish v. WCAB, decided on July 14, 2008, the Commonwealth Court of Pennsylvania handed down a decision dealing with facts which we often see where an insurance company files termination petition after termination petition over several years on the same claimant.

A Termination Petition is used by an insurance company to argue that the claimant’s injury is no longer present, i.e., that it has healed and is no longer there. If successful on these petitions, the claimant’s workers’ compensation wage and medical benefits should be stopped or "terminated." In order to defeat this kind of petition, the claimant merely has to show that the condition or the injury is still present. This is usually done through testimony from the medical expert in the case.

In some circumstances, the insurance company will file a Termination Petition but then lose and then they will wait six months to file another Termination Petition and lose again and then in six months file another one. This is called a serial termination case.

The Commonwealth Court ruled that in serial termination cases, the Judge has to find that the claimant’s condition changed from the prior litigation in order to grant the new Termination Petition. This means that in a case where the medical testimony and the Judge finds facts that the claimant’s condition has not changed since the previous termination petition was lost, then the insurance company cannot prove that the injury has healed or is over. In order to prevail on a serial termination case, the insurance company will have to prove that the claimant’s condition has changed to the better, to the point where there is no injury.

Hopefully, this will somewhat limit these serial termination cases, which can be quite annoying and harassing to injured workers.

U.S. Rushes to Change Workplace Toxin Rules

Once again, the Bush Administration doing everything it can to help Big Business and hurt workers.

Political appointees at the Department of Labor are moving with unusual speed to push through in the final months of the Bush administration a rule making it tougher to regulate workers' on-the-job exposure to chemicals and toxins.

The text of the proposed rule has not been made public, but according to sources briefed on the change and to an early draft obtained by The Washington Post, it would call for reexamining the methods used to measure risks posed by workplace exposure to toxins. The change would address long-standing complaints from businesses that the government overestimates the risk posed by job exposure to chemicals.

The rule would also require the agency to take an extra step before setting new limits on chemicals in the workplace by allowing an additional round of challenges to agency risk assessments.

You got that? They want to make it harder to protect workers from toxic exposure at work. See the full article here.

Waivers Limiting Workers' Time to Sue Draws Fire

I wonder when we will be seeing this type of thing in Pennsylvania workers' compensation claims?

A growing number of employers are adding a controversial element to their job applications: a waiver in tiny print that says employees can sue the company only within six months of a particular incident. That waives their rights to any contrary statute of limitations provided under state and federal laws, a tactic that is stirring yet more workplace controversy and litigation.

See the full article here.

Emergency Unemployment Compensation

President Bush signed into law H.R. 2642, the supplemental appropriations bill that provides up to 13 weeks of extended unemployment insurance (UI) benefits in all states.

Over the next two weeks, potentially eligible claimants will be contacted by the Department of Labor & Industry by mail with information and instructions on filing for EUC benefits. The earliest individuals can file for EUC weeks, either by PAT or on the Internet, is during the week of July 20, 2008. The first payable week is July 12, 2008. We ask that claimants wait to receive this information in the mail. Please do not call the Unemployment Compensation Service Center.

General Provisions of the EUC Program:

1. The first week of EUC that may be paid is the week ending July 12, 2008.

2. To be eligible for EUC, a claimant must meet the following requirements:

--The claimant had a regular UC claim with a benefit year that ended on or after May 1, 2007, OR, the claimant currently has a regular UC claim on which the claimant received the maximum amount of benefits.

--The claimant is ineligible for regular UC from Pennsylvania, any other state, the federal government or Canada.

--The total amount of wages in the claimant’s base year is equal to or greater than 1½ times the amount of wages in claimant’s highest quarter of the base year.

--The claimant is totally or partially unemployed.

--The claimant is legally authorized to work in the United States.

3. The EUC weekly benefit amount is the same as the regular UC weekly benefit amount payable for a week of total unemployment.

4. A claimant’s EUC maximum amount is 13 times his or her weekly benefit amount if the claimant qualified for 26 times the weekly benefit amount on the claimant’s regular UC claim.

5. The EUC maximum amount is 8 times the claimant’s weekly benefit amount if the claimant qualified for 16 times the weekly benefit amount on the regular UC claim.

6. The eligibility provisions of the Pennsylvania UC Law also apply to eligibility for EUC benefits.

7. EUC Phase-out - A claimant may not begin to receive EUC later than the week ending March 28, 2009. The last week of EUC that can be paid is the week ending July 4, 2009.

You can find frequently asked questions on this extra benefit here.

Sayre Borough: Workers compensation claim filed against Sayre Borough

I'm in the news!! To see the front page story on the Morning Times website, go here.

