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What is Education Law, and How Does it Affect My Child?

At Pyfer Reese, we understand the value of education for all children. You know your child’s needs and abilities better than anyone.

If you believe that your child’s education is being compromised in an unfair or neglectful way, contact one of our team of experienced education law attorneys – Gabriella H. Farhat, Jeffrey C. Murse, and Gerryanne P. Cauler – to keep you apprised of your child’s or student’s rights; always an advocate for proper education for your child or student. Continue reading

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Differences Between Personal Injury Law and Worker’s Compensation

When a PA worker gets hurt, and pursues his/her rights under the Workers’ Compensation Act, generally speaking, he/she is entitled to two benefits: payment of medical bills and payment of lost earnings.  But when a worker gets hurt on the job and the injury is caused by an outside third party, such as a driver on the road who blows through a red light or a stop sign, then the worker has two potential claims:  a personal injury claim and a workers’ compensation claim.  But there are many differences between the two types of claims that can be essential for choosing one path or both.

Our team at Pyfer, Reese, Straub, Gray & Farhat is highly experienced in representing your personal injury or worker’s compensation cases fiercely and efficiently. We will determine which case is right for your situation and work to provide you with the best possible outcome.

Not All Cases Are Alike

Worker’s compensation cases only apply to those in the workforce. The largest distinguishing difference between worker’s compensation and personal injury cases is that fault is typically irrelevant in order to receive benefits in a worker’s compensation case. The primary proof that needs to be presented in order to receive payment is generally that you were an employee, injured in the course and scope of employment and as a result thereof.

Personal injury cases, on the other hand, are more complicated. These cases provide for an opportunity to gain a recovery for non-economic losses such as pain, suffering, limitations on physical activities of daily living, a focus on how the injuries impacted your life, your lifestyle, your activities, short term or long term.  They also provide for economic losses such as wage loss claims, out-of-pocket payments, or lost earnings.

Some of these cases may settle early, some may not settle at all; if not settled, litigation (a lawsuit) is commenced.  Some proceed to arbitration, others to alternate dispute resolution or to trial.  That process may be time consuming but preparedness and patience to carefully plan and gather documentation relevant to your injuries and situation is key. The attorneys at our Firm will guide you through the process, answer your questions and ease your concern and worries by providing you with a projected timeline; the attorney will walk you through what is involved at every step of the way and make you more at ease.

Where is the Overlap?

Worker’s compensation and personal injury cases actually do have some crossover. These cases can be similar in several ways, including:

·         Injuries involving a defective product

·         Injuries involving a toxic substance

·         Injuries intentionally caused by a coworker or employer

·         Injuries occurring due to the negligence of the third party

While these are areas of overlap and could potentially be pursued under the workers’ compensation Act or a personal injury case, one of the two areas might be better suited for filing the claim; or perhaps pursuing both. Knowing the subtle differences and the interaction between a personal injury case and a worker’s compensation claim could mean the difference between receiving an appropriate recovery from the claim or walking away empty-handed.

The best way to know whether your case should be filed as workman’s compensation or personal injury is to speak with a knowledgeable attorney. Call our team at Pyfer, Reese, Straub, Gray & Farhat if you need more information about worker’s compensation or personal injury representation. Give us a call today at 717-299-7342. We look forward to hearing from you!

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An IRE in Workers’ Compensation

A hot issue for injured workers in Pennsylvania and under the Workers’ Compensation Act has been the “IRE.” The IRE has been in place in PA since 1996.  But the Supreme Court of Pennsylvania declared the entire IRE section of the Act (Section 306(a.2)) unconstitutional on June 20, 2017* and THEN… on October 24, 2018… WAIT. WAIT.

Before we talk about that, let’s talk about what is an IRE anyway? 

IRE stands for Impairment Rating Evaluation.

Under the IRE concept, once an injured worker receives 104 weeks of temporary total disability benefits, and has reached MMI (Maximum Medical Improvement), the workers’ comp insurance company has the right to send the injured worker for an IRE by a doctor. The IRE doctor is selected either by agreement between the parties or by the Bureau of Workers’ Compensation. The doctor examines the injured worker and reviews medical records. Once the doctor does both, he or she then refers to the 6th Edition of the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment. The doctor then comes up with a “Whole Body Impairment” (WBI) rating related to the work injury only. If the IRE results in a WBI rating is less than 35% (this had previously been at 50%), the status of workers’ compensation benefits can be changed from “total” disability to “partial” disability. This change does not affect the weekly compensation rate, but it does affect how long the injured worker can receive the benefits.

