Can Ineffective Assistance of Counsel Apply in Pennsylvania?

Philadelphia, PA (WorkersCompensation.com) -- The term "ineffective assistance of counsel" most often refers to criminal defendants' Constitutional rights and what arguments they have at their disposal following a less-than-desirable outcome in the guilty-or-not phase of court proceedings.

But as Tarawallie v. Magee Memorial Hospital for Convalescents, No. 717 C.D. 2023 (Pa. Commw. Ct. 07/22/24, unpublished), a case reported on Simply Research, showed, the ineffective assistance argument is not unfamiliar to the workers' compensation setting.

What Happened in the Case?

A certified nurse assistant slipped and fell on blue cheese dressing that had spilled on the floor at her workplace. She filed a workers' compensation claim, alleging that she sustained a low back strain, disc herniations, and a right hip strain.

Initially, the employer issued a temporary notice of compensation payable and later an amended NCP, acknowledging that the CNA sustained a work injury. Later, the employer filed a termination petition, alleging that the CNA was fully recovered.

The workers' compensation judge granted the petition, and the Workers' Compensation Board upheld. In response, the CNA appealed to court.

One of her arguments was that her counsel failed to submit evidence, particularly her doctor's deposition and evidence of her medical proedures.

What's the Law?

In Pennsylvania, the effective assistance of counsel is not constitutionally mandated in the workers' compensation context; however the board may grant a rehearing of any petition it has decided "upon petition of any party and upon cause shown," per the Workers' Compensation Act.

What did the Court Say?

The CNA did not establish that her counsel's failure to submit certain evidence created "manifest injustice," deprived her of the only means to meet her burden of proof, or otherwise rose to the level of "just cause" necessary to merit a rehearing.

Instead, the court noted that:

+ The CNA testified by video conference to the WCJ.

+ The CNA submitted a deposition.

+ The CNA testified about her injury, pain, current abilities, and medical treatment.

+ The WCJ did not find the CNA credible.

"The WCJ is the ultimate arbiter of credibility and the WCJ's findings were supported by substantial evidence in the record," the court concluded.

Thus, the court upheld the WCJ's and board's rulings.

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