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PA & WV Accidental Death Lawyer Blog

This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.

  • The Deadliest Jobs in the United States

    What are the deadliest jobs in the U.S.? 

    Data from the U.S. Department of Labor answers the question.  Recently, the U.S. Department of Labor’s Bureau of Labor Statistics released the National Census of Fatal Occupational Injuries in 2017, which looks at fatal work injuries or work deaths recorded in the U.S. in 2017.

    According to the data, overall, there were 5,147 worker deaths.

    Types of Incidents

    The main cause of worker deaths were: transportation incidents (2,077 deaths); falls, slips, and trips (887 deaths); violence and other injuries by persons or animals (807 deaths); contact with objects and equipment (695 deaths); exposure to harmful substances or environments (531 deaths); and fires and explosions (123 deaths).

    Deadliest Jobs

    The jobs with the highest fatal work injury rates or deaths in 2017 were (in descending order):

    10. Electrical power-line installers and repairers (18.7 deaths per 100,000 workers)

    9. First-line supervisors of landscaping, lawn service, and groundskeeping workers (21 deaths per 100,000 workers)

    8. Farmers, ranchers, and other agricultural managers (24 deaths per 100,000 workers)

    7. Driver/sales workers and truck drivers (26.8 deaths per 100,000 workers)

    6. Structural iron and steel workers (33.4 deaths per 100,000 workers)

    5. Refuse (garbage) and recyclable material collectors (35 deaths per 100,000 workers)

    4. Roofers (45.2 deaths per 100,000 workers)

    3. Aircraft pilots and flight engineers (48.6 deaths per 100,000 workers)

    2. Logging workers (84.3 deaths per 100,000 workers)

    1. Fishers and related fishing workers (99.8 deaths per 100,000 workers)

    National Census of Fatal Occupational Injuries in 2017

    Stay safe!

    Our law firm, Goldsmith & Ogrodowski, LLC, represents workers injured or killed in Pennsylvania and West Virginia.  If you have questions about your or your family’s legal rights regarding an injured worker, accidental or wrongful death, or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • Federal Judge Grants Injunction as to CMS Rule Barring Pre-Dispute Arbitration Clauses in Long-Term Care Facility / Nursing Home Contracts for Facilities Receiving Federal Funding

    I previously reported in a post that on September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements with regard to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid.  Not long after CMS announced the final rule, the American Health Care Association, which is an association for long-term care providers, and other plaintiffs filed a motion in the United States District Court for the Northern District of Mississippi seeking a preliminary injunction to enjoin CMS from enforcing the final rule.  See American Health Care Association et al. v. Sylvia Mathews Burwell, in her official capacity as Secretary of Health and Human Services et al., Civil Action No. 3:16-cv-00233, U.S. District Court for the N.D. Miss.

    On November 7, 2016, District Judge Michael P. Mills of the United States District Court for the Northern District of Mississippi granted the motion for preliminary injunction in favor of the plaintiffs.  This was a win for long-tem care facility and nursing homes, as the final rule regarding arbitration provisions did not go into effect on November 28, 2016.  Although Judge Mills stated that CMS’s final rule was based on sound public policy, he ultimately found that the plaintiffs had made a sufficient showing that CMS did not have the authority to enact the final rule.  One of the factors Judge Mills had to consider in granting the preliminary injunction was whether there existed a substantial likelihood of success on the merits. Judge Mills found that to be the case.

    Despite the ruling, the parties will continue to litigate the issue of whether CMS had the authority to enter the rule, although the federal government will have an uphill battle.

    On December 5, 2016, a Case Management Order was entered setting a schedule for the filing of pleadings in the case.  Oral argument is also scheduled for July 20, 2017 before Judge Mills.

    Thus, you should expect to continue to see pre-dispute arbitration agreements in the admission documents for long-term care facilities / nursing homes.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for personal injury, wrongful death, and survival in Pennsylvania and West Virginia.  This includes lawsuits involving nursing home negligence, pedestrian and bicyclist injuries and deaths, oil and gas injuries and deaths; construction injuries and deaths; injuries and deaths from a failure of fall protection; injuries and deaths on towboats and the rivers, such as the Allegheny River, Ohio River, Monongahela River, and Kanawha River; Jones Act injuries and deaths; FELA injuries and deaths, and other transportation injuries and deaths on the roadways from tractor-trailers and dump trucks.  If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • West Virginia’s Child Neglect Resulting in Death Statute Does Not Apply to a Fetus

    Although the below case, which involves the tragic death of an 11-day-old child, pertains to a criminal statute, it is important to civil matters from the standpoint of how the judiciary looks at the plain language of a statute when interpreting the statute.

    In West Virginia v. Louk, 237 S.E.2d 219 (W.Va. 2016), the defendant injected methamphetamine when she was thirty-seven weeks pregnant.  Hours later, the defendant suffered acute respiratory distress caused by the methamphetamine.  Due to concerns the fetus was being deprived of oxygen, a doctor performed an emergency C-section.  A forensic pathologist, who performed the autopsy on the child, stated the child was born “essentially brain dead” from a lack of oxygen.  Id. at 222.  A Nicholas County, West Virginia Grand Jury indicted the defendant on one felony count of child neglect resulting in death pursuant to W.Va. Code Section 61-8D-4a.  A jury later convicted defendant.  She was sentenced to be incarcerated for three to fifteen years.  The defendant appealed the conviction.

