Posted

Issue

SUPREME COURT ADDRESSES EMPLOYER’S BURDEN OF PROOF ON PETITION TO MODIFY BENEFITS BASED ON AN IRE.

To modify benefit status based on an IRE requested outside of the sixty day window, an employer must establish impairment rating of less than 50%. Proof of earning power and job availability is not required.

See: Diehl v. W.C.A.B (IA Construction) 5 A.3d 230 (Pa. 9/29/10)

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EMPLOYER PREVAILS ON EARNING POWER ASSESSMENT DESPITE THE FACT THAT CLAIMANT APPLIED FOR ALL JOBS IDENTIFIED AND FAILED TO SECURE EMPLOYMENT.

The Commonwealth Court squarely addressed the issue of whether a claimant can defeat an earning power assessment by establishing that he or she applied for the jobs identified but failed to secure employment. The court indicated that employer was entitled to a modification and that the Act contains no requirement that a claimant actually receive an offer of employment in order to establish hearing power.

See: Phoenixville Hospital v. WCAB (Shoap) 2 A.3d 689; Reargument denied @ ________ A.3d ________ (Pa. Cmwlth. 8/18/10).

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CLAIMANT IS ENTITLED TO REINSTATEMENT FOLLOWING ELIMINATION OF LIGHT DUTY WORK.

The Court rejected employer’s argument that Claimant had retired where he received an Enhanced Income Security Plan pursuant to Collective Bargaining Agreement. This is where the evidence submitted established such plan was payment where a job is eliminated and the Court refused to characterize this as a retirement.

See: Polis vs. WCAB (Verizon Pennsylvania), 988 A.2d 807 (Pa. Cmwlth. 2/5/10).

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COURT APPLIES PRESUMPTION OF VOLUNTARY REMOVAL FROM WORK FORCE TO CLAIMANT THAT RECEIVES SOCIAL SECURITY RETIREMENT BENEFITS.

The Commonwealth Court addressed an issue of first impression and concluded that a Claimant who advised his employer he wanted to retire, received Social Security Retirement benefits and a union pension but failed to apply for a pension with the time of injury employer was presumed to have voluntarily removed himself from the labor market. Thus, Claimant has the burden of demonstrating either that he engaged in a good faith job search or that his work injury made him incapable of working at any job in the entire labor market.

See: Duferco Farrell Corp. v. WCAB (Zuhosky), 989 A.2d 63 (Pa. Cmwlth.1/14/10) 2/1/10).

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DIFFERENT BURDENS APPLY TO CLAIMANT’S CHALLENGE OF IRE DEPENDING ON WHETHER CLAIMANT FILES CHALLENGE WITHIN SIXTY DAYS OF NOTICE OF CHANGE IN DISABILITY STATUS.

Claimant has a lesser burden in challenging an IRE if challenge is filed within sixty days of Notice of Change in Disability Status. When IRE is filed outside sixty day window, Claimant must have an IRE opinion establishing disability of at least fifty (50%) percent. If IRE is filed within sixty days window, Claimant can challenge validity of IRE without such a medical opinion.

See: Barrett vs. Sunoco, Inc. , 987 A.2d 1280 (Pa. Cmwlth. 2/1/10).

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COMMONWEALTH COURT ADDRESSES EMPLOYER’S BURDEN OF PROOF ON PETITION TO MODIFY BENEFITS BASED ON AN IRE.

To modify benefit status based on an IRE requested outside of the sixty day window, an employer must establish impairment rating of less than 50%. Proof of earning power and job availability is not required.

See: Diehl v. W.C.A.B (IA Construction) _____ A.2d _____ (Pa. Cmwlth. 4/22/09)

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THE COMMONWEALTH COURT APPLIES A TOUGH NOTICE STANDARD IN BARRING CLAIM

The issue before the Court was whether notice was timely when claimant last worked on June 11, 2003 and did not provide notice until February 17, 2004. Claimant’s work related injury was an aggravation of Morton’s neuroma. Thus, Claimant argued that causal connection was not obvious and she did not obtain a medical report in support of same until November 2004. However, the Court highlighted the fact that she gave notice prior to such date and that cross-examination established she was aware of a connection prior to such date. Accordingly, the Court deemed timely notice was not given so that the claim was barred.

See: Allegheny Ludlum Corporation v. WCAB (Holmes), 998 A.2d 1030 (Pa. Cmwlth. April 22, 2010); Reargument Denied at ________ A.2d. _________ (Pa. Cmwlth. June 14, 2010); Opinion published at _______ A.2d _______ (Pa. Cmwlth. July 9, 2010).

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THE COMMONWEALTH COURT CONTINUES TO RECOGNIZE A NOTICE OF COMPENSATION DENIAL AS A PROPER METHOD TO ACCEPT A MEDICAL ONLY CLAIM.

Claimant’s request for penalties and unreasonable contest attorney’s fees was denied where court failed to find any violation of the Act and recognized that an employer could acknowledge medical only claim by way of Notice of Compensation Denial.

See: Forbes Road CTC v. WCAB (Consla)999A.2d 627 (Pa. Cmwlth. 5/27/10); Reargument denied _______ A.2d __________ (Pa. Cmwlth. 7/21/2010).

