A study of outcomes for parties who rejected settlement and went to trial will be published in the September Journal of Empirical Legal Studies. In this preview, the New York Times touches upon some of the issues that cause parties not to settle.
Overall, the study reported plaintiffs got less in 61% of cases, while defendants paid more in 24% of cases. In 15% of cases the result fell in the range between the last demand and the last offer. Randall L. Kiser, a co-author of the study, said the lesson for plaintiffs is to not view the defendant’s offer as half a loaf. The study results suggest defendants' offers are the full loaf or more.
Another interesting observation is that uninsured defendants have a higher error rate. Defendants won’t bankrupt themselves in a settlement, even if they know a verdict will bankrupt them. The graphic attached to the article shows the stakes were much higher in the cases where the defendant fared worse. It would be interesting to look at how the outcome was measured. If it doesn't continue to collection, even more plaintiffs are making bad decisions.
Saturday, August 09, 2008
Friday, August 08, 2008
Commonwealth Court reaffirms standard for notice in occupational hearing loss claims
In Crompton Corporation v. WCAB (King) the Claimant filed a claim for occupationally induced hearing loss on April 2, 2004, and thus provided notice of the claim to the Employer. The Employer identified a new patient information sheet completed by the Claimant on May 7, 2002, on which the Claimant indicated to his physician he believed his hearing loss was work-related. The WCJ and Board nevertheless found the Claimant gave notice within 120 days of the date of injury.
The Court affirmed. The primary rule, as stated by the court in Socha v. Workers' Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276 (Pa. Cmwlth. 1999) (Socha I), aff'd, 566 Pa. 602, 783 A.2d 288 (2001) (plurality) (Socha II) is that the Claimant must be informed by a doctor that he has a compensable work related hearing loss. In this case, the report establishing this was dated February 27, 2004. Furthermore, the Claimant continued to work and presumably his exposure continued. Accordingly, his date of injury would be April 2, 2004, the date of filing, pursuant to Section 306(c)(8)(ix) of the Act.
The Court affirmed. The primary rule, as stated by the court in Socha v. Workers' Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276 (Pa. Cmwlth. 1999) (Socha I), aff'd, 566 Pa. 602, 783 A.2d 288 (2001) (plurality) (Socha II) is that the Claimant must be informed by a doctor that he has a compensable work related hearing loss. In this case, the report establishing this was dated February 27, 2004. Furthermore, the Claimant continued to work and presumably his exposure continued. Accordingly, his date of injury would be April 2, 2004, the date of filing, pursuant to Section 306(c)(8)(ix) of the Act.
Monday, August 04, 2008
Centers for Medicare and Medicaid Services determines thermal intradiscal procedures are not reasonable and necessary
An Ortho Supersite article excerpted from the journal Spine states CMS proposes to issue a national non-coverage determination for thermal intradiscal procedures (TIPs). CMS’ review indicates the mechanism of the associated diagnosis – nonspecific chronic low back pain – as well as the mechanism of the treatment are uncertain according to the medical literature.
Commonwealth Court reverses Workers’ Compensation Appeal Board holding that Claimant’s disability began on first day off work
In Albert Einstein Healthcare v. WCAB (Stanford) the WCJ awarded benefits based on the testimony of the Claimant’s doctor that the Claimant was disabled while under his treatment. However, the Claimant did not start treating with the doctor until over a year after her last date of work. The WCJ decided benefits could only be awarded beginning with the doctor’s first evaluation.
The Board modified the WCJ’s decision and awarded benefits as of the first day off work based on the Claimant’s testimony. The Court reversed, holding where the causal connection between the work injury and disability is not obvious, medical testimony establishing the period of disability is required.
The Board modified the WCJ’s decision and awarded benefits as of the first day off work based on the Claimant’s testimony. The Court reversed, holding where the causal connection between the work injury and disability is not obvious, medical testimony establishing the period of disability is required.
Saturday, July 26, 2008
Statute of Limitations Waiver and Workers’ Compensation
A Law.com article reports many companies are using and enforcing a waiver limiting statutes of limitations for employment claims to six months. The waiver is executed in the job application. The article refers to employment discrimination claims. The Pennsylvania Workers’ Compensation Act provides parties can’t alter the provisions of the Act except in collective bargaining.
The impact would be that the claimant would have to pursue claims during the first six months of treatment and recovery from the work injury. Although claimants typically waive employment law claims for minimal or no consideration as part of a compromise and release, they certainly would receive no consideration if these claims are barred.
