Claimants Can Get a Print Out of Unemployment Compensation Paid On-Line

Claimants who receive unemployment compensation benefits receive a PIN number that allows them to access all their benefit information on-line. A Claimant can get a print out of unemployment compensation paid to establish the unemployment compensation credit against workers' compensation benefits. The URL is: https://www.pauc.state.pa.us/welcomebenefit.asp

Commonwealth Court Confirms 104 Weeks for IRE Runs From First Date of Payment

In S. Ramseur v. WCAB (Wachovia Corp.), the Commonwealth Court held that where the Claimant was entitled to benefits on March 3, 2000, but didn't receive the first payment until August 3, 2000 (presumably a payment including back benefits), the 104 weeks provided for in Section 306(a.2) of the Act expires on August 3, 2002. This made the August 27, 2002 IRE request timely.

Supreme Court Grants Allowance of Appeal in Heart Attack -- Abnormal Working Conditions Case

In Panyko v. WCAB (U.S. Airways), the Commonwealth Court reversed the grant of a heart attack claim based on Davis v. Workers' Compensation Appeal Board (Swarthmore Borough), 561 Pa. 462, 751 A.2d 168 (2000). The Commonwealth Court recognized the Claimant's argument that abnormal working conditions do not need to be shown in a heart attack case, but the Court noted the Supreme Court applied Davis to a heart attack case without further explanation in Erie Bolt Corporation v. Workers' Compensation Appeal Board (Elderkin), 777 A.2d 1169, 1998 Pa. Commw. LEXIS 1004 (Pa. Cmwlth., No. 1698 C.D. 1997, filed February 5, 1998), reversed, 562 Pa. 175, 753 A.2d 1289 (2000). The Supreme Court has now granted the Claimant's petition for appeal in the Panyko case.

Supreme Court Discusses Substantial Evidence Standard of Proof

In Patric Gibson, c/o Kathy Gibson v. WCAB (Armco Stainless & Alloy Products), Appeal of: Armco Stainless & Alloy Products, the Supreme Court reversed the holding of the Commonwealth Court that a co-workers' observation of grey dusty material on the pipes leading from the boiler established the presence of asbestos. The Supreme Court articulated the substantial evidence standard of proof as follows:

• "...information admitted into evidence must have sufficient indicia of reliability and be relevant to the matter under consideration. Accordingly, to test whether the evidence relied upon is substantial evidence in support of a finding, the reviewing court should ascertain whether the evidence admitted is competent, and if it is competent, whether it is sufficient to support the administrative finding. If the evidence is both competent and sufficient, then the finding is supported by substantial evidence." p. 7

In the case, the witness admitted he had no personal knowledge the material was asbestos. Although the Court would allow the witness to have obtained this knowledge by either formal education or practical experience, there was no evidence the witness possessed either.

The practical observation often made is that if one accepts medical evidence the Claimant has asbestosis, then work exposure is a likely cause. The Supreme Court made the following comment on the Claimant's medical evidence:

• "...we are troubled by the absence of testimony from any of Decedent’s treating physicians, the want of a diagnosis of asbestos-related disease during his lifetime, and the lack of a post mortem examination that could have conclusively established asbestos-related disease among the actual contributory causes of death. Further, the existence of apparently inert opacities occurring on Decedent’s chest x-rays over a period of twelve years seriously undermines a finding of asbestos-related disease as a significant cause of death. While unnecessary for a determination in the instant matter, we would caution tribunals considering claims of this nature that the weight to be accorded to evidence of cause of death must reside primarily with the diagnosis of one or more treating physicians or significant findings upon post mortem. After-the-fact testimony by non-treating medical experts, who have had no contact with the decedent, and that is contrary to the diagnosis of a treating physician or the findings on post mortem, may be of limited value in establishing a cause of death." f.n. 5

Commonwealth Court Emphasizes Limited Basis of Appeal for Capricious Disregard of Competent Evidence

In E. Williams v. WCAB (USX Corp.-Fairless Works, et al.) the Claimant appealed the credibility findings of the WCJ. The Commonwealth Court made it clear that the Claimant could not cobble together bits and pieces of testimony to make an argument that the WCJ capriciously disregarded competent evidence. Rather, the WCJ's decision identified and explained the substantial, competent, and credible evidence on which the decision was based. The Court emphasized it will be a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence.

Pennsylvania Workers' Compensation Practice and Procedure Reference 29.217

WTAE Pittsburgh's Site Offers Interesting Articles on New Developments in Treatment of Back Pain

WTAE's web site has information on Fish Oil used in place of NSAIDs for neck and low back pain. The research was done by Dr. Joseph Maroon. The links to the right under the heading "All About Back Pain" are interesting also.

