Disability Law

Presentation at Central Pennsylvania Regional Business and Industry Expo

Posted on October 30, 2009
I will be in a panel presenting Workers' Compensation Update: What Employers Need to Know to Successfully Manage and Close a Workers' Compensation Claim. The workshop will be presented at the Central Pennsylvania Regional Business and Industry Expo at the Bryce Jordan Center on November 17 at 5:30 p...

Commonwealth Court Holds Claimant Cannot Receive 500 Weeks of Partial Disability For Two Injuries

Posted on October 25, 2009
In P. Reutzel v. WCAB (Allegheny General Hospital) the Claimant argued she could reinstate partial disability benefits from a prior injury when 500 weeks ran on her more recent injury. The Court held Section 306(b)(1) of the Act specifically limits the period of partial disability benefits to 500 weeks for any injury or its recurrence, regardless of any change in disability status...

Supreme Court Grant of Appeal in Diehl v. WCAB (IA Construction & Liberty Mutual)

Posted on October 24, 2009
The Supreme Court's grant of appeal in Diehl v. WCAB (IA Construction & Liberty Mutual) frames the issue as:Whether the Commonwealth Court erred in its interpretation of 77 P.S. §551.2 by holding that respondents did not need to present evidence of job availability or earning power in order to change petitioner?s disability status from total to partial, and whether the court?s holding conflicts with Gardner v...

Supreme Court Reverses Commonwealth Court Ruling That Labor Market Survey May Be Conducted in Claimant's Place of Residence Out Of State

Posted on October 22, 2009
The Commonwealth Court held in Riddle v. WCAB (Allegheny City Electric, Inc.) that it was appropriate to conduct a labor market survey in the area where the claimant resides out of state. The Court relied on pre-Act 57 case law for guidance. These cases held work should be identified in the place of the claimant's residence...

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Amendments to Board and Judges' Rules Published in Pennsylvania Bulletin

Posted on October 17, 2009
The amendments to the board and judges' rules were published today in the Pennsylvania Bulletin.A WCJ can no longer conduct a mandatory mediation in the judge's own case. If the parties and judge all agree, the presiding judge can conduct a voluntary mediation...

Commonwealth Court Limits Time for IRE Appeal Based on Competency of the IRE Report

Posted on October 16, 2009
In D. Johnson v. WCAB (Sealy Components Group) the Employer issued a Notice of Change of Workers? Compensation Disability Status based on an IRE finding of a 15% total body impairment. A year later the Claimant filed a petition to review alleging her pulmonary condition should not have been evaluated by the IRE physician who is a board certified physiatrist...

FCE Exam May Not Become Pre-Employment Exam Prohibited by ADA

Posted on October 08, 2009
Business Insurance reviewed a 9th Circuit Court of Appeals case which held a return to work FCE might have gone beyond testing for recovery from the specific work injury. The FCE reported data that might have revealed whether the Employee suffered a disability unrelated to the work injury...

Summary of WCRI Report at Risk and Insurance

Posted on October 02, 2009
Pennsylvania: Study finds medical costs per claim similar to other states, but rising

An Entertaining Mediation Primer

Posted on September 24, 2009
Richard H. Ralston has compiled a list of thirty things to say in mediation. It is kind of a list of things not to say, or most accurately, a list of things you will hear yourself say and wish you hadn't. I have heard all but a few of these. I have not heard Statement #5 "They are not negotiating in good faith...

Commonwealth Announces G-20 Closings

Posted on September 21, 2009
A press release issued by the Governor's office gives all Pittsburgh state office closings for September 23-25. The release states: The Workers' Compensation Office of Adjudication (WCOA) office will be closed. If an emergency arises relating to an Allegheny or Beaver County worker's compensation case, call the Johnstown office at 814-533-2494.

Facebook, MySpace, etc. Evidence

Posted on September 06, 2009
In a Businessinsurance.com article, workers' compensation claims investigators recall their favorite stories of Claimants' Facebook and MySpace activities. The Claimants in these examples were caught in demonstrably inconsistent behavior.More often than not Facebook and MySpace evidence amounts to character evidence which is not as helpful to the WCJ...

