Wednesday, December 31, 2003

Supreme Court to Review Timely Filing of Petition to Review Utilization Review Determination

The Supreme Court granted the Employer's Petition For Allowance of Appeal in Gallie v. WCAB (Fichtel & Sachs Industries). The case allowed a Claimant to file a Petition to Review Utilization Review Determination more than thirty days after the Claimant received the initial utilization review determination, because the WCJ observed the Bureau had received the initial determination less than thirty days before the date the Claimant filed.

I noted in my September 11, 2003 post on this case that application of this rule might be a challenge. The Bureau's CIMS database does not record the date of receipt of the initial determination, because it is not a filing. The date of the Bureau's receipt can only be determined from the date stamp on the copy of the initial determination that is sent to the WCJ, provided the stamp is legible.

Governor Rendell Signed HB88 on December 23 -- Effective February 21, 2004

Governor Rendell signed House Bill 88 (see December 22 post) on December 23. The Act is effective in sixty(60) days, so February 21, 2004 will be the effective date. Yahoo News -- Pa. Chamber of Business and Industry Press Release

Overutilization of Low Back Fusion

A New York Times Article (free subscription required) observes that while low back fusion has not been demonstrated to be more effective than laminectomy, the procedure continues to be offered frequently. The article discusses the methods of the hardware manufacturers to market their product and the increased medicare and private insurance reimbursement doctors and hospitals receive. Read all the way to page three for the story of a medical director of a California insurance company with back pain from an extruded disk -- the key here may be no leg pain -- his choice: no surgery, with recovery in two months.

Wednesday, December 24, 2003

Decision on Reasonable Attorney's Fees

In PATLA news, there is a link to a Decision of WCJ Eric Jones, posted, I think, for the proposition that a reasonable attorney's fee for eminent Claimant's Counsel in Pittsburgh is $250.00 per hour for a senior partner and $200.00 per hour for his mid-level partner or associate. Judge Jones made an unreasonable contest attorneys' fee award. The Decision and Order sets forth his usual detailed and complete analysis of the considerations in awarding these rates.

Monday, December 22, 2003

Maximum Compensation Rate for 2004

The Maximum Workers' Compensation Rate for 2004 is $690.

Legislation Addressing Caso and Other Issues Sent to Governor Rendell for Signature

House Bill 88 was sent to the Governor December 17, 2003 for action by December 27, 2003. The major provision of this legislation is to eliminate the requirement that an expert who will conduct a vocational evaluation be approved by the Department. The expert will have to meet the minimum qualifications established by the Department through regulation to conduct a vocational interview.

An additional requirement is that the vocational expert shall comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses. An element of this is the practice of using vocational counselors who are employed within the corporate structure of the insurance carrier, and who often do vocational assessments only for that carrier. Language prohibiting this was stricken from the final version of the bill. All the bill requires now is disclosure of the relationship at the time the exam is scheduled.

This disclosure may still be a powerful provision, because it will allow Claimant's Counsel to preserve an objection to the competency of the vocational witness on the basis of the witness' conflict of interest. The WCJ determines the competency of a vocational witness without regard to the provisions of the Act about the qualifications of vocational witnesses to conduct vocational interviews and the regulations related thereto. Wheeler v WCAB (Reading Hospital and Medical Center)

The final element of the legislation (at least on its face) is the inclusion within the definition of "employe" individuals who, while in the course and scope of their employment, go to the aid of a person and suffer injury or death as a direct result of preventing the commission of a crime, lawfully apprehending a person reasonably suspected of having committed a crime, aiding the victim of a crime or rendering emergency care, first aid or rescue at the scene of an emergency.

Tuesday, December 09, 2003

Section 306(a.2) Sixty (60) Days Runs From the Date of Payment When the 104 Weeks Expires During the Pendency of a Claim Petition.

Wal-Mart Stores, Inc. v. WCAB (Rider) gives an answer to the question of what happens when the 104 weeks under section 306(a.2) of the Act runs while the case is in litigation on a claim petition. The IRE ended up being requested almost 14 months after the 104 weeks ran.

At the point the 104 weeks ran, the Employer had an appeal pending with the Board. The Board eventually remanded, then the WCJ issued an Order granting the claim 13 months after the 104 weeks ran. The Employer let this Order become final, and promptly requested an IRE.

The Commonwealth Court assumed the Board had granted supersedeas on the Employer's initial appeal, and therefore assumed the employer paid only after the WCJ's final Order, and held the IRE was properly requested within sixty (60) days of when the 104 weeks was paid.

Pre-Claim Petition UR Binds the Parties

In L. Krouse v. WCAB (Barrier Enterprises, Inc.) a UR found chiropractic treatment not reasonable and necessary in what was then a medical only claim. The Claimant did not appeal. The Claimant later filed a Claim Petition and received an award. The Board and Commonwealth Court rejected her efforts to include the chiropractic treatment subject to the UR in her Claim Award on the basis of res judicata, collateral estoppel and the principle that the WCJ never has original jurisdiction of reasonableness and necessity.

Monday, November 10, 2003

Commonwealth's Contributions to PSERS Are Not Offset From W.C. Benefits

In Pittsburgh Board of Education v. WCAB (Dancho) the issue was offset for pension contributions of the Commonwealth to the Public School Employees Retirement System. The WCJ accepted the argument of the Employer School District that it was an agent of the Commonwealth, therefore the pension offset should be in the amount of both the School District's and the Commonwealth's contributions to the Claimant's pension. The Board reversed and the Commonwealth Court affirmed, noting that the Commonwealth is not and could not be the "employer liable for the payment of compensation," the party entitled to an offset for its pension contributions under Section 204(a). The Court did not address the effect of the policy in place since June 30, 1995 whereby the school district makes the contribution of the school district and the Commonwealth and is then reimbursed for the Commonwealth's share. The Court stated this issue was not raised below.

Saturday, November 08, 2003

Claimant Cannot Reinstate By Offering Evidence That He Could Never Do The Job In The Prior Modification

In R. Williams v. WCAB (Hahnemann University Hospital) the Claimant was modified by Order of the WCJ, then petitioned for reinstatement after the 500 weeks expired. The Claimant's burden, of course, is to prove the Claimant cannot perform the job that was found available in the prior modification petition and can perform no work. In Williams, the Claimant presented medical and vocational evidence that he was never able to perform the work he was found capable of performing in the prior petition. The Commonwealth Court held this evidence that contradicted the prior findings of the WCJ was incompetent, and did not meet the Claimant's burden for reinstatement.

Commonwealth Court Holds No Pension Offset Unless Employer is Self-Insured

In Welliver McGuire, Inc. v. WCAB (Padgett) the Commonwealth Court addressed the argument that an Employer is not entitled to offset for a pension if the Employer is not self-insured. Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corporation), 794 A.2d 953 (Pa. Cmwlth. 2002), petition for allowance of appeal granted, 820 A.2d 700 (Pa. 2003) held the Employer is not entitled to an offset for severance benefits unless it is self-insured. The Court applied the reasoning in Kramer and held an Employer is entitled to an offset for the Employer's contribution to a pension only to the extent it is self-insured. This decision will be impacted by the Supreme Court's holding in Kramer, which will be argued in Harrisburg on December 2, along with Colpetzer/Zerby.

Friday, November 07, 2003

Commonwealth Court Remands Case to Board to Explain How the Range of Weeks Most Judges Would Award For Disfigurement is Arrived At

In Lord & Taylor v. WCAB (Bufford) the record supported only a finding that a scar that is three-quarters of an inch to an inch in length is permanent and related to the work injury. The WCJ awarded thirty weeks. The Board stated the award was significantly outside the range most judges would select. Without stating the range, the Board awarded 100 weeks. The Commonwealth Court remanded for the Board to explain 1) what disfigurement is covered by the award; 2) what is the range most WCJ's would award; and 3) how the Board arrives at that range. The Board can then state whether the WCJ's award fell in the range, and modify the award if it did not.

Thursday, November 06, 2003

Treatment of Low Back Pain News

The World Health Organization released a report entitled The Burden of Musculoskeletal Conditions at the Start of the New millennium. The report indicated Low back pain has reached epidemic proportions being reported by about 80% of people at some time in their life. Total costs of musculoskeletal disease in the US in 2000 have been calculated at US$254 billion.

On the treatment front, spinal endoscopic adhesiolysis was found effective in a study reported in Doctor's Guide, as was the IDET Procedure in a study recognized as an outstanding paper by the North American Spine Society.

When spinal fusion is contemplated, another study recommends the use of the Dallas Pain Questionnaire to predict the outcome of spinal fusion surgery. According to the study, "the largest risk factors for inferior outcomes after spinal fusion are the pre-procedure existence of emotional distress, previous surgery and a status of not working."

Take a one hour CME course in the assessment and treatment of low back pain

Monday, November 03, 2003

No Specific Loss of Foot When Ankle is Useless

In Maple Creek Mining Co. v. WCAB (Bakos) the Employer moved to suspend benefits alleging the Claimant's ankle injury resolved into a specific loss of the foot. All the doctors testified the Claimant had lost the use of his foot based on the condition of his ankle. The WCJ and Board dismissed the case, and the Commonwealth Court affirmed. The Act does not provide for specific loss of the ankle, and there was no amputation. Accordingly, The Court held there is no statutory provision that allows the relief the Employer was seeking.

Wednesday, October 29, 2003

Commonwealth Court Reviews Several Issues of Competency of Utilization Reviews

In M. Haynes v. WCAB (City of Chester) The Claimant took his doctor's testimony in support of physical therapy his doctor prescribed. In opposition, the Employer presented the Utilization Reviewer, a physical therapist. The WCJ also requested a Peer Review and the Bureau assigned a physical therapist. The WCJ credited the physical therapists. The Commonwealth Court rejected the Claimant's argument that the physical therapists' opinions were not competent. The Bureau procedure provides for appointing physical therapists to review physical therapy, and there could be no issue of causal connection to the work injury, an issue that would require competent medical testimony.

