NFL Concussion Settlement

Eric Abes on September 30, 2014

A Federal Court has approved the Settlement of the Class Action Lawsuit filed by former NFL players against the National Football League. These former players, now retired, filed suite accusing the NFL for damages for not informing them that they may have possible brain injuries and consequences of same. The settlement discussions were long and tense and, at times, included dissension within the Plantiff’s own ranks.

The final settlement provides for players to receive the following three benefits:

1. Medical exams for symptoms of concussion syndrome for all retired NFL players so that if conditions later develop or deteriorate there will be a baseline for same.

2. Financial awards for diagnosis of brain injury diseases, such as Alzheimer’s, Parkinson’s, Dementia and certain cases of Chronic Traumatic Encephalopathy (CTE) which may not be diagnosed until after a player dies.

3. Educational programs and various initiatives to make the game of football safer.

These claims for injuries and medical treatment resulting from concussions will be paid in full for up to 65 years.

Of note, the retired players or their legal representatives or their family members do not have to prove that the player’s injuries were caused by playing NFL football. They simply have to prove the conditions exist.

Separately, these players theoretically could have filed individual claims against their respective teams for Workers’ Compensation benefits. However, because the players were not made aware of the harm and the statute of limitations for a work injury would have run, the above settlement for a vast majority of them is their only alternative.

Today’s players are now more aware of the consequences of a concussion. They can also avail themselves of Workers’ Compensation benefits pursuant to their individual state Workers’ Compensation laws.

Of course, concussions are not limited to professional athletes. Many combat Veterans have suffered severe concussions. However, professional athletes are more likely to have multiple concussions. Of course, anyone in any occupation could suffer a concussion whether it be from an automobile accident while in the course of their employment or some other traumatic event.

Today’s worker, whether it be a Pittsburgh Steeler or a Pittsburgh steelworker has become far more educated as to the benefits to which they may avail themselves if they suffer such an unfortunate injury.

Hurrican Ivan–2004

Eric Abes on September 29, 2014

Ten years ago this month, hurricane Ivan wreaked havoc on the Commonwealth of Pennsylvania, especially Southwestern Pennsylvania. A state of emergency was declared in sixty-six out of sixty-seven counties. At the time of this flood, in addition to practicing law with Abes Baumann, I was also the Mayor of Millvale, PA.

Millvale was one of the hardest hit communities in Pennsylvania. Over four hundred homes and over two hundred businesses were compromised by the flood waters and devastation.

As Mayor, the most important thing was to emphasize to the residents and the business owners that recovery would come quickly. In that regard, we set up a command center and a recovery center and worked to provide food, shelter, clothing and cleaning supplies for those effected by the flood. Millvale was visited in the days subsequent to the flood by local, state, and national leaders, offering assistance. President George W. Bush, Senators Arlen Spector and Rick Santorum, Congresswoman Melissa Hart, and County Executive Dan Onorato were several of the many leaders who came to Millvale to tour the devastation, receive a briefing on the recovery efforts, and offer assistance.

The experiences that I have had as a trial lawyer representing claimants in Workers’ Compensation cases, was a significant factor in my ability to work with the community in its recovery. Like the clients I represent, the residents of Millvale found themselves in a situation that they didn’t ask for, nor which they had expected. Counseling and working with them to recover and get on with their lives is one of the things I take pride in as a trial attorney.

The Bunkhouse Rule

Eric Abes on September 4, 2014

In Pennsylvania, “the bunkhouse rule” provides that an employee’s hours of employment are not necessarily limited to the hours actually worked. Travelling back to 1924, the Pennsylvania Commonwealth Court has revived the rule.

In the 1924 case, scabs were replacing striking workers. As it was impractical for the employees to obtain lodging elsewhere, they were lodged in a “bunkhouse.” It was necessary for the employer to keep them on the premises to keep the business operating. While the employees were sleeping in the bunkhouse, someone tossed a bomb into the bunkhouse and three employees were killed. The courts of the time ruled the injuries and loss of life were compensable and the “bunkhouse rule” was born.

Fast forward to 2014 and a new case revives the “bunkhouse rule.” A mother was employed as a health care worker for her adult son under a state funded program. The mother provided attendant care for her son at her residence in exchange for hourly wages. The son needed care due to significant medical issues, including the amputation of his leg. The mother worked 40 hours Monday thru Friday and 12 hours per day on Saturday and Sundays. While the mother was sleeping one evening, the son came into her bedroom and attacked her with a kitchen knife. She suffered physical injuries and post-traumatic stress disorder as a result of the attack.

