Supreme Court Grants Appeal in Case Where WCJ Amended the Description of Injury Without a Review Petition

In Cinram Manufacturing, et al, Pets v. WCAB (Hill) the Supreme Court granted the Employer’s Petition for Allowance of Appeal.

The Employer is arguing the Claimant had to file a Review petition according to Jeanes Hospital v. WCAB (Hass), 872 A.2d 159 (Pa. 2005) and Commercial Credit Claims v. WCAB (Lancaster), 728 A.2d 902 (Pa. 1997).

The Employer filed a Termination petition alleging the Claimant was fully recovered from the accepted injury, a lumbar strain. The Employer’s doctor so testified. The Claimant’s doctor testified a herniated disc present at least four years prior to the injury was aggravated and the Claimant had not fully recovered from this condition. The WCJ accepted the Claimant’s doctor’s opinion.

The WCAB and Commonwealth Court analyzed this case on a substantial evidence standard.
However, the issue is really one of due process. The Employer was not able to defend where the Employer’s medical witness met the Employer’s burden and there was no Review petition at issue.

September 13, 2007 post

Commonwealth Court Remands In Modification Case Where Employer Provided Work Within the Claimant's Restrictions Then Took It Away

C. Rosenberg v. WCAB (Pike County) is a case of modification of benefits based upon a labor market survey. The Claimant is a corrections officer who suffered a knee injury. The Employer then placed the Claimant in a job the Claimant was capable of performing as a clerical worker with the Board of Elections. The Claimant was performing this job when the Notice of Ability to Return to Work was issued.

About a month after the Notice of Ability to Return to Work, the Claimant was terminated with the explanation that she was not expected to return to her regular duty position and the County does not provide permanent light duty positions. She was replaced in the Board of Elections with a newly hired person.

The WCJ granted modification in the case. The Claimant had some later jobs, evidencing earning power under Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works & Compservices, Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). However, the WCJ relied upon evidence of earnings in open jobs, not the earnings of jobs the Claimant actually held after leaving County employment. Accordingly, the Court held the case is controlled by South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). The Court remanded for the WCJ to make a finding whether the Employer met its burden to establish it had no work the Claimant was capable of performing.

The record on remand may establish the Employer accommodated restrictions of the Claimant while performing the Board of Elections job. If the Claimant was unable to perform essential functions of the job, the Employer did not have to offer it to her. The job also could have been unavailable to the Claimant if a collective bargaining agreement required that she vacate the position. However, if the Claimant could have continued to work in the job but for the Employer’s policy decision to terminate her, the Employer should be prohibited from obtaining a modification of benefits by vocational expert testimony regarding open jobs.

Injury Resulting from Horseplay Generally Compensable

In Sysco Food Services of Phila v. WCAB (Sebastiano) the Claimant was injured engaging in horseplay. While the question of whether the Claimant was an innocent victim remained unresolved in the mind of the Commonwealth Court, the Court noted the Claimant was in his regular work area and his actions, even if viewed in their worst light, were not so disconnected with his regular work duties for the Claimant to be considered, with respect to the employer, nothing more than a "stranger" or "trespasser."

The Court distinguished Johnson v. Workers’ Compensation Appeal Board (Union Camp Corp.), 749 A.2d 1048 (Pa. Cmwlth. 2000) in which the Claimant got in a fight after leaving his work area to talk with another employee about a non work-related matter. The Court also cited Judge Torrey’s treatise for the premise that violation of a work rule stating there is "no horseplay" will not make otherwise compensable horseplay injuries non-compensable.

Largest Workers’ Compensation Rate Reduction in a Decade

The Pennsylvania Compensation Rating Bureau (PCRB) has proposed a 10.22 percent average reduction in workers’ compensation policy rates for 2008, according to a Pittsburgh Business Times Article. The recommendation will go to the Pennsylvania Insurance Department for approval.

On January 19, 2007 the PCRB recommended a 2.95 percent average increase.

In 2006, the PCRB recommended an average 8.5 percent reduction, which was reported to be the biggest decrease sought since 1997.

