by Mark Bauman | Dec 13, 2021 | General Liability and Casualty, Legal News
The issue of when and under what circumstances an employer can request that an employee undergo a medical examination under the Americans with Disabilities Act was recently decided in the case of Ward v. Merck & Co., 17 Am. Disabilities Cas (BNA) (E.D. Pa. 2006).
Ward was hired by Merck as a chemist in 1996. By October 2002, Ward’s supervisors noticed that Ward had become more introverted in the workplace. Ward had been diagnosed with anxiety disorder, for which he refused the recommended treatment. Merck was not aware of the diagnosis. At one point, Ward had resigned citing job-related stress, but withdrew his resignation when asked to reconsider. Ward took a three week leave of absence when he was diagnosed as possibly suffering from schizophrenia following an incident of screaming at co-workers in the cafeteria regarding the quality of food. Upon his return from the leave of absence, Ward’s behavior and performance deteriorated to the point where his supervisors became concerned for his well-being and the well-being of his co-workers. Merck subsequently requested that Ward undergo an examination with occupational health. Ward did not agree that his “behavior, performance or productivity” had changed and did not agree that an examination was necessary. Ward, therefore, did not undergo an examination. Merck suspended Ward with pay and warned that he would be terminated if he did not agree to an examination. Merck advised Ward that “the approach the company has chosen to take at this time by sending you for a fitness-for-duty evaluation is specifically intended not to punish or discipline you even though your workplace productivity and performance has been well below acceptable standards and your behavior has often been unprofessional.” Ward continued to refuse to submit to an examination and was terminated.
Ward sued asserting claims under the ADA. He claimed that the examination violated 42 U.S.C. 12112(d)(4) of the ADA which states that “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
Upon finding that this portion of the ADA pertained to non-disabled employees, the court analyzed whether Merck’s request for examination in this case was “job-related and consistent with business necessity.” The court stated in order to meet this test, “there must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job, and the examination must be limited to determining an employee’s ability to perform essential functions.” The court further noted “an employee’s behavior cannot be merely annoying or inefficient to justify examination” but there must be a “reasonable belief based upon objective evidence” that the employee’s ability to perform the essential functions of the job is “impaired by a medical condition or the reasonable belief that an employee will pose a direct threat due to a medical condition.” In the current case, the court found that Merck’s requested medical examination was justified, noting that Ward’s behavior “posed more than a mere inconvenience for his supervisors.”
by Mark Bauman | Dec 12, 2021 | General Liability and Casualty, Legal News
The U.S. District Court for the Eastern District of Pennsylvania ruled that an Administrative Law Judge misapplied the “treating physician rule” when he concluded that a doctor’s objectivity was undermined because he was an advocate for the claimant in his workers’ compensation litigation. Somenski v. Barnhart, 109 Soc. Sec. Rep. Service 143 (E.D. Pa. 2006).
The claimant, Frances Somenski, a longshoreman, sought disability benefits alleging he became disabled due to anxiety and post traumatic stress disorder resulting from a work accident when he was exposed to oxygen deprivation and where two of his co-workers died. He also alleged disability due to injuries to his legs. His claim was initially denied after which he requested a hearing before an Administrative Law Judge (“ALJ”). The ALJ denied the claim but an Appeals Counsel vacated the decision and a new hearing before an ALJ was held. The ALJ denied the claim a second time and the Appeals Counsel affirmed. Claimant thereafter sought a judicial determination from the appealed to the United States District Court.
The claimant asserted that the ALJ discounted the opinions of several of the his treating physicians, one of whom had treated the claimant for ten years, and instead relied upon the opinions of state agency psychologists who had never examined the claimant. The U.S. District Judge Michael Baylson agreed and found that the ALJ violated the “treating physician rule.” This rule, as articulated by the Third Circuit Court of Appeals in Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), provides that the primary principle behind determining eligibility for benefits is that the ALJ “accords treating physicians’ reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.” Id.
Judge Baylson held that in Mr. Somenski’s case, it was “error to disregard medical findings of examining physicians offered as part of a workers’ compensation hearing even though it may be adversarial in nature, because this does not affect the reliability of the testimony.”
by Mark Bauman | Dec 11, 2021 | General Liability and Casualty, Legal News
The Superior Court of Pennsylvania dismissed a subcontractor’s mechanics’ lien for failure to issue the requisite notice under Pennsylvania law. Wentzel-Applewood Joint Ventures v. 801 Market Street Associates, 878 A. 2d 889 (Pa. Super. 2005). As a result of this failure, a subcontractor may have lost the ability to collect over $250,000 from a now-bankrupt general contractor.