The Claimant in Haynes also did not prevail on his argument that the physical therapy he received provided palliative care, because the physical therapists reasoned it was not reasonable and necessary on the basis that it was repetitive, did not require skilled care, and incomplete.

In C. Havenstrite v. WCAB (Tobyhanna State Park), The Commonwealth Court en banc held the provider does not need to be consulted when his notes are characterized by the reviewer as "sketchy". The Court held this goes to the weight to be given to the reviewer's opinions.

The dissent noted the requirement of 34 Pa. Code Section 127.469 that states the reviewer shall initiate discussion with the provider when such a discussion will assist the reviewer in reaching a determination. The dissent would have combined this with the requirement that the issue be resolved in the favor of the provider if the reviewer is unable to determine whether the treatment is reasonable and necessary to hold the reviewer's opinions were incompetent.

Monday, October 20, 2003

Issue in Gibson v. WCAB (Armco Stainless & Alloy Products) is the Standard of Proof of Asbestos Exposure

I was provided the .pdf of Gibson v. WCAB (Armco Stainless & Alloy Products), the unreported decision of the Commonwealth Court on which the Supreme Court granted the Employer's Petition for Allowance of Appeal and granted supersedeas.

In the case, the WCJ granted a fatal asbestosis claim, but the Board reversed, finding there was not substantial, competent evidence to support the finding that the Claimant was exposed to asbestos.

The evidence of exposure was a co-worker's testimony that he saw a dark grey, heavy-cotton type material that he believed was asbestos on pipes running in and out of the furnace. The witness indicated the stuff fell off, created dust, and the Claimant would have to sweep up the material as part of his job. The witness finally testified that one facility where he worked with the Claimant was shut down for several years, and it appeared new walls were installed and asbestos material was removed from the walls. The witness admitted, however, that he had no training in identifying asbestos and he could not state with certainty that what he saw was asbestos.

The Commonwealth Court en banc reversed the Board and found that the WCJ properly relied on the testimony of the lay witness under the clear Commonwealth Court precedent regarding the non-technical nature of a Claimant's burden of proof in establishing asbestos exposure. The Court cited Witco-Kendall Co. v. WCAB (Adams), 562 A.2d 397 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 652, 581 A.2d 577 (1990) which held, inter alia, that the Claimant's failure to identify the dust to which he was exposed was not fatal to his petition.

The Court did not mention McMullen v. WCAB (City of Philadelphia) which extended this principle to the extent that where the Claimant testified his firehouse underwent asbestos removal, the rebuttable presumption of Section 301(e) arose.

The Dissent in Gibson would have affirmed the Board because the co-employee's testimony was equivocal. Interestingly the dissent distinguished Witco-Kendall on the basis that the Employer in that case did not contest asbestos exposure. This is consistent with application of McMullen which would always establish in the record whether the Employer contests exposure, and if so, what its evidence is to rebut the Claimant's exposure case.

Thanks to Brian S. Frantum, Esquire
Holsten & Associates
Media, PA

Wednesday, October 15, 2003

Tuesday, October 14, 2003

Status of OSHA Regualtion of Repetitive Stress Injuries

An article in the Washington Post details the debate about reporting of repetitive stress injuries. The OSHA rule requiring reporting passed by the Clinton Administration was reversed by the Bush Administration.

Petition for Allowance of Appeal Granted with Grant of Supersedeas, But The Unreported Commonwealth Court Opinion Posting Has Expired

The Supreme Court granted a Petition for Alllowance of Appeal and granted supersedeas in Gibson v. WCAB (Armco Stainless & Alloy Products), Petition of: Armco Stainless, et al. Apparently the underlying case was unreported and its posting expired after 90 days. If anyone knows the issue and/or can provide a copy of the unreported decision, email me.

Wednesday, October 08, 2003

SWIF Unsuccessful In Voiding Policy On Allegation Of Employer Misrepresentation

In SWIF v. WCAB (Hering, et al.) the Claimant was found by the WCJ to be an employee of the Employer while working as a parcel delivery person. Upon SWIF's review of the policy, they found the Employer was charged a premium based on a nominal estimated payroll of $1,000.00 for parcel delivery persons, category 808, and SWIF resisted the claim arguing SWIF relied on an Employer representation to its detriment, therefore voiding the policy.

The evidence revealed there is a system of checks and balances through The Pennsylvania Compensation Rating Bureau and the Insurance Department that prevent a category being taken off the policy without reason. In this case, the procedure had been complied with. Based on information including the Employer's computerized payroll printouts, SWIF had received permission to leave category 808 off. SWIF nevertheless issued the policy with this category and assumed the risk of this claim.

Workers' Compensation Carrier Can Take Subrogation Against UIM Award From the Employer's Policy Under Act 44.

In C. Schwaab v. WCAB (Schmidt Baking Co., Inc.) the Commonwealth Court rejected the Claimant's arguments attempting to collect both workers' compensation benefits and uninsured motorist benefits under the employer's policy for his work-related automobile accident. The Court stated the Claimant has no defense to the workers' compensation carrier taking subrogation against the UIM award under Act 44.

Supreme Court May Rule on Unbundling Attorney's Fees

The Supreme Court granted the Claimant's appeal in Vitac Corporation, Pet v. WCAB (Rozanc) and denied the Employer's appeal. This would suggest the Supreme Court is interested in the unbundling of attorney's fees that the WCJ denied, the Board allowed, and the Commonwealth Court denied stating Section 440(a) only allows as costs attorney’s fees, witness costs, necessary medical examination costs, and the value of unreimbursed lost time to attend the proceedings.

The costs at issue in the case were paralegal and law clerk fees. Other sometimes unbundled costs of doing buisness include: in-office photocopying, overnight delivery, Westlaw/Lexis, telephone, fax etc.

No Penalty When Question of law or Fact Remains Unresolved.

Alex Hostina, Dec., Claimant, et al. v. WCAB (Allied Signal, Inc., et al.) includes a very complex factual pattern, but a simple result. No penalty is payable where a question of law or fact remains unresolved.

The Comprehensive NeuroMuscular Profiler (TM)

The company Medical Technologies Limited anticipates FDA approval of a product called The Comprehensive NeuroMuscular Profiler that assesses the functional impairment of soft tissue injuries by providing objective data to correlate with subjectively limited ranges of motion. Article from Miami Herald Article

Thursday, October 02, 2003

In Second Specific Loss to the Same Extremity, a Credit is Given for Prior Specific Loss

In J. Schemmer v. WCAB (US Steel) the Commonwealth Court affirmed the WCJ and Board's grant of the Employer's Petition to Modify to a specific loss. The Court also restated the principle that when the Claimant has lost a body part in a prior injury, the compensation for that part can be credited from a loss further up the extremity. In the case, the Claimant lost his lower leg in a motorcycle accident, then lost an additional portion of the leg in the work injury.

Wednesday, October 01, 2003

Claimant Can Not Be Awarded Penalties After C&R

In Dr. Lincow v. WCAB (Prudential Securities, Inc.) the WCJ found the doctor's treatment unreasonable and unnecessary but on appeal to the Board, the WCJ's decision was reversed. The Board ruled despite the fact they were on notice that the case was C&R'd. The Doctor filed a Penalty Petition due to non-payment. On appeal from the Board, the Court reinstated the WCJ's ruling.

The WCJ denied the Penalty Petition finding the provider's claim was moot. The Court affirmed on this basis and on the basis that since the claim was C&R'd no penalties could be awarded because they are payable to the Claimant. The Court stated there was no standing because the Claimant had released the Employer from all liability under the Act.

This reasoning would suggest that a Claimant who alleges a violation of the Act in the administration of the C&R agreement does not have standing to file a Penalties Petition.

Commonwealth Court Abolishes Common Law Marriage

PNC Bank Corporation v. WCAB (Stamos) is a fatal case where the spouse proved the existence of a common law marriage before the WCJ. The Commonwealth Court engaged in a lengthy discussion of the background of the doctrine of common law marriage. The Court sated the Supreme Court has questioned the viability of the doctrine, allowing the Commonwealth Court to abolish the doctrine. The Court said the doctrine is not necessary where access to a marriage license and magistrate is not limited like it was in the frontier days. The Court finally stated its abolition of the doctrine is prospective in application.

Medical Developments In Low Back Pain

Medical news from the last week:

Call it decompression or call it the rack, these articles say it works.

Perhaps you prefer something more cerebral.

But watch out for the opposite of healthy cognitive therapy.

Tuesday, September 23, 2003

Supreme Court Grants Allocatur in Jeanes Hospital

Jeanes Hospital v. WCAB (Hass) is the case that holds a Claimant must file a timely Claim Petition to add to the description of injury. The Supreme Court granted Allocatur to rule on whether, consistent with Commercial Credit, "...filing a review petition is an appropriate procedure by which to seek amendment of a Notice of Compensation Payable, even if filed more than three years from the date of the workplace injury, in order to add to the description of the covered injury(ies) such consequential medical and psychiatric conditions which are alleged and found to have resulted from the workplace incident or injury identified in the Notice of Compensation Payable, but were not in existence at the time the Notice of Compensation Payable was executed."

Thursday, September 11, 2003

Materials for Blair County Chamber of Commerce Risk Management Committee Presentation, September 12, 2003

These are the materials for the Blair County Chamber of Commerce Risk Management Committee Presentation, September 12, 2003.

