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.

Specific Loss Award Calculations – Look to Initial Employer

Under Section 309 of the Workers' Compensation Act, for purposes of a claim for a specific loss, an employer is deemed to the employer at the time of the initial injury, even if the claimant has changed employers. Further, the claimant's average weekly wage should be calculated based on the wages earned with the employer at the time the claimant suffered the specific loss. So ruled the Pennsylvania Supreme Court in Lancaster General Hospital v. Bureau of Workers' Compensation Appeal Board (Weber-Brown).

June 2012 Edition
Volume VI
Number 5

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Disfigurements Must Be Noticeable

So ruled the Commonwealth Court in Walker v. Workers' Compensation Appeal Board (Health Consultants). In the case, the Court ruled that under Section 306(c)(22) of the Workers' Compensation Act, 77 P.S.§ 513(22), a nose injury that amounts to a "slight crookedness" that is not "noticeably disfiguring," does not meet the burden of showing all necessary elements for a disfigurement award.

Pension Offsets May be Based on Prior Pension Status

In yet another nuance on pension offsets, the Commonwealth Court ruled in United Airlines v. Bureau of Workers' Compensation Appeal Board (Gane) that an employer seeking an offset for pension benefits received against benefits payable under the Workers' Compensation Act may establish that it funded a pension plan, and is entitled to an offset, regardless whether other employers or the United States Federal Pension Benefits Guarantee Corporation (PBGC) has taken over the plan and assumed liability.

Secondary Liability – Court Finds a Way to Attach Liability

In Six L's Packing Co. v. Workers' Compensation Appeal Board (Williamson), the Pennsylvania Supreme Court essentially ruled that if an independent contractor does not have workers’ compensation insurance, the statutory employer would be responsible. In other words, the Court placed responsibility/imposed liability upon a statutory employer when it failed to confirm that its independent/subcontractor failed to have workers’ compensation insurance.

In reaching its conclusion, the Court analyzed Sections 203 and 302(a) of the Workers' Compensation Act and concluded that it is "plain enough that the Legislature meant to require persons (including entities) contracting with others to perform work which is a regular or recurrent part of their businesses to assure that the employees of those others are covered by workers’ compensation insurance, on pain of assuming secondary liability for benefits payment upon a default.”

Specific Loss – Judge Consider All Factors

When determining whether a claimant has suffered the specific loss of an arm, under Section 306(c) of the Workers' Compensation Act, 77 P.S. § 513(3), there is no bright-line test, and a body part need not be 100 percent useless in order for the loss to qualify as being for all practical intents and purposes. Rather, the Workers' Compensation Judge must evaluate the degree to which a claimant may continue to use the hand, wrist and forearm. This is according to the Commonwealth Court in Miller v. Workers' Compensation Appeal Board (Wal-Mart).

Termination for Misconduct

Under the Workers' Compensation Act, an injured worker is not entitled to disability benefits if the worker is terminated for misconduct that amounts to lack of good faith -- i.e., reporting to work intoxicated with a blood alcohol level of .108 -- rather than the work-related injury. This unsurprising decision was in BJ's Wholesale Club v. Workers' Compensation Appeal Board (Pearson).

Total Disability Benefits – No Reinstatement for Funded Employer

In Sladisky v. Workers' Compensation Appeal Board (Allegheny Ludlum Corp.), the Commonwealth Court ruled that a claimant is not entitled to a reinstatement of total disability benefits merely because his light-duty job with another employer ended, even if the job was funded by the pre-injury employer. Rather, the claimant is still required to the elements necessary for a reinstatement of total disability after collecting 500 weeks of partial disability, or show that the disability has increased.