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2009 Issues

“Locating” Earning Power in Pennsylvania

Riddle me this: your employee sustains a work-related injury, receives workers’ compensation benefits mandated by the Pennsylvania Workers’ Compensation Act, continues receiving compensation benefits for several years, voluntarily relocates out of the sylvan compensation sanctum of Pennsylvania, crossing state lines through the mailed facility of uninterrupted compensation payments, while slowly recovering, years later, from the work injury, such that the injured employee is found to have sufficiently recovered from the work injury to be physically capable of performing some level of full-time, light-duty work; the question being what geographic anomaly must be applied to the gleeful irony of “earning power”, such that the Pennsylvania employer is entitled to petition for a modification of compensation benefits from temporary total to temporary partial disability?


Is Independence Self-Evident?

How many times, whether in the last year or over the course of your tenure as a savvy workers’ compensation practitioner, have you received a Claim Petition, alleging a work-related injury occurring in the alleged course and scope of employment, against an insured, who then proceeds to tell you that the injury was never reported, as the Claimant is not an employee, as the insured contends that the Claimant is an independent contractor, for whom no payroll-based premium has ever been collected?


Injury Amendment: Corrective versus Consequential

All workers’ compensation practitioners are aware that the Pennsylvania Supreme Court had previously established a very complicated legal precedent in Jeanes Hospital v. WCAB, 872 A.2d 159 (Pa. 2005), under which Claimants were permitted to seek to amend the accepted description of injury, with the Jeanes Hospital Court allowing Claimants to file Review Petitions to “correct” Notices of Compensation Payable that did not contain a description of injury for which the Claimant sought amendment.

In Cinram Manufacturing v. WCAB, decided on July 21, 2009, the Supreme Court granted the employer’s Petition for Allowance of Appeal, in order to address the “correctness” of Jeanes’ Hospital directive, as it applied to corrective amendments of injuries described on Notices of Compensation Payable.


The Real Diehl: Repairing Impairment

About a year ago, the Pennsylvania Workers’ Compensation community was turned on its head when the Commonwealth Court issued its initial opinion in Diehl v. WCAB (IA Construction Liberty Mutual Insurance). That opinion shocked compensation practitioners in the course of eviscerating the impairment rating provisions of Act 57, superimposing the requirement that employers seeking to modify injured employees’ compensation status from temporary total to temporary partial, in reliance upon an impairment rating, must present evidence of “earning power” as originally held by the workers’ compensation judge, with the Appeal Board’s reasoned analysis of that issue being overturned in the Commonwealth Court opinion that was issued on April 28, 2008.


A Drive-by of a Course and Scope Case

It was about 6:45 a.m., on an otherwise very normal Tuesday morning, a few days before Thanksgiving, when the Claimant, a 32 year old union painter, was involved in a two-vehicle collision, while driving his personal car to work, for which the Claimant never received any reimbursement from his union employer, for either time or expense when commuting to or from work.


To Be, or Not To Be Reimbursed

With the Bureau having been progressively more aggressive in its administrative denials and challenges to employers/insurers Supersedeas Fund Reimbursement Applications, the Commonwealth Court’s February 2, 2009 Decision in Department of Labor and Industry v. Crawford and Company is an all too welcome key to unlocking the Bureau’s Supersedeas Fund vaults, filled with dollars, shrinking in value as we speak, long ago paid by/assessed against, the very employers and insurers merely seeking reimbursement of funds finally adjudicated as never having been owed in the first place.