Department of Labor and Industry News

Bureau of Workers' Compensation Quick Links Site

Employer's Guide to Workers' Compensation
Employer's Help Line (717) 772-3702

Safety Next

Ergonomics Today

Risk and Insurance

Leon E. Wintermeyer, Inc. and American General Group v. WCAB (Marlowe)

Daniels v. WCAB (Tristate Transport)

C. O'Donnell v. WCAB (United Parcel Service)

Petition to Review Utilization Review Determination Timely If Filed 30 Days After Bureau's Receipt

In P. Gallie v. WCAB (Fichtel & Sachs Industries) The Commonwealth Court affirmed the WCJ, who determined that Section 306(f.1)(6)(iv) of the Act can be read to allow a party to file a Petition to Review Utilization Review Determination within thirty days of the Bureau's receipt of the underlying Determination, even where this date was after the date the party actually received it.

Accordingly, if there is an issue about timely filing, the parties will have to check with the WCJ's office to determine the date of the Bureau's receipt of the Utilization Review Determination. This would be the date stamped by the Bureau on the Utilization Review: Determination Face Sheet. Pray that it is legible, because the receipt of this document was not recorded in the Bureau's Comprehensive Information Management System (CIMS) in the case I looked at.

PMA President and CEO to Webcast Presentation

John W. Smithson, President and Chief Executive Officer of PMA Capital Corporation, will make a presentation at Sandler O'Neill & Partner's 2003 Insurance Conference. The presentation will provide an overview of PMA Capital's operations and discuss the current market for the Company's specialty insurance and reinsurance products. The live audio webcast of Mr. Smithson's presentation, along with slides related to the presentation, can be accessed at by going to the Investor Information page, clicking on News Releases to find this announcement and then clicking on the microphone icon next to this release.

Tuesday, September 09, 2003

John T. Kupchinsky Appointed Director of Bureau of Workers Compensation

Congratulations to John T. Kupchinsky, Esq. who was appointed by Department of Labor and Industry Secretary Stephen M. Schmerin as Director of the Bureau of Workers' Compensation. Article

Monday, September 08, 2003

HHS Answers HIPAA Questions.

By clicking on this link to the United States Department of Health and Human Services Q&A Site, you can review the position of HHS that HIPAA does not affect the disclosure of health information necessary for the processing or adjudication of a workers' compensation case, or to coordinate care in a workers' compensation case. The Q&As generally indicate all procedures for gathering records pursuant to state law require no further authorization of the Claimant.

Specific Loss Benefits Can Be Paid Concurrently With TTD Benefits

In Faulkner Cadillac v. WCAB (Tinari) the Claimant's specific loss was unrelated to a later injury for which he was receiving workers' compensation benefits. The WCJ awarded TTD benefits and specific loss benefits concurrently. The Employer argued the benefits should be limited by either the Claimant's pre-injury earning power or by the statutory maximum. The convention since Moran v. Glen Alden Coal Co., 36 A.2d 845 (Pa. Super. 1944) has been that the specific loss benefits would be paid at the end of the period of temporary total disability. The Commonwealth Court held, however, that since specific loss benefits are paid without regard to loss of earning power, they can be paid concurrently.

Comonwealth Court Remands With Direction On Appropriate Findings After Daniels

C. O'Donnell v. WCAB (United Parcel Service) is the first case to apply the Supreme Court's decision in Daniels to find a WCJ's decision to be not a reasoned decision in accordance with Section 422(a) of the Act. The Claimant had cervical injuries from lifting a 115 lb. box. The issues in the case were whether psychiatric treatment was related to the work injury, whether the description of injury should be expanded and whether recommended breast reduction surgery was compensable.

Five doctors testified: the family doctor, the Claimant's psychiatrist and orthopedist and the Employer's psychiatrist and orthopedist. The WCJ rejected opinions that psychiatric treatment was related and opinions that breast reduction surgery was related. The WCJ rejected opinions that the description of injury should be expanded. In the credibility findings the WCJ gave no reasons or nonspecific reasons why the doctors' opinions were credible or not credible.

The Board affirmed based on the Commonwealth Court's ruling in Daniels which held a WCJ issues a reasoned decision when he or she outlines all of the evidence considered, merely states the credible evidence upon which he or she relied, and sets forth the reasons for the ultimate disposition of the petition at issue.

The rub with applying this standard, according to the Supreme Court, was that a reviewing court would be charged with "imagining" the reasons why the WCJ was more convinced by the opinions the WCJ found to be credible. In O'Donnell, the Commonwealth Court gave just a taste of what it could imagine based on bits of five doctors' testimony, then remanded, holding that under the Supreme Court's Opinion in Daniels, the WCJ has to show his or her reasoning. The Commonwealth Court highlighted the quote from footnote 8 in Daniels: "One of the virtues of the legal profession -- and it is a virtue that certainly applies to the judicial decision-making process -- is that it depends upon reasoned articulation. Views are oftentimes shaped, molded, and changed in the very process of articulation."

The Commonwealth Court indicated in the Opinion that with articulated reasoning to support a credibility finding, the Court will: 1) review the record to be sure substantial competent evidence exists to support the elements of the WCJ's logical process; 2) assure that the WCJ's reasoning with respect to uncontroverted evidence is rational as required by Section 422(a); and 3) apply Wintermeyer review to determine whether the WCJ's "conclusions are based on capricious disregard of other evidence." In the case where this is "clear beyond doubt" the Court may engage in appellate review of the resulting credibility finding.

Tuesday, September 02, 2003

Legion Insurance Company Liquidation Decision Published

The Commonwealth Court published the Opinion in M. Koken v. Legion Insurance Company concluding Legion should be liquidated.

No Apportionment When New Injury Aggravates Old Injury

In South Abington Township, et al. v. WCAB (Becker, et al.) the Claimant had a work-related injury to his hip, returned to work, then suffered a work-related aggravation of the pre-existing hip condition resulting in hip replacement surgery. There were two carriers. The Commonwealth Court rejected the request of the later carrier for Section 322 apportionment. The Court stated where a second workplace injury aggravates the condition in which the Claimant was left by the first, it will allocate responsibility for payments based upon the impact each injury has upon earning power.

Bureau Issues Press Release on Medical Only Notice of Compensation Payable

An August 29, 2003 Department News post advises the Bureau is accepting various documents that purport to be a medical only Notice of Compensation Payable. The post further advises the Revised Notice of Compensation Payable form with a medical only check box is expected to be published in November.

Claimant Must Show Course and Scope of Employment Even When There Is a Late Answer

In W. Bensing v. WCAB (James D. Morrissey, Inc.), even though the Employer did not file an answer or appear at the first hearing, the Commonwealth Court upheld the decision of the WCJ and the Board that the Claimant was not in the course and scope of his employment when he was injured.

The Claimant, a construction worker, car pooled with his co-workers, and the Employer coordinated calls to the Employees to facilitate the car pool. However, the travel was not done in a company vehicle and the costs were paid by the Employees. They were traveling to a fixed place of employment.

The Court first held the Employer's non-response did not relieve the Claimant from proving he was in the course and scope of employment at the time of the injury, it only prevented the Employer from introducing contrary factual evidence. The Court then held the Claimant was not in the course and scope of his employment both under Foster v. WCAB 639 A.2d 935 (Pa. Cmwlth 1994) and the Ridesharing Act.

Supreme Court Holds Suspension of Pension Will Not Make Light Duty Job Unavailable

City of Phila. v. WCAB (Szparagowski) & Milici v. WCAB (City of Phila.) are cases of injured Philadelphia firefighters that took disability pensions. The issue before the Supreme Court was whether light duty dispatcher jobs were unavailable because the Claimants' disability pensions would be suspended if they took the jobs. The Supreme Court held the light duty positions were available.

The Court looked at the pension plans for firefighters and dispatchers and observed that the Claimants could not suffer a diminution of pension benefits by returning to the light duty positions. The Claimants argued they would be losing the qualitative benefit of the payments of pension benefits in part because they would continue to receive the benefits if they took a job with another employer. The Supreme Court rejected this argument. The Court stated St. Joe Container Co. v. WCAB (Staroschuck) 633 A.2d 128 (Pa. 1993) only makes jobs unavailable when the Claimant would be made less than whole. The Court stated the Claimants' argument in this case asked that they be made more than whole.

Mr. Milici had been awarded benefits for an irreversible lung disease. He argued his benefits could not be modified because the Employer could not show a change in condition, the first prong of the Kachinski standard. The Supreme Court clarified that "change in condition" equates with "change in earning power" and medical evidence can establish this even in the case of an irreversible disease.

Monday, September 01, 2003

Commonwealth Court Again Recommends Use of Medical Only Notice of Compensation Payable

City of Philadelphia v. WCAB (Brown) is a case in which the Claimant, a corrections officer, fell on 9/17/94. The Employer's injury report included the description of injury to the left knee. The Claimant alleged other times her knee pain flared up while she was on duty, and the Employer apparently paid medical expenses and paid IOD benefits. In 1997 the Employer had an opinion from its panel physician that the Claimant's left knee condition was all degenerative.

The Claimant went off for her knee condition on 3/6/98. The Employer stopped paying meds as of 3/2/98 and on 4/21/98 issued an NCP for the 9/17/94 injury with a description of "contusions left hand and left leg, left wrist." The NCP presumably provided the Claimant was not disabled. On 6/5/98 the Claimant filed a Penalty Petition alleging the 4/21/98 NCP was issued late. On 7/13/98 the Employer filed a Termination/Suspension Petition alleging the Claimant returned to light duty on 7/4/96 and full duty on 1/14/97 without further disability.

The WCJ credited Claimant's physician's testimony that the 9/17/94 injury aggravated her underlying degenerative knee condition and dismissed the Employer's Petition. The WCJ found no violation of the Act but awarded TTD benefits beginning 3/6/98. The Board affirmed. The Commonwealth Court indicated the Employer should have issued a medical only NCP 21 days from the 9/17/94 date of injury. Since the authority for this is the 2003 case of Waldameer Park, no penalty was awarded.

