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 Burden for Reinstatement of Benefits

In Bufford v. Workers' Compensation Appeal Board (North American Telecom), the Pennsylvania Supreme Court clarified the burdens in petitions to reinstate benefits, ruling that a claimant seeking reinstatement of suspended benefits must prove that his or her earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim. The claimant need not re-prove that the disability resulted from a work-related injury during his or her original employment. Once claimant meets this burden, the defendant employer must show that claimant's loss of earnings is not caused by the disability arising from the work injury.

The Court also ruled that the act of leaving post-injury employment to accept employment with another employer for reasons unrelated to the work injury is not "fault" and is therefore not a reason to bar the reinstatement of suspended benefits. The concept of "fault" applies only to job availability and those matters that specifically bar a claimant from reinstatement of benefits under the Act or relevant case law.

September 2010 Edition
Volume IV
Number 8

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A Compromise and Release Is Not Valid Until Approved

Because a Compromise and Release Agreement is not binding until it is approved by a Workers' Compensation Judge, the Commonwealth Court affirmed in McKenna v. Workers' Compensation Appeal Board (SSM Industries, Inc. and Liberty Mutual Insurance Co.), that an employer may refuse to proceed with a C&R hearing if negotiations break down. Of particular importance, in this case, the employer refused to proceed with a C&R unless the claimant signed an agreement stating that he would resign from and not seek re-employment with the defendant employer.

Expert Must Base Termination Opinion Upon Accepted Injury(ies)

In Hall v. Workers' Compensation Appeal Board (America Service Group), the Commonwealth Court affirmed that a medical expert's opinion will not support a termination of benefits if the expert does not acknowledge the accepted work injuries and does not opine that the claimant has fully recovered from those injuries. Although the medical expert need not believe that a particular work injury actually occurred, the opinion is competent if the expert assumes the presence of an injury and finds it to be resolved by the time of the examination.

Reimbursement from Third Party Settlements Includes Grace Period Fees

Reimbursement of fees and expenses from third-party settlements constitutes compensation under the Act, and employers who overpay them should be reimbursed by the Supersedeas Fund and not directly from the claimant. That is the ruling of the Commonwealth Court in Aston Township v. Workers' Compensation Board (McPartland).

Utilization Review – Provider Must Mail the Records Within 30 Days

This is also the ruling in Hall (above), in which the Court affirmed that when a medical provider does not mail the required records to a utilization review organization within thirty (30) days of the request, the URO is required to find that the treatment was not reasonable or necessary.

Surveillance Not an Invasion of Privacy if Visible to the Public

An injured worker receiving workers' compensation benefits does not have an expectation of privacy while praying in public because (1) he had a diminished expectation of privacy because of his worker’s compensation claim, (2) the Center at which he was praying was open to the public, and (3) he was praying directly in front of a window. Thus, the Superior Court affirmed the dismissal of the claimant’s lawsuit for intrusion upon seclusion and abuse of process in Tagouma v. Investigative Consultant Services, Inc.