Friday, December 26, 2008

A Summary of Recent Pennsylvania Workers' Compensation Appellate Court Decisions (December 2008)

Pennsylvania Workers' Compensation Appellate Decisions (All Commonwealth Court Cases Unless Noted)

I.Appellate Procedure -- Remand

Repash v. Workers’ Compensation Appeal Board (City of Philadelphia), 114 C.D. 2008 (November 10, 2008)

Holding: The Workers’ Compensation Appeal Board errs when it ignores a Workers’ Compensation Judge’s finding that a claimant was entitled to the firefighter’s presumption under Section 108(o) of the Act and that, consequently, his heart disease disabled him from firefighting.

II.Compromise & Release Agreements -- Enforceability

Crawford v. Workers’ Compensation Appeal Board (Centerville Clinics, Inc.), 2231 C.D. 2007 (October 10, 2008).

Holding: When a Compromise & Release Agreement contains a certification from the claimant that she is suffering from no known life-threatening or terminal illness(es) unrelated to her work injury and agrees that the C&R is null and void upon her death if not approved by a judge, the C&R was in fact null and void because the Claimant died one day before the Judge approved it.

III.Evidence -- Presumptions

Allegheny Power Service Corp. v. Workers’ Compensation Appeal Board (Cockroft), 242 C.D. 2007 (July 22, 2008)

Holding: In a decision that seems destined to reach the Pennsylvania Supreme Court, the Commonwealth Court has ruled that, under Section 306(c)(23) of the Act, there is a presumption of total disability for workers with certain bilateral losses, requiring appropriate compensation without regard to a claimant’s earning power. Because the employer in this case stipulated that the claimant suffered such a severe bilateral loss and the WCJ found that the claimant remained totally disabled under Section 306(c)(23), the employer was obligated to pay total disability benefits.

IV.Concurrent Benefits

YDC New Castle-PA DPW v. Workers' Compensation Appeal Board (Hedland), 230 C.D. 2008 (June 11, 2008)

Holding: A claimant who receives benefits under 61 §§ 951-952 (Act 534) is also entitled to benefits under the Workers’ Compensation Act that were not paid under Act 534. Thus, a claimant is entitled to benefits for the first two days that his injury kept him out of work, despite failing to provide the employer with documentation of a medical examination on the first day of his absence as required by employer’s policy, where concerns about potential abuse of employer’s policies were not present under the circumstances.

V.Defenses -- Violation of Work Order

A.Scott v. Workers’ Compensation Appeal Board (Ames True Temper Inc.), 647 C.D. 2008 (September 29, 2008)

Holding: The defense that a claimant violated a word order does not apply if the activity was part of the workers’ job duties. Thus, an injured worker who engaged in an activity that was part of his work duties, even though the activity in direct violation of a positive work order, is entitled to benefits.

B.Bayada Nurses v. Workers’ Compensation Appeal Board (Gallagher), 123 C.D. 2008 (July 29, 2008)

Holding: Minor violations of the law, such as traffic violations, are not a sufficient basis to deny benefits because of a violation of the law. Rather, the phrase, “violation of the law,” has been interpreted to mean the commission of a felony or misdemeanor. Although a summary offense may constitute a violation of the law when it is a necessary element of a felony or misdemeanor conviction, where a Claimant was cited for several summary offenses, the evidence did not establish a “violation of law” under Section 301(a) of the Act.


A.Dart Container v. Workers’ Compensation Appeal Board (Lien), 550 C.D. 2008 (October 23, 2008)

Holding: The Workers’ Compensation Appeal Board may modify a disfigurement award if the modification is explained and consistent with case law.

B.City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 1701 C.D. 2007 (June 4, 2008)

Holding: The Workers’ Compensation Appeal Board may modify a Workers’ Compensation Judge’s disfigurement award only if it concludes that the WCJ capriciously disregarded competently evidence by entering an award significantly outside the range of benefits most WCJs would select for a particular scar. In so doing, and to allow for meaningful appellate review, the Board must adequately explain its change in the award, including what range is acceptable under the circumstances, what most WCJs would award within that range or how the WCAB reached its conclusion that most WCJs would award greater compensation.


