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Workers' Compensation Law Section Newsletter

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					                                          Workers’ Compensation Law
                                              Section Newsletter
PennsylvaniaBarAssn.
                             David B. Torrey, Editor
100SouthSt.,P.O.Box186       Vol. VII                                          March 2011                                       No. 107
Harrisburg,PA17108-0186      Tough Problems Course                                  Anatomy Lab CLE a Hit
(717)238-6715                in May                                                 May 11 in Phila About to Sell Out
InPA(800)932-0311                 Norm Dastur and David Greene have been                 Sam Hodge’s anatomy presentations are always
Fax(717)238-7182             lining up an all-star faculty of our colleagues from   a hit. Recently he has teamed up with anatomist
Officers                     across the state for PBI’s popular biennial            Hector Lopez, MD, to give lawyers an anatomy lab
Gary Hamilton Hunter         advanced-level CLE program Tough Problems in           experience similar to med school in a unique
Section Chair                Workers’ Compensation. This year’s course              collaborative program between PBI and Jefferson
Lawrence R. Chaban           focuses on fatal claims petitions, vocational          Medical College in Philadelphia. Participants get
Chair-Elect                  strategies, and UR practice, as well as can’t-miss     advanced pointers from Sam Hodge in the morning
C. Robert Keenan, III        legislative and caselaw updates.                       and view cadavers in the Jefferson anatomy lab
Vice-Chair
                                  Tough Problems will be live in Philadelphia,      in the afternoon. This course gets rave reviews
Brian R. Steiner
Secretary                    Mechanicsburg, and Pittsburgh, by simulcast at         (“mesmerizing”) and sells out (enrollment is
Matthew L. Wilson            sites across the state, and live webcast direct to     limited to 40).
Treasurer                    your computer. More info/registration on PBI                This CLE is about
Hon. Christina Tarantelli    website & on the enclosed flyer.                       to sell out again. This link to PBI’s
Immediate PastChair
                                                                                    website is your chance to register for the last
R. Burke McLemore            Fall Section Meeting                                   of this school year’s dates, Wednesday
SectionDelegate
Council Members
                             Sept. 15-16 in Hershey                                 May 11, 2011.
Daniel K. Bricmont                Section chair Gary Hunter, chair-elect Larry      “Road Show” Returns to
Allegheny County             Chaban, and program planning chair Dan Bricmont        Pittsburgh June 27
Hon. Martin Burman           have met with the advisory panel and begun                  This year, Sam and Hector took their
Chester County               working with PBI to plan this year’s Fall Section
Michael J. Diamond                                                                  show on the road. Lawyers raved:
                             Meeting.                                               “Absolutely fascinating.” “Being able to see
Philadelphia County
Dean V. Dominick                  The always popular case roundup sees the          and touch the actual body parts was really
York County                  return of George Martin and Peter Weber on             great.” “Both men are very knowledgeable,
Hon. Harold V. Fergus, Jr.   Thursday, and Barb Holmes and Kim Zabroski on          approachable, and entertaining. They have a
Washington County            Friday.                                                great rapport.” “Excellent mix of lecture,
Hon. Ada Jane Guyton              Two medical sessions will focus on mild to        videos and hands-on instruction.” “Most
WestmorelandCounty
Edward H. Jordan, Jr.        moderate brain injury, and psychiatric symptoms        practical and useful CLE I have been to.”
Dauphin                      associated with work injury.                                This unique educational experience combining
Marla A. Joseph                   We’ll get pointers from judges in A View from     state-of-the-art classroom teaching with
Montgomery                   the Bench.                                             demonstrations using anatomical specimens sold out
Robert A. Krebs                                                                     in Pittsburgh in January.
Allegheny                         We’ll explore the ethics of marketing through
Joanne C. Ludwikowski        social media.                                               PBI is giving western PA lawyers another
Lycoming                          Speaking of social, Thursday night’s reception    chance, when Hodge & Lopez return to PBI’s
Elizabethanne D. McMunigal   is always a highlight.                                 Pittsburgh conference center on Monday, June 27.
Berks County                                                                        Dr. Lopez will bring with him actual human body
Peter A. Pentz                    All this and more at our own “workers’ comp
                                                                                    parts (such as the heart, spinal cord & brain).
Erie County                  bench bar conference.”
Michael Paul Routch                                                                      Click here for more info & to register, or use
                                   More info/registration on PBI website & on the
Blair County                                                                        enclosed flyer. Enrollment is limited to 40.
                             enclosed flyer.
Hon. Todd Seelig
Philadelphia County
Marie Jurbala Shiring
                                              Register Now for the Fall Section Meeting
Allegheny County                                           Sept. 15-16, 2011
                                           (register now--see enclosed flyer or PBI website)
Philadelphia County
Michael J. Wagner
Blair County
John J. Bagnato
                                                         and save these dates
Board of Governors Liaison              Sept. 13-14, 2012 Sept 12-13, 2013 | Sept 11-12, 2014
       ~ Leading Developments, Court Cases ~

2011 – 100th Anniversary of WC Laws, Triangle Shirtwaist Factory Fire …………………….. 04
     ABA WC Sections MidWinter CLE: April 7-9, 2011, Boston, MA ……………………. 03
      2nd Ann. W. Virginia Workers’ Comp. Ed. Conference: May 3-4, Charleston, WV ……... 06
BWC Annual Conference: June 1-2, 2011, Hershey, PA ………………………………………... 06
SEAK WC Conference, July 18-21, Hyannis, MA ...…………………………………………….. 06

Statement of Wages can be filed on-line …………. ………………………………………………05
Multiple BWC claim numbers cases receive multiple adjudication distributions ………………. ..05
Memorandum decisions can now be cited ………………………………………………………. .10
L&I WCJ Rules Committee Reconvenes …………………………………………………………07

Heart & Lung Act – MVFRL – Subrogation – Oliver …………………………………………… 11
Attorney-Client Privilege Broadened – Gillard …………………………………………………...08
Report: Widener Law School Commemorates Pa. Commw. Ct. at Forty …………………………16

Eye Injury – Delayed Specific Loss – (Appeal Granted) – Lancaster General ………………….. 07
Subrogation – Section 23 of Act 44 – State/Municorp. Def’t (Appeal Granted) – Frazier ………. 09
Average Weekly Wage – Depressed Quarters – Voluntary Furlough – (Appeal Granted) – Hiler .10

        ~ Cases, in General ~

Partial Disability – Overtime – Claimant Disqualified – Trevdan Building Supply ……………… 25
Fact-Finding – Reasoned Decision – Reinstatement Burden of Proof –
        Voluntary Withdrawal – Shannopin Mining …………………………………………….. 27
Proceedings to Secure Compensation – Termination Petition –
        Cross-Petition to Amend NCP – Time for Filing – Pizza Hut …………………………….28

Proceedings to Secure Compensation – Medical Evidence – WCJ’s Impermissible
       Interpretation of Medical Report – Typographical Error – City of Pgh./Wilson …………. 29
Casualties and Disablements Compensable – Mental Stress Causing Mental Disability –
       State Police Officer – “Baby Jane Doe” Case – Washington ................................................31
Casualties and Disablements Compensable – Course of Employment – Leap down
       Stairs – Fractures – “Actions Wholly Foreign to Employment” – Smith/Penn State …….. 32

Notice of Injury – Credibility – Confusion of Board Rules and WCJ Rules –
       Rules of Civil Procedure – Hershgordon …………………………………………………34
Proceedings to Secure Compensation – Effect of Box 4 “Qualified” Denial –
       Admission of Injury versus Admission of Disability – Morrison …………………………35
Act 44 – Fee Review (FR) – Time for Provider to Challenge Payment –
       Legitimacy of Regulation – Fidelity & Guaranty Ins. Co. ………………………………..37
Proceedings to Secure Compensation – Termination Petition – Competence of
       Employer’s Expert – Use of “Diagonal” Sign – UR – Non-Tender – Hall ………………24



                                                        2
         ~ Notes ~

Kids’ Chance Charity ………………………………………………………………….............. 05
Note (Torrey) – “A Briefing on the Exclusive Remedy: Developments, 2010” ………………….21
Note (Keenan) –
       “Mostly ‘Same Old, Same Old,’ in Harrisburg, but Something New in Washington” ….. 14

            ~ Recent Articles ~                                                                                         17

Jack E. Hubbard & Samuel D. Hodge, “Show Me the Pain”: Limitations and Pitfalls of Medical
Imaging of the Low Back, 14 MICHIGAN STATE JOURNAL OF MEDICINE & LAW 129 (2010). (p.17)

David B. Torrey, The Commonwealth Court of Pennsylvania and the Workers’ Compensation
Act: Background and Jurisprudence, Judge Alexander F. Barbieri, and Selected Precedents, 20
WIDENER LAW JOURNAL 87 (2010). (p.18)

Steven P. Perlmutter, The Law of “Leased Worker” and “Temporary Worker” Under a CGL
Policy, 45 TTIPS LAW JOURNAL 761 (2010). (p.19)

Jenna A. Moran, Independent Contractor or Employee? Classification of Workers and its Effect
on the State, 28 BUFFALO PUBLIC INTEREST LAW JOURNAL 105 (2009-2010). (p.20)




                        ABA WORKERS’ COMPENSATION SECTIONS
                        ANNOUNCE MIDWINTER 2011 CLE PROGRAM

        The American Bar Association workers’ compensation sections have announced their
exciting 2011 Mid-Winter CLE program! The program, which runs from Thursday, April 7,
2011, through Saturday, April 9, 2011, will be in Boston, MA, at the Intercontinental Hotel. On
the agenda are sessions on comp and healthcare reform, practice development, the history of
workers’ comp, comp and the ADA/FMLA, Medicare Set Asides, how compensation programs
respond to mass disasters, illegal immigration, and recent developments. For more information,
see http://www2.americanbar.org/calendar/ll406-2011-midwinter-meeting/Pages/default.aspx.


All materials (except as otherwise noted) are written and edited by David B. Torrey, Workers’ Compensation Judge,
Department of Labor & Industry, Office of Workers’ Compensation Adjudication, 411 7th Avenue, Suite 310, Pittsburgh,
PA 15219 (412)-565-5277 x1019; e-mail: DavdTorrey@aol.com; Website: http://www.davetorrey.info.

Editors: David Henry, WCJ; Nariman Dastur, Esquire; Renee Porada, Esquire; Brad Andreen, Esquire; Michael
Routch, Esquire. Front page prepared by Pennsylvania Bar Institute in cooperation with the Editor and the Section.

All statements and comments are purely those of the author, and are not to be attributed to the Department of Labor &
Industry and/or the Workers’ Compensation Office of Adjudication. The author has avoided in this text any
manifestation of bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or
socioeconomic status.



                                                             3
                                           2011: 100th ANNIVERSARY
                              OF FIRST ENDURING WORKERS’ COMPENSATION ACTS,
                               RENOWNED TRIANGLE SHIRTWAIST FACTORY FIRE

                            Members of the workers’ compensation (WC) communities of the
                    American Bar Association, of Massachusetts, 1 and of Wisconsin 2 (among
                    other places), are all commemorating the 100th Anniversary of the first
                    enduring workers’ compensation laws. The initial law was that of
                    Wisconsin, and Massachusetts is said to have been second. The leading
                    comprehensive treatment of this history is A Prelude to the Welfare State:
                    The Origins of Workers’ Compensation (2000), by economic historians
                    Price Fishback and Shawn Kantor. The most recent, meanwhile, is the
engaging text by Yale Law Professor John Fabian Witt, The Accidental Republic: Crippled
Workingmen, Destitute Widows, and the Remaking of American Law (2004).

       This year is also the 100th Anniversary of the New York City Triangle Shirtwaist Factory
Fire. This tragedy occurred on March 25, 1911, shortly after – by coincidence – the New York
Court of Appeals declared the initial New York workers’ compensation law unconstitutional.
The dramatic fire, in which 146 workers, most of them women, died, is said to have been a
watershed event which mobilized public opinion in support of workplace safety laws and
workers’ compensation programs.

        I was lucky enough recently to be invited to a Triangle Fire commemorative event, on
March 25, 2011, in Manhattan, sponsored by the Triangle Shirtwaist Factory Fire Memorial
(TSFFM). 3 This non-profit group, founded in 2002, was established to memorialize the events
of the fire and its impact in changing existing New York state labor laws. According to the
organization’s website, “TSFFM seeks to educate the general public regarding workplace safety,
and to establish a scholarship fund for children of injured workers.” The TSFFM Annual Dinner
was an amazing event. It was held at the New York City Fire Department Museum on Spring
Street in Soho, a venue which also happens to feature a moving memorial to the firefighters who
lost their lives in the 9-11 terrorist atrocities. Attorney Jim McCarthy, the dynamic president of
TSFFM, at the outset called for a moment of silence to remember the Triangle Fire victims.
Thereafter, the scholarships were announced, and a local civic leader was presented with a public
service award.

       The best of the entertainment that followed was a cabaret-style presentation by
professional Broadway singers, who delivered songs from the musical setting of Stud Terkel’s
Working. 4 Pennsylvania colleagues: if you’re ever invited to this commemoration, go for it.

1
 See Pierce, Workers’ Compensation in the United States: The First 100 Years, available at
http://www.lexisnexis.com/community/workerscompensationlaw/blogs/workerscompensationcentennial/archive/201
1/03/14/workers-compensation-in-the-united-states-the-first-100-years.aspx.
2
    See http://dwd.wisconsin.gov/wc/Centennial_Commission/WCCC_announcement.htm.
3
    See http://www.trianglememorial.org/.
4
    See http://www.musicalschwartz.com/working.htm.

                                                      4
                          INFORMATION ON KIDS’ CHANCE

                               Kids’ Chance is a certified § 501(c)(3) non-profit corporation
                       which provides scholarships to children of workers who have been
                      catastrophically or fatally injured, or who have been disabled as a result of
                      a work-related injury.

       Scholarships are funded solely by TAX DEDUCTIBLE donations from individuals,
insurance companies, employers, attorneys, physicians, labor organizations, vocational
organizations, professional associations, and other workers’ compensation related organizations.

        Kids’ Chance is extremely grateful for the support it has received from the Workers’
Compensation Section of the Pennsylvania Bar Association, from individual law firms, and from
individual attorneys. That support has greatly aided applicants as they pursue their academic
careers. Any support members of the Workers’ Compensation Section can give is greatly
appreciated by Kids’ Chance and the students who receive the scholarships. Your tax-deductible
contributions to Kids’ Chance of PA may be mailed to: Kids’ Chance, P.O. Box 543,
Pottstown, PA 19464 – phone: (484) 945-2104. See also www.kidschanceofpa.org.


