Saturday, September 24, 2005

C&R Unsigned Before Claimant's Death Cannot Be Approved

S. M. Facchine, et al. v. WCAB (Pure Carbon Co. & PMA Group) held that because the statute requires the Compromise and Release be signed and notarized or witnessed, an Agreement could not be approved when the Claimant passed away before signing. The Court stated the plain language of the statute could not be disregarded with the pretext of pursuing its spirit.

Monday, September 12, 2005

Testimony that a Condition is Subject to Periods of Exacerbation and Remission is Competent to Support Reinstatement After Termination

In C. Taylor v. WCAB (Servistar Corporation) the Claimant suffered from work-related plantar fasciitis in 1993. She worked at light duty until December of 1999, when the plant closed. She had stopped treating for the condition in 1997 and was terminated by Order of the WCJ in July 2000.

The Claimant went back to her doctor for orthotics in September of 2000, then went to work for another Employer in March of 2002. In April of 2002 the Claimant went for treatment again, and in May of 2002, the doctor operated on the plantar fasciitis condition.

The Claimant filed for reinstatement. The WCJ rejected the testimony of the Claimant's physician that there was a recurrence of the Claimant's 1993 condition. The Board affirmed.

The Commonwealth Court noted Claimant's doctor's testimony was uncontroverted, and in its analysis, the Court felt the doctor competently testified the condition "continues through cycles of exacerbations and remissions."

The Board had inserted an analysis that the doctor's testimony of recurrence was inconsistent with the prior finding of full recovery and therefore barred by the doctrine of collateral estoppel. The Court rejected this analysis.

The Court did not analyze whether it was simply incredible that the Claimant's 2002 surgery was related to a 1993 onset of plantar fasciitis pain. The WCJ had rejected the credibility of the Claimant's physician and the Claimant's testimony that her subjective complaints were continuing when the finding of full recovery was made.

The Court remanded the matter to the WCJ "for calculation of benefits and a determination of the responsible employer." Both procedurally and based on the evidence there is no way for the WCJ to find the new employer is responsible. Calculation of benefits will be relevant if the WCJ believed the 2002 disability was related to the injury the Claimant sustained in 1993. The treating doctor's testimony is competent, per the Court's holding.

Another Case Holds Notice Of Ability To Return To Work Is Mandatory

In Allegis Group (Onsite) and ITT Hartford v. WCAB (Henry) the Claimant was suspended by the Employer based on available light duty work. When the Claimant filed a claim petition seeking reinstatement, the WCJ agreed the Claimant was able to return to work as the Employer asserted.

The Board, however, reversed the WCJ's suspension. There was no Notice of Ability to Return to Work.

The Court affirmed the Board. Even though the Claimant filed a claim petition, the Employer had the controlling duty to file the Notice of Ability to Return to Work to be entitled to a suspension.

The Court distinguished Burrell v. Workers' Comp. Appeal Bd. (Phila. Gas Works & Compservices Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). The Notice of Ability to Return to Work was not required in that case, but surveillance evidence showed the Claimant working elsewhere, and the Claimant's ability to do that work was substantiated by expert vocational evidence.

The Court stated when suspension or modification is based on new medical evidence, a Notice of Ability to Return to Work is required.

Saturday, September 03, 2005

Individuals Performing Community Service Not Employees of County

In W. Mooney v. WCAB (County of Schuylkill) the Claimant was performing community service painting a church when he fell and hurt his arm. The WCJ, Board and Court held the Claimant was not an employee of the County.

The Claimant agreed he received no wages and the County received no benefit from his services, but the Claimant argued he was working under the control of the County coordinator on site and he received mitigation of his sentence for completion of community service.

The Court held the Claimant was not performing services for valuable consideration. Although his sentence was mitigated for participating in community service, this was his option and a function of his sentence imposed by the Common Pleas Court, not a benefit provided by the County.