Commonwealth Court Reaffirms Employer is Responsible to Maintain Orthopedic Appliances

Posted on September 03, 2009
In Equitable Resources v. WCAB (Thomas) the Employer provided modifications to a bathroom. A water leak damaged the bathroom and finished basement. The Commonwealth Court applied Zuback v. Workers? Compensation Appeal Board (Paradise Valley Enterprise Lumber Company) 892 A...

Supreme Court Grants Petition for Allowance of Appeal on "Footprint" Argument in Pension Benefit Offset

Posted on May 28, 2009
In Commonwealth of Pennsylvania DPW v. WCAB (Harvey) the Supreme Court granted allocatur to review the holding of the Commonwealth Court in Pennsylvania State University/PMA Insurance Group v. WCAB (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006) and Department of Public Welfare/Western Center v...

Commonwealth Court Rules Claimant May Not Seek Review of the Determination of a URO That the Provider Did Not Properly Submit Records

Posted on May 26, 2009
In L. Sexton v. WCAB (Forest Park Health Center) the Employer filed a request for utilization review. The Provider forwarded treatment records in a timely manner, but did not complete a verification. The URO sent the records back to the Provider. They were not returned...

City Can Subrogate Heart & Lung Act Claim Against Third Party Recovery

Posted on May 24, 2009
In City of Wilkes-Barre vs. Robert P. Sheils, Jr., Trustee in Bankrupcy, George W. Cole, Debtor the Third Circuit Court of Appeals held a municipality that pays Heart and Lung Act benefits has a subrogation interest against a third party recovery. The District Court held the subrogation claim was barred by Section 1720 of the Motor Vehicle Financial Responsibility Law...

Blair County Chamber Risk/Safety Committee and Human Resource Mgt. Assn. of Blair County -- ?Ten Ways to Lose a Workers' Compensation Case"

Posted on January 29, 2009
The following citations are provided as a follow up to my recent presentation to the Blair County Chamber of Commerce Risk/Safety Committee and Human Resource Management Association of Blair County entitled ?Ten Ways to Lose a Workers? Compensation Case??Outliers? by Malcolm GladwellMaxim Crane Works v W...

Proposed Amendments to Workers' Compensation Judges' Rules Published in Pennsylvania Bulletin

Posted on September 09, 2008
The proposed amendments to the Special Rules of Practice and Procedure Before Workers' Compensation Judges were published Saturday in the Pennsylvania Bulletin. The proposed regulations provide for electronic filings with the Bureau and the Board and include regulations consistent with procedures that have been put in place since Act 147 and Act 109 (dealing with support obligations)...

Commonwealth Court holds home health nurse is traveling employee from her home to patient's home

Posted on August 21, 2008
In L. Jamison v. WCAB (Gallagher Home Health Services) the Claimant worked as a home health nurse. She also worked for another home health service and a mortgage company. Gallagher Home Health Services (Gallagher) allowed the Claimant to pursue her other employment and personal errands during the work day...

Commonwealth Court holds IRE doctor must testify the Claimant has reached maximum medical improvement

Posted on August 15, 2008
In C. Combine v. WCAB (Nat'l Fuel Gas Distribution Corp) the Claimant underwent an IRE, which found a twenty per cent (20%) total body impairment resulting from a right knee injury. The Employer filed a Modification Petition.The IRE physician admitted the Claimant has persistent swelling, medial laxity and discomfort following a partial knee replacement...

New York Times previews study of how parties fared when they rejected settlement and went to trial

Posted on August 09, 2008
A study of outcomes for parties who rejected settlement and went to trial will be published in the September Journal of Empirical Legal Studies. In this preview, the New York Times touches upon some of the issues that cause parties not to settle. Overall, the study reported plaintiffs got less in 61% of cases, while defendants paid more in 24% of cases...

Commonwealth Court reaffirms standard for notice in occupational hearing loss claims

Posted on August 08, 2008
In Crompton Corporation v. WCAB (King) the Claimant filed a claim for occupationally induced hearing loss on April 2, 2004, and thus provided notice of the claim to the Employer. The Employer identified a new patient information sheet completed by the Claimant on May 7, 2002, on which the Claimant indicated to his physician he believed his hearing loss was work-related...