This case involved the conversion of several floors of a Center City, Philadelphia building from a retail space into an “item processing center” and offices. The general contractor retained the services of a subcontractor, who provided and installed drywall, studs, doors, windows, ceilings, and millwork. However, following completion of the job, the contractor filed for bankruptcy protection and in turn, the subcontractor provided formal written notice of its intent to file a mechanics’ lien in state court.
However, in response to preliminary objections of the named parties, the trial court dismissed the subcontractor’s lien for failure to issue, prior to completion of its work, the required preliminary written notice of its intent to file a lien. The subcontractor appealed this decision to the Superior Court.
According to Pennsylvania’s Mechanic’s Lien Law, if the work done is deemed to be “alterations and repairs,” a subcontractor must give “the owner, on or before the date of completion of his work, a written preliminary notice of his intention to file a claim if the amount due or to become due is not paid.” However, if the work is categorized as “erection and construction,” no such requirement exists. Therefore, the Superior Court’s decision hinged upon the classification of the work done as “alterations and repairs” or “erection and construction.”
The Superior Court cited prior decisions where Pennsylvania courts have deemed improvement of real estate as “erection and construction” “where the adaptation (1) is substantial enough in its own right to constitute a new structure, or (2) creates a significant change in the use of the existing structure.” In this case, the Superior Court held that the renovations were not substantial enough in their own right to constitute a new structure. This decision was based, in part, upon the deposition testimony of the subcontractor’s principal, who “established that prior to the alterations, the renovated floors were ‘retail, old space'” as used in commercial operations, and after construction, “the floors were used in … commercial operations … as ‘office space’ and ‘processing area.'” Because of this characterization of the construction, the subcontractors failed to fulfill the requirements imposed upon them, which cost them the ability to collect compensation for their work, an outcome that would have been avoided had the subcontractors simply filed a timely notice.
by Mark Bauman | Dec 10, 2021 | General Liability and Casualty, Legal News
The Pennsylvania Supreme Court has ruled that automobile insurance carriers are permitted to maintain a clause in their policies that states that the carrier has no obligation to insure a policy-holder who is driving a car that he does not own, but uses on a regular basis, in the event of an accident. Burstein v. Prudential Prop. & Cas. Ins. Co., 809 A.2d 204 (2002).
This issue has been hotly-debated in Pennsylvania. Many oppose this exclusion, arguing that to exclude coverage when a policy holder is driving a car that he does not own, but regularly uses violates public policy. The Court disagreed and held that such a clause comports with public policy. See also Prudential Property & Cas. Ins. Co. v. Gisler, 806 A.2d 854 (2002) (holding that the regularly used, non-owned car clause comported with the Motor Vehicle Financial Responsibility Law).
According to the Court, voiding this exclusion would actually frustrate public policy concerns by increasing costs of automobile insurance. The Court reasoned that in the absence of such an exclusion, insurers would be forced to underwrite unknown risks that policy-holders have not disclosed and for which policy-holders have not paid.
by Mark Bauman | Dec 9, 2021 | General Liability and Casualty, Legal News
In Scaramuzza v. Sciolla, 345 F.Supp. 2d 508 (E.D. Pa. 2004), the Plaintiff in this legal malpractice case did not timely file a Certificate of Merit. The Defendants moved for dismissal pursuant to Pa.R.C.P. 1042.3. The Plaintiff argued that the rule should not be applied in Federal Court since no Federal Court had held that Pa.R.C.P. 1042.3 was substantive law. Judge Baylson disagreed. He noted that the U.S. Circuit Court of Appeals had already extended a similar rule to diversity cases in New Jersey. In Chamberlain v. Giampapa, 210 F. 3d 154, 158-61 (3d. Cir. 2000), the Third Circuit ruled that New Jersey’s affidavit of merit requirement must be applied as substantive state law.
Despite this, Judge Baylson held that dismissal was not appropriate. He found that the Plaintiff met the requirements set forth in Pa.R.C.P. 3051, although Plaintiff did file a Certificate of Merit five months after the deadline. Judge Baylson found that the Defendants were not prejudiced by the delay since discovery had not yet commenced. Furthermore, he found that Plaintiff’s excuse for not filing a Certificate of Merit was excusable since the Third Circuit had not yet applied Pa.R.C.P. 1042.3 as substantive law.
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