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SUPREME COURT ADDRESSES BURDEN OF PROOF ON A REINSTATEMENT PETITION

The Supreme Court has lessened the Claimant’s burden of proof on a Petition for Reinstatement. A Claimant must prove that his or her earning power is once again affected by his or her disability and that such disability is a continuation of that which arose from his or her original claim. Once the Claimant meets this burden, the burden shifts to the party opposing the Reinstatement Petition. In order to prevail, the opposing party must show that the Claimant’s loss in earnings is not caused by the disability arising from the work injury. This burden may be met by showing that the Claimant’s loss of earnings is, in fact, caused by the Claimant’s bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits that is specifically described under provisions of the Act or in this Courts decision of law. A Claimant remains eligible for reinstatement of suspended benefits where the Claimant’s employment with the post-injury employer is terminated, even where the Claimant has previously preformed modified post-injury duties for the time of injury employer.

See: Buffford v. WCAB (North American Telecom),________A.2d________(Pa. 8/17/2010).

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COMMONWEALTH COURT REJECTS CONCLUSION THAT IME IS STALE AND UNUSABLE AFTER SIX MONTHS

The Court refused to hold that an IME was stale or unusable after six months. Significantly, in Verizon, the Claimant testified there had been no change in her condition since exam. Also, medical evidence had established that she reached MMI. Accordingly, remand was made for the Judge to consider job development made over six months after exam.

See: Verizon Pennsylvania, Inc. v. WCAB (Guyders), 999 A.2d 665 (Pa. Cmwlth. 7/19/2010).

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CLAIMANT’S TESTIMONY REGARDING HER SUBJECTIVE BELIEF ABOUT HER WORK CAPABILITIES IS INSUFFICIENT TO DEFEAT A MODIFICATION PETITION.

In a Decision issued on June 25, 2009 and amended on September 14, 2009, the Commonwealth Court addressed Claimant’s burden of proof to defeat a Modification Petition based on an employer job offer. Claimant did return to work after the employer job offer with her time of injury employer. However, she worked less than forty hours per week where she averred she could not work ten hour days, left early on other days due to back pain and missed work on various occasions. The WCJ concluded that the issue of indemnity benefits was not before him although Claimant challenged the Notification of Modification and employer filed a Modification Petition. The Commonwealth Court reversed the Judge’s Order which indicated that compensation was modified or suspended depending upon Claimant’s actual earnings. The Court highlighted the employer’s duty to make a job offer and the Kachinski requirements. The Court held that employer met its burden of proof and that Claimant’s statement that sometimes she cannot do the job because her back hurts was inadequate to rebut employer’s evidence.

See: World Kitchen, Inc. v. WCAB (Rideout), _______ A.2d _______ (Pa. Cmwlth. 6/25/09 with 9/14/09 amendment).

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EMPLOYER FAILS TO PREVAIL ON PETITION FOR SUSPENSION WHERE CLAIMANT IS TOTALLY DISABLED DUE TO NON-WORK RELATED MEDICAL CONDITION BASED ON FAILURE TO PROVIDE FORM LIBC-757, NOTICE OF ABILITY TO RETURN TO WORK.

The Court explained that the Schneider standard where employer does not need to establish job availability for a Claimant totally disabled due to non-work related condition applies in only the most limited circumstances. In Schneider, Claimant suffered from brain damage and paralysis that was permanent so that he would never be able to return to any type of employment. Thus, in scenario where Claimant is totally disabled due to non-work related condition of a lesser nature, employer must establish job availability. This is either through Kachinski job development or Earning Power Assessment. Regardless, the Court follows established precedent in holding that LIBC-757 must be served before such action or the employer is precluded from a modification or suspension of benefits.

See: Struthers Wells v. WCAB (Skinner), 990 A.2d 176 (Pa. Cmwlth. 3/12/2010)

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EMPLOYER PREVAILS ON EARNING POWER ASSESSMENT DESPITE THE FACT THAT CLAIMANT APPLIED FOR ALL JOBS IDENTIFIED AND FAILED TO SECURE EMPLOYMENT.

The Commonwealth Court squarely addressed the issue of whether a claimant can defeat an earning power assessment by establishing that he or she applied for the jobs identified but failed to secure employment. The court indicated that employer was entitled to a modification and that the Act contains no requirement that a claimant actually receive an offer of employment in order to establish hearing power.

See: Phoenixville Hospital v. WCAB (Shoap)______ A.2d ________; Reargument denied @ ________ A.2d ________ A.2d (Pa. Cmwlth. 8/18/10).

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EARNING POWER ASSSESSMENT MUST BE CONDUCTED IN AREA WHERE INJURY OCCURRED IF CLAIMANT RESIDES OUT OF STATE.

The Supreme Court of Pennsylvania reversed a Modification based on an earning power assessment where the earning power assessment was conducted out of state in the area of Claimant’s residence. The Court held that §306(b)(2) contains unequivocal mandatory language that identifies the area where the injury occurred as the relevant location to conduct earning power assessment for non-residents.

See: Riddle v. Workers’ Compensation Appeal Board (Allegheny City Electric, Inc.). 981 A.2d 1288 (Pa. 10/22/09).

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SUPREME COURT AFFIRMS EMPLOYER’S USE OF ACTUARY TO SUPPORT PENSION CREDIT WHERE CLAIMANT RECEIVES PENSION PURSUANT TO A DEFINED BENEFIT RETIREMENT PLAN.

