disability - Title II - claim denied

Truett v. Barnhart - ED Pa. - November 23, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1433P.pdf

Claim for Title II benefits denied.

treating physician opinion - The TP's opinion was rejected, because it was substantially inconsistent with the claimant's own description of her activities of daily living (ADL).
consultative physician opinion - The ALJ's acceptance and rejection of various portions of the CP's opinion was upheld. The court found (without any great discussion) that this was supported by substantial evidence.

no duty to seek clarification from treating physician - The court said that there was adequate evidence on which the ALJ could base his opinion about disability and thus no duty on the part of the ALJ to seek additional or clarifying information from the treating physician. That is only required, under 20 CFR 404.1512, when the information is "inadequate" and the ALJ "cannot reach a conclusion" about whether the applicant is disabled. The existence of conflicting evidence does not, ipso facto, mean that the evidence is inadequate. "Nothing here indicates that the record lacked enough data for the ALJ to make a sound determination."

no severe impairment of right arm or left knee -- The court upheld this finding, since there was "no clinical evidence" to support a finding of a "severe impairment" and substantial evidence to support the ALJ's finding.

Donald Marritz
MidPenn Legal Services

UC - willful misconduct - drugs - substantial evidence

Ruiz v. UCBR - Commonwealth Court - November 30, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/882CD05_11-30-05.pdf

The referee held that employer (ER) failed to prove that the claimant (CL) had and used drugs on the ER's property. The Board reversed and the court affirmed, holding that the employer (ER) adequately proved claimant's (CL) violation of rule (use of drugs at work) by circumstantial evidence, which was held to be substantial evidence, given the following facts.

The ER witnesses testified that on September 29th, they saw the CL move his car during a break and saw smoke coming out of the car, "as well as the pungent smell of burning marijuana," then "saw something 'flicked out of the passenger's side window.'" One ER witness "retrieved a smoldering butt of a marijuana cigarette from the ground outside the car window." The butt was "entrusted" to the ER's CEO, Abby Hoffman, but was never tested. The ER did not ask the CL to submit to a drug test because they thought it was not necessary, having seen CL smoking and having the butt in their possession. The CL had his own doctor do a drug test on December 11th; the result was negative for drugs. CL did not deny smoking marijuana. The union rep "signed off" on the CL's termination notice. The ER did not bring the marijuana cigarette to the hearing because the notice of hearing "contained a warning not to bring drugs or alcohol onto the premises. The notice did not provide an exception for evidence to be presented." CL's drug test was admitted, but only to show his state of mind and establish that he tried to take a drug test to show he wasn’t smoking marijuana.

The court held that "[c]ircumstantial evidence, if substantial, is sufficient to support and finding of willful misconduct" and that in this case, the "direct and circumstantial evidence was sufficient to support the Board's finding that" CL had and used illegal drugs on company property, in violation of ER rules. "Claimant's arguments, which essentially highlight conflicts between his version of the events and what was recounted by his supervisors, are nothing more than challenges to the Board's determination of credibility and weight of the evidence. We decline Claimant's invitation to reweigh the evidence and accept his version of the facts."

The court also rejected a Harkness challenge, based on the fact that the ER was represented at the hearing by a non-attorney advocate. The CL did not object to this at the hearing and didn't raise the issue until he filed his petition for review in court.

Donald Marritz
MidPenn Legal Services

employment - age discrim. - statute of limitations - equitable tolling

Uber v. Slippery Rock University - Commonwealth Court - November 23, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/269CD05_11-23-05.pdf

Appellant, a police officer at a university, applied for but was denied a higher position in March 1998. He filed an internal grievance, which was denied in October 1998. In May 1999, he filed a complaint with the Pa. Human Relations Commission, which after investigation dismissed the case in December 1999. In January 2000, he filed a complaint with the EEOC and cross-filed with the PHRC, which closed the investigation in January 2001, after finding no violations. Appellant then filed a complaint in a court of common pleas alleging age discrimination and retaliation under the PHRA, 43 P.S. 955(a) and (d).

The trial court's dismissal of the age discrimination complaint was upheld on appeal. Appellant's complaint with the PHRC was not filed within 180 days of the alleged act of discrimination, as required by the PHRC. His complaint was not subject to equitable tolling by his filing an internal complaint with the university, because: a) he was not actively misled by the defendant; b) there were no extraordinary circumstances that prevented him from asserting his right; c) he did not present his claims in a timely manner but in the wrong forum. An internal complaint with an employer is not what the legislature intended as a substitute for filing a complaint with the PHRC.

