New post on the Pa Work Injury Law Blog

It's an editorial from the New York Times entitled "The Working Wounded."  A good read.  See it here.

Texas Court Overturns Multimillion-Dollar Vioxx Verdict

From Law.com:

A Texas appeals court on Wednesday overturned a multimillion-dollar verdict against Merck & Co. in one of the few trials it lost over its withdrawn painkiller Vioxx.

A jury in Rio Grande City, Texas, in April 2006 awarded $32 million to the widow of 71-year-old Leonel Garza, a short-term Vioxx user who died of a heart attack in 2001. That award -- $7 million for compensatory damages and $25 million for punitive damages -- later was cut to about $7.75 million under Texas law limiting damages.

On Wednesday, a three-judge panel of the Texas 4th Court of Appeals overturned the verdict, ruling in favor of Merck. The opinion was signed by Justice Sandee Bryan Marion.

The judges wrote that Garza's family did not prove his brief use of Vioxx caused two blood clots that the family's attorneys argued triggered his heart attack. The judges also concluded the family did not provide sufficient evidence to rule out his longstanding heart disease as the cause of his fatal heart attack.

See the full article here.

Bush Administration Uses Bureaucracy to Limit Lawsuits

From Law.com:

"Faced with an unfriendly Congress, the Bush administration has found another, quieter way to make it more difficult for consumers to sue businesses over faulty products. It's rewriting the bureaucratic rulebook.  Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.  Decried by consumer advocates and embraced by industry, the agencies' use of the government's rule-making authority represents the administration's final act in a long-standing drive to shield companies from lawsuits."

See the full article here.

Windham Fire Department 19 re-instated

From The Daily Review:

The Windham Township Volunteer Fire Company, Department 19, is now back in service after the Windham Community Fire Department, Department 28, told the Windham Township Supervisors that it will be dissolving, according to Doug Soden, president of Department 19.

Soden said Department 19 was back in service as of 9 p.m. Wednesday.

He also said the 911 call center was informed that Department 19 was back in service, and that Department 19 is now back on the township’s worker’s compensation.

Soden reiterated that Department 19 is and has been ready to be in service.

Windham Township Supervisor Tom Guinan verified that there was an executive committee meeting Wednesday, and it was decided that Department 19 would go back in service for Windham Township.

INJURY-PROOF CAR?

From The New York Times:

"Volvo is bidding to create an injury-proof car by 2020. While that vehicle of the future may lack the self-awareness of the crime-fighting Trans Am in 1980s TV series Knight Rider, experts say it will be able to steer, brake and find out about the road ahead from within a vast electronic bumper. And if all goes according to plan, its driver and passengers will escape even the most serious crash unhurt."

And all the plaintiff's lawyers and insurance company lawyers are screaming "NOOOOOOOOO!!!!!!"  Actually, I kid.  I imagine 99% of lawyers who litigate motorvehicle crash cases and injury law are like me-- we would gladly give up the money they earn if it means that people's lives would no longer be turned upside down by the serious injury or death of a relative caused by an automobile accident.

See the whole story here.

Patients often struggle for access to medical records

From USA Today:

When the record finally surfaced last year — too late under state law for Pingatore to file a civil lawsuit — it indicated Troy had been in mortal danger for several hours while awaiting care.

In 2006, another California woman, Beth Stover, ran into difficulties when she tried to get medical records to help her understand why her full-term baby had died in her womb.

When she got the records, she noticed something was missing: a strip-paper readout from a fetal monitoring device from Stover's last routine checkup. She eventually got a readout showing normal activity for a mother and her baby, but in a lawsuit she says she doubts it came from her records.

The hospitals involved — Fairchild Medical Center in Yreka, Calif., and Kaiser Foundation Hospital in Walnut Creek, Calif., respectively — deny any wrongdoing.

But the cases reflect a common complaint nationwide by patients and their families: It can be difficult to obtain medical records from hospitals and other treatment facilities after something goes wrong.

Under federal law, every patient or a designated representative has the right to see and copy the patient's medical records. However, missing or disputed records are the most common source of complaints on USA TODAY's Patient Safety website (patientsafety.usatoday.com), which was created in 2006 to give readers a venue to express concerns about inadequate medical care.

Although there are no statistics on such cases, disputes over medical records often are at the crux of malpractice lawsuits. Such claims often center on records that patients or their families, such as Pingatore and Stover, believe were purposely withheld by hospitals.

See the whole story here.

