Workers' Comp In-Cites
Welcome to the latest edition of Schaff & Young's Workers' Comp In-Cites. Designed to provide our clients with practical insight, Workers' Comp In-Cites outlines recent developments in Pennsylvania workers' compensation law and explains 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.
An Impairment Rating of Greater Than 50 Percent Does Not Preclude an Employer from Seeking a Modification of Benefits
That’s the long-awaited ruling in Sign Innovation v. Workers’ Compensation Appeal Board (Ayers), in which the Commonwealth Court ruled that an employer may seek modification of disability benefits even though an impairment rating evaluation (IRE) revealed that the claimant had an impairment of 50 percent or more.

January 2008 Edition
Volume II
Number 1

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A WCJ May Amend an NCP – Almost Anytime
In Sears Logistic Services v. Workers’ Compensation Appeal Board (Preston), the Commonwealth Court ruled that a Workers’ Compensation Judge may amend a Notice of Compensation Payable even in the absence of a review petition filed by the claimant. The mistake in the NCP must relate to a fact or condition that existed when the NCP was executed.

Identical/Similar Treatment – Different Providers: You Need a Separate UR for Each
An employer may not deny payment for medical care based upon a prior utilization review determination that similar treatment rendered by a different provider was unreasonable and unnecessary, according to the Commonwealth Court in Schenck v. Workers’ Compensation .

You Can’t Appeal a Remand Order
An Order of the Workers’ Compensation Appeal Board remanding a matter to a Workers’ Compensation Judge for further proceedings is interlocutory unless if falls within one of the exceptions under Pa.R.A.P. Rule 311(f). Thus, an Order remanding a case to a WCJ to determine what costs are due is not appealable. So says the Commonwealth Court in Peterson v. Workers’ Compensation Appeal Board (Wal Mart and CMI, Inc.).

Intoxication as an Affirmative Defenses to the Coming and Going Rule Is a Viable Defense Only if the Intoxication Was the “Cause in Fact” of the Injury
In order for intoxication to be an affirmative defense to a claim petition, an employer must establish that the employee’s intoxication was “the cause in fact” of the injury, not merely the proximate cause or substantial faction. That is the ruling of the Commonwealth Court in Clear Channel Broadcasting v. Workers’ Compensation Appeal Board (Perry). The Court also ruled that, when a claimant establishes that an injury falls within at least one exception to the “coming and going rule,” the claimant is not required to show that the he or she was engaged in the furtherance of the employer’s business at the time of the injury.

No Stacking of Wages for Volunteer Firefighters
In Ballerino v. Workers’ Compensation Appeal Board (Darby Borough), the Commonwealth Court ruled that volunteer firefighters may not stack their actual pre-injury wage with the statutorily presumed average weekly wage under Section 601 of the Act. Rather, the Act sets a minimum average weekly wage for all volunteer firefighters injured in the course of their volunteer efforts..

Payment of Disfigurement Benefits Does Not Toll the Statute of Limitations
The payment of specific loss benefits for disfigurement, does not constitute compensation and therefore, does not toll the running of the section 413(a) three-year statute of limitation period following a commutation of benefits, according to the Commonwealth Court in Stock v. Workers’ Compensation Appeal Board (Food Chek Shopping Bag).

A Claimant With Two Injuries May Only Receive Disability Benefits for One
In Kane v. Workers’ Compensation Appeal Board (Glenshaw Glass Company), the Commonwealth Court ruled that, when two injuries are each, in and of themselves, totally disabling, a claimant may receive payment for only the first injury. When the second injury occurs, the insurer responsible for payment of benefits for the first injury remains continues to be liable. In addition, the claimant’s entitlement to benefits for the second injury shall be suspended until entitlement to benefits from the first injury changes.

A C&R May Not Be Approved If the Claimant is Deceased
In Miller v. Workers’ Compensation Appeal Board (Electrolux), the Commonwealth Court affirmed that a Compromise and Release Agreement is not enforceable when the injured worker dies prior to its approval and there was no evidence that the Employer’s actions were dilatory or in any other way a deliberate attempt to delay final approval of the C&R.