Category Archives: Workplace Policy

By Major Sherry

If you have been involved in an accident and you need to make a claim, then you need to know what to do. Being injured and making a car accident compensation claim are both a big deal and you need to know how to handle them properly. If you do not handle them properly, then you could end up worse off than just injured.

The Basics to Filing a Car Accident Compensation Claim

As long as you and the other driver are both insured, then it will be much easier to file your claim and deal with the things you need to. Make sure you get the information from the other driver. You will want their insurance information and you also want their personal information as well. If the police were called, then you want a copy of the police report as well.

If the accident was not your fault, then you will have some damages that the other party’s insurance company will have to pay for. This can include any medical treatment, rehabilitation, repairs to your vehicle, car rental, costs for emergency services, and any compensation for time you might miss at work.

This is not something you should take lightly and you could have more money coming your way than you originally thought. Insurance is there to help make you whole again and this includes any physical issues, financial losses, and mental issues as well. If the driver was negligent or the vehicle was defective, then you may also have a claim for damages of the punitive type.

What to Expect if you Have to File a Car Accident Compensation Claim

If you have to file a car accident compensation claim, then you may want to get some legal advice as well. Having a trained attorney can help to protect you from a settlement or an offer that is not even close to what you are owed. Typically insurance companies will try to offer you a sum of money that seems like quite a bit to you, but is not as much as you are owed. Having an attorney can help protect your rights and keep this from happening.

These are typically called personal injury attorneys and if you hire one that is known for doing well, then you will get more money than if you hire an attorney that does not know what they are doing. You need an experienced personal injury attorney to help you with your case. The best part is that the attorney you choose will not ask you to pay them unless they win money for you.

The bottom line is that you do not have to deal with all the struggles of filing a car accident compensation claim because it was not your fault. This means that you have rights and you need an attorney to help make sure your rights are protected. You have damages coming to you and you need to be “made whole” again by the insurance company. Make sure you get compensated for all of your losses.

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Submitted by: Daniel Siegel

Pennsylvania State Court Decisions

1. Civil Litigation

1.1. Automobile Insurance

1.1.1. Cars for Hire

*Supreme Court

? Prudential Property & Casualty Ins. Co. v. Sartno, No. 163 MAP 2005 (August 21, 2006)

Holding: An insured s use of his private vehicle to deliver pizza does not render the automobile a car for hire and does not trigger the exclusionary provision of the insurance policy.

1.1.2. Uninsured & Underinsured Motorist Arbitration

* Superior Court

? The Hartford Ins. Co. v. O Mara, 2006 PA Super 236 (August 29, 2006)

Holding: Under the Uniform Arbitration Act of 1980, when the application or construction of an insurance policy provision is at issue, the dispute is within the exclusive jurisdiction of the arbitrators. A court will take jurisdiction only when the claimant attacks a particular provision as: (1) contrary to a constitutional, legislative or administrative mandate; (2) against public policy; or, (3) unconscionable.

? Nationwide Insurance Co. v. Schneider, 2006 PA Super 219 (August 17, 2006)

Holding: Section 1733 of the MVFRL specifies the priority for recovery of underinsured motorist benefits, but neither mentions nor requires exhaustion of limits. When an insured settles a claim in contravention of a policy s consent-to-settle clause, an insurer must show that its interests are prejudiced.

1.1.3. Subrogation

* Supreme Court

? Wirth v. Aetna U.S. Healthcare, No. 28 EAP 2005 (August 22, 2006)

Holding: Pursuant to the Pennsylvania Health Maintenance Organization Act, 40 P.S. 1560(a), a health maintenance organization is exempt from complying with the anti-subrogation provision of the Pennsylvania Motor Financial Responsibility Law.

1.2. Medical Malpractice Claims

1.2.1. MCARE Act

* Superior Court

? McManamon v. Washko, 2006 PA Super 245 (August 31, 2006)

Holding: The Medical Care Availability and Reduction of Error Act does not apply to injuries not caused by medical negligence.

