Pennsylvania Legal Update Fall 2012

FALL 2012 ISSUE

WORKERS' COMPENSATION FOR CUMULATIVE INJURIES

Workers who suffer multiple injuries at work or whose work‑related disability worsens over time have complex workers' compensation claims. Two very different cases illustrate how Pennsylvania law responds to chronic and progressive work‑related injuries.

Carpal Tunnel

A typist who worked for the City of Philadelphia was diagnosed with bilateral carpal tunnel injuries, but she didn't notify the city of her injuries until more than a year after the diagnosis. Workers generally have 120 days to notify their employers of the existence of a work‑related injury.

The Pennsylvania Supreme Court found that with "cumulative trauma" injuries, the typist had 120 days from the last day of injury at the workplace, not from the first day of injury, to give notice to the employer. The court stated: "We find that in the instance of a cumulative trauma, where credited medical evidence shows that each day of work causes an aggravation or new injury, the 120‑day notice period begins to run on the last day a work‑related aggravation injury is suffered, which will usually be the last day of work."

Eye Infection

In a somewhat similar case, a licensed practical nurse who worked at a hospital suffered a herpes infection to her left eye when a herpes‑infected patient coughed in her face. She was promptly treated in the hospital emergency room but did develop a herpes infection in her left eye.

For more than 27 years, the nurse suffered periodic infections in the eye, but none interfered substantially with her ability to work, and all the infections responded to treatment. Yet 27 years after the initial infection, while she was employed at a different hospital, she experienced an infection that did not respond to treatment, and, after a failed cornea transplant, she lost all sight in the eye.

The Pennsylvania Supreme Court found that her former employer at the time of the initial infection incident was the responsible employer but that the much higher rate of pay she was earning at the time of the failed surgery was her pay rate for calculation of her workers' compensation wage benefits. The result was that the original employer's insurance company had to pay the claim at the much higher hourly rate of pay.

Employees whose injuries are related to cumulative trauma and employees who continue to work despite injuries should keep careful records of their work activities, their employers, and their pay rates if they continue to work after their first sign of injury. An employee who continues to work and later files a claim must prove that a work‑related aggravation occurred after the initial injury or that the injury did not become disabling immediately.

Likewise, employers must realize that the occurrence of a daily reinjury to an employee keeps the clock running on the timeliness of the employee's claim and can result in a claim raised many years after the initial injury.

SHOPLIFTER CONVICTED OF ROBBERY

A shoplifter who brandished a knife when stopped by store security officers was convicted of felony robbery for stealing several DVDs.

The store security officers noticed the shoplifter "staging" DVDs around the store. Monitoring him on video surveillance throughout the store, the officers saw the man choose DVDs, carry them to other sections of the store, and leave them there. Eventually, he collected them, put them in his pockets, and left the store.

Following company policy that required the officers to stop suspects only after they had passed all the checkout registers, the officers attempted to stop the man outside the store's entrance doors. He resisted, sitting on the ground. While struggling with the officers, he pulled a knife out of his pocket, which the officers initially pushed back into his pocket. Stepping one foot away from the officers, the shoplifter then pointed his knife at them, threw the DVDs on the ground, and fled.

The use of the weapon escalated the incident from a shoplifting incident to a felony robbery. Robbery is the use or threat of force in the course of a theft. The court ruled that the theft was ongoing at the time the shoplifter pointed his knife, making the incident a robbery.

PRESCRIPTION DRUGS AND DRIVING UNDER THE INFLUENCE

Law enforcement authorities increasingly report that illegally obtained prescription drugs are the drug of choice for drug users and abusers. Less well publicized, however, is the rising number of accidents attributable to lawful prescription drugs when taken by drivers who ignore labels warning of the possible effects of the medications on the ability to safely operate a motor vehicle.

The Pennsylvania Supreme Court recently announced that expert testimony is not required in every case in order to prove that a driver was impaired by his or her use of lawfully obtained prescription drugs.