Pennsylvania Workers' Compensation Journal Will Return November 15, 2004

Pennsylvania Workers' Compensation Journal will return on a regular basis on November 15, 2004.

Penalty Granted On Prescriptions Unpaid When Insurer Cancels Prescription Card

In T. Brenner v. WCAB (Drexel Industries) the Commonwealth Court reversed the Board and affirmed the WCJ's holding that the Employer/Insurer violated the Act when it unilaterally ended a prescription card program.  The Claimant was able to get medications through the prescription card program.  When the card was cancelled without prior notice to the Claimant, she went without medications for a period of time, then submitted prescription expenses she was able to pay, only to have them sent to utilization review.
 
The Commonwealth Court held the WCJ was correct to apply McLaughlin v. Workers' Compensation Appeal Board (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 717, 828 A.2d 351 (2003) which held the Employer cannot plead failure to present bills properly when it acts to prevent the treatment at issue.  Where the Employer/Insurer gave no notice to the Claimant of the revocation of the prescription card, a penalty was appropriate under McLaughlin. 
 
Pennsylvania Workers' Compensation Practice and Procedure Reference 13.37

C&R "Claimant Has Sustained No Other Injuries" Clause Held Not Effective

In J. Wallace v. WCAB (Bethlehem Steel, et al.) the Claimant C&R'd a 1996-97 inhalation injury on March 1, 2001.  The C&R provided that the Claimant was not presently working due to back problems.  In this context, the Claimant agreed:

Claimants allegation of injury is that he inhaled trichloroethylene and perchloroethylene in an unventilated area while cleaning metal plates. Claimant also alleges that he inhaled Chlorosolv in October 1996 and on March 24, 1997. By agreeing to this Compromise and Release Agreement, Claimant specifically represents that he has sustained no other occupational injuries or diseases arising out of or causally related to his employment with Bethlehem Steel; and that he has not given statutory notice of any other injuries or diseases.

In the Claimant's later Claim Petition alleging an August 3, 1998 back injury, the Claimant (who was represented by other counsel) testified his counsel on the C&R told him it wouldn't affect his back injury claim.  Also, the Claimant was not questioned about the back injury at the C&R hearing.   Under these circumstances, the Commonwealth Court felt it was appropriate for the WCJ to conclude the Claimant had not agreed to waive his back claim.

Pennsylvania Workers' Compensation Practice and Procedure Reference 26.19

Two More Cases Hold Date of Injury in Cumulative Trauma Case is Last Day of Work

In Leslie Fay Companies, et al. v. WCAB (Macaluso, et al.) the Commonwealth Court let stand a WCJ's decision finding the date of injury in a cumulative trauma case was the last day of work. The insurer appealed because the Claimant had a long history of symptoms and the last insurer only covered the Employer for two an a half months.

As stated recently by the Supreme Court in City of Philadelphia v. WCAB (Williams) the analysis of the appropriate date of injury in a cumulative trauma case looks only to whether credited medical evidence establishes each day of work causes an "aggravation" or new injury.

Pennsylvania Workers' Compensation Practice and Procedure Reference 3.104

Commonwealth Court Affirms Dismissal of Petition To Set Aside Compromise and Release Agreement Alleging Lack of Mental Capacity

In M. Stiles v. WCAB (Dept. of Public Welfare) the Commonwealth Court affirmed a summary dismissal of a Petition to Set Aside a Compromise and Release Agreement. The Claimant alleged she was not mentally competent when the C&R was approved. The dismissal was summary because Claimant's Counsel moved for a continuance for medical testimony at the first hearing and deferred the Claimant's testimony. The Employer thereafter moved for dismissal on the basis of collateral estoppel, and the WCJ granted the motion.

The Court distinguished the case from North Penn Sanitation Inc. v. Workers' Compensation Appeal Board (Dillard), ___ A.2d ___, (Pa. Cmwlth. No. 2115 C.D. 2003, filed, May 10, 2004) on the basis that Dillard's blindness was unknown to the WCJ. The Court stated the Claimant's mental competency was an issue before the WCJ, who made a finding the Claimant understood the Agreement.

Pennsylvania Workers' Compensation Practice and Procedure Reference 26.3 et. seq.

Personal Injury Lawyers Look to Workers' Compensation as a Result of Tort Reform

An article from the Philadelphia Business Journal reports that as personal injury lawyers have fewer and less lucrative cases, they are appearing more often before WCJs. "With the various changes with the law, the personal injury attorneys are seeing their business hit," [George] Martin said. "They're less inclined to refer [workers' compensation cases] out when their business is down."