TOP 10 DEVELOPMENTS IN PENNSYLVANIA WORKERS’ COMPENSATION IN 2021
1. The Commonwealth Court holds that if the 120th day for notice of a work injury falls on a weekend or holiday, notice is extended to the next business day, pursuant to the Statutory Construction Act.
Holy Redeemer Health Systems v. WCAB (Figueroa), 245 A.3d 355 (Pa. Cmwlth. 2020)
The Statutory Construction Act provided that the 120-day notice period for a workers’ compensation claimant to report her work injury to her employer did not end on a Sunday. Thus, the claimant’s report came within the notice period of the Workers’ Compensation Act, in the employer’s appeal from adjudication of the Workers’ Compensation Appeal Board awarding benefits, even though the claimant’s report was made on the 121st day and would otherwise be one day late. Although the claimant’s employer was open for business on Sunday, the legislature did not include language in the Workers’ Compensation Act to make calculation of the notice period dependent on whether an employer operates over the weekend.
2. The Pennsylvania Supreme Court holds that under § 306 (a.1) of the Pennsylvania Workers’ Compensation Act, an employer is not entitled to reimbursement of benefits paid to a claimant during a pre-conviction incarceration.
Carl Sadler v. WCAB (Philadelphia Coca-Cola Company), 244 A.3d 1208 (Pa. 2021)
Because the claimant was not incarcerated during any period of time after his conviction, no basis existed for termination of his benefits as a result of his incarceration. The clear language of §306(a.1) of the Act authorizes the suspension of benefit payments only during periods of incarceration served after a conviction and makes no provision for suspending benefits during periods of incarceration served prior to a conviction.
3. Commonwealth Court addresses the retroactivity of the Supreme Court’s decision in Whitmoyer, holding an employer is required to reimburse medical payments as of the date Whitmoyer was decided, not as of the date of a signed third party settlement agreement.
Beaver Valley Slag Inc. v. Jason Marchionda (WCAB) and Jamie Young, Guardian v. Beaver Valley Slag, Inc. (WCAB), 247 A.3d 1212 (Pa. Cmwlth. 2021)
According to the Court, the Supreme Court's Whitmoyer ruling, which held that § 319 of the Act precluded employers from subrogating future medical benefits after a Third Party Settlement Agreement (TPSA) was executed, did not apply retroactively to the date of the 2014 execution of the TPSA, but applied as of the date of the Whitmoyer decision.
4. A judge’s determination that claimant sustained a disabling, work-related injury was not based on impermissible speculation as the judge believed the claimant and found sufficient corroborative evidence in the record to support her testimony.
West Penn Allegheny Health System, Inc. and BrickStreet v. WCAB (Cochenour), 251 A.3d 467 (Pa. Cmwlth. 2021)
Injuries sustained by the claimant from a ride on the employer’s shuttle bus are found compensable, even though no injury was shown on video of shuttle bus, which was pulled by the employer based on the claimant’s description of driver. The employer was entitled to a credit for the gross pre-tax amount of the claimant’s short-term disability payments, rather than the judge’s award for the amount the claimant received.
5. Commonwealth Court holds that Act 111 applies to injuries that occurred prior to its enactment and that the employer is credited for payment of pre-Act 111 temporary total disability benefits and partial disability benefits relative to their obligations under Act 111 for IREs.
Johnny Pierson, Jr. v. WCAB (Consol Pennsylvania Coal Company LLC), 250 A.3d 547 (Pa. Cmwlth. 2021)
Revision of the Workers’ Compensation Act to include a provision requiring the claimant to submit to an impairment rating evaluation (IRE) after receiving total disability compensation for a period of 104 weeks did not constitute unconstitutional delegation of legislative authority.
6. Primarily because of the employer’s ownership and control of the availability and use of its trucks, the decedent driver of a tow truck was an employee at the time of his work-related fatality.
