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.

Pennsylvania Supreme Court to Address Hepatitis C Claims

In City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), the Pennsylvania Supreme Court has agreed to decide the following issue:

Whether the Commonwealth Court's decision to reverse the decision of the Workers' Compensation Appeal Board and reinstate the decision of the Workers' Compensation Judge is supported by substantial competent evidence, given (1) the rebuttable statutory presumption, under Section 301(e) of the Workers' Compensation Act, that Decedent's occupational disease, i.e., hepatitis C, arose out of and in the course of his employment as a fire fighter; and (2) the absence of any evidence establishing that Decedent was an intravenous drug user, shared needles and/or came in contact with contaminated needles.

October 2010 Edition
Volume IV
Number 9

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Impairment Rating Examinations – No Need to Show Job Availability if Requested Timely

Clarifying an issue that has been the subject of a number of appeals, the Pennsylvania Supreme Court has handed down its decision in Diehl v. Workers’ Compensation Appeal Board (I.A. Construction), ruling that an employer seeking to modify a claimant’s benefits under Section 306(a.2) of the Act based upon an Impairment Rating Examination need not produce evidence of job availability or earning power in order to change a claimant’s workers’ compensation disability status from total to partial, provided the employer is only seeking to change disability status and not the amount of compensation paid to the claimant. The Court noted that, “If the IRE is requested within the 60-day period and the claimant’s impairment rating is less than 50 percent, then the change in disability status is automatic. If, however, the employer requests the IRE outside of the 60-day window and claims that the claimant’s impairment rating is less than 50 percent, the IRE merely serves as evidence that the employer may use at a hearing before a WCJ on the employer’s modification petition to establish that the claimant’s disability status should be changed from total to partial. In that event, the IRE becomes an item of evidence just as would the results of any medical examination the claimant submitted to at the request of his employer. It is entitled to no more or less weight than the results of any other examination. The physician who performed the IRE is subject to cross-examination, and the WCJ must make appropriate credibility findings related to the IRE and the performing physician. The claimant, obviously, may introduce his own evidence regarding his degree of impairment to rebut the IRE findings.”

Retirement – Courts Must Look at the Totality of the Evidence

That’s the holding in City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), in which the Commonwealth Court ruled that, in order to show that efforts to return a claimant to the workforce would be unavailing because a claimant has retired or voluntarily withdrawn from the workforce, an employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce. The Court noted that to impose a lesser standard on the employer would be inconsistent with the humanitarian purposes of the Act.

Social Security Offsets – Not Retroactive

An employer is not entitled to a retrospective offset for Social Security benefits. To permit otherwise might subject claimants to large retrospective offsets if a large amount of time elapsed between the time the claimant received the LIBC-756 forms. Thus, based upon the Commonwealth Court’s decision in Muir v. Workers' Compensation Appeal Board (Visteon Systems LLC), it is imperative that you regularly send the LIBC-756 and other forms to claimants.

Death Benefits – Remarriage/Meretricious Relationship

Despite evidence that claimant’s widow was acting illegally (by representing to her boyfriend’s employer that she was his common law husband, and making similar statements to others), the Commonwealth Court held in PPL v. Worker's Compensation Appeal Board (Rebo), that, in a workers' compensation claim in which a party seeks to terminate the payment of spousal death benefits based upon the spouse's remarriage or the existence of a meretricious relationship, the petitioner must present proof of the actual intention of the spouse to form a new marriage contract.

Act 632 Proceedings – Collateral Estoppel

A finding in an Act 632 (now codified as 61 Pa.C.S. § 1101) proceeding that a claimant had fully recovered from his or her work-related injuries collaterally estops a WCJ from finding that the worker was not fully recovered, according the Commonwealth Court decision in Commonwealth, Dept of Corrections v. Workers' Compensation Appeal Board (Wagner-Stover).