                 NOTICE FROM BWC OFFICIAL KATHLEEN DUPIN
              ON FILING OF STATEMENT OF WAGES OVER INTERNET

                                  The Statement of Wages (LIBC-494C) may now be filed
                          electronically via the Web. Online filing ensures timeliness, improves
                          accuracy and maintains consistency of information. This online
                          application pre-populates the existing party and injury information
                          fields based on the name, social security number and date of injury
                          provided, and the dates in method #4 will be automatically calculated by
entering the correct 4th period to date and wages. The bottom line is that online submission
improves efficiency and saves time and money. To register for electronic filing, go to
www.dli.state.pa.us and click on Workers’ Compensation, Claims Information and Online filing
of Denial, NCP, NTCP, Stopping Notice, Statement of Wages and Answer to Claim Petition. If
you submit any of these forms electronically, do not submit a paper copy of the same to the
Bureau or to the workers' compensation judge's office.


    NOTICE FROM DIRECTOR OF ADJUDICATION MARY KAY RAUENZAHN
                    ON BUREAU CLAIM NUMBERS

        Notice to the Bar: Effective immediately, when a decision in a
workers’ compensation claim is issued that involves two or more claim
numbers, a separate copy of the decision will be circulated for each claim
number. The claim number will be highlighted on each cover sheet to bring
attention to the different claim numbers involved.



                                                5
        WEST VIRGINIA OFFICES OF INSURANCE COMMISSIONER
                   TO CONVENE SECOND ANNUAL
    WORKERS’ COMPENSATION EDUCATIONAL CONFERENCE, May 3-4, 2011

                       The Second Annual West Virginia Workers’ Compensation Educational
               Conference will be held at the Marriott Charleston Town Center May 3 and 4,
               2011. The conference is of special interest, as privatization of the system has led
               to significant changes in patterns of claims adjustment and litigation. According to
               the planners, “The goal of this conference is to educate those who participate in
               West Virginia’s workers’ compensation system regarding current rules,
procedures, policies and forms and to provide an opportunity for dialogue among these
participants.” For more information (link to brochure), see http://www.iwcf.us/iwcfevents.html.


             PENNSYLVANIA BUREAU OF WORKERS’ COMPENSATION
                 TO CONVENE ANNUAL SEMINAR, June 1-2, 2011

        The can’t-miss Bureau of Workers’ Compensation Conference will be
held this year in Hershey June 1-2, 2011. For more information, and for
registration information, see
http://www.portal.state.pa.us/portal/server.pt/community/annual_conference/1
2991.


                 SEAK, INC.’s 31st ANNUAL NATIONAL
   WORKERS’ COMPENSATION & OCCUPATIONAL MEDICINE CONFERENCE
                            July 18-21, 2011

                    The prestigious SEAK conference will again be held at Hyannis,
            Massachusetts this year. According to the organizers, “This conference is currently
            the largest and longest-running national workers’ compensation and occupational
            medicine conference of its kind in the United States.”

                       Among the intriguing panel topics of interest to lawyers is “How to Get the
Most out of Your Workers’ Compensation Attorney,” presented by Birmingham, AL lawyer
Mike Fish. Mike, a dynamic speaker who has been in the leadership of ABA WC sections, will
give tips on the selection and “vetting” of defense counsel. Among the criteria?: “Experience,
knowledge, reputation, and credibility with judges and the Bar, involvement with industry
groups, bar committees, and continuing education.” Mike will also “explain the importance of
taking a clear, fair, recorded statement that counsel will be able to use…. And [he] will review
when to get counsel involved, use of counsel for advice on acceptance/denial of claims,
insistence on a litigation plan and budget, early settlement recommendation, periodic updates
from counsel, and monthly itemized billing.” Mike will “offer practical cost-effective
suggestions for getting the most out of your workers’ compensation attorney.” For more
information, and to view the brochure, see
http://www.seak.com/wcandoccmedresources.html.

                                                 6
                DEPARTMENT OF LABOR & INDUSTRY
                      WCJ RULES COMMITTEE
   RECONVENES, WITH ATTORNEY McTIERNAN PRESIDING AS NEW CHAIR

                  The L&I WCJ Rules Committee reconvened recently under the new
           leadership of attorney John W. McTiernan of the Pittsburgh law firm Caroselli
           Beachler. Mr. McTiernan succeeded the estimable Stanley Siegel, Esquire, of
           Lewistown, who led the Committee for an astonishing 30 years (1980-2010). Mr.
           Siegel was recognized for this service at the opening of the March 25, 2011 meeting.

        A number of changes are likely to be proposed by the Department itself, such as changing
the current “claimant/employer” terminology to “petitioner/respondent.” In related
developments, Department officials also noted that the Bureau of Workers’ Compensation
Petitions Section (the office in charge of receiving petitions and assigning them to the
appropriate WCJ), would soon be subject to a reorganization that will place it under the authority
of the Director of Adjudication. Department officials also noted that plans are under way for a
new computer system. And on a miscellaneous note: Director of Adjudication Rauenzahn
stressed that all WCJ decisions approving C&R decisions are to have attached to them Form
LIBC-755, the Stipulations and release form that accommodates the settlement.

       Mr. McTiernan solicits from you any recommendation for changes or additions to
the WCJ Rules of Practice. The next meeting will held in September. Contact him at:
jmctiernan@cbmclaw.com.


                   SUPREME COURT ACCEPTS ON APPEAL
           LATE MANIFESTATION/SPECIFIC LOSS OF EYE INJURY CASE

                         Lancaster General Hospital v. WCAB (Weber-Brown), 987 A.2d 174
                         (Pa. Commw. 2009), petition for allowance of appeal granted, 9 A.3d
                         1133 (Pa. 2010).

                                  In Lancaster Gen’l Hosp. v. WCAB (Weber-Brown), the
                          Commonwealth Court ruled that where, over time, the original work
injury resolves into a “specific loss,” the injured worker’s average weekly wage (AWW) is
calculated as of the date the specific loss is determined to have occurred, even where the specific
loss occurs more than twenty years following the original work incident.

       The Lancaster General Hospital case involved an unusual fact pattern. Claimant, an
LPN, was, in either 1979 or 1980, exposed to the herpes simplex virus. Following the incident,
she experienced recurrent achiness, swelling, and blurred vision in the affected eye over the
course of many years. On May 16, 2007 her physician advised her that scarring of her left
cornea had progressed to the point where she required a cornea transplant. In adjudicating
claimant’s petition, which sought specific loss benefits under Section 306(c)(7) of the Act, the
WCJ determined that claimant’s compensation rate should be determined on the basis of an
AWW calculation effective May 16, 2007 – the date the condition resolved into a specific loss.

                                                 7
The court affirmed the WCJ’s ruling, despite the fact that by May 16, 2007, claimant had not
been employed by defendant for over twenty years.

       On November 30, 2010, the Supreme Court granted defendant’s Petition for Allowance
of Appeal limited to the following issue: “Whether the Commonwealth Court erred in
concluding that Section 309 of the Workers’ Compensation Act, 77 P.S. § 582, permits a
claimant’s workers’ compensation benefits to be calculated based on wages earned with an
employer different from the one paying the benefits and where the change in employer took
place more than 52 weeks before the date of injury?”

                                                      ~ by Andrew E. Greenberg, Esq.
                                                             Chartwell Law Offices


                           SCOPE OF ATTORNEY-CLIENT PRIVILEGE BROADENED

                         Gillard v. AIG Ins. Co., ___ A.2d ___, 2011 Pa. LEXIS 393 (Pa. 2011),
                         reversing, 947 A2d 836 (Pa. Super. 2009).

                               In Gillard v. AIG Ins. Co., the state supreme court clarified the
                       degree to which the attorney-client privilege attaches to “attorney-to-
                       client” communications. With this case, a free flowing exchange of
information between the injured worker and his or her attorney has been sanctioned.

        The case involved a claim for bad faith arising out of the administration of an uninsured
motorists claim. During the discovery phase of the litigation, plaintiff sought production of all
documents from the file of the law firm that had been retained to represent the defending auto
insurers. The insurers, invoking the attorney-client privilege, withheld and redacted certain
documents created by counsel. Plaintiff filed a motion to compel, insisting that the attorney-
client privilege is limited to those communications initiated by the client, and not to those
initiated by the attorney. (Plaintiff advanced a strict interpretation of Section 5928 of the
Judicial Code, which instructs as follows: “In a civil matter counsel shall not be competent or
permitted to testify to confidential communications made to him by his client, nor shall the client
be compelled to disclose the same, unless in either case this privilege is waived upon the trial by
the client.” 42 Pa. C.S. § 5928.)

           Recognizing that a “derivative” privilege is necessary in order to protect attorney
communications arising out of confidential information initially disclosed by the attorney‘s
client, the court ruled that “the attorney-client privilege operates in a two-way fashion to protect
confidential client-to-attorney or attorney-to-client communications made for the purpose of
obtaining or providing professional legal advice.”

       In so holding, the court has embraced the principle that the attorney-client privilege
should be applied in a manner that promotes a robust exchange of relevant information between
attorney and client.
                                                    ~ by Andrew E. Greenberg, Esq.
                                                            Chartwell Law Offices

                                                  8
                    SUPREME COURT ACCEPTS ON APPEAL
               CONTROVERSIAL “ANTI-SUBROGATION” PROVISION:
                           SECTION 23 OF ACT 44

                         Frazier v. WCAB (Bayada Nurses), 2009 Pa. Commw. Unpub. LEXIS
                         777 (Pa. Comm. 2009), petition for allowance of appeal granted, 6
                         A.3d 1288 (Pa. 2010).

                                 The Supreme Court has accepted on appeal a case presenting
                         the following issue:

       Whether Section 23 of [Act 44 … of 1993 …] provides sovereign immunity from
       subrogation and/or reimbursement claims sought against an employee who has
       entered into a third-party settlement with a Commonwealth Party such as …
       SEPTA.

        The court, in its order allowing the appeal, added the following: “Additionally, we direct
the parties to address the purposes and practical application of Section 23 of the Workers’
Compensation Act.”

       Section 23, notably, provides as follows:

       The Commonwealth, its political subdivisions, their officials and employees
       acting within the scope of their duties shall enjoy and benefit from sovereign and
       official immunity from claims of subrogation or reimbursement from a claimant’s
       tort recovery with respect to workers’ compensation benefits.

Note: This section of Act 44 was never codified, and hence it does not appear as a statute in
Purdon’s; however, it “can be found in a note following 77 P.S. § 501, Section 305 of the Act.”

        As to the facts: the claimant, Frazier, was in the course of her employment when injured
as a passenger aboard a SEPTA bus. She received workers’ compensation, but she also sued
SEPTA as a third-party. She ultimately settled with SEPTA, and at the time of settlement,
SEPTA “agreed to defend, indemnify, and hold claimant harmless with respect to any claim
brought against claimant by employer for subrogation of its workers’ compensation payments.”

        Employer did petition to seek enforcement of subrogation rights. The claimant/SEPTA
opposed the petition based upon Section 23, as quoted above. The WCJ disallowed subrogation,
but the Board reversed, holding that “the protections of sovereign immunity apply only to
government entities, not to a subrogation claim against a private party who previously received
monies from a government entity.” The Commonwealth Court affirmed, stating that it had
already ruled on the issue, to its enduring satisfaction, in Fox v. WCAB (PECO Energy Co.), 969
A.2d 11 (Pa. Commw. 2009).




                                                 9
   SUPREME COURT ACCEPTS ON APPEAL AVERAGE WEEKLY WAGE CASE:
        WORKER WITH CONTINUED EMPLOYMENT RELATIONSHIP
       AND DEPRESSED QUARTERS FROM “VOLUNTARY FURLOUGH”

Hiler v. WCAB (U.S. Airways Group, Inc.), ___ A.3d ___ (Pa. 2011), appeal from an unreported
decision, 2009 Pa. Commw. Unpub. LEXIS 262 (Pa. Commw. 2009).

       The Supreme Court has accepted on appeal a case dealing with the proper calculation of a
claimant’s average weekly wage (AWW). The precise issue accepted for appeal is as follows:

       What is the proper calculation of a claimant’s average weekly wage under Section
       309(d) of the [WCA], 77 P.S. § 582(d), when the claimant incurs a period of zero
       wages due to a voluntary furlough during the relevant look-back period.

         The claimant, Hiler, was employed as a flight attendant. She alleged an injury of October
5, 2003. Employer accepted the case as a medical-only, but it contested disability. The WCJ,
after a remand, granted the claim. He utilized, for the claimant’s AWW, a Statement of Wages
presented by employer “which included two quarters where Claimant had no earnings because
she was on voluntary furlough.” The Board perceived no error, and the Commonwealth Court,
in an unreported opinion, affirmed.

        Claimant had argued in Commonwealth Court that the Statement of Wages did “not
reasonably or accurately represent the economic reality of her earning experience with Employer
because it included the period when she was furloughed and that was the only time in her
twenty-five year career with employer than she was furloughed.” Slip op. at 27. The court,
however, responded that Supreme Court precedent existed on this point, and it followed the
same. See Reifsnyder v. WCAB (Dana Corp.), 883 A.2d 537 (Pa. 2005) (claimants who had
long-term employments with their employer, and who had experienced lay-offs, were to have
such depressed quarters included in their AWW calculations under § 309(d)).


                    COMMONWEALTH COURT REVISES
                   INTERNAL OPERATING PROCEDURES
       TO ALLOW CITATION OF UNPUBLISHED MEMORANDUM OPINIONS
                              As of January 1, 2011, counsel may cite to the Commonwealth
                      Court unreported memorandum opinions for their persuasive value. In
                      this regard, the Commonwealth Court revised Rule 414. The new rule
                      provides, in its entirety, as follows:

                      § 414. Citing Judicial Opinions

       An unreported opinion of this court may be cited and relied upon when it is
       relevant under the doctrine of law of the case, res judicata or collateral estoppel.
       Parties may also cite an unreported panel decision of this court issued after
       January 15, 2008, for its persuasive value, but not as binding precedent. A single-
       judge opinion of this court, even if reported, shall be cited only for its persuasive

                                                10
           value, not as a binding precedent.

       This writer (Torrey), will initiate, at the end of the summer, the release of a series of PBA
newsletter publications that will provide summaries (squib-style) of all unreported opinions from
January 15, 2008 to the present.


                   MUNICIPALITY THAT HAS PAID HEART & LUNG
            SALARY CONTINUANCE HELD NOT ENTITLED TO SUBROGATION

                              Oliver v. City of Pittsburgh, 11 A.3d 960 (Pa. 2011), reversing , 977 A.2d
                              1232 (Pa. Commw. 2010).

                               The Supreme Court, reversing Commonwealth Court, has held that
                      a municipal employer that has paid its employee salary continuance under
                      the Heart & Lung Act is not entitled to subrogation out of the employee’s
third-party motor vehicle accident tort recovery. According to the court, it was addressing an
issue which had been the “subject of facially conflicting pronouncements by the Commonwealth
Court.” Those cases were Brown v. Rosenberger, 723 A.2d 745 (Pa. Commw. 1999) (allowing
subrogation); and City of Pittsburgh v. WCAB (Williams), 810 A.2d 760 (Pa. Commw. 2002)
(disallowing subrogation).

