Leave a comment

Another Supreme Court Victory for Injured Workers (In Which Philadelphia Area Attorney Dan Siegel Was Counsel)!

If you get hurt walking to your job from the parking lot, you are often eligible for workers’ compensation benefits in Pennsylvania. On November 20, 2019, the Pennsylvania Supreme Court unanimously agreed that injured workers should be compensated if they are injured in a parking area—even if that parking area is optional. Attorney Daniel J. Siegel of the Law Offices of Daniel J. Siegel, LLC submitted the friend of the court brief on behalf of the Pennsylvania Association for Justice.

In US Airways, Inc. and Sedgwick Claims Management Services, Inc. v. Workers’ Compensation Appeal Board (Bockelman), the Court agreed that a US Airways employee, who was injured on a shuttle bus taking her to an employee parking lot that was not owned by the employer, was entitled to wage losses and payment of her medical bills. Justice David Wecht authored the Opinion, writing that “the phrase ‘the employer’s premises’ in [the Pennsylvania Workers’ Compensation] Act should be construed liberally to include any area that is integral to the employer’s business operations, including any reasonable means of ingress to or egress from the workplace.” Because “the lot in which Bockelman parked her vehicle was integral to US Airways’ business operations,” she was entitled to benefits.

This is one of many Pennsylvania Supreme Court cases in which our office successfully represented the interests of injured workers and other accident victims, including many cases referred to our office by other lawyers. Just give us a call at (610) 446-3457 to learn how we can help you.

Why Voting Matters – the General Assembly and Protz

We all hear that voting matters. Recent events highlight why voting matters for every worker in Pennsylvania and why, if the legislature reflected the values of injured workers, this blog post might be different. Tomorrow, Pennsylvanians vote for judges, and it’s important to vote for candidates who reflect your values; your vote matters.

Here are the details. In 1997, the legislature amended the Workers’ Compensation Act to allow insurance companies to reduce injured workers’ benefits through a process known as an impairment rating exam (IRE). It took 20 years, but through the efforts of our office and others, the Pennsylvania Supreme Court declared the IRE process unconstitutional in an opinion known as Protz II.

So what did the legislature do? In 2018, it enacted a new IRE process, fixing the problems that made the entire process unconstitutional. As a result, the IRE is back and insurance companies are using it one again to reduce the benefits available to Pennsylvania’s injured workers. And one appeals court has now ruled that the amendments were legally enacted.

If we had elected more legislators sympathetic to the plight of injured workers, there would not have been a new IRE process, and workers would have more rights than they do now.

Just like that, we are back to a process that can be used to reduce benefits for the majority of injured workers. So when you go to vote, for judges, for legislators, or for anyone else, make sure you find out where they stand on issues that matter to you.

Our office regularly represents injured workers and fights hard to get them the benefits they deserve – even if the system is not always fair. Just give us a call at (610) 446-3457.

Interlocutory Appeals – When is the Right Time?

The term itself sounds alien – “interlocutory.” It refers to interim court decisions that usually aren’t appealable. Yet, the Pennsylvania Appeals Court Rules permit parties to appeal from some interlocutory rulings. The rub is when and how, two considerations lawyers may not think about or understand. Today, we won a case in which the Superior Court concluded that it could decide an interlocutory appeal based on Pennsylvania Rule of Appellate Procedure 341(c). The decision in Sawyers v. Davis is interesting because, to convince the Court, we had to carefully nuance the arguments in our brief and particularly at oral argument. The result: the plaintiff whose case was tossed gets her day in court. Click here to read the Superior Court decision in Sawyers v. Davis.

So, when can you appeal an interlocutory order? Attorneys need to closely review Pennsylvania Rule of Appellate Procedure 311, which says an “appeal may be taken as of right” without a final order, namely: orders affecting judgments; orders involving attachments, change of criminal venue or venire, injunctions, peremptory judgment in mandamus, new trials, or partition; and orders relating to venue or personal or in rem jurisdiction, preliminary objections in eminent domain matters and certain Commonwealth criminal appeals. There is a catch-all for “other cases” in which an “order is made final or appealable by statute or general rule, even though the order does not dispose of all claims and all parties.” Rule 311(a)(8).

A real nuance is Rule 311(f), which specifically addresses appeals following an administrative remand. Parties may appeal as of right: “(1) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion; or (2) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue that would ultimately evade appellate review if an immediate appeal is not allowed.”

Recently, the Commonwealth Court threw out an appeal because the Environmental Hearing Board’s decision was not appealable as of right under Rule 311(f)(1). In the case, Sunoco appealed from an Environmental Hearing Board Order sending a dispute back to DEP for further consideration. The Court concluded that the appeal did not satisfy Rule 311(f)(1) or (2) because the DEP would have to exercise administrative discretion and the issue would not evade appellate review.

