Wednesday, July 13, 2005

Insurance Journal Article on Pennsylvania Legislation

Insurance Journal has an article discussing two workers compensation bills that moved this session in the Pennsylvania General Assembly.

Bureau Publishes Proposed General Rules and Rules For Vocational Experts

Proposed amendments to the general regulations of the Bureau of Workers Compensation were published Saturday. These regulations discuss forms, employer posting and reporting requirements and there is a section on computation of time. The Proposed Rulemaking also includes regulations regarding vocational experts in response to Act 53 of 2003.

Saturday, July 09, 2005

Commonwealth Court Holds Only Post Injury Increase In Self-Employment Earnings Can Be Basis For Modification or Suspension of Benefits

In S. Weissman v. WCAB (Podiatry Care Center, P.C.) the Claimant had substantial pre-injury wages from the time of injury employment and substantial earnings from pre-injury self employment. He was able to continue self-employment after the injury. Excluding his self-employment earnings from his Average Weekly Wage, but using them in a partial disability calculation would have resulted in a suspension of benefits.

The WCJ concluded it was fair to award a modification of benefits only on any increase in self-employment earnings after the work injury. The Board reversed and required the WCJ to suspend benefits. On appeal to the Commonwealth Court, the Court reversed the Board and endorsed the reasoning of the WCJ.

The Court recognized the Employer would receive a windfall in this scenario when the Claimant was able to continue substantial self-employment. Based on Colpetzer v. Workers' Comp. Appeal Bd. (Standard Steel), ___ Pa. ___, 870 A.2d 875 (2005)(Colpetzer II), the Court held the "economic reality" of the Claimant's pre-injury earning experience must be considered (quotes in original). The Court stated Colpetzer II addresses the proper manner of calculating a claimant's AWW when his employment situation was not specifically addressed by the statute, and that is to make a calculation based on "the economic reality of a claimant's recent preinjury earning experience." Triangle Bldg. Ctr. v. Workers'? Comp. Appeal Bd. (Lynch), 560 Pa. 540, 746 A.2d 1108 (2000)

The Court endorsed the solution of the WCJ and remanded for modification of benefits based only on the increase in the Claimant's self-employment earnings.

Articles on Proposed Workers' Compensation Reforms

Northeast Pennsylvania Business Journal has an article introducing a series workers' comp. reform. The article begins with an interesting discussion of the history of the Act. There are comments on needed reforms from employers, insurers and unions.

A second article specifically discusses proposed changes to IREs, the period for treatment with a panel provider, utilization reviews and "overpayment recovery".

There is an article summarizing other proposed changes and an article on how municipalities are affected by workers' compensation costs.

Wednesday, July 06, 2005

Supreme Court Grants Petition For Appeal on Job Availability When Claimant Has Relocated

In Motor Coils MFG/WABTEC, v. WCAB (Bish) the Employer offered a suitable job with the Employer to the Claimant, who had moved to Oklahoma. The reasons for the Claimant's move were reasonable. The Employer had downsized her and her husband prior to the offer, and he found work in Oklahoma at almost twice what he was making for the Employer.

Section 306(b)(2) provides, however, that "Earning power shall be determined by the work the employe is capable of performing ... If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply..."

The Commonwealth Court noted this was an actual job offer, and cited several cases in which the Court has held the criteria for a job offer under Kachinski still applies. One of these criteria is that the offered job must be within reach of the Claimant's residence.

The Supreme Court granted the Employer's Petition for Appeal. It does seem inconsistent that had the job been located only within the scope of a labor market survey, suspension would have been granted. The question is whether the Employer must go through the exercise. There is no requirement to do so during incarceration, and Smith v. W.C.A.B. (Dunhill Temporary Systems) 725 A.2d 1285 (Pa. Cmwlth. 1999) held it would be "irrelevant and fruitless" to establish a change of condition or job availability where the Claimant joined the Peace Corps and moved to Africa.

Update: The W.C.A.B. affirmed my decision in a case where the Claimant moved to New Zealand. A prior decision denying termination found the Claimant was able to work with restrictions. The Employer requested suspension on the basis that a labor market survey conducted in Pennsylvania would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. I granted suspension on this analysis and the Board affirmed.

However, there may be situations where the Employer will have to go through the exercise. In Bish, the modified duty job was not available on the open labor market. In my case, the Claimant did not have a job in New Zealand, like the Claimant did in Smith. It is the Employer's burden to show relevant jobs exist that are suitable to the Claimant given the Claimant's physical capabilities, education and experience.