Berkebile Towing and Recovery v. WCAB (Harr, State Workers’ Insurance Fund and Uninsured Employer’s Guaranty Fund), 254 A.3d 783 (Pa. Cmwlth. 2021)
An employer-employee relationship existed between the tow truck driver and the towing business, as required for an award of fatal claim benefits under Workers’ Compensation Act to the driver’s surviving minor children following his work-related death. While there was a written agreement between the business and the driver stating no employment relationship existed, the driver had the ability to decline jobs, was paid per job, was responsible for his own income taxes, and the business had the ability to exercise significant control over the driver’s work. The business owned the truck bearing its name and the information the driver needed to do his job, the driver was not allowed to use or lend the truck for work not with the business, the business set rates and collection of payment for jobs performed, the driver was on call on “24/7” basis, and the business could stop assigning the driver calls and reclaim its truck at any time.
7. Commonwealth Court holds that a suicide was not intentional and, therefore, the fatal claim was compensable.
South Eastern Transportation Authority (SEPTA) v. WCAB (Hansell), 255 A.3d 689 (Pa. Cmwlth. 2021)
The employee’s lower back injury directly caused the employee to become dominated by a disturbance of the mind so severe it overrode normal rational judgment and culminated in the employee’s suicide.
8. Injury sustained by claimant as a result of a fall from a shuttle after it arrived at a building where claimant was reporting for work was compensable.
Maurice Stewart v. WCAB (Bravo Group Services, Inc.), 258 A.3d 584 (Pa. Cmwlth. 2021)
The claimant was entitled to compensation benefits for an injury sustained upon his arrival at the front entrance of the employer’s building when he slipped and fell off of a shuttle. At time of his injury, the claimant had already arrived at the building where he worked. The shuttle took the claimant to the front entrance, where it stopped a few feet from the revolving doors of building. The claimant slipped and fell a few feet from the front entrance, a place where the employer’s business or affairs were being carried on. The claimant’s presence was required by the nature of his employment. The front entrance was a reasonable means to access the premises. The claimant’s injury occurred 28 minutes before start of his shift, and the ground where he landed was a condition of the premises that contributed to his injuries.
9. The Commonwealth Court upholds a judge’s decision to enforce a prior judicially approved C&R Agreement wherein claimant agreed to cooperate with the signing of Medicare Set Aside paperwork and later refused.
Lehigh Specialty Melting, Inc. v. WCAB (Bosco), __ A.3d __, 2021 WL 4304915
The claimant failed to demonstrate fraud, deception, duress, mutual mistake, or unilateral mistake caused by an opposing party’s fault to negate a compromise and release agreement settling claims with the employer, although a change in the law made medical marijuana available following execution of the agreement. An agreement upon the terms existed at the time the parties entered into the agreement and it was approved. Medical marijuana was not contemplated at the time the agreement was approved, and the claimant never appealed the approval of the agreement. The claimant accepted the monetary settlement to resolve the indemnity portion of his claim and agreed to cooperate with the employer’s effort to secure a Medicare set aside arrangement, which would not have funded medical marijuana.
10. Commonwealth Court holds filing a Notice of Temporary Compensation Payable paying indemnity benefits and filing a Medical-Only Notice of Compensation Payable to stop payment does not obligate employer to also file a Notice Stopping Temporary Compensation Payable and a Notice of Compensation Denial.
Raymour & Flanigan v. WCAB (Obeid), __ A.3d __, 2021 WL 3610114
The employer, which had filed a Notice of Temporary Compensation Payable paying indemnity benefits to claimant, was not required to file a Notice of Compensation Denial in addition to the Medical-only Notice of Compensation Payable it sent the claimant in order to stop paying indemnity benefits. The Department of Labor & Industry, Bureau of Workers’ Compensation’s regulation required the employer, when it sought to cease paying indemnity benefits, to either file a Notice of Compensation Payable, of which a medical-only notice was one variety, or a notice advising a claimant that the payment of temporary compensation did not constitute an admission and that the claimant must file a claim to establish liability of the employer.
What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.