        The issue has its genesis in a provision of Act 44 of 1993 (which dealt, for the most part,
with medical cost containment). In this regard, Section 25(b) (never formally codified) of the
Act “repealed Section 1720 [of the Motor Vehicle Financial Responsibility Law, or MVFRL]
‘insofar as [it] relate[d] to workers’ compensation payments or other benefits under the Workers’
Compensation Act.” Prior thereto, Section 1720 was an “anti-subrogation” proviso. As
amended most recently before, in 1990, the statute provided:

           In actions arising out of the maintenance or use of a motor vehicle, there shall be
           no right of subrogation or reimbursement from a claimant's tort recovery with
           respect to workers' compensation benefits, benefits available under section 1711
           (relating to required benefits), 1712 (relating to availability of benefits) or 1715
           (relating to availability of adequate limits) or benefits paid or payable by a
           program, group contract or other arrangement whether primary or excess under
           section 1719 (relating to coordination of benefits).

(It is worth noting that the statute, though “partially repealed,” 1 still appears as above in the on-
line legal database “Lexis.” 2 The WestLaw statutes, on the other hand, do note repeal. 3)

1
    Oliver, Supreme Court decision, at 4 (quoting trial court).
2
   No reference is made to any effect of Act 44. See
http://www.lexis.com/research/retrieve?cc=&pushme=1&tmpFBSel=all&totaldocs=&taggedDocs=&toggleValue=
&numDocsChked=0&prefFBSel=0&delformat=XCITE&fpDocs=&fpNodeId=&fpCiteReq=&fpSetup=0&brand=&
_m=127f697465c506a1372edf2ad421372b&docnum=16&_fmtstr=FULL&_startdoc=11&wchp=dGLbVtz-
zSkAl&_md5=1b282d96d88e1401031ef04808ed2ad6&focBudTerms=1720&focBudSel=all#.


                                                            11
        Section 25(b) did not reference the Heart & Lung Act or payments made pursuant
thereto. Municipalities have argued that the repeal with regard to workers’ compensation
payments should be deemed to apply to Heart & Lung salary continuance payments as well.
Commonwealth Court was persuaded by this argument but, as foreshowed above, the Supreme
Court rejected this argument.

        Claimant, Oliver, was a City of Pittsburgh police officer. While in the performance of
her duties, she was injured in a motor vehicle accident. She received $848.00 in Heart & Lung
salary continuance payments. She thereafter filed a third-party action against the other driver,
and she settled for $2300.00. The City sought subrogation, but claimant resisted. She filed a
declaratory judgment action, and argued that Section 1720 “precluded an employer from
obtaining reimbursement of HLA benefits and that Act 44 did not affect this prohibition, as – by
its very terms – it only pertained to workers’ compensation benefits.”

        The trial court agreed with claimant, and the judge granted her motion for judgment on
the pleadings. The judge stated, “Even though the Heart and Lung and Workers’ Compensation
statutes have been similarly construed, the partial repeal of § 1720 speaks only to ‘workers’
compensation payments or other benefits under the Worker’s Compensation Act.’ There is no
ambiguity in this provision. The Legislature has not repealed § 1720 with respect to Heart and
Lung Benefits. It is not for this court to do so.” Slip op. at 4. Commonwealth Court reversed
and allowed subrogation. As explained in the new decision, “Given the similar nature and
purpose of the WCA and HLA, the majority discerned no reasonable basis for treating an
employer’s subrogation rights differently.”

        The Supreme Court reversed. In its view, the resort to the statutory construction rule, “in
pari materia,” as undertaken by Commonwealth Court, was inappropriate, and had here resulted
in error. As far as the court was concerned, the trial court was correct that “Section 25(b) of Act
44 is unambiguous in its straightforward application to ‘benefits under the Workers’
Compensation Act.’” Further, “Contrary to Commonwealth Court’s rationale, we do not
consider such an approach to be absurd or unreasonable. The HLA applies to protect employees
serving the public in essential, high-risk professions. The design is to ensure that, if they are
temporarily disabled in the performance of their duties, these critical-service personnel do not
suffer salary losses or incur the expense of medical care or treatment.” The court concluded,
“Although the WCA also embodies a similar remedial scheme, the HLA’s more favorable
treatment of public-safety employees who are temporarily disabled suggests against treating an
overlap as an equivalency.”

Editor’s Note I: On appeal, the City argued for the first time that the 1990 amendments to the
MVFRL restored its right of subrogation. The court held this argument to have been waived.
The language of the law as it stood after the 1990 amendments is quoted in full at the outset.
3
 See
http://web2.westlaw.com/result/default.wl?rs=WLW11.01&cnt=DOC&srch=TRUE&cfid=1&method=TNC&servic
e=Search&sri=892&fn=_top&sskey=CLID_SSSA1045138227293&n=-
1&fmqv=s&action=Search&origin=Search&rltdb=CLID_DB1843538227293&rlt=CLID_QRYRLT829663822729
3&query=75+%2f10+1720&mt=79&rlti=1&db=PA-ST-
ANN&rp=%2fWelcome%2f79%2fdefault.wl&vr=2.0&eq=Welcome%2f79&sv=Split.


                                                12
        Prior to the 1990 amendment, the Section 1720 provided as follows: “In actions arising
out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or
reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits,
… or benefits in lieu thereof paid or payable under Section 1719 (relating to coordination of
benefits.” Slip op. at 2.

Editor’s Note II: The court added, in a footnote, that it was not addressing a second issue “on
which appeal was allowed – whether an employee has immunity from its employer’s subrogation
claim pursuit to Section 23 of Act 44.” Slip op. at 10, n.8. The reader will note, however, that
the court has allowed another case on appeal where this is, indeed, the issue. See above
(discussion of Frazier case).

Editor’s Note III (Brad Andreen): Another argument which was not specifically made in this
case, which still may need to be decided, concerns the nature of the payments being made. Does
a claimant receiving “Heart & Lung benefits” solely receive just those benefits? If so, and
payment is not made to a medical provider, it is submitted that the claimant would not have the
basis for any type of penalty petition. This would not, however, be a correct interpretation of the
interplay between the Heart & Lung Act and the Workers’ Compensation Act (WCA).

       Heart & Lung benefits are payable concurrently with workers’ compensation benefits as
opposed to being received in lieu of or as a supplement to workers’ compensation benefits. The
employer essentially has an automatic set off for the workers’ compensation payments remitted.
However, benefits are paid under both statues simultaneously with a credit being taken for the
payment of benefits which are required to be remitted under the WCA. Thus, the Oliver decision
may impact the amount of benefits upon which the employer can assert an entitlement to
subrogation, but it should not affect whether subrogation exists.

        Even should the court subsequently address the 1990 amendments of the MVFRL and
find that it did not restore the right to subrogation for Heart & Lung benefits, the above argument
remains – that is: that the employer may not be able to seek subrogation for the full salary
amount of wage loss benefits paid, but it should still be entitled, under the WCA, to assert a right
to subrogation for the amount of benefits payable under the Act. This should include payment of
all medical expenses, as the same are re-priced and paid under the Medical Cost Containment
provisions of the WCA, as opposed to the Heart and Lung Act.




                                                13
                   MOSTLY “SAME OLD, SAME OLD,” IN HARRISBURG,
                       BUT SOMETHING NEW IN WASHINGTON

                                    by C. Robert Keenan III, Esquire ∗

                                     Many of the bills which have been introduced for
                              consideration in Harrisburg are variations on themes from prior
                              sessions of the legislature. One bill, however, is offered up as the
                              exact proposal endorsed by the Pennsylvania Bar Association at the
                              request of the Workers’ Compensation Law Section last year.

        House Bill 136, introduced by Representative Boyle (D-Philadelphia) would shore up the
Uninsured Employers’ Guaranty Fund (UEGF) by raising the annual assessment from 0.1% up to
0.5% “of the total compensation paid by all insurers or self-insured employers during the
previous calendar year.” The bill also strengthens restitution powers for any sums recovered
against uninsured employers.

        As set forth in the last Newsletter (pages 5-7), the UEGF is going broke due to a series of
catastrophic injuries. According to Deputy Labor and Industry Secretary Elizabeth Crum,
projected UEGF expenditures for the 2010-2011 fiscal year are $4.8 million while projected
revenues are $3.3 million.

       This bill has the formal support of the Workers’ Compensation Law Section and the PBA
as a whole.

        House Bill 440, introduced by Representative Mustio (R-Allegheny), is identical to last
session’s House Bill 1780, and would make it easier for sole proprietors, partners of a
partnership, or officers in a limited liability corporation to obtain workers’ compensation
coverage. This bill is also similar to amendments offered to last session’s House Bill 664.

      House Bill 522, also introduced by Representative Mustio (R-Allegheny), would add
some specified emergency personnel to the volunteers covered under Section 601 of the Act.

        House Bill 797, introduced by Representative Farry (R-Bucks), is similar to some of the
versions of last session’s House Bill 1231, with some significant exceptions. This is the
legislation intended to enhance the presumption of work-relatedness for cancer suffered by a
firefighter, paid or volunteer. House Bill 1231 passed both houses of the legislature last year, but
was vetoed by Governor Rendell, and the final version of the bill allowed the presumption to be
rebutted “by a preponderance of the evidence.” Current House Bill 797 makes the rebuttal more
problematic for an employer because it must be “rebutted by substantial competent evidence that
shows that the firefighter’s cancer was not caused by the occupation of firefighting.”



∗
 Chair, Legislation Committee. Partner, Davies, McFarland, & Carroll, P.C., One Gateway Center, Tenth Floor,
Pittsburgh, PA 15222; (412) 338-4754.


                                                      14
         Interestingly, House Bill 797 is the only bill related to workers’ compensation that was
not referred to the Committee on Labor and Industry. This bill has gone to the Committee on
Veterans Affairs and Emergency Preparedness, and is the subject of hearings which will occur
after this Newsletter is printed.

        House Bill 808, introduced by Representative Hickernell (R-Dauphin) would expand the
requirement that a claimant treat with a designated “panel physician” under Section
306(f.1)(1)(i) from the current 90 days to a proposed 180 days. This bill is similar to House Bill
723 in the last session, and is a perennial.

      All the House Bills are presently before the Committee on Labor and Industry except for
House Bill 797.

        Senate Bill 238, introduced by Senator Tartaglione (D-Philadelphia), would mandate
safety committees in every school district in Pennsylvania.

      Senate Bill 654, introduced by Senator Argall (R-Schuylkill), is identical to current
House Bill 797, regarding the cancer presumption for firefighters.

        Senate Bill 671, introduced by Senator Kasunic (D-Fayette), is a perennial, identical to
last session’s Senate Bill 635, and would establish a cost of living adjustment for wage loss
benefits.

        Senate Bill 711, introduced by Senator Boscola (D-Northampton), is identical to last
session’s Senate Bill 797, and is a slimmed-down version of House Bill 797, above, and Senate
Bill 654, above, and this is limited to lung cancer. The local government would have an even
higher burden in rebutting the presumption of work-relatedness for a firefighter’s cancer,
because it would have to prove “that the firefighter’s occupation was not a major contributing
cause of the firefighter’s lung carcinoma.”

       All Senate Bills are before the Labor and Industry Committee.

                      One More Crack at Medicare Set-Aside Requirements

        Representatives Tim Murphy (R-Pennsylvania) and Ron Kind (D-Wisconsin) have
introduced H.R. 1063 in Washington, designed to reform the administration of the Medicare
Secondary Payer Act. This is consistent with the legislation supported by the Pennsylvania Bar
Association in the past, and H.R. 1063 has the further advantage of containing a statute of
limitations in Section 6 of the bill, limiting the federal government from coming after any of the
parties to a settlement “not later than three years after the date of the receipt of notice of a
settlement, judgment, award, or other payment.” To my knowledge, this is the first effort at a
statutory limitation of action, and it is commendable.

       The other advantage of H.R. 1063 over prior MSA legislation that has been formally
supported by the Workers’ Compensation Section and the PBA as a whole is that H.R. 1063
addresses the regulatory deficiencies of the current regimen, which is based on a series of letters

                                                15
(which could be revoked tomorrow) and not any vetted review process. The bill would require
transparency in regulations here and would mandate deadlines on several fronts.

       The bill was referred to the Committee on Ways and Means, as well as to the Committee
on Energy and Commerce.

                                           Conclusion

        It remains early in the sessions in Congress or the General Assembly and we still have no
feel for how either the state or federal administration will move to support proposals in their
respective legislative branches.

        Many thanks to PBA colleagues, Deputy Secretary Elizabeth Crum, Larry Chaban, Brian
Steiner, and PBA Legislative Counsel Steve Loux, for their timely and valuable insights.


                                        NOTE ON A SEMINAR

THE CONTRIBUTION OF THE COMMONWEALTH COURT
TO PENNSYLVANIA JURISPRUDENCE SINCE 1970
Thursday, February 17, 2011
Widener University School of Law
Harrisburg, PA
                                  In an ambitious project, Dan Schuckers worked with Widener
                           Law School officials and the editors of the school’s Law Review to
                           organize a symposium recognizing the 40th Anniversary of
                           Commonwealth Court. The symposium was held on February 17, 2011,
                           and the day-long event was a great success! Congratulations to Dan,
                           former Prothonotary of the court and a PBA WC Law Section member,
for this incredible effort. (He is depicted at left with President Judge Leadbetter.)

        The most interesting thing, perhaps, to be learned at the symposium was not about workers’
compensation but was, instead, about unemployment compensation (UC). In this regard, former
President Judge Colins advocated (as he had while on the court) for major reform in UC litigation.
UC referees, in his opinion, should be attorneys and specially trained in the UC law. He believes,
further, that the UC Board of Review should be the normal appeal of last resort, and that the
Commonwealth Court should only review UC cases “on allocatur.” According to Judge Colins,
judicial review of UC cases is not constitutionally required as of right, and a system such as he
advocates is by far the majority approach among states. Judge Colins believes that this sort of
change could be effected by statutory amendment – a change to the Pennsylvania Constitution
would not be required.

        Dan and the Law Review members also publicized a literary-historical gem I had somehow
missed – an article by Judge Craig addressing the first 25 years of the Commonwealth Court. This
paper is a must-read for lawyers who want to be fully briefed on the history and character of the
court. See David W. Craig, The Court for Appeals – And Trials – of Public Issues: The First 25


                                                16
Years of Pennsylvania’s Commonwealth Court, 4 Widener J. Public Law (1995). Judge Craig’s
article can be retrieved from Lexis and WestLaw.

        The symposium volume of the law review (Volume 20, Number 1) leads with an important
discussion of the jurisdiction of the court, and it then proceeds with articles on procedural due
process, land use, workers’ compensation, public employee labor law, unemployment
compensation, condemnation law, inmate civil litigation, and PUC law. To get a copy, write Ms.
Sandra L. Graeff, Law Review Secretary, at slgraeff@widener.edu.