Centers for Medicare and Medicaid Services determines thermal intradiscal procedures are not reasonable and necessary

Posted on August 04, 2008
An Ortho Supersite article excerpted from the journal Spine states CMS proposes to issue a national non-coverage determination for thermal intradiscal procedures (TIPs). CMS? review indicates the mechanism of the associated diagnosis ? nonspecific chronic low back pain ? as well as the mechanism of the treatment are uncertain according to the medical literature.

Commonwealth Court reverses Workers? Compensation Appeal Board holding that Claimant?s disability began on first day off work

Posted on August 04, 2008
In Albert Einstein Healthcare v. WCAB (Stanford) the WCJ awarded benefits based on the testimony of the Claimant?s doctor that the Claimant was disabled while under his treatment. However, the Claimant did not start treating with the doctor until over a year after her last date of work...

Statute of Limitations Waiver and Workers? Compensation

Posted on July 26, 2008
A Law.com article reports many companies are using and enforcing a waiver limiting statutes of limitations for employment claims to six months. The waiver is executed in the job application. The article refers to employment discrimination claims. The Pennsylvania Workers? Compensation Act provides parties can?t alter the provisions of the Act except in collective bargaining...

Article on Introductory Joint Session in Mediation

Posted on July 26, 2008
Mediator Robert A. Steinberg recently published an article on opening statements in mediation with several tips for parties to interact with each other in joint sessions. This is particularly valuable given the current discussion suggesting more joint sessions should occur in mediation...

Commonwealth Court Remands in Serial Termination Case

Posted on July 18, 2008
In M. Prebish v. WCAB (DPW/Western Center) the Commonwealth Court accepted the Claimant's argument that the Employer must show a change of condition to prevail in a serial termination petition. The Employer's expert opined the Claimant's injured right knee was not different than the left knee with findings of preexisting arthritis...

Mediation Practice Well Represented in Blogs

Posted on July 13, 2008
Mediators have the ambition and the aptitude to produce very useful blogs on the subject. One place to sample this information is at The World Directory of ADR Blogs. Another is Mediate.com?s Mediate.com Featured Blogs

Commonwealth Court Grants Reargument in Diehl

Posted on June 26, 2008
The Commonwealth Court granted the Respondent's petition for reargument and vacated the prior decision in T. Diehl v. WCAB (IA Construction, et al.). The case will be listed for reargument.

New York Times Article on Back Pain and its Treatment

Posted on June 05, 2008
As part of its Special Section: A guided tour of your bodyThe New York Times assembled a few articles on back pain and its treatment.As stated by Dr. Russell K. Portenoy, chairman of the department of pain medicine and palliative care at Beth Israel Medical Center in New York...

Supreme Court Grants Appeal in Case Where WCJ Amended the Description of Injury Without a Review Petition

Posted on May 20, 2008
In Cinram Manufacturing, et al, Pets v. WCAB (Hill) the Supreme Court granted the Employer?s Petition for Allowance of Appeal.The Employer is arguing the Claimant had to file a Review petition according to Jeanes Hospital v. WCAB (Hass), 872 A.2d 159 (Pa...

Commonwealth Court Remands In Modification Case Where Employer Provided Work Within the Claimant's Restrictions Then Took It Away

Posted on February 05, 2008
C. Rosenberg v. WCAB (Pike County) is a case of modification of benefits based upon a labor market survey. The Claimant is a corrections officer who suffered a knee injury. The Employer then placed the Claimant in a job the Claimant was capable of performing as a clerical worker with the Board of Elections...

Injury Resulting from Horseplay Generally Compensable

Posted on January 27, 2008
In Sysco Food Services of Phila v. WCAB (Sebastiano) the Claimant was injured engaging in horseplay. While the question of whether the Claimant was an innocent victim remained unresolved in the mind of the Commonwealth Court, the Court noted the Claimant was in his regular work area and his actions, even if viewed in their worst light, were not so disconnected with his regular work duties for the Claimant to be considered, with respect to the employer, nothing more than a "stranger" or "trespasser...

