News

• Products Liability Isn't Child's Play
  Mattel, the maker of Barbie Dolls and Hot Wheels, is recalling nearly One Million Toys Covered with Lead Paint
• Dan Monahan awarded Board Certified Civil Trial Advocate by National Board of Trial Advocacy
• Medical Group Warns about the Dangers of Trampolines
• Commonwealth Finalizes Rules for Vocational Experts in Workers' Compensation Cases
  After years of debate over the qualifications and conduct of vocational experts in the worker's compensation arena in Pennsylvania, the Commonwealth has finally promulgated Rules and Regulations for the Qualifications for Vocational Experts as of June 23, 2007.
• State and Local Prosecutors Continue to Pursue Fraud
  State and local prosecutors have continues to pursue fraudulent workers' compensation claim as well as uninsured employers.
• Statistics Show Insurance Company Gouging is Cause of Increased Health Care Costs

Products Liability Isn't Child's Play

One of the largest Toy makers in the U.S., Mattel recalled more than one million toys covered with lead paint on July 30, 2007, all of which were made in China. The recall covered 83 different products and was the second largest recall of toys this year. Fortunately, nearly two thirds of the toys were prevented from reaching the consumer by stopping the products at the distribution centers and contacting retailers like Walmart, Target and Toys R Us.

However, as many as 300,000 toys may already have been purchased by the consumer. The Consumer Product Safety Commission believes that the toys may have a date code from 109-7LF to 187-7LF. A complete list can be found at cpsc.gov.

Despite numerous safe guards that Mattel says are in place, this is the 17th recall for the company in the past 10 years. Almost half the toys it sells come from factories in China. Because many of these toys feature characters from movies and television, companies like Nickelodeon and Sesame Workshop are considering third party testing of the products. Although lead has not been used in years in the U.S. the Toy Industry's attempts to eliminate lead paint from Chinese manufacturers has not been completely successful.

Parents who believe their children or anyone else has been exposed to lead paint because of any of these toys should contact their physicians immediately.

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Dan Monahan awarded Board Certified Civil Trial Advocate by National Board of Trial Advocacy

In July 2007, I was pleased to learn that I had successfully met all the requirements to be recognized as a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy.

The National Board of Trial Advocacy or NBTA was created in 1977 in the public interest to identify lawyers who demonstrated that they are skilled, capable and ethical trial lawyers. Accredited by the American Bar Association, and recognized as the only organization by the Pennsylvania Supreme Court to certify attorneys, the National Board of Trial Advocacy maintains rigorous standards for the certification of civil, criminal, and family law advocates.

In order to be certified by the organization, lawyers must successfully meet the following criteria:

1. They must submit a list of names of judges and lawyers who are contacted by the NBTA to independently verify the lawyer’s skill, experience, and even the lawyer’s reputation for ethical and professional conduct.
2. They must establish that they are in good standing with their state bar association.
3. They must pass a day-long written examination.
4. They must submit actual copies of their written legal work for review.
5. They must provide documentation to prove their active involvement in multiple trials before judges and juries.

Most cases never actually go to trial because they are settled out of court. In fact, that may be your preference rather than risk the uncertainties of a jury verdict. However, what often motivates an opponent to settle out of court is the knowledge that you are represented by an experienced trial attorney. When such a lawyer makes a reasonable request for settlement on your behalf, the opposition may consider it unwise to take the case to trial against an experienced, skilled litigator.

Litigation is often compared to war. As in war, the side with the greatest skill and experience is usually able to avoid conflict because the opposition is not willing to risk the consequences against such an experienced opponent. Therefore, contrary to common misconception, your chance of resolving your case successfully out of court are much better when you are represented by a skilled, experienced trial lawyer who is well-known and respected by the opposition.

I am honored to have been recognized by the National Board of Trial Advocacy as a “Board Certified Civil Advocate”. If you would like to learn more about this, visit the NBTA website at www.nbtanet.org.

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Medical Group Warns about the Dangers of Trampolines

A new study has shown that the number of emergency room visits by children injured on trampolines has more than doubled over the past decade. There were just over half a million such visits in the U.S. in 2000-2005 compared to a quarter million in 1990-1995. The American Academy of Pediatrics (AAP) has now urged pediatricians to tell parents not to buy trampolines for home use or let their children use home trampolines. Nevertheless, according the Academy, the message doesn’t seem to be getting through.

The AAP first called for a ban on trampolines in schools in 1977. Four years later, they allowed a trial period of limited use in schools, but stated that “the trampoline should never be used in home or recreational settings.” Researching data available from the National Electronic Injury Surveillance System found a 113% increase during the time period studied above, and during those times, 95% of the injuries had occurred on home trampolines. The “dramatic increase” was likely due to increased availability of home trampolines. People can now purchase them for about $200 and 1.2 million new ones were sold in the US in 2004. Thirteen percent of the 2000-2005 injuries occurred in children younger than 5 and most involved fractures. While older children more likely suffered soft tissue type injuries, the study noted that the injuries were severe enough to bring children into the emergency room.

Accordingly, the AAP says that trampolines can never be truly safe and concludes that “Emergency physicians should join pediatricians in recommending that parents never purchase a home trampoline or allow children to use home trampolines.