Because we exclusively handle injury cases at C&C Law, in almost every one of our cases, we need to obtain medical records.  Most of the time, it's really a simple exercise of having the client sign a HIPPA compliant authorization and mailing that to the particular medical provider with a request.  At that point, the provider will send an invoice.  Once that's paid, they mail the records.  However, some times there are issues.  Some times the records just can't be found.  But that's rare.  Only a few times have a doctor's office blatantly refused to provide records.  But a threat to report them and/or file suit against them usually solves the problem.

What geographic area does C&C Law cover?

These are the towns where most of clients have come from throughout our region, whether they are automobile accidents, workers' compensation, slip and falls, serious injuries, defective products or insurance disputes like long term disability denials.

Athens, PA
Sayre, PA
Towanda, PA
Wyalusing, PA
Canton, PA
Troy, PA
Dushore, PA
LaPorte, PA
Eagles Mere, PA
Mansfield, PA
Wellsboro, PA
Montrose, PA
Great Bend, PA
New Milford, PA
Tunkhannock, PA
Blossburg, PA
Elkland, PA
Waverly, NY
Barton, NY
Owego, NY
Elmira, NY
Binghamton, NY
Horseheads, NY
Williamsport, PA

New Pennsylvania Workers' Comp Blog!!!

I've started a new blog focused solely on Pennsylvania Workers' Compensation and solely from the perspective of the injured employee.

I will mainly focus on how it affects individual claimants, but this blog will also be a good research tool for lawyers who practice Pa work comp. I'll provide new case law updates as well as the practical tips and hints that can help the practitioner. But most importantly, I'll try to provide simple answers to complicated questions for injured workers and their families. Being injured at work is never a fun thing to do. And going through the workers' compensation system in Pennsylvania can seem like a maze. But the attorneys and staff at Carroll & Carroll, P.C. are here to help the injured worker and their family work through this maze.

You can find it at PaWorkInjury.blogspot.com.

 

Carpenter recovers nearly $40M for paralyzing work injury

A federal jury awarded nearly $40 million to a carpenter who sustained a paralyzing injury while working at Manhattan's South Ferry Terminal. Liability was not contested in the suit, which stemmed from an August 2006 incident in which Dmitry Okraynets, then 31, was struck by an 800-pound unit of construction forms that fell off of a wall. Okraynets, permanently paraplegic, claimed that a spinal complication could lead to paralysis of his upper limbs. He contended that he will require lifelong assistance and medical care. The jury found that Okraynets' damages totaled $39,706,444, and it also awarded $5 million to Okraynets' wife, for her loss of services.

See a full report on the case at VerdictSearch.com.

OSRAM's Towanda plant sold to Austrian company

I posted this news item in the "News" section of the web site here.  Whenever we have a major plant closing I often get calls from people who have current workers' compensation cases with the company being sold.  The employees are usually concerned about the continuation of their benefits, etc.

99% of the time, though, you don't have to worry about your benefits stopping or being effected at all by the sale.  Obviously, though, you job (assuming you're still working either full or light duty) might be affected.  So, if your company is sold and you are laid off but you also have an open workers' compensation case, make sure you talk to an experienced workers' comp. lawyer to review your options.

There's more information on the sale here.

US Supreme Court to Hear Argument on Long Term Disability Appeals

From The Christian Science Monitor:

"On Wednesday, the justices are set to examine how judges should approach policyholder disputes involving companies that both evaluate and pay medical disability claims administered under a federal retirement income law.

Do such companies operate in a conflict of interest between caring for their policyholders and enriching their shareholders? If such a conflict exists, how rigorously should federal judges examine decisions to deny benefits?  Federal appeals courts are sharply divided on how to answer those questions.

In its appeal to the Supreme Court, MetLife says that a company that both evaluates and pays claims does not necessarily operate under a conflict of interest. Lawyers for the company say that Congress in passing the Employee Retirement Income Security Act (ERISA) authorized companies like MetLife to both evaluate and pay claims.

Lawyers for Glenn say MetLife's business operations are a classic example of conflict of interest. "When an umpire bets on the outcome of a game he is refereeing, he has a conflict of interest," writes E. Joshua Rosenkranz, a lawyer for Glenn, in his brief.

"MetLife is equally conflicted when it decides whether a beneficiary is entitled to benefits. If MetLife answers 'yes,' then it is the one who has to pay; the beneficiary's gain is MetLife's loss," Mr. Rosenkranz writes.

Judges should take this conflict into account when reviewing benefits denials and should apply "especially careful scrutiny" to ensure that financial incentives have not tainted a company's fiduciary duty to its policyholders, he says."

