Workers' Memorial Day

April 28 is Workers' Memorial Day. Information and materials are available on the AFL-CIO web site.

After Retirement, Burden Shifts To Claimant To Show No Work Is Available Within The Claimant's Restrictions

County of Allegheny (Department of Public Works) v. WCAB (Weis) is a significant case on the receipt of workers' compensation benefits after retirement. Where the Claimant was unable to do the job he retired from, but was able to perform sedentary work, the Claimant had the burden to show he continued to seek employment to avoid a suspension of benefits.

The WCJ and Board denied the Employer's Petition for Suspension on the basis that the Claimant could not do his pre-injury job. There was no evidence of sedentary job availability. The WCJ, though not the Board, granted attorney's fees for unreasonable contest.

The Commonwealth Court cited Southeastern Pennsylvania Transp. Auth. v. Workmen’s Comp. Appeal Bd. (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) for the proposition that the burden to show the Claimant remains in the labor market is on the Claimant. It was undisputed in the case that the Claimant did not seek any work, although he did testify he intended to "if they got my knee straightened out." The Commonwealth Court suspended benefits and affirmed the Board's finding of a reasonable contest.

The Dissent highlights that the majority's opinion suspended benefits even though the Claimant was only released to sedentary duty for two hours per day, and even though his retirement was a disability retirement.

This is interesting from a procedural standpoint. An Employer's Suspension Petition alleging the Claimant has removed himself or herself from the workforce basically becomes a rule on the Claimant to show cause why the Claimant's benefits should not be suspended. So long as there is evidence the Claimant is able to do some work, the Employer has a reasonable contest in filing such a petition.

Supreme Court Decision in Jeanes Hospital

The Supreme Court issued its decision in Jeanes Hospital v. WCAB (Hass), the Commonwealth Court case that held a Review Petition to add to the description of injury is barred after the three-year statute of limitations has passed. The Court noted the Claimant was treating for one condition she was seeking to add two days after the work injury. Another condition was not diagnosed until after three years had passed. The Court held Section 413(a) permits the WCJ to modify an NCP whenever it is shown that disability increased.

The court looked only at whether the Claimant met her burden to show the conditions were related to the work injury. One purpose of a statute of repose is to bar a claim which an employer cannot investigate because the trail has grown cold. In these cases, as soon as the Claimant gets a diagnosis and treatment, the employer is informed by the bill and medical report. At that point the employer, who unilaterally decides what description of injury is on the Notice of Compensation Payable, decides whether to deny the new diagnosis.

This really is an "if it ain't broke don't fix it" case. These review issues were not a problem until the Commonwealth Court decision in Jeanes Hospital.

Two Articles on Spinal Disk Replacement

There have been several articles about the artificial disk approved by the FDA such as this one. However, a survey of 133 surgeons conducted at a meeting of the American Orthopaedic Association found that only 7 percent said they'd choose disc replacement if they had unrelenting low-back pain.

United States Supreme Court Case in Sullivan is Relevant to Burden to Prove Pension Offset is Appropriate

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, et al.,PETITIONERS v. DELORES SCOTT SULLIVAN et al., is the Supreme Court of the United States case which held there is no violation of due process when medical benefits go unpaid during the pendency of a utilization review.

The Supreme Court's analysis was that an employe is entitled to reimbursement of only "reasonable and necessary" medical expenses, so a property interest of the employe does not attach until the expenses are found "reasonable and necessary". In this manner the court distinguished this property interest from the property interest in wage indemnity benefits.

The Court holds wage indemnity benefits cannot be reduced without notice and a hearing:

"In Goldberg v. Kelly, 397 U.S. 254 (1970), we held that an individual receiving federal welfare assistance has a statutorily created property interest in the continued receipt of those benefits. Likewise, in Mathews, supra, we recognized that the same was true for an individual receiving Social Security disability benefits. In both cases, an individual’s entitlement to benefits had been established, and the question presented was whether predeprivation notice and a hearing were required before the individual’s interest in continued payment of benefits could be terminated. See Goldberg, supra, at 261—263; Mathews, supra, at 332."

According to these precedents, predeprivation notice and a hearing are required before the employer can take a credit for a pension benefit that starts after payment of workers' compensation benefits has commenced.

The Bureau Regulations instead impose the procedure of the filing a Notice of Benefit Offset with a twenty day grace period and requiring the Claimant to file a Petition to Review Benefit Offset in response. This procedure can not shift the burden to the Claimant. The Supreme Court holding requires a hearing and accordingly places the burden on the moving party, the Employer, to show it is entitled to an offset in an amount calculated consistent with the terms of the Act.

Commonwealth Court Explains When Permanent Does Not Mean Permanent

In N. Wieczorkowski v. WCAB (LTV Steel) the Commonwealth Court again held that permanent (injury) does not mean permanent when the Employer seeks to later terminate benefits. A Supplemental Agreement may provide that an employe's disability is permanent either to remove a public safety officer from entitlement to heart and lung benefits or, as here, in an agreed-upon commutation. The Commonwealth Court has held in the past that a Claimant's medical condition remains subject to review, even where permenant disability has been stipulated to.

In this decision the Court provided a clear frame of reference. When there is a question of permenancy of an injury such that further review would be precluded, the Court will first look back to the description of injury. If, for example, the injury is silicosis, permanent does mean permanent because medical science cannot presently reverse the disease process of silicosis. When the description of injury does not establish the condition is permanent under today's standards of medical science, the condition is subject to review and a finding of full recovery.

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.