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.

Use of Actuarial Data Permissible When Calculating Pension Offsets

The use of actuarial data to calculate pension offsets for injured employees who also receive pension benefits from a defined benefit plan is permissible, according to the Pennsylvania Supreme Court in Commonwealth v. Workers' Compensation Appeal Board (Harvey). In essence, the Court affirmed the procedure that has been used by the Commonwealth and others for many years to calculate these offsets, but also affirmed the “practical necessity of expert opinion testimony in matters [such as this],” leaving the door open for claimants to present rebuttal actuarial testimony.

May 2010 Edition
Volume IV
Number 5

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No Offset for Furlough Benefits

That was the Pennsylvania Supreme Court’s holding in Kelly v. Workers’ Compensation Appeal Board (US Airways Group, Inc.), in which the Court ruled that an employer is not entitled to a severance benefit offset for a furlough allowance under Section 204(a) of the Workers' Compensation Act because a severance benefit is contingent on the dismissal of an employee, whereas a furloughed employee may be recalled to work and therefore has not been dismissed from employment.

Court Addresses Intoxication Defense & Timing for Stopping Temporary Benefits

The Commonwealth Court tackled both issues in Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board (Braun), holding that, in order for intoxication to be an affirmative defense to a Claim Petition, an employer must establish that the employee’s intoxication was “the cause in fact” of the injury. The Court also ruled that, under Section 406.1 of the Act, a Notice Stopping Temporary Compensation Payable must be sent or filed within five days of the end of the last day of the insurer's payment cycle, thus preventing employers from being penalized for paying benefits early in a payment period.

Turn Over the Password

In Shaw v. Workers’ Compensation Appeal Board (Melgrath Gasket Co.), the Commonwealth Court ruled that although there is no rule prohibiting a medical provider from sending medical records to a URO on a CD-ROM, if the provider protects the contents with a password, that password must be provided to the URO by the URO's deadline in order to sufficiently comply with Utilization Review Request.

Modification of Benefits

The Commonwealth Court addressed two common issues that arise in modification petitions in Kleinhagan v. Workers’ Compensation Appeal Board (KNIF Flexpak Corporation). First, the Court ruled that the crucial factor in determining what constitutes "prompt" service of a Notice of Ability to Return to Work for the purposes of Section 306(b)(3) of the Act is the impact on the claimant. If the claimant receives the Notice before employer attempts to modify benefits and within a reasonable time after the employer's receipt of medical evidence that claimant is capable of work, then claimant is not adversely impacted and there are no issues with service. The Court also held that when an employer seeks to modify a claimant's benefits based upon a labor market survey, the claimant bears the initial burden of raising the issue of a vocational expert's failure to supply claimant with a copy of the survey as a defense to the petition.