We've handled many long term disability appeals at C&C Law.  And I can tell you from first hand experience that even with the "heightened standard of review" that the system is stacked against the disabled.  These cases are very difficult to win on appeal in Federal Court.  They are not like normal litigation.  Before you even engage in the initial "in-house" appeal to the insurance company for its first denial, you must retain a competent lawyer that is experienced in litigating long term disability cases under ERISA.  There are too many pitfalls to go into here in a simple blog.

But, if you have any questions, get this book here, then call us and we can review your case for free.

Heart risk in ADHD drugs?

From Philly.com:

"Millions of children taking drugs for attention deficit hyperactivity disorder should be checked for heart problems, the American Heart Association said yesterday, a recommendation that also might identify more youngsters with cardiac disorders.

Ritalin, Adderall, Concerta, and other stimulants commonly prescribed to treat ADHD can increase blood pressure and heart rate. While not a problem for the vast majority of patients, they can lead to life-threatening conditions and even sudden cardiac death in those with heart conditions."

Most Common Fair Labor Standards Act Violations

Although we don't practice wage and hour law at Carroll & Carroll, P.C., we often get questions from current workers' compensation clients regarding issues involving employer practices that might violate state and Federal law.

In the library section of the site, I've posted an article describing the most common violations of the Fair Labor Standards Act.  Review this to see if your employer does any of these things.  If so, contact us and we'll get you hooked up with an attorney who is an expert in this area of the law and can answer your questions.

See the article here.

Allstate Postings Don't Include Catastrophe Claim Information

From NOLO.com:

“The 150,000 pages of documents that Allstate Corp. posted on its Web site in response to a growing public relations storm contain mind-numbing documents on processing auto insurance and homeowners claims, but nothing about the issue that is most important to people hit by hurricanes Katrina and Rita: how the company handles catastrophe claims. ‘We haven't seen any 'cat' documents,’ said New Orleans lawyer Paul Miniclier. ‘There are many missing documents.’

A week ago, the suburban Chicago company posted reams of materials produced in the 1990s with the consulting firm McKinsey & Co. about overhauling Allstate's claims-handling practices. The company says it took the extraordinary step to dispel myths about the so-called ‘McKinsey documents,’ because critics of the company unfairly took snippets of the documents out of context.”

The documents were posted the same day a Florida judge said that that state's insurance commissioner could lawfully suspend Allstate's license to sell new policies until the company complied with a subpoena about its business practices. The posting also comes a month before New Mexico attorney David Berardinelli releases a consumer-oriented book, "From Good Hands to Boxing Gloves: The Dark Side of Insurance," about Allstate's quest to become more profitable to the detriment of its customers, which he wrote after seeing some of the McKinsey documents in a car wreck case.

Editorial On the Dangers of Federal Pre-emption

From The New York Times:

"The pharmaceutical industry and its good friends in the Bush administration are working hard to prevent consumers from filing damage suits for injuries caused by federally approved drug products. They may soon get a helping hand from the Supreme Court, which has already barred many suits over faulty medical devices.

"If this perverse legal doctrine, known as federal pre-emption, continues to spread, the public will be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations.”

See the whole editorial here.

Medical Malpractice Lawsuits in Pennsylvania Down Again for 2007

From PennLive.com:

"The number of medical malpractice lawsuits in Pennsylvania declined again in 2007, according to statistics released today.

There were 1,617 medical malpractice lawsuits filed in 2007, according to the state Supreme Court. That's down from 1,693 in 2006 and 2,903 in 2002, the year before legal changes intended to prevent frivolous lawsuits took effect.

The legal changes require lawyers filing malpractice cases to obtain a certificate of merit from a medical professional, saying the medical care that prompted the lawsuits was outside acceptable standards.

They also put an end to "venue shopping," a practice by which lawyers who file malpractice cases would try to put them in front of juries in Philadelphia, where jurors are known for ruling against doctors and hospitals.

In 2007, 153 medical malpractice cases were heard by juries, which ruled in favor of the health care provider about 83 percent of the time, the court said.

In a news release, Chief Justice Ronald Castille said the data show the decline in medical malpractice cases is not temporary and that they reflect a sustained response to the 2003 changes."

 

You can see a county by county chart for malpractice lawsuits filed for 2007, here, including the outcome of each case and the size of the jury award, if any.  Of all the cases tried, 82.7 percent were defense verdicts, meaning the doctor or hospital won.  So I don't want to hear ANYONE saying there is a medical malpractice crisis EVER AGAIN.

Allstate Gives Up McKinsey Documents In Kentucky

From The Lexington Herald-Leader:

Allstate Corp. on Friday released thousands of documents that have been cited by trial lawyers across the country, including in Kentucky, as a blueprint for fraud.

The release came the same day that an appeals court in Florida ruled that the state's insurance regulators can stop Allstate's companies from writing new policies in the state until it complies with subpoenas for documents.