The Supreme Court has addressed the employer’s burden of proof in establishing offset based on Claimant’s receipt of pension benefits pursuant to a defined benefit retirement plan. The issue before the Court was whether the use of an actuarially assumed rate of return in the Section 204(a) offset calculation is inconsistent with the statutory limitation of the credit to the employer-funded portion of a pension. Many practitioners were concerned that the Court could reverse precedent allowing credit based on actuarial testimony. In fact, the Claimant’s bar had been more aggressively challenging notice of offsets based on the Supreme Court’s acceptance of this petition on May 13, 2009. Accordingly, the results of the Harvey case were highly anticipated and amicus (friends of the court) briefs were submitted on behalf of both sides. On April 29, 2010, the Supreme Court upheld the Commonwealth Court allowing actuarial testimony to establish calculation methodology.

See: Commonwealth of Pennsylvania/Department of Public Welfare v. WCAB (Harvey) _______ A.2d _________ (Pa. 4/29/10).

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COMMONWEALTH COURT LIMITS APPLICATION OF LEWIS AND AFFIRMS DECISION GRANTING EMPLOYER’S PETITION FOR TERMINATION.

Fried, Kane was successful in defeating Claimant’s argument challenging termination based on Lewis case.

See: Prebish v. WCAB (DPW/Western Center), 954 A.2d 677(Pa. Cmwlth. 7/14/08)

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COMMONWEALTH COURT LIMITS APPLICATION OF LEWIS AND AFFIRMS DECISION GRANTING EMPLOYER’S PETITION FOR TERMINATION.

Fried, Kane was successful in defeating Claimant’s argument challenging termination based on Lewis case.

See: Folmer v. WCAB (SWIFT Transportation), 958 A.2d 1137 (Pa. Cmwlth. 10/22/08).

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WINDOW SHOPPING NOT SUFFICIENT TO DEFEAT SUSPENSION/RETIREMENT PETITION

The Commonwealth Court has addressed Claimant’s burden of proof to defeat a Suspension Petition after retirement. Specifically, the Court reversed both the WCJ and WCAB and granted a suspension of benefits where the Claimant testified that he was seeking employment. The facts established that Claimant registered at a CareerLink website one week prior to hearing and inquired about a job with a local employer two weeks prior to the hearing. He also testified that he would review the CareerLink website and newspaper ads. The Court explained that searching the internet and newspaper ads for jobs without more does not constitute a job search, but instead constitutes "surfing" the web and reading the newspaper – window shopping.

See: The Pennsylvania State University/The PMA Insurance Group v. WCAB (Hensal), 948 A.2d 907 (Pa.Cmwlth. 05/19/08)

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EMPLOYER/CARRIER IS ENTITLED TO OFFSET FROM NET AMOUNT OF PENSION BENEFITS RECEIVED BY CLAIMANT.

Contrary to prior case law, the Commonwealth Court has held that an employer is entitled to offset only the net amount of pension benefits received by the Claimant (i.e. benefits minus tax liability).

See: Philadelphia Gas Works v. W.C.A.B. (Amodei), 964 A.2d 963 (Pa. Cmwlth. 2/4/09).

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IRE PHYSICIAN MUST DETERMINE THAT CLAIMANT IS AT MMI PRIOR TO CALCULATING IMPAIRMENT RATING

An Employer’s Petition for Modification was defeated by Claimant’s argument that he had not reached maximum medical improvement. Specifically, Claimant was considered to be a candidate for a total knee replacement. Because of his relatively young age, 46, the IRE physician believed such a procedure would not be undertaken for a few years. The IRE physician further agreed that a total knee replacement “could” provide complete pain relief and “could” give Claimant better motion and stability. Accordingly, although the WCJ granted Employer’s Petition for Modification based on IRE which was affirmed by the Board, the Commonwealth Court reversed the decision and reinstated Claimant’s disability status to that of total disability.

See: Combine v. WCAB (National Fuel Gas Distribution Corporation), 954 A.2d 776 (Pa. Cmwlth. 8/14/08)

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COMMONWEALTH COURT ADDRESSES EMPLOYER’S BURDEN OF PROOF ON PETITION TO MODIFY BENEFITS BASED ON AN IRE.

To modify benefit status based on an IRE requested outside of the sixty day window, an employer must establish impairment rating of less than 50%. Proof of earning power and job availability is not required.

See: Diehl v. W.C.A.B (IA Construction) _____ A.2d _____ (Pa. Cmwlth. 4/22/09)

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NOTICE OF ABILITY TO RETURN TO WORK FORM IS FILED TIMELY WHERE IT IS FILED BEFORE CLAIMANT’S INTERVIEW WITH VOCATIONAL EXPERT.

The Court again addresses the Act’s requirement that the Notice of Ability to Return to Work form be provided “promptly”. In Bentley, the Judge granted the employer’s Modification Petition based on earning power assessment. On appeal, Claimant argued that the Notice of Ability to Return to Work was not filed promptly. This case involved employer’s use of the form before the Section was added for date of notice. Employer witness could not testify to the exact date the form was filed. However, she testified that the form was filed somewhere between January 22, 2003 and the vocational interview of March 14, 2003. The vocational counselor had testified that she reviewed the notice with the Claimant at the meeting. Accordingly, the Court held that this notice was provided promptly in accordance with the Act and upheld modification based on earning power assessment.

See: Bentley v. WCAB (Pittsburgh Board of Education)_____ A.2d _____ (Pa. Cmwlth. 2009).

