Workers' Compensation One Liners
Jane Lombard
 
 
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 September 2002
ACT 57:
South Hills Health System v. WCAB,
1357 C.D. 2000 (filed 9/12/02)*
 Commonwealth Court, addressing employer’s burden of proof in a labor market survey case, holds employer must prove jobs are “actually open and available” at the time of the vocational expert’s assessment; the Court relies on Section 306 (b) (2), referencing the language “employment which exists”, thereby signaling a return to the stringent job availability standards pre-Act 57.
COMMUTATION:
Bush v. WCAB,
802 A.2d 679

Commonwealth Court, in a case of first impression, rules WC Act does not permit commutation of a portion of temporary total disability benefits that, by their nature, are payable for an indefinite and uncertain period of time; thus, claimant who sought to commute a seven year segment of benefits was precluded from doing so.
REINSTATEMENT:
Faulk v. WCAB,
802 A.2d 1277
 Commonwealth Court holds that reinstatement following an economic layoff is not available where claimant had returned to work, albeit with a 50 pound weight restriction, insofar as restriction did not preclude performing duties of pre-injury job.
SUBROGATION:
Thompson v. WCAB,
801 A.2d 635
 Agreeing that claimant and tortfeasor engaged in a transparent effort to defeat carrier’s lien, on remand from Supreme Court, Commonwealth Court held third-party settlement proceeds designed solely for pain and suffering are subject to Section 319 subrogation lien and to hold otherwise would encourage behavior clearly designed to thwart the statutory scheme.
UNREASONABLE CONTEST:
Krause v. WCAB
 Commonwealth Court affirms WCAB’s decision which limited unreasonable contest attorney’s fee award to the period between time claimant secured counsel and when employer secured medical evidence to demonstrate a reasonable contest; the Court reasoned that just as a reasonable contest can become unreasonable, an unreasonable contest can become reasonable, thereby capping exposure for counsel fees.
*Look for forthcoming WC Alert to more fully address this case.

Chuck Katz | Steve Harlen | Jane Lombard
Andy Touchstone | John Dogum | Paul Pauciulo | Sheilah Tone