“Evidence-based medical treatment guidelines” sounds like such a good idea. Who would want medical treatment that wasn’t based on evidence?

The problem is in the details. Way back in 1996, when “evidence-based medicine” was coming to the fore, the originators of the concept went out of their way to say “evidence-based medicine is not cookbook medicine,” and that it can “never replace individual clinical expertise and it is this expertise that decides whether the external evidence applies to the individual patient at all, and if so, how it should be integrated in a clinical decision.”

Fast-forward twenty years, and now the Pennsylvania General Assembly is considering whether to use evidence-based medicine as the sort of “cookbook medicine” it was never meant to be.
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Earlier this week, The Legal Intelligencer published an article on attorney’s fees* in workers’ compensation** cases that’s currently pending before the Pennsylvania Supreme Court. (* For anyone curious about the answer to the age-old question of whether to use attorney fees, attorneys fees, attorney’s fees, or attorneys’ fees, consider this court opinion. ** For anyone curious about the other age-old question of whether to use worker’s compensation, workers’ compensation, or workers compensation, consider this blog post. Pennsylvania’s laws call them attorney’s fees and workers’ compensation, so I will, too.)

I’ve written a lot about contingent fee representation on this site, because there are a lot of misconceptions surrounding it. For example, few people — including many lawyers — realize just how expensive contingent fee litigation really is for the lawyers who represent plaintiffs. Take all the expenses you can imagine in a lawsuit (hiring experts, paying for court reporters, et cetera), then add more for the punitive tax treatment for contingent fee lawyers: unlike every other business in America, when we spend money on a case, we can’t deduct that cost from our income tax as “business expenses.” The tax code pretends that money we have paid to someone else exists as a profit until the case is entirely finished, often years after we paid the money, when it magically converts into either a loan (if it’s reimbursed from the settlement or judgment) or a “business expense” (if we have simply eaten the cost).

Workers’ compensation is supposed to be cheaper and more efficient for workers than a normal personal injury lawsuit, and by and large it is. The worker doesn’t have to prove their employer was negligent, just that the accident was work-related, and incentives are built-in to encourage lawyers to take the cases and to lower their contingency fees. For example, here in Pennsylvania, an employee in a contested case is entitled to “a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings, though the attorney’s fee “may” be eliminated if the employer or insurer had a “reasonable basis” for the defense.

Because of those incentives, workers compensation attorneys generally charge a lower contingent fee than personal injury lawyers. Whereas the industry standard personal injury contingent fee is between 33% to 40% (depending on the type of case), the bulk of workers’ comp attorneys charge a 20% contingency. Indeed, many unions and injured workers’ advocacy groups, like the Pennsylvania Federation of Injured Workers, demand that any attorney who wants to be recommended by the union or group agree to charge no more than 20% (with a cap prohibiting deduction of future benefits more 250 weeks past the award), and further reduce the contingent to 15% if the claim is settled for a lump sum. (Here’s the PFIW’s panel attorneys’ agreement.) They similarly require attorneys not charge a fee for simple matters that can be cleared up with a phone call or a letter.

And that’s where the Pennsylvania Supreme Court case comes in. Prior to 2006, Pennsylvania’s workers’ compensation law imposed a 20% cap on the contingent fee, but allowed a higher fee to be approved in certain circumstances:


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One of the most common situations I see as a personal injury lawyer involves people injured at work because their employer blatantly disregarded OSHA safety regulations. Most everyone knows that workers’ compensation laws provide employers with legal immunity from negligence claims, but common sense suggests that employers remain accountable for reckless or intentional wrongdoing. The law, however, doesn’t always line up with our common sense of ethicals and morals. We’ve been successful in the past holding employers and other companies fully accountable despite the workers’ compensation laws, but unfortunately employers sometimes can get away with manslaughter.

Over at reddit yesterday, a user posted a question under the title My mother was brutally killed at work, is there no chance for justice?

My mother was crushed to death at work, the OSHA report indicates 3 SERIOUS violations on the part of her company and a dozen minor violations. Total Fine: ~$15,000. She was alone when it happened, it wasn’t her duty to be anywhere near the storage area, the guy whose job it was to move the product quit a few days prior and she was essentially told to do his job (without ANY training) or else. Wtf? Its been 7 months now, I’ve spoken to 11 different lawyers with my step father, all of whom said that it wasn’t possible to file a case against them because of labor laws… We just found out today that as of last year the KY legislature passed a bill that stopped any death benefit payments because in a few months my step dad will be 62(age of retirement). My mom was only 50. So not only can we not pursue legal action against the company, but the government death benefit is out the window too.

