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Vol. 53, No. 3
Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 2016 WL 56261 (Pa. Cmwlth. 2016).
WORKERS' COMPENSATION
Subrogation of a Third Party Medical Malpractice Award
Commonwealth Court affirmed the Workers’ Compensation Appeal Board’s (Board) order awarding the employer (Derry Area School District) and the insurer subrogation of the claimant’s third party medical malpractice recovery with respect to the award for her future medical expenses and wage loss.
The claimant, Mary Ann Protz, sustained a work-related knee injury (for which she was receiving disability benefits), which subsequently necessitated a total knee replacement. During the knee replacement surgery, the claimant suffered a laceration completely dividing her popliteal artery. She filed a medical malpractice action against the hospital and the doctor who performed the knee replacement. The action settled.
Consequently, her employer and the insurer filed a petition to review compensation benefits and to subrogate that recovery. The Workers’ Compensation Judge (WCJ) issued a decision awarding the employer and the insurer subrogation benefits from the time of the settlement forward. The Board affirmed the WCJ’s order. The claimant appealed.
“The right of subrogation has been described as ‘an absolute [right]’ that ‘applies whenever a debt or obligation is paid by one party though another is primarily liable’…” The rationale supporting subrogation rights is: “[T]o prevent double recovery for the same injury by the claimant, to ensure that the employer is not compelled to make compensation payments made necessary by the negligence of a third party, and to prevent a third party from escaping liability for his negligence.”
The claimant argued that the employer and the insurer were not entitled to any recovery under Section 508 of the Medicare Care Availability and Reduction of Error (MCARE) Act. Section 508 precludes subrogation of medical malpractice proceeds with regard to payments for past medical expenses and past lost earnings incurred to the time of trial. The Act is silent on the issue of future expenses and lost earnings. Looking to the plain-meaning, Commonwealth Court held that the Act’s prohibition against subrogation does not apply to future expenses and wage loss. The court noted that this interpretation is consistent with the purpose of subrogation and legislative intent.
Editor’s Note: A related case was published at 52 SLIE 19. The case involved employer’s petition to modify claimant’s benefits from total to partial disability.
Click here for the full decision.
School District of Philadelphia v. Commonwealth Association of School Administrators, Case No. 150900740 (C.C.P. of the First Judicial District of Pa., 2016).
COLLECTIVE BARGAINING; ARBITRATION; LABOR
Arbitrator Acted Outside Scope of Authority • Public Policy Exception
The trial court vacated the arbitration award.
The School District of Philadelphia discharged Principal Travis-Curtis for allowing rampant cheating on standardized tests over a three-year period.
Even though the arbitrator found “by clear and convincing evidence that there was cheating that occurred at the Lamberton School and that [Travis-Curtis] was at least negligent in not being aware of such activity or not taking the appropriate steps to […, ensure] that test administration was secure,” a factual finding supportive of the fact there was cause for termination pursuant to Section 1122 of the School Code, the arbitrator reinstated Travis-Curtis as an assistant principal. The district filed a Petition to Vacate the arbitration award.
If an arbitrator’s award is not rationally derived from the collective bargaining agreement (CBA), a court is required to vacate the award. Here, the CBA gave the district sole discretion to discharge for “cause.” The arbitrator found facts sufficient to establish “cause” for termination, but ignored the “sole discretion” language and applied an additional analysis to gauge whether the punishment should be modified. The CBA did not contain this additional analysis. The court concluded that the arbitrator erroneously applied an elevated standard of “just cause,” a result not rationally derived from the CBA; thereby, exceeding his authority. The court also opined that even if the arbitrator had not exceeded his authority and the award was rationally related to the CBA, the award contravenes the public policy of this Commonwealth. The court noted that “plagiarism and cheating are antithetical to learning and education and thus contrary to established policy.”
Click here for the full decision.
