Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

Approximately 70% of insurance companies use software programs, such as COLOSSUS, Claims Outcome Advisor and Injury IQ, in order to evaluate personal injury claims. Large insurance companies such as Allstate and Erie utilize these programs in order to minimize costs. These programs determine general non-economic damages on the claims of people injured in motor vehicle accidents and premises liability cases. The programs generate settlement offers based on diagnosis, treatment and other intangible factors such as how the injuries affected the person’s activities of daily living (ADL). The information is input by insurance adjusters and the program provides a settlement range. Insurance companies must settle the case at or below that range.

When dealing with insurance companies that use these software programs, an attorney representing the injured victim provide a very detailed and thorough analysis of the medical records in order to maximize the settlement offer. Here at Stark & Stark, we have vast experience in dealing with insurance companies that utilize these software programs. Our team of attorneys and paralegals interview clients in order to obtain information which will maximize the recovery. Additionally, we carefully and methodically review medical records to highlight the specific factors which will maximize the result for our clients.

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If you are a union member and you haven’t heard about what went on recently in Wisconsin...then listen up.

In March, Wisconsin legislatures voted to reduce the collective bargaining power for union public workers. Basically, the bill prevents or limits union public workers from collectively bargaining for wage increases. In the past, a union was free to bargain for rates that the union deemed fair. The new Wisconsin bill however limits rate increases for union workers, to that of the rate of inflation. This bill also makes public workers pay more towards their pension and doubles their health insurance contributions. For a non-union worker this would be equal to an 8% pay cut. Protests and walk outs by public workers such as teachers have occurred as a result of this new bill. Those in support of the bill maintain that it is to help the budget as it is “the people” that pay for public workers’ union benefits through taxes and other means. Those in opposition see it as unfair to union members and the purpose of unionizing in the first place.

However, this type of sentiment against union collective bargaining seems to be catching on. Now, Ohio is following Wisconsin. In March, Ohio legislature approved a bill which bans strikes and prevents unions from negotiating benefits for public workers. The Ohio measure however goes a little bit further. The bill passed in Ohio includes police officers and firefighters, which was a class of unions that were not included in the Wisconsin bill. Those who support the bill say it was passed in an effort to reduce union protections and use that savings to reduce that state’s budget. Those who oppose the bill view it as a direct effort against unions. They allege that the bill affects the safety of union governmental employees as it allows the unions to negotiate on wages but not health care, sick time or pension benefits. It also halts automatic pay increases and replaces them with merit based pay.

As union reducing bills have already been passed in two States it raises a question as to whether other States, including Pennsylvania may follow. So far...so good. If you are concerned about this or another similar bill coming to Pennsylvania, you should speak with your legislature and stay actively involved in your union.
 

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The Pennsylvania Senate approved legislation on Tuesday, May 24, 2011 that would require contractors and subcontractors to verify legal employment status for all employees working on public building projects.

Senate Bill 637, which passed 47-7, makes use of the federal E-Verify system, operated by the Department of Homeland Security, mandatory to confirm that all employees are eligible to work in the U.S.

Employers would be required to submit employment verification statements to the Pennsylvania Department of Labor and Industry prior to beginning work on any public contract.  The Secretary of Labor and Industry will provide the form of the verification.  Additionally, Contractors will be required to provide to the public entity with the verification statement before it can commence work for the public entity.  Any subcontractor will be required to provide a verification statement to the Contractor prior to commencing work on a public building project and the Contractor will provide a verification statement to the public entity for all subcontractors it uses or intends to use on the public building project.  The verification statements will contain a certification signed by the Contractor or Subcontractor, as the case may be, that the information in the verification is true and correct and that submission of false or misleading information shall subjection the person signing the verification to sanctions.

The following constitutes a violation of this provision:

1. Employment of an employee on a public works project whose eligibility has not been verified through the federal E-Verify system.
2. Use by a Contractor of a Subcontractor on a public works project prior to the submission by the Subcontractor of a verification statement.
3. Commencement of work by a Subcontractor on a public works project prior to the submission by the subcontractor of the verification statement.
4. Making a false statement or misrepresentation in a verification statement.

