Thursday, February 05, 2004

Two Pennsylvania Bar Association Quarterly Articles on Workers' Compensation

In the January 2004 Pennsylvania Bar Association Quarterly, Paul Dellasega and Crystal Williamson of Thomas, Thomas & Hafer outline the employee's burden of proof in a wrongful discharge action alleging termination based on the employee's prosecution of a workers' compensation claim.

Also, Daniel R. Shuckers, Prothonotary of the Commonwealth Court, argues in favor of abolition of the "legal residuum" rule. The rule provides that in administrative adjudications when hearsay evidence comes in to the record, a finding of fact may not be based solely upon hearsay. Mr. Shuckers suggested the 1976 Commonwealth Court holding in Walker v. U.C. Board of Review is a relic of an era when administrative law judges were political appointees, untrained and/or uncaring about due process. Since this is no longer the case, Mr. Shuckers suggests the Commonwealth Court should fall in line with the Administrative Agency Law and the Rules of Evidence.

In the Administrative Agency Law and the General Rules of Administrative Practice and Procedure, even objected to hearsay can be admitted if relevant, material and and of the kind that would affect reasonable and fair minded persons in the conduct of their daily affairs. The Rules of Evidence (which are not binding on agency determinations) allow unobjected to hearsay to be relied upon.

John Gedid, Director of the Widener University School of Law -- Law and Government Institute, argues in favor of the "legal residuum" rule. Relying on fundamentals of due process from both the Federal and State Constitutions, Mr. Gedid states the courts have a duty to assure meaningful judicial review of agency action by assuring due process at the agency level. The right of cross-examination is the due process right preserved by the "legal residuum" rule.

In an introduction, the authors do recognize that the Supreme Court lately has been leaning toward more regulation of ALJ's. This is evidenced by the Supreme Court holdings in Daniels, which requires WCJ's to state the reasons for credibility determinations made on all but live testimony, and Wintermeyer, which holds the courts can reverse a credibility determination made with capricious disregard of other competent evidence. The suggestion was made that pressure on ALJs to decide large numbers of cases informally, efficiently, rapidly and inexpensively can cause an otherwise highly trained and diligent ALJ to pursue these objectives at the expense of fairness to a Claimant.

The article did not consider that fairness to the Claimant is not always achieved by requiring cross examination. In 1976, Baksalary had not been decided. Then, it was a matter of fairness to Claimants that the Employer should not be able to take an automatic supersedeas based upon an opinion of full recovery and then get a final order without a deposition. Now, it is often the Claimant that is prejudiced by the requirement that the Claimant take a medical deposition in every long-term (more than 52 weeks) case as defined in Weaver v. State of the Art.

However, the current state of the law still provides the necessary framework to achieve fairness in these cases. The legislature amended Section 422(c) of the Act to provide a medical report may be admitted in any case where there is no objection, and the Commonwealth Court withdrew the Iroquois Tool decision that held this amendment was unconstitutional. Under Rule of Professional Conduct 3.1 counsel has an obligation to not assert an issue unless there is a basis for doing so that is not frivolous. The comment to the rule would suggest that interposing a hearsay objection solely because counsel knows it is not cost effective for the Claimant to take his doctor's deposition would be in violation of the rule.

Fairness can be achieved with the "legal residuum" rule. The only result of abolishing the "legal residuum" rule would be renewed efforts to require that workers' compensation cases be litigated exclusively on medical reports.

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