The mother sought workers’ compensation benefits for these injuries. The workers’ compensation judge ruled that there was an employment relationship. The workers’ compensation judge found that based upon the evidence, she demonstrated that her employment for her son required her to be on the premises at the time she sustained her injuries, thus invoking the “bunkhouse rule.” The Commonwealth Court agreed keeping the “bunkhouse rule” alive 90 years after its birth.

The Going and Coming Rule

Eric Abes on September 4, 2014

Not all injuries suffered while commuting to work are exempt from Workers’ Compensation. A recent Commonwealth Court case argued by Abes Baumann  reversed the decisions of the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge and found that a Claimant injured on his way to work suffered a work related injury. 

The Claimant was employed as a cable technician responsible for installing cable and network services for his employer at customers’ homes and businesses. Claimant reported to work each day at Employer’s facility where he clocked in and picked up his assignments and equipment for the day. He then spent the rest of the work day traveling to and working at various customer locations. The Employer allowed Claimant to take the company vehicle home each night and use it to report to work in the mornings. Claimant was not allowed to have passengers in the vehicle, and he was not permitted to use the vehicle for any other purpose besides work. 

Claimant was injured while driving the company vehicle to Employer’s facility to get his work assignments for the day. He was injured in a single car accident which resulted in significant injuries and required life-flight transportation to the hospital.

Claimant filed a Claim Petition. Employer objected to the Claim Petition asserting that Claimant was not in the course of his employment at the time of his injury.

The Court noted that pursuant to the “going and coming rule,” injuries sustained while an employee is traveling to and from his place of employment are outside the course of employment; therefore, not compensable under the PA Workers’ Compensation Act. However, there are exceptions to the “going and coming rule.” The exceptions include:  1) the claimant’s employment contract includes transportation; 2) the claimant has no fixed place of work; 3) the claimant was on a special mission for the employer; and 4) the special circumstances are such that the claimant was furthering the business of the employer.

In a prior case, the Court stated that a cable technician is a traveling employee. Like our case, that claimant was a cable technician who was given a company van to drive to and from work, and he was prohibited from using for the vehicle for non-work purposes. That claimant also reported to office each day to pick up his paperwork, then traveled to customer’s locations, returning to the office to drop off paperwork. He was injured in an auto accident on the way to work. The Court determined he was a traveling employee as he was not in the office for more than 15 minutes a day. 

The Court stated our case was “factually indistinguishable” from the prior case. Therefore, the Court adopted reasoning in the prior case and found that our Claimant was a traveling employee with no fixed place of work, thus exempt from the going and coming rule. Our Claimant was entitled to the presumption that he was working for Defendant when driving from his house to office. The Commonwealth Court concluded our Claimant’s injury occurred during the course and scope of employment and was compensable under the Act.    

Testifying Before a Workers’ Compensation Judge

Eric Abes on August 27, 2014

Our clients are frequently called to testify in front of Workers’ Compensation Judges. Here are some tips that we give to our clients to help insure that they make the best possible impression:

1.  DRESS NEATLY – When appearing before a Workers’ Compensation Judge it is not necessary to wear a suit or a dress. Indeed, many of our clients don’t own a suit. However, the clothes you do wear should be neat and clean. It is disrespectful to the Court to wear clothing that is stained or ripped. Additionally, some Judge’s believe that you are not taking the hearing seriously if you don’t dress appropriately. Similarly, it is important to brush your hair and teeth. Remember, your appearance is often the first and last thing that a Judge notices about you.

2.  BE POLITE – Some insurance company attorneys try to bait injured workers’ into arguing with them. It is NEVER beneficial to you to argue with the opposing attorney. The Judge should know that you are testifying for one reason and one reason only – to tell the truth about what happened to you. The Judge should not be left with the impression that you have “an axe to grind” with the employer or the insurance company. This may make a Judge question your motives for pursuing the claim. By calmly and politely answering all questions, you show the Judge that you are a reasonable, considerate, and likeable person. This can go a long way towards winning your case. 

3.  BE HONEST – This is the single most important piece of advice that we give our clients. ALWAYS be 100% honest about everything. First, when you testify, you swear an oath to tell the truth. If you do not tell the truth when you testify, you have committed a crime and could be charged with perjury. Second, if it is shown that you have been dishonest, a Judge is very likely to rule in favor of the employer. Simply put, few Judges want to award benefits to someone whom they believe to be dishonest. Third, and most importantly, it is simply the right thing to do. A robust and fair judicial system is one of the foundations of a free and democratic society; and the foundation of that judicial system is the integrity of the participants. Whenever a witness lies, that foundation is eroded.   

