Bus Injuries

Jerk and Jolt – Bus Injuries in Pennsylvania

A woman who boarded a bus, walked down the aisle toward a seat and fell when the bus accelerated suddenly claimed that she was entitled to the benefit of the “jerk and jolt doctrine,” and should be compensated by the bus company for her back and neck injuries. On appeal, the Pennsylvania Commonwealth Court disagreed. Martin v. SEPTA, 52 A.3d 385 (Pa. Super. 2012).

Passengers injured in public transit must prove negligence in order to recover for damages for any injuries they suffer. An exception to the requirement that a passenger prove negligence by the driver or company is the “jerk and jolt” doctrine. That doctrine provides that a bus passenger can recover damages by simply proving that a jerk or jolt of the bus occurred that was so “unusual or extraordinary as to be beyond a passenger’s reasonable anticipation” or that the jerk and jolt “had an extraordinarily disturbing effect on other passengers.”

In the case involving the woman who fell in the bus aisle, the appellate Court noted that she failed to prove negligence and also failed to qualify under the jerk and jolt doctrine. No other passengers testified at trial, and no evidence was introduced that any passengers other than the injured woman were affected at all by the acceleration of the bus. The mere fact that the woman lost her balance and fell, without any other evidence, was insufficient to meet the jerk and jolt doctrine.

Bus passengers can’t observe the driver, the traffic and all the circumstances that can cause sudden movements of a bus. An injured bus passenger who is not able to prove negligence has a limited opportunity to recover damages if other passengers are “extraordinarily” disturbed by a jerk or jolt of the bus, or if the injured passenger can show that the movement was “beyond reasonable expectation.”

Worker’s Compensation & Narcotic Pain Medication

Worker’s Compensation & Narcotic Pain Medication

A Pennsylvania appellate court made the unusual announcement that it was constrained to deny an injured worker prescription narcotic painkillers, despite “profound sympathy” for the worker’s circumstances. Bedford Somerset MHMR v. WCAB, 51 A.23d 267 (Pa. Cmwlth. 2012), appeal denied, 57 A.3d 72 (PA 2012).

The worker was employed by a mental health agency and was injured at work. The injury caused her to suffer back problems that led to several surgeries and chronically worsening spinal deterioration and accompanying pain. After years of treatment, the worker’s physician prescribed narcotic lozenges for “breakthrough pain.” The particular lozenges prescribed by the worker’s physician carry a package insert indicating that the lozenges are only approved by the FDA for pain associated with cancer or AIDS, due to the highly addictive nature of the narcotic drug.

After protracted review and hearing procedures, the case was appealed. The Pennsylvania Commonwealth Court held that all worker’s compensation benefits payments must be for reasonable and necessary treatment only. Because the lozenges were not approved for the purpose the worker’s doctor had prescribed them for, the employer’s insurance company was not responsible to pay for them.

Injured workers do have the right to explore alternative treatment or secure medical treatment that is not “reasonable and necessary” in the eyes of the worker’s compensation courts. But if they do so, they must do so at their own expense, or through another benefit or insurance plan.

Unemployment Compensation & Absenteeism

Unemployment Compensation & Absenteeism

A Pennsylvania employee who missed work because he was bumped from an over-booked air flight was denied unemployment compensation when his employer convinced a Pennsylvania appellate court that the employee had engaged in willful misconduct. Grand Sport Auto v. UCBR, 55 A.3d 186 (Pa. Cmwlth. 2012).

The employee worked for an auto-body company, cleaning cars. Over a six month period of time, the employee was tardy or absent without an excuse 19 times. The employer gave the employee written warnings for all the infractions. Nevertheless, the employer agreed that the employee could take vacation time to fly to Mexico to get married there. When the airline bumped the employee from his return flight, the employee called the employer from the airport and explained his dilemma, advising that he was “stuck in Mexico.” It was undisputed that the employee was unexpectedly bumped from his flight and that he returned to work as quickly as possible, missing only two days of work.

