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2007 Issues

Changes in Rules and Regulations Regarding Vocational Experts

The Department of Labor and Industry recently amended 34 Pa. Code Chapter 123 regarding the qualifications for vocational experts who will conduct earning power assessment interviews, and implemented the Act 53 requirements of regarding compliance with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses and disclosure of financial interest.


Commonwealth Court Validates Use of NCD in “Medical Only” Claims

Suffering the slings and arrows of outrageous compensation, with apologies to Hamlet, the Commonwealth Court, in an all-too-infrequent fit of appellate sanity, validated the statutory and precendential formalities of utilizing a Notice of Compensation Denial for purposes of admitting the occurrence of a “medical only” injury.

The Court did not fall prey to the administrative temptation to be teased and tantalized by the bitter-tasting forbidden fruit of the “medical only” Notice of Compensation Payable, the utilization of which, in contravention of original sin, actually infuses an injury with claim immortality, subject, of course, to compensation liability for the injury expiring with an injured Claimant’s death by natural causes.


Supreme Court Changes Burden of Proof for Terminations Under Section 413 of the WC Act

Traditionally regarded as requiring the highest burden of proof under the Pennsylvania Workers’ Compensation Act, termination petitions have always proven difficult to litigate to a successful conclusion. Workers’ compensation judges, citing the remedial and humanitarian nature of the Act, are often hesitant to grant a petition relieving the employer/insurer of all compensation liability for an accepted work injury, resulting in Claimants being left without the safety net of compensation benefits tied to the de minimis burden of surviving terminations with the whining tear-filled testimony that they are not fully recovered and that they continue to need the care of non-board-certified physicians qualified to find tenderness and spasm present in any and every physical examination.


The Pennsylvania Supreme Court’s 2006 Compensation Playbook

With the Pennsylvania Supreme Court only reporting four published opinions dealing with workers’ compensation issues in 2006, it begs the question as to whether we are, heaven forbid, exhausting issues of first impression worthy of the Court’s appellate review.

Tackling tough issues with regard to the payment of compensation benefits following an employer filing for Supersedeas (Snizaski), the statute of limitations for reinstatement of compensation following a judge-ordered termination of compensation (Romaine), entitlement to fatal claim benefits (Brookhaven Baptist), and “bad faith” in the context of an employer-filed Suspension Petition alleging that the Claimant had sufficiently recovered from work-related surgery to be able to return to work in a job that earlier resulted in a judge-ordered suspension of compensation (Pitt Ohio), the Supreme Court clearly had a very light docket that yielded no decisions unbalancing the anxious scales of justice.


Abnormal Working Conditions

The Pennsylvania Supreme Court’s recent ruling in Rag (Cyprus) Emerald Resource v. WCAB (Hopton) illustrates the always-present tension that claims involving “abnormal working conditions” continue to generate at every level of fact-finding, from initial claim presentation through exhaustion of appellate review.

“Abnormal working conditions” is a term of art that has evolved and ripened under the Supreme Court’s landmark decision in Martin v. Ketchum, Inc. 568 A. 2d 159 (Pa. 1990). That ruling sought to establish an objective work environment-specific analysis for the compensability of mental/mental, or psychological injuries. It further attempted to negate the compensability of subjective reactions to normal working conditions as being sufficient to prove the occurrence of a work-related mental/mental injury.


Bad Faith Refusal of Modified Duty

In Pitt Ohio Express v. WCAB, decided on December 26, 2006, the Pennsylvania Supreme Court held that an employer need not re-prove job availability following a period of total disability after an employee has made a bad faith rejection of an available modified position, with that bad faith rejection resulting in the Claimant’s compensation benefits being suspended in prior litigation involving the Claimant’s failure to accept the modified-duty job position.