The Fine Print

 

INJURED WORKER DESERVES A JOB

A Pennsylvania worker who suffered a broken forearm was out of work for over a year and his treatment included several surgeries. His treating physician released the worker to return to full-time unrestricted job duties, but the worker’s employer did not have any job openings. Nevertheless, because the worker was medically released, the employer petitioned to stop payment of all Worker’s Compensation wage and medical benefits.

At the hearing on the worker’s claims to continue to receive his wage and medical treatment benefits, the worker’s physician testified that the worker was released to do any kind of work; the physician placed no restrictions on the worker’s ability to perform all his job duties.  The physician acknowledged that if the worker actually experienced physical problems or limitations once he did return to work, the physician may find it necessary to change his opinion. The worker testified that he did not feel capable of performing fully at work and that he believed his employer did not have a job for him. The employer failed to produce any evidence of a job opening, taking no position at hearing if it did or did not have a job opening available. Instead, the employer simply argued that when a worker is fully medically released, all benefits must cease.

            The Court sided with the worker, finding that where a recovered worker remains unemployed and available for work,  the employer must prove the existence of an available job at the hearing. If there is no available job, then the worker is entitled to continued benefits. The employer may met its burden by showing that it referred the worker to a suitable job which fits the worker’s ability and experience.  If such a referral is proved, the worker must demonstrate that he has in good faith followed through on the job referral but remains unemployed.

            If you are a recovering injured worker, be sure to pursue all job referrals from your employer. If you are cleared for light or sedentary work, you must take suitable jobs offered for such work. If you are an employer with a recovering injured employee, you will remain responsible for benefits until the employee is actually employed or you can prove that he has failed to secure employment that is actually available.

GUARDIANS AND HEALTH CARE DECISIONS

The natural parents of a profoundly mentally disabled 50 year old man recently were denied the authority to make life end decisions for him. The parents were court appointed as “plenary guardians” of their son because he was so severely mentally impaired from birth that he could not communicate at all or make any decisions.

            When the disabled son became seriously ill with pneumonia after he swallowed a hairpin, he was transferred from the residential facility where he had lived for 45 years to a nearby hospital. Physicians determined that he needed a mechanical ventilator to enable him to breathe properly. His parents decided that mechanical ventilation was not in his best interests and tried to refuse the treatment. The physicians disregarded the parent’s preferences because they were not named  “health care agents” for their son.

            The parents went back to court, to expand their guardian status to include powers to act as  health care agents for their son. By the time of the hearing, the son was recovering from the pneumonia and was no longer dependent on the ventilator.

            The parents argued that as plenary guardians, they had the right to exercise all of their son’s legal rights, including his right to refuse medical treatment. They claimed that a person incapacitated from birth is entitled to refuse medical treatment and has no power to do so unless he or she can exercise that right through a guardian.

            The Department of Public Welfare opposed the parents’ requests and claimed that guardians cannot make choices that do not advance the interests of an incapacitated person. Since the son was not terminally ill or in a persistent vegetative state, medical treatment including mechanical ventilation was in his bests interests, according to the Department.  The Department also noted that in 2006 the Pennsylvania legislature passed the Health Care Agents and Representatives Act, clarifying and updating Pennsylvania law on medical treatment choices, including end of life decision making. The Act provides that everyone has a right to make decisions regarding their own health care, including the right to appoint an agent or representative. The Act has specific rules for the appointment of an agent, and the son obviously had never made any such appointment.

            The Court first decided that the Act does not permit a guardian to assert an incapacitated individual’s rights to appoint a health care agent. In fact, the Court observed, a separate statute relating to guardians specifically limits guardians from many categories of decisions. Guardians may not consent to certain medical procedures including abortions, sterilization and psychosurgery. Guardians also cannot admit an incapacitated person to a psychiatric institution. Guardians cannot prohibit marriage, consent to divorce or agree to termination of parental rights on behalf of an  incapacitated persons.

