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Dear Editor: This letter is in response to a portion of an article, “Two High Court Cases Clarify Authority of WCJs,” appearing in The Legal Intelligencer on Jan. 15, written by Dan DiLoretto, reviewing the recent Pennsylvania Supreme Court case of Rossa v. WCAB (City of Philadelphia). My office represented Rossa, a minor, throughout litigation. The Pennsylvania Supreme Court, in a 5-2 decision, affirmed the decision of the workers’ compensation judge and Commonwealth Court that claimant had established she was the child of a police officer tragically killed in the line of duty six weeks after her birth. This entitled claimant to death benefits under Section 307(1) of the Workers’ Compensation Act. The court also affirmed the Commonwealth Court’s ruling that the WCJ had authority to decide the issue of paternity under the Workers’ Compensation Act. Yet, a review of the article in The Legal would lead one to believe that certain objective evidence was in the record that substantially negated proof of paternity. Further, the article asserts, the decision “would effect the whole panorama of property law, especially within the realm of a state law.” Neither statement is accurate. The facts relate that claimant’s mother was only 19 at the time she and the decedent began a romance. She testified as to the particulars of this affair, including the social and sexual relationship involved. Other witnesses confirmed a significant portion of the testimony. Although the deceased broke off the affair subsequent to learning about the pregnancy, the deceased continued to speak with claimant’s mother regarding the pregnancy and visited her during pregnancy. The deceased was kept advised as to how the pregnancy was proceeding through telephone calls. Prior to his death, the deceased was identified on the birth certificate the father. He was named as the father on welfare papers, which would allow the Department of Welfare to file suit against the police officer for reimbursement of welfare payments made due to lack of support payments. Contrary to the assertions in the previous article, the only evidence introduced by the defendant was the testimony of the decedent’s father, who acknowledged the relationship between his son and claimant’s mother but insisted his son had broken off the affair approximately 11 months prior to the birth of the claimant. It is to be noted that after the WCJ found in favor of the claimant, there was never a finding during appellate review that the claimant had failed to establish paternity by a preponderance of the evidence or that the evidence presented did not represent substantial competent evidence to support such a finding. Rather, the only time benefits were not awarded was when the Workers’ Compensation Appeal Board reversed the award of benefits solely on the issue of jurisdiction. Obviously, the Commonwealth Court reversed the board’s decision. While it is true DiLoretto briefly participated in part of the litigation, I disagree with several points brought out in his summary of the case. First, the article asserts the original WCJ on the case, Inez Lundy, agreed that the court of common pleas had exclusive jurisdiction over the proceedings. That is incorrect. Lundy actually received testimony of claimant’s witnesses on the issue of paternity over the objection of the defendant. Lundy put the case on hold because the late Martha Hampton, a former partner at Galfand Berger representing the claimant at that time, advised Lundy that she was attempting to obtain the cooperation of the defendant in being provided blood samples of the deceased so that genetic testing could be utilized. The deceased’s father refused to agree to a disinterment so that the testing could be conducted. Second, the article alludes to “medical documents showing that the mother and decedent had a different blood group than that of claimant.” No such evidence exists. Since the defendant had conducted a murder investigation of a city police officer, one would assume the defendant would have in its possession blood samples of the deceased. The defendant never provided such sampling. The article would have you believe Lundy did not feel she had jurisdiction to decide the issue and that important evidence was part of the record and was merely ignored. Finally, contrary to the article’s assertion, all property and estate lawyers need not become workers’ compensation experts. The court specifically stated that the WCJ does have the authority to determine paternity, “not for all purposes,” but for the purposes of determining the eligibility of the child for [workers' compensation] benefits. . . . “ The court’s majority opinion really is in line with numerous decisions from other states adhering to the authority of a WCJ to decide issues of paternity for compensation matters alone. Even Justice Sandra Schultz Newman, in her dissent, reviewed opinions from 11 other states that have addressed this same issue and found the WCJ has authority to determine whether paternity exists for purposes of establishing workers’ compensation benefits. With such limitations, the rule of law in property and estate matters will not be changed. The court’s decision is also consistent with Pennsylvania cases affirming the authority of a WCJ to deal with compensation benefits in domestic settings. For example, in death cases, a WCJ determines whether the claimant is a surviving spouse; whether there was dependency on the deceased to allow payments to a surviving spouse, parent, brother or sister; whether a surviving spouse is involved in a meretricious relationship; and whether the deceased has taken on an “in loco parentis” relationship with the child. As the court stated in Rossa: “Given the familial relationships that the WCJ must often disentangle, determining the eligibility of a child is not an extraordinary task. It is the responsibility that the WCJ is well able to assume.” Marc S. Jacobs Galfand Berger

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