The Employer also argued on appeal that under Commercial Credit, the Claimant's Claim set forth in her 6/5/98 Penalty Petition was barred by the statute of limitations. The Court stated the Employer could not use Commercial Credit as a sword. More to the point, the Commonwealth Court noted the Employer paid medical expenses up to 3/2/98 and the 6/5/98 Petition was therefore timely.

Saturday, August 30, 2003

Commonwealth Court Adheres Strictly To The Pleadings Where Equities Fall In Favor Of Claimant

In Lynette Anderson v. W.C.A.B. (Pennsylvania Hospital) the Claimant burned her hand and a Notice of Compensation Payable was issued for "right medial epicondylitis and right carpal tunnel syndrome". The Employer first filed a Termination/Modification/Suspension Petition alleging full recovery and job availability. The Claimant filed a Review Petition seeking review of the description of injury to include left carpal tunnel syndrome.

The Claimant's medical evidence (which the WCJ would accept) stated the Claimant suffers from bilateral carpal tunnel syndrome and right medial epicondylitis related to repetitive duties at work. The Employer, in response, filed a Review Petition, which, according to the Opinion, alleged only that the right epicondylitis was mistakenly listed on the NCP. Furthermore, according to the Opinion, the Employer's Claims Representative testified only the epicondylitis was mistakenly listed on the NCP.

The Commonwealth Court dismissed the Claimant's Review Petition because the left carpal tunnel was not from the burn injury. The Employer's Termination/Suspension/Modification was dismissed because Claimant's physician testified the Claimant's right carpal tunnel persisted and prevented her from doing the jobs. The Commonwealth Court granted the Employer's Review as to right medial epicondylitis based on the Claims Representative testimony and the fact that the condition was not related to the burn. However, the Court said the Employer didn't petition to review the description of right carpal tunnel, and therefore this stays on the NCP.

The Employer presumably will petition to review the right carpal tunnel condition. While the Court said it would be unfair for the Employer to carry the description of right carpal tunnel syndrome on the NCP until the statute expired then turn around and remove it under Section 413(a), the Court stated no reason it would not have done so, on Claimant's medical alone, had the Employer put it in the Review Petition.

Clearly, the equities fell in favor of the Claimant, who actually had the right carpal tunnel injury that was mistakenly put on the NCP for the burn injury. To perpetuate this result, however, the Court ultimately will have to create another equitable limitation to the WCJ's power under Section 413(a) to review an NCP or Agreement " any time..."

Thursday, August 28, 2003

Supreme Court Will Not Review admissibility Of Medical Reports Issue

The Supreme Court denied allowance of appeal in Weaver, Pet v. WCAB (State of the Art, Inc.) The Commonwealth Court's opinion: W. Weaver v. WCAB (State of the Art, Inc.) defines the distinction between a "short-term" benefit claim and a "long-term" benefit claim and this distinction's effect on the submission of a case on reports under Section 422.

All Cases of Occupational Disease Under the Workers' Compensation Act Get the Section 301(e) Presumption

In J. McMullen v. WCAB (City of Philadelphia) a city firefighter alleged asbestosis. The Commonwealth Court, who apparently knows what the meaning of "is" is, held where the Claimant testified his firehouse underwent asbestos removal, the rebuttable presumption of Section 301(e) of the Act applies.

Section 301(e) provides: If it is shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.

The Commonwealth Court's ruling highlights that the section does not say the disease has to be a particular or usual or common hazard, just a hazard. Accordingly, any testimony of the possibility of exposure raises the presumption, and the Employer has to rebut it.

Wednesday, August 27, 2003

Device Stretches the Transverse Carpal Ligament to Avoid Carpal Tunnel Surgery

A product called MDCtrack(TM) treats mild, moderate and severe forms of carpal tunnel syndrome by applying pneumatic traction to stretch the ligament that surrounds the Median Nerve.

Edit: Thanks to Dan Neufeld, SVP, MeDevice for a link to the company's site and August 27, 2003 press release.

Statute Of Limitations Is Tolled By Employer-Paid Treatment When Employer Has Notice Of Work Injury

In Harley Davidson, Inc. v. WCAB (Emig, Jr.) the Claimant had a 1993 injury and obtained medical treatment paid for by either the Employer's workers' compensation carrier or the Employer itself (the company physician) through 1998. The WCJ found there were no three-year periods between the payment of medical expenses. Furthermore, the Employer had notice of the 1993 injury. Accordingly, when the Claimant filed a claim petition on May 24, 2000 alleging the 1993 injury, the petition was timely. Because the Employer had notice of the 1993 injury, the cost of treatment is considered payment in lieu of compensation that tolls the statute of limitations.

Note: This ruling would not extend to cases where health insurance provided by the employer pays for the treatment because of the specific prohibition thereof in Section 315.

Post-Injury Job Offer Must Be Consistent With The Claimant's Prior Capabilities Of Transportation, Child Care, Etc.

In South Hills Movers v. WCAB (Porter) the Claimant was a mover/packer who did out of town work and was often away for two weeks to a month at a time. After his injury, he was offered a full time light duty job in the Employer's warehouse. The warehouse was 46 miles from the Claimant's residence and his driver's license was suspended. Furthermore, the Claimant's wife was unable to drive him to work as she had in the past due to her health. The WCJ found the job not actually available and the Board affirmed. The Commonwealth Court also affirmed. The Court held if an offered post-injury job imposes obligations different from those of the claimant's pre-injury employment, the employer must produce evidence that the new responsibilities are within the claimant's capabilities.

Look Back Period For Long Term Exposure to Occupational Noise is Three Years From the Earlier of the Last Date of Exposure or the Date of Filing

CBS/Westinghouse et al. v. WCAB (Fontana) is a hearing loss claim. The Employer argued that where the Claimant did not work from March 14, 1994 to February 10, 1996, returned to work until February 28, 1996 and retired, then filed his Claim Petition on February 23, 1999, the three year statute of limitations barred the claim for hearing loss. The Commonwealth Court pointed out that the date of injury is the earlier of the date of filing or the last date of exposure, so the three year look back extends to February 28, 1993 and the Claimant's employment between February 28, 1993 and March 13, 1994 gave him long-term exposure to hazardous occupational noise.

Tuesday, August 26, 2003

WCJ May Accept After-Generated Evidence and Change Credibility Determination Upon Cudo Remand

In Ranbar Technology, Inc. v. WCAB (Riley) the WCJ initially denied the Claimant's petition alleging an organic brain syndrome and depression as a result of exposure to chemicals while working for the Employer. The WCJ drew a negative inference from the Claimant's failure to offer a hospital admission record. The Board entered a Cudo remand directing the WCJ to accept the missing record and any necessary medical testimony in support therof. The WCJ accepted records from the Veteran's Administration, EMT and hospital, some of which were generated after the WCJ circulated the initial decision. The WCJ then granted the Claimant's petition. The Commonwealth Court held this was all consistent with Cudo.

Supreme Court to Consider Calculation of AWW When Second Injury Occurs Within a Year

The Supreme Court granted the Employer's Petition for Allowance of Appeal in Zerby v. WCAB (Reading Anthracite Company) and consolidated it with Colpetzer v. WCAB (Standard Steel). These cases involve the calculation of the AWW when the Claimant sustains a work injury, but was on disability for a prior work injury during the prior year. In such a case, the Employer wants to argue that Section 309(d.1) can't be used for the AWW calculation because the Claimant remained "employed", citing Norton v. WCAB (Norton). In the Section 309(d) calculation, the Employer argues workers' compensation benefits from the prior injury can't be included because they are not "wages."

In Zerby and Colpetzer, The Commonwealth Court applied Section 309(d) but held equity requires that the prior AWW be plugged in during disability weeks.

The Commonwealth Court dissent in Zerby pointed out Mr. Norton was capable of performing work for valuable consideration, and one can not be in an employment relationship if one is incapable of performing services for valuable consideration. Therefore, the dissent would hold 309(d.1) was applicable all along, and Zerby and Colpetzer (and Merkle v. WCAB (Hofmann Industries)) were all wrongly decided.

Monday, August 25, 2003

Two Articles on Cervical Disc Replacement Surgery

A cervical and lumbar disk replacement device is in FDA trials, and there are several articles about the use of the device. One article focuses more on the FDA trial. Another describes a successful procedure.

CT Scans of Chronic Low Back Pain Patients Show Less Density of Paraspinal Muscles

A study from Norway published in the Journal Spine and reported in Doctor's Guide found the cross-sectional area and density of paraspinal muscles can be measured by computed tomography (CT) and magnetic resonance imaging (MRI) and are therefore important diagnostic tools for the evaluation of chronic back pain. In the study, two independent CT scans were done on patients with chronic low back pain on the same day and within 2 weeks. No significant differences were observed between the first and second CT scans on the same day or on different days by different radiologists.

Tuesday, August 19, 2003

Supreme Court Will Consider Whether Sexual Harassment Can Be Abnormal Working Condition

In a Per Curiam Order dated July 1, 2003 the Supreme Court granted a Petition for Allowance of Appeal in Heath v. WCAB (Pennsylvania Board of Probation and Parole). In this case, the Commonwealth Court held, inter alia, that when a co-employee sexually harasses an employee, any resulting mental injury is not compensable under the Act. The Court stated Section 301(c)(1) operates to remove any claim for that injury from the purview of the Workers' Compensation Act because it is personal and not work related.

Monday, July 28, 2003

Newsroom Page Up For Kid's Chance of PA

The Newsroom page at the web site for Kids' Chance of PA is up with an article about a PSBA Insurance Trust scholarship administered by Kid's Chance and a .pdf of the April-May 2003 Kids' Chance Report newsletter.

