Available Soon – Fee Agreements in Pennsylvania (6th Edition) – Edited by Attorney Daniel J. Siegel

Almost hot off the presses. I just received a copy of the cover of my newest book, Fee Agreements in Pennsylvania. I edited the book (now in its 6th edition) and authored one chapter. The book will be available for purchase in the next few weeks from the publisher, the Pennsylvania Bar Institute. The book provides practical and ethical guidance that will help attorneys draft comprehensive fee agreements, and contains sample fee agreements covering a wide range of practice areas. My office regularly provides guidance to attorneys about how to improve their agreements and avoid fee disputes with clients.

Pick a leader, not a law firm that plays follow the leader — and takes credit for the leader’s success

We all remember the childhood game of “Follow the Leader.” Some lawyers still play the game, and want to take the credit for the leader’s work. The recent Court decision in Protz v. WCAB in which Attorney Dan Siegel authored the friend of the court brief for the Pennsylvania Association for Justice — which invalidated the Impairment Rating Evaluation (IRE) process under the Pennsylvania Workers’ Compensation Act, is a great example. Just look around, watch the ads on TV, and listen to your radio to learn about all the law firms who suddenly are “there” to help the injured workers whose benefits were increased as a result of Protz. They are the followers.

In a recent email, one law firm, which devotes countless dollars to advertising,  admitted that the firm had “been waiting” for the decision, which it described as “the most significant workers’ compensation decision in years, if not decades. The recent ruling should ensure that thousands of injured workers across the Commonwealth will continue to receive necessary benefits aligned with the true extent and duration of their injuries.” I thank the firm for acknowledging that the lawyers handling Protz ensured that thousands of injured workers across the Commonwealth will continue to receive necessary benefits aligned with the true extent and duration of their injuries. I also thank them for acknowledging that “Pressure and time were key to this monumental decision.”

Who applied the pressure? Not the firm quoted above. The lawyers who championed this cause included Dan Siegel, Thomas Baumann of Abes Baumann in Pittsburgh (who authored a terrific brief and argued the case superbly before the Pennsylvania Supreme Court), Larry Chaban, Brian Steiner, and a small group of lawyers who discovered the issue and were determined to fight until the Pennsylvania Supreme Court ruled. Most firms did nothing; many never even realized that there were Constitutional problems with IREs. One firm now brags that since 2016 they were “denying ALL IRE requests.” Our firm – the Law Offices of Daniel J. Siegel, LLC – has  objected to having our clients attend IRE exams since 2010 (more than six years before the follower firm began to follow the leaders).

Most importantly, insurance companies defending against our cases made generous settlements to avoid facing our firm in a Pennsylvania appeals court. 

It is easy to jump on a bandwagon, but our firm has been willing to take the lead and fight in court, where results matter, not just in newspaper articles, where bravado can win the day. Our successes mean that injured workers throughout Pennsylvania receive more benefits — and we have always fought to expand the rights of all injured victims. Consider the list of precedential cases handled by Dan Siegel:

Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), 2014 Pa. Commw. LEXIS 162 (Pa. Commw. Ct. Mar. 12, 2014)

The Pennsylvania Commonwealth Court ruled that a physician must have an active clinical practice, i.e., the physician must provide preventive care and the evaluation, treatment and management of medical conditions, at least 20 hours per week, in order to be qualified to perform Impairment Rating Evaluations under Section 306(a.2)(1) of the Workers’ Compensation Act, 77 P.S. § 551.2(1).

Ferguson v. Morton, 2013 PA Super 329, 2013 Pa. Super. LEXIS 4574 (Pa.Super. 2012)

The Pennsylvania Superior Court reversed the trial court’s order granting a new trial based upon the inflammatory closing argument by plaintiff’s counsel. In particular, the Court held that trial court erred in presuming that the jury’s verdict improperly included punitive damages. Thus, the trial court abused its discretion by concluding that the summation so prejudiced the jury as to require a new trial.

