Thursday, January 20, 2005

Appeal Granted in RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton)

The Supreme Court granted the Claimant's Petition for Allowance of Appeal in the RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) case. The issue in the case was whether a supervisor's pattern of harassment in the form of feigned homosexual advances was an abnormal working condition. The Commonwealth Court reversed the WCJ's finding that the Claimant established an abnormal working condition. May 25, 2004 post

Wednesday, January 19, 2005

Presentation at Joyner Sportsmedicine Institute -- February 1, 2005

On February 1, 2005 at 7:45 a.m. I will present "Workers' Compensation Law Update" at Joyner Sportsmedicine Institute in Roaring Spring, Pennsylvania. The presentation will inform employers' representatives about current workers' compensation procedure and new case law relevant to employer handling of workers' compensation cases.

Tuesday, January 11, 2005

Commonwealth Court Relies on Finding of Fact to Establish Collateral Estoppel

In Gillyard v. WCAB (PA LCB) a second termination petition was at issue. The WCJ accepted the Employer's medical evidence of full recovery and granted termination. The Board affirmed. The issue on appeal was whether the opinion of full recovery was competent.

Findings of fact in the prior termination petition were relied upon by the Commonwealth Court to establish the Claimant's diagnosis. With that diagnosis, The Court reversed the decision of the WCJ and Board. The Court stated the Employer's medical witness did not offer an opinion of full recovery from the diagnosis of the first case.

The dissent highlighted the WCJ's findings that reconciled the testimony of the Employer's witness with the diagnosis in the first case and established full recovery.

The holding is inconsistent with J. Almeida v. WCAB (Herman Goldner Company) in which the Court held findings of fact are not reviewable. If a finding of fact is not reviewable, due process is denied and the fact cannot be a basis for collateral estoppel. March 16, 2004 post.

Thursday, January 06, 2005

Commonwealth Court Case on Claimant's Burden for Reinstatement

In Bailey v. WCAB (US Airways) the Claimant's benefits were suspended upon his return to work. He elected to not perform overtime, and he filed a reinstatement petition with support from his physician for a forty hour per week restriction. The Employer presented medical evidence the Claimant could perform the overtime, but with pain.

In the findings of fact reproduced by the Court, the WCJ found the Claimant declined overtime for personal reasons, implicitly accepting the opinion of the Employer's expert. The Court affirmed the decision of the Board and WCJ which held the Claimant did not meet his burden to show a worsening of condition.

OR Live to Present Streaming Broadcast of Disc Neucleoplasty

On January 14, 2005 at 4:00 p.m. OR Live will present a live internet streaming video presentation of a Disc Neucleoplasty. The procedure is a minimally invasive treatment for contained herniated discs, according to a press release of the manufacturers of the devices for the procedure. Dr. Peter Gerszten of UPMC in Pittsburgh will perform the procedure.