Largest Workers? Compensation Rate Reduction in a Decade

Posted on January 12, 2008
The Pennsylvania Compensation Rating Bureau (PCRB) has proposed a 10.22 percent average reduction in workers? compensation policy rates for 2008, according to a Pittsburgh Business Times Article. The recommendation will go to the Pennsylvania Insurance Department for approval...

Labor Market Survey May Be Done In Area Of Claimant's Residence Even If Out Of State

Posted on January 12, 2008
In H. Riddle v. WCAB (Allegheny City Electric, Inc.), the Claimant was injured in Pittsburgh, but had a residence in Wheeling, West Virginia and lived with his father at a nearby address in Ohio, where the Claimant held a driver?s license.The Claimant?s benefits were modified based on a labor market survey focusing on Wheeling...

SWMS Associated With Cancer

Posted on November 30, 2007
The International Agency for Research on Cancer, the cancer arm of the World Health Organization, will designate overnight shift work as a probable carcinogen according to a Pittsburgh Post-Gazette article. Judge David Torrey identifies the 1998 case of Met...

Report From National Workers? Compensation and Disability Conference and Expo

Posted on November 09, 2007
Human Resource Executive Online summarizes a discussion from the National Workers? Compensation and Disability Conference and Expo about outcome based workers? compensation management. The panelists are all names Pennsylvania workers? compensation practitioners will recognize.

NIOSH Guide: Simple Ways To Prevent Musculoskeletal Injuries in Construction

Posted on November 08, 2007
Safety Online ArticleNIOSH .pdf materials

Furlough Benefits Are Not Severance Benefits

Posted on November 05, 2007
In G. Kelly v. WCAB (US Airways Group, Inc.) the Commonwealth Court reversed the opinion of the Board and WCJ that furlough benefits are severance benefits for which the Employer is entitled to a credit under Section 204(a) of the Act. The Court applied a plain language analysis.

L&I Offers Policy Search Via Internet

Posted on October 25, 2007
Information on workers compensation coverage for Pennsylvania employers is available at PA Employer WC Insurance Info on L&I's web site. The search will show the current insurance carrier and the coverage history.

Commonwealth Court Holds Expense Reimbursement Should Be Included in AWW

Posted on October 10, 2007
In T. Lennon, Dec', et al. v. WCAB (Epps Aviation, Inc.), the Claimant, an airplane pilot, received expense reimbursement for board and lodging from his employer. Claimant?s Counsel argued these amounts should be included in the average weekly wage calculation under Section 309(e) of the Act on the basis that they represent payments for board and lodging...

Commonwealth Court Reinforces Principle That Average Weekly Wage Calculations Should Be Made According To The Act?s Provisions.

Posted on October 09, 2007
In Lahr Mechanical, et al. v. WCAB (Floyd) the WCJ accepted the Claimant?s testimony about his expected wages and hours to make a Section 309(d.2) average weekly wage calculation. The Claimant testified he expected the prevailing rate. The Claimant was actually paid at three different rates: local, prevailing and overtime...

Article Reporting Medicare Delays in New Jersey Workers? Compensation Settlements

Posted on October 09, 2007
This Star-Ledger article reports on the history and development of CMS reviews of workers? compensation settlements and the delays in processing these reviews. It is a very complete overview of the issue.Thanks to WCJ David Torrey

Elizabeth Crum Elected President of IAIABC

Posted on October 09, 2007
Liz Crum, Deputy Secretary of Compensation and Insurance, was elected President of the International Association of Industrial Accident Boards and Commissions. The IAIABC?s mission is to advance the administration of workers? compensation systems throughout the world through education, research, and information sharing.

Commonwealth Court Allows WCJ to Review Description of Injury Without Review Petition

Posted on September 13, 2007
In Cinram Mfg., Inc. & PMA Group v. WCAB (Hill), the Claimant had a herniated lumbar disc as early as 2000. When the Claimant had a work injury in March of 2004, the Employer described the injury as a lumbar strain. The Employer later filed a Termination Petition, alleging the lumbar strain had resolved...

