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Reported Cases:

Irwin Stein v. WCAB (School District of Philadelphia), 782 C.D. 2016 (Pa. Comm. 2017)

This case signifies a growing acceptance by the Pennsylvania Commonwealth Court that a claimant may take himself out of the work place and thus be subjected to a suspension of eligibility for ongoing wage loss benefit payments. Here, at trial, we established that the claimant had applied for and was in receipt of Social Security Retirement Benefits, as well as a disability pension.  Also, the workers’ compensation judge found claimant’s evidence as to the extent of his disability not credible.  Another major factor was the admission by claimant that he had not looked for any type of work since the occurrence of this work injury.

John Jackson, Jr. vs. WCAB (Radnor School District and ACTS Retirement Community), 148 A.3d 939 (Pa. Comm. Ct. 2016)

In this case, we argued successfully for our client ACTS that the attempt by Radnor School District to join ACTS as an additional defendant failed because the joinder was filed untimely. This ruling will help speed litigation at the trial level as lawyers and workers’ compensation judges know that “late joinders” will now be looked upon with increasing disfavor by the Commonwealth Court.

Salad Works, LLC and Wesco Insurance Company v. WCAB (Gaudioso and the UEGF), 123 A.3d 790 (Pa. Comm. Ct. 2015)

In this case, the Commonwealth Court upheld our argument that franchisor Salad Works did not become the claimant’s statutory employer simply because its franchisee was uninsured for workers’ compensation claims as of the date of claimant’s work injury (claimant was the franchisee’s employee). This decision forced liability for payment of claimant’s wage loss and medical benefits onto the Uninsured Employer Guaranty Fund (UEGF).  The Fund petitioned the Supreme Court for allowance of appeal, but the Court denied that petition.  Consequently, this case is the law in Pennsylvania as to franchisor liability in workers’ compensation matters.

Hakif Namani v. WCAB (A. Duie Pyle), 32 A.3d 850 (Pa. Comm. 2011)

This case adopted our argument that a claimant’s medical expert – just like an employer’s medical expert – cannot ignore prior judicial determinations in the presentation of their opinions as to disability. The case also speaks to the inappropriateness of attempts by claimants to re-litigate termination decisions without establishing solid proof of a change in the claimant’s condition.

School District of Philadelphia v. WCAB (Davis), 38 A.3d 992 (Pa. Commw. Ct. 2011)

This case makes the important ruling that claimants who contest pension benefit offsets are required to present some credible evidence to counter an employer’s expert actuarial testimony.
Previously, the loophole existed whereby claimants who wanted to contest pension benefit offsets, or WC Judges who wanted to deny them, could simply argue that the employer’s actuary was not credible.  Thus, the burden remained solely on the employers’ side: employers had to hire an actuary to prove they were entitled to take an offset, but claimants did not have to hire any expert and risk expending money to contest an offset.  The Commonwealth Court recognized this imbalance and now prevents claimants from merely sniping from afar at employers trying to take a statutorily-mandated pension offset. Now, claimants who wish to contest pension offsets must present their own actuarial evidence to counter an employer’s.  Moreover, WC Judges must now base their decisions regarding pension offsets on the weight of the evidence that each side presents.  That is, WC Judges may no longer simply discredit an employer’s actuary in the absence of credited testimony by a claimant’s actuary.

Barbara Gardner v. WCAB (Genesis Health Ventures), 585 Pa. 366, 368 (Pa. 2005)

This Pennsylvania Supreme Court case makes the important clarification regarding the procedures for modifying a workers’ compensation claimant’s benefits based on an Impairment Rating Evaluation (“IRE”).

Previously, it was understood that an IRE must be requested within 60 days of a claimant’s receipt of 104 weeks of total disability benefits, and that, if requested outside of that 60-day window, the modification would not be permitted.  The Supreme Court recognized the hardship this placed on employers, and established that employers may still require a claimant to submit to an IRE outside of the 60-day window, as well as request a modification based on such an IRE by filing a Petition to Modify Compensation Benefits.

Thomas Sailman v. WCAB (Control Aire Mechanical), 643 A.2d 147 (Pa. Comm. Ct. 1994)

This case ruling on formal job placement efforts made by the employer is also applicable to job availability studies performed in current labor market surveys. The case holds that the workers’ compensation judge may modify (reduce) a claimant’s wage loss benefit payments based on the highest-paying of the jobs located for [or presented to] a claimant by an employer’s vocational expert.

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Pending:

Dennis Stevenson v. School District of Philadelphia, Pennsylvania WCAB Appeal Case No. A16-0700 (Opinion circulation date 12/29/2016)

In this matter we succeeded at the trial level in obtaining a modification (reduction) of claimant’s wage loss benefits by demonstrating his earning power through a labor market survey, as buttressed by the testimony of our retained medical expert. The claimant appealed, but the Workers’ Compensation Appeal Board affirmed our modification, accepting the judge’s findings as to the credibility and competence of the medical and vocational expert testimony we presented.  Claimant has now appealed to the Pennsylvania Commonwealth Court.  We feel strongly that the court should affirm its decision in behalf of our clients, the School District of Philadelphia and PMA Insurance Company.