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.

Supreme Court Weighs In On Modification/Suspension Petitions In The Post-Kachinski Era

The Pennsylvania Supreme Court’s opinion in Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap) will only begin the debate (and litigation) about how an employer can suspend or modify a claimant’s benefits under Section 306(b) of the Act. This provision permits an employer to modify an injured worker's benefits, but does not require that a claimant be offered a job in order to establish a claimant's earning power, except when the employer itself has an appropriate opening.

The court held that earning power under Section 306(b) is based on the employer's evidence of the claimant's ability to engage in existing "substantial gainful employment" within his or her physical, medical and vocational restrictions or skills, not on whether he or she actually receives a job offer. Thus, an employer need not show that the claimant had obtained employment. The proof required to reduce or suspend a claimant's benefits must rest upon the existence of meaningful employment opportunities, and not the simple identification of jobs found in want ads or employment listings.

An employer must therefore prove a claimant's earning capacity (absent an offer of employment with the employer) with evidence that potential employers are in search of an employee (as evidenced by, among other things, job listings, placement agencies, or advertisements) within the claimant's physical, medical and vocational restrictions. The jobs that a claimant is "capable of performing" must be those jobs that are actually open and potentially available, not simply jobs that are already filled with existing employees.

A claimant may, however, present evidence that he or she pursued but failed to obtain gainful employment with the employers identified by the employer's expert, but such evidence is not proof per se of a claimant's substantial gainful employment and is not dispositive of the earning power inquiry.

The Commonwealth Court also ruled similarly in Reichert v. Workers' Compensation Appeal Board (Dollar Tree Stores).

December 2013 Edition
Volume VII
Number 8

Schaff & Young, P.C.
One South Broad Street
Suite 1650
Philadelphia, PA 19107
P: 215-988-0090
F: 215-988-0091

Court Permits Occupational Disease Claims Against Employers If They Arise After the Expiration of the 300 Week Statute of Limitations

So ruled the Pennsylvania Supreme Court in Tooey v. AK Steel Corp. In this case, the Court ruled that an occupational disease that manifests itself outside of the 300-week period prescribed by Section 301(c)(2) of the Act removes the claim from the purview of the Act, such that the exclusivity provision of Section 303(a) of the Act does not apply.

Verification of Employment Forms Must Be Signed and Dated

In McCafferty v. Workers' Compensation Appeal Board (Trial Technologies, Inc.), the Commonwealth Court ruled that an employee may return the LIBC-760 (and other) Verification forms by fax. However, the form must be dated by the claimant because the form contains information needed by an employer to compute the amount of compensation it owed.

Court Puts A Halt to Serial Submissions of the Same Medical Bills

When a provider has submitted a bill to an insurer that is denied for failing to include the documentation required under the Act, and the provider resubmits the bill again with the proper documentation and the insurer again denies the bill, the provider has 30 days following the notification of the denial of the properly documented bill to seek review of the fee dispute. So said the Commonwealth court in Gupta v. Bureau of Workers' Compensation Fee Review Hearing Office (Erie Insurance Co.). In this case, the court ruled that Section 306(f.1)(5) of the Workers' Compensation Act, 77 P.S. § 531(5) does not permit a provider to open another 30 day window simply by resubmitting a properly documented bill that has already been denied.

Carriers May Not Seek Subrogation In Common Pleas Court

In order to assert and protect a claim for subrogation under Section 319 of the Workers' Compensation Act, 77 P.S. § 671, an insurance carrier must establish its subrogation interest during the pendency of the workers' compensation proceedings. That’s the Commonwealth Court’s holding in Liberty Mutual Insurance Co. v. Excalibur Management Services.

Award of 20% Fee As An Unreasonable Contest Counsel Fee Is Not Permissible

The Commonwealth Court squarely addressed this issue in Commonwealth of Pa. v. Workers' Compensation Appeal Board (Noll), holding that when attorney's fees are assessed against an employer based upon an unreasonable contest under Section 440 of the Act, they must be based upon a quantum meruit standard, and an attorney's fee that simply adds 20% to the claimant's weekly compensation indefinitely does not relate to the work actually done and is not authorized by the Act.