News

Warrantless search not justified when to delay it would not have put anyone at risk!

The exception to the warrant requirement for domestic violence calls does not apply once the victim is no longer at risk. In those circumstances, the police must get a warrant.i

Police in Franklin County responded to a domestic violence call. When they arrived, the victim told them that her boyfriend fled during an argument that she feared would turn violent. She reported that her gun and ammunition were missing, along with a few other items. Police knew that he was a felon, and therefore, could not legally possess a gun. They also thought that he was headed for a house in Chambersburg.ii Continue reading

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DOUBLE JEOPARDY AND COMPULSORY JOINDER RULES

Supreme Court of Pennsylvania: The Commonwealth may not prosecute other crimes after disposition of related summary charges.

Once the courts dispose of summary offenses, police cannot go forward on other charges from the same criminal episode. The Pennsylvania legislature’s double jeopardy and compulsory joinder rules stop the Commonwealth from prosecuting misdemeanor and felony charges after a verdict on related summary offenses.

In Philadelphia, police charged a man with driving without his lights on and three counts of driving under the influence. The Municipal Court found him guilty of driving without his lights. He, later, moved to dismiss his DUI charges because they were barred by the Pennsylvania double jeopardy rules. The trial court agreed and dismissed the charges. Commonwealth v. Perfetto, ___ A.3d ___, 7 EAP 2018 at pp. 4-6 (Pa. 2019). Continue reading

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THE POLICE WANT TO TALK TO ME: SHOULD I GET A LAWYER?

The short answer is YES. The dangers involved in speaking to police are substantial, and seeking a lawyer’s advice before you talk to them is the best way to protect yourself.

You have the absolute right to not talk to the police. The Fifth Amendment and its Pennsylvania counterpart—Article 1, Section 9, of the Pennsylvania Constitution—provides everyone the right not to be a witness against him/herself. In simple terms, you have the right to not answer an officer’s questions.

Police may ask you to do things or provide documents, which you may have to do in some situations. For example, during a traffic stop, you must produce your insurance card on demand. You might have to do field sobriety tests for an officer. But they cannot force you, for example, to tell them where you came from or where you are going. Continue reading

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DISCRIMINATION AGAINST THE LGBTQ COMMUNITY

In August of 2018, the Pennsylvania Human Relations Commission released a new Guidance Guideline regarding Sex Discrimination.  The Guideline included sexual orientation, gender identity, gender expression, gender transition, and transgender identity.  A resident in Pennsylvania can file a Complaint with the Commission if he or she believes that he/she has been discriminated against in education, employment, housing and public accommodation. Continue reading

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REQUEST FOR RECONSIDERATION

For more than 20 years, the procedure in a Social Security case in Pennsylvania was for a disabled individual to file an application, have the case decided by the Bureau of Disability Determination, and if the case was denied, file a request for a hearing before a Judge. If the individual filed the Request for Hearing within 60 days after the denial, the individual had the right to have the case decided by an Administrative Law Judge after a hearing.

The Social Security Administrative Law Judge would hold a hearing, listen to the individual’s testimony about his/her medical conditions, review the medical evidence, and make a decision about the disability case. The Judge would issue a favorable decision or deny the claim (unfavorable decision). According to recent a recent government report, based on nationwide data, an Administrative Law Judge would award benefits about 53% of the time after a hearing. Continue reading

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INHERITING 401(k), IRA OR OTHER TAX DEFERRED ACCOUNT FROM A PARENT OR SPOUSE

In the event you inherit a tax deferred Account from a parent or spouse, do not liquidate or transfer the Account until you seek qualified advice regarding the transfer of the Account.  The IRS has specific rules that must be followed regarding tax deferred Accounts.  Liquidating or transferring an inherited Account without qualified advice may cause you to lose tax benefits and could cause the entire distribution to be treated as taxable income to you.

If your parent or spouse did not withdraw the full required minimum distribution (RMD) from his or her IRA in the year of passing, then you will need to withdraw the remaining RMD before December 31 of that year. Continue reading

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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.

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*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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