In the case before the court, an eyewitness driver followed another driver while she called 911 to report the woman's repeated weaving across lanes of traffic. The police officer who responded and pulled the woman over testified that she had failed three separate field sobriety tests, had been unable to stand unsupported, and had struggled to light a cigarette. Blood testing revealed the presence of several mood‑altering Schedule IV prescription drugs in her blood, just below the appropriate therapeutic range. The woman had prescriptions from her doctors for all the drugs.

Legal and illegal drugs are classified in drug "schedules" established and periodically revised by the federal Drug Enforcement Administration and the Food & Drug Administration. The Pennsylvania driving‑under‑the‑influence (DUI) statute makes it a crime to drive with "any" Schedule I substances in the blood. Schedule I drugs include heroin, marijuana, LSD, ecstasy, and other similar drugs.

Pennsylvania DUI law also criminalizes all use of any Schedule II and Schedule III drugs that are not prescribed. Schedule II drugs include Ritalin and Concerta, drugs often prescribed for attention deficit disorders but currently commonly abused by individuals without prescriptions. Schedule II drugs also include opiates, methadone, and prescription amphetamines and barbiturates. Schedule III drugs include such drugs as steroids, Suboxone, and codeine. Driving with "any" Schedule II or III drugs in the blood is a crime if the driver does not have a legal prescription for the drug.

Pennsylvania's DUI statute does not specifically address the use of Schedule IV drugs like the one the reckless woman driver had in her blood-that schedule includes Xanax, Valium, and Librium, among others. But the DUI statute covers the use of all drugs on all schedules by the broad provision that it is unlawful to drive in Pennsylvania under the influence of any drug, or the combination of any drug and alcohol, if the drug or alcohol use causes the driver to be impaired to the point that he or she can't safely drive or control a vehicle. Over‑the‑counter drugs, particularly when taken in combination with alcohol or prescription drugs, can cause impairment, too.

In the case involving the woman who drove recklessly, she claimed that the prosecutor had to prove that the Schedule IV drugs she took had actually impaired her driving. The Pennsylvania Supreme Court disagreed and decided that prosecutors have to evaluate every case individually, taking into account the particular drugs used by the driver and the "overall strength" of the rest of the evidence. Noting that the woman had trouble standing during the field sobriety testing and that she had admitted using one of the three prescription drugs detected in her blood, the court found that it was fair for the trial court to have concluded that the woman had been impaired by drug use while driving.

If you take prescription drugs, you should know the classification of the drugs by drug schedule. Make sure that you keep a current prescription for any Schedule II or III drugs you use, since the presence of "any" amount of those drugs in your blood while driving is a crime unless you have a prescription for the use of the drug. And assume that positive blood testing that detects alcohol, prescription drugs, or over‑the‑counter drugs, even at or below therapeutic levels, can lead to a DUI conviction.

CHILD SUPPORT NOT LINKED TO CUSTODY

A father who lost all rights to regular periods of physical custody with his teenage daughter lost his petition to dismiss the child support order, because state law recognizes an overriding obligation on the part of all parents to support their children.

The father's custody order gave the mother "sole physical and legal custody," limiting the father's contact with the child to times and occasions the mother decided were appropriate. In response, the father filed a petition to terminate his support obligations, arguing that the custody order was effectively a termination of his parental rights.

The Pennsylvania Superior Court noted that the case had a long and complex history. The parents had a tumultuous relationship and separated when the daughter was 10 years old. The father did not see the daughter for more than a year; when he filed for custody rights, the court ordered "reunification counseling," a process in which a child and parent are reintroduced in a counseling setting after a period of estrangement.

The daughter resisted the counseling, coming to the sessions with a blanket over her head. After five sessions, the counseling was terminated. For the next several years, various attempts were made to advance the father's custody claims through psychological evaluation and intervention. None of the efforts was successful, and when the daughter was nearly 18 years old, all counseling stopped.

