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.

A New “Diehl” on IREs – Act Promptly

In Diehl v. Workers’ Compensation Appeal Board (IA Construction), the Commonwealth Court ruled that employers that do not request an Impairment Rating Exam (“IRE”) in a timely manner, i.e., until after the expiration of the 60-day period following the 104-week total disability period, must either perform a work availability analysis under the Kachinski standards or conduct a Labor Market Survey. This decision dramatically changes how employers and employees will view IREs. It is also likely that the employer in this case will seek review by the Pennsylvania Supreme Court.

May 2008 Edition
Volume II
Number 5

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Even During a Termination Petition, a WCJ Can Amend the NCP

A Workers’ Compensation Judge may amend the description of a work injury listed in a Notice of Compensation Payable if it is materially incorrect. The WCJ may do so if the evidence supports such a conclusion, even if the claimant has not filed a review petition and even in the context of a termination petition. That’s the Commonwealth Court’s decision in City of Philadelphia v. Workers’ Compensation Appeal Board (Smith).

Child Support – Claimants with Arrearages Are Entitled to Receive $5,000.00

Clarifying the recently enacted statute, the Commonwealth Court, in Faust v. Walker, has ruled that, when distributing funds from a personal injury settlement (including workers’ compensation or occupational disease cases) to a person who is subject to a child support order and owes arrearages under 23 Pa.C.S.A. §4308.1, the first $5,000.00 of the proceeds are not subject to attachment. In other words, the injured worker is entitled to the first $5,000.00 of the proceeds, then counsel fees and costs are deducted, with the balance applied to the child support lien.

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.

Notice of Ability to Return to Work Must be Issued “Promptly”

In Melmark Home v. Workers’ Compensation Appeal Board (Rosenberg), the Commonwealth Court ruled that an employer must issue a Notice of Ability to Return to Work (NARW) within a reasonable time after it receives the relevant report, lest it becomes stale. The employer must also wait a reasonable amount of time after providing notice to a claimant before acting upon the information. The Court declined, however, to impose a strict thirty (30) day requirement on employers for issuing an NARW.

Employers’ Ability to Request Diagnostic Testing Limited

When an employer seeks to compel an injured worker to undergo diagnostic testing, it must demonstrate that the testing is necessary, involves no more than minimal risk, and is not unreasonably intrusive. In Peters Township School District v. Workers’ Compensation Appeal Board (Anthony), the Commonwealth Court held that an employer was not entitled to require a claimant to submit to a “diagnostic test 72-ambulatory EEG” prescribed by a physician who performed an independent medical examination.

Look at Economic Realities When Calculating the Average Weekly Wage

When calculating an injured worker’s average weekly wage, a Workers’ Compensation Judge should consider the “economic reality” of the employee’s wages, according to the Commonwealth Court in Mullen v. Workers’ Compensation Appeal Board (Mullen’s Truck & Auto Repair). In Mullen, the Court ruled that the WCJ properly calculated the claimant’s average weekly wage based upon his net business income, which more accurately reflected his earnings, rather than his W-2 wages. In this case, the claimant was an employee and the president and sole owner of a Subchapter S corporation.