In Pennsylvania:

1) There is no limit to how long an injured worker can receive “total” disability benefits; and obviously, this explains why an IRE process and the results are important.

2) But an injured worker can only receive a maximum of 500 weeks of “partial” disability benefits. Therefore, once the status of benefits is changed from “total” to “partial” wage loss (aka indemnity) benefits may be capped at 500 weeks. There is no limit to the length of time an injured worker can receive medical benefits.

If the IRE is requested within 60 days of the expiration of 104 weeks of total disability benefits, the change in status is automatic (the PA workers’ comp insurance carrier only has to file a form called “Notice of Change of Status”). If the request is not made within this 60-day window, the PA workers’ comp insurance company must file, and litigate, a Petition for Modification to have the status changed.

Current Law:

But, as I mentioned earlier, what was ruled unconstitutional on June 20, 2017 became a short-lived victory as of October 24, 2018.  On October 24, 2018, the PA legislature enacted into law Act 111 of 2018, which reestablished the IRE process, now Section 306 (a.3). But, at least for the injured worker in PA, the previous 50% threshold for continuing on total disability was reduced to 35%. Other than that, it would appear the IRE process is back in PA. There is an established presumption of total disability at 35% whole body impairment.

Questions do remain how this new law will impact existing cases. This will require decisions from the appellate courts. If you have IRE situation, or a Petition for Modification has been filed in your case, come see us as soon as possible to discuss your situation. See Gabriella Hashem Farhat, Esquire, or Linda F. Gerencser, Esquire, for legal questions or representation.  Attorney Farhat has been handling and litigating workers’ compensation cases, on behalf of the injured worker/employee for over 30 years, call us at 717.299.7342. And, stay tune for our part 2 blog about this hot topic.

_____________________________

*The case of Protz v. WCAB (Derry Area School District) effectively ended the entire IRE process in PA at the time.  The Court found that the IRE provision within the Act was unconstitutional because the impairment rating was to be determined by the latest version of the AMA Guide to Disability.  The Court believed this was an impermissible delegation of power. The case was sent back (remanded) to the Workers’ Compensation Judge (WCJ), to perform the IRE using the 4th edition (the edition which existed when the IRE provision was added to the Act).
The Pa. Supreme Court then decided the Commonwealth Court was correct only “in part.” Although the delegation power was unconstitutional, the Act does not mention use of the 4th Edition of the AMA Guides and so, a Court cannot rewrite a law; and without the use of the AMA Guides, the entire IRE provision must be struck. [But see “Current Law,” as of October 24, 2018].
~Gabriella Hashem Farhat, Esquire
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What You Should Know

1. We have evening and weekend appointments, upon request

2. We have one main office and 3 satellite offices to serve you: Lancaster, Willow Street, York and Ephrata

3. We make house calls when necessary

4. We are a General Practice Law Firm

5. We handle Personal Injury, Workers’ Compensation, Domestic, Criminal, General Civil, Wills and Estates, Social Security, Education Law, Veterans’ Work, Medical Marijuana Issues.

Call us for all your legal needs.

Pyfer Reese Straub Gray & Farhat PC

Lancaster

128 North Lime Street

Lancaster, PA 17602

717.299.7342

Willow Street

2801 Willow Street Pike

Willow Street, PA 17584

717.464.5900

York

2550 Kingston Road

Suite 310

York, PA 17402

717.650.6707

Ephrata

115 South State Street

Ephrata, PA 17522

717.733.7997

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How Does Your School Determine if Your Child Needs Accommodations?

The school will assemble a team to perform a “big picture” evaluation of the child.  The team must look at any and all areas of the child that would relate to the suspected disability.  These areas may include: 1) health 2) social skills and emotional status 3) general intelligence 4) academic performance 5) communication needs and 6) motor skills. The evaluation must be thorough enough to identify all of the child’s requirements.