Note: Your editor (Torrey), prepared an article for the occasion and presented highlights of the
same at the symposium. A summary will be found below.


                                 RECENT ARTICLES OF NOTE
                  Jack E. Hubbard & Samuel D. Hodge, ”Show me the Pain”: Limitations and
                  Pitfalls of Medical Imaging of the Low Back, 14 MICHIGAN STATE JOURNAL
                  OF MEDICINE & LAW 129 (2010).

                          “You don’t treat the x-ray; you treat the patient.” So declares,
                  inevitably, the physician who seeks to discount, or contextualize, the
significance of an apparent abnormality on an injured worker’s MRI, CAT-scan, or other study.

        In this article, the authors explain the basis of this medical analysis as it pertains to back
injuries. The authors first define and explain the various essential parts of the spinal anatomy
that are subject to radiographic imaging. They then discuss the tension that exists in so many
back cases – is the pain complained of the result of an accepted or claimed injury, or is it in fact
reflective of the aging process?

        The authors then give an account, with explanations, of the principal low back diagnostic
tools (myelogram, discogram, MRI, etc.). Reaching the crux of the article, they thereupon
discuss the “imaging-pain disconnect” that is contemplated by the dictum set forth above.

        Here they discuss the familiar studies that IME physicians, especially, invoke – that is,
those that have proven that many individuals have remarkable finding on diagnostic study, but
have absolutely no pain complaints. They cite, for example, a “study involving x-rays of the low
back of 1,172 healthy young adults without low back pain …. [S]ignificant abnormalities
[existed] in 57% of those imaged.” Likewise, a renowned study of asymptomatic individuals
revealed that “52% of the subjects had a [lumbar disc] bulge at at least one level, 25% had a
[disc] protrusion, and 1% had a [disc] extrusion.”

        The authors insist, “no matter which imaging technique is utilized, significant pathology
occurs in the low back region of individuals without a current or past history of low back pain….
An abnormality found on an imaging study should not be considered diagnostic ‘unless it
conforms to the clinical syndrome.’” This is especially so, the authors insist, because of the
many psychosocial factors that cause or contribute to chronic low back pain.


                                                  17
       On the other hand, many authentic back pain sufferers exist and their complaints will not
be subject to verification via study. Muscular pain, myofascial pain, and facet joint pain are “not
seen with normal imaging of the low back.”

        Nevertheless, “[i]nsurance adjusters and defense counsel should not be intimidated by a
positive test result on radiological study. This finding is merely one piece of evidence that must
be correlated with the patient’s clinical picture….”

       This straightforward and well-referenced article is the paper that newly-initiated (and,
indeed, all) workers’ compensation lawyers should obtain, read … and master.

David B. Torrey, The Commonwealth Court of Pennsylvania and the
Workers’ Compensation Act: Background and Jurisprudence, Judge
Alexander F. Barbieri, and Selected Precedents, 20 WIDENER LAW
JOURNAL 87 (2010).

       The year 2010 marked the 40th Anniversary of the founding of
Commonwealth Court. In a major, ambitious commemoration of the same, Dan Schuckers
worked with Widener Law School officials and the editors of the school’s Law Review to
convene a symposium analyzing the court’s history and jurisprudence. The symposium was
convened on Thursday, February 17, 2011. Your editor (Torrey), prepared an article for the
occasion and presented highlights of the same at the Widener event.

        The article explains the background of the Act and how litigation of disputed cases is
carried out in an administrative law setting, thus giving rise to Commonwealth Court
jurisdiction. A miscellaneous note in this regard is that the original Pennsylvania proposal
would have had such disputes litigated in the common pleas courts.

       This plan never did unfold. (Factoid: to this day, comp litigation in Alabama and
Tennessee is undertaken in the trial courts.) Of further miscellaneous note – Florida, Minnesota,
and Tennessee are all states, in addition to Pennsylvania, where judicial appellate review of
comp cases is handled by a special court.

        A staple comment about workers’ compensation and the court is that comp appeals fill
much of its docket. That situation seems to have been changing. The article includes a chart that
shows the declining number of compensation appeals. This phenomenon is driven in part by the
changing nature of compensation at the initial litigation stage, where fewer petitions are being
filed and where more cases are resolved by compromise settlement 1:



1
  Full analysis: “A number of reasons explain this development. The reforms of Act 44 and Act 57 caused changes
to the law, substantive and procedural, that eventually reduced the opportunities for litigation. In addition, the
parties are now allowed to engage in compromise settlements of their cases, and the era of the long-term claim that
is litigated, and subject to appeal, many times over, is itself over. Also, the number of workplace injuries and deaths
in Pennsylvania has declined, as they have everywhere, over the few years. Population growth in the state has
lagged behind the country in general, and in many regions of Pennsylvania, like Pittsburgh, net population loss has
continued.” (P. 101, Footnotes omitted.)

                                                          18
              WORKERS’ COMPENSATION (WC) APPEALS AND DECISIONS (1998-2008)

Year         WC Appeals    Total App’s   Percentage   WC Dec.’s    Total Dec.’s   Percentage
1998         940           3432          27%          719          2064           35%
1999         951           3254          29%          690          2073           33%
2000         803           2932          27%          608          1677           36%
2001         783           3074          25%          548          1758           31%
2002         796           3065          26%          561          1768           32%
2003         629           2847          22%          530          1762           30%
2004         679           2783          24%          436          1665           26%
2005         582           2583          23%          418          1571           27%
2006         524           2426          22%          352          1285           27%
2007         529           2370          22%          326          1271           26%
2008         465           2451          19%          341          1205           28%

       The article also addresses in depth two jurisprudential points, one a bit obscure and the
other ubiquitous. The former is how Commonwealth Court has treated the pre-creation-of-
Commonwealth Court precedents of the Superior Court, the entity which used to handle
workers’ compensation appeals. An irony in this regard exists – while the Commonwealth Court
seems to reserve the right to disregard these precedents, in fact it has applied many of them and
they remain the law. The latter is how the court has utilized the Rule of Liberal Construction to
broaden the protections of the law, particularly since the 1972 amendments. This interpretive
rule was the mighty engine which, for fifteen years, drove liberalization of the law (for example,
expansion of the definition of “injury,” and the creation of the Kachinski doctrine), and which
ultimately prompted legislative push-back in the form of the retractive amendments of 1993,
1995, and 1996. The rule is still applied, but in her final months Judge Smith-Ribner twice
scolded the court that its recent interpretations ignored the remedial nature of the law.

       The bulk of the article is devoted to an analysis of the 147 reported workers’
compensation precedents authored by Judge Alexander Barbieri (1970, 1983-1993), the court’s
legendary workers’ compensation specialist.

Narcissist’s Note: This article should be available to you on WestLaw and Lexis, but I am also
pleased to send hard copy of the same if you are unable to obtain one from one of these common
sources. Contact: dtorrey@state.pa.us.

                       Steven P. Perlmutter, The Law of “Leased Worker” and “Temporary
                       Worker” Under a CGL Policy, 45 TTIPS LAW JOURNAL 761 (2010).

                               A major selling point of the “employee leasing” concept is the
                        employee leasing firm’s (PEO’s) supposed ability to secure workers’
                        compensation insurance for its clients at a discounted, affordable rate. In
Pennsylvania, however, PEO’s are completely unregulated, and some clients have been burned
when the PEO has failed to secure the workers’ compensation insurance, or refuses or otherwise
fails to recognize a worker’s work-related injury.



                                                 19
        In this situation, one rule should be well-recognized by all – if the PEO indeed fails to
carry workers’ compensation insurance, the client’s/actual employer's other insurance policies,
such as the CGL or auto/truck policies, will not provide such coverage. This has been so held in
the persuasive decision Occidental Fire & Casualty Co. v. Reber Corp. 1

        This new article, written by a Boston attorney, seems to be the definitive treatise on the
issue. The author believes that the majority interpretation, as exemplified by Reber, is also the
correct view. He hence criticizes a number of court decisions (those of the minority view) that
have interpreted the CGL policy so as to mandate coverage, as if the leased employee were a
member of the general public. The author also treats a nuance – the CGL policy does not except
from coverage “temporary workers,” but only employees and leased employees. “Accordingly,”
the author notes, “insureds seeking coverage will argue that the injured worker was a temporary
worker, and insurers seeking to disclaim coverage will maintain that the worker was a leased
worker.”

Jenna A. Moran, Independent Contractor or Employee? Classification
of Workers and its Effect on the State, 28 BUFFALO PUBLIC INTEREST
LAW JOURNAL 105 (2009-2010).

         Pennsylvania workers’ compensation law and practice was
significantly altered by legislation enacted in late 2010. In this regard,
Governor Rendell, on October 13, 2010, signed into law the “Construction Workplace
Misclassification Act.” This law was known as House Bill 400, but finally referred to as Act 72
of 2010. The new law is not an amendment of the Pennsylvania Workers’ Compensation Act,
and it is not yet codified. It does, however, have an effect on the law.

        The full text of the law, in its raw form, can be found at the following link:
http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2009
&sessInd=0&billBody=H&billTyp=B&billNbr=0400&pn=4289. This writer included a full re-
key of the text, with commentary, in the Pennsylvania Bar Association Workers’ Compensation
Law Section Newsletter, December 2010. See
http://www.pabar.org/public/sections/workco/pubs/newsletters/wcdec2010.pdf.

        In this new article, the author provides an excellent background on governmental concern
over employee misclassification. She explains the various classification standards that exist
under several federal and state programs (including the “IRS Test”). She also explains the
consequences of misclassification. In this regard, a worker who has been improperly
categorized by a firm as an independent contractor will likely lose out on possible group health
insurance benefits, not possess the protections of wage and hour laws, and not be protected by
OSHA regulations. In general, “When workers are not protected by the aforementioned federal
statutes, the consequences include lower wages, longer hours, and more hazardous work
conditions.” And, of course, another consequence is reduction in state and federal revenues.
The author refers to this phenomenon, which she remarks is a “growing problem in New York

1
 Occidental Fire & Casualty Co. v. Reber Corp., 2004 WL 1529176 (E.D. Pa. 2004). See Torrey-Greenberg, PA
WORKERS’ COMPENSATION: LAW & PRACTICE, § 2:43 (West 3rd ed. 2008).


                                                    20
state,” as the “tax gap.”

        Addressing the New York experience, the author details the creation and activities of the
Joint Enforcement Task Force on Employee Misclassification. This is the group founded by
Governor Spitzer “to develop and maintain [among agencies] a coordinated enforcement plan” to
aggressively enforce proper classification. She remarks that “[r]eining in misclassification could
generate desperately needed revenue,” but she also notes a possible hazard of the effort: “A
larger looming issue is the unsteady balance between government regulation and business
activity. Whether intentional or not, an employer who utilizes a ‘just-in-time’ workforce is more
agile and flexible, especially in times of low demand. In fact, this flexibility has led to the use of
independent contractors becoming customary in many industries, including construction,
healthcare, and retail. Increased enforcement may put too much pressure on businesses that are
barely surviving the recession. Government intervention could have a devastating effect….”


                            A BRIEFING ON THE EXCLUSIVE REMEDY:
                                     DEVELOPMENTS, 2010 ∗

                                 1. Immunity of temporary agencies. As a general rule, a
                         temporary service or an employee leasing entity (also known as a
                         “PEO”), is entitled to the same immunity as the actual employer, that is,
                         the employer that actually controls the details of the worker’s labor.
                         Such was the ruling in O’Donnell v. New England Motor Freight et al.,
                         373 Fed. Appx. 182 (3d Cir. 2010) (actual employer, employer leasing
entity, and PEO were all entitled to immunity via exclusive remedy, in case where plaintiff
worker, on first day of work at trucking company’s yard, suffered injury) (court citing JFC
Temps, Inc. v. WCAB, 680 A.2d 862 (Pa. 1996)).

        2. Jurisdictional nature of exclusive remedy defense. The
exclusive remedy defense is said to be “jurisdictional.” Thus, an
employer does not waive the defense by failing to raise it at trial. The
Supreme Court so ruled in LeFlar v. Gulf Creek Industrial Park No. 2,
515 A.2d 875 (Pa. 1986). The rule was applied in Saemmer v.
Construction Management Technology, Inc., 2010 U.S. Dist. LEXIS
50690 (E.D. Pa. 2010) (general contractor did not waive defense of statutory employer by not
including same as affirmative defense in answer and new matter; defense of WCA is
jurisdictional) (citing LeFlar). The federal court in Saemmer also declared that dicta in a 1992
Superior Court case, stating that “immunity is an affirmative defense,” was superseded and
defunct (court referring to Taras v. Wausau Ins. Co., 602 A2d 882 (Pa. Super. 1990)).

                              3. Intentional injury by co-worker; vicarious liability of employer. When
                     a worker is injured by a co-employee for purely personal reasons, it is conceivable
                     that a tort action against the employer might lie if the worker/victim shows that the
                     employer was somehow culpable in failing to prevent the attack. However,
                     liability will exist for this and kindred reasons because of a breach of some special
∗
    by Dave Torrey

                                                      21
duty, and not because of respondeat superior.

        In a 2010 case, a worker sued certain co-employees, alleging assault and battery and
intentional infliction of emotional distress; and her employer (on a theory of negligent hiring and
supervision), after a tumultuous altercation that led to her termination. See Garges v. The
People’s Light & Theater Co., 2010 U.S. Dist. LEXIS 115591 (E.D. Pa. 2010).

        The plaintiff tried to establish that employer and its workers, out of a personal animus,
intentionally injured her during the altercation. The court, however, held that plaintiff failed to
plead sufficient facts to prove such personal animus. Thus, neither a direct action against
employer, nor one based upon negligent hiring, was cognizable. The court set forth the
following explanation of how the personal animus analysis is to be undertaken:

       Ms. Garges … proposes that this case falls within the ambit of Kohler v.
       McCrory, … 615 A.2d 27 (Pa. 1992), in which the [state Supreme] Court held
       that “exclusivity [under the PWCA] does not preclude damage recoveries by an
       employee, based upon employer negligence in maintaining a safe workplace, if
       such negligence is associated with injuries inflicted by a co-worker for purely
       personal reasons” ….

               The appropriate inquiry as to this personal animus exception to exclusivity
       is not whether the injury occurred in the workplace, but “whether the injury is
       personal in nature and not a part of the proper employer-employee relationship.”
       …. However, “in determining whether an injury occurred during the course of
       employment there is a rebuttable presumption that the injury is work-related when
       the injury occurs at the workplace.” ….

               In this case, Ms. Garges’ Complaint provides no reason to believe that any
       of the torts that she alleges were committed for “purely personal reasons.”
       Indeed, the Complaint goes to some lengths to make clear that they all arose
       during the course of her employment. Most notably, Ms. Garges claims that Ms.
       Charles assaulted her immediately after she expressed “disbelief” at her
       termination. Regardless of whether there had been prior friction between Ms.
       Garges and Ms. Charles, the Complaint makes no reference to any extracurricular
       feud between the two women. “Where the animosity between the third party and
       the injured employee is developed because of work-related disputes, the
       animosity is developed because of the employment, and the injured employee's
       remedy is exclusively under the [PWCA].”