Friday, July 25, 2003

No Suspension for Refusal of Medical Care that Offers a 50% Chance of Success

Alltel, Inc. v. WCAB (Baum) is a refusal of reasonable medical care case. The proposed surgery had an 80% chance of improving the Claimant's radicular pain, but only a 50% chance of resolving the Claimant's neck pain and headaches. The Commonwealth Court observed this translates into a 50% chance that the Claimant will return to work. The Court held as a matter of law that 50% does not represent a "high probability" of success. The Court affirmed the WCJ's denial of the Employer's suspension petition, which the Board had also affirmed.

The Supreme Court in Daniels Holds That A WCJ Decision Must Provide Enough for Wintermeyer Analysis

Daniels v. WCAB (Tristate Transport) is the long awaited case from the Pennsylvania Supreme Court regarding the reasoned decision requirement of Section 422(a) of the Act. The result is: "... we hold that a decision is "reasoned" for purposes of Section 422(a) if it allows for adequate review by the WCAB without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. A reasoned decision is no more, and no less."

Cut back to Leon E. Wintermeyer, Inc. and American General Group v. WCAB (Marlowe). Wintermeyer held: "capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." I posted on December 12, 2002: "Perhaps foreshadowing Daniels, the Supreme Court did note ... that Section 704 of the Administrative Agency Law will not be interpreted to make judicial review unavailable when substantial evidence supports an agency's factual findings, but it is clear beyond doubt that its conclusions are based on capricious disregard of other evidence..."

Turning to the WCJ's Decision in Daniels, the Supreme Court observed: "Although we can imagine reasons why the WCJ might have been more convinced by Dr. Williams' opinions, there are arguments to be made in favor of Dr. Fabian's opinions as well; more importantly, the reasons we might identify are not necessarily those which were in the mind of the WCJ upon rendering her decision." (emphasis added)

The Supreme Court remanded for only an explanation of the credibility determination favoring Dr. Williams over Dr. Fabian. The finding rejecting the Claimant's credibility without further explanation was accorded deference because the WCJ can make this finding solely on the demeanor of a witness who testifies live. Also, the relevance of the testimony was the Claimant's limitations based on his pain, something that another witness could not entirely rebut.

On remand, the Supreme Court will be looking for the WCJ to identify the factors the WCJ will have considered to make the ultimate credibility determination. The Supreme Court wants to know, as indicated in Wintermeyer, whether the WCJ's "conclusions are based on capricious disregard of other evidence." In the case where this is "clear beyond doubt," an appellate court may engage in judicial review.

Minority Tolling Statute Does Not Apply in Workers' Compensation Claims

In East v. WCAB (USX Corp.), Appeal of: USX, LLC the issue is whether a workers' compensation case is a "civil action" so that the minority tolling statute applies. The WCJ ruled that the stautue does not apply; the Commonwealth Court reversed based on the observation that if an action is not a criminal action, it is a civil action. The Supreme Court reviewed the Pennsylvania Constitution's provision for workers' compensation laws and noted the administrative action under these laws was created to replace a civil action. The Supreme Court also looked at several statutes that distinguish an administrative action from a civil action. The Supreme Court concluded the minority tolling statute's coverage of "civil actions" does not include workers' compensation matters.

Friday, July 18, 2003

Mutual Aid Agreement Places Workers' Compensation Liability on Volunteer Fire Policeman's Home Company

In North Lebanon Township v. WCAB (Harbaugh) a volunteer fire policeman responded to a call in a neighboring municipality when the call came in to his friend, who worked as a volunteer for both municipalities' volunteer fire companies. The Claimant suffered a fatal heart attack in the line of duty. Based on the Mutual Aid Agreement that provides companies are to render aid when needed, the WCJ found the Claimant remained an employee of his home company and the home municipality was responsible for benefits. The Commonwealth Court affirmed.

Commonwealth Court Clarifies Caso

M. Wheeler v. WCAB (Reading Hospital, et al.) is a case where the Claimant did not object to either the vocational interview or the vocational expert's testimony. The WCJ credited the testimony demonstrating the Claimant's earning power, but dismissed the Employer's petition because the vocational expert was not approved by the Department. Based on the Claimant's wavier of this issue, the Board ordered modification of benefits. The Commonwealth Court affirmed.

Buried in all the waiver discussion, however, are the answers to some of the questions Caso raised. Is a vocational interview mandatory to assess a Claimant's earning power under Section 306(b)(2) of the Act? No. Must a vocational expert be approved by the Department to render competent testimony to establish a Claimant's earning power under Section 306(b)(2)? No.

Caso stands for the proposition that a Claimant cannot be compelled to attend an interview with an expert who is not approved by the Department. However, to determine that the right of a Claimant to not be evaluated by an unapproved expert could be waived, the Court concluded: "...a vocational interview by an expert approved by the Department is optional, not mandatory, to assess the claimant's earning power." This conclusion was necessary to the result because it follows that the Claimant could have refused the evaluation, and instead he attended and waived his objection to the expert's lack of qualifications.

Accordingly, when Section 306(b)(2) says the Employer may require the Claimant to submit to an interview by a vocational expert approved by the department, Wheeler now says the Claimant can refuse, whereupon the Employer must file a Petition to Compel a Vocational Interview. On this petition, the WCJ must apply Caso which holds the vocational expert must be approved by the Department, and the WCJ may apply the Supersedeas Order in Struble (Tues Jun 17 post), which holds the Department has not yet come up with a suitable approval procedure.

But, the Employer can skip this step. Since the vocational interview is optional, and since Section 306(b)(2) provides that the Claimant's earning power is to be determined based upon expert opinion evidence -- without an indication that the expert has to be approved by the Department -- the Court held: "Under Section 306(b)(2), therefore, the Department's approval of the vocational expert is not a prerequisite to competency of his or her earning capacity assessment." The Employer therefore can offer a vocational witness as an expert without approval by the Department, and even without compliance with 34 Pa. Code Section 123.202. As with a medical witness, the WCJ decides the competency of the witness to testify.

The WCJ can then decide credibility. Although the Employer is at a disadvantage when the Employer vocational expert tries to persuade the WCJ with opinions based on only the facts gleaned from the Claimant's job application to the Employer (assuming the Employer can use this information for this purpose) and the Claimant's vocational expert bases his or her opinions on facts from an interview, Wheeler confirms the WCJ can decide this case on the merits.

In cases with a fact pattern like Wheeler where the Claimant has waived the Caso protection by attending the interview, the Commonwealth Court indicated the vocational expert's testimony is entirely competent. Therefore, to the extent that similar cases are pending, including at various stages of appeal, these cases also can now proceed on the merits.

Helen Mining Case Applies To Reimbursement of Lost Time to Travel For Medical Treatment

In R. Berrian v. WCAB (PA State Police) the credibility determinations of the WCJ were upheld in every respect, but in analyzing the Claimant's request for 96 hours of lost time to attend long distance medical treatment, the Commonwealth Court stated Helen Mining v. W.C.A.B. (Tantlinger) 616 A.2d 759 (Pa. Cmwlth. 1992) applies to this determination. Unfortunately, the Claimant testified she went for long distance treatment because of her longstanding relationship with the doctor and her preference to treat with him. The Court stated this was "precisely the type of personal preference for treatment that Helen Mining explains is not reimbursable." (bold and italics in original)

Wednesday, July 16, 2003

Judgebooks - Local Rules of Practice and Procedure on the Web

Now that mine is up, I can note the Judgebooks containing local rules of practice and procedure before each Workers' Compensation Judge are available at the Bureau of Workers' Compensation's Quick Links site. All of the individual entries I have reviewed give clear and concise answers to twenty-four questions covering from the first hearing to the content of briefs.
The on-line format allows for easy reference, and hard copies can be printed from portable document format (.pdf). You could even download Adobe Reader for Palm OS and put Judgebooks on your Palm compatible device.

Pre-OSHA Regulations Audiogram That Does Not Comply Is Invalid

In Wheeling-Pittsburgh Steel Corp. v. WCAB (Sesco) the Employer explored several arguments regarding a hearing loss claim. The claim was awarded for the Claimant's whole 35.6% binaural hearing loss. The Employer argued the loss was diminished by I) the pre-employment audiogram in 1971; II) the hearing loss accumulated by the Claimant when he was working in Ohio and not subject to extraterritorial jurisdiction; III) the audiogram administered when the Claimant was transferred to a new facility in 1998; and IV) the Employer advanced a statute of limitations argument because the Claimant presently works half the time in the office and half the time in the plant.

With regard to the 1971 audiogram (which showed a 17.8% loss), the Commonwealth Court recognized OSHA regulations that the audiogram had to meet had not yet been published. The audiogram did not comply with later regulations because the Claimant testified he was exposed to occupational noise the day the test was administered. The Court held Section 306(c)(8)(iv) requires audiometric testing to conform to OSHA standards. In a footnote the Court mentioned the Employer's expert did not testify that the testing met OSHA standards at the time.

The Court dismissed the argument about the Ohio employment by noting the Claimant was employed in Pennsylvania on the date of injury as defined in Section 306(c)(8)(ix).

When the Claimant was transferred back from Ohio, he had a 1998 pre-employment audiogram. However, the Claimant testified he retained his seniority with the employer, therefore he was not a new employee and Section 306(c)(8)(vi) does not apply.

The Employer's statute of limitation defense failed because of the inclusion of the Ohio employment.

In a fifth section (designated IV by the Court) the Court found a reasonable contest on the 1971 audiogram issue and declined to award counsel fees.

Tuesday, July 15, 2003

Workers' Compensation Insurance - Not Quite There Yet

Where are we now in the insurance cycle? see the report on "Workers' Compensation Insurance - Not Quite There Yet" from Business Wire or the complete report. It looks like a free? registration is required for the complete report.

