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.

Supreme Court Clarifies Jeanes Hospital, Permits WCJs to Modify NCPs

In Cinram Manufacturing, Inc. v. Workers’ Compensation Appeal Board (Hill), the Pennsylvania Supreme Court distinguished its holding in Jeanes Hospital v. Workers’ Compensation Appeal Board (Hass), and ruled that, under Section 771 of the Act, a Workers’ Compensation Judge may make a corrective amendment to a Notice of Compensation Payable to include injuries not specifically contemplated by the original Notice without the need for a review petition. On the other hand, under Section 772 of the Act, amendments based on consequential conditions require that the claimant file a review petition.

August 2009 Edition
Volume III
Number 7

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Subrogation Liens Are Calculated Upon the Actual Attorney’s Fees Paid

An employer’s subrogation lien is based upon a pro rata share of the fee actually paid to counsel, and not the hypothetical contractual fee that might have been paid, according to the Commonwealth Court in Good Tire Service v. Workers’ Compensation Appeal Board (Wolfe).

Labor Market Surveys - Do Them Where the Claimant Resides

Although it seems obvious, in Rebeor v. Workers’ Compensation Appeal Board (Eckerd), the Commonwealth Court ruled that an employer is not required to conduct a labor market survey outside of Pennsylvania when the Claimant lived in Pennsylvania at the time of the work injury and at the time the employer conducted the survey. Thus, claimant’s subsequent relocation outside of Pennsylvania does not impose a duty on the employer to conduct a second labor market survey in another state.

You Can Suspend the Benefits of Foreign Claimants

That’s the holding in Braz v. Workers’ Compensation Appeal Board (Nicolet, Inc.), in which the Commonwealth Court ruled that an employer is not required to establish a change in condition in order to suspend the benefits of a claimant who has removed himself from the workforce by his moving to a foreign country and residing outside the United States for more than a decade.

When Medical Treatment for a Work Injury Causes a Disfigurement, Benefits Are Not Paid Concurrently

Because a disfigurement caused by medical treatment for a work-related injury is not a separate and distinct injury, specific loss benefits should not be paid concurrently and must instead begin after disability payments are no longer due and owing, according to the Commonwealth Court in Community Service Group v. Workers’ Compensation Appeal Board (Pfeiffer).

Credibility Still Matters

In Bentley v. Workers’ Compensation Appeal Board (Pittsburgh Board of Education), the Commonwealth Court affirmed that a Workers’ Compensation Judge’s credibility determination that a Notice of Ability to Return to Work was “promptly” sent may not be disturbed absent evidence that the NARW was not sent or that Claimant was prejudiced.

Claimant’s Attorney’s Fees are Included in the Calculation of an Employer’s Subrogation Lien

The percentage of disability benefits paid to a claimant’s attorney as counsel fees are included in the calculation of an employer’s subrogation lien under Section 319 of the Act according to the Commonwealth Court in Young v. Workers’ Compensation Appeal Board (LGB Mechanical).

Injuries on Breaks May Not Be Compensable – Look Carefully at the Facts

The Commonwealth Court’s decision in Department of Labor and Industry v. Workers’ Compensation Appeal Board (Savani) demonstrates how fact-specific workers’ compensation cases can be. In Savani, the claimant was injured while walking on a street, but not on the employer’s property, during a paid break. The Commonwealth Court reversed the WCJ and the Appeal Board and held that, because the claimant was not in the course and scope of her employment and was not furthering the employer’s business or affairs, her injury was not compensable.

Supersedeas Fund Reimbursement Available for Unemployment and Severance Benefits

In The Boeing Co. v. Workers’ Compensation Appeal Board (Horan), the Commonwealth Court ruled that an employer is entitled to Supersedeas Fund reimbursement for unemployment compensation and severance benefits received by a worker under Section 204(a) of the Act. Judge Pellegrini filed a dissenting opinion, arguing that Supersedeas Fund reimbursement should not have been permitted because the WCJ did not have jurisdiction to award and offset benefits and, even if he did, an “offset” is not compensation under Section 443(a) of the Act.