Additionally, Rules 312 and 1311 address interlocutory appeals by permission and require you to file a petition to permission from an interlocutory order with the statement contained in 42 Pa. C.S. § 702(b).

Determining whether you can file an interlocutory appeal can be complicated. Our office regularly assists attorneys deciding whether they can file an appeal, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

May I instruct the witness not to answer?

Even seasoned attorneys sometimes struggle with whether a communication is privileged or protected by the work product doctrine. Whatever the attorney decides can have significant implications in discovery and the trajectory of a case.

In Cohen v. Ellwood Crankshaft and Machine Co., No. 11212 C.A. 2016 (Pa. Ct. Comm. Pl. Lawrence Cnty. Aug. 29, 2019), the trial court denied a motion to compel a witness to answer questions that called for privileged information. Plaintiff had alleged a claim for premises liability against the property owner (Ellwood) because he was injured at work. Ellwood then filed a third-party complaint against Plaintiff’s employer (Mascaro) seeking indemnification based on their contract. During the deposition of Mascaro’s corporate designee, who was its corporate counsel, Ellwood’s attorney asked questions regarding the applicability and enforceability of the indemnification clause. The designee answered questions concerning the factual basis for the denial of indemnification, but Mascaro’s attorney instructed the witness not to answer questions concerning the legal basis for the denial, arguing the questions called for “mental impressions or opinions concerning the ultimate legal issues of this case.”

The trial court agreed with Mascaro that the questions sought “conclusions and opinions regarding an issue of law that will ultimately be decided by the Court,” and therefore are protected by Pa. R. Civ. P. 4003.3. Rather, such questions would only be proper in actions for malicious prosecution or abuse of process.

The applicability of the attorney-client privilege and work product doctrine is fraught with serious implications. Our office regularly assists attorneys encountering these and other difficult questions, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

Why Teamwork Matters

We practice law as a team, not as individuals who just “do their own thing” and reject the input of our colleagues. Doing so allows us to spot “holes” in arguments, improve the focus of whatever point we are trying to make, and – most importantly – win cases and get the best results for our clients. And many of our clients are other attorneys who seek our advice or hire us to handle their appeals.

But not all lawyers subscribe to this belief – to them, ego matters more – they need all the credit.

Consider this scenario. I agreed to collaborate on an amicus (friend of the court) brief for a lawyers group about a legal issue where I had previously drafted an amicus brief that contributed to what was called the most important Pennsylvania Supreme Court decision in over 30 years. But like any landmark case, the decision needed some fine interpretations and cases are pending in various appellate courts.

I agreed to collaborate on amicus briefs in both the Supreme Court and the Commonwealth Court, both coincidentally due last week. My collaborator was an attorney with whom I had not worked. He provided me with drafts of the briefs. The briefs contained some excellent arguments, but were turgid, one exceeded the word limit, and both were begging for improvement. So I decided to do so.

One brief was 3,000 words too long, and the lawyer framed the legal issue as:

Whether Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II) is to be applied retroactively to the date on which Claimant’s 500 weeks of partial disability benefits elapsed because the modification from total to partial was based on an Impairment Rating Evaluation (IRE) conducted under statutes since held unconstitutional. Failure to give Protz II full retroactivity violates the Remedies Clause of the Pennsylvania Constitution.

I revised the issue to read:

In Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II), the Pennsylvania Supreme Court invalidated the Impairment Rating Evaluation provisions of the Workers’ Compensation Act. Because all IREs were deemed void ab initio, does Protz II apply retroactively to the date on which a Claimant’s 500 weeks of partial disability benefits elapsed because any other modification would violate the Remedies Clause of the Pennsylvania Constitution.

I also added multiple introductory sections, and cut the brief down to the proper word limit.  My “collaborator’s” reply was: “Your rewriting of my brief is great. … How did you do that so quickly?” He still filed his draft as written.

The Court rejected the brief my “collaborator” filed as too long. He received permission to file a shorter brief. Did he file my “great” version? No. He cut his dense document by 3,000 words and ignored me.

As for the Pa. Supreme Court brief, I revised his draft to make it more persuasive and reader-friendly. His reply: He attacked me viciously in email. Other attorneys who read it said it was “great” or “perfect.”

My guess is that when the Pa. Supreme Court rules, it will cite our amicus brief, as it regularly does. In fact, one Supreme Court Justice has publicly commented about the quality of my briefs, using compliments that made me speechless.

My “collaborator” is an excellent lawyer by all accounts. He just does not like collaborating, and seems to fit into the subject of Robert Sutton’s great book. But for our office, and our clients, and all the other injured persons we help by writing amicus briefs, we will continue to collaborate. After all, our goal is results!

 

%d bloggers like this: