Superior Court Refuses to Apply Exculpatory Waivers to College Football Players Injured During Practice Drills – Attorneys Daniel Siegel and Nicole Kratzer Serve as Appellate Co-Counsel

The Superior Court has refused to enforce an exculpatory release that would have insulated a college from liability for serious injuries suffered by two student athletes during a football drill. Attorneys Daniel J. Siegel and Nicole Kratzer of the Law Offices of Daniel J. Siegel, LLC served as appellate counsel with Attorney Andrew Motel, who filed the case and represents the plaintiffs before the trial court.

In Feleccia v. Lackawanna College, et al., the plaintiffs asserted that Lackawanna College’s failure to have qualified athletic trainers at the practice, and the use of a dangerous tackling drill, constituted gross negligence or recklessness. In support of their claims, plaintiffs retained multiple experts, including Richard C. Slocum, former Texas A&M University head football coach. The defendants asserted, however, that the students had signed a pre-injury release barring their claims that the college staff had made an improper return-to-play decision during a drill in which no licensed athletic trainer was present.

Judge Jacqueline Shogan authored the precedential decision, which was issued on February 24, 2017. Relying on Tayar v. Camelback Ski Corp., the Court concluded that otherwise valid liability waivers are unenforceable in claims of gross negligence or reckless conduct. The Superior Court also held that a special relationship exists between a college and its athletes, and that Lackawanna College had a duty to be reasonably prepared to handle foreseeable medical emergencies that occur during participation in a contact sport.

The Court also expressed its concern that the use of waivers such as this by colleges and universities would encourage the schools to ignore the health and safety of student athletes: “Aside from the concern about this practice drill being considered an inherent risk of football, we are concerned with a release being used to excuse a college from having qualified medical personnel readily available to its student athletes. Colleges are expected to put a priority on the health and safety of their students, especially student athletes engaged in dangerous sports. Many colleges profit significantly from student athletes’ participation in these sports. Enforcing a release and granting summary judgment in a situation where the availability of qualified medical personnel is called into question would jeopardize the health and safety of such student athletes by removing at least one incentive for colleges ‘to adhere to minimal standards of care and safety.’”

Click here to read the Opinion in Feleccia v. Lackawanna College, et al.

CLE on February 15th: “Help! They’re Changing the Rules & They Impact Everything Filed in a Pennsylvania Court!”

Havertown Attorney Dan Siegel will present his latest continuing legal education course, “Help! They’re Changing the Rules & They Impact Everything Filed in a Pennsylvania Court!” on Wednesday, February 15, 2017 from 12:30 to 1:30 p.m. at the Delaware County Bar Association in Media, Pa. Click here for more information – http://www.delcobar.org/events/EventDetails.aspx?id=922395.

In the program, Dan will discuss the new Pennsylvania Public Access Policy, which goes into effect in January 2018. The new policy will impact every lawyer who files documents with any Pennsylvania court, and requires that confidential and sensitive information be redacted. For many law firms, the policy will require significant changes in how they handle court filngs. Dan discussed the new policy in his recent column in the Legal Intelligencer. Click here to read the column.

 

 

Pennsylvania Supreme Court Rules That Workers’ Compensation Impairment Rating Physicians Are Not Bound by the Injury Described in the Notice of Compensation Payable

The Pennsylvania Supreme Court ruled yesterday that a physician performing an Impairment Rating Evaluation under Section 306(a.2)(1) of the Workers’ Compensation Act, 77 P.S. § 511.2(1) should consider all conditions that the physician believes are related to the work injury when performing an IRE. In the case, Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne), No. 4 MAP 2016 (Pa. January 19, 2017), the Court ruled that an IRE physician must consider and exercise independent professional judgment to make a whole-body assessment of the degree of impairment “due to” the compensable injury.

In Duffey, the claimant underwent an IRE after receiving 104 weeks of benefits. The IRE physician considered only the injuries listed on the NCP and concluded that the claimant had a 6 percent total body impairment. Claimant filed a Review Petition, alleging that the physician failed to consider all of his work-related injuries, including psychological injuries. The Workers’ Compensation Judge agreed, granted the petition, invalidated the IRE and amended the NCP to include the psychological injuries. On appeal, the Workers’ Compensation Appeal Board reversed and the Commonwealth Court affirmed the WCAB ruling. The Supreme Court granted allocatur and reversed the decision, with two Justices dissenting.

In the Majority Opinion, Chief Justice Saylor concluded that a physician conducting an IRE (1) must apply professional judgment to assess (or per the applicable Regulations, arrange for an assessment of) the Claimant’s psychological conditions, and (2) determine whether those condition were fairly attributable to the compensable work injury.