The employer fired the employee, due to his history of poor attendance and tardy arrivals. At the hearing on the employee’s unemployment claim, the employer’s management team testified that the employee had been warned multiple times and had been fired once for tardiness, then re-hired. Management team members had given the employee a later start time in the morning and had offered to call him to wake him up on work days. They testified that the decision to fire him again was made while the employee was away on his Mexico wedding trip.

The employee’s testimony eroded his claim. Announcing under oath, “Let’s be real,” the employee observed “Who’s not late more than twice in one month due to this, that or the other thing?” The hearing officer granted the employee unemployment benefits, reluctantly concluding that excessive absenteeism and tardiness are grounds for discharge, but do not constitute “willful misconduct,” the standard necessary to support a denial of unemployment benefits.

The employer appealed, and won. The Pennsylvania Commonwealth Court bluntly observed that employers have the right to expect that employees will attend work as scheduled, that they will arrive on time and that they will not leave early without permission. The Court described habitual tardiness as “inimical to an employer’s interest,” and held that a history of absenteeism or tardiness does constitute willful misconduct that will bar unemployment benefits for employees who are terminated as a result of that misconduct.

Employees who miss work or arrive late as a result of health problems should always document those events with medical records. Employers who expect to avoid unemployment claims should keep clear records of their employees’ time at work and must issue written warnings for absenteeism or tardiness.

 

Responsibility For Auto Accidents

Responsibility For Auto Accidents

A Pennsylvania man who didn’t even consider himself involved in an accident was sentenced to three years in jail as a result of his conduct.Commonwealth v. Lowry, 55 A.3d 743 (Pa. Super. 2012), appeal denied, 63 A.3d 1245 (PA 2013).

Witnesses reported that the man drove his car out of a gas station at a high rate of speed, with spinning, smoking tires. Making a left turn as he exited the gas station, the man crossed two lanes of oncoming rush-hour traffic to enter the highway. Two of the oncoming drivers fish-tailed after suddenly braking to avoid the man’s car; their cars spun out of control and struck a car traveling in the opposite direction. One driver died as a result of the collisions. At trial several witnesses described the chaos; all the witnesses testified to sudden and reckless driving by the defendant driver of the car that sped out of the gas station and crossed the highway.

The man appealed from his jury trial conviction for the crime commonly known as “hit and run.” More formally titled “Accidents Involving Death or Personal Injury,” the crime of hit and run occurs when any driver of any vehicle “involved” in an accident resulting in death or personal injury leaves the scene. Drivers are legally obliged to stay at the scene of such an accident, render aid if they are able, and share personal identity and insurance information. Pennsylvania law recognizes that circumstances sometimes don’t permit a driver to stop immediately at the scene, particularly on major highways. The statute requires drivers to stop “as close to” the accident scene as possible, or to “forthwith return” and remain at the scene. Only accidents involving personal injury or death prompt hit and run liability.

In the man’s appeal, he first argued that drivers should not be deemed to have been “involved” in an accident unless their vehicles actually impact another car, person or property. The Pennsylvania Superior Court rejected his interpretation of the law, noting that the hit and run statute does not focus on the cause of the accident. The law requires that all drivers involved in an accident involving death or personal injury must stay at the scene, to provide information and assistance. Whether a driver caused the accident is not relevant; the obligation to stay at the scene binds all drivers involved in the accident. The Court refused to layer onto the law a requirement that a driver must have experienced some physical impact to be “involved” in an accident, noting that doing so would leave drivers free to run others off the road, with no impact, and then claim not to have been “involved.”

The man next argued that if he was legally considered to have been involved, he was not guilty of hit and run because he did not realize there was any accident. The Court rejected the man’s claim that he was oblivious to the accident. Noting that drivers are responsible for what they actually know, and also for what they reasonably should have known, the Court emphasized that the jury was apparently convinced by the witness testimony that the man knew or should have known there was an accident. Witnesses described a very loud collision, which “threw debris everywhere,” immediately after the man cut across the heavy oncoming traffic.

It certainly is not possible for drivers to be fully aware of the traffic events that occur in their rear view mirrors. And it is not always clear that an accident has caused personal injury. But in order to avoid criminal liability, all Pennsylvania drivers should stop at the scene of any accident in which they are involved and comply with the obligation to render aid and share information.