        This issue was also discussed in a 2010 federal court case. See Jackson v. Lehigh Valley
Physicians Group, 2010 U.S. Dist. LEXIS 40449 (E.D. Pa. 2010) (court, after first noting that
plaintiff had not established personal animus on part of co-employee who allegedly assaulted
her, further notes that even had personal animus been shown, vicarious liability would not have
followed: “Indeed, ‘[i]t is well-established that [a] finding that a claim is not preempted by the
[WCA] does not necessarily render it cognizable.’ …. ‘While there is an inherent paradox in
holding an employer liable for actions that are sufficiently removed from the workplace to be

                                                 22
subject to the personal animus exception, the tension is mitigated to an extent by the principle
that an intentional tort that is not preempted by the [WCA] cannot be asserted against an
employer under a theory of vicarious liability.’ … Here, Ms. Jackson has not asserted or
presented any evidence that Physicians Group’s acts or omissions somehow contributed to Ms.
McElroy's action of shoving Ms. Jackson against the desk, that Physicians Group was negligent
toward Ms. Jackson in failing to prevent the assault, or that Physicians Group otherwise should
be held liable for the incident….. “).

        4. Bad faith claims non-cognizable. In the landmark case
Kuney v. PMA Ins. Co., 578 A.2d 1285 (Pa. 1990), the supreme court
held that there is no viable “bad faith” claim cognizable under the
workers’ compensation act, for assertion in a civil action. In 2010 a
federal court, following Kuney, dismissed a claimant’s civil lawsuit
claiming that the employer and carrier had exercised bad faith in paying him a settlement (C&R)
that was allegedly “inadequate.” Rosario v. J.D. Eckman, Inc., Continental Casualty, et al., 2010
U.S. Dist. LEXIS 95616 (E.D. Pa. 2010). Plaintiff alleged, specifically, that he had
“compromised and released his workers’ compensation benefits for a sum less than ‘the
settlement value’ [of the same] and [that] he was misled and induced to compromise and release
his benefits” by employer and carrier.

                                   5. Misrepresentation exception to exclusive remedy – a study
                           in stasis. The courts have shown no interest in expanding the type of
                           situations in which an action would be cognizable under Martin v.
                           Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992) (where employer
                           allegedly withheld reports of elevated lead content in worker’s blood,
thereby aggravating condition, civil action would lie). As noted in 2010 by a federal court, “the
Pennsylvania courts, our own Court of Appeals, and this court have read Martin narrowly and
have refused to permit tort actions against an employer except in circumstances specifically
sanctioned by the holding in that case.” Uon v. Tanabe International Co., Ltd., 2010 U.S. Dist.
LEXIS 12888 (E.D. Pa. 2010) (allegation, by plaintiff-estate of fatally injured worker, against
employer, that its alleged fraudulent concealment of dangerous “case glue machine,” which
fraudulent concealment led to worker’s death, was not cognizable under Martin v. Lancaster
Battery; according to court, said precedent had been narrowly construed and did not allow
allegations such as that of the complaint to escape the exclusive remedy).

        In the case that so held, Uon, supra, the plaintiff alleged that the deceased worker had
met his death by the employer’s fraudulent concealment of a dangerous defect in the machine
which caused the fatal injury. The court addressed this issue as follows: “Plaintiff's claim for
fraud is equally untenable. Plaintiff argues repeatedly that Mid-Atlantic made a ‘fraudulent
misrepresentation that amounts to flagrant conduct’ by concealing or misleading decedent and
other employees as to the dangerous nature of the case glue machine that killed decedent. That
argument misunderstands the holding of Martin entirely. The exception enunciated there requires
proof the employer ‘concealed, altered, or intentionally misrepresented information related to the
work-related injury which results in its aggravation.’ …. Plaintiff has made no such allegation.
Consequently, the Martin exception has no applicability here.”



                                               23
        6. Sufficiency of indemnity clauses. The immunity of the
employer and those in privity with it from liability to third parties is
well secured under both § 303(b) and the cases that have interpreted
the statute. The final clause of § 303(b), however, provides that such
immunity applies in a third party action:

       unless liability for such damages, contributions or indemnity shall be expressly
       provided for in a written contract entered into by the party alleged to be liable
       prior to the date of the occurrence which gave rise to the action.

77 P.S. § 481(b).

        The sufficiency of indemnity clauses to effect waiver of the statutory immunity has been
the subject of substantial litigation. An extremely general indemnity policy between the third
party and the employer alleged to have been contributorily negligent will not be sufficient to
effect a waiver of immunity. The leading case is Bester v. Essex Crane Rental, 619 A.2d 304
(Pa. Super. 1993).

        In 2010 case, a federal court held a contract of indemnity sufficient so that an employer
(a truck freight company) was responsible to indemnify a third-party action tort defendant (a
window manufacturer/shipper) in a lawsuit by the employer’s employee against the defendant.
See MI Windows & Doors, Inc. v. Southeastern Freight Lines, Inc., 2010 U.S. Dist. LEXIS
53955 (W.D. Pa. 2010). According to the court, the language of the indemnity agreement was
sufficient so that employer had waived its workers’ compensation immunity. That language was
as follows: “Except to the extent of the SHIPPER’S negligence, CARRIER shall at all times
indemnify, defend, and hold harmless SHIPPER … against and from any and all claims arising
from the services provided hereunder (including, without limitation, claims for personal injury
..., whether or not caused by SHIPPER’S packaging, loading or other acts), asserted against
shipper … by any agent or employee of CARRIER.”


                        COMPLETE DIGEST OF REPORTED CASES
Case: Hall v. WCAB (America Service Group)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 404 C.D. 2009, filed August 13, 2010, Leavitt,
J. [3 A.3d 734]

Type of Case: Proceedings to Secure Compensation – Termination Petition – Legal Competence of
Employer’s Expert – Use of “Diagonal” Sign – Utilization Review (UR) – Non-Tender of Records
– Evidence

Issue or Issues: (1) Did the WCJ commit error in allegedly relying on a legally incompetent
opinion as to full recovery?; (2) Did the WCJ commit error in concluding that he did not have
jurisdiction over the Petition for Review of UR Determination?

        Claimant, Hall, was employed as a nurse. She was injured in a fall on August 12, 2004.
After filing an original claim, employer acknowledged the injury and agreed to issue a NCP, in

                                                 24
which many body parts were identified. Among other things, the NCP stated,
“lumbar/thoracic/cervical strain & sprain ….”

        Later, during her period of disability, claimant filed a prospective UR seeking an order that
care for her by a Dr. Fried was reasonable and necessary. The URO, however, found the care not
reasonable and necessary, as Dr. Fried’s office did not timely (30 days of request) tender his records
as required. See 34 Pa. Code § 127.464. Claimant appealed to the WCJ, and the employer at or
about the same time filed for termination.

        The WCJ affirmed the URO ruling, and he terminated benefits as well. Among other things,
the WCJ found that the witness presented by claimant to try to prove timely tender did not have the
requisite personal knowledge to provide competent testimony on the issue. She was only relying on
a subordinate’s notations in the file as to a presumed date of tender. Also, the WCJ credited
employer’s expert’s testimony with regard to full recovery. The WCAB affirmed.

        Commonwealth Court also affirmed. The court rejected claimant’ argument that the IME
physician did not take into account all of the injuries listed in the NCP. Also, the witness presented
by claimant to try to prove timely tender indeed had “no personal knowledge of whether or when
the records were mailed to the URO.”

Editor’s Note: The court was rather scrupulous in its review of the IME physician’s testimony. In
its view, no matter how one looked at his testimony and final opinion, he had taken into account all
aspects of the injury. Still, the court went out of its way to state that in its view, the employer had
not, with the NCP, accepted some discrete, pinpointed injury to the thoracic (middle) spine. The
court in this regard engaged in a discussion of the meaning of the “diagonal” (i.e., slash) sign used
in the NCP (language reproduced above). The court stated, among other things, that a “diagonal is a
symbol used to denote ‘or’ (as in and/or) ….” Slip op. at 17 (quoting Webster’s).

Case: Trevdan Building Supply v. WCAB (Pope)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1522 C.D. 2010, filed December 13, 2010,
Butler, J. [9 A.2d 1221]

Type of Case: Partial Disability – Overtime – Claimant Disqualified

Issue or Issues: Was claimant disqualified from continuing partial disability when the evidence
showed that continuing loss of overtime, which he had previously enjoyed pre-injury, was no longer
available to all employees?

       Claimant, Pope, suffered an injury on October 26, 2006. At the time, he was employed as a
yard man doing labor work for employer, Trevdan Building Supply. He was paid benefits
voluntarily under an NCP. His average weekly wage was $910.93.

        The claimant returned to work without restrictions on March 20, 2007, and at that time,
benefits were suspended. He was still working on October 1, 2007, though circumstances (see
below) had changed at his place of employment.



                                                  25
         In any event, in November 2007, claimant filed to reinstate benefits seeking partial disability
from the date of the return to work, and continuing, to the present. It is to be noted that at the time of
the filing of the reinstatement petition in November 2007, claimant was still working for employer.

        A WCJ granted partial disability benefits from March 20, 2007 until September 30, 2007.
As of that time, the WCJ suspended benefits “on the basis that there was a reduction in overtime for
all of employer’s workers.”

        The Board reversed, directing that claimant should have received ongoing partial disability
even after September 30, 2007.

        Commonwealth Court reversed, and it restored the WCJ order. The court agreed that “since
claimant returned to work without restriction, and there was a subsequent reduction of overtime for
all workers,” benefits were properly suspended.

         According to the court, the WCJ, as the arbiter of credibility, reasonably awarded partial
disability because employer’s foreman, from March until the end of September, was limiting
claimant from overtime because the foreman “was hesitant to allow claimant to work alone in light
of [his] injury and his residual discomfort.” However, after this time, “it is undisputed that the
effect of a downturn in the economy on employer required a restricting of its workforce, and an
elimination of overtime for all employees where possible. Accordingly, claimant’s lack of overtime
hours after October 1, 2007 was not due to his injury, but due to employer’s economic
circumstances.”

        On these facts, suspension of benefits was appropriate. According to the Commonwealth
Court, the controlling precedents included McKay v. WCAB (Osmolinski), 688 A.2d 259 (Pa.
Commw. 1997) (indicating that a suspension was warranted “where a claimant has a residual
physical impairment … but is receiving wages equal to or in excess of what the claimant had earned
in his pre-injury job.”); and Klarich v. WCAB (Rac’s Association), 819 A.2d 626 (Pa. Commw.
2003) (“where a claimant returns to work under a suspension, without restriction, to his or her pre-
injury job, is subsequently laid off, and then petitions for reinstatement, the claimant has the burden
to affirmatively establish that it is the work-related injury that is causing his or her present loss of
earnings. That is, while the claimant still enjoys the presumption that some work-related medical
injury continues, the claimant is not entitled to the presumption that his or her present disability, i.e.,
loss of earnings, is causally related to that work injury.”).

         The court distinguished the Supreme Court case Harper & Collins v. WCAB (Brown), 672
A.2d 1319 (1996). There, claimant was unable to do overtime, but she had returned to work at light
duty. That situation was to be contrasted with Mr. Pope’s case; Mr. Pope had returned to regular
duty. The court noted miscellaneously that another precedent which was implicated in Mr. Pope’s
case was the 2002 precedent Folk v. WCAB (Dana Corp.), 802 A.2d 1277 (Pa. Commw. 2002).
According to the court, the holding in Folk applied here: “even claimants who return to their time of
injury jobs with restrictions that do not require a modification of their duties are considered ‘without
restriction,’ and must prove their work injury has caused their loss of earnings.”




                                                    26
Editor’s Note I: In distinguishing Harper & Collins, the court remarked as follows: “the issue of
whether an employee who returns to his original position, full-time, with no restrictions, is entitled
to receive workers’ compensation benefits at a higher rate because overtime was available at the
time of his injury, but not at the time of his return to work, has yet to be determined by the
Pennsylvania Supreme Court.” Slip opinion at 8. For this proposition, the court was quoting Capper
v. WCAB (ABF Freight System), 826 A.2d 46 (Pa. Commw. 2003).

Editor’s Note II: In reviewing its responsibilities relative to appellate review, the court reproduced
the following, familiar standard: “in performing a substantial evidence analysis, this court must
view the evidence in a light most favorable to the party who prevailed before the fact-finder.
Moreover, we are to draw all reasonable inferences which are deducible from the evidence in
support of the fact-finder’s decision in favor of that prevailing party.”

        The court also noted that its “scope and standard of a review … is limited to determining
whether the necessary findings of fact are supported by substantial evidence, whether Board
procedures were violated, whether constitutional rights were violated or an error of law was
committed.” With regard to the definition of “substantial evidence,” the court noted that this is
“such relevant evidence a reasonable mind might accept as adequate to support a conclusion.”

Case: Shannopin Mining Company v. WCAB (Sereg)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1185 C.D.2010, filed January 26, 2011,
Butler, J. [11 A.3d 623]

Type of Case: Fact-Finding Reasoned Decision – Reinstatement Burden of Proof – Voluntary
Withdrawal

Issue or Issues: (1) Did the WCJ, in granting a claimant’s reinstatement petition, adequately
explain the basis of his decision? (2) Did the WCJ commit error “in failing to make any findings of
fact concerning whether Claimant voluntarily removed himself from the labor market”?

         Claimant, Sereg, was a long time coal miner. In 1994, he was awarded partial disability for
coal workers’ pneumoconiosis. His 500 weeks of partial expired on December 3, 2001. Six months
later, in May 2002, claimant filed what was in effect a modification petition seeking total disability
from the same condition.

        The WCJ awarded benefits, having credited claimant’s expert, Dr. Gress, over employer’s
expert, Dr. Pickerill. In making his credibility determinations, the WCJ apparently implied that Dr.
Pickerill, employer’s own expert, also was opining that claimant was incapable of work.

       In any event, the Board on two occasions remanded, unsatisfied that the Judge had
explained his understanding of Dr. Pickerill’s opinion.

        In the WCJ’s third decision (June 2009), he again granted claimant’s modification petition,
directing that TTD be paid. On this occasion, the WCJ “acknowledged that he was aware that Dr.
Pickerill’s opinion that claimant could perform his last job in the coal industry was given from a

                                                 27
pulmonary standpoint only.” The Board was satisfied with this explanation.

        The Board also was of the view that the controlling precedent on claimant’s reinstatement
attempt was found in Stanek v. WCAB (Greenwich Collieries), 756 A.2d 661 (Pa. 2000). Under that
case, a claimant whose benefits had been suspended for 500 weeks, and who was seeking to
reinstate onto total disability, must show that he is incapable of any work.

      On appeal, employer argued that the WCJ had not issued a reasoned decision, and had
committed error in not addressing an alleged voluntary withdrawal.