Included in those subpoenas were the now-released "McKinsey & Co." documents, prepared by the McKinsey & Co. consulting firm to help Allstate overhaul the way it handled claims.

The Florida Office of Insurance Regulation suspended Allstate from writing new policies in January because it did not supply pricing information requested in an earlier subpoena.

The state wants documents to determine why Allstate's property insurance rates had not dropped after a state law designed to reduce premiums that rose due to hurricanes in 2004 and 2005.

Allstate, based in Northbrook, Ill., was able to keep writing new business as it appealed. The state, however, said the company must immediately comply after Friday's decision by the 1st District Court of Appeal in Tallahassee, pending a motion for a rehearing within 15 days.

"They have blatantly and flagrantly disregarded the law as has been pointed out in the 1st District Court opinions," Insurance Commissioner Kevin McCarty said. "If you look at what the court says as it goes through the history, they did not take this process seriously."

Allstate had turned over some of the McKinsey documents, according to media reports, but McCarty told the South Florida Sun-Sentinel on Friday that Allstate is "far from" finished complying with the requests.

An Allstate spokesman told the newspaper that the company will continue doing business in the state and plans to ask the court to reconsider its decision.

The McKinsey documents, which can now be viewed at http://media.allstate.com/media/terms_of_service, were cited during a high-profile trial in Lexington last year.

FDA: Same Salmonella strain in recalled cereal sickens 23 people

From CNN.com:

MINNEAPOLIS, Minnesota (AP) -- At least 23 people in 14 states have been sickened by the same strain of salmonella found in two breakfast cereals recalled by Malt-O-Meal, the federal Food and Drug Administration said Saturday.

Officials in Minnesota are investigating whether a case in that state might be linked to the cereals produced by the Minneapolis-based company, the state health department said.

Malt-O-Meal voluntarily recalled its unsweetened Puffed Rice and Puffed Wheat cereals April 5 after finding salmonella contamination during routine testing. The affected bags were produced in the past 12 months in Northfield, Minnesota.

Court Denies Insurer's Motion for Summary Judgment

From the Pennsylvania Association For Justice website:

On April 4, in McCrory v. State Farm Mut. Auto. Ins. Co., the Western District of Pennsylvania denied State Farm's Motion for Summary Judgment in a bad faith case arising out of the handling of an underinsured motorist claim where the insurance company made a blanket denial of any UIM coverage and the ultimate arbitration award was $650,000. 

The underlying third party case had $200,000 in potential total coverage and settled for $150,000.  After providing a credit up to the full policy limits, McCrory demand an additional $100,000 in underinsured motorist coverage and State Farm made a blanket denial that the claim was not worth more than $200,000.  This was without having fully assigned a value to the total amount of the claim or reviewing all of the medical records, etc. 

The court notes that "it simply made a blanket, conclusory, and convenient statement that the claim was worth less than $200,000."  Under the facts and evidence, the court writes that, "[a] reasonable juror could conclude that these facts prove that State Farm's goal was not to objectively and fairly determine the validity and value of McCrory's claim, but to ensure that whatever merit is had, her claim was valued below its $200,000 coverage trigger."  Thus, even with the higher standard of proof of clear and convincing evidence the Motion is denied and the court leaves the issue of bad faith for a juror to decide.

Another victory for drug manufacturers in the preemption battle

In a significant victory for drug manufacturers, the 3rd U.S. Circuit Court of Appeals has ruled that the makers of Paxil and Zoloft cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration has explicitly refused to order such warnings. Voting 2-1 in a pair of cases where the lower courts issued conflicting rulings, the 3rd Circuit found that such lawsuits must be pre-empted because they directly conflict with action already taken by the FDA.

See the story here.

The Importance of Pennsylvania's Insurance Commissioner

The person filling the job of Pennsylvania's Insurance Commissioner isn't a topic that is often discussed around the dinner table or at the coffee counter.  However, it is a very important issue and affects all of us.  For many years I've complained that the Insurance Commissioner, who is tasked with regulating the insurance industry in Pennsylvania, is always FROM the insurance industry.  In most instances, in my opinion, it appears the regulatory opinions that come from the Insurance Commissioner's office (which dictates what insurance companies can and cannot do) favors insurance companies and not us consumers.

The following link is to an editorial in the Towanda Daily Review that addresses this issue.  Finally we have a consumer advocate in the office, Joe Ario, who was appointed by Gov. Rendell.  Hopefully, the Governor's office can wade through the politics and get Mr. Ario permanently appointed so, finally, the Insurance Commissioner is not part of the problem.

See the editorial here.