A.Erisco Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), 657 C.D. 2008 (September 3, 2008)

Holding: An employer’s failure to independently establish the required chain of custody for a worker’s drug test sample in a Claim Petition precludes the employer from using the same drug test as proof in a subsequent suspension petition that the claimant’s pre-injury job was unavailable because of his own misconduct.

B.Patton v. Workers’ Compensation Appeal Board (Lane Enterprises, Inc.), 2363 C.D. 2007 (October 22, 2008)

Holding: An employer may overcome the presumption that a worker suffered from a work-related occupational disease under Section 301(e) of the Workers’ Compensation Act, 77 P.S. §413, by presenting credible medical evidence that the Decedent did not suffer from an occupational disease.

C.Campbell v. Workers’ Compensation Appeal Board, 38 C.D. 2008 (July 29, 2008).

Holding: A Workers’ Compensation Judge may reject a medical expert’s testimony for failure to credibly establish causation even if the Judge concludes that the opinions themselves are credible.

VIII.Fee Review

Crozer Chester Medical Center v. Dept. of Labor and Industry, 251 M.D. 2008 (September 3, 2008)

When an employer/insurer disputes its liability for an alleged work injury, an application for fee review is premature and inappropriate. What makes this case unusual is the fact that the employer had issued a Medical Only Notice of Compensation Payable that appeared to encompass the treatment under review. The Court agreed that the dispute precluded the Bureau from hearing the fee review petition.

IX.Impairment Ratings -- Modification of Benefits

A.Combine v. Workers’ Compensation Appeal Board (National Fuel Gas Distribution Corporation), 539 C.D. 2008 (August 14, 2008)

Holding: Section 306(a2) of the Workers’ Compensation Act requires a determination of maximum medical improvement (MMI) prior to calculating a claimant’s impairment rating.


United Parcel Service v. Hohider, 2008 PA Super 148 (July 7, 2008)

Holding: An employer may enter a judgment in the Court of Common Pleas based upon a WCJ’s Order directing payment by an employee to an employer of a liquidated sum in satisfaction of the employer’s right to subrogation. The Court notes that, although Section 428 of the Act, 77 P.S. § 921, permits only employees or dependents to enter a judgment in a court of common pleas as a result of an unpaid Order by a WCJ, precluding an employer from doing so would render the WCJ’s order a nullity.

XI.Medical Expenses

Nickel v. Workers’ Compensation Appeal Board (Agway Agronomy), 719 C.D. 2008 (October 22, 2008)

Holding: A healthcare provider may not collect the difference between the provider’s charge (as repriced under Act 44) and the amount of a DPW lien from an employer or its workers’ compensation if the provider has accepted DPW’s payment as payment in full.


A.Folmer v. Workers’ Compensation Appeal Board (Swift Transportation), 596 C.D. 2007 (October 22, 2008)

Holding: When there have been prior petitions to modify or terminate benefits, an employer must accept the adjudicated condition and establish a change in physical condition into to prove that claimant has recovered from a work-related injury. Although the evidence needed to establish a change of condition would differ in each case, an employee may meet its burden by proving that the claimant’s symptoms lacked any objective basis.

B.National Fiberstock Corp. (Greater N.Y. Mutual Life Insurance Co.) v. Workers’ Compensation Appeal Board (Grahl), 1456 C.D. 2007 (August 29, 2008)

Holding: When a claimant establishes a change in physical condition, the doctrine of res judicata does not prevent an employee from seeking a reinstatement of benefits, even if a termination petition had been granted previously.

C.Watson v. Workers' Compensation Appeal Board (Special People in Northeast and Eagle Trust Management), 1924 C.D. 2007 (May 30, 2008)

Holding 1: A Workers’ Compensation Judge may terminate benefits in a claim petition, even when no termination petition is filed, when the claimant fails to establish the ongoing nature of his or her injury.