Other sources of information the team must review include teacher recommendations, the child’s social or cultural background, the child’s self-help skills, and any other information that helps the team make an accurate decision about whether the child has a disability and needs special services, and what those services should include. The evaluation should take into account all the reasons why a child might be struggling in school.

Once the evaluation is complete, the team must make a two part decision.  First, does the child have a disability that affects his/her ability to learn?  If “yes,” the team must then move to the second part of the analysis: whether the child needs special education services and support as a result of that disability. The child must meet both criteria to be eligible for special education. 

Did you know that children with no learning disability may be entitled to accommodations by the school?  A child with a disability who does not need “specially designed instruction” may still need supports or accommodations in the school setting. That child may be eligible for these supports under a law, Section 504 of the Rehabilitation Act of 1973. A child who has a physical or mental disability that “substantially limits” a major life function (like learning, thinking, walking, breathing, seeing, or hearing) may qualify for reasonable accommodations or other support services in the regular classroom.

It is important to know all of your rights as a parent and all the rights of your child.  An education attorney can help you make sure the school is providing everything that you and your child are entitled to under the law.  Please call our office at 717.299.7342 and speak with Attorney Gerryanne Cauler to discuss your rights and the rights of your child.

~Gerryanne P. Cauler, Esquire

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Pennsylvania Passes Driver’s License Suspension Reform

On April 22, 2019, a new law affecting driver’s license suspensions will go into effect.  The new law removes mandatory PennDOT-imposed license suspensions for those convicted of certain crimes and for those who fail to pay child support.  On October 24, 2018, Governor Wolf signed into law House Bill 163 which removes drivers’ license suspensions as a penalty for many non-violent offenses that are not connected to driving.  Proponents of the Bill argued that license suspensions had a negative impact on defendants long after they had completed their sentence.  Many Pennsylvanians faced license suspension from PennDOT after being convicted of drug offenses, underage drinking, or failing to pay child support.  The suspensions hindered those trying to find employment or those traveling to and from work, driving to various appointments  or the ability to utilize support-based services that offer help for those trying to better their lives.  

House Bill 163 does not remove a mandatory license suspension for crimes where someone is operating a vehicle, such as DUI.  The Bill removes a license suspension for the following:  drug offenses, purchase of tobacco by a minor, underage drinking, misrepresentation of age to buy alcohol, carrying a false ID card, and failing to pay child support.  

It is important to note that House Bill 163 is not retroactive, meaning that if you are convicted of the affected offenses before April 22, 2019, PennDOT will still suspend your driving privilege.  

What this means for you:  If you have a current charge of possession of drugs, underage drinking, or facing a suspension for failing to pay child support, contact us to discuss how you may be able to take advantage of this new law. Call 717.299.7342 to schedule a consultation with Attorney Heather Adams.

~Heather L. Adams, Esquire

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Pyfer Reese Is Now Open In Ephrata

Attorney K. L. Shirk, III, is a longstanding, highly respected member of the Ephrata Community. He is an experienced attorney whose practice focuses primarily on Business, Zoning and Estates.  He has now affiliated with the Lancaster Firm of Pyfer Reese Straub Gray & Farhat (“Pyfer Reese”).  Pyfer Reese is a General Practice Firm with 11 experienced attorneys.  Pyfer Reese has Offices in Downtown Lancaster, Willow Street, York and now Ephrata, at 115 South State Street.

Pyfer Reese has attorneys with extensive experience in the areas of Personal Injury, Family Law, Workmen’s Compensation, Social Security, Wills and Estate Planning, Educational Law, and Criminal Defense.  Pyfer Reese is a unique Firm in that their practice uses a team approach to help serve their clients.

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Grandparents Have Rights Too, Don’t They?

This year saw two important changes in the law for non-parents seeking custody of a child.  The law was changed to allow anyone to seek any form of legal or physical custody of a child as long as they can show the court that they are willing to assume responsibility for the child and have a sustained, substantial and sincere interest in the welfare of the child.  23 Pa.C.S.A. §5324. However, this only applies when neither parent has custody or control of the child. The exception to this broad rule is when a dependency action is pending in juvenile court or the child has found to be a dependent child in juvenile court. The act is retroactive, meaning it applies to cases that started even before the act went into effect in July 2018.  Now, any individual who is willing to be responsible for the child and who has an interest in that child’s welfare can seek legal and physical custody.  The court will examine the nature, quality and extent of the involvement by the individual in the child’s life in determining if they have an interest in the child’s welfare.  Prior to the change, an individual had to be a parent, grandparent, great-grandparent or be acting as a parent (in loco parentis) to seek full legal and physical custody.  