        The court rejected these arguments. True, under the reasoned decision requirement, the
Judge must (with regard to deposition testimony) set forth “some articulation of the actual objective
basis for [his] … credibility determination ….” Section 422(a) of the Act, 77 P.S. § 834. See
Daniels v. WCAB (Tri State Transportation), 828 A.2d 1043 (Pa. 2003).

        Here, the WCJ, as final fact-finder, had legitimately credited Dr. Gress, and he had justified
that credibility determination by pointing out that he was persuaded because the physician had to
stop claimant’s treadmill test as claimant’s heart rate went up dramatically, thus persuading Dr.
Gress that claimant was unfit for work. Also, the court was confident that, as found by the Board,
the Judge had demonstrated with his third-decision fact-findings that he had reconsidered Dr.
Pickerill’s testimony and was “cognizant” of the nature of the same.

        The court also rejected, summarily, the argument that the WCJ had not considered the issue
of “voluntary withdrawal.” After all, the court pointed out, claimant’s burden under Stanek was to
show that he was unfit for any work. As claimant was disabled from all gainful employment the
issue of retirement, to use the Board’s concept, “would be moot.”

Editor’s Note I: In rendering its decision, the court made broad statements about the WCJ’s
control over credibility determinations: “It is well established that the WCJ is the ultimate fact
finder and is empowered to determine witness credibility and evidentiary weight. The WCJ,
therefore, is free to accept or reject, in whole or in part, the testimony of any witness, including
medical witnesses.” And, of course, “Section 422(a) does not permit a party to challenge or second-
guess the WCJ’s reasons for credibility determinations. Unless made arbitrarily or capriciously, a
WCJ’s credibility determinations will be upheld on appeal.”

Case: Pizza Hut, Inc. v. WCAB (Mahalick)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 996 C.D. 2010, filed January 20, 2011,
Friedman, S.J. [11 A.3d 1067].

Type of Case: Proceedings to Secure Compensation – Termination Petition – Cross-Petition to
Amend NCP – Time for Filing

Issue or Issues: Did the WCJ commit error in denying an employer termination petition, as the
WCJ had, in the midst of the termination petition, allowed the claimant to cross-petition, allegedly
out of time, to review the NCP description of injury?



                                                  28
      The claimant, Mahalick, sustained a work injury on January 31, 2003. At the time, she was
employed by Pizza Hut. The NCP described the work injury as “strain/sprain of the lower back.”

       Eight weeks later, in March 2003, claimant returned to work. The parties executed a
supplemental agreement.

         Two and one-half years passed. Then, on September 15, 2005, employer filed to terminate.
During the pendency of the petition, claimant filed a cross-petition for review alleging, among other
things, that the NCP should include: “lower back bulging discs and facet arthropathy.” This cross-
petition to review was filed on December 16, 2006.

        The WCJ, after considering countervailing expert medical opinions, granted the review
petition, and denied the termination petition. The Board affirmed.

       In Commonwealth Court, employer asserted that claimant’s petition was time-barred.
Employer asserted, specifically, that because disability benefits had been suspended effective March
6, 2003, any cross-petition to review to amend the NCP to add an injury had to be filed by March
26, 2006. As claimant’s petition (see above) was only filed on December 16, 2006, the petition was,
employer argued, necessarily time-barred. For this proposition, employer cited the case Fitzgibbons
v. WCAB (City of Philadelphia), 999 A.2d 659 (Pa. Commw. 2010).

        The court rejected this argument. According to the court, a WCJ “may correct an NCP
during a termination proceeding under Section 413 of the Act without the claimant filing a second
petition to support a corrective amendment.” This is so, in any event, if the claimant, as here, was
seeking to add to the NCP body parts which should have been included at the time of the NCP
filing. According to the court, “because [in this case] it was not necessary for claimant to file a
separate petition and because employer filed this termination petition within three years of the last
payment of benefits, the WCAB did not err in affirming the WCJ’s expansion of the description of
claimant’s work injury.” For this rule, the court cited the Supreme Court precedent Cinram
Manufacturing Co., Inc. v. WCAB (Hill), 975 A.2d 577 (Pa. 2009).

Case: City of Pittsburgh v. WCAB (Wilson)
Court/Docket/Date Filed/Judge: Pa. Commw. No.235 C.D. 2010, filed January 20, 2011, Leavitt,
J. [11 A.3d 1071]

Type of Case: Proceedings to Secure Compensation – Medical Evidence – WCJ’s Impermissible
Interpretation of Medical Report – Typographical Error

Issue or Issues: Did the WCJ impermissibly interpret certain medical evidence and, by doing so,
grant a review petition without the benefit of legally competent medical evidence?

        The claimant, Wilson, was employed by the City of Pittsburgh as a paramedic. She
sustained an injury in December 2005 when lifting a heavy patient. Benefits were paid voluntarily
under an NCP. Employer accepted the injury as “thoracic strain.” Roughly four months later,
employer filed for a termination of benefits. Claimant, meanwhile, cross-petitioned to review,



                                                  29
seeking to expand the work injury to include, among other things, aggravation of preexisting
degenerative cervical disc disease and bilateral rotator cuff tears.

        In the course of the litigation, employer, given the cross-petition, had claimant attend an
IME with Dr. Adelsheimer. Dr. Adelsheimer had briefly treated the claimant after the work injury,
but then did undertake an IME in May 2007.

        Claimant, meanwhile, presented testimony from Dr. Buterbaugh, the surgeon who was
treating her shoulders. He was to testify that the rotator cuff tears had their origin in the work injury.
He had not treated claimant’s neck, and expressed no opinion with regard to causation.

        Dr. Adelsheimer, meanwhile, was of the opinion that claimant was fully recovered. He
opined, among other things, that claimant’s neck condition had been merely a strain, and in his trial
deposition testimony, opined that claimant did not aggravate preexisting degenerative cervical disc
disease.

       The WCJ denied the termination petition, and granted the cross-petition for review. She
added bilateral rotator cuff tears to the NCP. Also, she added aggravation of preexisting
degenerative cervical disc disease.

        The WCJ so added this condition, even though claimant had not presented any medical
evidence to such effect. Instead, the WCJ relied upon a report prepared by Dr. Adelsheimer at the
time of his IME. At that time, in what he was later to insist was a “typo,” Dr. Adelsheimer had
stated in his report: “I do feel that this work injury caused an aggravation of the preexisting
degenerative condition.” As foreshadowed above, however, the doctor in his testimony testified to
precisely the opposite, and maintained that the sentence quoted above “was erroneous because the
word ‘not’ should have appeared between ‘do’ and ‘feel.’”

        The Appeal Board affirmed.

        In Commonwealth Court, the employer’s only argument was that the WCJ had committed
error in granting the cross-petition for review with regard to the aggravation of degenerative disc
disease in the neck injury. (Employer did not assert that error had been committed in denying the
termination petition, or adding the rotator cuff aspects of the injury.)

         The court agreed with employer that error had been committed. According to the court, it
was claimant’s burden to show with unequivocal medical evidence that she had aggravated her neck
disease as part of the injury. Claimant’s expert, however, had expressed no opinion of any kind on
this issue. The WCJ, instead, had relied upon the initial report of Dr. Adelsheimer, which he himself
had rejected as reflective of an egregious typographical error.

       According to the court, the WCJ was not permitted to engage in this type of fact finding.
The court agreed with employer when it argued that “the WCJ relied upon a typographical error,
which cannot be competent evidence. Even if the incorrect sentence were deemed to represent Dr.
Adelsheimer’s actual opinion, that opinion was recanted. Thus, the so-called ‘original’ opinion is
equivocal and, as such, worthless.”

                                                   30
        In agreeing with employer, the court reviewed Dr. Adelsheimer’s report in its entirety.
Throughout the report, the doctor made references demonstrating that he did not believe there was
any causation between the accident and aggravation of the pre-existing degenerative condition. The
court declared, “there is simply no way to read [these quotes from the report] and conclude that Dr.
Adelsheimer intended to state that claimant sustained an aggravation.” As far as the court was
concerned, the WCJ had taken “a few words out of context to support a decision, which is
impermissible.”

       As foreshadowed above, the court agreed with employer as to the legal incompetence of Dr.
Adelsheimer’s opinion: “as a matter of law, a recanted opinion is equivocal, and therefore,
incompetent to support an award. … The WCJ cannot accept an earlier opinion but reject the
medical expert’s subsequent repudiation of that opinion.”

Editor’s Note I: As to the burden of proof on a claimant to amend the NCP on the basis that it was
incorrect when issued, the court cited Cinram Manufacturing, Co., Inc., v. WCAB (Hill), 975 A.2d
577 (Pa. 2009).

Editor’s Note II: The court, in a coda to its opinion, added the unnecessary declaration that the
WCJ had “violated the hearsay rule.” According to the court, “Dr. Adelsheimer’s testimony about
this ‘original’ written report, which was not admitted, was hearsay on hearsay. Uncorroborated
double hearsay cannot support a factual finding.” This declaration was unnecessary to the opinion
and, more importantly, the phraseology is juridically incorrect. Judges do not “violate” hearsay
rules; judges commit errors in relying upon impermissible hearsay.

Editor’s Note III: Claimant, on appeal, apparently assailed the Adelsheimer report because
employer, via its attorney, had brought the apparent typo to the doctor’s attention. The court
replied: “it is of no moment that employer’s counsel brought the mistake to Dr. Adelsheimer’s
attention. There is nothing untoward about a lawyer questioning his expert to get a clarification.
Critically, Dr. Adelsheimer testified that counsel in no way influenced his opinion or asked him to
change that opinion.”

Case: Washington v. WCAB (Commonwealth of PA State Police)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 476 C.D. 2010, filed January 5, 2011, Kelley,
J. [11 A.3d 48]

Type of Case: Casualties and Disablement Compensable – Mental Stress Causing Mental
Disability – State Police Officer – “Baby Jane Doe” Case

Issue or Issues: Did the WCJ and Board commit error in denying claimant’s mental stress
causing mental disability claim, having found that “abnormal working conditions” did not exist?

        The claimant, Washington, was employed as a state trooper with the Pennsylvania State
Police. His employment extended from 1991 until the development of emotional problems in
November 2005. Starting in 1994, claimant began working as an alternate member of the “forensic
services unit” (FSU), providing forensic and photographic services. He became a full time member

                                                 31
of the FSU in 2003. Most of his tasks involved investigation into burglaries and motor vehicle thefts
and the like, but he would be obliged on occasion to become involved in homicide investigations.

        In December 2003, claimant was called to investigate a homicide involving an infant that
later became known as the “Baby Jane Doe” case. He was obliged to photograph the body of a
burned and mutilated infant. Claimant had an adverse reaction to this experience, and he stopped
working for employer in November 2005. The termination of claimant’s work was immediately
occasioned by his firing a handgun at himself. (According to the opinion, in November 2005,
“claimant fired a bullet across the side of his chest.… He was hospitalized for his gun wound,
admitted to a psychiatric hospital, and then released to the Hershey Medical Center where he was
diagnosed with bipolar disorder and post-traumatic stress disorder.”)

        The claimant’s resulting claim petition was based upon PTSD, said to have been a product
of his working on the Baby Jane Doe case. In support of the petition, claimant presented the
testimony of psychiatrists and a fellow state trooper. Employer, meanwhile, presented the
testimony of lay members of the State Police, including the manager of the “members assistance
program,” or “MAP,” which gives assistance to police officers in need of counseling.

        The WCJ dismissed the petition, finding that the claimant had not been subject to abnormal
working conditions. Among other things, the WCJ found as fact: “the activities described by
claimant, in this case, providing forensic and photographic services, [and] attending autopsies are
drawn straight from his job description. Forensic services involve documenting, preserving and
collecting physical evidence, which could be the body of a dead infant.” The Board affirmed.

        Commonwealth Court also affirmed. In an extended discussion, the court first identified the
three types of psychological injuries which are potentially compensable under the Act. The court
then identified claimant as trying to prove a “mental-mental” case, and it noted that claimant was
required to show abnormal working conditions. Among other things, the court for this proposition
cited Wilson v. WCAB (Alcoa), 669 A.2d 338 (Pa. 1996). Here, substantial evidence demonstrated
that the WCJ was justified in stating that the complained of circumstances were not abnormal. This
was true as the court “had repeatedly recognized that the job of police officer is one which is
inherently highly stressful.”

        The court also held that the WCJ did not abuse his discretion in refusing to admit the
photographs claimant had taken in the course of the investigation. Of course, it is well settled that
“the admission of evidence is within the sound discretion of the WCJ.” A WCJ, the court declared,
“may properly exclude evidence which is irrelevant, confusing, misleading, cumulative, or
prejudicial.”

Case: Smith v. WCAB (Penn State Univ.)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 630 C.D. 2010, filed February 22, 2011,
Brobson, J.

Type of Case: Course of Employment – Leap down Flight of Stairs – Bilateral Fractured Ankles –
“Actions … Wholly Foreign to Employment”



                                                 32
Issue or Issues: Did claimant suffer an injury arising in the course of his employment when, while
on the premises, on an unpaid lunch break, and while headed to an on-premises lunch site, he
attempted a leap down a flight of twelve stairs, only to suffer acute fractures of both ankles?

        Claimant, Smith, was employed as a room cleaner for the University at its Behrend (Erie
County) campus. On June 6, 2007, he was cleaning rooms at Perry Hall. At lunch time, he left “to
take his half-hour unpaid lunch leave at Bruno’s, an on-campus dining facility where [he] had an
employer-sponsored mean plan. Claimant was walking from Perry Hall to Bruno’s and he
intentionally jumped down the second flight of approximately 12 steps.” Claimant landed hard and
broke both ankles. The fractures were so severe that he required surgery with screws inserted in
each of the ankles.

        The WCJ and Appeal Board awarded benefits, but the Commonwealth Court reversed.
Among other things, the court invoked the rule that an employee, even, as here, “on the premises,”
has not suffered an injury arising in the course of employment when he has undertaken an activity
“wholly foreign to his employment.” The court stated, “The premeditated, deliberate, extreme, and
inherently high-risk nature of Claimant’s actions are sufficient to remove Claimant from the course
and scope [sic] of his employment ….” For this rule, the court cited Kmart Corp. v. WCAB
(Fitzsimmons), 748 A.2d 660 (Pa. 2000) (“employees who remain on an employer’s premises for
their lunch break and sustain an injury are generally considered to be in furtherance of the
employer’s business unless the activity they are engaged in was so [sic] wholly foreign to their
employment.”)