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EMPLOYER MUST ESTABLISH IT HAD NO POSITIONS AVAILABLE WITHIN CLAIMANT’S ABILITIES AS A PREREQUISITE TO MODIFICATION

Following her work injury, Claimant returned to a light duty position until she was terminated from such position by her employer. The reason for the termination was that light duty position was temporary and IME had confirmed ongoing restrictions so that Claimant would not be able to return to her time of injury position. Under the circumstances, temporary work was no longer available. Claimant then obtained part time work on her own. The employer filed a Petition for Modification alleging Claimant had a greater earning power. The WCJ granted the Petition concluding the letter of termination from the employer established no work availability. The Court noted that the Judge must address Claimant’s testimony that she was replaced in the light duty work by a newly hired person. The Court explained the Judge gave no reason for rejecting Claimant’s evidence that there was suitable employment available with the employer and where the WCJ did not even reference this uncontroverted evidence, remand was appropriate. On remand, the Judge was instructed to address the conflict in evidence on suitable work available with the employer and address proof of residual productive skill.

See: Rosenberg v WCAB (Pike County)942 A.2d 45(Pa cmwlth 2/5/08)

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EMPLOYER JOB OFFER IS NOT INVALIDATED BY USE OF LANGUAGE THAT EMPLOYMENT IS “AT WILL” AND BY RESERVING EMPLOYER’S RIGHT TO CHANGE WORK REQUIREMENTS.

The WCJ had accepted the testimony of the employer’s medical expert regarding claimant’s work capabilities. However, the Judge denied modification in the context of a claim petition because the Judge found that there had been no bonafide job offer where the modified position was offered for “at will” employment and the duties could be revised. The court reversed the Judge and ordered modification of benefits based on the employer job offer. The court concluded that “at will” language was of no moment and likewise the employer’s reserving its right to change work requirements did not invalidate job offer.

See: Presby Homes & Services v. WCAB (Quiah) ______ A.2d ______ (Pa. Cmwlth. 11/5/09).

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CLAIMANT’S TESTIMONY REGARDING HER SUBJECTIVE BELIEF ABOUT HER WORK CAPABILITIES IS INSUFFICIENT TO DEFEAT A MODIFICATION PETITION.

In a Decision issued on June 25, 2009 and amended on September 14, 2009, the Commonwealth Court addressed Claimant’s burden of proof to defeat a Modification Petition based on an employer job offer. Claimant did return to work after the employer job offer with her time of injury employer. However, she worked less than forty hours per week where she averred she could not work ten hour days, left early on other days due to back pain and missed work on various occasions. The WCJ concluded that the issue of indemnity benefits was not before him although Claimant challenged the Notification of Modification and employer filed a Modification Petition. The Commonwealth Court reversed the Judge’s Order which indicated that compensation was modified or suspended depending upon Claimant’s actual earnings. The Court highlighted the employer’s duty to make a job offer and the Kachinski requirements. The Court held that employer met its burden of proof and that Claimant’s statement that sometimes she cannot do the job because her back hurts was inadequate to rebut employer’s evidence.

See: World Kitchen, Inc. v. WCAB (Rideout) _______ A.2d ________ Pa. Cmwlth. 6/25/09 with 9/14/09 amendment).

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EARNING POWER ASSSESSMENT MUST BE CONDUCTED IN AREA WHERE INJURY OCCURRED IF CLAIMANT RESIDES OUT OF STATE.

The Supreme Court of Pennsylvania reversed a Modification based on an earning power assessment where the earning power assessment was conducted out of state in the area of Claimant’s residence. The Court held that §306(b)(2) contains unequivocal mandatory language that identifies the area where the injury occurred as the relevant location to conduct earning power assessment for non-residents.

See: Riddle v. Workers’ Compensation Appeal Board (Allegheny City Electric, Inc.). _______ A.2d ________ (Pa. Cmwlth.10/22/09).

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WINDOW SHOPPING NOT SUFFICIENT TO DEFEAT SUSPENSION/RETIREMENT PETITION

The Commonwealth Court has addressed claimant’s burden of proof to defeat a Suspension Petition after retirement. Specifically, the Court reversed both the WCJ and WCAB and granted a suspension of benefits where the claimant testified that he was seeking employment. The facts established that claimant registered at a CareerLink website one week prior to hearing and inquired about a job with a local employer two weeks prior to the hearing. He also testified that he would review the CareerLink website and newspaper ads. The Court explained that searching the internet and newspaper ads for jobs without more does not constitute a job search, but instead constitutes "surfing" the web and reading the newspaper – window shopping.

See: The Pennsylvania State University/The PMA Insurance Group v. WCAB (Hensal), 948 A.2d 907 (Pa.Cmwlth. 05/19/08)

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KACHINSKI STANDARDS APPLY TO ACT 57 JOB OFFER REQUIREMENTS

On December 27, 2006, the Supreme Court affirmed without opinion the Order of the Commonwealth Court.

Claimant had worked for the employer as a glass machine operator. She sustained bilateral carpal tunnel syndrome and had undergone both right-sided and left decompression surgeries. Claimant subsequently returned to light-duty work and was thereafter laid off. Employer offered "opt-out" agreements or separation packages to employees. While claimant’s husband, also an employee, accepted such package, claimant did not. Claimant’s husband then obtained work in Oklahoma and the family relocated. Several months thereafter, the employer offered claimant her previous light duty job as storeroom assistant at wages equal to or greater than her pre-injury average weekly wage.