The Superior Court required that the father continue to pay his support obligation, finding that his parental rights had not been terminated and that the daughter had financial needs that both parents were obligated to meet. The court distinguished termination of parental rights from awards of sole custody, noting that when a parent's rights are terminated, it is as unequivocal as "the death of the child," and no parental relationship exists following the termination. Sole custody awards, while rare, don't terminate a parent's rights. Holding that the duty of child support is "absolute" and is the "equal responsibility of both mother and father," the court dismissed the father's appeal and upheld the support order.

Parents whose custodial time is limited often find the unwavering position of the courts on child support to be frustrating. Pennsylvania law is clear in its firm requirement that both parents are responsible to support a child.

Parents who are dissatisfied with limitations on their custody rights must advance their custody claims as best they can in custody proceedings. Parents cannot secure relief from the support court based on the status of their custody case.

UMBRELLA INSURANCE

As insurance prices continue to rise, many people are looking for more and better insurance coverage for less money, and "umbrella policies" are often a good option for increasing coverage. These policies provide expansive coverage for you and your assets. Umbrella policies act as a kind of backup for your primary insurance and can provide a cost‑effective way of increasing your insurance coverage.

Most of us carry several kinds of liability insurance policies: car insurance, homeowner's insurance, renter's insurance, etc. All of these different policies do essentially the same thing: They cover us for the different careless acts we might commit. However, the coverage available under these different policies varies, and their cost is often very expensive compared with the coverage they provide.

Umbrella policies begin where other insurance ends. They provide additional coverage-coverage that is available only after the underlying liability policy has been exhausted. Umbrella policies are often surprisingly inexpensive, given that they can provide additional coverage in amounts up to $1 million or more.

As with any kind of insurance, the coverage offered by umbrella policies and the rates charged for them can vary greatly. Consider the possibility of buying an umbrella policy. You may find that it is right for you.

GOVERNMENT LIABILITY FOR DANGEROUS ROADS

A state senator's letter on file with the Pennsylvania Department of Transportation (PennDOT) gave an injured motorcyclist a chance to recover damages against the state. State and local governments have very limited liability to people who are injured as a result of dangerous road conditions. But where it can be proved that the state had written notice or actual knowledge of the dangerous condition, injured claimants may have a case.

In the case involving the motorcyclist, she was seriously injured when she hit a pothole on a state road in western Pennsylvania. Before the accident, a local state senator had written a letter to PennDOT, advising that the stretch of road was dangerous and that "patchwork has caused more problems than it has solved."

The senator's letter described the road as "in disrepair" and asked for immediate corrective action. A PennDOT representative acknowledged the letter in writing and advised that major improvements to the road were planned but that no funding was available to start the project.

Pennsylvania statutes provide that if a state agency has actual written notice of potholes or sinkholes or "other dangerous conditions" of state roads, the state is not immune from lawsuits for personal injuries. Similarly, Pennsylvania statutes hold local government agencies like townships and cities to task for road conditions about which the agencies have "actual knowledge." Actual knowledge can be proved by the minutes of public meetings or by the statements of city or township officials.

PennDOT was successful in getting the motorcyclist's case dismissed at the trial level-the agency claimed that the senator's letter was too general to have given written notice of pothole problems, as it did not even use the word "pothole."

But on appeal, the Pennsylvania Commonwealth Court disagreed, noting that the letter was detailed, identified the road adequately, and mentioned that "patchwork" had created dangerous conditions. Because the letter had been sent in adequate time for PennDOT to investigate and repair the pothole, the court found that the motorcyclist was entitled to take her claims to a jury trial.

In a previous case, the Commonwealth Court had found that written notice to the state cannot consist of a telephone message taken down by a state employee, however detailed the message may have been. State and local governments can't keep all roads in perfect condition at all times; but written or actual notice of particular dangerous conditions can make state and local government liable to injured parties.