1.3. Sovereign Immunity

1.3.1. Real Property & Sidewalks Exceptions

* Commonwealth Court

? Reid v. City of Philadelphia, No. 1572 C.D. 2005 (August 3, 2006)

Holding: A street owned by a municipality that is designated a Commonwealth highway continues to be owned by the municipality. If a person is injured on a municipal sidewalk that adjoins a designated highway, the municipality remains the owner of the sidewalk and the sidewalk is, therefore, within the right of way of a street owned by the municipality for purposes of analyzing governmental immunity under the Political Subdivision Tort Claims Act.

? LoFurno v. Garnet Valley School District, No. 2082 C.D. 2005 (May 3, 2006)

Holding: A belt sander, designed to be bolted to the floor, that is not hardwired or permanently attached to the floor or to a dust collection system, is personalty, and not a fixture under the real property exception to governmental immunity under the Political Subdivision Tort Claims Act.

2. Civil Procedure

2.1. Appeal

2.1.1. Conflict Between Federal & Pennsylvania Law

* Superior Court

? Trombetta v. Raymond James Financial Services, Inc., 2006 PA Super 229 (August 22, 2006)

Holdings: 1.The standards of review of an arbitration award under the Pennsylvania Uniform Arbitration Act are not preempted by the Federal Arbitration Act (FAA).

2. The standards of review under the FAA cannot preempt the Pennsylvania standards for review of arbitration awards unless the Pennsylvania standards of review frustrate the underlying objectives of the FAA because standards of review are an inherently procedural mechanism used to facilitate judicial resolution of controversies after the underlying arbitration agreement has been enforced in accordance with the FAA.

3. Common law arbitration standards of review do not violate the core objective and principles underlying the FAA. Pennsylvania law governs the question of whether parties can impose de novo review on trial courts by virtue of contractual agreements.

4. De novo review clauses contained in arbitration agreements are unenforceable as a matter of law in Pennsylvania.

? Joseph v. Advest, Inc., 2006 PA Super 213 (August 8, 2006)

Holding: The provision of the Federal Arbitration Act permitting a party three months to challenge an arbitration award is procedural. Pennsylvania s 30-day deadline (under either the Uniform Arbitration Act or common law arbitration) for contesting arbitration awards applies to such appeals, and appeals filed more than 30 days after the entry of the award are untimely.

2.2. Capacity to Sue

* Superior Court

? George Stash & Sons v. New Holland Credit Co., LLC, 2006 PA Super 206 (August 2, 2006)

Holding: The Fictitious Name Act provides that an entity that fails to register its fictitious name shall not be permitted to maintain any action in a Pennsylvania tribunal. Where, as here, a person or entity knows the identity of the persons with whom he or she is dealing, he cannot assert the lack of capacity to sue under the Fictitious Name Act.

2.3. Collateral Source Rule

* Superior Court

? Simmons v. Cobb, 2006 PA Super 222 (August 16, 2006)

Holding: The collateral source rule does not preclude a plaintiff from introducing evidence of the receipt of Social Security Disability benefits. Rather, the collateral source rule, which is intended to protect tort victims, provides that payment from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer. In this case, plaintiff sought to introduce evidence of receipt of SSD benefits.

2.4. Forum Non Conveniens

* Superior Court

? Wright v. Aventis Pasteur, Inc., 2006 PA Super 203 (August 2, 2006)

Holding: In determining whether to dismiss a case pursuant to 42 Pa.C.S.A. 5322(e) based on forum non conveniens, the trial court must consider two important factors: (1) a plaintiff s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless there is an alternative forum available to the plaintiff. As Superior Court acknowledges this decision diverges from the apparent trend in recent forum non conveniens decisions … toward dismissing cases brought in Pennsylvania where another forum is available.

2.5. Interlocutory Appeals

2.5.1. Generally

* Supreme Court

? Pridgen v. Parker Hannifin Corp., Nos. 8 & 9 EAP 2005 (August 22, 2006)

Holding: In order for a trial court Order to be a collateral order under Pa.R.A.P. 313 and appealable as a matter of right the following three factors must be present:

1. The Order must be separable from and collateral to the main cause of action;

2. The right involved is too important to be denied review and must involve rights deeply rooted in public policy going beyond the particular litigation at hand; and,

3. The question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

1.1.1. Trade Secrets

* Superior Court

? Crum v. Bridgestone, 2006 PA Super 230 (August 23, 2006)

Holding 1: This decision contains the same holding relating to collateral orders as Pridgen (above).