Penalties for violation of this provision can be a fine, cancellation of the contract and possible debarment or suspension for one year. A Contractor will be immune from sanctions if it in good faith relies upon the federal E-Verify system and was provided with incorrect information.

We will follow this legislation and advise of any amendments and if the Governor signs this legislation into law.

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Last month the Journal, Health Affairs, published a study entitled 'Global Trigger Tool’ Shows That Adverse Events In Hospitals May Be Ten Times Greater Than Previously Measured. The researchers stated that “reliance on voluntary hospital reporting...could lead to seriously flawed perceptions of patient safety in the United States.” The authors believe their findings may actually under report the rate of medical errors “because they rely on medical record review, which would not detect as many adverse events as direct real-time observation would.”   

According to Reuters these “errors can range from bedsores to objects left in the body after surgery to life threatening staph infections.” While not every bad outcome is the result of medical malpractice, it is important that you contact an attorney if you believe you or someone you love may have been the victim of medical negligence. At Stark & Stark we have a highly skilled team of lawyers and former health professionals available to investigate your complaints at no charge.  Please feel free to call me at 267-907-9600.

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Ok, so Arnold fathers a child with his maid, Mildred Baena.  Arnold is married and, at the time, Baena was married.  The child is now around 14 years old and Baena is now divorced.

So who pays child support?  Arnold or Baena’s ex husband?
If this happened in Bucks County, or any where in Pennsylvania, it could be Baena’s ex-husband and not Arnold.
               
How can that be?
The courts in Bucks County and throughout Pennsylvania, as in most states (California being one) have a “presumption of paternity.” This presumption, according to the Pennsylvania Supreme Court, is “one of the strongest presumptions known to the law.”  The presumption is that a child conceived or born during the marriage is a child of that marriage.  So regardless of who may have been the biological father, it will presumed that Baena’s husband, who was married to Baena when the child was conceived and born, is the legal father of the child.  As such Arnold would have no right or obligation to the child.

So is Arnold, who is estimated to be worth $800 Million dollars, off the hook for child support? 
Not necessarily.  Under Pennsylvania law the presumption can be rebutted if, at the time of litigation for paternity, the marriage between the husband and wife is no longer intact.  If this case was in Bucks County, Montgomery County or any where in Pennsylvania, now that Baena is divorced, paternity can be addressed.

Why does Baena’s marital status matter?
The public policy in Pennsylvania behind the presumption of paternity is the preservation of families, which should not be destroyed by a dispute over the parentage of a child conceived or born during marriage.  A third party should not be allowed to attack the integrity of a functioning marital unit, based on public policy that children should be secure in knowing who their parents are.  If a person has acted as a father and bonded with the child, the child should not be required to suffer the potentially damaging emotional trauma that may come from being told his father, who he has known all his life, is not in fact his father.

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The Supreme Court of Pennsylvania recently decided a case involving the issue of whether a motorcyclist, who has a motorcycle insurance policy, can collect under-insured (this would also apply to uninsured) motorist coverage from his automobile insurance policy if he is involved in an accident while riding his motorcycle. The insurance policy provision that was at issue is known as the “household exclusion.” This exclusion, which is routinely part of an automobile insurance policy,  prohibits the insured from making a claim under his automobile insurance policy when he is injured while operating a vehicle (in this case, a motorcycle) which is insured under a different policy.

