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.

Bilateral Losses May Entitle Workers to Indemnity Benefits, Even If They Are Working

In a decision almost certain to reach the Pennsylvania Supreme Court, the Commonwealth Court has ruled that, under Section 306(c)(23) of the Act, there is a presumption of total disability for workers with certain bilateral losses, requiring appropriate compensation without regard to a claimant’s earning power. Because Employer in this case – Allegheny Power Service Corp. v. Workers’ Compensation Appeal Board (Cockroft) – stipulated that Claimant suffered such a severe bilateral loss and the WCJ found that Claimant remained totally disabled under Section 306(c)(23), the employer was obligated to pay total disability benefits. Section 306(c)(23) provides that, “Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability, to be compensated according to the provisions of [Section 306](a).”

August 2008 Edition
Volume II
Number 8

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A Workers’ Compensation Judge Has Jurisdiction to Remand a URO

In HCR ManorCare v. Workers’ Compensation Appeal Board (Bollman), the Commonwealth Court ruled that, although a Workers’ Compensation Judge lacks jurisdiction to decide the merits of a Utilization Review petition, the WCJ does have jurisdiction to decide the issues of the adequacy of the URO’s pursuit of an appropriate verification form, as well as the URO’s and the providers compliance with applicable provisions of the Pennsylvania Code.

Subrogation Available Despite a C&R if There Was a Mutual Mistake

That’s the Commonwealth Court’s decision in Gorman v. Workers’ Compensation Appeal Board (Kirkwood Construction), in which the Court head that an employer is entitled to payment of its subrogation lien even though the parties had entered into a Compromise and Release Agreement (C&R), which stated that there was no lien or potential lien for subrogation. In particular, the WCJ found no evidence that a potential third party action was considered by the parties when they negotiated the C&R, and determined that the parties were mistaken in the relevant subrogation lien averment. Consequently, the WCJ set aside the C&R based upon a mutual mistake.

On a Termination, There Must Be a Change in Claimant’s Condition

In order to terminate a Claimant’s benefits, a WCJ must consider whether Claimant’s physical condition has changed materially since the date of the most recent prior decision. In this case, the Court remanded the case in order for the (second or subsequent) WCJ to make a factual finding whether claimant’s condition had changed after the date of the first (or most recent prior) decision by a WCJ. That is the Commonwealth Court’s ruling in Prebish v. Workers’ Compensation Appeal Board (DPW/Western Center).

What’s Good For The Claimant is Good for the Employer

An employer may enter a judgment in the court of common pleas based upon a WCJ’s Order directing payment by an employee to an employer of a liquidated sum in satisfaction of the employer’s right to subrogation. In United Parcel Service and Liberty Mutual Insurance Co. v. Hohider, the Commonwealth Court ruled that, although Section 428 of the Act, 77 P.S. § 921, permits only employees or dependents to enter a judgment in a court of common pleas as a result of an unpaid Order by a WCJ, precluding an employer from doing so would render the WCJ’s order a nullity. The Court based its opinion upon case law and Section 319 of the Act.