Friday, February 25, 2005

Employer Successful in Obtaining Pension Offset Gets Credit, Not Supersedeas Fund Reimbursement

In City of Wilkes-Barre v. WCAB (Spaide), the Employer filed a review petition seeking a pension offset. When the offset was awarded, the Employer sought supersedeas reimbursement of credit that accrued during the litigation. The WCJ granted the request, but the Board and Commonwealth Court reversed. The Court held supersedeas reimbursement can be granted only for termination, suspension or modification awarded under Section 413.

The Court also stated the Employer would receive a double recovery if supersedeas fund reimbursement was granted. Accordingly, the Employer must be entitled to recover the credit that accrued during litigation.

Commonwealth Court Holds Order to Attend Vocational Evaluation is Interlocutory and No Record is Required

In F. Swartz v. WCAB (Cheltenham York Road Nursing & Rehabilitation), the Commonwealth Court considered whether a WCJ must hold an evidentiary hearing and make a finding that a vocational expert is qualified before sending the Claimant to a vocational interview. The WCJ ordered the Claimant to attend without making a record on the vocational expert's qualifications, and the Board affirmed.

The Commonwealth Court analyzed whether the WCJ's Order was interlocutory, and held that it was. The Order was not considered a final order, and the Claimant was entitled to preserve his objections to the qualifications of the vocational counselor in any future litigation.

For these reasons, the Court did not feel there was any risk to the Claimant.

There was no discussion of whether actual job referrals were to be made to the Claimant. In this circumstance, Claimant's counsel will sometimes argue there is risk to the Claimant from working with an unqualified vocational counselor.

Wednesday, February 16, 2005

Interview with Pennsylvania Insurance Commissioner Says Act 44 Worked

On the heels of the Legisative Budget and Finance Committee report stating the Act 57 reforms aren't working, Insurance Commisioner Diane Koken stated the Act 44 reforms have worked. She credits the 1993 Act with a 15 per cent reduction in loss costs.

Sunday, February 13, 2005

Commonwealth Employee Injured on the Job Cannot Sue Another Agency of the Commonwealth

In Kincel v. Comm. of PA, DOT, et al. the Commonwealth Court ruled on an issue of first impression -- whether an injured employee of the Commonwealth could sue a Commonwealth agency other than his employing agency for an injury sustained on the job.

The case involved a Pennsylvania State Police officer that was injured by a hazardous condition on a highway when he was investigating an accident. The trial court dismissed PennDOT's motion for summary judgment on the basis that PennDOT and the State Police are separate agencies of the Commonwealth.

The Commonwealth Court reversed and granted PennDOT's motion for summary judgment. The Court distinguished the exclusive remedy of the Workers' Compensation Act from other statutes or doctrines in which agencies of the Commonwealth can be treated differently. The Court said the Claimant's employer is clearly the Commonwealth, and it and all of its agencies are immune from suit.

Thursday, February 10, 2005

Commonwealth Court Restates Burden to Set Aside Compromise and Release Agreement

In Farner v. WCAB (Rockwell International) the Commonwealth Court reviewed its recent decisions on a Claimant's burden to set aside a compromise and release agreement. The Court relied upon the en banc view that where collateral estoppel prevents a finding the Claimant did not understand the agreement, the agreement cannot be set aside.

Tuesday, February 08, 2005

Workers' Compensation Report of Legislative Budget and Finance Committee Posted

House Resolution 660 of 2004 directed the Legislative Budget and Finance Committee of the Pennsylvania General Assembly to report on Pennsylvania's Workers' Compensation System as Compared to Nearby States. Costs and procedures were reviewed. The Committee's Report is now available.

The recommendations ranging from getting back in touch with the Medicare fee schedule to eliminating the Workers' Compensation Appeal Board will certainly be the subject of proposed legislation. In reviewing the Summary, I intuitively question the analysis (attributed to the Workers' Compensation Research Institute) that the 1996 Act did little substantively to address litigation, attorney involvement and adjudication delays. Something has reduced the volume of litigation, and I agree with Judge Torrey's many articles concluding C&Rs are a major factor. However, proposed legislation can be evaluated on its own merits.

Wednesday, February 02, 2005

Penalty Petition Available On Line

Click on the Workers' Compensation Quick Links here or at the left to access the on-line Penalty Petition. It is under For Businesses & Organizations: Claim Information: Electronic Submissions.