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.

Death Benefits for a Deceased Common Law Spouse

Although Pennsylvania abolished common-law marriage in 2005, it is still an issue. In Elk Mountain Ski Resort, Inc. v. Workers' Compensation Appeal Board (Tietz, deceased, and Tietz-Morrison), the Commonwealth court ruled that to establish a common law marriage under Section 307 of the Workers' Compensation Act, 77 P.S. § 561, the surviving spouse of the decedent must prove the elements of the marriage by clear and convincing evidence. Of note, the marriage here was consummated in 2004, before the legislative abolition of common law marriage in 2005.

June 2015 Edition
Volume IX
Number 5

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Social Security Offsets & Specific Losses

In Pocono Mountain School Dist. v. Workers' Compensation Appeal Board (Easterling), the Commonwealth Court addressed two issues. First, it ruled that in order to receive both total disability and specific loss benefits, a claimant need only to have suffered separate and distinct disabilities, pursuant to Section 306(d) of the Workers' Compensation Act, 77 P.S. § 513, provided the payment of specific loss benefits is withheld until all disability benefits are terminated. The Court also said that an employer is not entitled to an offset for Social Security retirement benefits if the claimant was entitled to the Social Security retirement benefits before the date of the work injury.

Only an Employee May Pursue a Third Party Action

Section 319 of the Workers’ Compensation Act, 77 P.S. 671, does not permit employers/insurers to commence an action directly against third party tortfeasors, according to the Pennsylvania Supreme Court in Liberty Mutual Insurance Co. v. Domtar Paper Co.. The right of action against a third-party tortfeasor under Section 319 of the Act remains with the injured employee, and the employer/insurer’s right of subrogation under Section 319 must be achieved through a single action brought in the name of the injured employee or joined by the injured employee. Chief Justice Saylor filed a dissenting opinion, asserting that because “the caption as stated effectively makes the injured employee the use plaintiff,” he dissents. In a separate dissenting opinion, Justice Todd “agree[d] with the majority, to the extent it preserves the right of an employer or its insurance company, as subrogee of an injured employee, to bring suit in the name of the injured employee in the capacity of a ‘use-plaintiff.'”

Subrogation – The Employee Must Provide Information About Settlements

Reed v. Workers' Compensation Appeal Board (Allied Signal, Inc.) affirms that employees cannot play games and prevent employers from perfecting their subrogation rights. The Commonwealth Court ruled that the employer's right to subrogation against an injured worker's third party tort action is automatic. When, as here, the employee refuses to disclose the amount of the settlement, the employer is entitled to a suspension of benefits. The burden is on the claimant to establish the amount of the recovery, and a claimant may not shift that burden onto the employer.

Temporary Compensation Benefits Remain Temporary If Properly Terminated

When an employer issues a Medical Only Notice of Temporary Compensation Payable, which converts to a Medical Only Notice of Compensation, and later issues a Wage Loss and Medical Notice of Temporary Compensation Payable for additional/different injuries, which it later withdraws/denies, the employer is not estopped from denying liability for the later injuries or for wage loss benefits from the original TNCP. That’s the decision of the Commonwealth Court in Aldridge v. Workers' Compensation Appeal Board.

WCJs Can Resolve Counsel Fees- Disputes

In Bierman v. Workers' Compensation Appeal Board (Philadelphia National Bank), the Commonwealth Court ruled that a Workers' Compensation Judge has the authority to resolve fee disputes between two successive attorneys pursuant to Section 422 of the Workers' Compensation Act, 77 P.S. § 998, when the fee agreement or petition was filed before the claimant discharged the attorney. The WCJ must balance the attorney's legitimate expectations of a reasonable legal fee with the claimant's right to be represented by counsel of his or her choice. Therefore, the WCJ did not abuse his discretion by awarding a counsel fee to the new attorney and not awarding a fee to the discharged attorney.

No Notice of Ability to Return to Work for Unaccepted Claims

An employer is not required to provide an injured employee with a Notice of Ability to Return to Work (NARW) when the employee has not yet filed a Claim Petition and has therefore never proven his or her entitlement to workers’ compensation benefits. So ruled the Commonwealth Court in School District of Philadelphia v. Workers' Compensation Appeal Board (Hilton). The Court also held that an employer must provide an NARW under Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act, 77 P.S. Section 512(3) when the employer seeks to modify a worker’s existing workers’ compensation benefits based upon medical evidence establishing that the injured employee is able to return to work in some capacity.