Employer Successful in Obtaining Pension Offset Gets Credit, Not Supersedeas Fund Reimbursement

In City of Wilkes-Barre v. WCAB (Spaide), the Employer filed a review petition seeking a pension offset. When the offset was awarded, the Employer sought supersedeas reimbursement of credit that accrued during the litigation. The WCJ granted the request, but the Board and Commonwealth Court reversed. The Court held supersedeas reimbursement can be granted only for termination, suspension or modification awarded under Section 413.

The Court also stated the Employer would receive a double recovery if supersedeas fund reimbursement was granted. Accordingly, the Employer must be entitled to recover the credit that accrued during litigation.

Commonwealth Court Holds Order to Attend Vocational Evaluation is Interlocutory and No Record is Required

In F. Swartz v. WCAB (Cheltenham York Road Nursing & Rehabilitation), the Commonwealth Court considered whether a WCJ must hold an evidentiary hearing and make a finding that a vocational expert is qualified before sending the Claimant to a vocational interview. The WCJ ordered the Claimant to attend without making a record on the vocational expert's qualifications, and the Board affirmed.

The Commonwealth Court analyzed whether the WCJ's Order was interlocutory, and held that it was. The Order was not considered a final order, and the Claimant was entitled to preserve his objections to the qualifications of the vocational counselor in any future litigation.

For these reasons, the Court did not feel there was any risk to the Claimant.

There was no discussion of whether actual job referrals were to be made to the Claimant. In this circumstance, Claimant's counsel will sometimes argue there is risk to the Claimant from working with an unqualified vocational counselor.

Interview with Pennsylvania Insurance Commissioner Says Act 44 Worked

On the heels of the Legisative Budget and Finance Committee report stating the Act 57 reforms aren't working, Insurance Commisioner Diane Koken stated the Act 44 reforms have worked. She credits the 1993 Act with a 15 per cent reduction in loss costs.

Commonwealth Employee Injured on the Job Cannot Sue Another Agency of the Commonwealth

In Kincel v. Comm. of PA, DOT, et al. the Commonwealth Court ruled on an issue of first impression -- whether an injured employee of the Commonwealth could sue a Commonwealth agency other than his employing agency for an injury sustained on the job.

The case involved a Pennsylvania State Police officer that was injured by a hazardous condition on a highway when he was investigating an accident. The trial court dismissed PennDOT's motion for summary judgment on the basis that PennDOT and the State Police are separate agencies of the Commonwealth.

The Commonwealth Court reversed and granted PennDOT's motion for summary judgment. The Court distinguished the exclusive remedy of the Workers' Compensation Act from other statutes or doctrines in which agencies of the Commonwealth can be treated differently. The Court said the Claimant's employer is clearly the Commonwealth, and it and all of its agencies are immune from suit.

Commonwealth Court Restates Burden to Set Aside Compromise and Release Agreement

In Farner v. WCAB (Rockwell International) the Commonwealth Court reviewed its recent decisions on a Claimant's burden to set aside a compromise and release agreement. The Court relied upon the en banc view that where collateral estoppel prevents a finding the Claimant did not understand the agreement, the agreement cannot be set aside.

Workers' Compensation Report of Legislative Budget and Finance Committee Posted

House Resolution 660 of 2004 directed the Legislative Budget and Finance Committee of the Pennsylvania General Assembly to report on Pennsylvania's Workers' Compensation System as Compared to Nearby States. Costs and procedures were reviewed. The Committee's Report is now available.

The recommendations ranging from getting back in touch with the Medicare fee schedule to eliminating the Workers' Compensation Appeal Board will certainly be the subject of proposed legislation. In reviewing the Summary, I intuitively question the analysis (attributed to the Workers' Compensation Research Institute) that the 1996 Act did little substantively to address litigation, attorney involvement and adjudication delays. Something has reduced the volume of litigation, and I agree with Judge Torrey's many articles concluding C&Rs are a major factor. However, proposed legislation can be evaluated on its own merits.

Penalty Petition Available On Line

Click on the Workers' Compensation Quick Links here or at the left to access the on-line Penalty Petition. It is under For Businesses & Organizations: Claim Information: Electronic Submissions.

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.