Pennsylvania Workers' Compensation Blog

In Gumm v. WCAB (J.Allan Steel), __A.2d __ (Pa. Cmwlth., No 599 C.D. 2007, filed on January 28, 2008) helped to explain the proper use of the notice of compensation denial.

The Commonwealth Court explained the standards that were articulated in Jordan v. WCAB (Phila. Newspapers, Inc.), 921 A.2d 27 (Pa. Cmwlth. 2007), and in Gereyes v. WCAB (New Knight Inc.), 793 A.2d 1017 (Pa. Cmwlth. 2002), and noted that in Jordan the employer's issuance of a notice of compensation denial was subject to penalties. This was because the employer filled out the form knowing that the claimant was still suffering from a work-related wage loss. In contrast, the employer in Gereyes was not subject to penalties, because it had issued a notice of compensation denial based upon the fact that the claimant was still working, and as such, not disabled under the Act.

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Martin, Banks, Pond, Lehocky & Wilson partner Alfred J. Carlson has been elected Co-Chair of the Philadelphia Bar Association's Workers' Compensation Section. The Association's Workers' Compensation Section was established in 1995 to address the specialized needs of lawyers practicing workers' compensation law. Section members helped shape recently enacted workers' compensation law by reviewing and commenting on various legislative proposals that emerged prior to the final passage of the statute.

Mr. Carlson has been a litigator of Pennsylvania workers' compensation cases since 1992. For the first seven years of his practice, he worked at a leading defense firm representing major corporations, insurance companies, and state and local government agencies in Pennsylvania workers' compensation matters. In 2000, he joined Martin Banks to represent injured workers. In addition to an extensive caseload, Mr. Carlson is a frequent lecturer on workers' compensation matters and has authored numerous articles on the subject. Mr. Carlson has served as the legislative liaison for the Philadelphia Bar Association's Workers' Compensation Section prior to his election as Co-Chair. He is a member of the Pennsylvania and Philadelphia Bar Associations as well as the Pennsylvania Trial Lawyers Association. He received his law degree from Widener University School of Law in 1992 and is licensed to practice in Pennsylvania.

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In Westmoreland County v. WCAB (Fuller), )__ A.2d __ (Pa. Cmwlth., 1277 C.D. 2007, filed January 24, 2008), the employer appealed from the denial of a termination petition and argued that the workers' compensation judge erred by not formally expanding the claimant's work injury during a previously litigated termination petition. The employer asserted that the workers' compensation judge should have limited the injury to the description on the Notice of Compensation Payable (NCP), as no review petition was filed, and she did not specifically articulate that she was amending the nature of the injury when deciding on the second termination petition. The Commonwealth Court held that the workers' compensation judge did properly expand the injury during the first termination petition in the absence of a review petition, because the expansion was in reality just a correction. It noted that the injury was recognized as a back strain, but really a disc herniation occurred.

Importantly, the Court noted that a workers' compensation judge does not have to fully articulate the finding of an expansion for it to be valid. The judge can merely credit an expert medical witness's testimony for it to be considered amended.

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In Ropock v. WCAB (Commonwealth of PA/DPW), __A.2d__ (Pa. Cmwlth., No. 1638 C.D. 2007, filed on January 14, 2008), the claimant filed a review petition that alleged that the employer was inappropriately taking an offset of Social Security benefits against his workers' compensation benefits. He alleged that this offset was in error, because his Social Security Disability benefits administratively had converted to old-age Social Security benefits without him actually removing himself from the work force. The Court ruled against the claimant and held that the Pennsylvania Workers' Compensation Act clearly mandates that if a claimant is receiving old-age Social Security benefits, then the employer is entitled to an offset.

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In Sysco Food Services of Philadelphia v. WCAB (Sebastiano), __A.2d__ (Pa. Cmwlth., 817 C.D. 2007, filed January 23, 2008), the employer appealed the decision that awarded a claimant benefits in a claim petition and asserted that he was not entitled to workers' compensation because his injuries were the result of horseplay with another employee. Moreover, the employer asserted that the claimant violated a positive work order that prohibited horseplay, and such an order precludes the claimant from receiving workers' compensation.