On the retaliation claim, appellant failed to show an adverse employment action. A 1999 performance evaluation -- and not his not being hired for the job -- was the only issue before the trial court and the only one preserved for appeal.

Donald Marritz
MidPenn Legal Services

SSI- child - medical evaluation, 42 USC 1382c (a)(3)(I)

Drake v. Barnhart

http://www.paed.uscourts.gov/documents/opinions/05D1393P.pdf

SSI claim of child with deafness in one ear and learning disabilities denied.

- The necessity for accommodations at school does not mean that a child has "marked" limitations.

- Treating physicians's opinion not given controlling weight because not supported by diagnostic testing.

- Failure to obtain medical evaluation - Section 1382c(a)(3)(I) of title 42 satisfied, under Acquiesence Ruling 04-01(9), when state agencvy consultant evaluates the case. The statute requires "an evaluation of each child's case, but nowhere does it mention a hearing-level analysis." The SSA Commissioner's interpretation of the statute "represents a reasonable contruction" under Chevron, 467 U.S. 837, 842-4 91984). "'State agency... psychological consultants...are highly qualified....experts in Social Security disability evaluation,'" and the psychologist in this case "based his assessment on a full review of Plaintiff's medical and scholastic records."

Donald Marritz
MidPenn Legal Services

SSI - child - obesity - sleep apnea

Williams v. Barnhart - ED Pa. - November 21, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1414P.pdf

Claim for benefits denied for 17 y/o child with obstructive sleep apnea and obesity. Child had never been hospitalized and had received medical treatment "only for minor conditions such as allergies and dermatitis." Child's IQ scores were all in the mid-70s range, which is above the disability listing level. Opinion by an MSN not given controlling weight, because not issued by an "acceptable medical source" under 20 CFR 416,.913(a) (licensed physician, licensed/certified psychologisits, licensed optomentrists, licensed podiatrists, qualified speech-language pathologists."

Donald Marritz, staff attorney
MidPenn Legal Services

admin. law - right to stenographic record - 2 Pa. C.S. 504

Mason v. Dept. of Corrections

http://www.courts.state.pa.us/OpPosting/CWealth/out/467CD05_11-21-05.pdf

The substance of this case -- a claim by the DOC that a prisoner should pay for medical treatment given to him, under the Prison Medical Services Act, 61 P.S. 1013 -- is not within our practice.

However, there is an important procedural issue. The DOC held an assessment hearing in the case and entered an order directing the prisoner to pay DOC more than $77,000. However, the testimony at the hearing was not stenographically or electronically recorded. The prisoner appealed, claiming a due process violation by denying him a stenographer at the hearing, a right guaranteed under the Administrative Agency Law, 2 Pa. C.S. sec. 504, which states that "[a]ll testimony shall be stenographically record and a full and complete record shall be kept of the proceedings."

The court held that a failure to make a full and complete record "render[ed] the adjudication invalid," citing Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996) and Callahan v. State Police, 431 A.1d 946 (Pa. 1981). The case was "remanded for a hearing in accordance with the provisions" of the Administration Agency Law.

Donald Marritz
MidPenn Legal Services

employment - disability discrimination - ADA, PHRA, FMLA, IIED

Kaniuka v. Good Shepherd Home -- ED Pa - November 3, 2005

http://www.paed.uscourts.gov/documents/opinions/05d1358p.pdf


Plaintiff was terminated from her job when she accidentally mixed up her medications, resulting in her being hospitalized and missing work. The employer said she was fired for a) sleeping at work, b) intentionally taking meds not prescribed to her; c) "mental health reasons", and d) "being out on leave."

Plaintiff sued her employer under the ADA, PHRA, FMLA and state common law. The employer moved to dismiss several claims. The court said that a plaintiff need not plead every material fact to survive motion to dismiss, only facts that, in addition to inferences drawn from them, provide a basis for recovery. Claims should not be dismissed unless there it is beyond doubt that the plaintiff can prove no set of facts that would entitled her to relief.

retaliation claims under ADA, 29 USC 12201 et seq., and PHRA, 43 P.S. 951 et seq.
A prima face retaliation claim requires a plaintiff to show a) she engaged in a protected activity, b) the ER took adverse action at the time of or after such activity, and c) there is a causal connection between the two. "Protected activity" includes asking for working conditions that accommodate a disability, or filing a claim for disability discrimination. Taken as a whole, P's complaint here alleges sufficient facts to show that the ER took adverse action against her after she made an accommodation request.