See: Motor Coils Manufacturing/WABTEC v. WCAB (Bish), 912 A.2d 212 (Pa. 12/27/06)

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INJURY FROM "HORSEPLAY" MAY BE COMPENSABLE DESPITE VIOLATING A POSITIVE WORK ORDER OF EMPLOYER

The workers’ compensation judge granted the claim petition for total disability as a result of a left leg injury sustained in the course of a work incident whereby the claimant was "bear hugged" by a co-worker and fell to the ground. The claimant testified that he was a "victim" not an active participant in the horseplay. Employer produced testimony that the co-workers were mutually engaged in horseplay. The claimant admitted that horseplay was prohibited by the employer.

See: Sysco Food Services of Philadelphia v. WCAB (Sebastiano), (Pa. Cmwlth. 01-23-08).

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ISSUANCE OF A PROPERLY WORKED NOTICE OF COMPENSATION DENIAL PERMITS THE DEFENDANT TO FILE A UTILIZATION REVIEW CHALLENGING THE CLAIMANT’S ONGOING MEDICAL AND/OR CHIROPRACTIC TREATMENT

Defendant/employer need not file a medical-only Notice of Compensation Payable in order to properly acknowledge a claimant’s work-related injuries as being of a medical-only nature. Furthermore, a defendant/employer need not issue a medical-only Notice of Compensation Payable in order to challenge a claimant’s medical or chiropractic treatment pursuant to the Utilization Review.

See: : Bureau of Workers’ Compensation v. WCAB (US Food Service) ), 932 A.2d 309 (Pa. Cmwlth. 8/22/07).

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EMPLOYER IS NOT ENTITLED TO SUPERSEDEAS FUND REIMBURSEMENT WHERE TERMINATION PETITION GRANTED AFTER C&R WHICH RESOLVED ALL PAST, PRESENT AND FUTURE LIABILITY

The employer filed a Petition for Termination. While it was pending, the parties entered into a Compromise and Release Agreement under which the employer paid the claimant a lump-sum to fully satisfy the employer’s past, present and future liability to pay the claimant benefits. A WCJ approved C&R. Two weeks later, the WCJ also granted employer’s Termination Petition. The employer then filed an application for supersedeas fund reimbursement. The Judge granted the Petition and the Board affirmed. The Commonwealth Court reversed and instead the Court concluded the employer was not entitled to reimbursement from the supersedeas fund.

See: Nathan Armstrong vs. W.C.A.B. (Haines & Kibble House, Inc.) , 931 A.2d 827 (Pa.Cmwlth. 2007)

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COURT REAFFIRMS RULE THAT EMPLOYER IS ENTITLED TO SUPERSEDEAS FUND REIMBURSEMENT AFTER IT PREVAILS IN LITIGATION. THIS WAS TRUE EVEN THOUGH THERE WAS A STIPULATION AS TO ONE FACTUAL ISSUE BUT EMPLOYER STILL CONTESTED P ETITION.

Claimant filed a Petition for Reinstatement on August 14, 2000. However, his benefits had been previously suspended on September 19, 1992 and terminated effective November 3, 1995. Defendant denied the Petition arguing that it was barred by the three year statute of limitations. The parties stipulated that claimant was totally disabled between 1/1/98 and 1/23/01 but that the Judge should address the statute of limitations argument.

See: J.P. Lamb Construction, Inc. v. WCAB (Bureau of Workers’ Compensation) 909 A.2d 18 (Pa. Cmwlth. 10/11/06).

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THE CLAIMANT HAS THE BURDEN TO REBUT THE CONCLUSION THAT
CLAIMANT LEFT THE WORK FORCE BY ACCEPTING A PENSION

The claimant must establish (1) he is seeking employment or (2) the injury forced him to retire.

See: Mason v. WCAB (Joy Mining Machinery), (Pa. Cmwlth. 03-18-08)

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THE CLAIMANT MUST ESTABLISH A LOSS OF USE VIA COMPETENT AND CREDIBLE MEDICAL EVIDENCE OF A PERMANENT LOSS FOR ALL PRACTICAL INTENTS AND PURPOSES

In Jacobi v. WCAB (Wawa, Inc.) (Pa. Cmwlth. 02-12-08), the Appeal Board correctly reversed the workers’ compensation judge’s decision granting the claimant’s Petition for Review of Benefits Payable as a result of the original work injury. While employed as a truck driver/deliverer, the claimant caught his fingers in a freight elevator door. Notice of Compensation Payable described the injury as a crush injury to claimant’s right index and middle fingers. Temporary total disability benefits were paid through claimant’s date of return to work. The claimant filed a subsequent Review Petition alleging a loss of use of the right middle finger following a surgical procedure. The claimant actually had three surgeries. In the last procedure, the distal joint was fused and a metal screw was inserted.

See: Jacobi v. WCAB (Wawa, Inc.) (Pa. Cmwlth. 02-12-08)

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The performance of an Impairment Rating Evaluation (IRE) is not an admission of permanency of claimant’s disability and does not preclude subsequent litigation of any change in employee’s disability, where the employee’s condition is not irreversible. Although the defendant did not prevail in the underlying termination petition litigation, the Court concluded that a termination petition was not prohibited where a defendant filed a termination petition based upon a change in the employee’s disability. A finding of "permanent disability" is not the equivalent of a finding that the injury is irreversible. A petition would be precluded where the claimant’s condition is clearly irreversible, such as in the case of a progressive occupational disease.