Benefits and Employer Costs Grow Faster than Wages for the First Time Since 1992-1993

A National Academy of Social Insurance survey found workers' compensation benefits and employer costs in 2001 grew faster than wages for the first time since 1992-1993. The result is attributable to the combination of the slowdown in the economy and insurers' rising premiums on the ten year insurance cycle. However, benefits grew slower than wages in Pennsylvania. The Pennsylvania comparison between benefits and costs may be in the complete report. Executive Summary

Thursday, July 10, 2003

SWMS Case Awarded, But In A Very Narrow Ruling

In G. Zink v. WCAB (Graphic Packaging, Inc.) The Claimant had suffered injuries to his legs, right arm and back in the Vietnam War. He was further diagnosed in 1974 with anxiety neurosis, chronic with depressive features, related to his war experience. This condition rendered him unable to sleep during the night. Through the Vietnam Veterans' Readjustment Assistance Act of 1974 the Claimant got a job as a maintenance mechanic and until the May, 1995 Collective Bargaining Agreement, he was permitted to switch shifts with others so he always worked third shift. When the Claimant could no longer switch shifts, he developed shift work maladaptation syndrome (swms), which unfortunately was a subjective reaction to normal working conditions Metropolitan Edison Co. v. W.C.A.B. 553 Pa. 177, 718 A.2d 759 (1998).

While the claim was pending, the Employer ultimately exempted the Claimant's maintenance department from the shift requirement without objection from the union. By January 1997 the Claimant could return to work due to a stabilization of his condition.

The Commonwealth Court en banc held the case could be distinguished from Metropolitan Edison because the Claimant's pre-existing condition was known to the Employer, as the Claimant got the job under the Vietnam Veterans' Readjustment Assistance Act of 1974. Under these circumstances, abnormal working conditions existed in the opinion of the Court. Judge Leavitt dissented, declining to depart from the premise that "normal working conditions, such as requiring an employee to work an eight hour shift, do not constitute an injury under the Act." Metropolitan Edison 187, 718 A.2d at 764.

Payment of Heart and Lung Benefits Estops City From Denying WC, Section 413 Review Not Addressed

In The City of Nanticoke, et al. v. WCAB (Ziolkowski) a fireman requested Heart and Lung Act benefits for coronary artery disease via a grievance. The City did an internal review and granted the benefits, and terminated the Claimant's employment based on his total disability. The WCJ, the Board and the Commonwealth Court agreed that the Employer was estopped from denying the Claimant's workers' compensation claim even though an interim investigation by the Employer revealed there was no medical evidence supporting the award of Heart and Lung benefits.

The Employer's argument on appeal was that collateral estoppel did not apply because there was no "actual litigation". The Court said the City's internal review was litigation, and in any event the City had fifteen (15) months to investigate. The Court however found a reasonable contest on the issue of "whether or not Claimant's receipt of Heart and Lung Benefits alone with no formal award, would be enough to collaterally estop Employer from re-litigating the issue of causation."

There was no discussion of Gunter, the Supreme Court case that said even when the Employer grants benefits that are congruent, it still may contest liability under the provisions of Section 413 of the Act. In Gunter, as in this case, it was the Employer's argument that the initial award of benefits was erroneous.

Tuesday, July 08, 2003

S&A Benefits Are Included in Average Weekly Wage Calculation

T. Shire, Jr. v. WCAB (General Motors) is a case in which the Claimant received sickness and accident benefits for a non work-related condition in the year before the work injury. The WCJ excluded the S&A benefits from the Average Weekly Wage calculation and the Board affirmed, reasoning that S&A benefits are a fringe benefit like pension contributions or payment for life insurance. The Commonwealth Court reversed, and found the S&A benefits are includable in the AWW in the same manner as vacation pay or bonuses.

The Court then remanded for the WCJ to include "sickness and accident benefits for days missed from work" in the AWW calculation. The Court did not state the S&A amount should be included in the quarter in which it was paid, as opposed to the statutory treatment of vacation pay or bonuses, which is to divide the amount by 52 and add the result to the AWW calculated without the bonus amount. The Court did, however, cite Colpetzer for the premise that the intent of Section 309 of the Act is to establish an average weekly wage that reasonably reflects the reality of the Claimant's pre-injury earning experience as a predictor of future earning potential.

Tuesday, July 01, 2003

Statute Still Tolled By Payment Of Medical Even Though Claim Necessary To Expand Description Of Injury

In Westinghouse Electric Corporation/CBS v. WCAB (Korach) the Employer continued to pay the Claimant's psychiatric expenses after commutation although the accepted injury was a back sprain. When the Employer stopped paying, the Claimant was out of the statute. The WCJ accepted the Claimant's evidence that the psychiatric condition arose out of the work injury, and found that the statute was tolled by the payment of medical. The Board affirmed. The Court also affirmed, although they did so by pulling out the Reinstatement of Contracts and finding it was the parties' intent in the commutation to continue to cover psychiatric expenses.

In the last two published cases, the Court has held the parties have a right to contract with respect to workers' compensation benefits. Parties should remember, however, that they cannot contract to reduce the Claimant's rights or to impose responsibilities on the Claimant that the Act does not authorize. see "Issues Arising Under Compromise and Release Practice" July PBA Workers' Compensation Section Newsletter, Page 10, by Judge David B. Torrey.

Monday, June 30, 2003

Stipulation Effective Upon Execution - Penalties Accrue For Late Payment Even When WCJ Approval is Pending

G. Varkey v. WCAB (Cardone Industries & Fireman Fund)is a case rather limited to its facts, but the Commonwealth Court did reverse the Board and find a penalty and attorney's fees were due on late payment under a stipulation, even though the WCJ had not issued his decision approving the stipulation when the late payment was made.

Saturday, June 28, 2003

Atlantic Mutual Insurance Company Rating Lowered to BBB

Business wire reports Atlantic Mutual Insurance Company's Standard and Poor's rating dropped to BBB from BBB+. If the Company is not able to reduce its reliance on financial reinsurance, the ratings could be lowered further, according to the article.

Rockwood Moves to Suspend Benefits of Quecreek Miners

It was reported in the Johnstown Tribune-Democrat that Rockwood Casualty Insurance Co. has filed Petitions for Modification or Suspension of the Quecreek Miners workers' compensation benefits based on the $150,000.00 each received from The Walt Disney Co. for movie and book rights.

WCRI Publishes New Comparative Study of 12 States Including Pennsylvania

The Workers' Compensation Research Institute released its CompScope™ Benchmarks: Multistate Comparisons, 1994-2000 comparing 12 states' workers' compensation programs, including Pennsylvania's. The only information contained in the abstract is that benefit delivery expenses remain at a double digit level (between 12 and 15 per cent) and continue to increase at a double-digit rate. An Insurance Journal Article reports Illinois apparently performed worst in the survey.

Settling Cases in Luzerne County

In a Hazleton Times-Leader article Luzerne County's "close-out program' is reviewed. The County has earmarked 4.9 million of bond money to settle cases. The County is using a consultant, Case-Con Capital, Inc., Michael Judge. The article discusses Mr. Judge's fees and results.

Tuesday, June 24, 2003

Different WCJ Can Reweigh Credibility When Board Remands On Standard of Proof Grounds

City of Philadelphia v. WCAB (Rilling) is a case involving the Section 301(e) presumption that a firefighter's lung disease resulted from his employment. The WCJ didn't apply the presumption in the first instance, and the Employer won. After the Board remanded for application of the presumption, a different WCJ awarded the claim. The Commonwealth Court stated it was appropriate for the WCJ on remand to arrive at the WCJ's own credibility determinations, especially since they are so closely tied to applying the proper standard of proof.

Discharged Claimant Will Be Reinstated Unless Cause For Termination Rises To Claimant Bad Faith

In A. Cryder v. WCAB (National City) the Claimant was discharged for failing to meet production goals. The Commonwealth Court reversed the WCJ and the Board and held the Claimant was entitled to reinstatement. The Court stated that because the reason for the Claimant's termination could in no way be characterized as bad faith on her part in carrying out her duties, her earning power was not adversely affected through any fault of hers, so the Claimant met her burden under Pieper.

Saturday, June 21, 2003

Clinical Trial of Cervical Disc Spacer Device

Anne Arundel Medical Center (AAMC) is offering a clinical trial of a cervical disc spacer device to avoid cervical fusion. Article

Cognitive Therapy and Exercise as Effective as Lumbar Fusion for Chronic Low Back Pain and Disc Degeneration

In cases of chronic low back pain with disc degeneration, a Norwegian study compared disability outcomes with cognitive therapy and fusion surgery. "Those who received cognitive therapy attended a lecture that taught patients that ordinary activity would not damage their discs, and that they could bend their backs (the Indahl talk). The main aim of the talk is to help patients avoid the fear of harming themselves through activity, to teach them not to be over-cautious and to correct negative feelings that would have psychological impact on their condition. Their instruction was completed by teaching them three daily exercise routines." As compared to the group that had fusion surgery: "No differences were seen in pain, use of analgesics, emotional distress or life satisfaction, and an equal number of patients returned to work from both groups."

Virginia Orders Reciprocal of America To Liquidate carried an article that Virginia regulators ordered insurance company Reciprocal of America to Liquidate.

Governor Rendell Speaks About Workers' Compensation

Governor Rendell's comments about workers' compensation were reported in an article in the Citizen's Voice:

Judd Shoval, president of Guard Insurance Co., in Wilkes-Barre, a company that writes workers compensation policies in 20 states, said he was highly interested in the governor's responses to questions about workers compensation.

Shoval said the governor informed the business leaders he believes there needs to be some changes to the workers compensation system and that he plans to tackle these issues after the end of the current legislative session.
"His presentation was superb," Shoval said of Rendell. "His heart is in it. His delivery was excellent."

While Shoval believes the workers compensation system does not need a major overhaul, he agreed some areas within the system need improvement, such as the resolution of disputes and claims in a more rapid manner.