PHRA "aiding and abetting" claim against supervisors
The PHRA generally does not apply against individuals, only employers. However, sec. 955(e) prohibits any person from aid or abetting unlawful discriminatory acts under the PHRA. The allegations and inferences of the complaint sufficiently allege potential supervisor liability to withstand summary judgment.

Family and Medical Leave Act, 29 USC 2610 et seq.
Complaint properly alleged the plaintiff was "employee" and defendant an "employer" under the FMLA

intentional infliction of emotional distress under Pa. common law
Tort claims against employers generally are barred by the Worker's Compensation Law, unless they involve intentionally tortious conduct. However, the plaintiff in such a case must show that the alleged action was taken for purely personal reasons, unrelated to the employment relationship. She did not do so in this case, so that claim was dismissed.

Donald Marritz
MidPenn Legal Services

employment - age discrimination - ADEA and PHRA

Kasali v. J.P. Norgan/Chase Manhattan Mortage Corp. - ED Pa. November 7, 2005

http://www.paed.uscourts.gov/documents/opinions/05D1363P.pdf

Pa. Human Relations Act- 43 PS 51 et seq.
Plaintiff's age discrimination claim under the Pa. Human Relations Act dismissed because of untimely filing -- not w/in 180 days of alleged discriminatory act. P did filed Age Discrimination in Employment (ADEA), 29 USC 621 et seq., claim w/in required 300 days but did not clear and unambiguously ask for dual-filing of PHRA claim, so equitable tolling denied.

Age Discrimination in Employment Act - 29 USC 621 et seq.
Plaintiff established the "not onerous" burden of showing a prima facie age discrimination claim -- over 40, applied and rejected for job for which she was miniminally qualified, in favor of a person younger enough to permit inference of age discrimination. The employer's proferred non-discrminatory reasons were sufficiently countered by Plaintiff's allegations that those reasons were pretextual, so as to raise genuine issue of material fact and survive ER's motion for summary judgment.

Plaintiff's retaliation claim under the ADEA was rejected, since she did not establish a prima facie case -- i.e., retaliatory conduct which affected compensation, terms, conditions or privileges of employment.

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of November 19, 2005

Here is the link to the Pennsylvania Bulletin of November 19, 2005

http://www.pabulletin.com/secure/data/vol35/35-47/index.html

Of possible interest --

- recent statutes
http://www.pabulletin.com/secure/data/vol35/35-47/2114.html

- minor court rules - "incompatible practices" - tech.
amendments
http://www.pabulletin.com/secure/data/vol35/35-47/2116.html

- court rules - misc. amendments - publication on internet
required
http://www.pabulletin.com/secure/data/vol35/35-47/2117.html

- insurance - financial statement filing requirements for 2006
for insurance companies
http://www.pabulletin.com/secure/data/vol35/35-47/2144.html

Donald Marritz
MidPenn Legal Services

Education Law - Burden of Persuasion in IDEA Due Process Hearings

The United States Supreme Court has held, in SCHAFFER V. WEAST (04-698), decided on November 14, 2005, that the burden of persuasion in in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district.

To ensure disabled children a "free appropriate public education," 20 U.S.C.A. §1400(d)(1)(A), the Individuals with Disabilities Education Act (IDEA or Act) requires school districts to create an "individualized education program" (IEP) for each disabled child, §1414(d), and authorizes parents challenging their child’s IEP to request an "impartial due process hearing," §1415(f), but does not specify which party bears the burden of persuasion at that hearing.

After an IDEA hearing initiated by petitioners, the Administrative Law Judge held that they bore the burden of persuasion and ruled in favor of respondents. The District Court reversed, concluding that the burden of persuasion is on the school district. The Fourth Circuit reversed the District Court, concluding that petitioners had offered no persuasive reason to depart from the normal rule of allocating the burden to the party seeking relief.

In an opinion by Justice O'Conner the Court found:

(a) Because IDEA is silent on the allocation of the burden of persuasion, this Court begins with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding–as petitioners urge the Court to do here–are extremely rare. Absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.

(b) Petitioners’ arguments for departing from the ordinary default rule are rejected. Petitioners’ assertion that putting the burden of persuasion on school districts will help ensure that children receive a free appropriate public education is unavailing. Assigning the burden to schools might encourage them to put more resources into preparing IEPs and presenting their evidence, but IDEA is silent about whether marginal dollars should be allocated to litigation and administrative expenditures or to educational services.

