THE YEAR IN PENNSYLVANIA WORKERS’ COMPENSATION: 2014 AT A GLANCE By MITCHELL I. GOLDING, ESQUIRE CAMPBELL, LIPSKI & DOCHNEY CAMPBELL, LIPSKI & DOCHNEY 2000 Market Street, Suite 1100 Philadelphia, PA 19103 (215) 861-6700 FAX (215) 861-6736 THE YEAR IN PENNSYLVANIA WORKERS’ COMPENSATION: 2014 AT A GLANCE MITCHELL I GOLDING, ESQ. CAMPBELL, LIPSKI & DOCHNEY TABLE OF CONTENTS APPEAL…………………………………………………………………………………………..1 ATTORNEY FEES………………………………………………………………………………1 AVERAGE WEEKLY WAGE………………………………………………………………… 2 CLAIM PETITION ………………………………………………………………………….. 2-4 COMMON-LAW MARRIAGE………………………………………………………………4-5 COMPROMISE AND RELEASE AGREEMENT………………………………………….5-6 CONSTITUTIONALITY……………………………………………………………………….6 CORPORATE SUCCESSION……………………………………………………………… 6-7 COURSE AND SCOPE…………………………………………………………………… ..7-18 CREDIT…………………………………………………………………………………… 18- 21 DEATH BENEFITS ………………………………………………………………………….. 21 EVIDENCE……………………………………………………………………………………..22 FEE REVIEW………………………………………………………………………………22-23 HEARINGS…………………………………………………………………………………23-24 HEART AND LUNG ACT……………………………………………………………………24 IRE ………………………………………………………………………………………….24-28 JOINDER …………………………………………………………………………………..28-29 JUDICIAL ESTOPPEL…………………………………………………………………… 29-30 JURISDICTION…………………………………………………………………………….30-31 LOSS OF USE………………………………………………………………………………31-32 MEDICAL BILLS…………………………………………………………………………. 32-34 MEDICAL TESTIMONY…………………………………………………………………34-36 MEDICAL TREATMENT…………………………………………………………………….36 MODIFICATION………………………………………………………………………………36 NOTICE OF ABILITY OF RETURN TO WORK…………………………………………37 PENALTY…………………………………………………………………………………..37-38 PLEADINGS……………………………………………………………………………………38 PSYCHIATRIC CLAIM…………………………………………………………………..38- 41 REASONED DECISION…………………………………………………………………...42-43 REINSTATEMENT………………………………………………………………………...43-45 RETIREMENT……………………………………………………………………………...45-46 SOCIAL SECURITY……………………………………………………………………….46-47 STATUTORY EMPLOYER……………………………………………………………….47-49 SUBROGATION……………………………………………………………………………49-51 SUBSTANTIAL EVIDENCE…………………………………………………………………51 SUPERSEDEAS FUND REIMBURSEMENT……………………………………………….52 SUSPENSION……………………………………………………………………………….52-54 TERMINATION……………………………………………………………………………….54 UNDOCUMENTED WORKER…………………………………………………………...54-55 UNINSURED EMPLOYERS GUARANTY FUND………………………………………….56 UTILIZATION REVIEW………………………………………………………………….56-58 VIOLATION OF POSITIVE WORK ORDER. ………………………………………….58-59 VOCATIONAL……………………………………………………………………………..59-60 WAGES IN LIEU OF COMPENSATION……………………………………………………61 WAIVER…………………………………………………………………………………….61-62 WCJ………………………………………………………………………………………….62-63 THE YEAR IN PENNSYLVANIA WORKERS’ COMPENSATION: 2014 AT A GLANCE BY MITCHELL I GOLDING, ESQ. CAMPBELL, LIPSKI & DOCHNEY (W) 215-861-6700 APPEAL A party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal, but such party may not raise upon appeal any other question not raised before the agency Wingrove V. WCAB(Allegheny Energy), No. 1151 C.D. 2013 (Decision by Judge Leavitt, January 3, 2014) 1/14 Neither the WCAB nor the Commonwealth Court may review the evidence or reweigh the WCJ’s credibility determinations. The critical inquiry on appeal is whether there is evidence to support the findings actually made. We review the entire record to determine if it contains evidence a reasonable mind might find sufficient to support the WCJ’s findings. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence. Pennsylvania Uninsured Employers Guaranty Fund, v. WCAB (Lyle and Walt & Al’s Auto & Towing Service), No. 1421 C.D. 2013 (Decision by Judge Covey, May 12, 2014) 5/14 ATTORNEY FEES The Pursuant to the plain language of Section 1601 of the Act the Pennsylvania Uninsured Employer Guaranty Fund (UEGF) cannot be assessed attorney fees for an unreasonable contest fees. Section 1601 states, in pertinent part: “The fund shall not be considered an insurer and shall not be subject to penalties, unreasonable contest fees or any reporting and liability requirements under Section 440 of the Act.” Trautman v. WCAB (Blystone Tree Service and Pennsylvania Uninsured Employer Guaranty Fund), No. 389 C.D. 2014 (Decision by Judge Brobson, November 14, 2014) 11/14 AVERAGE WEEKLY WAGE A claimant is no longer entitled to be paid compensation premised upon concurrent wages where following the injury the claimant no longer worked for the concurrent employer due to a voluntary resignation that was not related to the work injury. Therefore, the WCJ committed an error upon denying the employer’s Petition for Suspension where the claimant wrote a letter of resignation to her concurrent employer August 2, 2006 indicating she was resign due to personal reasons with the intention to resign on December 31, 