Friday, January 03, 2003

In L.E. Smith Glass Co. v. WCAB (Clawson) the Supreme Court analyzed a factual scenario involving two different injuries and overlapping periods of disability associated with each. An important fact discussed in the decision was that the WCJ found both injuries were independently totally disabling. An important fact not discussed was that these injuries were with the same employer (different carriers), so Section 322 apportionment does not apply. The Supreme Court used the ultimate analysis of to what extent, if any, each injury diminished the Claimant's earning power, and stated this is the only test to be applied to determine whether both carriers had to contribute to the Claimant's benefit for any period. Although the record did not support a finding that the two injuries combined to diminish the Claimant's earning power during any period (because they were both independently totally disabling), the Supreme Court also stated a Claimant would be limited to whatever maximum actual earning power the record demonstrates. The Supreme Court introduced the "s" word to workers' compensation and held: "We reverse the Order of the Commonwealth Court to the extent that it permits Claimant to stack the benefits from the 1989 injury and the 1991 injury up to the statutory maximum."

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