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.

Not a New Diehl?

On June 24, 2008, the Commonwealth Court vacated its April 28, 2008 Opinion and Order in the highly controversial Diehl case, in which the 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. The case will instead be listed for reargument.

July 2008 Edition
Volume II
Number 7

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Subrogation Remains Absolute

An employer has an absolute right of subrogation from a claimant’s third party recovery when the claimant received compensation payments from the employer's insurer, which accepted liability for the work injury. The Court declined to rule in Stout v. Workers' Compensation Appeal Board (Pennsbury Excavating, Inc.) that, under the facts presented, the employer and its workers' compensation insurer engaged in deliberate bad faith conduct in order to subvert the claimant's third party action, potentially barring its right to subrogation.

Termination of Benefits Permitted in a Claim Petition, Even Without a Petition for Termination – Also, No Costs if No Victory

In Watson v. Workers' Compensation Appeal Board (Special People in Northeast and Eagle Trust Management), the Commonwealth Court ruled that a Workers’ Compensation Judge may terminate benefits in a claim petition, even when no termination petition is filed, when the claimant fails to establish the ongoing nature of his or her injury.

The Court also ruled that claimant was not entitled to an award of litigation costs when the employer admitted its obligation to pay medical expenses, but disputed its obligation to pay indemnity benefits, and the WCJ declined to award any wage losses. Under the circumstances, the claimant did not prevail on any disputed issue before the WCJ, and is not entitled to an award of costs.

The Board Must Explain Its Decision to Modify a Disfigurement Award

That’s the holding in City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), in which the Commonwealth Court held that the Workers’ Compensation Appeal Board may modify a Workers’ Compensation Judge’s disfigurement award only if it concludes that the WCJ capriciously disregarded competently evidence by entering an award significantly outside the range of benefits most WCJs would select for a particular scar. In so doing, and to allow for meaningful appellate review, the Board must adequately explain its change in the award, including what range is acceptable under the circumstances, what most WCJs would award within that range or how the WCAB reached its conclusion that most WCJs would award greater compensation.

Termination Petitions – The Burden Remains the Same

Where there has been no prior determination of a claimant’s condition by a WCJ, an Employer meets its burden in a termination petition when it presents evidence that the claimant had fully recovered from all of the accepted work injuries, according to the Commonwealth Court in Paul v. Workers' Compensation Appeal Board (Integrated Health Services).