Lehigh Career & Technical Institute EA v. Lehigh Career & Technical Institute
Alan A. Symonette Esq., arbitrator
April 27, 2015
1. Suspension
2. Just Cause
3. Unprofessional Conduct
The grievance challenging the grievant’s suspension was denied on the basis that the Lehigh Career and Technical Institute (Institute) had just cause to suspend the employee. The grievant, an English instructor at the Institute’s Career Academy Program, was suspended for 15 days for unprofessional conduct and for lying during the investigation of the reported incident. The Association asserted that the Institute did not have just cause to suspend the grievant because progressive discipline in the form of a warning was a more appropriate sanction. The arbitrator did not agree and concluded that the Institute had a significant interest in maintaining a safe and respectful workplace. Since the grievant’s actions directly impacted that interest, the Institute had just cause to suspend the grievant.
Click here for the full opinion and award.
The Public Sector Arbitration publication is not possible without the efforts of solicitors and superintendents who send us new arbitration decisions. PSBA would like to thank those individuals who have contributed arbitration decisions. If you would like to make such a contribution, please send a scanned copy of the decision to katherine.fitz-patrick@psba.org or mail a hard copy to PSBA, Attn: Katherine Fitz-Patrick, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.
PSBA Legal Services Team Update
PSBA’s annual Spring Legal Roundup workshop is being offered at locations throughout Pennsylvania in March, April and May. The workshop provides important updates on significant developments in school law over the last year and is presented by a local solicitor and a PSBA attorney. Spring Legal Roundup offers three substantive CLE credits. This year’s program will focus on a range of legal issues including the following:
- Every Student Succeeds Act (ESSA)
- Employee discipline and termination
- Handling difficult parents and citizens in the school setting
- Transgender students
- Child abuse and criminal background checks
- Right-to-Know Law
- Other issues which may arise prior to this program
Registration information and a complete list of dates and locations can be found here.
In Other News
The U.S. Department of Education issues new guidance to states to help reduce testing –
In continuing efforts to provide guidance on the transition to the Every Student Succeeds Act (ESSA), this week the U.S. Department of Education issued a letter to chief state school officers with guidance to help states identify and eliminate low-quality, redundant or unhelpful testing.
The guidance outlines how existing funds under the No Child Left Behind Act (NCLB) may be used to help reduce testing in schools, and ensure efficacy and quality of assessments until the 2017-18 school year when provisions of the new ESSA are effective. Click here to read the Feb. 2 letter from the department to chief state school officers.
Part of the President's Testing Action Plan announced last October, the guidance provides examples of federal funds that states and school districts can use, such a Title I A, Title II A, Title III and Sec 6111 (grants for state assessments) to conduct assessments audits, support the appropriate assessment literacy, and increase the quality, transparency and timeliness of assessments.
In addition, the guidance establishes seven Principles for Good Assessments that promote alignment, quality, equity, fairness, transparency, multiple measures and family engagement. In short, the guidance foreshadows many of the changes coming in ESSA, and the department plans to issue revised guidance for the 2017-18 school year when changes to the formula and competitive grants under ESSA go into effect.
Last week the department issued a "Dear Colleague" letter regarding ESSA transition that provides details about flexibilities available in the 2016-17 school year. Click here to read the Jan. 28 letter.
Mark Your Calendars
March-May 2016 – Spring Legal Roundup, various locations
July 14-15, 2016 – Solicitors’ Symposium, State College, PA
Thursday, Oct. 14, 2016 – School Law Workshop, Hershey, PA
Let us Know
Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you.
Have you changed your email address, mailing address, or phone number? Please let us know.
For questions about this publication, contact Katherine Fitz-Patrick, Tel: (717) 506-2450, ext. 3414
School Board Solicitors Association Officers
Carl N. Moore Esq., Erie, President
Patrick J. Fanelli Esq., Duncansville, President-Elect
Erin D. Gilsbach Esq., Bethlehem, Secretary
Kristine Marakovits-Roddick Esq., Bethlehem, Immediate Past President
Legal Services Team:
Stuart L. Knade, General Counsel
Emily J. Leader, Senior Deputy General Counsel
Katherine M. Fitz-Patrick, Deputy General Counsel, Member Services
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