Tuesday, March 29, 2005

Commonwealth Court Holds WCJ Does Not Have Subject Matter Jurisdiction Over Employer's Petition To Find Work Injury Compensable

In MPW Industrial Services v. WCAB (Mebane), the Employer sought to have an after hours automobile accident adjudicated to have occurred in the course and scope of employment. The Employer did not use an NCP, because this would not collaterally estop the third party case. The Employer filed a Review Petition.

The WCJ found the Claimant was not misled by the form of the petition, had notice of the relief sought by the Employer, and had a full and fair opportunity to contest the basis of the Employer's assertion. Under Lake v. Workers' Compensation Appeal Board (Whiteford National Lease), 746 A.2d 1183, 1188 (Pa. Cmwlth. 2000), the WCJ entertained the Employer's petition and found the Claimant was in the course and scope of employment.

The Board and the Court held the WCJ did not have subject matter jurisdiction. Since an NCP was not issued, Section 413 of the Act did not give the WCJ the power to review the case. Furthermore, only the employe or the employe's dependents are permitted to file a claim under Section 410.

Monday, March 21, 2005

Commonwealth Court Holds Employer's Duty to Make Work Available Arises When Claimant Released from Incarceration

In Keys-Pealers, Ltd./Pealer's Flowers v. WCAB (Bricker) the Commonwealth Court reaffirmed the premise that the Employer cannot get a continuing suspension of benefits by referring jobs while the Claimant is incarcerated and ineligible for work release. When the Claimant was released, the Employer's obligation to show work availability arose again.

The Court noted the Claimant was incarcerated for workers' compensation fraud when he took other work without informing the Employer. The court did not discuss the holding in J. Burrell v. WCAB (Philadelphia Gas Works, et al.) and note modification/suspension should be granted based on the Claimant's earnings in the work upon which his conviction was based.

Friday, March 18, 2005

Dismissal "With Prejudice" is Within the Discretion of the WCJ

US Airways & Reliance Nat'l c/o Sedgwick Claims Mgmt Services v. WCAB (McConnell) held the WCJ has the discretion to control the WCJ's docket by requiring parties to comply with scheduling orders. Accordingly, it was within the WCJ's discretion to dismiss a claim "with prejudice" when the Claimant's ongoing delay was prejudicial to the Employer.

Tuesday, March 08, 2005

Labor and Industry Seeks Reversal of Commonwealth Court Holding That Employers Must Be Represented By Attorneys At Unemployment Compensation Hearings

In Harkness v. UCBR the Commonwealth Court accepted the Claimant's argument that the Employer was improperly represented by a non-attorney "tax consultant" in an unemployment compensation hearing. Based on the unauthorized practice of law by this individual, the case was remanded to the U.C. referee for proceedings consistent with the opinion. The Court also stated its holding should only be applied prospectively.

On behalf of Pennsylvania Governor Edward G. Rendell, Labor & Industry (L&I) Secretary Stephen M. Schmerin announced yesterday the Unemployment Compensation Board of Review has asked the Pennsylvania Supreme Court to consider reversing the Commonwealth Court's ruling. The reason given was that representation by attorneys instead of non-attorneys is unfair to Claimants and Employers and will create additional delay.

Tuesday, March 01, 2005

Claimant Not In Course and Scope of Employment When Going To His Car On Personal Errand

In F. Wright v. WCAB (Larpat Muffler, Inc.), the Claimant parked in the K-Mart lot across the highway from the Employer's premises, as usual. After he clocked in, he went back across the highway to retrieve parts he had purchased and wished to exchange. The Claimant was struck by a car while on this errand.

The Commonwealth Court analogized the case with the Sears employee injured while shopping on her lunch break and the K-Mart employee injured while acting as a good samaritan on her lunch break. While the Claimant was forced to be on the highway by the Employer's parking arrangements, the Claimant was not forced to be there by the nature of his employment or by any activity furthering the Employer's interests. Accordingly, the Court held the Claimant's claim was properly denied on the basis the Claimant was not in the course and scope of employment.

Where Valuable Pension Rights Are Forfeited Rather Than Delayed, Modified Duty Job Not Available

City of Philadelphia v. WCAB (Shanks) is another case where the City of Philadelphia sought to bring an injured firefighter and EMT back to a dispatcher position. The Claimant was 43, so he was not eligible for his firefighters pension at age 45. The dispatcher position offered the municipal pension plan. Under these circumstances, the Claimant would forfeit his firefighters pension eligibility if he returned to work in the dispatcher position.

In City of Philadelphia v. Workers' Compensation Appeal Bd. (Szparagowski), 574 Pa. 372, 831 A.2d 577 (2003) the Supreme Court said employees who had already retired under the firefighters plan had to return to work. Their return to work only delayed receipt of their vested benefits. The Commonwealth Court distinguished Szparagowski and said since the Claimant in this case would lose eligibility for the more financially favorable firefighters plan, the dispatcher job was not available.