Commonwealth v. Workers’ Compensation Appeal Board (Harvey), 993 A.2d 270 (Pa. 2010)

The Pennsylvania Supreme Court affirmed that the use of actuarial data to calculate pension offsets for injured employees who also receive pension benefits from a defined benefit plan. By not foreclosing a claimant’s ability to challenge the calculations and the assumptions underlying them, injured workers may still employ actuaries to establish when improper and inaccurate calculations form the basis for a claimed offset.

Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei), 964 A.2d 963 (Pa.Cmwlth. 2009)

This en banc Pennsylvania Commonwealth Court decision held that when an employer seeks an offset from workers’ compensation benefits for pension benefits paid to an injured employee, the offset must be calculated based upon the net amount of the benefits received by the worker.

McElheney v. Workers’ Compensation Appeal Board (Kvaerner Phila. Shipyard), 940 A.2d 351 (Pa. 2008)

The Pennsylvania Supreme Court held that a worker injured while on a ship in a graven dry dock was not injured upon the “navigable waters of the United States,” and was entitled to benefits under both the federal Longshore and Harbor Workers’ Compensation Act and the Pennsylvania Workers’ Compensation Act. The Court ruled that the graven dry dock, which by definition was cut and dug out of the land, was not within the limits of the navigable waters of the United States.

Thorne v. Miller, 317 N.J. Super. 554, 722 A.2d 626 (1998)

This is the first reported case in New Jersey to address the obligation of a driver who waves or signals another vehicle into traffic. The trial court held that a driver who waves to another driver to proceed is under a duty of reasonable care that, at the least, requires the driver who waved to observe whether traffic conditions were such as to allow the other driver to proceed without accident; whether, in this case, the waving driver breached that duty and whether the breach was a proximate cause of the accident is for the jury.

Smith v. Pulcinella, 440 Pa. Super. 525, 656 A.2d 494 (1995)

This Pennsylvania Superior Court decision extended to general negligence cases the malpractice doctrine that, where the conduct of two or more tortfeasors causes an injury, and the damages cannot be reasonably apportioned among the negligent parties, any one of the tortfeasors may be held responsible for the entire verdict if that party’s negligence was a substantial contributing factor in causing the plaintiff’s injuries.

Curran v. Greate Bay Hotel & Casino, 434 Pa. Super. 368, 643 A.2d 687 (1994)

This Pennsylvania Superior Court en banc decision analyzed when a verdict may be reduced under the Comparative Negligence Act, and also held that the failure to request the correction of an inconsistent jury verdict constitutes a waiver of any objection to the verdict.

Denny’s v. Workmen’s Compensation Appeal Board (Stanton), 142 Pa.Cmwlth. 531, 597 A.2d 1241 (1991)

This Pennsylvania Commonwealth Court decision specified those actions by employees that are in furtherance of an employer’s business, thus requiring an employer to provide worker’s compensation benefits to employees injured under the circumstances.

Walsh v. City of Philadelphia, 526 Pa. 222, 585 A.2d 445 (1991)

This Pennsylvania Supreme Court decision defined the nature of permissible claims against municipalities under the Recreational Use of Land and Water Act, and outlines the standard for the types of injuries for which local governmental bodies are responsible for damages under the Political Subdivision Tort Claims Act.

So, when you are seeking a lawyer, consider whether they are willing to truly fight, or if they prefer to follow the leader.

Pa. Supreme Court Declares Impairment Rating Provisions of the Workers’ Comp Act Unconstitutional; Attorney Dan Siegel Authored Amicus Brief

The Pennsylvania Supreme Court today declared as unconstitutional the impairment rating evaluation (IRE) provision in Section 306(a.2) of the Workers’ Compensation Act. The decision in Protz v. WCAB (Derry Area School District) means that injured workers will no longer be subject to a cap on the length of wage loss benefits they received. Attorney Dan Siegel of the Law Offices of Daniel J. Siegel, LLC authored the friend of the court brief on behalf of the Pennsylvania Association for Justice (formerly the Pennsylvania Trial Lawyers Association).

In the 6-1 majority opinion authored by Justice Wecht, the Court concluded that the Pennsylvania legislature violated the state Constitution when it passed this provision because it (1) gave “unfettered discretion over Pennsylvania’s impairment-rating methodology” to the American Medical Association, and (2) “did not include in … any of the procedural mechanisms that this Court has considered essential to protect against ‘administrative arbitrariness and caprice.'”