The Dram Shop Case

Eric Abes on August 21, 2014

If the title to this article sounds like the title to a Sherlock Holmes story that is no coincidence. After all, the term “dram” is an ancient term which, in merry old England, described a measure of liquid, more properly known as a fluid dram. The fluid dram was equivalent to 1/8th of a fluid ounce, or approximately the amount that a teaspoon would hold in the Middle English era. Of course, the term was also used to describe a taste of the spirits, usually Scotch Whiskey. Establishments that served spirits became known as dram shops. That is, as they say, where the trouble began. As we all know, the consumption of whiskey and other intoxicating brews has led to a world of problems for both the consumers of alcohol, and for those who came in contact with consumers who overindulged.

The problems caused by drunks came to the attention of courts and legislatures who, in many instances, determined that justice required that those who profited from the sales of intoxicating beverages should bear responsibility for providing alcohol to those who should not have it, principally those who are already inebriated. According to the National Conference of State Legislatures thirty (30) states have laws that allow licensed establishments such as bars, restaurants, and liquor stores to be held liable for selling or serving alcohol to individuals who cause injury or death as a result of their intoxication. Happily, Pennsylvania is one of the states which have created a law which spells out the responsibility to the public of those licensed to dispense alcohol in the state.

The Pennsylvania “Dram Shop Act” provides in relevant part: 

No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employee when the said customer was visibly intoxicated. Pa. Stat. tit. 47, §4-497

Stated otherwise, the owner of an establishment which is licensed to sell intoxicating beverages is prohibited from selling, furnishing, or giving such beverages to a customer who is visibly intoxicated. This does not mean that a bar or restaurant is responsible for everything that their patrons may eventually do. It does, however, require that they monitor the conduct and appearance or their customers, and that they refuse to serve anyone who is already displaying evidence of intoxication. Failure to do so will effectively cause the bar or restaurant to answer for the damage the drunk inflicts.

It goes without saying that the most common type of Dram Shop case involves automobile accidents caused by individuals who were served at a point after which they were already visibly intoxicated. The combination of the speed and size of an automobile and a severely impaired driver is often devastating to others. Under certain limited circumstances the Dram Shop Act affords the victim of a drunk driver a remedy in addition to that of pursuing the drunk, who may have little or no collectible insurance or assets.

If it can be shown through competent evidence that the drunk driver was served after he or she was visibly intoxicated the bar or restaurant that served him can be held responsible for all of the damage the drunk driver causes. The public policy is so strong on this point that, unlike virtually every other type of personal injury case, the liquor licensee will be required to pay 100% of a joint verdict against it and the drunk, even if the drunk is found to be 99% at fault, and the liquor establishment only 1%. In other joint cases each defendant will pay only its percentage share of verdict, and the victim may be unable to secure payment of the entire verdict due to limited insurance or assets of the defendant found to be primarily liable. The Legislature specifically excluded Dram Shop cases from the general rule, and created a greater likelihood that the victim of joint negligence of a bar and a drunk driver will be fully compensated.

This firm has successfully litigated cases involving Dram Shop claims. In one instance, the eventual victim of the drunk driver actually witnessed a bartender serve the driver when he should not have done so. The victim left the establishment and went home while the drunk stayed and drank some more before eventually driving to the victim’s home and hitting him with the vehicle. Detailed and timely investigation revealed other witnesses who saw the driver’s condition shortly after leaving the bar and their testimony corroborated that of the victim. Further, by issuing subpoenas to the State Police it was possible to obtain the police cruiser videotape of the drunk driver’s arrest. Finally, a toxicologist was retained to review the available evidence, and he provided an expert opinion that the driver was indeed visibly intoxicated when served by the defendant bar. A favorable settlement followed.

Because recovery against liquor establishments is limited to those instances where it can be proven that the driver was served while visibly intoxicated these cases are difficult to win. However, when such a case is properly pursued it can provide full financial recovery in cases involving serious injuries that might otherwise go begging. Prompt and aggressive investigation is key. Please contact us if you have any questions concerning Dram Shop cases, or other cases involving serious injuries arising from automobile, truck, motorcycle, or construction accidents.

412-228-4786

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