Thursday, June 19, 2003

Another Presbycusis Theory Rejected in Commonwealth Court

In Wheeling Pittsburgh Steel Corp. v. WCAB (Bruce) the Employer's expert, Dr. Chen, posited that the predominant portion of sensorineural hearing loss occurs during the first ten (10) to fifteen (15) years of noise exposure, and the Claimant had an interim audiogram with a 5.63% binaural hearing loss. Dr. Chen testified as the Claimant then aged, he acquired age-related hearing loss that brought him up to 14.325%. Dr. Chen cited a treatise supporting his analysis. However, the WCJ credited Dr. Bell, who related all 14.325% to cumulative occupational noise exposure.

The Board affirmed, and the Employer argued before the Court that the Board erred in applying Mozena in this situation because Dr. Chen did not use a table to deduct age-related hearing loss. The Court rejected this argument, holding "A WCJ may dismiss an entire school of science if he determines it lacks credibility." The Court did not award counsel fees for a frivolous appeal however, finding it was reasonable for the Employer to seek this clarification of Mozena.

In Fatal Claim, Counseling Expenses for Survivors Not Compensable

Village Auto Body v. WCAB (Eggert) is a fatal claim. The Commonwealth Court reluctantly found that medical expenses for counseling of Claimant and her children who witnessed the decedent's death are not compensable. The Court found the term "compensation" in Section 307 is free from ambiguity, and it contemplates only wage benefits.

Wednesday, June 18, 2003

Claimant Not In The Course and Scope of Employment While Merely "On Call"

In D. Sekulski v. WCAB (Indy Associates) the Claimant was a maintenance man for apartments. He carried a beeper and was to remain within 15 minutes away in case he needed to respond. While on his way home from a bowling alley, the Claimant was assaulted. The WCJ, Board and Commonwealth Court found him out of the course and scope of employment. The Court distinguished precedents that awarded benefits when the Claimant was on a lunch break, on a special mission for employer or on travelling employee status. The Court concluded that without more, the claimant who is simply "on call" is not furthering the employer's affairs.

Tuesday, June 17, 2003

Commonwealth Court Denies Vocational Exam by Supersedeas Order

Many practitioners have reviewed the April 4, 2003 Order of the Board in Struble v. Rocky Mountain Garage which affirmed the WCJ's grant of a petition to compel a vocational evaluation where the vocational expert had the Department's approval letter. In that Order the Board basically said it would not look behind the Department's post-Caso procedure. The Claimant appealed the Board's Order.

In an Order dated June 10, 2003, Judge Jiuliante has granted the Claimant's request for supersedeas and ordered that the Claimant does not need to attend a vocational interview as ordered by the WCJ. Judge Jiuliante stated: "The Department's current reliance on the vocational counselor's self-verification of his or her qualifications cannot be considered "approval by the Department prior to the interview as contemplated by this Court in Caso." (italics in original; open-ended parentheses in original)

Thanks to Vincent J. Quatrini, Jr., Esquire
Quatrini Rafferty Galloway
Greensburg, PA

Payment of Injured On Duty Benefits Estops City From Denying WC, But Does Not Preclude Section 413 Review

In Gunter v. WCAB (City of Philadelphia) the Claimant police officer was assaulted while off-duty in her driveway. The WCJ found her to be out of the course and scope of her employment. In the beginning, she was erroneously awarded Injured on Duty (IOD) benefits. The WCJ, Board and Commonwealth Court held these are different benefits with a different standard, therefore the City was not estopped from contesting the claim.

The Supreme Court affirmed on different grounds. The Court found the standards for IOD benefits and WC benefits are congruent. However, after an excellent analysis of when an Employer may contest liability in a Review Petition under section 413 of the Act, the Court held this was such a situation because the award of IOD benefits was erroneous.

Commonwealth Court Affirms WCJ Authority Over Credibility and Awards Atty Fees

Newcomer Products, et al. v. WCAB (Irvin) is a hearing loss case where the Claimant established a prima facie case, and the Employer put on a substantial defense with medical, industrial hygiene and supervisor testimony. The WCJ rejected the Employer's witnesses as not credible, and explained his reasons for doing so. The Employer's argument on appeal was that the WCJ capriciously disregarded competent evidence.

The Commonwealth Court went so far as to state it might not have agreed with the WCJ's reasoning, but held that the WCJ's reasoning is outside the Court's scope of review. Accordingly, the Court went on to hold that the Employer was only seeking review of the WCJ's credibility determinations, found the appeal was frivolous under Pa. R.A.P. 2744, and awarded attorney's fees of four hours at $150.00 per hour.

Friday, June 13, 2003

Volunteer Firefighters get 2/3 of Maximum Comp Rate

To the extent there was still confusion whether volunteer firefighters and emergency medical personnel get the maximum comp rate or two-thirds of the maximum comp rate, the Commonwealth Court has put the issue to rest. In V. Fearon v. WCAB (Borough of Ashland) the Court rejected the Claimant's assertion that the statewide average weekly wage defined in Section 601(b) of the Act is actually the maximum comp rate times 1.5. The Court held that what the Department of Labor and Industry publishes as the statewide average weekly wage under Sections 105.1 and 105.2 of the Act is the Section 601(b) presumed wage for firefighters and emergency medical personnel, and the presumed compensation rate is 2/3 of this wage.

Tuesday, June 10, 2003

Safety Articles on Hearing Conservation, Respiratory Protection and Stress

The Safety Next site news has articles regarding Hearing Conservation, Respiratory Protection and Stress in Workers with Advanced Degrees.

Shock Wave Therapy Dissolves Calcium Deposits in the Shoulder

It was reported in The American Journal of Sports Medicine that 61 per cent of patients in a Taiwan study had excellent results from shock wave therapy to address calcific tendonitis in the shoulder. Article

Maryland Court of Appeals Eliminates "Unusual Ocurrence" Requirement

In Harris v. Board of Education of Howard County the Maryland Court of Appeals stated that a requirement an accident arise from "unusual activity" is not supported in the Maryland Act, and is a minority view in the nation. Accordingly, the Court overruled the line of cases that injected the "unusual activity" requirement. An article in the Washington Post comments on the magnitude of this change.

Monday, June 09, 2003

WCIRB Suspends the Issuance of Experience Ratings based on Villanova and Legion Data

It was reported in Insurance Journal that Villanova and Legion Insurance notified the Workers Compensation Insurance Rating Bureau that statistical data they provided is either incomplete or inaccurate. Therefore the WCIRB has suspended the promulgation and issuance of experience ratings based upon data submitted by these companies after May 22, 2003. Article

Claimant Can Not Extinguish Former Counsel's 20% Fee When Compromising and Releasing Future Benefits

In Gingerich v. WCAB (US Filter) a continuing 20% attorney's fee was awarded on the grant of a fatal claim. When the Widow entered into a compromise and release waiving future benefits in consideration of wavier of the subrogation lien, The WCJ approved the Agreement and terminated the attorney fee and the Board affirmed. The Commonwealth Court held that even though the Claimant exercised her Section 449(a) right to compromise any and all liability under the Act, she did not have the right to extinguish the 20% counsel fee.

The result in this case might be explained by the answer to the question: "If the Attorney's fee is owed, who pays?" The Claimant is contractually bound to pay the fee. However, in the Compromise and Release Agreement in this case the Defendant agreed that it would pay the fee if it was found that the fee is owed.

Suspension May Be Appropriate If Overtime Is Not Available For Economic Reasons

In M. Capper v. WCAB (ABF Freight Systems, Inc.) the Claimant pressed the issues of reasonable contest where: 1) The Claimant returned to work full time, full duties, but with a wage loss due to lack of overtime (Employer sought suspension); and 2) the Employer initially contested thirty to forty mile trip expenses to obtain medical treatment in eastern Pennsylvania. The Commonwealth Court held there was a reasonable contest on both issues. Importantly, the Court cited the Supreme Court's decision in Harle and stated the Claimant may not be entitled to a partial if overtime was no longer available for economic reasons.

No Supersedeas Reimbursement for Grant of Section 306 (f.1)(8) Suspension

The Employer in Bureau of Workers' Compensation v. WCAB (Exel Logistics) sought supersedeas reimbursement when a supersedeas was denied, and the WCJ later granted suspension for refusal of reasonable medical treatment. The Commonwealth Court analyzed Section 443, and concluded supersedeas reimbursement is for change of status under Section 413 cases, and there is no such remedy in a section 306(f.1)(8) case.

The dissent suggested a common sense approach would not distinguish a Section 306(f.1)(8) forfeiture from a suspension that can be sought under Section 413. After all, the Court stated in Stuart Painting v. W.C.A.B. (Asvestas) 611 A.2d 787 (Pa. Commw. 1992) that the relief under Section 306(f.1)(8) is a suspension rather than a forfeiture.

Saturday, June 07, 2003

Rating Lowered for Princeton Insurance

Insurance Journal reported Standard and Poor's lowered Princeton's rating to Bpi and the New Jersey Department of Banking and Insurance is considering placing Princeton under supervision. Article

Thursday, June 05, 2003

OSHA Draft Ergonomic Guidelines for Poultry Processing

OSHA issued Draft Ergonomic Guidelines for Poultry Procesing, the third set of industry-specific guidelines. Article

Annals of Internal Medicine Compares Treatments for Low Back Pain

The Annals of Internal Medicine published a study indicating spinal manipulation therapy was no more or less effective than other therapies in the management of low back pain. Article

Case Emphasizes the Importance of Coordinating Workers' Comp and Personnel Administration

Dept. of Corrections v. WCAB (Clark) is a case in which the collective bargaining agreement required the Claimant to pay back WC benefits when he had used sick time. The case was settled with a Compromise and Release providing that the Claimant would collect about $2,000.00. When the personnel office recovered the amount from the Claimant's pay, the WCJ rather perfunctorily directed payment of the C&R amount with no credit pursuant to the CBA. The WCJ also granted the Claimant's request for 50% penalties and attorney's fees for unreasonable contest. The Compromise and Release Agreement did not reflect that the Claimant was required to reimburse the Employer, and apparently it did not come up at the hearing. The Board and the Court affirmed.

