Share This Article:
![](https://www.workerscompensation.com/wp-content/uploads/2024/04/pennsylvania-40430_640-1.png)
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 Ct. 07/22/24, unpublished), a case reported on Simply Research, showed, the ineffective assistance argument is not unfamiliar to the workers' compensation setting.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.
california case management case management focus claims compensability compliance compliance corner courts covid do you know the rule ethics exclusive remedy florida glossary check Healthcare health care hr homeroom iowa leadership medical medicare NCCI new jersey new york ohio opioids osha pennsylvania Safety simply research state info technology tennessee texas violence washington WDYT west virginia what do you think women's history month workers' comp 101 workers' recovery workers' compensation contact information Workplace Safety Workplace Violence
Read Also
About The Author
About The Author
-
Frank Ferreri
Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.
More by This Author
Read More
- Sep 06, 2024
- Claire Muselman
- Sep 06, 2024
- Frank Ferreri
- Sep 05, 2024
- Claire Muselman
- Sep 05, 2024
- Liz Carey
- Sep 05, 2024
- Frank Ferreri
- Sep 05, 2024
- Frank Ferreri