Holding 2: Pursuant to Section 757(b) of the Restatement (2d) of Torts and Pennsylvania law, in order to determine whether particular information is to be given trade secret status, a court should consider the following factors:

1. The extent to which the information is known outside of the business;

2. The extent to which the information is known by employees and others involved in the business; and,

3. The extent of measures taken to guard the secrecy of the information. Order must be separable from and collateral to the main cause of action.

For a court to determine whether a protective order is appropriate under Pa.R.Civ.P. 4019(a)(9), the discovery standard should embrace both (1) relevance and necessity, and (2) a balancing of need versus harm. Once a party establishes that the information sought is a trade secret, the burden shifts to the requesting party to demonstrate by competent evidence that there is a compelling need for that information and that the necessity outweighs the harm of the disclosure.

1.1. Judgment by Default

* Superior Court

? State Farm Insurance Co. v. Barton, 2006 PA Super 210 (August 7, 2006)

Holding: After a responsive pleading is filed, even if untimely, a judgment by default cannot be entered because the responding party is no longer in default.

1.2. Settlement

* Commonwealth Court

? Brannam v. Reedy, No. 2590 C.D. 2005 (August 14, 2006)

Holding: An evidentiary hearing is required when one party disputes the existence of a settlement agreement or its binding effect, and is the appropriate procedure even when there is a written agreement signed by counsel if it is alleged that counsel lacked the authority to bind his client. There must also be a hearing when a settlement is vacated by court order or enforced by court order. A hearing must be held even if the trial court has intimate knowledge of the facts as a result of a pre-hearing conference because a trial court s recital of facts is not a substitute for a full record. A hearing must also be held, despite filing a petition and answer, even if no party requests one.

1.3. Transfer From Federal Court to State Court

? Falcone v. The Insurance Company of the State of Pennsylvania, 2006 PA Super 241 (August 30, 2006)

Holding: Pursuant to 42. Pa.C.S.A. 5103, a party may transfer a case from federal court to the appropriate state court when the federal court lacks diversity jurisdiction. The date of the federal filing becomes the date of the state filing for purposes of the applicable statute of limitations. To comply, a party must promptly file a certified transcript of the final judgment of the federal court and related pleadings in a Pennsylvania court or magisterial district. A party does not comply with the statute by filing a new complaint in state court.

2. Unemployment Compensation

2.1. Necessitous and Compelling Reason to Quit

* Commonwealth Court

? Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review), No. 464 C.D. 2006 (August 23, 2006)

Holding: Elimination of health care benefits constitutes a substantial change in employment terms and serves as a necessitous and compelling reason for a claimant to resign from employment, thus entitling the claimant to unemployment compensation benefits.

3. Workers Compensation

3.1. Appellate Review

* Supreme Court

? Trimmer v. Workers Compensation Appeal Board (Monaghan Township), No. 58 MAL 2006 (August 3, 2006)

Holding: The Commonwealth Court (and presumably the Workers Compensation Appeal Board) may not substitute its determination of the facts and credibility of witnesses for the Workers Compensation Judge s proper assessments. This per curiam Order summarily reverses the Commonwealth Court s decision because determination of facts and credibility is solely within the province of the Workers Compensation Judge.

3.2. Hearing Loss/Employer Liability

* Commonwealth Court

? Hayduk v. Workers Compensation Appeal Board (Bemis Co., Inc.), No. 230 C.D. 2006 (August 11, 2006)

Holding 1: When an employer (Company A) purchases the assets, but not the liabilities, of another company (Company B), including the plant where the claimant worked, and the purchase specifically excludes any of Company B s workers compensation liabilities that arose prior to the purchase of the assets, Company A is not liable for any work-related hearing loss that occurred prior to its purchase of Company B.

Holding 2: Under Section 306(c)(8)(iv) of the Workers Compensation Act,audiometric testing for a work-related hearing loss must conform to applicable OSHA standards. It is the employer s burden, however, to establish that an occupational hearing loss is attributable to a previous employer. When, as here, the employer fails to meet this burden, it remains liable for all of a claimant s compensable hearing loss.

