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 Amputation May Be a New Injury

In J.G. Furniture Div. v. Workers' Compensation Appeal Board (Kneller), the Pennsylvania Supreme Court ruled that an amputation caused by an earlier work injury, for which a Final Receipt was executed, is neither a recurrence nor an aggravation of the initial injury. Rather, the amputation is a separate compensable specific loss injury and the claimant is entitled to specific loss benefits based on his wage on the date of the specific loss.

March 2008 Edition
Volume II
Number 3

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Subrogation Applies to the Claim Itself When a Claimant is Deceased

Claimants have tried for years to limit an employer’s right of subrogation. One such effort failed in Gillette v. Wurst, in which the Pennsylvania Supreme Court ruled that a workers' compensation insurer is not subrogated to the amount actually received, but to the share that the claimant (or the Estate) has the right to receive. That right, which in the case of death is governed by either the decedent's Will or the Pennsylvania intestacy statute, effectively passes to the workers' compensation insurer by virtue of its legitimate subrogation claim. The right to disclaim under the intestacy statutes and the right of subrogation under § 671 continue to exist, but an Estate cannot exercise the right to disclaim because that is a right held by the workers' compensation carrier.

Longshore Act Applies to Injuries On Dry Docks

In McElheney v. Workers’ Compensation Appeal Board (Kvaerner Philadelphia Shipyard), the Pennsylvania Supreme Court ruled that a graven dry dock is a land-based site within the jurisdiction of both the federal Longshore and Harbor Workers’ Compensation Act. Thus, an injured worker is entitled to concurrent compensation under the state and federal acts.

Use a Proper Basis to Deny a Claim

The box checked on a Notice of Compensation Denial can be the difference between a finding of a reasonable contest, versus an unreasonable contest. In Gumm v. Workers’ Compensation Appeal Board (J. Allan Steel), the Commonwealth Court ruled that a Notice of Compensation Denial was proper when the claim was disputed based upon the lack of disability.

Calculating the Average Weekly Wage – Not Just a Claimant’s “Belief”

When a Claimant works for an employer for only five days, and his wages are calculated by miles driven, types of loads being carried, and waiting time, his average weekly wage may be calculated based upon the amount earned over that period. That is the Commonwealth Court’s decision in Wellman v. Workers’ Compensation Appeal Board (Buckshot Express R-Builders, Inc.).

There Must Be Evidence of an Available Position

In Rosenberg v. Workers’ Compensation Appeal Board (Pike County), the Commonwealth Court ruled that, in a modification petition, when a claimant raises the question whether there are any available suitable jobs with an Employer, the burden shifts to the employer to contest this evidence. Satisfaction of this burden thus becomes a prerequisite to an employer’s reliance on expert testimony of the claimant’s earning power.

A Petition Under Section 306(f.1)(8) for Forfeiture Is Not the Equivalent of a Suspension or Termination Petition, and an Employer Cannot Receive Supersedeas Fund Reimbursement

In this case, the employer filed a petition alleging that benefits should be suspended for refusing reasonable medical treatment under Section 306(f.1)(8) of the Act. The WCJ granted the petition, after which the employer sought Supersedeas Fund reimbursement, which was denied. Rather, the Court, in Land O’Lakes, Inc. v. Workers’ Compensation Appeal Board (Todd), held that a forfeiture petition is not the equivalent of a suspension or termination petition under Section 413 or Section 430 of the Act. Thus, an employer may not receive reimbursement from the Supersedeas Fund as the result of a claimant’s unwillingness to receive medical treatment.

Medical Testimony Required to Support a Claim for Specific Loss

That is the holding in Jacobi v. Workers’ Compensation Appeal Board (Wawa, Inc.), in which the Commonwealth Court ruled that a claimant seeking specific loss benefits must present competent medical evidence of the permanent loss of use of the body part for all practical intents and purposes. A claimant’s testimony by itself is insufficient.