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.

Expert Testimony Must Be Unequivocal, Including Testimony About Past Injuries

In O'Neill v. Workers' Compensation Appeal Board (News Corp. Ltd.), the Commonwealth Court rule that testimony by a medical expert, which expresses skepticism about a previously-accepted work-related injury/diagnosis, may be competent, credible and sufficient to satisfy the employer's burden in a termination petition. Even if a medical expert admits to uncertainty, reservation or lack of information with respect to medical details, the testimony remains unequivocal provided the expert expresses belief that, in his or her professional opinion, a fact exists. The Court also ruled that, if deposition testimony is not the basis for an award, then the deposition testimony is not related to the matter at issue and therefore, litigation costs associated with the deposition testimony are not reimbursable under Section 440(a) of the Act.

October 2011 Edition
Volume V
Number 10

Schaff & Young, P.C.
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Each Employer Only Responsible For Its Share of Hearing Loss Benefits

or purposes of a hearing loss claim under Section 306(c)(8)(iv) of the Workers' Compensation Act, 77 P.S. § 513(8)(vi), when more than one employer is responsible for a claimant's hearing loss, each employer is liable for only the hearing impairment caused by each employer. In addition, a corporation is a not successor-in-interest when there was no merger or consolidation, the transaction expressly excluded workers' compensation claims, there is no allegation that the transaction was fraudulent, i.e., to escape liability to pay compensation or defraud creditors, and there is no indication that the sale was not for fair value. That is the holding of the Commonwealth Court in McClure v. Workers' Compensation Appeal Board (Cerro Fabricated Products and PMA Group).

Psychological Injuries – Robbery is Foreseeable

That is right. In PA Liquor Control Board v. Workers' Compensation Appeal Board (Kochanowicz), the Commonwealth Court ruled that, in a claim for a psychological injury, a claimant must establish that the injury was the result of abnormal working conditions not "normal" in the claimant's job. Because of the frequency of liquor store robberies, as well as the training provided to employees regarding store robberies, robberies of liquor stores are a normal condition for retail liquor store employment in today's society. Thus, a claim for a psychic injury following a gunpoint robbery must fail. In a dissenting opinion, Judge Cohn Jubelirer argued that the majority opinion overemphasizes the role played by the foreseeability of any given workplace event, transforming them into normal working conditions.

Positive Work Orders – Courts Are More Willing to Deny Benefits

One trend, as shown in Lewis v. Worker's Compensation Appeal Board (Andy Frain Services, Inc.), and Habib v. Workers' Compensation Appeal Board (John Roth Paving Pavemasters), is that courts are more willing than ever to deny benefits for violations of positive work order. Thus, a claimant, who violates a positive work order is not acting in furtherance of the interest of the employer, and does not meet the burden of proving he was injured within the scope of his employment when he (1) left his designated work station and wandered the premises of the employer, (2) did not use his radio to report any problems as directed, and (3) abandoned his position to the detriment of the employer.

Fatal Claims – Still Must Prove Death Occurred in the Course and Scope of Employment

In a fatal claim petition, the claimant bears the burden of demonstrating that the decedent's injury arose in the course of employment and was causally related thereto. If the record fails to provide where the injury occurred, how the injury occurred, when the injury occurred and, most importantly what the employee was doing when the injury occurred, then the claimant has failed to establish that Decedent was injured in the course and scope of employment. So ruled the Commonwealth Court in Werner v. Workers' Compensation Appeal Board (Greenleaf Service Corp.).

Consider Claimant’s Status At the Time of the Impairment Rating Evaluation

An en banc Commonwealth Court, in Westmoreland Regional Hospital v. Workers' Compensation Appeal Board (Pickford), has ruled that an Impairment Rating Evaluation (IRE) performed pursuant to Section 306(a.2) of the Act, 77 P.S. § 511.2, must be based upon the claimant's physical condition at the time of the evaluation. Thus, an IRE that assigns a zero impairment rating to a work injury is not invalid because the AMA Guides require objective evidence before a condition can be rated. In a dissenting opinion, Judge Leadbetter argued that the Majority's conclusion is contrary to the Pennsylvania Supreme Court's holding in Diehl v. Workers' Compensation Appeal Board (I.A. Construction), which reaffirmed the role of the WCJ as the ultimate fact-finder in a proceeding on a petition to modify a claimant's disability statute based on results of IRE requested by an employer more than 60 days after the claimant's receipt of 104 weeks of total disability benefits.

Presumption of Disease Causation

The Pennsylvania Supreme Court, in City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), has ruled that an expert opinion is not sufficient to rebut the presumption of disease causation under the Workers' Compensation Act, 77 P.S. §§ 1-1041.4; 2501-2626. Thus, an expert's opinion does not constitute substantial competent evidence when it is based upon unfounded supposition, rendering it legally insufficient to overcome the presumption of disease causation. In this case, the employer presented the testimony of an expert who concluded that the decedent's contraction of Hepatitis C was drug-related was based solely upon one note in the decedent’s medical records written in 1971.

Undocumented Aliens Can Receive Benefits – But Benefits May Be Modified If They Work

A claimant's status as an undocumented alien worker does not preclude him from receiving disability under the Workers' Compensation Act. When it is shown, however, that the claimant is capable of performing some work, albeit in a modified capacity, the employer is entitled to a suspension of benefits because of the claimant's undocumented status, and is not obligated to show job availability because it is presumed that an undocumented alien cannot work in this country. That is the holding by the Commonwealth Court in Kennett Square Specialties and PMA Management Corp. v. Workers' Compensation Appeal Board (Cruz).

Pay Medical Bills – Or Pay Penalties

Not surprisingly, in CVA Inc. and State Workers' Insurance Fund v. Workers' Compensation Appeal Board (Riley), the Commonwealth Court affirmed an award of penalties, holding that an employer's unilateral refusal to pay medical bills for an acknowledged work-related injury is a violation of the Act that warrants the imposition of penalties.

Withdrawal From the Workforce/Voluntary Retirement

One trend is clear. Courts are willing to suspend benefits when a worker voluntarily retires from the workforce. Thus, in Department of Public Welfare/Norristown State Hospital v. Workers' Compensation Appeal Board (Roberts), the Commonwealth Court affirmed that a worker who (1) sought and received a retirement and disability pension that precluded him from working, and (2) was capable of sedentary work but did not look for work has voluntarily withdrawn from the workforce, thereby entitling the employer to a suspension of benefits.

Unemployment Compensation is Not Part of the Average Weekly Wage Calculation

Unemployment compensation benefits are not included in the calculation of an injured worker's average weekly wage under Section 309(d) of the Workers' Compensation Act, according to the Commonwealth Court in Lenzi v. Workers' Compensation Appeal Board (Victor Paving).

Supersedeas Fund Reimbursement Only Available to the Responsible Employer

Consistent with the plain language of the Act, only the liable employer is entitled to reimbursement from the Supersedeas Fund. Thus, when a defendant is determined not to be the responsible employer, it cannot receive Supersedeas Fund reimbursement and must instead seek reimbursement from the otherwise responsible party. That is the decision of the Commonwealth Court in GMS Mine Repair & Maintenance, Inc. v. Workers' Compensation Appeal Board (Way).