In 2005, the PCRB recommended a 2.89 percent average reduction, which was predicted to save employers $32.5 million.

Labor Market Survey May Be Done In Area Of Claimant's Residence Even If Out Of State

In H. Riddle v. WCAB (Allegheny City Electric, Inc.), the Claimant was injured in Pittsburgh, but had a residence in Wheeling, West Virginia and lived with his father at a nearby address in Ohio, where the Claimant held a driver’s license.

The Claimant’s benefits were modified based on a labor market survey focusing on Wheeling. The Claimant argued since he resides out of state, the labor market survey must be done in the usual employment area where the injury occurred, i.e. Pittsburgh, according to 306(b)(2) of the Act.

The Commonwealth Court applied the rule of statutory construction that the legislature could not have intended an absurd result. Where the Employer accommodates the Claimant in conducting the labor market survey, the results are valid.

SWMS Associated With Cancer

The International Agency for Research on Cancer, the cancer arm of the World Health Organization, will designate overnight shift work as a probable carcinogen according to a Pittsburgh Post-Gazette article. Judge David Torrey identifies the 1998 case of Met. Ed. v WCAB, 718 A2d 759 (Pa. 1998) as the Supreme Court case which previously held shift work maladaptation syndrome is not a compensible injury.

Report From National Workers’ Compensation and Disability Conference and Expo

Human Resource Executive Online summarizes a discussion from the National Workers’ Compensation and Disability Conference and Expo about outcome based workers’ compensation management. The panelists are all names Pennsylvania workers’ compensation practitioners will recognize.

NIOSH Guide: Simple Ways To Prevent Musculoskeletal Injuries in Construction

Safety Online Article

NIOSH .pdf materials

Furlough Benefits Are Not Severance Benefits

In G. Kelly v. WCAB (US Airways Group, Inc.) the Commonwealth Court reversed the opinion of the Board and WCJ that furlough benefits are severance benefits for which the Employer is entitled to a credit under Section 204(a) of the Act. The Court applied a plain language analysis.

L&I Offers Policy Search Via Internet

Information on workers compensation coverage for Pennsylvania employers is available at PA Employer WC Insurance Info on L&I's web site. The search will show the current insurance carrier and the coverage history.

Commonwealth Court Holds Expense Reimbursement Should Be Included in AWW

In T. Lennon, Dec', et al. v. WCAB (Epps Aviation, Inc.), the Claimant, an airplane pilot, received expense reimbursement for board and lodging from his employer. Claimant’s Counsel argued these amounts should be included in the average weekly wage calculation under Section 309(e) of the Act on the basis that they represent payments for board and lodging.

The WCJ denied the request to include reimbursed board and lodging expenses. The rule prior to this case was that board and lodging expenses are included in the average weekly wage only when a daily or weekly advance is paid to the claimant. These are reimbursements made under a nonaccountable plan and are therefore wages subject to withholding and employment taxes. Expense reimbursements paid to an employee under an accountable plan are exempt from withholding and employment taxes, and under the prior rule these were not included in the AWW.

The Board affirmed the WCJ’s decision, but the Commonwealth Court reversed. The Court stated according to the plain language of the statute, these amounts are includable in the average weekly wage. If there are policy considerations underlying the prior rule, the statute should except board and lodging reimbursement.

Commonwealth Court Reinforces Principle That Average Weekly Wage Calculations Should Be Made According To The Act’s Provisions.

In Lahr Mechanical, et al. v. WCAB (Floyd) the WCJ accepted the Claimant’s testimony about his expected wages and hours to make a Section 309(d.2) average weekly wage calculation. The Claimant testified he expected the prevailing rate. The Claimant was actually paid at three different rates: local, prevailing and overtime.

On appeal by the Employer, the Board averaged the Claimant’s rates. This resulted in a slightly lower AWW than the one found by the WCJ.

The Court reinstated the findings of the WCJ. Recent cases have allowed average weekly wage calculations outside the framework of the Act’s provisions, but the preferred disposition is to make findings of fact that allow a calculation within the framework of Section 309, as the WCJ did in this case.