Six men settle with Boy Scouts over abuse claims

Category: In the News

From the AAJ News Brief for John Badal, lawyer for Liever, Hyman & Potter, serving Berks and Schuylkill Counties:

The AP (9/1) reported, “Six men who were sexually abused three decades ago by a leader of their Boy Scouts troop have settled lawsuits against the national organization dedicated to building character among youngsters. The settlement followed a trial in which the Scouts were accused of failing to act for decades on a growing trove of documents alleging sexual abuse — known in the organization as “the perversion files.’” The jury “found the Texas-based Boy Scouts of America negligent for allowing a former assistant scoutmaster, Timur Dykes, to associate with Scouts after he admitted to a Scouts official in 1983 that he had molested 17 boys.” The New York Times (9/2, A25, Seelye) reports, “The lawyers said their clients had decided to settle because their cases could have gone on for years.”

Update on salmonella outbreak.

Category: In the News

The attorneys at Liever, Hyman & Potter wish to keep the citizens of Berks County and Schuylkill County updated on this crisis and therefore provide the following reports:

USA Today (8/26, Young) reports, “State and federal health agencies identified an Iowa egg company as a likely source of illness at least two weeks before the firm launched a massive egg recall Aug. 13 and the public got its first hint of a growing national salmonella outbreak, health officials said in interviews with USA TODAY.” Late last month, the CDC “even considered reminding the public generally about the dangers of eating undercooked eggs, said Ian Williams, chief of the agency’s outbreak response branch,” but the agency “decided it would be more effective to wait until the Food and Drug Administration (FDA) completed its investigation of the company, Wright County Egg in Galt, Iowa.” Jeff Farrar, FDA associate commissioner for food protection, said. “We have seen instances in the past where preliminary information ontrace backswas wrong.”

Wright County owner also “tangled” with Maryland health officials. TheWashington Post (8/26) reports, “The Iowa egg farmer at the center of a nationwide outbreak of salmonella illness tangled in the past with the state of Maryland, where he once ran two massive facilities and was charged with violating a quarantine by selling contaminated eggs. Austin ‘Jack’ DeCoster battled with Maryland in the early 1990s over his Eastern Shore egg empire in a dispute that highlights serious regulatory gaps in food safety that have been a factor in the industry for decades.” But, Maryland “was unable to shut down a facility it considered hazardous because the company sold the eggs across state lines.”

CDC, FDA experts say tracing outbreaks is “complex.” USA Today(8/26, Young) reports, “Government food-safety experts say they are in a tough spot when it comes to publicly fingering a product or company in an outbreak such as the one currently linked to a half-billion eggs distributed across the USA.” According to Ian Williams, chief of the CDC’s outbreak response branch, “The mantra is: You have to be fast and right.” The FDA’s Jeff Farrar stated, “This is where hindsight and second-guessing come in.”

Eggs produced at contaminated farms still being sold. The AP (8/26) reports, “Iowa hens that may be at the heart of a massive egg recall are still laying.” According to food safety experts, “the eggs will first be pasteurized to rid them of any salmonella. Then they can be sold as liquid eggs or added to other products.” Notably, “officials from the two farms that have recalled more than a half-billion eggs say there’s no reason not to use eggs being laid now while federal officials investigate the outbreak.” The AP points out that the “FDA can’t order the farms to kill hens that may be infected with salmonella, but the farms could decide to take that step on their own,” although “neither would discuss the possibility.”

These important news summaries areprovided by the American Association for Justice of which John Badal, lawyer for Liever, Hyman & Potter, Reading, PA has been a long time sustaining member.

Lack of Job Offers After Injured Worker Applies for Jobs Listed in Labor Market Survey Not a Defense to Reduction of Workers’ Compensation Benefits

The workers’ compensation lawyers at Liever, Hyman & Potter, P.C. serve Reading, Berks County, PA and Schuylkill County, PA.

The Commonwealth Court of Pennsylvania issued an important decision on June 30, 2010 for workers’ compensation claimants. In Phoenixville Hospital v. WCAB (Shoap), 2188 C.D. 2009 (Pa.Cmwlth. 2010), the Commonwealth Court held that, when an employer requests a reduction of workers’ compensation benefits using an estimate of the Claimant’s earnings based on a labor market survey, the fact that the Claimant applied for the jobs listed in the labor market survey, and did not receive any job offers, was not a defense to a reduction of benefits.

In that case, the Employer filed a Petition to reduce the Claimant’s workers’ compensation benefits using an estimate of earnings based on a labor market survey completed by a vocational expert, which listed five (5) jobs which were open and available and within the Claimant’s capabilities as established by the insurance company doctor. The Claimant applied for each of the positions a month or more after they were identified as open and available, and did not receive any job offers. The Workers’ Compensation Judge denied the Employer’s request to reduce the Claimant’s benefits, because she applied for the jobs listed in the labor market survey in good faith, but did not receive any job offers. The Workers’ Compensation Appeal Board upheld that decision.

