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October 01, 2015 | The Legal Intelligencer

Amendment to Workers' Comp Act Unlawfully Delegated Power

Beginning in 2003, there have been a number of significant appellate decisions dealing with Section 306(a.2) of the Workers' Compensation Act. The section, added as part of the 1996 Act 57 reforms to the act, created the impairment rating evaluation (IRE), which can be used by the employer to convert the status of a claimant's benefits from total to partial disability in nature should the IRE find an injured worker's "whole body impairment" to be less than 50 percent, according to the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment." Everything from the automatic conversion element of the section to the proper definition of "maximum medical improvement" to the competency of the IRE physician has been addressed. The various, novel attacks to the section have been necessary since in almost every instance an IRE results in a whole-body impairment of less than 50 percent and therefore places a 500-week cap on the employer's exposure for indemnity benefits. Invalidating IREs on grounds other than the percentage of whole-body impairment has been the only real successful avenue for injured workers.
6 minute read
September 03, 2015 | The Legal Intelligencer

Commonwealth Court Decision Provides Clarity in UEGF 45-Day Rule

The Uninsured Employers Guaranty Fund (UEGF) was established by the legislature in 2006 to provide compensation for individuals injured while working for employers who failed to maintain workers' compensation insurance. An injured worker can seek recovery from the UEGF once he or she has learned that the employer does not have insurance. The Workers' Compensation Act provides that the injured worker must furnish the UEGF with notice of a claim "within 45 days after the worker knew that the employer was uninsured." The UEGF must then determine whether to begin making payments to an injured employee within 10 days of receiving the notice of a claim. One of the factors in this determination is whether the employer can show proof of insurance. If the employer is unable to provide that proof within 14 days, then a rebuttable presumption is created that the employer is not insured. After the UEGF receives this notice of a claim, it retains the right to voluntarily accept it within 21 days, or afford the injured worker an opportunity to file a claim petition against the UEGF.
6 minute read
August 06, 2015 | The Legal Intelligencer

Seeing 'Pipeline Systems' Decision in a Greater Context

Last month, the Commonwealth Court decided the matter of Pipeline Systems v. Workers' Compensation Appeal Board (Pounds) (Pa. Commw Ct. No. 1577 C.D. 2014, Opinion by Judge Colins, filed July 7, 2015). Essentially, the court sustained the workers' compensation judge and the Workers' Compensation Appeal Board in affording the claimant compensation for injuries he suffered while attempting to assist a fellow employee who fell into a concrete pit. The issue was whether the claimant was in the course and scope of his employment at the time of the injury.
9 minute read
July 21, 2015 | The Legal Intelligencer

Helping Injured Worker Is Within Scope of Employment

An employee who became injured while trying to help another worker in danger was within the course and scope of employment for workers' compensation purposes, the Commonwealth Court has ruled.
5 minute read
June 04, 2015 | The Legal Intelligencer

'Prompt Written Notice' Only Applies to Current Benefits Recipients

Last month, in the matter of School District of Philadelphia v. Workers' Compensation Appeal Board (Hilton), No. 34 EAP 2014, the Supreme Court of Pennsylvania addressed the employers' notice requirement of Section 306(b)(3) of the Workers' Compensation Act as it pertains to a denied claim. The purpose of Section 306(b)(3) is to compel the employer to share with the injured worker any new medical information about a claimant's physical capacity to work and its possible impact on existing benefits so a claimant will be put on notice that there was a physical change in his or her condition that obligated the claimant to look for available work.
7 minute read
May 07, 2015 | The Legal Intelligencer

Pa. Supreme Court's Perplexing Decision on Subrogation

Last week, the Pennsylvania Supreme Court rendered its long-awaited decision in Liberty Mutual Insurance v. Domtar Paper, No. 19 WAP 2014. The court had taken up the case from the Superior Court to determine whether Section 319 of the Pennsylvania Workers' Compensation Act confers on employers or their workers' compensation insurance carriers a right to pursue their subrogation interests directly against a third-party tortfeasor when the claimant in the workers' compensation matter takes no action against the third-party tortfeasor.
7 minute read
April 29, 2015 | The Legal Intelligencer

Workers' Compensation 'Reform' Unnecessary After Rate Cut

After years of being threatened with wholesale changes to Pennsylvania's workers' compensation law, driven largely by the Chamber of Commerce and a perception that insurance costs are out of control, it appears that a respite is warranted. In March, the Wolf administration announced a significant rate cut in workers' compensation insurance, while maintaining benefit levels for injured workers. Therefore, the impetus for imposing draconian reform to the system would seem to no longer exist—if it ever did.
6 minute read
March 05, 2015 | The Legal Intelligencer

The Threat of a Tax on Legal Services Returns in Pennsylvania

Just when you thought it was safe to practice law without the specter of becoming a taxing conduit of the government looming, our new governor, Tom Wolf, has begun production on Tax on Legal Services II.
5 minute read
February 05, 2015 | The Legal Intelligencer

Determining When Maximum Medical Improvement Is Reached

There is, perhaps, no other section of the Workers' Compensation Act that has been under greater scrutiny by the appellate courts than Section 306(a.2), dealing with impairment rating evaluations (IREs). Of course, the IRE, which was to have much greater significance in the Pennsylvania workers' compensation practice than it does, is used by the employer to determine the percentage of "permanent impairment" an injured worker suffers following the receipt of 104 weeks of total disability benefits. In the event an injured worker's "whole body impairment" is determined by an IRE to be less than 50 percent according to the American Medical Association Guides to the Evaluation of Permanent Impairments, a claimant's benefits can shift from total to partial in nature, without changing the amount of compensation paid.
6 minute read
January 08, 2015 | The Legal Intelligencer

Commonwealth Ct. Defers to High Court on Abnormal Working Conditions

At the end of last year, the Commonwealth Court decided the matter of Pennsylvania Liquor Control Board v. Workers' Compensation Appeal Board (Kochanowicz), No. 760 C.D. 2010, which it received on remand from the state Supreme Court after its prior decision in the case was vacated. The court was directed to reconsider the matter in light of the prior Supreme Court decision in Payes v. WCAB (Commonwealth of Pennsylvania State Police), 79 A.3d 543 (Pa. 2013), decided just over a year ago. The Supreme Court in Payes had taken the lower appellate tribunals to task for the manner in which they had been dealing with work-related psychological injuries—often substituting their own findings for those of the trial court. The case restored the appropriate power to the fact-finder in "mental-mental" psychiatric work injury claims, or those stemming from nonphysical stimuli.
5 minute read

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