The impact would be that the claimant would have to pursue claims during the first six months of treatment and recovery from the work injury. Although claimants typically waive employment law claims for minimal or no consideration as part of a compromise and release, they certainly would receive no consideration if these claims are barred.
Article on Introductory Joint Session in Mediation
Mediator Robert A. Steinberg recently published an article on opening statements in mediation with several tips for parties to interact with each other in joint sessions. This is particularly valuable given the current discussion suggesting more joint sessions should occur in mediation.
I have been using more joint sessions as opposed to caucuses. All the parties and counsel can put their heads together on the issues discussed. I don’t have to repeat information that needs to be shared, and I don’t run the risk of miscommunication.
Joint sessions are less comfortable for the parties. This article will help counsel and the client to ease this discomfort.
Thanks to Phyllis G. Pollack via Mediate.com Featured Blogs for reproducing this article.
I have been using more joint sessions as opposed to caucuses. All the parties and counsel can put their heads together on the issues discussed. I don’t have to repeat information that needs to be shared, and I don’t run the risk of miscommunication.
Joint sessions are less comfortable for the parties. This article will help counsel and the client to ease this discomfort.
Thanks to Phyllis G. Pollack via Mediate.com Featured Blogs for reproducing this article.
Friday, July 18, 2008
Commonwealth Court Remands in Serial Termination Case
In M. Prebish v. WCAB (DPW/Western Center) the Commonwealth Court accepted the Claimant's argument that the Employer must show a change of condition to prevail in a serial termination petition.
The Employer's expert opined the Claimant's injured right knee was not different than the left knee with findings of preexisting arthritis. In the prior decision, the WCJ found the Claimant's symptoms were primarily right sided. The Employer's expert also had the benefit of a new diagnostic study and additional medical records. The Employer's expert ultimately concluded the Claimant was fully recovered from a strain that occurred at the time of the injury.
The Court nevertheless stated the WCJ could make a finding the Claimant's condition did not change materially since the first WCJ's decision based on the record. The Court stated it is "abundantly clear" a finding that the Claimant's condition changed is required, citing Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). The matter was remanded to the WCJ to make a determination on the existing record.
The Employer's expert opined the Claimant's injured right knee was not different than the left knee with findings of preexisting arthritis. In the prior decision, the WCJ found the Claimant's symptoms were primarily right sided. The Employer's expert also had the benefit of a new diagnostic study and additional medical records. The Employer's expert ultimately concluded the Claimant was fully recovered from a strain that occurred at the time of the injury.
The Court nevertheless stated the WCJ could make a finding the Claimant's condition did not change materially since the first WCJ's decision based on the record. The Court stated it is "abundantly clear" a finding that the Claimant's condition changed is required, citing Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). The matter was remanded to the WCJ to make a determination on the existing record.
Sunday, July 13, 2008
Mediation Practice Well Represented in Blogs
Mediators have the ambition and the aptitude to produce very useful blogs on the subject. One place to sample this information is at The World Directory of ADR Blogs. Another is Mediate.com’s Mediate.com Featured Blogs
Thursday, June 26, 2008
Commonwealth Court Grants Reargument in Diehl
The Commonwealth Court granted the Respondent's petition for reargument and vacated the prior decision in T. Diehl v. WCAB (IA Construction, et al.). The case will be listed for reargument.
Thursday, June 05, 2008
New York Times Article on Back Pain and its Treatment
As part of its Special Section: A guided tour of your body
The New York Times assembled a few articles on back pain and its treatment.
As stated by Dr. Russell K. Portenoy, chairman of the department of pain medicine and palliative care at Beth Israel Medical Center in New York. “It’s good for the public to know how little we know.”
Other articles include “A Surgeon’s Own Back Story” This story will warm the heart of proponents of conservative care.
Links include Back Pain – Alternative Treatments from the National Institutes of Health Complimentary and Alternative Medicine Program and back exercises at back.com
The New York Times assembled a few articles on back pain and its treatment.
As stated by Dr. Russell K. Portenoy, chairman of the department of pain medicine and palliative care at Beth Israel Medical Center in New York. “It’s good for the public to know how little we know.”
Other articles include “A Surgeon’s Own Back Story” This story will warm the heart of proponents of conservative care.
Links include Back Pain – Alternative Treatments from the National Institutes of Health Complimentary and Alternative Medicine Program and back exercises at back.com
Tuesday, May 20, 2008
Supreme Court Grants Appeal in Case Where WCJ Amended the Description of Injury Without a Review Petition
In Cinram Manufacturing, et al, Pets v. WCAB (Hill) the Supreme Court granted the Employer’s Petition for Allowance of Appeal.
