Commonwealth Court Holds WCJ Does Not Have Subject Matter Jurisdiction Over Employer's Petition To Find Work Injury Compensable

In MPW Industrial Services v. WCAB (Mebane), the Employer sought to have an after hours automobile accident adjudicated to have occurred in the course and scope of employment. The Employer did not use an NCP, because this would not collaterally estop the third party case. The Employer filed a Review Petition.

The WCJ found the Claimant was not misled by the form of the petition, had notice of the relief sought by the Employer, and had a full and fair opportunity to contest the basis of the Employer's assertion. Under Lake v. Workers' Compensation Appeal Board (Whiteford National Lease), 746 A.2d 1183, 1188 (Pa. Cmwlth. 2000), the WCJ entertained the Employer's petition and found the Claimant was in the course and scope of employment.

The Board and the Court held the WCJ did not have subject matter jurisdiction. Since an NCP was not issued, Section 413 of the Act did not give the WCJ the power to review the case. Furthermore, only the employe or the employe's dependents are permitted to file a claim under Section 410.

Commonwealth Court Holds Employer's Duty to Make Work Available Arises When Claimant Released from Incarceration

In Keys-Pealers, Ltd./Pealer's Flowers v. WCAB (Bricker) the Commonwealth Court reaffirmed the premise that the Employer cannot get a continuing suspension of benefits by referring jobs while the Claimant is incarcerated and ineligible for work release. When the Claimant was released, the Employer's obligation to show work availability arose again.

The Court noted the Claimant was incarcerated for workers' compensation fraud when he took other work without informing the Employer. The court did not discuss the holding in J. Burrell v. WCAB (Philadelphia Gas Works, et al.) and note modification/suspension should be granted based on the Claimant's earnings in the work upon which his conviction was based.

Dismissal "With Prejudice" is Within the Discretion of the WCJ

US Airways & Reliance Nat'l c/o Sedgwick Claims Mgmt Services v. WCAB (McConnell) held the WCJ has the discretion to control the WCJ's docket by requiring parties to comply with scheduling orders. Accordingly, it was within the WCJ's discretion to dismiss a claim "with prejudice" when the Claimant's ongoing delay was prejudicial to the Employer.

Labor and Industry Seeks Reversal of Commonwealth Court Holding That Employers Must Be Represented By Attorneys At Unemployment Compensation Hearings

In Harkness v. UCBR the Commonwealth Court accepted the Claimant's argument that the Employer was improperly represented by a non-attorney "tax consultant" in an unemployment compensation hearing. Based on the unauthorized practice of law by this individual, the case was remanded to the U.C. referee for proceedings consistent with the opinion. The Court also stated its holding should only be applied prospectively.

On behalf of Pennsylvania Governor Edward G. Rendell, Labor & Industry (L&I) Secretary Stephen M. Schmerin announced yesterday the Unemployment Compensation Board of Review has asked the Pennsylvania Supreme Court to consider reversing the Commonwealth Court's ruling. The reason given was that representation by attorneys instead of non-attorneys is unfair to Claimants and Employers and will create additional delay.

Claimant Not In Course and Scope of Employment When Going To His Car On Personal Errand

In F. Wright v. WCAB (Larpat Muffler, Inc.), the Claimant parked in the K-Mart lot across the highway from the Employer's premises, as usual. After he clocked in, he went back across the highway to retrieve parts he had purchased and wished to exchange. The Claimant was struck by a car while on this errand.

The Commonwealth Court analogized the case with the Sears employee injured while shopping on her lunch break and the K-Mart employee injured while acting as a good samaritan on her lunch break. While the Claimant was forced to be on the highway by the Employer's parking arrangements, the Claimant was not forced to be there by the nature of his employment or by any activity furthering the Employer's interests. Accordingly, the Court held the Claimant's claim was properly denied on the basis the Claimant was not in the course and scope of employment.

Where Valuable Pension Rights Are Forfeited Rather Than Delayed, Modified Duty Job Not Available

City of Philadelphia v. WCAB (Shanks) is another case where the City of Philadelphia sought to bring an injured firefighter and EMT back to a dispatcher position. The Claimant was 43, so he was not eligible for his firefighters pension at age 45. The dispatcher position offered the municipal pension plan. Under these circumstances, the Claimant would forfeit his firefighters pension eligibility if he returned to work in the dispatcher position.

In City of Philadelphia v. Workers' Compensation Appeal Bd. (Szparagowski), 574 Pa. 372, 831 A.2d 577 (2003) the Supreme Court said employees who had already retired under the firefighters plan had to return to work. Their return to work only delayed receipt of their vested benefits. The Commonwealth Court distinguished Szparagowski and said since the Claimant in this case would lose eligibility for the more financially favorable firefighters plan, the dispatcher job was not available.

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.