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.

Claimant Can Establish the Right to Receive Benefits, Even After a Termination is Granted

In National Fiberstock Corp. (Greater N.Y. Mutual Life Insurance Co.) v. Workers’ Compensation Appeal Board (Grahl), the Commonwealth Court ruled that when a claimant establishes a change in her physical condition, the doctrine of res judicata (issue preemption) does not prevent the employee from seeking a reinstatement of benefits, even if a termination petition had been granted previously.

October 2008 Edition
Volume II
Number 10

Schaff & Young, P.C.
One South Broad Street
Suite 1650
Philadelphia, PA 19107
P: 215-988-0090
F: 215-988-0091

Chain of Custody Controls With Drug Tests

An employer’s failure to independently establish the required chain of custody for a worker’s drug test sample in a Claim Petition precludes the employer from using the same drug test as proof in a subsequent suspension petition that the Claimant’s pre-injury job was unavailable because of his own misconduct. That is the ruling of the Commonwealth Court in Erisco Industries, Inc. and Inservco Insurance Services, Inc. v. Workers’ Compensation Appeal Board (Luvine).

Violations of Work Orders – The Defense Doesn’t Apply if the Activity Was Part of the Worker’s Job Duties

That’s the ruling in Scott v. Workers’ Compensation Appeal Board (Ames True Temper Inc.), in which the Commonwealth Court ruled that an injured worker who engaged in an activity that was part of his work duties, even though the activity in direct violation of a positive work order, is entitled to benefits under the Workers’ Compensation Act. In this case, the employer alleged that the Claimant violated a positive work order when he removed an object from a metal press.

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).

A Contest is Reasonable if the Employer Did Not Have Causation Evidence at the Time the Denial Was Issued

In Hansen v. Workers’ Compensation Appeal Board (Stout Road Assocs.), the Commonwealth Court held that an employer establishes a reasonable basis to contest a claim petition when, at the time it issued a Notice of Compensation Denial, it had not received evidence establishing a causal connection between the injury and the claimant’s employment.

Fee Reviews Not Appropriate When the Employer Disputes Liability

When an employer/insurer disputes its liability for an alleged work injury, an application for fee review is premature and inappropriate, according to the Commonwealth Court in Crozer Chester Medical Center v. Dept. of Labor and Industry. What makes this case unusual is the fact that the employer had issued a Medical Only Notice of Compensation Payable that appeared to encompass the treatment under review. The employer disputed this, however, and the Court agreed that the dispute precluded the Bureau from hearing the fee review petition.