3.3. Impairment Rating Examinations

* Supreme Court

? Dowhower v. Workers Compensation Appeal Board (Capco Contracting, Inc.), No. 542 MAL 2003 (August 11, 2006)

Holding: The Supreme Court has granted claimant s Petition for Allowance of Appeal and will, presumably, address the issue of whether an employer may request an Impairment Rating Examination before the 104-week period in Section 306(a.2)(1) of the Workers Compensation Act.

3.4. Physical Examinations

* Commonwealth Court

? Knechtel v. Workers Compensation Appeal Board (Marriott Corp.), No. 140 C.D. 2006 (August 24, 2006)

Holding: Pursuant to Section 314(a) of the Workers Compensation Act, when an employee s physician attends an employer-requested physical examination, the employee is entitled, at employee s expense, to have a health care provider of his or her own selection participate in such examination. Participation is limited to attendance and observation.

About the Author: Daniel J. Siegel, a Havertown, Pa. attorney, founded

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Majority Have Little or No Knowledge of How Self-Insured Groups Work

by

Hale Johnston

EMPLOYERS latest SIG-related poll results come at a time of continued financial challenges for some large SIGs and their members around the country. In California, a workers compensation SIG for restaurants, golf courses and country clubs recently announced a $42 million assessment on its member businesses to make up for the group s insufficient reserves. The assessment means costs of tens of thousands of dollars or more to the member companies, including many that are former members. And recently a health-care industry SIG also announced an assessment to its members which was necessary to comply with California financial standards and to shore up a $25 million reserve deficit.

Four out of ten small business decision-makers incorrectly believe that SIG members are not financially responsible for the claims of each of the group s other member companies, according to the latest EMPLOYERS Small Business Opinion Poll. This lack of SIG knowledge is not limited to the general small business population. Thirty-nine percent of small businesses who are currently or were part of a SIG incorrectly believe SIG members are not financially responsible for the workers compensation claims of each of the other companies in their SIG, not just their own businesses.

EMPLOYERS Small Business Opinion Poll Snapshot:

73 percent have little or no knowledge of how SIGs work

40 percent of all small business decision-makers polled don t realize SIG members are financially responsible for each of the other member company claims

39 percent of current and former SIG members don t realize they are responsible for claims of each of the other member companies

31 percent believe saving money on annual premiums outweighs the financial risk of a SIG failure

25 percent incorrectly believe that their claim liability ceases when they leave a SIG

Selecting Workers\’ Compensation Coverage

When selecting a workers\’ compensation insurance carrier, price logically serves as a deciding factor and is certainly important. However, it\’s also important for businesses to consider long-term cost savings that can be achieved through value-added programs such as loss control, anti-fraud and managed care programs that are offered by private insurance carriers.

Following are questions businesses should ask if they are already members of or are considering leaving self-insured groups.

Nine Questions Businesses Should Ask Their Self-Insured Group Administrator:

1. How well funded is the self-insured group?

2. How many claims have occurred while my company has been a member?

3. What is the expected lifetime cost of each of these claims?

4. What does joint and several liability mean to my business?

5. What is my company s exposure if another member of the self-insured group has a claim?

6. Can a claimant sue my company for the full cost of a claim?

7. What liabilities does my company have if I leave the self-insured group?

8. What are the legal requirements of leaving a self-insured group?

9. Will I need to re insure any costs related to claims that occurred while I was part of the self-insured group?

About the Small Business Opinion Poll

The study commissioned by EMPLOYERS surveyed 501 owners or managers of small businesses with 1-99 full-time employees. Data was collected through telephone interviews during the period May 9 May 17, 2012 at the 95 percent confidence level. The sample is stratified across business size and industry grouping, including manufacturing/construction, transportation/ communication, wholesale/retail, financial services, or personal/professional services businesses. The survey was conducted by ORC International through its Small Business CARAVAN.

Hale Johnston is Senior Vice President, Regional Manager of the Pacific Region for EMPLOYERS . Additional information can be found at

employers.com

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