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.

Equivocal Medical Testimony Is Not Enough; Timely Denials Aren’t Illegal

Equivocal medical testimony based solely upon conjecture is incompetent and an insufficient basis upon which a Workers' Compensation Judge may base his or her decision, according to the Commonwealth Court in Potere v. Workers' Compensation Appeal Board (KEMCORP).

In addition, the Court ruled that an employer's timely issuance of a Notice of Compensation Denial (“NCD”) does not constitute an illegal supersedeas when an employer first issues a Notice of Temporary Compensation Payable (“NTCP”) stating that, although claimant sustained a work-related injury, no disability resulted.

June 2011 Edition
Volume V
Number 6

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Voluntary Retirement – The Burden Is on the Employer

That’s the holding of the Commonwealth Court in Keene v. Worker's Compensation Appeal Board (Ogden Corp.). In this case, the Court held that when an employer seeks a suspension of benefits based upon a claimant's alleged voluntary retirement, a claimant's failure to seek employment is relevant only after the employer initially proves that the claimant has voluntarily retired from the workforce. An employer cannot rely upon a claimant's failure to seek work to prove voluntary retirement from the workforce because a claimant has no duty to seek work until the employer meets its initial burden to show a voluntary retirement.

Application for Fee Reviews – Must Be an Accepted Injury

The Department of Labor and Industry appropriately rejected a healthcare provider's Application for Fee Review because it sought to resolve an insurer's denial of liability rather than the amount and timeliness of payments for a particular treatment under the Workers' Compensation Act, according to the Pennsylvania Supreme Court in Crozer Chester Medical Center v. Department of Labor and Industry, Bureau of Workers' Compensation, Health Care Services Division. Justice Baer filed a dissenting opinion in which Justices McCaffery and Todd joined, arguing that the Notice of Compensation Payable (“NCP”) issued by the employer, through the insurer, is a binding admission of liability, and a provider should be permitted to petition the courts for mandamus to compel the Department to entertain a fee review petition in the matter.

Calculating the Average Weekly Wage – Use the Method Under the Act

In Pike v. Workers' Compensation Appeal Board (Veseley Brothers Moving), the Commonwealth Court ruled that the method specified for calculating a claimant's average weekly wage under Section 309(d) of the Workers' Compensation Act, 77 P.S. § 582(d), should be used unless the injured worker establishes that the method used would lead to a grossly and demonstrably inaccurate measure of a worker's weekly wage. In addition, a claimant is bound by his or her filed tax return for purposes of the AWW calculation when deducting business expenses from his total gross income.

Supreme Court to Decide Cases

The Pennsylvania Supreme Court has agreed to decide cases involving the following issues:

1. Department of Labor & Industry v. Workers' Compensation Appeal Board (Excelsior Insurance)

Issue 1: Whether the payments made by Excelsior Insurance to Claimant, for which Excelsior Insurance sought reimbursement from the Supersedeas Fund, constituted payments of compensation within the meaning of Section 443 of the Workers' Compensation Act ("Act"), 77 P.S. § 999(a), and were, therefore, subject to reimbursement by the Supersedeas Fund, or whether such payments constituted the payment of costs associated with obtaining the settlement of Claimant's third-party tort action under Section 319 of the Act, 77 P.S. § 671.

Issue 2: Whether equity requires that the Supersedeas Fund reimburse the insurer's pro rata share of attorney fees and costs incurred by a claimant in recovering from a third-party tort feasor?

2. Payes v. Workers' Compensation Appeal Board (Commonwealth of PA/State Police)

Issue: Whether the Commonwealth Court erred as a matter of law in concluding that the Claimant was not exposed to abnormal working conditions when the WCJ found that he was exposed to an unusual event which made his job more stressful than it had been.

3. Tooey v. AK Steel Corp.; Landis v. A.W. Chesterton Co.; Landis v. A.W. Chesterton Co.

Issue 1: Whether application of 77 P.S. § 411(2), the "disease manifestation" provision of the Pennsylvania Workers' Compensation Act ("Act"), in concert with 77 P.S. § 481, the "exclusive remedy" provision of the Act, results in an unconstitutional denial of the "reasonable compensation" mandate of Article III Section 18 of the Pennsylvania Constitution, which underlies the historical quid pro quo worker's compensation bargain, for a latent occupational disease that is invariably non-compensable under the Act?

Issue 2: Whether it is a violation of the Open Courts and Remedies Clause of Article I Section II of the Pennsylvania Constitution and the Due Process and Equal Protection Clauses of the federal and state constitutions to foreclose a common-law remedy in exchange for providing a wholly emancipated "substitute remedy" in contravention of the "reasonable compensation" mandate of Article III Section 18 for an occupational disease which is invariably non-compensable under the Act?

Issue 3: Whether the plain language of 77 P.S. § 411(2) defines an "injury" under the Act such that it excludes from its definition an occupational disease that first manifests more than 300 weeks after the last occupational exposure to the hazards of such disease, so that the exclusivity provision of 77 P.S. § 481 is not invoked?