New Case Law on Negligence Per Se

The link below is to a case from the United States Court of Appeals for the Third Circuit.  The Court held that it is reversible error when the trial judge refused to give the jury an instruction on a negligence per se charge despite the defendant pleading guilty to a motor vehicle violation.

There are certain actions that a defendant can do that automatically makes his actions negligent.  In this case, when the defendant's admitted motor vehicle violations caused the automobile accident, the trial judge should have instructed the jury that this amounted to negligence, pure and simple.  So, the jury did not have to make that decision.  Obviously, the trial judge did not do that so the plaintiff's attorney appealed and won.  Fortunately for the plaintiff, they can retry the case and get a second bite at the apple.

You can read the entire decision here.

New Pa. Supreme Court Decision re. Paying for Van for Injured Worker

In an issue of first impression, the Pennsylvania Supreme Court found that a van modified to meet a quadriplegic claimant's needs may fall within the definition of an "orthopedic appliance" that an employer is obligated to pay for.

See the opinion in the case of Griffiths v. WCAB here.

To get the other side of the argument, see the dissenting opinion here.

Walmart: The Evil Empire

 

Recent developments concerning self-funded employee benefit plans regulated by ERISA have created hidden dangers regarding recovery rights that must be addressed in accident and injury cases.

I've blogged about this case before but there's been some recent developments in the appeal of this sad case.

In the case of Administrative Committee of the Wal-Mart Stores, Inc. Associates' Health and Welfare Plan, vs. James A. Shank, as Trustee of Deborah J. Shank Irrevocable Trust, et al(Case No. 06-3531, Aug. 31, 2007), the United States Court of Appeals for Eighth Circuit addressed the recovery rights of an employee health insurance plan, possibly signifying the emergence of a new wave of health care reimbursement litigation.

The relevant facts of the Wal-Mart case are as follows: Deborah J. Shank was employed by Wal-Mart when she sustained severe injuries in a motor vehicle accident unrelated to her employment. However, as an employee of Wal-Mart, she participated in the Wal-Mart Associates' Health and Welfare Plan. Mrs. Shank's injuries from the accident left her brain-injured and incompetent requiring future medical treatment and nursing home care. The case settled for $700,000.00. After legal fees and costs, Mrs. Shank's net settlement proceeds of $417,000.00 were placed into a Supplemental Needs Trust to provide for her care. Following settlement, the Committee of the Wal-Mart Stores, Inc. Associate's Health and Welfare Plan brought suit against Deborah Shank, James Shank as Trustee, and the Special Needs Trust itself, to recover, in full, the amount of $469,216.00 paid on the Shank's behalf for medical expenses under section 502(a)(3) of ERISA.  See more on the facts surrounding the case here.

It is noteworthy that the Wal-Mart Plan contained subrogation and reimbursement clauses which purported to grant the Committee first priority over any judgment or settlement received relating to the accident. The relevant portions of the plan were as follows:

The Plan has the right to . . . recover or subrogate 100 percent of the benefits paid by the Plan on your behalf. . . to the extent of. . . [a]ny judgment, settlement, or any payment made or to be made, relating to the accident . . . These rights apply regardless of whether such payments are designated as payment for . . . [m]edical benefits [or] [w]hether the participant has been made whole (i.e., fully compensated for his/her injuries). . . .The Plan has first priority with respect to its right to reduction, reimbursement and subrogation [Emphasis added].

The U.S. District Court ruled in favor of Wal-Mart and the Court of Appeals affirmed, allowing a full recovery of the medical expenses against the Supplemental Needs Trust. The Court declined to apply the "made whole doctrine" or the Alhborn "pro-rata doctrine" to the claim for reimbursement holding as follows:

ERISA's purposes of upholding the integrity of written plans and protecting the interest and expectations of all participants and beneficiaries are best served by enforcing the Committee's contractual right to reimbursement. We thus hold that such relief is "appropriate" under section 502(a)(3). For these reasons, the judgment of the district court is affirmed.

Imagine the same facts, but with an even larger amount of medical expenses. Could such all-encompassing recovery language devour the entire amount of our client's settlement, including counsel fees? Therefore, it is critical that, as personal injury attorneys, we inquire early on as to any health insurance benefit plans that our clients may have through his/her employer and obtain a copy of the terms immediately.  Having such knowledge ahead of time will help avoid and address such potential dangers and, possibly, negotiate a better outcome for your client.

The United States Supreme Court recently declined to hear the Shank's appeal, thus ending the case in favor of Wal-Mart.  To add insult to injury, Mrs. Shank's son, a soldier, recently died in Iraq.

WalMart made $378 BILLION last year.