Commonwealth Court Outlines Burden of Proof in §306(b)(1) Modification Based on Current Wages of Fellow Employee

In a very well organized opinion in Verizon Pennsylvania, Inc. v. WCAB (Baun), the Commonwealth Court provided guidance on the modification of benefits under §306(b)(1) which provides an employe shall not receive more in compensation and wages combined than the current wages of a fellow employe in employment similar to that in which the injured employe was engaged at the time of injury. Although the Court held the Employer did not meet its threshold burden to demonstrate what similarly situated employees were making at the time of injury, the Court went on to clarify its interpretation of the remainder of any §306(b)(1) analysis.

The Court held the threshold burden is to establish the wages at the time of injury of the class of similarly situated employees. The Court stated a WCJ may elect to evaluate the wages of each employee in the class or rely on an average or median, as the WCJ's discretion directs.

The court further stated Maier's Bakery v. Workers' Comp. Appeal Bd. (Sandt), 751 A.2d 1208 (Pa. Cmwlth. 2000) does not require that the Employer must show economic distress caused wages to be reduced. The Court explained there is no such requirement in the statute.

Finally, the Court stated the only comparison to be made by the WCJ is whether the Claimant is currently receiving more in wages and compensation combined than the class of similarly situated employees. The Claimant had returned to work at modified duty, and there would be a figure that represents the Claimant's wages and compensation combined. Even if, as here, some employees in the class were currently making more than the Claimant's Average Weekly Wage, this fact does not necessarily enter into the comparison to be made between what the Claimant receives and the representative current wages of the class that the WCJ determines.

Commonwealth Court Holds Physical/Physical Injury Standard Can Still Apply to a Heart Attack Case

In J. Curren v. WCAB (City of Chester) the Commonwealth Court reversed an Order of the Workers' Compensation Appeal Board that held a mental stress causing physical injury standard of proof applies in a heart attack case. The Court accepted the Claimant's argument that compensation was awarded on a physical stress causing physical injury basis. The Court held the medical testimony credited by the Workers' Compensation Judge provided substantial evidence to support a physical stress causing physical injury standard of proof. Accordingly, the Claimant did not have to meet the heightened burden in a mental/physical case to show abnormal working conditions.

AFL-CIO Press Release Notes Proposed Reduction in W.C. Rates

Pennsylvania AFL-CIO President William M. George issued a press release in response to news of a proposed rate decrease from the Pennsylvania Compensation Rating Bureau. The press release highlights positive trends in job safety.

York Daily Record Series on Workers' Compensation

The York Daily Record is running a series on workers' compensation. Four articles have been printed to date. They are linked at the bottom of this article from today.

The articles begin with a discusssion of a specific case, then broaden into a discussion of Pennsylvania's statutory system and proposed changes of injured workers, their families, employers and insurers.

WCRI to give Pennsylvania Briefing on January 19, 2005

The Workers' Compensation Research Institute will brief the newest results from the 5th Edition of the WCRI CompScope™ multistate benchmarks study, comparing workers' compensation system performance for Pennsylvania with 11 major states (California, Connecticut, Florida, Illinois, Indiana, Louisiana, Massachusetts, North Carolina, Tennessee, Texas and Wisconsin) in Harrisburg on January 19, 2005.

Commonwealth Court Confirms Claimant Does Not Waive Timeliness Argument By Attending IRE

In Wellington Foods v. WCAB (Rice), the Claimant attended an IRE requested more than 60 days after payment of 104 weeks of total disability benefits. The Commonwealth Court rejected the Employer's argument the Claimant waived his objection to the timeliness of the IRE by attending the IRE.

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.