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.
Bad Faith & Retirement Are Permanent
Two recent cases have shed light on the issues of whether bad faith conduct by a claimant permanent and whether a claimant can "unretire" after a determination that he or she has retired from the workforce. In both case, the decisions favored the employer.

In Pitt Ohio Express v. Workers' Compensation Appeal Board (Wolff), the Pennsylvania Supreme Court ruled that, once a claimant's benefits have been suspended or reduced because of a bad faith refusal to pursue employment, that bad faith relieves an employer in the future from having to demonstrate the availability of a continued suitable position. Then, in Ragno v. Workers' Compensation Appeal Board (City of Philadelphia), the Commonwealth Court held that a claimant is barred from challenging a prior decision by a Workers' Compensation Judge that the claimant was retired.

February 2007 Edition
Volume 1
Number 2

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Sexual Harassment Can Form the Basis for a Psychological Injury
In Rag (Cyprus) Emerald Resources, L.P. v. Workers' Compensation Appeal Board (Hopton), the Pennsylvania Supreme Court concluded that sexually harassing comments may constitute abnormal working conditions and provide the basis for a claim for psychological injuries, even if the employment merely aggravates a pre-existing psychological condition.
Defining a Dependent Child for Purposes of a Fatal Claim
A decedent is considered to stand in loco parentis to his or her children if the children can prove that they were members of the deceased's household and actual dependents, according to the Commonwealth Court in A-Jon Contractors v. Workers' Compensation Appeal Board (DiMarzio).The Court ruled that the deceased must have intended to function as the child's parent and assume all daily responsibilities commensurate with the position. Courts must evaluate the fact of each case in order to determine whether a decedent stood in loco parentis to his or her children.

Unreasonable Contest – The Burden Remains on the Employer
In Wood v. Workers' Compensation Appeal Board (Country Care Private Nursing), the Commonwealth Court affirmed that, in a reinstatement petition, it is claimant's burden to prove that a work-related disability continues. Once the claimant meets this burden, the burden shifts to the employer to prove a reasonable contest, i.e., a conflict in the evidence existed or that contrary inferences could be drawn from the evidence. When an employer does not establish any conflicting evidence, and offers no testimony or evidence from which contrary inferences could be drawn, the contest is unreasonable.

Volunteers vs. Paid Employees– Look Closely at All of the Facts
While the standards for being either an employee or a volunteer have not changed for many years, the Supreme Court of Pennsylvania's ruling in Brookhaven Baptist Church v. Workers' Compensation Appeal Board (Halvorson) demonstrates how fact specific the cases are. Initially, the Court ruled that, to be deemed an employee, a worker must meet prove: (1) the presence of valuable consideration; (2) whether the employment was casual in character; and, (3) whether the employment was in the regular course of an employer's business. To be deemed "casual," the employment must be irregular, sporadic, or incidental. When it turned to the facts in this case, the decision surprised a lot of people. In this case, a church member had been employed only to cut the grass, and was deemed an employee under the Act. But, because trimming bushes and overhanging tree limbs were not contemplated by the parties and were not included in the payment arrangement between the parties, the work was not in the course of the employment, precluding the award of workers' compensation benefits.

Course & Scope of Employment – What is Furthering Employer's Business Interests?
Even though not actually engaged in the employer's work, an employee will be considered to have suffered an injury in the "course of employment" if the injury occurred on the employer's premises at a reasonable time before or after the work period, the Commonwealth Court of Pennsylvania ruled in Allegheny Ludlum Corp. v. Workers' Compensation Appeal Board (Hines).

In Hearing Loss Claims, Exposure Remains an Affirmative Defense
A claimant has the burden of establishing that he or she suffers from a permanent loss of hearing of greater than ten percent that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise, the Commonwealth Court ruled in Helvetia Coal Co. v. Workers' Compensation Appeal Board (Learn). But it remains an affirmative defense, however, and not a part of claimant's burden of proof in a claim, whether the claimant had been exposed to or had long-term exposure to hazardous occupational noise.