See: Schachter v. WCAB (SPS Technologies), No. 320 C.D. 2006 (Pa. Cmwlth. 10-12-06).

Practice Pointer: As a termination/modification/suspension petition is not precluded by an impairment rating evaluation, we recommend utilization of the IRE procedure to commence the 500 week period of partial disability benefit status.

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The Claimant May Be Required To Release Medical Records As Part Of IME

The claimant duty to cooperate with an independent medical evaluation (IME), pursuant to §314 of the Act, includes a requirement that claimant provide a release of her/his relevant medical records. Cooperation requires more than mere attendance at the appointed time and place. Prior appellate decisions interpret the term "physical examination" to include all reasonable medical procedures and tests necessary to permit a provider to determine the extent of a claimant’s disability. This includes non-evasive diagnostic testing such as an MRI or bone scan. In this case, the matter was remanded for a determination of whether the claimant’s psychiatric treatment records were relevant to the physical injuries with psychological components. See: Central Dauphin School District v. WCAB (Siler), No. 612 C.D. 2006 (Pa. Cmwlth. 10-17-06).

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A claim petition filed in May of 2002 alleges the loss of use of the right arm for all practical intents and purposes as a complication of the work-related back surgery. Defendant admitted the compensability of the right arm injury. There was no prior petition for review of the Notice of Compensation Payable, the claimant made that request at the initial claim petition hearing. The workers’ compensation judge awarded loss of use benefits relying upon claimant’s "discovery rule" argument. He argued that the statute of limitations did not commence until he "knew" of the work relationship of loss of use, which occurred via his treating physician report in December of 2002 (after the date of the filing of the claim petition?). The Commonwealth Court rejected claimant’s "discovery rule" argument as this argument has been rejected in similar injury claims, including aggravation of arthritis conditions. (See: Young v. WCAB (J&L Steel), (a FKWZ&G case).

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The Supreme Court affirmed the decision in Gardner, that an Insurer WAIVES it's right to an Impairment Rating Evaluation (IRE), if it is not requested within 60 days of the claimant's receipt of 104 weeks of total disability benefits. The court distinguished this "automatic relief" provision from the right to request an IRE at a subsequent time. The court did "preserve" the right to request an IRE, which would not provide automatic relief. The insurer would be required to obtain an agreement with claimant or file a petition, to obtain any relief.

Gardner v. WCAB (Genesis Health Ventures) decided December 28, 2005.

PRACTICE POINTER: To obtain an IRE, the insurer MUST request an examination within these strict time parameters, within 60 days of RECEIPT of 104 weeks of TTD benefits.

We recommend diary of all injury cases for consideration of an IRE remedy. We continue to recommend the IRE remedy, in limited circumstances, where a total recovery is not anticipated.

Issue: A claimant’s AWW for a prior work injury should be used in calculating AWW for a subsequent work injury when claimant missed work due to the prior work during the four quarters immediately proceeding the subsequent injury. The PA Supreme Court AFFIRMED the decision of the Commonwealth Court in a highly contentious case where multiple parties submitted briefs. see: William Colpetzer v. WCAB (Standard Steel), David Zerby v. WCAB (Reading Anthracite), 2005 Pa. Lexis 620, March 30, 2005.

Where a claimant suffers two work related injuries to two different body parts, and each injury was a substantial contributing factor to his or her total disability (and each injury is covered by a separate insurance carrier), the claimant’s benefits are appropriately paid by both insurers on a pro-rata basis. The Commonwealth Court AFFIRMED the decision of the WCJ and Board. see: Guard Insurance Group v. WCAB (York and TIG Premier Insurance), 864 A.2d 1285 (Pa. Commw., January 25, 2005).

An Employee, in a profession where "dangerous" conditions are "normal", will have a difficult burden of proof to establish abnormal working conditions in a mental/mental psychic injury claim.

Where an Employee has some physical contact with individuals, which is a normal and expected part of the job for which she received training, where she does not suffer any physical injury, the claim must be analyzed under a mental/mental standard.

SEE: Anderson v. WCAB ( Washington-Greene Alternative), 2004 Pa. Commw. LEXIS 769, October 25, 2004

The 30 day time period for the filing of a Petition for Review of a Utilization Review Determination, commences upon receipt of the UR Determination by the Provider, Employer, Employee or Insurer. The PA Supreme Court REVERSED the decision of the Commonwealth Court and REJECTED the reasoning, that a later date of receipt by the Department of Labor Industry, would extend this statutory time period.

SEE :Gallie v. WCAB ( Fichtel & Sachs Industries ), 2004 Pa. LEXIS 2509, Pa. Supreme Court, October 25, 2004.

The claimant §440 request for imposition of attorneys' fees as a cost payable by defendant, may include reasonable charges for legal work performed by paraprofessionals.

See:Vitac Corp. v. W.C.A.B. (Rozanc), 2004 Pa. LEXIS 1695 (Supreme Ct. 07-22-04).

In an employee challenge to a Notice of Suspension or Modification Pursuant to §413(c) & (d) (LIBC-751), the workers' compensation judge may also properly consider the defendant/employer/insurer evidence in a concurrent Suspension Petition and grant a suspension of benefits, beyond employee's last day of work based upon the evidence submitted in the supersedeas request.