The Commonwealth Court rejected the employer's arguments, noting that an employer must prove that:

1. There was a violation of a work rule;
2. The employer knew of the order or rule; and
3. The rule implicated an activity not connected with actual work duties.

It was also noted that the violation of a positive work order is a "very rare exception" to awarding benefits.

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Every year, approximately three months before your birthday, the Social Security Administration will send workers over the age of 25 a Social Security Statement. This Earning Statement, as it is often referred to, is an easy-to-read, personal record of the earnings on which you have paid Social Security taxes during your working years. This form also gives you an estimate of benefit payments that you and your family may qualify for now and in the future. Unfortunately, most Americans pay little attention to this green and white piece of paper, often times discarding it. If you are interested in applying for Social Security Disability benefits, this statement can help determine whether you qualify for benefits. If you did throw your statement away, don't worry! We tell you how to get a new Statement later in this article.

Many wonder if they are eligible to qualify for Social Security Disability benefits. A good rule of thumb to determine eligibility is this: if you have worked and paid Social Security taxes for five out of the last ten years, you are more than likely eligible for benefits. However, it is possible that although you worked for the past five years, you did not earn enough credits to qualify. That is why the Social Security Earning Statement is so important. Within this statement, Social Security specifically indicated whether or not you have earned enough credits to qualify. If you have earned enough credits to qualify for disability, Social Security will indicate what your monthly benefit rate will be if you are found to be disabled. If you have not earned enough credits to qualify, Social Security will tell you exactly how many credits you are short.

Continue reading "The Social Security Earning Statement - What You Need to Know" »

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In Riddle v. WCAB (Allegheny City Electric, Inc.), __ A.2d __ (Pa. Comwlth., No. 1390 C.D. 2008, filed on January 8, 2008), the claimant argued on appeal from the granting of a modification petition that an earning power assessment was inadequate. The reason for its inadequacy was because the jobs that it analyzed were not in the geographic area of his current residence. Under Section 306(b)(2), 77 P.S. § 512(2) of the Pennsylvania Workers' Compensation Act, it states that it should have been performed in the "usual employment area where the injury occurred."

The Commonwealth Court rejected this argument and stated that an employer should not be precluded from attempting to establish job availability in the area where the claimant is actually residing. It reasoned that such an interpretation of the Act would be absurd and unreasonable.

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The Personal Animus Exception is an affirmative defense available to employers to rebut the presumption that an injury that occurs on the employer's premises is work-related. The defense may be used to establish that a claimant's injuries do not arise out of the course of the claimant's employment.

In M&B Inn Partners, Inc. v. WCAB (Petriga), __A.2d__ (Pa. Cmwlth., 1201 C.D. 2007, filed January 8, 2008), a claimant was aggressively sexually harassed by a client. The employer promised, but failed, to remove client from the premises. As a result of the incidents, the claimant experienced depression, anxiety, insomnia, nightmares, and weight loss. The Commonwealth Court rejected the employer's argument on appeal that the situation fell under the personal animus exception and reasoned that the client had no prior relationship with the claimant. The Court also reiterated the principle that if a claimant is an innocent victim of an attack, then it can be considered an unexpected event that arose in the course of employment.

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Martin, Banks, Pond, Lehocky & Wilson is pleased to announce the appointment of David F. Stern as a partner of the firm. David has been with the firm since 2004 and focuses his practice solely on the representation of injured workers in workers' compensation matters. Prior to joining the firm, he worked on the defense side of workers' compensation at one of the leading defense firms in Philadelphia, representing insurance carriers and employers.

Mr. Stern has published several articles on workers' compensation in the Legal Intelligencer and is a frequent speaker at seminars in this area of law. He is a member of the Philadelphia and Pennsylvania Bar Associations and Trial Lawyers Associations. In 2006, Mr. Stern was recognized by the First Judicial District of Pennsylvania by being enrolled in their Pro Bono Roll of Honor. Mr. Stern was appointed to the Membership and Amicus Curiae Committees of the Pennsylvania Trial Lawyers Association. He is an active volunteer in the Philadelphia Volunteers for the Indigent Program (VIP), where he handles a variety of cases for underprivileged individuals on a pro bono basis.

Continue reading "David F. Stern Named Partner" »

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