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".

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.

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.

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.

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".

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.

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.

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.

Social Security Old Age Benefits Are "Received" Under Section 204(a) on Date Of Eligibility and Application

In Pittsburgh Board of Education v. WCAB (Davis) The Commonwealth Court held the Employer was not entitled to an offset for the Claimant's Social Security old age benefits when the Claimant applied for benefits prior to his work injury but received his first check (including benefits back to the date of application) after the injury.

Workers' Compensation TV and Radio on the Web

The Legal Talk Network is offering a show on workers' compensation matters hosted by Attorney Alan S. Pierce of Massachusetts. Shows on sick building syndrome and ethical considerations are available for listening or download at Legal Talk Network.

Law Journal TV continues to offer webcasts of its shows from WFMZ-TV 69 in Philadelphia. About every fourth weekly show is on a workers' compensation topic.