See: USAirways v. W.C.A.B. (Rumbaugh), 2004 Pa. LEXIS 1605 (Supreme Ct. 07-20-04).

The Supreme Court of Pennsylvania clarifies the application of notice provisions for aggravations and cumulative trauma injuries. The notice period commences with the last day of aggravation, which is most often the last day of work. The court did not overrule prior case precedents which found the date of injury to be the date of diagnosis, where the theory of disability was not based upon an aggravation or cumulative trauma injury.

See: Asplundh Tree Expert Company v. W.C.A.B. (Humphrey), 2004 Pa. Cmmw. Lexis 480 (06-22-04)

The Affirmative Defense to challenge and Employee’s receipt of workers’ compensation benefits based upon the violation of a positive order or rule of the Employer is limited. Even though the Employee violated the Employer safety policies, which resulted in his injuries, his violation of the safety rules was not "so disconnected" from his work duties as to render him outside the scope of employment. The court distinguished a violation of positive orders occurring during activities connected with the work duties from violations of positive orders of a prohibited activity not connected with the work duties.

See: City of Philadelphia v. W.C.A.B. (Williams), 204 Pa. Cmmw. Lexis 1326 (06-21-04)

A civil action for "Vocational Malpractice" was allowed to proceed. PA Superior Court held a claimant could pursue a civil action for "injury" which did not arise within the scope of employment. The court did not comment upon the merits of the underlying claim.

See: Taylor v. Woods Rehabilitation Services 2004 Pa. Super Lexis 312 Decided 3/31/04

An IRE may be requested two times during a 12 month period, without a requirement that a change of status of impairment has occurred.

See: Hilyer v. WCAB (Jos. T. Pastrill Jr. Logging) 2004 Pa. Commw. Lexis 308 Decided 4/21/04

On April 13, 2004, the Commonwealth Court issued a decision allowing a Claimant to amend an NCP to establish a different injury date and to include additional injuries.

See: Meenan Oil Company, L.P. v. WCAB (Pownall)

The Supreme Court recently held that "physical examination" as utilized in Section 314 of the Act (employee must submit to periodic physical exams at request of employer), includes diagnostic tests, as long as they are necessary; involve no more than minimal risk; and are not unreasonably intrusive.

See: Coleman v. WCAB (Indiana Hospital and PHICO Services Company), No. 16 WAP 2003, decided February 17, 2004.

The Supreme Court decision in CASO has been applied retrospectively, to a pending 306 (b)(2) modification petition. The Commonwealth Court has remanded a case for WCJ's consideration of the employer's vocational expert evidence.

See: Altoona Wholesale Distributors v. WCAB ( Bell) 2004 Pa Commw Lexis 53 (1/30/04)

When investigating or litigating a claim based upon a daily aggravation theory of work related disability, One must also consider the ubiquitous theory of a "non-daily" aggravation, as the cause of employee's alleged disability. The denial of a claim for the alleged work related aggravation of plantar faciitis, as a result of prolonged standing as a salesperson, was vacated and remanded for consideration of the alternative theory of liability, the heretofore unheeded, "non-daily" aggravation. The underlying issue concerned the "date of injury" as the claim petition was filed more than 3 years after the diagnosis.

See: Armitage v. WCAB (Gurler Chemicals) 2004 Pa Commw Lexis 115 (2/11/04)

The Supreme Court of Pennsylvania has OVERRULED the decision CASO! The Court approved the Bureau position that it may "approve", via regulation, the qualifications of vocational experts, to perform earning power assessment interviews.

A worker may be compelled to attend a vocational expert examination. This ruling validates the existing procedures, relied upon by Insurers and Employers, in pending Modification Petition litigation.

Click here for a more detailed analysis of the Supreme Court opinion by the attorneys at Fried Kane Walters Zuschlag & Grochmal

On December 23, 2003, Governor Ed Rendell signed into law House Bill No. 88. The new law is now referenced as Act 53. Significantly, Act 53 removes the Act 57 mandate requiring departmental approval of a vocational expert before an interview can be canceled. Instead, Act 53 provides that an insurer may require the employee to submit to an interview by a vocational expert "who meets the minimum qualifications established by the Department through regulation."

The affect of Act 53 is to nullify Caso and its progeny. Caso held that a Workers’ Compensation Judge could not order the claimant to attend a vocational interview where the Department had not issued a list of approved vocational experts. This presented a problem for employers where the Bureau had refused to issue such a list but instead sent letters to vocational counselors stating that they were qualified based on the counselor’s representations. Of course, the irony is that before Act 53 becomes effective (60 days after publication), Caso has been specifically overruled by the Supreme Court of Pennsylvania.

Click here for a more detailed discussion of Act 53.

New legislation has made its way through the Pennsylvania House and Senate pertaining to the use of vocational experts in workers’ compensation cases. This matter is now before Governor Rendell and will go into effect sixty days after his anticipated signing.

The new Amendments remove the requirement that the Bureau of Workers’ Compensation maintain a list or otherwise approve vocational experts before they are permitted to conduct expert interviews, perform earnings power assessments or testify as expert witnesses. Other changes address the disclosure by an insurance carrier where a financial interest exists with the vocational expert/company.