Workers’ compensation litigation has been filed against Sayre Borough by former secretary Jo Ann Daly, who resigned from her position with the borough July 9 and is now working in a position at Keystone College. The litigation was filed against the borough on June 9, a month prior to her resignation, according to James Carroll, Esq., who is representing her in the matter.

Daly had worked for the borough in various capacities for nearly 12 years, according to Carroll, and had suffered with a long-standing work related injury prior to her resignation. “She truly enjoyed her job but felt that continuing to work in the building under the requirements established by her employer would be detrimental to her health,” said Carroll. The litigation was filed due to the borough’s alleged refusal to change these working conditions, despite several attempts, that caused Daly’s injury.

Sayre Borough Council President Henry Farley noted that the injury referred to is a skin condition, but didn’t have any further comment on the issue since the borough hadn’t officially received her letter of resignation. She’s currently receiving workers’ compensation, Farley added, and he hopes they can address the issue at the borough’s regular monthly meeting on Thursday at 6 p.m.Borough solicitor Jonathan Foster, Esq., was unable to comment on the issue due to it being a personnel matter.

Court Holds Workers Compensation Employer May Enter Judgment In Common Pleas Court

Below is a link to the Superior Court decision from July 8, 2008 where the court holds 2-1 in United Parcel Service v. Hohider (Klein dissenting) that an employer is allowed to enter a judgment in the court of common pleas based upon a Workers Compensation Judge's order that a certain amount of a workers compensation lien had not been paid back.

The trial court struck the request to enter the judgment because it held that Section 428 of the Pennsylvania Workers Compensation act only provides the right to enter an automatic judgment to the employee and not the employer.

The Superior Court decision by Judge Bender recognizes that Section 428 only provides the right to enter a judgment to the employee but also notes that there is an absolute right under section 319 of the Act for the employer to be reimbursed. Thus, it finds that disallowing an employer to enter a judgment in the common pleas court would render the workers compensation judge order a nullity so it allows the judgment.

Judge Klein dissents and indicates that there may be valid reasons to challenge the order that should be litigated and since the legislature has not given the employer the right then the court should not allow it.

This decision basically turns Section 428 on its head. Another case where an appellate judge reads something in a statute that is not there merely to support the ultimate decision that is desired. Hopefully the Supreme Court will take care of this one.

See the full decision here.

Deadliest job in America: Working on cell phone towers

According to a story in this week's RCR Wireless News (no online link yet), building and climbing towers (which can be hundreds of feet tall) is more dangerous than ranching, fishing, logging, and even ironworking. The fatality rate is currently 183.6 deaths per 100,000 workers: Five tower workers died during one 12-day span earlier this year alone. 18 tower workers died on the job in 2006.

The cause for the runup in tower worker deaths isn't completely clear, but it's likely a combination of careless working practices (workers not using safety gear 100 percent of the time, or not using it correctly) and network operators pushing to build out and upgrade their networks too quickly. Hard to blame carriers for wanting to get faster networks up and running, but not at the cost of human life. (RCR is careful to note that the investigation into the rise in fatalities is too early to attribute to any specific source.)

Oddly, a loophole in OSHA rules may make it difficult for changes to happen quickly: Towers are often constructed by small contractors instead of the carriers or the owners of the towers. Since the carrier isn't on site during the construction of the tower, the contractor receives the fine and the carrier and owner face no sanctions. (That hasn't stopped the families of some of the deceased workers from suing carriers, though.)

Up next: Workers and their unions are hoping to push through federal legislation which could lead to more thorough regulations covering safety in this largely ignored industry.

Protecting Mine Workers

Mine-safety bill gets OK from union, mine owners

Legislation to improve safety in the state's approximately 200 bituminous coal mines was poised to become law after a marathon negotiation yielded a compromise bill endorsed Monday by both the coal companies and mine workers union.

The state Senate unanimously approved the bill and it was headed to the House, where leaders of the Democratic majority have pledged to pass it this week. It is the first major rewrite of the state's mining law in nearly 50 years.

The 250-page bill was in the making since 2002, when nine miners were rescued from the flooded Quecreek Mine in western Pennsylvania. Even the number, Senate Bill 949, is an echo of the "nine-for-nine" cry that former Gov. Mark Schweiker made famous during the rescue.

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Under the measure, state inspectors for the first time could impose fines for safety infractions on mine owners, instead of just supervisors. The bill also would establish a seven-member safety board which, among other things, would be tasked with keeping the law in step with advances in mine safety technology and practices.

Go here to see the whole story from PennLive.com.