Schaff & Young Workers' Comp In-Cites
Welcome to the first issue Schaff & Young’s Workers’ Comp In-Cites. Designed to provide our clients with practical insight, Workers’ Comp In-Cites will focus on recent developments in Pennsylvania workers’ compensation law and explain how those decisions impact our clients and their cases. Barbara Young, Michael Schaff and the other attorneys at Schaff & Young, P.C. are always available to discuss these cases – or any other questions or concerns you might have. Just give us a call at (215) 988-0090 or send an email to We look forward to hearing from you.
Your Agreements Matter – Structure Them Carefully
In Sharon Tube Co. v. Workers’ Compensation Appeal Board (Buzard), the Commonwealth Court ruled that an employer was bound by any language contained in a Supplemental Agreement until it was properly modified by either another Agreement or an Order by a Workers’ Compensation Judge. This opinion is a reminder that you should be careful what is contained in a Bureau documents you prepare, because you will almost certainly be bound by the language you use.

January 2007 Edition
Volume 1
Number 1

Schaff & Young, P.C.
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Impairment Rating Evaluations (IRE)
The Supreme Court Will Weigh In On the Deadlines
The Pennsylvania Supreme Court has decided to hear the appeal in Dowhower v. Workers’ Compensation Appeal Board (Capco Contracting, Inc.) and is expected to rule upon whether an employer may request an IRE prior to the 104-week period in Section 306(a.2)(1) of the Workers’ Compensation Act.

An IRE Does Not Bar the Filing of a Termination Petition
Claimant attorneys have been arguing for years that an Impairment Rating Evaluation (IRE) is the equivalent of a finding that a claimant has a permanent injury that would bar a termination or similar petition. The Commonwealth Court disagreed. In Schachter v. Workers’ Compensation Appeal Board (SPS Technologies), the Court ruled that an IRE does not bar an employer from contesting a claimant’s disability in a subsequent termination petition.

Workers’ Compensation & Longshoreman’s Claims – Both Acts May Apply
An employer may be bound by the Pennsylvania Workers’ Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act. That is the decision of the Commonwealth Court in McElheney v. Workers’ Compensation Appeal Board (Kvaerner Philadelphia Shipyard), in which the Court held that the Workers’ Compensation Act applies to an injury suffered by a claimant while working on a ship in dry dock even though that injury also fells within the coverage of the Longshore Act.

Supersedeas Fund Reimbursement
In J.P. Lamb Construction, Inc. v. Workers’ Compensation Appeal Board (Bureau of Workers’ Compensation), the Commonwealth Court affirmed that Section 443(1) of the Act allows reimbursement from the Supersedeas Fund if the following conditions are met:
  1. A supersedeas must have been requested;
  2. The supersedeas request must have been denied;
  3. The supersedeas request must have been made in a proceeding under Sections 413 or 430 of the Act;
  4. Payments continued based upon the order denying supersedeas; and,
  5. It is determined in the final outcome of the proceedings that compensation was not, in fact, payable.
Interestingly, in this case, there was never a medical dispute about claimant’s entitlement to compensation; rather, the only issue was whether compensation was, in fact, payable. Accordingly, because the Courts eventually ruled that compensation was not payable, the employer/carrier was entitled to reimbursement from the Supersedeas Fund.

Appeals – Don’t Wait Until the Last Minute
Two recent cases highlight the importance of promptly evaluating all workers’ compensation decisions. In SPS Technologies v. Workers’ Compensation Appeal Board (Marko), the Commonwealth Court ruled that an appeal from a Workers’ Compensation Appeal Board decision, which is incorrectly filed with the Appeal Board and not received by the Commonwealth Court within thirty (30) days of the Board’s decision, is untimely. Then, in Ludwikowski v. Workers’ Compensation Appeal Board (Dubin Paper Co.), the Court ruled that an appeal from a Workers’ Compensation Judge’s decision must be mailed directly to the Board within twenty (20) days from the “circulation date” of the decision. In this case, claimant’s counsel sent his appeal documents by Federal Express on the 20th day from the date of the WCJ decision, and the appeal was not received until the next (the 21st) day. Because any appeal sent by means other than the Post Office must be received no later than twenty (20) days after the circulation date, it was untimely filed and had to be quashed.

Utilization Reviews – What Can a WCJ Review?
Muddying the waters a bit, the Commonwealth Court ruled in Gazzola v. W.C.A.B. (Ikon Office Solutions), that a WCJ has jurisdiction to rule upon the adequacy of a Utilization Review Organization’s pursuit of records, including whether the records were mailed in a timely manner or there was a reasonable excuse for not supplying the records in a timely matter or at all. The WCJ can then decide whether to uphold the determination based on the failure to provide the records or to vacate the determination and order that the records be sent to a reviewer for a URO determination on the merits of whether the treatment was reasonable and necessary. The WJC cannot, however, rule on the merits of whether the treatment was reasonable and necessary.

Pension Offsets
In The Pennsylvania State University/The PMA Insurance Group v. W.C.A.B. (Hensal) and Department of Public Welfare/Western Center v. W.C.A.B. (Cato), the Commonwealth Court has finally provided some clarity about the nature of evidence a WCJ may consider when ruling on the propriety of a pension offset. In these cases, the Court ruled that, because an employer cannot provide evidence of actual pension contributions for the use of an individual member of a defined benefit pension plan, it may meet its burden of establishing the amount of the pension offset with expert actuarial evidence, if the testimony is accepted as credible.