In the case before the Court, the insured was injured in an accident on his motorcycle. He had insurance coverage on the motorcycle and also had insurance coverage on other automobiles in his household. Both policies had uninsured and under-insured motorist coverage. The insured attempted to collect on the auto policy (after he collected on the motorcycle under-insured coverage) because the person who caused the accident did not have enough coverage to cover the injuries which he sustained (the person who caused the accident was under-insured). The insurance company denied the claim, citing the following clause in the policy:

“This coverage does not apply to bodily injury while occupying or from being struck by a vehicle owned or leased by you or a relative that is not insured for under-insured motorist coverage under this policy”

The basis of the Supreme Court opinion was linked to public policy arguments. On the one hand, it was argued that the insurance clause at issue was clear and unambiguous and therefore should be enforced as written. The Court found that to allow the type of recovery requested by the injured motorcyclist would result in an increase in insurance premiums generally, because the insurance company issuing the automobile insurance policy theoretically would not have any way to know what other vehicles their insured might own and insure under different policies.

On the other hand, the insurance company in this case knew that the insured owned a motorcycle because the insurance company also insured the motorcycle, but on a separate policy. The Court enforced the household exclusion clause in the automobile insurance policy and found that the insured could not seek under-insured motorist coverage from that policy.

The bottom line for motorcycle owners is to buy adequate uninsured and under-insured motorist coverage on your motorcycle. You cannot look to your automobile coverage for a recovery for injuries caused while on your motorcycle. 

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The Workers’ Compensation Act requires a contractor/employer to stand in reserve and provide workers’ compensation insurance for subcontractors and their employees, if that subcontractor does not have insurance. Originally the Workers’ Compensation Act set enacted this requirement in order to protect workers. The legislature believed that making the contractor responsible for workers’ compensation benefits when its subcontractor was uninsured, would force the hiring contractor to make sure that the subcontractor it hired had insurance. However, that is not what happened. 

Contractors shortly learned that the law does not require the contractor to provide workers’ compensation insurance to a subcontractor or its workers if they were an “independent contractor’. So, in order to avoid paying higher workers’ compensation insurance, contractors are calling all subcontractors “independent contractors” even when the subcontractor is not truly an independent contractor. The reality of this is that the injured worker suffers the consequences by being denied a workers’ compensation benefits because of the, sometimes intentional, mis-classification of the subcontractor.

In an effort to avoid the above scenario, on February 10, 2011 the Construction Workplace Misclassification Act took effect. The purpose of this Act is to prevent employers from classifying their subcontractors as “independent contractors” in order to avoid paying workers compensation benefits. According to this Act, for the purposes of Workers compensation you are considered an “independent contractor” only if the following is met:

1. The individual has a written contract to perform such services.
2. The individual is free from control or direction over performance of such services goes under the contract of service and in fact.
3. As to such services the individual is customarily engaged in an independently established trade, occupation, profession or business.

Under this Act, it doesn’t matter if federal/state income taxes are being withheld or if unemployment compensation or workers’ compensation premiums are being paid. If a subcontractor meets the above criteria, they are considered an independent contractor.

The Act also goes to provide  a deterrent for those who improperly classify a subcontractor as “independent”.  If an officer or agent of the employer violates this Act, the employer can face criminal penalties including a misdemeanor of the third degree for a first offense, a misdemeanor of the second degree for a second or offense and/or be ordered to pay a fine of up to $1,000. 

If you feel that you have been denied workers compensation benefits because a company you worked for classified you as an independent contractor, you can file a complaint online using the  “Construction Workplace Misclassification Complaint Form”. This form can be found on the Pennsylvania Department of Labor & Industry website form number LLC-72. Should you have any questions, or feel you have been denied benefits by being classified an “independent contractor” rather than an employee, please call us at 267-907-9600.

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Often time clients express concerns that their auto insurance policy will be canceled as a result of an accident or an accident-related claim or that their insurer will simply refuse to renew their policy.  However, in most Pennsylvania cases this is simply not a valid concern.  This is because Pennsylvania prohibits certain types of discrimination when it comes to the cancellation and renewal of auto insurance.

