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.

Notice – Worker Must Have More Than a Suspicion to Give Notice

Pursuant to Section 301(c)(1) of the Workers’ Compensation Act, 77 P.S. §411(1), a worker must give notice of an occupational disease claim within 120 days from the date on which the worker discovers that the disease is job-related. Under Section 311, a claimant’s discovery of a work related disease requires more than an employee's suspicion, intuition or belief. That is the Commonwealth Court’s decision in Bullen Cos. v. Workers’ Compensation Appeal Board (Hausmann).

November 2008 Edition
Volume II
Number 11

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Presumption of an Occupational Injury Rebuttable With Credible Medical Evidence

In Patton v. Workers’ Compensation Appeal Board (Lane Enterprises, Inc.), No. 2363 C.D. 2007, the Commonwealth Court affirmed that an employer may overcome presumption that a worker suffered from a work-related occupational disease under Section 301(e) of the Workers’ Compensation Act, 77 P.S. §413, by presenting credible medical evidence that the Decedent did not suffer from an occupational disease.

An Injury While Walking to Work From a Parking Lot is Not Compensable if the Lot is Not on the Employer’s Premises

Injuries suffered crossing the street, on the way to work, are not compensable according to the Commonwealth Court in Waronsky v. Workers’ Compensation Appeal Board (Mellon Bank), when the employee was injured crossing a public street to the employer’s premises from a parking garage that was not part of the employer’s premises.

Carrier Not on the Hook for the Difference Between the Act 44 Rates and DPW Payments

That’s the Commonwealth Court’s holding in Nickel v. Workers’ Compensation Appeal Board (Agway Agronomy), in whichthe Court held that a healthcare provider may not collect the difference between the provider’s charge (as repriced under Act 44) and the amount of a DPW lien from an employer or its workers’ compensation if the provider has accepted DPW’s payment as payment in full.

Change in Condition Still Required for a Termination or Modification; Evidence May Include Testimony that the Employee is Faking

The Commonwealth Court’s decision in Folmer v. Workers’ Compensation Appeal Board (Swift Transportation), is one that will almost certainly engender more litigation. In Folmer, the Court ruled that, when there have been prior petitions to modify or terminate benefits, an employer must accept the adjudicated condition and establish a change in physical condition into to prove that claimant has recovered from a work-related injury. Although the evidence needed to establish a change of condition would differ in each case, an employee may meet its burden by proving that the claimant’s symptoms lacked any objective basis. Judges McGinley, Smith-Ribner and Pellegrini dissented  arguing that a change in physical condition can be shown only by objective medical evidence, not subjective testimony. In this case, the WCJ accepted testimony “that the claimant has symptom magnification and is a malingerer.”

Unemployment Offset Mandatory

Under Section 204(a) of the Workers’ Compensation Act, a Workers Compensation Judge must award an offset for unemployment compensation benefits when the amount is undisputed, whether the employer raises the issue or not. That is the decision of the Commonwealth Court in Costa v. Workers’ Compensation Appeal Board (Carlisle Corp).

C&R Language Controls – Consider Adding Language About Death & Diseases

Some sharp lawyering saved a carrier money in Crawford v. Workers’ Compensation Appeal Board (Centerville Clinics, Inc.), in which the C&R stated:

Claimant certifies that she is suffering from no know life-threatening or terminal illness(es) unrelated to her work injury and agrees that this [C&R] is null and void upon her death if not approved by a judge. See Shaffer v. WCAB (Silver & Silver, Inc.) 183 Pa. Commw. 624; 588 A.2d 1029 (1991).

Thus, the Compromise & Release Agreement was null and void because the Claimant died one day before the Judge approved the C&R.