            The Court also noted that unlike properly appointed health care agents,  a guardian is the court’s “bailiff or agent in protecting an incompetent and his estate.” Guardians are always under the court’s control and are subject to the court’s direction. Guardians are permitted to act against the express wishes of the incompetent, but always must follow the guidance of the court. By contrast, a health care agent must follow the directives of the individual who appointed him and is usually given broad powers. Health care agents do not require any supervision from the courts. A health care agent literally stands in the shoes of the individual who appointed the agent, and is charged with doing the will of the individual. 

            In concluding that guardians should not be given the broad powers granted to many health care agents, the Court noted that guardians can “potentially abuse their authority to an unparalleled magnitude.” Because courts are obliged to supervise guardians and cannot efficiently intervene in time to preserve the life of an incapacitated person if a guardian makes an end of life decision, the Court found that guardians should not be given such extensive authority.

            Guardians who believe it is best to refuse medical treatment for their incapacitated persons must petition the court to hear the matter and must prove by clear and convincing evidence that their health care preference is best for the incapacitated person. If approved by the courts, an incompetent persons right to refuse medical treatment can be asserted.

            Properly appointed health care agents can exercise all the powers in the appointing document without seeking any approval of the courts. If you don’t have a living will or advanced medical directive appointing a health care agent, you should. You and your family and physicians are best served if you make important decisions now and identify an agent. If you are a guardian of an incompetent person, your ability to control health care decisions is limited by the fact that the ultimate decisions must be made by a judge.

Deferred Compensation Plans

Of the many types benefits available through employment, the deferred compensation plan is available to many high-level employees. Under such plans, the employee agrees to have part of his pay withheld by the company to be paid in the future.  The employee does not owe any income tax on the deferred compensation until he or she actually receives it—so deferred compensation plans can work very well as retirement savings. The plans also operate to keep highly skilled employees in the ranks—the taxman shows up only when the employee takes the money out of the plan, and the employee must take the money out either at retirement or at the end of the employment relationship.  The entitlement to put off paying taxes tends to prolong employee loyalty to the company.

            IRS regulations provide that deferred compensation plans can be included in employees benefits package only when the employer needs an incentive to keep highly qualified employees in the ranks. In fact, in order to postpone tax liability, the company must actually need a “sweetener” to hold on to its highly valued or experienced employees. While there are no precise limits on the number of employees who can be included in a company’s plan, usually only the top five to ten percent of high ranking employees in a company are included.

            What many such employees don’t realize is that deferred compensation plans are very different from 401(k)’s and employee sponsored IRA’s.  How? If the company bankrupts, the company’s creditors usually can get the entire deferred compensation fund.

            Despite the fact that a deferred compensation fund literally is the saved wages of the working employees, the federal laws that protect retirement funds from seizure do not protect most deferred compensation funds. In fact, federal law generally recognizes that deferred compensation funds are an asset of the company until actually paid out to the employees. Of course, the employees are also creditors in any bankruptcy;  they have the right to file a claim to be paid their deferred compensation. But the company’s large creditors usually have far more powerful and secured claims. In a  bankruptcy meltdown, employees are often the last to receive any portion of the company’s assets.

What is a highly paid employee to do?  If company bankruptcy appears likely, an employee can quit and withdraw his money from the plan. But in such cases, the bankruptcy courts later can force the employee to return the money; the court can “recapture” the money  if it appears the employee knew the bankruptcy was coming.                Most importantly, all employees who enjoy deferred compensation , must understand their plan. Every deferred compensation plan is based on a written document—if you have such a plan, get a copy of the plan documents. If your company is struggling, consider whether the sudden departure of the highest employees will just insure the company’s failure. The risks of deferred compensation plans are not avoidable and a full understanding of the plan is the foundation for wise decision-making.

