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.

Unemployment Benefits Not Included in Calculation of Average Weekly Wage

Unemployment Compensation benefits are not included in the calculation of average weekly wage under Section 309 of the Workers' Compensation Act. However, supplemental unemployment benefits payments to a claimant under a collective bargaining agreement are "in the nature of wages," and should be included in the calculation of the average weekly wage. That is the holding of the Commonwealth Court in Bucceri v. Workers' Compensation Appeal Board (Freightcar America Corp.).

December 2011 Edition
Volume V
Number 12

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Need an Expert Who Acknowledges the History to Modify an NCP After Termination

In Namani v. Workers' Compensation Appeal Board (A. Duie Pyle), the Commonwealth Court held that a medical expert's opinion on causation is legally insufficient if the expert is unaware of or does not address an earlier decision granting a termination of benefits, because the opinion on causation is contrary to the established facts of record and based on inaccuracies. In addition, res judicata bars a claimant from modifying a Notice of Compensation Payable when evidence of an injury is available to the claimant before a termination petition is granted.

Competent Evidence Needed for a Specific Loss

In order to establish a specific loss, a claimant must present medical evidence to show that the loss of use is permanent and for all practical intents and purposes, according to the Commonwealth Court in Argyle v. Workers' Compensation Board (John J. Kane McKeesport Regional Center and UPMC Work Partners Claims Management). The court also held that if the medical evidence presented is contrary to the established facts in the record or based on assumptions not in the record, the medical opinion is valueless and not competent.

The “Dual Persona” Doctrine Provides Very Limited Statutory Immunity Under the Workers' Compensation Act

In Soto v. Nabisco Inc., the Superior Court limited the use of the "dual persona" doctrine, which permits a worker to sue his or her employer only if the employer has a distinct and separate role that could subject it to liability for injuries to an employee. Absent such circumstances, an injured worker is barred by the exclusivity provisions of the Workers' Compensation Act, 77 P.S. § 481(a), from recovering against an employer, even if the employer is the successor in interest to a prior employer.

Supersedeas Fund Reimbursement Permitted When Claimant Should Not Have Received Benefits

Under Section 443(a) of the Act, an employer is entitled to reimbursement from the Supersedeas Fund when (1) the WCJ found material misrepresentations by Claimant at the time Employer issued the Notice of Compensation Payable, and (2) the employer made four years of compensation payments to someone who was not entitled to those payments. So held the Commonwealth Court in Comcast Corp. v. Workers' Compensation Appeal Board (Jones).

In addition, in Bureau of Workers' Compensation v. Workers' Compensation Appeal Board (Excalibur Insurance Management Service), the Court also ruled that a Workers' Compensation Judge and the Appeal Board have subject matter jurisdiction to adjudicate requests for Supersedeas Fund Reimbursement when the decisions and orders under review were based on the Workers' Compensation Act and not the Heart and Lung Act. Further, when an employer is self-insured for workers' compensation purposes, and is required to pay Heart and Lung benefits in addition to workers' compensation benefits, two-thirds of the amount paid automatically represent workers' compensation benefits.

Utilization Review Determinations Can’t Foreclose Death Claims

That is the import of the Commonwealth Court holding in J.D. Landscaping v. Workers' Compensation Appeal Board (Heffernan), in which the Court ruled that, because a Utilization Review determination concerns only the reasonableness and necessity of the treatment, the determination is irrelevant in determining whether a decedent's death was causally related to the decedent's work-related injury. Therefore, even if a UR determination finds medical treatment to be unnecessary, death as a result of the unnecessary medication treatment is still causally linked to the decedent's work-related injury.

No Second Bite at the Apple

A claimant is precluded from raising the same cause of action, or the same previously litigated and validly determined issues of law or fact, regardless of whether the WCJ's Order specifically dismissed the Claim Petition "with prejudice," because the language is mere surplus under the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges. This is the ruling of the Commonwealth Court in Boyertown Foundry and ESIS Wilmington WC v. Workers' Compensation Appeal Board (Martinez).