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Commonwealth Finalizes Rules for Vocational Experts in Workers' Compensation Cases

In an effort to clarify and explain some of the confusing procedures and requirements affecting the use of vocational experts in the field of Pennsylvania Workers' Compensation, the Commonwealth issued new Rules and Regulations to establish once and for all the qualifications of vocational experts under Act 57 and the subsequent revisions under Act 53 and to define and specify the role of the workers' compensation Judges and the conduct of the experts when dealing with the injured worker.

For the injured worker it is important to be aware of the specific requirements and obligations for the vocational expert when they involve themselves in the worker's case.

First, before conducting an earning power assessment interview, the vocational expert shall disclose to the employee, in writing, the role and limits of the vocational expert's relationship with the employee. Employees would be well advised to understanding that these vocational experts hired by the employers and insurance carriers are there to reduce your benefits, not find you alternative employment.

If the vocational expert interviews the employee, they are required to generate a written initial report detailing the expert's involvement in the litigation and conclusions form the interview. The vocational expert shall serve a copy of the initial report on the employee, and the attorney if one is involved, within 30 days of the date of the interview.

A vocational expert who authors additional written reports, including earning power assessments or labor market surveys, shall simultaneously serve copies of these additional written reports upon the employee and attorney if one is involved, when the expert provides a copy to the insurance company or their attorney.

Finally, before referring an employee for an earning power assessment interview, the insurance company is also required to disclose any financial relationship between the insurance company and the person conducting the interview.

Unfortunately, the Statutes and Case law in Pennsylvania do not really provide injured workers' with true vocational services. Workers are on their own to obtain alternative employment within their restrictions and/or re-train or re-educate themselves in new fields. The Workers' Compensation Act provides no assistance, financial or otherwise, to place injured workers back in the job market. Workers should always keep this in mind when dealing with vocational experts, who despite all good intentions perhaps, are there to serve their insurance company clients in reducing your weekly wage loss benefits.

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State and Local Prosecutors Continue to Pursue Fraud

Section 305 of the Pennsylvania Workers' Compensation Act, an addition to the Act in the mid-1990's, specifies that an employer's failure to insure its workers' compensation liability is a criminal offense. Likewise, employees who submit fraudulent workers' compensation claims have been also prosecuted across Pennsylvania.

In the most recent report from the Pennsylvania Bureau of Workers' Compensation, the State reported that six different employers were found to be in violation of the Act, subjecting them to criminal convictions and significant fines.

In Allegheny County, the owner of a local emergency service company was sentenced to probation for 2 years and ordered to pay over $125,000 in benefits. In Butler County, a local employer was required to pay $10,000 in fines, perform 120 hours of community service, and was sentenced to 5 years probation. In Columbia County, a Restaurant owner pled guilty and was fined over $14,000, ordered to pay court costs and was sentenced to 12 months probation. In Franklin County, a roofing company owner was sentenced to pay a $22,500 fine, costs of prosecution, and placed in probation for 2 years. A Lycoming County Judge, sentenced another restaurant owner to 50 hours of community service and pay a $4,900 fine. In Cambria County an employer was required to pay $152,357.43 in restitution to the claimant and was entered into a first offenders programs after paying court costs.

The State's Attorney General's Office has also brought criminal charges against two individuals, one from Chester County and the other from Indiana County. In Chester County, a woman pled guilty and was sentenced to 3 to 23 months in jail, seven year probations and ordered to pay restitution of $55,080 and all court costs for collecting the workers' compensation benefits of another worker who had been dead for 6 years.

In another case, an employee who continued to collect compensation at the same time he was working, was sentenced to 2 to 4 years and ordered to pay restitution and court costs.

Of course, the vast majority of employers and employees are honest hard working individuals or companies trying to make a living. Nevertheless, the newer provisions of the Act provide a means to weed out the dishonest companies and individuals to seek to take advantage of all the other persons who have legitimate injuries and/or the companies that rightfully carry their workers' compensation coverage.

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Statistics Show Insurance Company Gouging is Cause of Increased Health Care Costs

Medical malpractice insurance companies are gouging doctors, padding their profits and driving up the cost of medicine.

Insurance rates for doctors are sky-high, but insurance company malpractice losses have fallen nearly 50 percent in three years.
For every dollar received in premiums from doctors, the insurance companies are paying out just 39 cents in claims.
Doctors should ask their insurers: “Why do my rates keep going up while your claims payments keep going down?”
There is no so-called “med mal crisis.” This report puts the lie to that claim.
The crisis involves insurance companies gouging their customers and driving up health care costs.

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KEY FACTS:

Projected and actual payouts have declined. The losses of the leading medical malpractice insurers have dropped nearly 50% over the last three years, even as the industry has publicly claimed losses are increasing.
This national decline is mirrored in Pennsylvania. 2006 data from the Pennsylvania Supreme Court show there were 1,693 filings in 2006. This represents a 38 percent decline from the base years 2000-2002. In Philadelphia, the state’s largest judicial district, the decline has been over 50 percent.
While payouts are decreasing, surplus is soaring. The 2006 surplus is 43% greater than in 2003 – greatly exceeding the surplus levels mandated to ensure a carrier’s stability.
Insurers are paying out only 39 cents for each dollar of premium they receive.

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The Monahan Law Practice
300 North Pottstown Pike
Suite 210
Exton, PA 19341-2233

Phone: (610) 363-3888
Fax: (610) 363-2429