In his dissenting opinion, Justice Baer asserted that the Majority had departed from the issue presented by the Claimant. He also concluded that the ruling will allow claimants to invalidate an IRE by expressing a new symptom previously unknown to an employer.

In a separate dissenting opinion, Justice Wecht argued that the Majority had misconstrued the concept of a “whole body” impairment to permit IRE physicians to go beyond the scope of a claimant’s compensable injury. He also criticized the Majority’s reliance on the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, particularly in light of the Commonwealth Court’s decision in Protz v. W.C.A.B. (Derry Area School District, 124 A.3d 406 (Pa. Cmwlth. 2015), appeal granted, 133 A.3d 733 (Pa. 2016), in which the Court invalidated the use of the 6th edition of the AMA Guides.

Of further note, it is at the least, curious that the Court issued this Opinion before its decision in Protz. (Attorney Daniel J. Siegel authored the amicus curiae brief in Protz on behalf of the Pennsylvania Association for Justice.) If the Court completely invalidates the IRE process, then there would be no need for a decision in this case. I believe that the dissents are correct, however, that this opinion will lead to more litigation and will permit claimants to assert during an IRE that they suffer from injuries that have never been accepted as or determined by a WCJ to be compensable. Click here to read the Duffey opinion.

Philadelphia Legal Newspaper Features Dan Siegel’s Pennsylvania Supreme Court Auto Law Case

Today’s Legal Intelligencer, the daily newspaper for Philadelphia’s legal community featured the case of Erie Insurance v. Bristol, for which Attorney Daniel J. Siegel serves as counsel for Mr. Bristol. The article focuses on the Pennsylvania Supreme Court’s decision to hear the case and the court’s ruling will impact virtually every uninsured and underinsured motorist claim in Pennsylvania. The Court will decide whether a person seeking uninsured motorist benefits from his or her insurance company must file a Petition or lawsuit to toll the statute of limitations, or whether there is no need for such a filing when an insurance company agrees to arbitrate, or takes other actions demonstrating its agreement to arbitrate.

An uninsured motorist claim arises when a person is involved in a motor vehicle accident and the negligent/responsible party either has no auto insurance or left the scene of the accident and cannot be identified. In those cases, persons purchasing uninsured motorist coverage receive benefits from their own insurance company.

An underinsured motorist claim arises when a person is involved in a motor vehicle accident and the negligent/responsible party does not have enough insurance coverage to compensate the victim fully. In those cases, persons purchasing underinsured motorist coverage receive benefits from their own insurance company for the excess amount they are entitled to for their injuries.

The article quoted attorney Dan Siegel, who summarized the case by stating that “The issue is, if there’s an agreement, why would you have to file a petition to compel a party to agree to do something they already agreed to do?” Siegel also noted that “The Supreme Court saw the argument and accepted it on broader terms than we even asked them to.”

Siegel is the founder of the Law Offices of Daniel J. Siegel, LLC, which assists lawyers throughout Pennsylvania with trial and appellate writing and other matters. The firm regularly appears before Pennsylvania’s appeals court and is a go-to firm for lawyers throughout the Commonwealth who need advice on how to handle their cases, including personal injury, workers’ compensation, motor vehicle accidents, and other civil litigation matters. The firm also regularly represents individuals with personal injury, workers’ compensation and other claims. Siegel is the author of numerous books, including Pennsylvania Workers’ Compensation Law: The Basics: A Primer for Lawyers, Workers, Medical Professionals & Others, an up-to-date and easy-to-understand guide to Pennsylvania workers’ compensation law, practice and procedure. The book is designed to be used as a desk reference by injured workers, employers, attorneys, paralegals, claims adjusters, self-insured employers and vocational rehabilitation workers. important guidance for litigants and courts.T

Pa. Supreme Court Agrees to Hear Uninsured Motorist (Auto Insurance) Case – Attorney Daniel Siegel Serves as Appellate Counsel

The Pennsylvania Supreme Court granted allocatur today in Erie Insurance v. Bristol, on the following issue, “In uninsured motorist claims subject to mandatory arbitration, is the statute of limitations tolled only by the commencement of an official judicial action, or may extra-judicial actions also toll the statute of limitations?”

I am appellate counsel, working with Attorney Thomas More Holland, who handled the case at the trial court level. The trial court and the Superior Court had ruled that a motor vehicle insurance carrier’s agreement to arbitrate a claim for uninsured motorist benefits did not toll the statute of limitations. Instead, they ruled that the claim was barred because (1) the UM case had not concluded before the statute of limitations, and therefore (2) plaintiff/claimant was required to file a Complaint against the carrier even though it had agreed to arbitration. This is an issue of first impression in Pennsylvania.

 

 

 

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