This law (40 P.S. 991.2003) specifically states that an insurer may not cancel or refuse to renew an auto insurance policy due to an accident that occurs under the following circumstances:

1. An accident that occurs while your vehicle is lawfully parked (i.e. where a driver   opens their door and injures an oncoming bicyclist);
2. An accident where you are reimbursed by the person who is responsible for the accident (i.e. the accident is not your fault and the other driver’s insurance company pays for the damage to your vehicle);
3. Your vehicle is struck in the rear by another vehicle and you have not been charged with a moving violation;
4. The other driver is charged with a moving violation and you are not;
5. A “hit-and-run” accident that is reported to the police within 24 hours;
6. Any accident involving contact with an animal (i.e. you hit a deer);
7. Any accident involving damage caused by flying gravel missiles or falling objects.

This law further states that an insurance carrier cannot cancel or refuse to renew your auto insurance policy as a result of any claim made under the comprehensive portion of your policy unless the loss underlying your claim was caused intentionally. 

If you are hesitant to report an accident or other claim to your insurance company for fear that your policy will not be renewed or even canceled, contact the experienced personal injury attorneys at Stark & Stark for assistance.

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For many years, both Pennsylvania Law as well as Case Law have come down on the side of the Commonwealth’s ski resorts for both legal and economic/business reasons. In general, this is when someone is participating in downhill skiing, snowboarding and snow tubing and various activities such as boarding and unboarding of ski lifts, etc., there have been ways the assumption of risk doctrine is applied when someone is injured because of the inherent risks of these activities. Overall, the law makes it difficult for a injured Plaintiff to succeed in a case against the ski resorts in any of these areas.

Various Pennsylvania courts have expounded in essence a list of inherent risks to which assumption of the risk is a applied, including the following:
 

1. Skiing back to the chair lift at the bottom of a slope and colliding with another skier;
2. Alight from a ski lift;
3. Being struck by a ski lift chair;
4. Sliding under a plastic-web orange hazard fence on an icy double-black diamond slope;
5. Colliding with a ski lift line corral after a ski cathces on a ice patch;
6. Failure by staff of a ski resort to set netting in all a pots where it might prove necessary and fix a race course in a way that minimizes the potential for the competitors to lose control;
7. Colliding with a fence post;
8. Allegedly defective ski equipment when implied warranties are properly disclaimed and no express warranties exist;
9. Choosing to ski despite hazard;
10. Icy patches that cause skiers to veer off course and into structures;
11. Skiing in the inclement and “dangerous weather”; and
12. Colliding with a ski left while attempting to help another individual board a chair

However, there are exceptions to this. Pennsylvania Courts have held that a person does not assume the risk of another’s negligence as a matter of law when the participants are engaging in a non competitive, non contact recreational activity. Therefore, there can be circumstances where an injured party can sue, participating in these events. Courts have held that a ski lift operator could be found negligent for leaving a chair lift seat in the up position. Also, a skier does not assume the inherent risk of being struck on the slopes by an intoxicated teenager, and such a risk is not an inherent risk of the sport of downhill skiing. It has further been ruled that a claim can be made against a ski resort for failing to have ski patrol remove intoxicated persons from the slope. There could be claims made for other properly alleged acts of negligence which would go beyond the areas where the assumption of the risk doctrine may apply.

However, skiers, snowboarders and snowtubers be warned that if you are injured during the participation of any of those events in Pennsylvania, that the likelihood of prevailing in a lawsuit is minimal, unless your matter fits within one of the exceptions to the assumption of the risk.

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The Center for Disease Control’s (CDC) award for infection research and development is timely. The Pennsylvania Health Care Cost Containment Council released data for 2009 on the rate of hospital-acquired infections on February 25, 2011.

The findings indicate that of those Pennsylvanians who acquired an infection in a hospital in 2009, 29.8 percent were readmitted within 30 days for an infection or complication. In contrast, only 6.2 percent of those who did not contract an infection during their hospital stay had to be readmitted because of an infection.

Additionally, the cost in terms of mortality is staggering. Of patients who acquired an infection, the mortality rate was 9.4 percent. For those who had not acquired an infection the mortality rate was 1.8 percent.

The financial impact is significant. Of Medicare patients age 65 years and up who acquired an infection in the hospital and had to be re-admitted, the readmission cost was over $24.6 million. 