Holding 2: A claimant is not entitled to an award of litigation costs when the employer admitted its obligation to pay medical expenses, but disputed its obligation to pay indemnity benefits, and the WCJ declined to award any wage losses. Under the circumstances, the claimant did not prevail on any disputed issue before the WCJ, and is not entitled to an award of costs.

D.Paul v. Workers' Compensation Appeal Board (Integrated Health Services), 16 C.D. 2008 (June 11, 2008)

Holding: Where there has been no prior determination of a claimant’s condition by a WCJ, an employer meets its burden in a termination petition when it presents evidence that the claimant had fully recovered from all of the accepted work injuries. The Court distinguishes this case from Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.), 919 A.2d 922 (2007), noting that the injuries and disabilities at issue had been the subject of prior proceedings.

E.Prebish v. Workers’ Compensation Appeal Board (DPW/Western Center.), 319 C.D. 2007 (July 14, 2008)

Holding: In order to terminate a Claimant’s benefits, a WCJ must consider whether Claimant’s physical condition has changed materially since the date of the most recent prior decision. In this case, the Court remanded the case in order for the (second or subsequent) WCJ to make a factual finding whether claimant’s condition had changed after the date of the first (or most recent prior) decision by a WCJ.


A.Bullen Cos. v. Workers’ Compensation Appeal Board (Hausmann), 409 C.D. 2008 (October 23, 2008)

Holding: Pursuant to Section 301(c)(1) of the Workers’ Compensation Act, 77 P.S. §411(1), a worker must give notice of an occupational disease claim within 120 days from the date on which the worker discovers that the disease is job-related. Under Section 311, a claimant’s discovery of a work related disease requires more than an employee's suspicion, intuition or belief.

B.Crompton Corporation v. Workers’ Compensation Appeal Board (King), 2142 C.D. 2007 (August 5, 2008)

Holding: A Claimant may not be charged with the knowledge of a compensable hearing loss unless and until the claimant is so informed by a health care provider. Section 306(c)(8)(ix) of the Workers Compensation Act is not intended for determining whether Section 311 notice requirements were satisfied.


A.Costa v. Workers’ Compensation Appeal Board (Carlisle Corp.), 822 C.D. 2008 (October 14, 2008)

Holding: Under Section 204(a) of the Workers’ Compensation Act, a Workers Compensation Judge must award an offset for unemployment compensation benefits when the amount is undisputed, whether the employer raises the issue or not.


A.Stout v. Workers' Compensation Appeal Board (Pennsbury Excavating, Inc.), 1969 C.D. 2007 (May 22, 2008)

Holding: An employer has an absolute right of subrogation from a claimant’s third party recovery when the claimant received compensation payments from the employer's insurer, which accepted liability for the work injury. The Court declined to rule that, under the facts presented, the employer and its workers' compensation insurer engaged in deliberate bad faith conduct in order to subvert the claimant's third party action, potentially barring its right to subrogation.

B.Gorman v. Workers’ Compensation Appeal Board (Kirkwood Construction), 1926 C.D. 2007 (July 9, 2008)

Holding: An employer is entitled to payment of its subrogation lien even though the parties had entered into a Compromise and Release Agreement (C&R), which stated that there was no lien or potential lien for subrogation. In particular, the WCJ found no evidence that a potential third party action was considered by the parties when they negotiated the C&R, and determined that the parties were mistaken in the relevant subrogation lien averment. Consequently, the WCJ set aside the C&R based upon a mutual mistake.

About the Author

Daniel J. Siegel, a Havertown, Pa. attorney, founded Integrated Technology Services. To contact Dan Siegel go to Daniel J. or email Subscribe. Dan Siegel’s office is located at 66 West Eagle Road, Suite 1, Havertown, PA 19083. He can be reached at (610) 446-3457.

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