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.

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.

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.

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.