Appeal Granted in RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton)

The Supreme Court granted the Claimant's Petition for Allowance of Appeal in the RAG (Cyprus) Emerald Resource, LP v. WCAB (Hopton) case. The issue in the case was whether a supervisor's pattern of harassment in the form of feigned homosexual advances was an abnormal working condition. The Commonwealth Court reversed the WCJ's finding that the Claimant established an abnormal working condition. May 25, 2004 post

Presentation at Joyner Sportsmedicine Institute -- February 1, 2005

On February 1, 2005 at 7:45 a.m. I will present "Workers' Compensation Law Update" at Joyner Sportsmedicine Institute in Roaring Spring, Pennsylvania. The presentation will inform employers' representatives about current workers' compensation procedure and new case law relevant to employer handling of workers' compensation cases.

Commonwealth Court Relies on Finding of Fact to Establish Collateral Estoppel

In Gillyard v. WCAB (PA LCB) a second termination petition was at issue. The WCJ accepted the Employer's medical evidence of full recovery and granted termination. The Board affirmed. The issue on appeal was whether the opinion of full recovery was competent.

Findings of fact in the prior termination petition were relied upon by the Commonwealth Court to establish the Claimant's diagnosis. With that diagnosis, The Court reversed the decision of the WCJ and Board. The Court stated the Employer's medical witness did not offer an opinion of full recovery from the diagnosis of the first case.

The dissent highlighted the WCJ's findings that reconciled the testimony of the Employer's witness with the diagnosis in the first case and established full recovery.

The holding is inconsistent with J. Almeida v. WCAB (Herman Goldner Company) in which the Court held findings of fact are not reviewable. If a finding of fact is not reviewable, due process is denied and the fact cannot be a basis for collateral estoppel. March 16, 2004 post.

Commonwealth Court Case on Claimant's Burden for Reinstatement

In Bailey v. WCAB (US Airways) the Claimant's benefits were suspended upon his return to work. He elected to not perform overtime, and he filed a reinstatement petition with support from his physician for a forty hour per week restriction. The Employer presented medical evidence the Claimant could perform the overtime, but with pain.

In the findings of fact reproduced by the Court, the WCJ found the Claimant declined overtime for personal reasons, implicitly accepting the opinion of the Employer's expert. The Court affirmed the decision of the Board and WCJ which held the Claimant did not meet his burden to show a worsening of condition.

OR Live to Present Streaming Broadcast of Disc Neucleoplasty

On January 14, 2005 at 4:00 p.m. OR Live will present a live internet streaming video presentation of a Disc Neucleoplasty. The procedure is a minimally invasive treatment for contained herniated discs, according to a press release of the manufacturers of the devices for the procedure. Dr. Peter Gerszten of UPMC in Pittsburgh will perform the procedure.

The Maximum Workers' Compensation Rate for 2005 is $716

Secretary of Labor and Industry Stephen Schmerin announced the 2005 maximum rates for workers' compensation and unemployment compensation in a press release today.

New Life Tables Published

Life tables for the year 2002 were published recently and are available. United States Life Tables, 2002 .pdf The most updated life table yields the most advantageous Sciarotta calculation.

There is a link on the left side of the page to annual life table updates from the National Center on Health Statistics.

The suggested citation is: Arias E. United States life tables, 2002. National vital statistics reports; vol 53 no 6. Hyattsville, Maryland: National Center for Health Statistics. 2004.

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.