There is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended the Act to reduce its administrative and litigation-related costs. The Act also does not support petitioners’ conclusion, in effect, that every IEP should be assumed to be invalid until the school district demonstrates that it is not. Petitioners’ most plausible argument–that ordinary fairness requires that a litigant not have the burden of establishing facts peculiarly within the knowledge of his adversary, United States v. New York, N. H. & H. R. Co., 355 U.S. 253, 256, n. 5–fails because IDEA gives parents a number of procedural protections that ensure that they are not left without a realistic chance to access evidence or without an expert to match the government.

Stevens, J., filed a concurring opinion. Ginsburg, J., and Breyer, J., filed dissenting opinions. Roberts, C. J., took no part in the consideration or decision of the case.

The Court's decision is available from the Legal Information Institute at Cornell Law School at: http://straylight.law.cornell.edu/supct/html/04-698.ZS.html.

custody - modification - UCCJEA

Wagner v. Wagner - Pa. Superior Court - November 7, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a31002_05.pdf

Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,

The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.

The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.

Donald Marritz
MidPenn Legal Services

physician-patient privilege - blacken the character

Grimminger v. Maitra - Pa. Superior Court - November 4, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s47039_05.pdf

Held, doctor did not breach common law or statutory duty when he released medical information about a patient to the patient's employer. The doctor had previously sent info to the employer concerning plaintiff's work limitations. Two years later, the employer came to the doctor, showed him a video of plaintiff and asked for the doctor's opinion about plaintiff's work restrictions. The employer offered a new opinion and the employer subsequently fired the plaintiff.

Pennsylvania recognizes a civil cause of action for breach of the physician-patient privilege where "confidential disclosures occurred that were unrelated to any judicial proceedings." Haddad v. Gopal, 787 A.2d 975, 981 (Pa. Super. 2001). This the rule in the majority of jurisdictions. There is also statute, 42 Pa. CS sec. 5929, which prohibits the release of information in a civil matter where that information "shall tend to blacken the character of the patient," unless the patient has consented to the release. Pa. law also recognizes a distinction between information communicated by the patient and information which the doctor gets by examination and observation.

The court's response to each of the plaintiff's arguments was that the information released did not tend to black the patient's character.

Donald Marritz
MidPenn Legal Services

continuances - exercise/abuse of discretion

Gillespie v. Penn DOT - Commonwealth Court - November 2, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/546CD05_11-2-05.pdf

Held, the trial court erred by refusing to exercise its discretion to consider a request for a continuance based solely on a standing policy that all parties must agree to a continuance.

"Blind adherence" to an establishing policy is the opposite of the required exercise of discretion, which is an informed decision between multiple courses of action. Instead, the court "essentially delegated its decision-making function to the attorneys....We can think of no clearer example of an abuse of discretion than abdication of the judge's role to an interested party. The trial court's continuance policy....is manifestly unreasonable." It was an abuse of discretionto blindly apply the policy and refuse to consider the merits of the moving party's request.

Donald Marritz
MidPenn Legal Services

attorney-client privilege - former client

In re Investigating Grand Jury -- Pa. Superior Court - November 1, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/a25019_05.pdf

In a case said to be of first impression, a criminal defendant's conversation with his former counsel was held to be privileged, even after the representation had ended. The conversation related to the attorney's former representation (about which the defendant was complaining) and was about the case. The court felt that it was likely that the former client "believe[d] that because of their prior relationship, confidentiality remained between them," even though the "conversation did not involved a client seeking legal advice from his lawyer."

Donald Marritz, staff attorney
MidPenn Legal Services

employment - discrimination - PHRA - "employment agency"

Nethken v. Pa. Civil Service Commission - Commonwealth Court - November 1, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/1064CD05_11-1-05.pdf

The Pa. Civil Services Commission is an "employment agency" under the Pa. Human Relations Act, 43 PS sec. 951 et seq., and can be liable for age discrimination.

Plaintiff stated prima facie case of age discrimination when she was not put on a list of eligibles solely because she graduated from college in 1974, when job posting called for recent grad (1999). Lower court judgment on liability upheld.

D. Marritz
MidPenn Legal Services

HIPAA - HHS privacy rules valid - 3d Cir.

Citizens for Health, et al. v. Leavitt, Secy. of HHS - 3d Cir. - October 3, 2005

http://www.ca3.uscourts.gov/opinarch/042550p.pdf

HHS privacy rules under HIPAA upheld against challenges under Administrative Procedure Act and 1st & 5th Amendments.