Other Amendments to the Worker’s Compensation Act provide that individuals shall now be considered employees in two limited situations where they might otherwise be considered as not furthering the legitimate business interests of their employers. These situations are where the individuals render aid or rescue at the scene of an emergency and also where they attempt to aid the victim of a crime or prevent/thwart a crime.

For a more detailed discussion of these anticipated statutory changes, click here

In a case addressing a question of first impression before the Commonwealth Court of Pennsylvania, President Judge James Gardner Colins rendered a 5 to 2 majority decision on November 10, 2003 re-clarifying the legal standard wherein an employer and/or insurance carrier may exempt itself from coverage under Section 301(a) of the Workers' Compensation Act when it is established through competent and credible medical evidence that the claimant's work injury was caused by his intoxication. The Commonwealth Court of Pennsylvania also re-clarified the standard for determining when it is appropriate to issue a notice of temporary compensation payable rather than a notice of compensation payable. This case was successfully argued before an en banc panel of the Commonwealth Court of Pennsylvania in Pittsburgh, Pennsylvania on October 8, 2003 by Brian D. Walters, Esquire, a partner of the law firm of Fried, Kane, Walters, Zuschlag & Grochmal.

See: Lawrence Mahon vs. Workers' Compensation Appeal Board (Expert Window Cleaning and State Workers Insurance Fund).

The Commonwealth Court severely restricts application of the Statute of Limitations Provision under § 315 as outlined in Jeanes Hospital v. W.C.A.B. (Hass) 819 A.2d 131 (Pa.Cmwlth. 2003) by determining that § 315 will not preclude a Petition for Review under § 413 of the Act as long as the Claimant’s Petition for Review was filed within three (3) years of the most recent payment of workers’ compensation benefits.

Claimant may proceed with litigation of a Review Petition, however, Claimant must meet his burden of proof that the psychological (or physical) symptoms are compensable as a natural and probable consequence of the accepted work injury.

Westinghouse Electric Corporation/CBS v. W.C.A.B. (Burger)

The Commonwealth Court took an unprecedented step in this case by abolishing the Doctrine of Common Law Marriage. In a 32-page decision, the Court took the lead from the Supreme Court of Pennsylvania and found that the historical reasons for the Doctrine no longer exist and that the Doctrine provided a fruitful source of perjury and fraud that would no longer be tolerated in the Commonwealth of Pennsylvania.

PNC Bank Corporation v. W.C.A.B.(Stamos)

The Commonwealth Court determined that an award of specific loss benefits under Section 306 of the Act would not be limited by the statutory maximum benefit rate where a Claimant, at the time of the specific loss, was receiving total disability for a separate injury. In other words, a specific loss award for a prior injury can be combined with total or partial disability benefits for a second injury and both benefits received concurrently.

Faulkner Cadillac v. W.C.A.B. (Tinari)

Payment of medical expenses by an employer (not wc insurer) to a company dispensary physician is sufficient to toll the 3 year statute of limitations for the filing of a Claim Petition.

Harley Davidson, Inc. v. WCAB (Emig, Jr.)

Insurer must request Employee attend an Impairment Rating Evaluation ( IRE ) within 60 days of the 104th week of benefit payments, or IRE remedies are Forfeited!

Gardner v. W.C.A.B. (Genesis Health Ventures)

Insurer may obtain a Supersedeas Fund Reimbursement of benefit payments, based upon a Stipulation, supported by the evidence and approved by the WCJ.

Optimax v. W.C.A.B. (Yacono)

Employee's entitlement to Partial Disability Benefits, for a duration of 500 weeks, is NOT Reduced by any week during which benefit payment is Suspended

Cytemp Specialty Steel v. W.C.A.B. (Cervey)

A wrongful discharge civil action will lie against a Pennsylvania Employer for the discharge of an Employee when the Employee is fired for refusing to dissuade a subordinate Employee from pursuing a Workers' Compensation claim.

Theodore C. Rothrock and Douglas Rothrock v. Rothrock Motor Sales

In order to demonstrate earning power pursuant to §306(b)(2), 77 P.S. 512(2) an Employer must demonstrate that there are actual and available jobs that Claimant is capable of performing

Compensation For Medical Appointments

CPV Manufacturing v. W.C.A.B. (McGovern)

Commonwealth Court Issues Decision Addressing Preauthorization of Medical Treatment

McLaughlin v. WCAB (St. Francis Country House)

Workers' Compensation insurer entitled to subrogation against third party settlement designated as pain and suffering

Thompson v. W.C.A.B. (USF&G Co. and Craig Welding & Equipment Rental)

Burden of proof on Reinstatement Petition subsequent to economic layoff where claimant was performing time of injury job which fell within his physical capabilities

Folk v. W.C.A.B. (Dana Corp.)

FKWZ&G Successfully obtains reversal from the Commonwealth Court of Prior adverse WCJ and WCAB decisions regarding a claimant's alleged work-related stress claim

City of Pittsburgh v. Workers' Compensation Appeal Board (Lionel Plowden)

Negligent and Intentional Infliction of Emotional Distress Claims Under the Workers' Compensation Act

Brooks v. Chris Mendoza and Denny's Inc., d/b/a Denny's Restaurant

Reasonableness and Necessity of Medical Treatment During Litigation of Claim Petition

Credit and Offset (Severance Pay)

Commonwealth Court Addresses the Issue of Department Approval for Vocational Experts Under Section 306(b)(2)

Caso v. WCAB (School District of Philadelphia)