MEDICAL NEGLIGENCE

A Pennsylvania man sued his doctors and hospital for medical malpractice after he suffered what he said was an inexplicable injury during  surgery his doctors performed to correct a condition that rendered the man’s arms cold and paralyzed on an intermittent basis.  The man claimed that he suffered a serious chemical burn to the left side of his shoulder during the surgery. He alleged that this chemical burn caused him to suffer such continuous severe pain that he became dependant on powerful  pain killer drugs.  He also claimed that the chronic pain and drug dependency prevented him from returning to regular work.

            The man was not able to explain how or why he suffered the chemical burn and so he turned to a concept in Pennsylvania negligence law known as “res ipsa loquitur,” to prove his case. Literally translated, “res ipsa loquitur” means “the thing speaks for itself.  The legal concept of res ipsa loquitur is that an injured person can prove  negligence if he has suffered an injury which ordinarily does not occur in the absence of negligence, and no other responsible causes explain the injury. The man claimed that anyone who comes out of surgery with a major chemical burn has to have been treated negligently because no other cause can explain such an injury. He compared his case to a well known Pennsylvania res ipsa loquitur case in which a quadriplegic patient was left alone after a minor surgical procedure and died after falling off the examination table. The courts agreed, in that case, that quadriplegic patients should be supervised following surgery and that they simply can’t fall from an examination table without some negligence having occurred.

            But the man who claimed to be burned lost his case because the experts in the case hotly disputed whether he even had a chemical burn. The man’s expert diagnosed his injury as a chemical burn caused by his lying in a pool of antiseptic solution for an extended period of time during the surgery.  But the expert who testified for the doctor and hospital concluded that the man didn’t suffer any burns at all; instead, he had a serious outbreak of shingles, caused by the herpes virus. The pattern of the blisters and lesions were consistent with the random pattern of a shingles outbreak according to the hospital expert, and not with the “flooding” pattern of a chemical burn.

The court dismissed the man’s claims. Because he was unable to prove that he actually was left lying in a pool of antiseptic during the surgery, he had no direct proof of negligence. And since the hospital’s expert disagreed with the nature of the injury, the court concluded that the man did not have a res ipsa loquitur case.  Negligence is presumed under the res ipsa loquitur theory only where there is no other plausible explanation for the injury.

GUN LAWS

A disgruntled customer who claimed he was sickened by food he ate at a Pennsylvania urban buffet restaurant returned to the restaurant to lodge his complaints. While the customer was trying to explain his concerns, the restaurant manager interrupted the customer and then attended to other patrons. The customer became angry and walked through the restaurant randomly discharging a handgun toward the ceiling. The customer was charged with numerous firearms violations, including carrying a firearm without a license, discharging a firearm into a building and recklessly endangering others.  After his conviction, the customer appealed, artfully arguing that the crime of discharging a firearm into a building can be committed only by persons who shoot into a building from a location outside the building.

            While it did little to reduce his fairly lengthy prison sentence, the customer was successful on the appeal. The Pennsylvania law which forbids discharging a firearm into a building was apparently drafted to criminalize drive-by shootings and it reads that it is a crime to discharge a firearm “into” a building “from any location.”  The Pennsylvania Supreme Court found that all criminal statutes must be strictly and narrowly interpreted.  In a lengthy painstaking analysis, which included an exploration of the dictionary definition of the words “into” and “any,”  the Court concluded that the crime of discharging a firearm into a building only occurs when the shooter is shooting into the building from some location outside the building.

 

Guardians and Health Care Decisions
            In Re D.L.H., 967 A.2d 971 (Pa. Super. 2009).

Deferred Compensation Plan
            See In re IT Group, Inc. 448 F.3d 661 (C.A.3 Del. 2006).
            See also “The Hidden Peril of Deferred Compensation Plans, New York Times, May 1, 2009.

Injured Worker Deserves Job
             See Consol Coal v. WCAB, 971 A.2d 526 (Pa. Cmwlth. 2009), allocatur denied, 973 A.2d  1007 (PA 2009).

Medical Negligence
            McNutt v. Temple University Hospital et al, 932 A.2d 980 (Pa. Super. 2007).

Gun Law
            Commonwealth v. McCoy, 962 A.2d 1160 (PA 2009).