Chief Justice Saylor authored a concurring opinion. Justice Baer filed a dissenting opinion. Pittsburgh attorney Tom Baumann represented claimant.

Click here to read the Protz opinion.

Click here to read Dan Siegel’s Amicus brief.

Before the decision, Section 306(a.2) of Act permitted employers to require an injured worker to undergo an IRE after receiving 104 weeks of disability benefits. If the IRE physician determined that the injured worker’s whole body impairment was less than 50 percent, as determined by the AMA Guides to the Evaluation of Permanent Impairment, the worker was limited to 500 weeks of future wage losses. The Court held that the delegation of the impairment determination was impermissible because only the legislature can make those decisions.

“I am pleased that the Supreme Court has conclusively ruled on this issue,” said Dan Siegel, “because we have been raising the issue on behalf of our clients, and in cases in which other attorneys have retained us to do so. In addition, it was a pleasure to work with attorney Tom Baumann, who handled the underlying case and successfully argued the case before the Supreme Court.”

Attorney Dan Siegel provides trial and appellate court writing services to attorneys throughout Pennsylvania. Contact Dan at dan@danieljsiegel.com or (610) 446-3457.

Oral Argument Matters – Here’s Proof

There are some attorneys and judges who say that oral argument doesn’t matter. Today I have proof that it does.

On May 10, 2017, I argued the case of Erie Insurance v. Bristol before the Pennsylvania Supreme Court. When I filed the petition asking the Court to take the case, the court rephrased the issue (the legal argument we wanted the Court to decide) in a very broad and somewhat unusual manner that changed the focus of the case. When we filed our Brief, we addressed the issue framed by the Supreme Court but also outlined why the argument that we had originally asserted was still relevant. This required filing a nuanced brief that responded to the Court’s concerns while also advocating for our client in the manner we believed to be most effective.

At oral argument, the Court questioned me at length (nearly 25 minutes) about whether the Brief we filed had addressed the issue as rephrased by the Court. While we believed that the Court could decide the case based on the rephrased issue, the argument focused primarily on whether the Court should have ruled based on the question we originally presented. Fortunately, I was prepared (and spent two days preparing for the argument) and was able to address the Court’s concerns.

Today, the Pennsylvania Supreme Court – in a highly unusual action – issued an Order agreeing to decide the issue as we had originally framed it (6 Justices joined in the Order, 1 dissented). I do not believe that the Court would have issued this Order today without the benefit of oral argument.

Click here to read the Court’s Orders.

Click here to view the oral argument.

Attorney Dan Siegel Named Pa. Workers’ Compensation “Super Lawyer” – Will Anyone Know?

For the 10th consecutive year, Havertown Attorney Daniel J. Siegel has been named a “Super Lawyer” in the area of workers’ compensation (representing claimants/injured workers and medical providers). Dan, who is also the author of Pennsylvania Workers’ Compensation Law: The Basics: A Primer for Lawyers, Workers, Medical Professionals & Others, is the only workers’ compensation Super Lawyer in Havertown. In addition, many of the other Super Lawyers are clients of Dan’s, and many have retained him to assist with their most complicated cases, and their appeals.

If you are searching for a workers’ compensation Super Lawyer in Havertown, however, you will probably never find Dan’s listing. Why? Because Dan has not paid for an enhanced listing, Super Lawyers places Dan’s listing on the 7th page (out of 8 pages) of the results; despite being the only workers’ compensation Super Lawyer in Havertown, he is the 155th lawyer listed in the results for that search.

Dan regularly represents injured workers in their claims and represents medical providers seeking payment for treatment provided to injured workers; Dan also represents individuals in personal injury claims arising from motor vehicle accidents, defective conditions on property, etc. In addition, Dan represents and assists other attorneys with their appeals and complicated matters. Just this week, Dan argued the case of Erie v. Bristol before the Pennsylvania Supreme Court. The case will determine how the statute of limitations is triggered in uninsured motorist claims (claims that arise when a person is injured by another driver who either does not have motor vehicle insurance or who fled the scene and could not be identified).

Click here to read how Super Lawyers are selected.

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