On appeal, the Commonwealth Court stated that, under the Pennsylvania Workers’ Compensation Act, the Employer was entitled to a reduction of benefits based on evidence of Claimant’s earning power proved through expert testimony alone (i.e. a labor market survey), rather than evidence that the Claimant had obtained actual employment. The Court went on to hold that, since the Workers’ Compensation Judge in the case had accepted the testimony of the Employer’s vocational expert that the jobs listed in the labor market survey where actually open and available to the Claimant at the time the survey was completed, the fact that the Claimant applied for the jobs weeks later, and did not receive any job offers, was immaterial. The Commonwealth Court also noted that the Claimant had an obligation to pursue employment opportunities upon receipt of the Notice of Ability to Return to Work and before receiving any earning power assessments or labor market surveys.

The Commonwealth Court, accordingly, reversed the prior decision, and reduced the Claimant’s workers’ compensation benefits.

By Andrew F. Fick, Esquire

COMMONWEALTH COURT ISSUES RULING REDUCING WORKERS’ COMPENSATION

COMMThe workers’ compensation lawyers at Liever, Hyman & Potter, P.C. in Reading, PA are constantly keeping up with the law to help our clients. In one recent case, the Commonwealth Court of Pennsylvania held that, when a claimant no longer lives in Pennsylvania, the claimant’s benefits could be reduced based on jobs available in the “usual employment area” where the injury occurred, and the employer did not need to locate jobs in the the client’s new state and county.

In Rebeor v. WCAB (Eckerd), 976 A.2d 655 (Pa.Cmwlth. 2009), the Claimant was involved in a work-related car accident on August 28, 2002 in Lawrence County, Pennsylvania. He underwent treatment and returned to light duty work with the Defendant in March 2003. The Claimant stopped working in December 2005, when the Employer eliminated his job. He was released to medium duty work following a medical exam in March 16, 2006, and underwent a vocational interview for the insurance company on July 25, 2006. The Claimant relocated to South Carolina in September 2006. The Defendant filed a Petition to reduce comp benefits based on jobs available to the Claimant in Lawrence County, Pennsylvania. The Workers’ Compensation Judge ordered that the Claimant ‘s benefits be reduced.

On appeal to the Commonwealth Court, the Claimant argued that the Defendant did not act reasonably in utilizing a labor market survey based on jobs allegedly available to him in Lawrence County, Pennsylvania, because the Defendant knew of Claimant’s relocation to South Carolina. However, the Court concluded that the “usual employment area ”,as defined by the Pennsylvania Workers’ Compensation Act providing for a modification of benefits based on labor market survey, is the “area in which the employe lives within this Commonwealth [and i]f the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply.”

By Andrew F. Fick, Esquire, Work Comp lawyer, Liever, Hyman & Potter, Worker’s compensation Attorneys, serving Reading, Berks County, PA and Schuylkill County. Chairman of the Workers Compensation Section , Berks County Bar Association.

Luzerne County, PA can not be liable in corruption scandal, judge rules

Category: In the News

“A federal judge has ruled that Luzerne County cannot be held liable in the kids-for-cash corruption scandal that has led to criminal charges against two of the county’s ex-judges because no county officials with policymaking authority played any role in the alleged scheme. In an opinion handed down on Friday, US District Judge A. Richard Caputo concluded that Luzerne County must be dismissed from a spate of civil rights suits filed by juveniles who claim their custodial terms were tied to a bribery scheme in which former Judges Michael T. Conahan and Mark A. Ciavarella Jr. allegedly took payments in excess of $2.8 million in return for promising to sentence juvenile offenders to for-profit detention centers.” Under “the separation of powers in Pennsylvania government, Caputo found, county judges are always considered state actors, not county officials.” As reported in the The Legal Intelligencer (7/14, Duffy).

Other allegations in this scandal involved collusive selection of lawyers hearing underinsured motorists cases. At Liever, Hyman & Potter these are important cases for our clients injured in automobile accidents. When someone is severely injured we can often not only pursue money damages against the other driver’s insurance but also claim substantial pay ments from our own clients’ insurance policies based on the fact that the other driver did not have enough liability insurance. Make sure that your auto/truck/motorcycle policies have adequate underinsured motorist coverage (at least the same amount as your bodily injury liability coverage).

JOHN BADAL, auto, truck and motorcycle accident lawyer for more than 30 years with the personal injury law firm of Liever, Hyman & Potter, Reading, PA, serving Berks County and Schuylkill County.

