Tuesday, August 23, 2005

Commonwealth Court Holds W.C. Security Fund Is Not Subject to Penalties

The Commonwealth Court held in G. Luvine v. WCAB (Erisco Industries) that a penalty may not be awarded against the Workers' Compensation Security Fund. The Court stated the Board was correct to apply the case of Chiconella v. Workers' Compensation Appeal Board (Century Steel Erectors, Inc.), 845 A.2d 932, 935 (Pa. Cmwlth. 2004), which held the Subsequent Injury Fund is not subject to penalties. The Court reasoned that the two funds are not "insurers" under the Act because of their limited purpose and the fact they are not included in the statute's definition of "insurer".

Thursday, August 18, 2005

Dismissal For Failure To Prosecute May Be With Prejudice Without WCJ's Statement of Same

In A. J. Clayton v. WCAB (Carpentry Concepts, Inc.) the Claimant did not prosecute his case in three hearings, and did not show up at the second or third hearing. Claimant's counsel didn't show up at the first or third hearing. Although the WCJ's dismissal for failure to prosecute did not state the dismissal was with prejudice, the Board made this determination when it affirmed the WCJ.

The Commonwealth Court affirmed, including the determination of prejudice. The Court primarily relied on the nonappearance without excuse of Claimant and Claimant's counsel at the last hearing.

Wednesday, August 17, 2005

Injured Worker Poem

The Writer's Almanac featured a poem this morning entitled "No Work Poem #1" by Virgil Suarez. You can read the poem or listen to Garrison Keillor read the poem at the August 17, 2005 edition of the Writer's Almanac. On this archive page, scroll down to get to the August 17 edition.

Saturday, August 13, 2005

Commonwealth Court Upholds Grant Of Attorneys Fees Where Employer Presented Some Quantum Of Evidence The Injury Did Not Occur

In Northwest Medical Center v. WCAB (Cornmesser) benefits were granted for a back injury. The Commonwealth Court dismissed the Employer's bases for appeal as follows:

"In cases where the causal connection is obvious, medical evidence of causation is not necessary. Kensington Manufacturing Company v. Workers' Compensation Appeal Board (Walker), 780 A.2d 820 (Pa. Cmwlth. 2001). A causal connection is obvious where an individual is doing an act that requires force or strain and pain is immediately experienced at the point of force or strain. Gartner v. Workers' Compensation Appeal Board (Kmart Corporation), 796 A.2d 1056 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 572 Pa. 713, 813 A.2d 846 (2002)."

The WCJ has the power to accept the Claimant's testimony as credible. The WCJ thereby rejected the inference that the injury did not occur as the Claimant stated. To support this inference, the Employer relied on the fact the Claimant presented no medical evidence and testimony indicating the Claimant initially forgot a prior injury and altered a medical form (the WCJ accepted the Claimant's explanations).

The Court nevertheless upheld the grant of attorneys fees for unreasonable contest. The Court stated: "As stated in Bells Repair, absent some evidence to contradict or challenge the claimant's allegations that he suffered a work-related injury, a bald credibility challenge to an unwitnessed work related injury is insufficient to show a reasonable contest."

The Court could only have reached this conclusion by concluding the evidence the Employer relied on to establish the inference the injury did not occur was not sufficient evidence upon which a reasonable person could base a finding of fact. The Employer should lean toward clear and convincing evidence (whether or not found credible) to support a finding of reasonable contest.

Another important holding:

Where, as here, medical bills have not been submitted in the proper form, the remedy is to remand the matter to the WCJ. AT&T v. Workers' Compensation Appeal Board (DiNapoli), 728 A.2d 381 (Pa. Cmwlth. 1999).

Sooner or later the adjuster must investigate and respond to the unpaid bill information the Claimant provides.

Tuesday, August 09, 2005

Supreme Court Remands AWW / Maternity Leave Case

The Supreme Court granted the Claimant's Petition for Appeal in Rebel v. WCAB (Emery World Airlines #150). In this case, the Commonwealth Court held the Claimant remained "employed" and subject to the Section 309(d) average weekly wage calculation, even though there was a gap in wages due to the Claimant's maternity leave. March 16, 2004 post

The Supreme Court remanded the case to the Commonwealth Court for reconsideration in light of Hannaberry HVAC v. W.C.A.B., 834 A.2d 524 (Pa. 2003), and Colpetzer v. W.C.A.B., 870 A.2d 875 (Pa. 2005). The economic reality of the Claimant's pre-injury earning experience might lead the Commonwealth Court to conclude the average weekly wage must be calculated by some other method because the occurrence of maternity leave in the prior year has no relevance to the Claimant's earning potential in the following year. Depending on the facts, the Claimant may also have been incapable of performing services for valuable consideration, and therefore could not have been "employed".