Commonwealth Court Holds WCJ May Not Decide Termination Petition After Full C&R

Posted on August 22, 2007
In Bureau of Workers' Compensation v. WCAB (US Food Service) the Commonwealth Court held the Employer could not get a post C&R decision on a pending termination petition and proceed to request supersedeas reimbursement.The Court distinguished the present case from the Optimax case, holding a C&R is a final resolution of a case unlike the stipulation the parties entered into in Optimax...

Supreme Court Grants Appeal on Whether Penalties Can Be Assessed In Workers' Compensation Security Fund Case

Posted on August 18, 2007
In Constructo Temps and Workers' Compensation Security Fund v. WCAB (Tennant), the Commonwealth Court held the Workers' Compensation Security Fund and the Employer are not responsible for penalties according to the provisions of the Act. The Supreme Court has granted the Claimant's petition for allowance of appeal...

Commonwealth Court Holds Employer May Take Section 204 Offset Only After Receipt of LIBC-756

Posted on August 18, 2007
In Maxim Crane Works v. WCAB (Solano) the Claimant was injured on October 10, 2000 and was terminated by the Employer in December of 2000. In January of 2003, the Claimant applied for social security old age benefits. An agreement for compensation was entered into on April 4, 2003, and a supplemental agreement was entered into on September 12, 2003...

Superior Court Case on Standard of Review of Allocation of Third Party Settlement

Posted on March 12, 2007
In Urmann V. Rockwood Casualty, the Claimant and his wife received a third party settlement. The Common Pleas Court held a hearing and approved a proposed allocation of $50,000.00 to the Claimant and $250,000.00 to his wife for loss of consortium. The Superior Court affirmed the decision of the Common Pleas Judge...

The Lens of Dispute Resolution Through Mediation

Posted on March 11, 2007
This Article by Stewart Levine gives a clear description of the complete cost savings of conflict resolution. This is another valuable resource for parties to understand the process and benefits of mediation.

Paper on Dueling Experts in Mediation

Posted on February 19, 2007
This paper written for an Australian alternative dispute resolution association discusses methods for a mediator to deconstruct polar opposite expert opinions. Some of the methods involve a lot of cost such as bringing the experts together to discuss their opinions...

RAND Center for Health and Safety in the Workplace

Posted on February 18, 2007
Pittsburgh Tribune Review Article about recent appointment to Pittsburgh RAND Center for Health and Safety in the Workplace.

Utilization Review Must Name Actual Treating Physician

Posted on February 12, 2007
In Bucks County Community College v. WCAB (Nemes, Jr.), the Employer filed for utilization review of the treatment of a Dr. Files. The Claimant was actually being treated by Dr. Mercora, a physician of the same license and specialty of Dr. Files in the same group...

The Mechanics of Biomechanical Low Back Pain

Posted on February 08, 2007
Interesting article on fatigue and recovery of the low back in lifting occupations.Two disc replacement surgery. Press Release.

Supreme Court Grants Petition for Appeal in Knechtel

Posted on February 01, 2007
The Supreme Court granted the Claimant's Petition for Appeal in Marilyn Knechtel v. WCAB (Marriott Corp.). In the Commonwealth Court's decision, the Claimant's designated health care provider at the IME was limited to the role of obtaining a firsthand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results...

Uninsured Employer Guarantee Fund Statement of Policy

Posted on February 01, 2007
The Bureau's Statement of Policy on the Uninsured Employer's Guarantee Fund is published at the Pennsylvania Bulletin site.Forms: Claim Petition for Benefits from the Uninsured Employer Guaranty Fund and Uninsured Employer (LIBC-500) and Notice of Claim Against Uninsured Employer (LIBC-501) are available on the Downloadable Forms portion of the Bureau site.

PaTLA Amicus Curiae Briefs Available

Posted on January 20, 2007
PaTLA shares its Amicus Curiae briefs at this site. Several briefs in Workers' Compensation Matters appear at the bottom of the page.

Supreme Court Finds Abnormal Working Conditions in Harassment Case

Posted on January 20, 2007
In RAG (CYPRUS) Emerald Resources, L.P. v. WCAB (Hopton), Appeal of: Ronald A. Hopton, the Supreme Court reversed the Commonwealth Court's holding that the Claimant's supervisor's "...course of conduct persisted in and clearly calculated to cause severe emotional distress on the part of the claimant...