The Employer is arguing the Claimant had to file a Review petition according to Jeanes Hospital v. WCAB (Hass), 872 A.2d 159 (Pa. 2005) and Commercial Credit Claims v. WCAB (Lancaster), 728 A.2d 902 (Pa. 1997).
The Employer filed a Termination petition alleging the Claimant was fully recovered from the accepted injury, a lumbar strain. The Employer’s doctor so testified. The Claimant’s doctor testified a herniated disc present at least four years prior to the injury was aggravated and the Claimant had not fully recovered from this condition. The WCJ accepted the Claimant’s doctor’s opinion.
The WCAB and Commonwealth Court analyzed this case on a substantial evidence standard.
However, the issue is really one of due process. The Employer was not able to defend where the Employer’s medical witness met the Employer’s burden and there was no Review petition at issue.
September 13, 2007 post
The Employer is arguing the Claimant had to file a Review petition according to Jeanes Hospital v. WCAB (Hass), 872 A.2d 159 (Pa. 2005) and Commercial Credit Claims v. WCAB (Lancaster), 728 A.2d 902 (Pa. 1997).
The Employer filed a Termination petition alleging the Claimant was fully recovered from the accepted injury, a lumbar strain. The Employer’s doctor so testified. The Claimant’s doctor testified a herniated disc present at least four years prior to the injury was aggravated and the Claimant had not fully recovered from this condition. The WCJ accepted the Claimant’s doctor’s opinion.
The WCAB and Commonwealth Court analyzed this case on a substantial evidence standard.
However, the issue is really one of due process. The Employer was not able to defend where the Employer’s medical witness met the Employer’s burden and there was no Review petition at issue.
September 13, 2007 post
Tuesday, February 05, 2008
Commonwealth Court Remands In Modification Case Where Employer Provided Work Within the Claimant's Restrictions Then Took It Away
C. Rosenberg v. WCAB (Pike County) is a case of modification of benefits based upon a labor market survey. The Claimant is a corrections officer who suffered a knee injury. The Employer then placed the Claimant in a job the Claimant was capable of performing as a clerical worker with the Board of Elections. The Claimant was performing this job when the Notice of Ability to Return to Work was issued.
About a month after the Notice of Ability to Return to Work, the Claimant was terminated with the explanation that she was not expected to return to her regular duty position and the County does not provide permanent light duty positions. She was replaced in the Board of Elections with a newly hired person.
The WCJ granted modification in the case. The Claimant had some later jobs, evidencing earning power under Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works & Compservices, Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). However, the WCJ relied upon evidence of earnings in open jobs, not the earnings of jobs the Claimant actually held after leaving County employment. Accordingly, the Court held the case is controlled by South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). The Court remanded for the WCJ to make a finding whether the Employer met its burden to establish it had no work the Claimant was capable of performing.
The record on remand may establish the Employer accommodated restrictions of the Claimant while performing the Board of Elections job. If the Claimant was unable to perform essential functions of the job, the Employer did not have to offer it to her. The job also could have been unavailable to the Claimant if a collective bargaining agreement required that she vacate the position. However, if the Claimant could have continued to work in the job but for the Employer’s policy decision to terminate her, the Employer should be prohibited from obtaining a modification of benefits by vocational expert testimony regarding open jobs.
About a month after the Notice of Ability to Return to Work, the Claimant was terminated with the explanation that she was not expected to return to her regular duty position and the County does not provide permanent light duty positions. She was replaced in the Board of Elections with a newly hired person.
The WCJ granted modification in the case. The Claimant had some later jobs, evidencing earning power under Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works & Compservices, Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). However, the WCJ relied upon evidence of earnings in open jobs, not the earnings of jobs the Claimant actually held after leaving County employment. Accordingly, the Court held the case is controlled by South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). The Court remanded for the WCJ to make a finding whether the Employer met its burden to establish it had no work the Claimant was capable of performing.
The record on remand may establish the Employer accommodated restrictions of the Claimant while performing the Board of Elections job. If the Claimant was unable to perform essential functions of the job, the Employer did not have to offer it to her. The job also could have been unavailable to the Claimant if a collective bargaining agreement required that she vacate the position. However, if the Claimant could have continued to work in the job but for the Employer’s policy decision to terminate her, the Employer should be prohibited from obtaining a modification of benefits by vocational expert testimony regarding open jobs.
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