        The court cited as the most similar case of late, the 2000 decision, Pinn v. WCAB (Hemlock
Girl Scout Council), 754 A.2d 40 (Pa. Commw. 2000) (claimant did not suffer injury arising in the
course of her employment while attending on-premises bridal shower for co-worker, “where there
was no evidence that employer encouraged bridal shower to promote good relations among
employees, provided the food for the shower or encouraged claimant to attend the event.”). The
court distinguished the 2004 case, Baby’s Room v. WCAB (Stairs), 860 A.2d 200 (Pa. Commw.
2004) (appeal denied). There, claimant was found to have suffered a work-related injury, when,
having just delivered some furniture, “he spontaneously jumped up to touch a basketball rim and
fell backwards,” hitting his head and suffering a brain injury. The court explained that there, “the
claimant’s spontaneous act was truly whimsical and involved very little risk of injury, unlike the
facts established in this case where Claimant contemplated the likelihood of a successful jump for
some time before he performed the deliberate and inherently high-risk act.” Slip op. at 15-16, n.7.

Editor’s Note I – Ironic testimony department: “Claimant … had thoughts of jumping down the
steps” prior to the date of the incident. He had “previously considered whether it would be possible
to jump the stairs…. Claimant testified that he was young and athletic, and he never thought he
would break both of his legs.” A co-worker, meanwhile, testified that Claimant had told her well
before the incident “that he thought he could jump the flight of stairs…. [S]he testified that she told
Claimant that the point was not whether he could make the jump, but where he would land….”

       Perhaps another case could have been cited by the court. In a 1939 decision, the Superior
Court held that the Act would not reach so far as to cover “foolish acts … in defiance of well-
known physical laws, wholly foreign to one's duties.” There, the claimant, who worked in a

                                                  33
service station, unintentionally soaked his leg with gasoline and then was successfully
challenged or dared by other youthful workers to set a match to the material. This action had the
obvious result, with the claimant suffering severe burns and resultant disability. The claim, as
suggested above, was denied. Carland v. Vance, 10 A.2d 114 (Pa. Super. 1939).

Editor’s Note II: The employer also seemed to have two affirmative defenses. The first was that
claimant had violated positive orders by engaging in horseplay. (This does not seem, in general, to
be a cognizable defense. See Sysco Food Services of Philadelphia v. W.C.A.B. (Sebastiano), 940
A.2d 1270 (Pa. Commw. 2008) There, the court rejected the idea that normally-covered
horseplay injuries could be defeated by proof of a no-horseplay rule.) The second defense was
that claimant should be barred because the injury was intentionally self-inflicted. See Section
301(a) of the Act, 77 P.S. § 431. Because the court determined claimant’s injury did not, as a
threshold matter, arise in the course of his employment, it treated these cases only elliptically and
did not consider them in principle.

Editor’s Note III: This case is a good example of a WCJ’s bifurcation on the course of
employment issue. After the WCJ heard evidence on this issue, she issued an interlocutory order so
stating. She then directed the parties to develop the medical evidence.

Editor’s Note IV: A hobbyhorse of this writer is the unfortunate importation into practice of the
tort law phrase “course and scope.” This phrase, which was never used before the 1980’s, does not
appear in the Act (except in the 2003 Good Samaritan amendment). The statutory criterion defining
the parameters of protected risks is: “arising in the course of employment” and (medically) related
thereto. Section 301(c)(1) of the Act, 77 P.S. § 411(1). The definitive interpretation was by the
Supreme Court in Krawchuk v. PECO, 439 A.2d 627 (Pa. 1981).

        This new case is remarkable as its shows the variety of ways the court applies this imported
slang phrase. Within just a few paragraphs of the opinion, the court recognizes the proper statutory
criterion, slip op. at 7, but then applies three other variations: (1) “course and scope” of
employment, slip op. at 3; (2) “course of employment,” slip op. at 7; and (3) “scope of
employment,” slip op. at 5, as the controlling tests.

         It is respectfully submitted that this tort concept term and insurance industry usage should be
retired from practice, both in the litigation trenches and in the didactic appellate court decisions as
well.

Case: Hershgordon v. WCAB (Pepboys – Manny, Moe & Jack)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 2031 C.D. 2010, filed February 8, 2011,
Butler, J.

Type of Case: Notice of Injury – Credibility – Confusion of “Board Regulations” (sic) and WCJ
Rules – Rules of Civil Procedure

Issue or Issues: Did the WCJ commit error in concluding that claimant had failed to prove that he
had provided timely notice of injury?



                                                  34
       Claimant, Hershgordon, began working for the Bensalem Pep Boys in February 2005. On
October 23, 2007, he was terminated for disciplinary reasons. Shortly thereafter, he sought
workers’ compensation for a back and right ankle injury that allegedly occurred on June 13, 2005.
Employer denied that claimant had ever provided notice, as required by Section 311 of the Act, 77
P.S. § 311. The WCJ was persuaded by employer’s management witnesses that claimant had
never provided notice, and he dismissed the petition.

         The Board and Commonwealth Court affirmed. The WCJ’s fact findings would not be
overthrown, as the judge is “the ultimate fact-finder and is empowered to determine witness
credibility and evidentiary weight. The WCJ, therefore, is free to accept or reject, in whole or in
part, the testimony of any witness, including medical witnesses.”

Editor’s Note I: The claimant was pro se at all levels. He had, notably, demanded summary
judgment after an alleged default on the part of employer in handing over all records as required by
the WCJ rules. The WCJ did not oblige claimant and, of course, thereafter dismissed the case. The
court detected no error. It studied the record and the WCJ’s ruling, and found that employer had
complied with the rules. In any event, summary judgment was not available, as the rules of civil
procedure do not apply in compensation cases. (Citing Romaine v. WCAB (Bryn Mawr Chateau
Nursing Home), 901 A.2d 477 (Pa. 2006)).

Editor’s Note II: The court, citing 34 Pa. Code § 131.61, erroneously refers to the WCJ Rules as
the “Board’s Regulations.” Slip op. at 9.

Case: Morrison v. WCAB (Rothman Institute)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 403 C.D. 2010, filed November 23, 2010,
order to report March 2, 2011, McCullough, J.

Type of Case: Proceedings to Secure Compensation – Effect of Box 4 “Qualified” Denial –
Admission of Injury versus Admission of Disability

Issue or Issues: Where employer had issued a Box 4, “Qualified” Denial, was it later “estopped” to
deny claimant’s assertion of disability from the acknowledged injury?

        Claimant, Morrison, worked for employer Rothman Institute, from October 2004 until
January 2007. At that time, he was discharged for absenteeism and disciplinary infractions. After
the discharge, in June 2007, Morrison asserted an original claim for workers’ compensation. Just
prior thereto, in the early part of the month, employer had (perhaps tardily) filed a Box 4
“Qualified” Denial, acknowledging an April 4, 2006 injury but denying any resulting disability.
This claim of injury, and admission thereof, had its genesis in an incident occurring when Morrison
was lifting a heavy patient back into his wheelchair. After medical treatment and an MRI, he
continued working until the discharge some eight months later.

        In his petition, he was seeking TTD from the date of discharge until his return to work,
during the pendency of the petition, with a new employer, on June 24, 2007. The WCJ denied the
petition, rejecting claimant’s lay and medical proofs as to disability. The Appeal Board affirmed.



                                                  35
        Commonwealth Court has also affirmed. Claimant argued that the fact of the Box 4 Denial
caused employer to be “estopped from denying a work place injury” and [editor’s inference]
presumably disability as well. The court rejected this analysis. The court declared, “the notice of
compensation denial here admits that ‘an injury took place’ and nothing more.” The court pointed
out that claimant in the present case was pursuing an original claim, and even in the presence of the
limited admission carried the burden of proof. The court explained, “a claimant must establish that
he sustained an injury during the course of his employment and that he is disabled as a result of the
injury…. The claimant’s burden never shifts to the employer…. Therefore, when an employer
issues a notice of compensation denial, which acknowledges an injury but disputes disability, the
claimant maintains the burden to prove he is entitled to benefits.”

       Here, the WCJ’s decision that the admitted work injury was not attended by any disability
was supported by substantial competent evidence.

        The court also rejected claimant’s second argument. Claimant argued, in this regard, that
employer’s expert’s supplemental report was legally incompetent, because the expert “relied on an
inaccurate recitation of facts given to him by defense counsel.” However, the court reviewed the
underlying facts and found the allegation to be without merit. (The court did acknowledge the
general rule that “an expert’s opinion based on facts not of record is legally incompetent.”).

Editor’s Note I: The court rejected the argument that the Denial was untimely. Regulations
establish that an employer must file NCP or Denial within 21 days of knowledge of employee’s
disability. Here, claimant failed to show when Employer knew of the disability; he therefore could
not, by necessity, argue that the form was filed late. See 34 Pa. Code §§ 121.13, 121.7.

Editor’s Note II: In arguing for estoppel, claimant unsuccessfully submitted that the court should
make Box 4 “Qualified” Denials have the same effect as NCP’s. The court distinguished the cases,
Beissel v. WCAB (John Wanamaker, Inc.), 465 A.2d 969 (Pa. 1983); County of Schuylkill v. WCAB
(Lawlor), 617 A.2d 46 (Pa. Commw. 1992).

Editor’s Note III. The court, in setting forth the procedural history, states that the “WCJ concluded
that Claimant failed to present substantial competent evidence to satisfy his burden ….” Slip op. at
7. This is a misstatement of the law. The claimant’s burden of proof is by the preponderance of the
evidence. Substantiality of evidence is the analysis to be taken up by the Board and court on
appellate review. It is not a rule of fact-finding.

Editor’s Note IV: As noted above, claimant returned to work during the pendency of the
proceedings. When he did, he did not advise the Unemployment Compensation authorities. He
thus received an overpayment. Employer found out of this development, and it successfully offered
into evidence the “determination of overpayment,” and another document that showed that,
according to the Department of Labor & Industry, “a fault overpayment [had occurred] and [it]
recommended Claimant’s prosecution.” The WCJ relied upon this development in discrediting
claimant’s assertion of disability.




                                                 36
Case: Fidelity & Guaranty Ins. Co. v. Bureau of Workers’ Compensation
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1766 C.D. 2009, filed October 29, 2010,
Brobson, J.

Type of Case: Act 44 – Fee Review – Time for Provider to Challenge Payment – Legitimacy of
Regulation

Issue or Issues: Did the Fee Review hearing officer commit error in concluding that the provider
had asserted a timely fee review petition, by filing within 90 days of the original provider billing
date?

        A worker, Matthews, was seriously injured on December 9, 2006, in an apparent
warehouse accident. She was transferred by helicopter to a hospital, Community Medical Center
(hereafter “provider”). The hospital treated claimant over a ten-day inpatient stay. She was
discharged on December 19, 2006.

        On January 18, 2007, provider mailed employer’s TPA (hereafter “carrier”) a bill,
referred to as a “clean bill,” on the appropriate forms, totaling $104,137.33. When the provider
submitted the bill, it was expecting to be paid its usual and customary charges under the “trauma
provisions” of Act 44, Section 306(f.1)(5) of the Act, 77 P.S. § 531(5). On February 21, 2007,
however, the carrier sent provider a check in the repriced amount of $21,327.69.

        Provider then filed for fee review. It filed its application on the 85th day after the original
billing date (viz., on or about May 16, 2007). This filing was, of course, on a date more than
thirty days after the original response and discounted payment by the TPA – and hence the date
of “notification of a disputed treatment.” The Bureau, in its initial administrative ruling, ruled
for the provider, and it directed that the carrier pay the balance.

       On appeal, the carrier argued that the provider filed its petition late and hence that the
Bureau lacked jurisdiction over the fee dispute, According to the carrier, the provider was
obliged to have filed “within thirty … days of the disputed treatment,” as allegedly required by
Section 306(f.1)(5) of the Act.

       The court rejected this argument. The Act contemplates initiation of fee review within 30
days of notification of dispute, or 90 days from first billing. Further, the regulation that added
the phrase as to “whichever [date] is later,” was a legitimate regulatory enactment not outside the
powers of the Bureau.

       Among other things, the court pointed out that the 30 day period would be cognizable
when the provider, having been notified of controversion, submits an additional, clean bill. In a
number of situations, the 30 days will prevail, as the expiration of the same will be in excess of
90 days of the original billing date. For this proposition the court pointed to its precedent,
Harburg Medical Sales Co. v. BWC (PMA), 784 A.2d 866 (Pa. Commw. 2001).

Editor’s Note I: The court explained certain critical background as follows: “A ‘clean bill’ is a
bill submitted on the proper forms.” Seven Stars Farm, Inc. v. WCAB (Griffiths), 935 A.2d 921

                                                  37
(Pa. Commw. 2007))…. The original billing date is the date of submission of a clean bill.
Nationwide Mut. Fire Ins. Co., 981 A.2d 366 (Pa. Commw. 2009)).”

        In declaring the legitimacy of the regulation, the court pointed out that two types of
regulations exist. The first, as treated in the present case, is a “substantive” or “legislative”
regulation. Such a regulation “is substantive and creates a new controlling standard of conduct
while the interpretive regulation does not.” In contrast, “an interpretive regulation merely
construes and does not expand upon the terms of the statute.”

Editor’s Note II: The regulation at issue 34 Pa. Code § 127.252(a), provides, in pertinent part,
as follows: “Providers seeking review of fee disputes shall file [a fee review petition] … no more
than 30 days following notification of a disputed treatment or 90 days following the original
billing date of the treatment which is the subject of the fee dispute, whichever is later ….”

                           NOTE ON FOLLOWING CASE:
                   OPINION WITHDRAWN PENDING REARGUMENT

Case: City of Philadelphia v. WCAB (Butler)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1245 C.D. 2009, filed December 16, 2010,
Leavitt, J.

Type of Case: Proceedings to Secure Compensation – Acceptance and Denial – Burden on
Termination Petition – Appellate Procedure/Appellate Decision Making; Prior Unreported Panel
Decision in Same Case Overthrown

Issue or Issues: Was an employer which filed to terminate a claimant’s benefits, based upon
medical evidence which supported full recovery at a date and time prior to the issuance of the NCP,
barred necessarily from such petitioning?

        The claimant, Butler, was employed as a probation officer for employer, City of
Philadelphia. She suffered a work injury on September 28, 1995. In this regard, claimant was in a
car accident and had numerous sprains and bruises. She treated with Dr. Foster.

       Roughly three weeks later, on October 19, 1995, Dr. Foster examined the claimant and
found her to be fully recovered, and capable of going back to work full duty, full time.

       After the accident, the employer did not issue an NCP immediately. Instead, it simply
continued to pay claimant her salary under Philadelphia Civil Service Regulation 32, known
elsewhere as salary continuation under the Heart & Lung Act.

        Five weeks after the accident, employer issued an NCP noting that the work injury was
bruises to the head, back and neck. Employer in the “remarks” section of the NCP, stated that
claimant was receiving salary continuation in lieu of comp.

         In December 1995, employer filed to terminate. On two occasions, the WCJ was convinced
that claimant was fully recovered and, crediting Dr. Foster’s opinion, granted termination.

