Workers' Compensation One Liners
Jane Lombard
 
 
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 April & May 2008

Act 109
Faust/Domestic Relations Office of Dauphin County Court of Common Pleas
v. Michael Walker,
1166 MDA 2007 filed March 11, 2008
 Superior Court affirms trial court’s interpretation of PCS Section 4508.1 which provides child support arrears are a lien against net proceeds from an award or settlement in excess of $5,000 to apply equally to civil recoveries and workers’ compensation recoveries such that plaintiff who received a $10,000 settlement from which attorney’s fees and costs are deducted also takes first $5,000 and remaining proceeds go to child support arrearages.
Claim Petition
Coyne v. WCAB (Villanova University),
942 A.2d 939 (Pa. Commw. Ct. 2008)

Remand warranted where WC Judge awarded benefits to the claimant whose contract had not been renewed by the employer; Court believes the WC Judge failed to appreciate the only relevant inquiry was whether claimant’s loss of earnings was secondary to the work injury not whether circumstances leading to the discharge pre-dated the injury or rose to the level of willful misconduct.
Course of Employment
Sysco Food Service v. WCAB (Sebastiano),
940 A.2d 1270 (Pa. Commw. Ct. 2008)
 Commw. Ct. refuses to apply the “very rare exception” violation of a positive work order defense to preclude benefits to a claimant injured as a result of horseplay; the Court reasons that such injuries are generally considered in the course of employment regardless of the claimant’s participation level so long as there is no associated intent to injure the facts here did not warrant a finding that the claimant’s activities were so foreign to work duties that he was removed from the course and scope.
Credit
Ropoch v. WCAB (Commw. of Pa. DPW), 941 A.2d 726 (Pa. Commw. Ct. 2008)
 The Court expresses sympathy for claimant’s argument that his workers’ compensation benefits should not be reduced where employer begins to take credit for Social Security retirement benefits upon his turning age 65 where he previously had been receiving Social Security disability as benefits are converted by operation of law at age 65; statute provides no distinction between the application for old age benefits or the automatic transfer of disability benefits to old age benefits.

IRE
Diehl v. WCAB (IA Construction),
1507 C.D. 2007 decided 4/28/08*

*Click for attached: WC Alert

Commw. Ct. reverses WCAB holding that where IRE is not requested within 60 days of expiration of 104 weeks of temporary total disability the employer must prove work availability through Kachinski job development or labor market survey scheme to effectuate status change, Court interprets Gardner requirement to pursue status change through “traditional administrative process” to require more than the filing of a petition supported by the IRE results.
Modification
Riddle v. WCAB (Allegheny Electric),
940 A.2d 1251 (Pa. Comm. 2008)		 Where claimant has residence out of state employer is not precluded from showing work available in areas in and around his residence as well as areas where he was injured as part of labor market survey process, modification of benefits affirmed.
Penalty Petition
Gumm v. WCAB (Steel),
942 A.2d 222 (Pa. Commw. Ct. 2008)		 Commw. Ct. affirms WCAB which had reversed WC Judge’s award of penalties for alleged “form violation,” Court discusses the distinction between a penalty awarded in Jordan where employer improperly relied on a box no. 6 denial and Geryes where employer properly relied on box no. 4 denial explaining that disputing disability is a valid reason to deny the claim whereas indicating “other good cause” which turns out not to be good cause may subject employer to penalties.
Specific Loss
Jacobi v. WCAB (Wawa, Inc.),
942 A.2d 263 (Pa. Commw. Ct. 2008)		 Where claimant’s medical evidence does not support permanent loss for all practical intents and purposes, even though Judge believes claimant’s testimony regarding his limitations, the claimant has not satisfied his burden of proof; before claimant’s testimony regarding his permanent loss is considered by the Judge he must have competent medical proof of the scheduled loss.
Termination
Westmoreland County v. WCAB (Fuller),
942 A.2d 213 (Pa. Commw. Ct. 2008)		 Commw. Ct. affirms dismissal of employer’s petition for termination where its medical expert failed to address recovery from HNP and radiculopathy which were found to be compensable by WCJ in an earlier petition; Court rejects employer’s contention that without a petition to review injuries on the NCP cannot be expanded; it explains that the WCJ has the authority to correct the NCP if it is materially incorrect at the time of issuance.
Utilization Review
Seuta v. WCAB (City of Scranton),
943 A.2d 1017 (Pa. Commw. Ct. 2008)
 Commw. Ct. reverses WCAB and WCJ finding where provider mailed records to URO within 30 days of the request as evidenced by office postage meter the mailing was timely; Regulation 127.464 requires only that records be mailed timely; date of receipt or method of mailing is not addressed by regulation or statute.

Jane Lombard | Chuck Katz | Steve Harlen | Paul Pauciulo | Sheilah Tone | Sharon McGrail-Szabo Debra Matherne | Thomas Ollason | Bill Conwell | Sharolyn Murphy | Joseph F. Frattone