2006, e-mailed her concurrent employer email dated November 4, 2006 she was going to voluntarily resign her teaching position because she wanted to go back to school and complete her Masters in Nursing effective December 31, 2006 and the suffered a work injury, during the period she was still concurrently employed on November 24, 2006. The fact that the claimant indicated in her resignation that she would be available to work for the concurrent employer again in fall 2007 did not preclude the employers entitlement to a suspension because claimant resigned from her concurrent employment prior to her work injury and did so without the guarantee of being rehired in the future. The claimant was entitled to wages based upon concurrent employment on the date of the injury but she was not longer entitled to wages based upon the same concurrent employment at the date of her effective resignation, which was December 31, 2006. Keller v. WCAB (UPMC Presbyterian Shadyside), No. 370 C.D. 2014 (Decision by Judge McGinley, December 15, 2014) 12/14 CLAIM PETITION Section 306(b)(3), which guides the issuance of the Notice of Ability to Return to Work (LIBC-757), presumes that the injury has caused a disability, a claim has been acknowledged as compensable and that the employer seeks to reduce its existing liability by decreasing the amount of benefits it has to pay. Employer was not required to provide Claimant with a Notice of Ability to Return to Work in the context of the “claim petition setting.” The notice is part of the earning power assessment process and is required when an employer seeks to change a claimant’s status quo to partial disability by modification or suspension of payments on the basis of medical evidence. 2 Therefore, the WCJ did not commit an error of law upon granting the claimants Claim Petition for a closed period and then suspending her compensation based upon a reassignment to a less stressful school within her restrictions where claimant was not receiving benefits at the time of the job offer and no litigation was taking place and a Notice of Compensation Denial had been issued. In this matter the burden on Claimant, who had filed a Claim Petition, was to show the duration of her disability, and she simply did not establish that it continued beyond the date her reassignment to a less stressful school would have taken place. .Accordingly, the requirement for issuance of the Notice of Ability to Return to Work (LIBC-757) was not triggered. The legislature created the notice requirement in Act 57 to be used as part of the earning power assessment process. Specifically, the notice is required when an employer seeks to change a claimant’s status quo to partial disability by modification or suspension of payments on the basis of medical evidence. Further, the clear purpose of Section 306(b) (3) is to require the employer to share new medical information about a claimant’s physical capacity to work and its possible impact on existing benefits. School District of Philadelphia v. WCAB (Hilton), No. 598 C.D. 2013 (Decision by Judge Leadbetter, January 7, 2014) 1/14 The claimant’s medical expert’s testimony was competent to support Claimant’s Claim Petition seeking ongoing benefits even though the expert could comment upon the claimant’s status since his last exam. This is because a claimant’s medical expert is not required to be an eyewitness to the claimant’s disability throughout the pendency of a Claim Petition and a WCJ is free to rely on a claimant’s testimony in determining the chronological length of disability. The WCJ did not commit an error by not suspending claimant’s compensation, upon granting claimant’s Claim Petition, where claimant’s medical expert testified that he anticipated that Claimant would be able to return to work in the future. This is because a medical expert’s speculative testimony is insufficient basis for a WCJ’s finding of fact In a claim preceding the burden is on the claimant to establish a right to compensation and prove all necessary elements to support an award, including the burden to establish the duration and extent of disability. However, it is a fundamental principle of workers’ compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight. The WCJ may accept or reject, in whole or in part, the testimony of any witness. Moreover, the WCJ’s fact-finding authority includes the authority to draw reasonable 3 inferences from the evidence. The evidence, and the reasonable inferences deducible therefrom, must be viewed in the light most favorable to the prevailing party below. Pennsylvania Uninsured Employers Guaranty Fund v. WCAB (Bonner and Fitzgerald) No. 300 C.D. 2013