                                                38
Ultimately, the case reached Commonwealth Court in 2005. Commonwealth Court, at that time
reversed and remanded, holding that employer’s termination petition was non-cognizable, as
“employer was required to prove that claimant’s work-related disability had resolved some time
after the date the NCP was issued, i.e., November 7, 1995.” As far as the Commonwealth Court was
concerned, employer’s evidence, that is, the opinion of Dr. Foster, “that claimant’s work-related
disability had resolved prior to the date of the NCP would not support a termination of benefits.”

         On a third visitation of the case, the WCJ, following the remand order, merely suspended
benefits, finding claimant could have returned to work full duty. The WCJ suspended benefits as of
September 25, 1997. (Presumably, job availability had been shown as of such date; the court added
that this date was picked “apparently because it was a date that fell after the issuance of the NCP on
November 7, 1995.”).

       The Board, however, reversed. In the Board’s view, employer, even to secure suspension,
“was required to show that claimant’s physical condition improved after employer issued the NCP.”
The Board so reasoned even though “the effective date of the suspension post dated issuance of the
NCP.”

        Commonwealth Court thereafter disavowed its prior 2005 ruling, and held that the
employer could, indeed, secure termination with medical evidence which existed prior to the
technical act of issuing the NCP. In so holding, the court fully acknowledged Supreme Court
precedent to the effect “that an employer is bound by the contents of its own NCP.” That Supreme
Court principle also provides that, as a result, the “employer cannot seek a termination on the basis
that the injury, described in the NCP, and for which the employer accepted liability, was not work-
related.” Beissel v. WCAB (John Wannamaker, Inc.), 465 A.2d 969 (Pa. 1983).

        The court, however, rejected the proposition that Beissel applied in the present case. In
Beissel, the employer was trying to assert, in filing for termination, that claimant had never suffered
a disabling work injury in the first place. Employer in that case was trying to “repudiate the contents
of its NCP.” Employer in the present case was trying to do no such thing: “Rather, it sought only to
prove that claimant had fully recovered from the work injury described in the NCP.”

        According to the court, “the date of an NCP does not preclude an employer from obtaining a
termination, suspension or modification by proving that the claimant’s disability had resolved
before the issuance of the NCP. …”

        In the court’s view, to accept the idea that an employer could never seek such relief when it
had issued an NCP, based upon evidence which preexisted the technical filing date, would exalt
form over substance. In the court’s view: “It does not advance sound policy, or any provision of the
Act, to have the date of an NCP’s issuance stand as a barrier to a termination of benefits for a
claimant who has fully recovered.” This was so for three reasons: First, such a holding exalts form
over substance. Second, the penalty for a late NCP should not be refusal of relief from liability but
a penalty, as provided by law, for such untimely filing. At no place in the Act, the court
underscored, is there provision that “the failure to issue a timely NCP can result in a permanent
award of disability benefits, notwithstanding a claimant’s full recovery.” Third, good public policy
would be defeated by the rule advanced by claimant: “Preventing an employer from proving a

                                                  39
claimant’s recovery prior to the date an NCP issued will discourage employers from issuing NCPs.
There are times where a work injury will have such a short duration that it would be impossible to
issue an NCP before the claimant has recovered. If the employer is punished for issuing an NCP in
this circumstance, then the employer has no reason to issue one…” The result would be obliging
more claimants to pursue benefits by initiating litigation.

Editor’s Note I: In a wry comment, the court remarked: “Employer here has paid a heavy price for
issuing its NCP, i.e., paying claimant workers’ compensation benefits for 15 years after she fully
recovered.”

Editor’s Note II: As noted above, the court foreswore its 2005 panel holding. (The precedent here
being summarized is a product of the court en banc.) According to the court, “This Court acting en
banc has the power to reverse the holding of a panel .…”

Editor’s Note III: In reversing, the court did not order the termination of benefits, but merely the
suspension of the same. This was so because that was the Judge’s latest order. However, the
suspension was effective October 31, 1995, the date that the record showed job availability. The
court did not enforce the original 1997 date of suspension. The court hence “modified” the WCJ’s
order.




                                                 40
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Course Planners
Daniel K. Bricmont, Esq.
Program Planning Committee Chair
                                                                 27th Annual Fall Section Meeting
Caroselli Beachler McTiernan & Conboy, LLC,
Pittsburgh                                                       PBA Workers’ Compensation Law Section
                                                                                                                                                 6 substan ve/1 ethics credit
Gary H. Hunter, Esq.
Section Chair, German, Gallagher & Murtagh
Philadelphia                                                                                                                    ’
                                                                 Every year at the traditional time for back-to-school, workers’ comp attorneys and judges
Lawrence R. Chaban, Esq.                                         gather in Hershey for the Fall Section Meeting, our own “bench-bar conference.” This is the
Section Chair-Elect                                              one annual “must” event offering the opportunity to explore the hottest issues in depth as
Of Counsel, Alpern Schubert PC, Pittsburgh                       well as to exchange ideas and experiences informally with colleagues from across the state.
                                                                 Bring your partners, associates, and paralegals (note special paralegal rate) for the event of
Advisory Panel                                                   the year!
Halmon L. Banks, Esq.                                            As always, along with the course manual you will receive a CD-ROM with the recent
Martin, Banks, Pond, Lehocky & Wilson, Philadelphia
                                                                 developments slides, hyperlinked to the cases discussed.
Richard Edward Bordonaro
Marnen, Mioduszewski, Bordonaro Wagner & Sinnott, Erie
Nariman Patrick Dastur, Esq.                                                   Thursday Afternoon
DeAngelis, Dastur & Assoc., P.C., Pittsburgh                                     1:10    - 1:40      Check-in & Registration
Hon. Beverly J. Doneker                                                          1:40    - 2:00      Welcome
Office of Adjudication, Allentown
Marc S. Jacobs, Esq.                                                             2:00    - 6:20      Recent Developments and Other Hot Topics
Galfand Berger LLP, Philadelphia                                                 6:20    - 8:30      Break (on your own)
Marla A. Joseph, Esq.                                                            8:30    - 10:00     Reception (courtesy of the Section)
The Law Offices of Marla A. Joseph, Jenkintown
R. Burke McLemore, Jr., Esq.                                                   Friday Morning
Thomas, Thomas & Hafer, LLP, Harrisburg
                                                                                 8:25 - 8:30 Welcome
Michael Paul Routch, Esq.
McQuaide, Blasko, Fleming & Faulkner, Inc., Hollidaysburg                        8:30 - 11:45 Recent Developments and Other Hot Topics Continue
Hon. Todd B. Seelig
Office of Adjudication, Philadelphia
Hon. A. Michael Snyder                                                             Hershey Lodge & Convention Center
Office of Adjudication, Philadelphia                                                Thurs., Sept 15 and Fri., Sept. 16
Brian R. Steiner, Esq.                                                             W. Chocolate Ave. and University Drive
Steiner, Segal, Muller and Donan, Philadelphia
Barbara J. Welton, Esq.                                                            1:40 to 6:20 pm Thursday; 8:30 to 11:45 am Friday
Welton Law, Erie                                                                   Check-in begins at 1:10 pm Thursday and resumes at 8:00 am Friday



                                                                 Hotel Sleeping Rooms
                                                                 A block of rooms has been reserved at the Hershey Lodge & Convention Center for Wed., Sept. 14, and Thurs.,
                                                                 Sept. 15 evenings, at the rate of $164.
                                                                 Call 1-800-533-3131 and mention the Pennsylvania Bar Association.
                                                                 NOTE: You must reserve your room by Aug. 15 to take advantage of the special rates.


27th Annual Fall Section Meeting                                                                                               9267
Locations
 Hershey • Thurs. & Fri., Sept. 16-16, 2011                     Name_______________________________Atty. # __________                      Four Easy Ways to Register!
Tuition (includes course book and reception)                      Firm _______________________________________________
                                                                                                                                                                     PBI
Early*                                                Standard    Address ____________________________________________                                               5080 Ritter Rd.
Early*                                              Standard                                                                                                         Mechanicsburg, PA
$299     PBA WC Section Member                      $334        City ________________________________________________
                                                                                                                                                                     17055-6903
$329     Member — Pa., or any co. bar assn.  $354               State____________Zip___________County________________
$309     Member admitted after 1/1/07               $334
$349     Nonmember                                  $374        Phone_____/_____-_________ FAX_____/_____-___________
                                                                                                                                                                     FAX:
$129     Paralegals attending with an atty.         $154        E-mail ______________________________________________                                              (717) 796-2348
$149     Paralegals attending alone                 $174
                                                                  I have enclosed my discount coupon in the amount of
$165     Judges and judicial law clerks             $190
          (including WCJs, members & employees                    $______ for my  1st  2nd  3rd  4th  5th PBI seminar.
          of the WCAB, the WC Bureau, & Dept                                                                                                                         (800) 247-4724
                                                                  A check made payable to PBI for $____________ is enclosed.
          of Labor & Industry)                                                                                                                                       (800) 932-4637
$155  Judges and judicial law clerks                $180        Charge my:                             
          (including WCJs, members & employees
          of the WCAB, the WC Bureau, & Dept                      Card #______________________________Exp. Date________
          of Labor & Industry admitted after 1/1/07)                                                                                                                  TO REGISTER
*Registrations received 3 or more business days before the        Signature ___________________________________________                                               ONLINE:
presentation qualify for the Early Registration Discount.                                                             shs-3/28/11
                                                                                                                                                                      pbi.org
Medical School for Lawyers:                                                                                               Faculty
                                                                                                                          Professor Samuel D. Hodge, Jr.
                                                                                                                          Sam Hodge, a skilled litigator, is a professor at


The Anatomy Lab “Road Show”                                                                                               Temple University where he chairs the Legal
                                                                                                                          Studies Department. Professor Hodge’s second
                                                                                                                          area of educational pursuits is anatomy which
                                                                                                                          he teaches at Temple’s Law School to both J.D.
Have you noticed our course Medical School for Lawyers—Into the Anatomy Lab, giving                                       candidates and in the Masters Program in Trial
you a morning with Sam Hodge and an afternoon in the anatomy lab at Jefferson Medical                                     Advocacy. He has received multiple teaching
College with anatomist Hector Lopez?                                                                                      awards and his interactive teaching style has been
                                                                                                                          the subject of stories in the New York Times, the
Have you wished you could take the time to go to Philadelphia for that course? Have you                                   Philadelphia Daily News, the Chronicle of Higher
wondered whether we could take that show on the road?                                                                     Education, National Public Radio and television.
                                                                                                                          Professor Hodge’s research focus is in medicine
Did you try to enroll when we brought the Anatomy “Road Show” to Pittsburgh in January                                    and the relationship of trauma to personal injury.
— only to learn it had sold out?                                                                                          His most recent book, Anatomy for Litigators, was
                                                                                                                          published by ALI-ABA, the educational arm of
Have we got news for you!                                                                                                 the America Bar Association. This text was the
                                                                                                                          2008 recipient of the Award for Professional
Sam and Hector are team-teaching a new course in Pittsburgh. They’ll explore the systems                                  Excellence in the area of legal publications, from
of the body and the anatomy of many body parts, including those most involved in litigated                                the international Association for Continuing Legal
injuries. Doctor Lopez will bring with him actual human body parts from his laboratory as                                 Education.
well as models of the spine and other body parts. As each is discussed, a live camera will
                                                                                                                          Hector Lopez, MD
project the specimen onto a screen for close-up viewing by the entire class. There will also be
an opportunity for "hands-on" work.                                                                                       Dr. Lopez is the Co-Director of the Human Form
                                                                                                                          and Development course for first-year medical
Don’t miss this unique program. It will be especially useful to those who have already                                    students at Jefferson Medical College. He is
attended one of Sam Hodge’s Anatomy for Lawyers courses, but any lawyer, judge, or                                        responsible for all aspects of the dissection room
paralegal who handles medical issues will find it invaluable.                                                              experience. An Assistant Professor in the Division
                                                                                                                          of Anatomy, Department of Pathology, Anatomy
Sam and Hector will tailor this course to your needs: email Sam Hodge at temple885@aol.com                                and Cell Biology, Jefferson Medical College, his
to let him know the issues you’re struggling with. They’ll allow plenty of time for questions.                            responsibilities include the anatomical sciences
                                                                                                                          education of medical and health professions
                                                                                                                          students; he provides courses in human pathology
Who Should Attend?                                           Medical School for Lawyers Certificate                        and supervises laboratories in neuroanatomy,
                                                             Earn 24 CLE credits in three years (beginning                gross anatomy and cross-sectional anatomy.
    Workers’ compensation lawyers & WCJs
                                                             January 2008) from courses in our Medicine for
    Social security lawyers & ALJs                          Lawyers and Anatomy for Lawyers series, and we
    VA disability lawyers & judges                          will send you a handsome certificate suitable for                       Your Colleagues Rave
    Personal injury lawyers
                                                             framing.                                                               about Sam and Hector
    Paralegals handling medical issues                      Contact Stacey Thomas for more information                   This was the best, most informative CLE – it really
                                                             (800-932-4637, ext. 2298 or email sthomas@pbi.org).                 helps my understanding of injuries.

Includes the Award-Winning Book, Anatomy for Litigators!                                                                                  Fantastic program.
Everyone who attends will receive a copy of Sam Hodge’s book published by ALI-ABA:                                        One of the best CLE programs I have been to in my
366 pages with more than 350 pictures, illustrations, and charts ($138 value).
                                                                            )                                                             33 years of practice.
                                                                                  6 substan ve CLE Credits                  Very interesting and full of helpful information.



The Anatomy Lab “Road Show”                                                                                              9267
                                                                                                                                      Four Easy Ways to Register!
Location                                                       Name_______________________________Atty. # __________                                   PBI
 Pittsburgh • Mon., June 27, 2011                                                                                                                    5080 Ritter Rd.
                                                               Firm _______________________________________________
                                                                                                                                                       Mechanicsburg, PA
Tuition (includes course book and lunch)                       Address ____________________________________________                                    17055-6903
Early*                                           Standard      City ________________________________________________
$399     Member — Pa., or any co. bar assn.  $424
$349     Member admitted after 1/1/07               $374     State____________Zip___________County________________
                                                                                                                                                       FAX:
$449     Nonmember                                  $474     Phone_____/_____-_________ FAX_____/_____-___________                                   (717) 796-2348
$249     Paralegals                                 $274
$200     Judges and judicial law clerks             $225     E-mail ______________________________________________
          including WCJ’s and ALJ’s                            I have enclosed my discount coupon in the amount of
$175  Judges and judicial law clerks                $200
          (admitted after 1/1/07)                              $______ for my  1st  2nd  3rd  4th  5th PBI seminar.                       (800) 247-4724
                                                                                                                                                       (800) 932-4637
          including WCJ’s and ALJ’s                            A check made payable to PBI for $____________ is enclosed.
*Registrations received 3 or more business days before the
                                                               Charge my:                           
presentation qualify for the Early Registration Discount.
                                                               Card #______________________________Exp. Date________                                   TO REGISTER
                                                                                                                                                       ONLINE:
                                                               Signature ___________________________________________                                   pbi.org
                                                                                                                shs-3/28/2011