In addition, the new laws gave additional rights to grandparents and great-grandparents to pursue partial or supervised physical custody of the child.  A grandparent or great-grand parent can seek partial or supervised visitation where at least one parent consents to their relationship with the child, the parents have a custody case pending and the parents cannot agree as to whether the grandparent should have a role in the child’s life.  It is important to note that if neither parent wants the grandparent to participate in the child’s life, the grandparent does not possess these additional rights under 23 Pa.C.S.A. §5325 and must proceed under the first statute 23 Pa.C.S.A. §5324, to seek custodial rights.

The law was changed to expand the rights of grandparents and third parties following the Pennsylvania Supreme Court’s decision in D.P. v. G.J.P., 146 A3d 204 (Pa. 2016).  D.P. severely limited a grandparent’s rights to seek custody by requiring that a divorce action be pending between the parents in order for a grandparent to seek partial or supervised visitation under 23 Pa.C.S.A. §5325.  This effectively prevented grandparents from seeking custody of a child unless they were the grandparent to the child of a deceased parent, the parents were going through a divorce or the individual had acted as a parent to the child.  

The new law is designed to expand custodial options for children.  The court will have more options to choose from in determining the best interests of the child.  Children across the state will benefit from being with the best caretaker possible.  Our legislature has stated the statute is necessary, in part, because of the opioid crises in our state.  Through the rise of addiction and overdoses many children in our state are being robbed of their parents, requiring other adults to step in and care for the children. 

If you are interested in seeking custody of a child and you are not the parent of that child, it will be critical for you to obtain legal counsel to ensure that you proceed under the appropriate law to exercise your rights.  Pyfer Reese Straub Gray & Farhat have several talented and experienced custody attorneys who will assist you in exercising your rights.

~Gerryanne P. Cauler, Esquire
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50/50 Custody and Your Child Support Obligation

There appears to be a common understanding among participants in custody litigation that the parent having primary custody—that is, the majority of overnights with a child—will be eligible to pursue child support on behalf of the child.  That understanding is generally correct.  Many of those same participants believe that the eligibility of the primary custodial parent to pursue child support ends if the parties equally share physical custody of their child.  That understanding is not always correct.  Here is what you should know:  

In the case of one parent having primary custody of a child, the child support guidelines in Pennsylvania have been established to consider that the child spends 30% of overnights annually with the partial custodial parent.  In other words, the guidelines assume that the partial custodial parent has expenditures for the child while the child is in his/her custody, and the guideline amounts have been adjusted to consider those expenditures.  This is true even if the child spends less than 30% of the overnights—or no overnights—with the partial custodial parent.

If the number of overnights with the partial custodial parent reaches 40% during the year, a presumption arises that the partial custodial parent is entitled to a reduction in child support.  In general terms, the reduction will be 10% of the support amount, with that reduction “increasing incrementally to a 20% reduction at 50% parenting time.”  See Pa.R.C.P. 1910.16-1.  

In a situation in which parents equally share physical custody (i.e., 50/50) of a child, it is important to know that the guidelines may permit the entry of a support obligation depending on the income of the parties and the child-related expenses paid by either party.  For example, a support obligation may be entered against the parent with higher income by applying a 20% reduction as discussed above, with care taken to ensure the support obligation does not result in the parent receiving support having a larger share of the combined income.  Further, a support obligation may be entered against a parent with similar income or lower income level to cover child care costs, health insurance premiums, private school tuition, and unreimbursed medical expenses.  

The formula for calculating child support can be found in Pa.R.C.P. 1910-16-4, but often times the support guidelines can be complex and nuanced.  If you have questions regarding child support matters, please contact us at 717.299.7342 to meet with one of our Family Law Attorneys.        

~Jeffrey C. Murse, Esquire      

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