    On appeal, the West Virginia Supreme Court of Appeals addressed this issue: “whether a pregnant woman who ingests a controlled substance which results in harm to her subsequently born child can be charged with child neglect resulting in death, as set forth in W.Va. Code Section 61-8D-4a.”  Id.   W.Va. Code Section 61-8D-4a provides: “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony ….”  Id. at 222-23.

    The defendant argued that an “unborn child” or “fetus” is not a “child” under W.Va. Code Section 61-8D-4a and thus the statute did not apply to her.

    After reviewing the plain language of the statute and other statutes passed by the West Virginia Legislature that specifically mention and define “fetus” and mention “unborn child,” the West Virginia Supreme Court of Appeals held that W.Va. Code Section 61-8D-4a does not mention “fetus” or “unborn child.”  As such, the court further held that the child neglect resulting in death statute does not encompass prenatal acts.  Id. at 228.  Because the statute does not apply to a fetus or unborn child or to prenatal acts, the court vacated the conviction and remanded the matter to the circuit court for the entry of a judgement of acquittal.  Id.  

    This case is an example of the difficult issues that a court can face in civil and criminal matters.  Yet, the court must follow the plain language of a statute as written and passed by the legislature.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia.  If you have questions about your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • CMS Issues Rule Barring Pre-Dispute Arbitration Clauses in Long-Term Care Facility / Nursing Home Contracts for Facilities Receiving Federal Funding

    An elderly loved one needs to be immediately admitted to a nursing home / long-term care facility.  In a rush and happy that a bed is found, you or the elderly person frantically rush through and sign the admission paperwork, including a contract.  A few days, months, or years later the elderly person is injured because of the nursing home’s negligence.  An attorney is retained to represent the injured person and files a lawsuit in state or federal court.  Immediately after filing the Complaint, defense counsel for the nursing home responds that  you do not have the right to maintain the lawsuit in state or federal court and have a jury decide whether the nursing home was negligent and thereby caused damages.  The reason: hidden in those documents that were signed upon admission to the nursing home existed a pre-dispute arbitration clause.  In other words, you or the elderly person agreed to give up the right to have a jury hear the claims.  Instead, the claim of negligence and damages will be heard by a lawyer or group of lawyers outside of state or federal court.

    To prevent this from happening in the future, on September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements.  This rule only applies to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid.  The announcement can be accessed by clicking on the following: CMS finalizes improvements in care, safety, and consumer protections for long-term care facility residents .

    The new arbitration regulation becomes effective on November 28, 2016, and applies moving forward.  Thus, if the pre-dispute arbitration provision in the nursing home / long-term care facility contract was agreed to prior to November 28, 2016, the arbitration provision will not be barred by the new regulation.

    The new regulation gives protection to the elderly entering into a long-term care facility / nursing home by preserving their right to a jury trial.  (Interestingly, as I previously commented on in prior blog posts, the Superior Court of Pennsylvania already refuses to enforce pre-dispute arbitration agreements in wrongful death and survival actions.  See Brosius v. HCR Manorcare, LLC, 2016 WL 1625790 (Pa. Super. April 25, 2016).).

    Thus, if you find that you or a loved one will be entering into a long-term care facility or nursing home prior to November 28, 2016, you need to carefully read through the admission documents or hire an attorney, such as an attorney that focuses on elder law or one that handles nursing home negligence cases, to review the admission documents for a pre-dispute arbitration agreement.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for personal injury, wrongful death, and survival in Pennsylvania and West Virginia.  This includes lawsuits involving nursing home negligence, pedestrian and bicyclist injuries and deaths, oil and gas injuries and deaths; construction injuries and deaths; injuries and deaths from a failure of fall protection; injuries and deaths on towboats and the rivers, such as the Allegheny River, Ohio River, Monongahela River, and Kanawha River; Jones Act injuries and deaths; FELA injuries and deaths, and other transportation injuries and deaths on the roadways from tractor-trailers and dump trucks.  If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

     

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  • Truck Driving – A Dangerous Job

    Did you know that one out of every six worker in the United States that is killed on the job is a truck driver?  Probably not.  Back in April 2016, I wrote about the “Census of Fatal Occupational Injuries Summary, 2014,” which was conducted by the U.S. Bureau of Labor Statistics.  The Census tracks work-related deaths.  Recently, the U.S. Department of Labor Blog in a posting titled Truck Driver Job-Related Injuries in Overdrive discussed how the U.S. Bureau of Labor statistics data reveal of the danger of being a truck driver.

    In the blog post, Sean Smith and Patrick Harris mentioned the foregoing statistics and noted that:

    • “One out of every six American workers killed on the job is a tractor-trailer driver.”
    • “In 2014 alone, 761 tractor-trailer truck drivers were killed while working, which also marks the fifth year in a row that the number of truck driver fatalities has increased.”
    • “The vast majority of these deaths, 78 percent, were caused by transportation incidents.”

    See Truck Driver Job-Related Injuries in Overdrive .

    The above stats are sobering and are a good reminder as to the danger encountered on the roadways.

    Our law firm, Goldsmith & Ogrodowski, LLC, brings lawsuits for wrongful death and survival in Pennsylvania and West Virginia.  This includes lawsuits involving oil and gas injuries and deaths; construction injuries and deaths; injuries and deaths from a failure of fall protection; injuries and deaths on towboats and the rivers, such as the Allegheny River, Ohio River, Monongahela River, and Kanawha River; Jones Act injuries and deaths; FELA injuries and deaths, and other transportation injuries and deaths on the roadways from tractor-trailers and dump trucks.  If you have questions about the above, or your or your family’s legal rights regarding an accidental or wrongful death or a survival action, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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