Case Summaries

CLIENT 16530
A woman was a passenger in a minivan that hydroplaned on Route 422 and swerved violently as the van attempted to come to a stop. Our client was thrown from the middle seating row into the back row and sustained injuries to her neck and low back requiring cervical spine surgery and surgery to her low back. Notwithstanding our client’s advanced age and the degenerative condition of her spine we were able to show that her surgeries were related to accident and we obtained a recovery from the liability and underinsured motorist carriers totaling $340,000.00.

CLIENT 17258
As a result of a work injury, our client suffered a low back injury in the nature of a an annular tear of a lumbar disc; however, he did not require surgery. The Defendant workers’ compensation insurance carrier commenced litigation against our client and hired a vocational expert in an attempt to reduce his disability benefits by proving that work was generally available to him within his restrictions. We hired our own vocational expert in opposition to the modification petition as a result of which we obtained a settlement for our client in the amount of $118,000.00.

CLIENT 17898
Our client, a tractor-trailer driver, had been working for his company for 20 years when he sustained a torn rotator cuff as a result of a fall he took while unloading a truck. Because our client was unable to return to his job as a truck driver, the workers’ compensation insurance carrier filed a petition against our client seeking to suspend his benefits alleging that he had retired from the work force and also sought to modify his benefits alleging that work was generally available to him within his restrictions. In opposition to the vocational and medical experts hired by the work comp carrier we presented the testimony of Claimant’s treating doctor as a result of which we obtained a settlement for our client in the amount of $170,000.00.

CLIENT 16498
Our client, an over-the-road truck driver, injured his neck when he feel from his truck on an icy winter day. The employer and its workers’ compensation insurance carrier denied that Claimant sustained an injury in the course and scope of his employment and we filed a Claim Petition on his behalf to obtain workers’ compensation wage and medical benefits. The Workers’ Compensation Judge ruled in our favor and we were successful in obtaining medical coverage and full disability benefits for our client. As a result of our success during litigation we were later able to obtain a settlement for our client in the amount of $150,000.00.

CLIENT 12519
Our client, a security officer, sustained a herniated disc in her neck as a result of breaking up an altercation between two people. She underwent cervical spine fusion surgery for her injury, which resulted in a small horizontal scar in the crease of her neck. Given the nature of her injury, our client was unable to return to her job in the field of security. We won a workers’ compensation settlement totaling $134,000.00, with $125,000.00 attributable to the wage and medical claim and $9,000.00 attributable to the disfigurement claim arising from the surgical scar.

Updated Legal Awards and Settlements-Case Summaries

Client #16665. A 22 year old Schuylkill Haven, Schuylkill County resident was driving his mother’s van on a back road near Schuylkill Haven when a light colored Mustang coming in the opposite direction went out of control and struck the van head-on. Both vehicles were insured by the same insurance company. Our young client suffered very serious injuries including a left leg dislocation, a hip fracture, broken fingers and broken ribs. He went on to require a total hip replacement. A thorough investigation identified multiple eyewitnesses from whom statements were obtained. Extensive scene and vehicle photographs were utilized. All injuries were fully documented and we were able to obtain a $325,000.00 settlement for our client for all available insurance coverage.

Client #16294. A 36 year old, mother of two, was in the course of her employment driving a van for a transportation company on Route 222 in Maidencreek Township, Berks County, Pennsylvania. As she was proceeding toward Reading, Pennsylvania, she was confronted with a Ford Escort that came flying over the median striking her van. The driver claimed that he was cut off by another vehicle that had entered from a ramp. However, our detailed investigation revealed that the Ford Escort had three bald tires and was traveling at an excessive rate of speed. Numerous eyewitness statements were obtained. Our client underwent open reduction and internal fixation of her ankle fractures. She went on to develop severe post-traumatic arthritis requiring an ankle fusion. We were able to obtain the policy limits from numerous motor vehicle insurance policies that resulted in settlement in excess of $405,000.00.

Client #17148. A $1,100,000.00 settlement was obtained on behalf of a severely injured 73 year old retired home economics teacher. Our client suffered severe injury on Route 73 between Blandon and Oley, Pennsylvania when a dump truck coming in the opposite direction swerved into the oncoming lane of traffic and overturned and crushed our client’s car. Although the truck driver claimed that his actions were necessitated by the sudden unexpected stopping of a car in front of him, we were able to conduct an extensive investigation which completely undermined his defense. Our client suffered massive injuries including numerous fractures and underwent surgeries. She required both inpatient and rehabilitation care as well as home care. There were extensive medical bills paid by her health insurance which demanded that the payments be repaid out of the settlement. That demand was successfully contested and a lien by Medicare was dramatically reduced.

Client #17736. A $200,000.00 settlement was obtained by the estate of a 77 year old pedestrian who was crossing mid-block wearing dark clothes as he attempted to cross to go into a restaurant in the evening hours. The driver who ran into him had $100,000.00 in liability insurance and our client had $100,000.00 in underinsured motorist coverage. We were able to obtain the full amount of all coverages despite arguments presented that our client was contributorily negligent. We were able to obtain statements from witnesses establishing that the driver was speeding at the time his car ran into our client and he did not see our elderly client despite bright overhead lighting.