In terms of the source, surgical site infections were number one, followed by urinary tract infections and third by gastrointestinal infections.

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Whether you are riding your bicycle or your encounter someone on a bicycle while driving, you are bound by the rules of the road. Although not well known, there are Pennsylvania Statutes, Ordinances, Rules and Regulations which affect bicycles.

Unfortunately, bicycles, automobiles, and pedestrians do not always peacefully co-exist on our roadways. In addition, numerous bicycle incidents are the result of dangerous and defective roads. Bicycle fatalities and tens of thousands of bicycle injuries occur each year.

Bicycle cases present difficult and unique issues. Issues such as the status of the bicycle: what rules of the road govern; right-of-way; bicycle lights; helmets; collisions with automobiles; collisions with pedestrians; and road conditions. 

Pennsylvania has numerous statutes which pertain to bicycles or “pedalcycles” as they are know. The bicycle is considered a vehicle and as such is governed by the general rules common to all vehicles, as well as a specific set of rules designed for bicycles.

Did you know that bicycle riders are required to give hand/arm signals when turning?

• For a left-hand turn, the hand and arm shall be extended horizontally;
• For a right-hand turn, the left hand and arm shall be extended upward (the right hand and arm horizontally is also permitted);
• To stop or decrease speed, the left hand and arm shall be extended downward.

Because a bicycle is considered a vehicle, it has a right to be on the roadway. But the law requires that vehicles proceeding at less than normal speed shall be driven in the right-hand lane. While the bicyclist must stay to the right, they are permitted to make movements consistent with their intended route.
   
Did You Know:   

• Bicycle riders on a roadway shall not ride more than two abreast, except on a path set aside specifically for bicycles;
• Bicycle riders shall not carry any package which prevents them from keeping at least one hand upon the handlebars;
• Bicycle riders must have brakes capable of stopping within 15 feet when traveling 15 m.p.h.;
• Bicycle riders during sunrise/sunset hours shall have lights;
• Bicycle riders under 12 years old must wear a helmet. (The Pennsylvania Department of Transportation strongly recommends that all bicyclists wear approved helmets whenever they ride);
• Bicycles are not permitted on Pennsylvania’s freeways. (There are a few state designated freeways which allow bicycles).   

In addition to state statutes which govern bicycle riding state-wide, there may also be local ordinances. For example, the City of Philadelphia has a series of ordinances regulating bicycle use. Because bicycle riders must comply with the rules of the road, the Pennsylvania Drivers Manual is helpful to understand your responsibility (i.e. traffic signs/stop signs/railroad crossing, etc.) The Commonwealth also publishes a bicycle driver’s manual which outlines your responsibilities.
   
Unfortunately, accidents involving bicycles happen every day and often times result in serious injuries.

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You can work while you receive Social Seciety Benefits.  This will likely mean a higher benefit for you in the future because you are continuing to contribute to Social Security through payroll taxes.  However, while you are working, your earnings will reduce your monthly  benefit until you reach your full retirement age.  Once you reach your full retirement age, you can get your full amount of benefits with no limit on your earnings. 

If you are under full retirement age for the entire year, Social Security will deduct $1.00 in benefits for every $2.00 you earn above a set limit. For 2011, that limit is $14,160.  In the year you reach full retirement age, Social Security will deduct $1.00 in benefits for every $3.00 you earn in the months before you reach your full retirement age.  If you will reach your full retirement age in 2011, the amount you can earn before the deduction kicks in is $37,680.  Starting with the month you reach full retirement age, you can get your benefits with no limits on your earnings thereafter.

If you are not already receiving benefits, you should contact Social Security at the beginning of the year you reach your full retirement age.  Even if you are still working, you may be able to receive some or all of your benefits for the months before you reach your full retirement age.

If you choose not to receive benefits until you are 70 years old, you will likely receive a delayed retirement credit and receive a higher monthly benefit than you would if you had retired at your full retirement age.  No credit is given after age 69.

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