Credibility Determination Paramount in Disposition of URO

In R. Jackson v. WCAB (Boeing) the treating chiropractor's care was found not reasonable and necessary. The Court held: 1) the WCJ did not shift the burden of proof to the Claimant when the WCJ noted the treating chiropractor failed to respond to the reviewer's points; 2) the fact that the treating chiropractor offered treatment to alleviate pain did not overcome the WCJ's finding that the reviewer was more credible; and 3) even though the UR was requested late, e.g. more than thirty days after the billing was submitted, the request for prospective review was timely.

Study Suggests Prompt MRI Leads to Unnecessary Surgery

A study of oucomes of prompt administration of plain x-ray vs. MRI determined that people who had the MRI did not necessarily have better outcomes of treatment. There was a correlation between the MRI and surgery, and the study suggested the MRI pathology may not have correlated with the patient's symptoms, yet surgery was still performed on the MRI findings.

Tuesday, May 27, 2003

Supreme Court Sends Issue of Change of Status of Illegal Aliens Back to Commonwealth Court

DDP Contracting, Inc. & Penn National Ins. v. WCAB (Mora) presents the issue unresolved by The Reinforced Earth Co. v. WCAB (Astudillo), i.e. what is the Employer's burden to suspend or modify benefits awarded to an illegal alien?

In Reinforced Earth, the case was remanded to the WCJ to make a record on the Employer's request that benefits be suspended. The Court held a suspension will not be granted on the sole basis that an illegal alien can't be employed, but this does relieve the Employer from showing job availability. The Court discussed earning power as a basis for change of status, but in a footnote stated it did not endorse the Commonwealth Court's suggestion that an Act 57 analysis be undertaken. One possible outcome could be that a credible medical opinion that the Claimant could return to work would suspend benefits.

However, in the present case this outcome is not easy to arrive at. The WCJ has credited a medical opinion that the Claimant is unable to return to work as a roofer. Another fact is that the Claimant found new work at a reduced wage. Since the Supreme Court's decision in Reinforced Earth post-dated the Commonwealth Court's decision in DDP Contracting the Supreme Court exercised its perogative to see what the Commonwealth Court can make of the facts of DDP Contracting. In the meantime, the Employer's burden to show a change of status remains anywhere between a medical release and job availability.

Friday, May 23, 2003

New Jersey Supreme Court Allows Claim for PTSD Filed Six Years After Date of Injury

In Diana G. Brunell v. Wildwood Crest Police Department and Samuel Stango v. Lower Township Police Department (A-126/127-2001) the New Jersey Supreme Court explained that Post Traumatic Stress Disorder can be considered an occupational disease, following decisions of courts in Colorado, Maryland, North Carolina, and Virginia. Accordingly, the Claimants could file within two years of discovery of their compensable injury.

Commonwealth Court distinguishes Chavis in Case Where Claimant's Chronic Pain Is Not Aggravated by Modified Job Duties

In S. Brobst v. WCAB (Schuylkill Products, Inc.) the WCJ rejected the Claimant's testimony he could not perform a light duty job on credibility grounds. The Claimant appealed citing Chavis v. W.C.A.B. (Port Authority of Allegheny County) 598 A.2d 97 (1991) for the proposition that the job was not available when he could not perform the job without chronic pain. The Court observed the credible medical testimony established only that the Claimant would have chronic pain with fatigue. The Court distinguished Chavis because in that case the duties of the job aggravated the Claimant's condition. The decision of the WCJ suspending benefits was affirmed.

Wednesday, May 21, 2003

Central Bucks School District v. WCAB (Belz)

Central Bucks School District v. WCAB (Belz) re-emphasizes that a Claimant has a presumption of ongoing disability related to the work injury when she is on modified duty and she has a recurrence of loss of earning power. Here the Claimant had non-work related fibromyalgia, but the Court cited Latta holding the Claimant had no medical burden for reinstatement. The burden to show job availability shifted to the Employer, and it did not meet its burden under Kachinski .

Tuesday, May 20, 2003

OSHA Voluntary Injury-Reducing Guidelines for Grocers Proposed.

Philadelphia Business Journal has an article on OSHA's proposed voluntary injury-reducing guidelines for grocers with statistics on musculoskeletal disorders at grocery stores in 2001

Curent Trends in Workers' Compensation Insurance

Risk and Insurance Magazine on-line has an overview article of the present factors affecting workers' compensation rates.

Law Journal Television Program on the Web

The Law Journal TV Program in Philadelphia posts its past programs for webcast. Settling the Workers' Comp Claim was presented on March 17. 2003 and You Got Your Workers' Comp Benefits-- Now Get Back to Work! was presented on May 19. The latter program could be on the webcast page in several weeks.

Unispacer Treatment for Arthritic Knees

Dr. Charles L. Cole Jr., an orthopaedic surgeon from SUN Orthopaedic Group Inc. in Lewisburg is offering the Unispacer insert to avoid knee replacement surgery in arthritic knees.

Monday, May 19, 2003

A. Zacour v. WCAB (Mark Ann Industries)

A. Zacour v. WCAB (Mark Ann Industries) is a case in which the Claimant received a third-party settlement that exceeded the accrued workers' compensation lien. The issue was at what percentage the Claimant should receive credit for the Claimant's costs of litigation when a medical expense is incurred. The WCJ and the Board used the percentage of total costs of the third-party award that the Employer was responsible for. However, the Commonwealth Court noted that to the extent the Claimant used the balance of the subrogation lien for medical, the Claimant would be shorted. Accordingly, the Court held the Claimant was entitled to receive the same percentage of medical expenses as the percentage of future TTD the Claimant is entitled to receive during the grace period.

Wausau Insurance Companies v. WCAB (Comm. of PA)

In Wausau Insurance Companies v. WCAB (Comm. of PA) Wausau argued that supersedeas reimbursement in a claim petition starts when compensation is no longer payable rather than a later date when supersedeas was requested. The context is a grant of a claim and a termination by the WCJ, then the Board (15 months later) reversed the termination portion of the WCJ's order. The Employer immediately filed a Termination Petition and appeal with supersedeas requests. On remand, the termination date found by the WCJ was later, but still 29 months prior to the Employer's supersedeas request. Reviewing the relevant case law and statute, the Commonwealth Court held the Employer cannot get supersedeas reimbursement prior to its request, even though the result is not equitable.

Based on this decision, the Employer has a right to and must file a petition with a supersedeas request during the pendency of a claim petition when evidence warrants. Disposition of the petition will be preserved in the appeal record.

Allied Products and Services v. WCAB (Click)

In Allied Products and Services v. WCAB (Click) the WCJ rejected the vocational expert's testimony as not credible. On appeal, the Employer alleged errors in the application of Section 306 of the Act. The Court did not reach any of these issues because without credible vocational expert testimony, the Employer cannot sustain its burden.

P. Dowhower v. WCAB (Capco Contracting)

P. Dowhower v. WCAB (Capco Contracting) is a case regarding when an IRE request is timely, e.g. within 60 days of the expiration of 104 weeks of temporary total disability. The Commonwealth Court held that where an Employer requested designation of an IRE physician before the expiration of 104 weeks, but didn't have the exam and issue the Notice of Change of Workers' Compensation Disability Status until after 104 weeks had expired, the IRE and change of status is valid.

Sunday, May 18, 2003

Saint Luke's Hospital v. WCAB (Ingle)

In Saint Luke's Hospital v. WCAB (Ingle) the Commonwealth Court clarified the burden of a Claimant seeking reinstatement of temporary total disability benefits when she was fired from her modified duty job due to a criminal charge. At the time the Claimant was fired, she was merely charged, but later she pled guilty to a lesser charge. The Court held that when considering whether the Claimant was discharged "through no fault of her own" the WCJ must consider both job related and off duty conduct.

B. Hill v. WCAB (Ballard, Spahr, Andrews & Ingersoll, et al.)

The case of B. Hill v. WCAB (Ballard, Spahr, Andrews & Ingersoll, et al.) in its prior consideration by the Supreme Court held that an Employer could offer work to the Claimant during the pendency of a Claim petition and the Claimant had a duty to follow up on the offer in good faith. On remand, The Commonwealth Court analyzed whether the Employer met its burden to show job availability in this specific case, and the Court found insufficient evidence that a job was offered because the only job availability evidence was presumed when the Claimant and her doctors were asked if she could do certain jobs. The court held this evidence does not satisfy the second prong of Kachinski to show an open, available job within the Claimant's restrictions was offered.

M. Frye v. WCAB (Volkswagen of America)

In M. Frye v. WCAB (Volkswagen of America) the WCJ granted the Employer's modification petition and ceased 20% counsel fees awarded under the interlocutory denial of supersedeas. Although Counsel was successful in getting the Board to award counsel fees on the continuing partial disability benefit that was not at issue in the underlying modification petition, the WCJ, the Board and the Court denied counsel's attempt to recover this fee and a penalty for the period between the time the WCJ Order was issued and the time of the Board's Order.

Thursday, May 15, 2003

Bethlehem Steel Payments of Workers' Compensation Benefits to Recommence

According to the Patriot-News, the Department of Labor and Industry has advised injured workers of Bethlehem Steel who have stopped receiving payments that an insurer will take over payment in thirty days.

J. Hail v. WCAB (City of Philadelphia)

J. Hail v. WCAB (City of Philadelphia) outlines a case in which the Claimant was found to have voluntarily retired from the work force and benefits were suspended. The Claimant took a service based pension and moved to a trailer park. The WCJ found the Claimant did not folow through in good faith on job development because he failed to look for jobs on his own, although he did follow-up on all the jobs referred and was not offered employment. It is an unpublished opinion, which is appropriate because these cases are fact specific.