Client #16947. A second year student at Lincoln University was a passenger in a car driven by another student. They had stopped at a store near the school to buy some folders. There was a two-car collision and there was a dispute as to who was at fault. One driver claimed that he was rear-ended and the other driver claimed that the other vehicle pulled out in front of him from a stop sign. Despite these conflicts we were able to obtain the full amount of available insurance coverage for our client who suffered a fractured right leg. Total settlement was in the amount of $200,000.00.

Case Summaries

Client #17438
A family of four was returning home late at night from a Penn State football game when an oncoming driver fell asleep at the wheel, crossed the center line and struck the side of our clients’ vehicle. Their injuries ranged from a back sprain to broken ribs to a broken heel. Total recovery for the family members was $258,000.00.

Client #16523
Our client was leaving work when she tripped on a small (3/4 inch) pavement discontinuity. Although such a small defect would not normally be actionable, this one was located at the top of a set of steps, and our client fell down the steps suffering facial injuries and a broken arm. The building owner’s insurer paid her $165,000.00.\

Client #18531
Our client was shot in the leg by a member of his hunting party on the second day of deer season. The hunting partner admitted that his rifle discharged but claimed that his bullet could not have wounded our client. The bullet passed through the client’s leg and was not found by game commission officials on the day of the shooting. After being retained, we made arrangements to meet game commission officials at the site and found the bullet. Ballistic testing later proved that it came from the hunting partner’s rifle. His homeowners insurance carrier paid our client its $100,000.00 policy limit.

Client #14393
Our client was driving on a country road when an oncoming truck-tractor came around a curve, crossed the center line and struck our client’s vehicle on the driver’s side. Our client was taken the emergency room where neck x-rays, and a bone scan a short time later, showed no fractures. However, follow-up testing done about one month after the accident did show a neck fracture for which our client underwent surgery. The defendant truck driver’s insurer hired a doctor who testified that the negative x-rays and bone scan showed that if the client did indeed have a fracture, it did not occur at the time of the accident. On cross examination of the defendant truck driver’s doctor we were able to show that the client’s initial complaints at the emergency room were consistent with the location of the fracture later found, and that the client had an underlying condition which rendered invalid the results of the bone scan. The case settled for $225,000.00 after the deposition of the defendant driver’s doctor.

Pittsburgh-Area Contractor Gets OSHA Fall Sentence

Category: In the News

KDKA Channel 2 Pittsburgh (June 25, 2010, PA Associated Press) reported that the owner of a Pittsburgh-area construction firm will spend three years on probation, including six months’ house arrest, for willingly violating federal workplace safety rules that contributed to a worker’s death in August. Forty-four-year-old Christopher Franc, of Valencia, had previously been fined $539,000 by the federal Occupational Safety and Health Administration. Franc had previously pleaded guilty to willfully failing to use safety equipment to protect employees of his C. A. Franc Construction company from falling off on steep roofs. One of Franc’s employees, 29-year-old Carl Beck, of Butler, died after falling 42 feet from a roof where he was working on Aug. 15.

Everyday the workers’ comp attorneys at Liever, Hyman & Potter, P.C., handle cases involving injuries sustained by workers injured on the job due to unsafe working environments and unsafe working conditions. This is a regular part of our practice in Berks County and Schuylkill County, PA.

Merck loses $8M verdict in Fosamax case.

The Wall Street Journal (6/26, Bray) reported that Merck & Co. lost a product-liability suit over whether its osteoporosis drug Fosamax (alendronate) caused osteonecrosis.

Bloomberg News (6/25, van Voris, Weidlich) reported, “The jury set damages at $8 million,” which was “$3 million more than the $5 million” sought by the plaintiff’s lawyers. The case is the first of hundreds of “Fosamax cases, including suits with multiple patients,” to go to trial.

“The jury concluded that Fosamax was ‘unreasonably dangerous due to defective design, and that its defective design was a legal cause of’” the plaintiff’s injury, the AP (6/26, Johnson) reported. Lawyers argued that “evidence showed that Fosamax provides no benefit in preventing bone fractures for women…who did not have osteoporosis.” The plaintiff suffered from “osteopenia, a condition in which bone density is beginning to decrease, and Fosamax is approved for preventing fractures in such women.” Reuters (6/26) also covered the story.

The above story was reported in the A merican A ssociation  of J ustice News Brief for June 28, 2010 . John R. Badal of Liever, Hyman & Potter, Reading, PA has been a member of this important national t rial attorney organization for more than 27 years an d has been a sustaining member for more than 8 years.

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