Am I … insane? Is this some third world Chinese factory? Wtf… Why is this allowable in the US? So this multi-million dollar company pays just 15k in fines and that’s it. No other punitive damages. We cannot pursue any legal action?

It’s a depressingly common situation that we see all the time: some industrial plant or construction site flagrantly violates OSHA safety rules, kills or maims a dedicated employee, and then pays a fine somewhere around the price of a compact car.

Recall the Notre Dame football practice tragedy. Indiana’s Department of Labor, Occupational Safety and Health Administration found that Notre Dame had committed multiple safety violations in the training and use of its scissor lifts to videotape football practice, including:

Knowing violation – By directing its untrained student employee videographers to use the scissor lifts during a period of time when the National Weather Service had issued an active Wind Advisory with sustained winds and gusts in excess of the scissor lift’ s manufacturer’s specifications and warnings, the university knowingly exposed its employees to unsafe conditions.

Serious violation – Notre Dame did not properly train the student employees in the operation and use of the scissor lifts used during football practice.

Serious violation – The scissor lift noted in this incident – owned by Notre Dame – had not been given an annual, monthly, or weekly inspection for more than one year.

Serious violation – Notre Dame did not have the scissor lift it owned serviced as required by the preventive maintenance schedule in the operator’s manual.

Serious violation – Notre Dame did not have an operator’s manual kept on the unit it owned in the weather proof box.

Serious violation –The scissor lift noted in this incident – owned by Notre Dame – was missing some of its warning labels and some labels were faded and weathered.

Total fine? $77,500. And that’s in an egregious, high-profile case that killed a 20-year-old. It was one of the highest fines the Indiana OSHA had levied in years.

It’s thus no surprise to me that the company that killed the reddit poster’s mother was fined only $15,000 for three serious violations. As the federal OSHA website explains:

Serious Violation – A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.

Up to $7,000 for a serious violation that could — and did — kill someone. In this case it seemed the company ordered an untrained employee to handle, alone, some hazardous chemical or equipment, and the penalty is less than the cost of a new Mazda 3.

Which brings us to the core of the redditor’s complaint: that there’s nothing at all they can do to hold the employer accountable. 
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It’s a common occurrence: an employee is out on the road as a driver, passenger, or pedestrian as part of their job when they are hit by a car. It’s particularly common for municipal employees like police officers and for delivery drivers and highway workers because they are, of course, out on the road and in danger a lot more than the rest of us.

The next legal step is routine: the injured employee files a claim for workers’ compensation, which will cover some medical expenses and some fraction of their salary, and then files suit against the driver that hit them. The problem, though, is that the Pennsylvania minimum insurance coverage is a mere $15,000 per injured person, so workers’ compensation plus the tortfeasors’ insurance policy limits usually isn’t much. It’s often less than the simple out-of-pocket medical expenses and lost wages, not to mention any sort of pain and suffering or future health care.

That’s where things get complicated. Although Pennsylvania doesn’t require uninsured motorist or underinsured motorist coverage, every employer-sponsored plan I’ve seen includes it. In theory, then, the employee can claim their UM/UIM coverage as well once they’ve exhausted the tortfeasor policy.

And that’s where everyone hits a snag: because the insurance company providing the workers’ compensation is typically the exact same company providing the UM/UIM coverage, the insurers often put into a policy an exclusion that does not apply UM or UIM coverage to any claim also eligible for workers’ compensation benefits. Is that legal?

Let’s pause for an aside: Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), which replaced Pennsylvania’s prior No-Fault Act, has consumed our courts, particularly our Supreme Court, for a generation now. The Pennsylvania Supreme Court has decided dozens of MVFRL cases over the past twenty years. In my humble estimation, it is the single most-interpreted law in Pennsylvania, which makes sense given how we have about 350 car crashes a day, four of which, on average, result in a fatality.

Back on track, last week the Pennsylvania Supreme Court decided Heller v. Pennsylvania League of Cities, firmly answer the “is that legal?” question with “no”:

We granted review to determine whether it is a violation of public policy to exclude from underinsured motorist (“UIM”) coverage a claim by an individual eligible for workers’ compensation benefits. For the following reasons, we conclude that a workers’ compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable.

The court went into a number of reasons why the exclusion was void, but the biggest reason was a simple practical review of the reality of employer-sponsored insurance coverage. If the insurance applied only when an individual was injured in the scope of their employment, yet wasn’t available when workers’ compensation applied, then when, exactly, could employees use the UIM coverage paid for by their employers?
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[Update: Unfortunately, the “Fair Share Act” passed. Stuart Carpey has some details.]

It’s that time of year again. As The Legal Intelligencer and other sources report, Pennsylvania’s joint and several liability laws — which ensure that the economic damage caused by negligent companies falls on insurers and other defendants proven to have