Weber Gallagher Simpson Stapleton Fires & Newby LLP

April 04, 2008 : Weber Gallagher Attorneys Defeat Workers' Compensation Appeal

Zachary M. Rubinich and Megan K. Murphy successfully defended a Petition for Review before the Commonwealth Court of Pennsylvania in Linton v. WCAB (Amcast Industrial Corporation).

On March 26, 2008, the Court denied and dismissed an injured worker’s Petition for Review seeking workers’ compensation benefits during the time period he failed to appear for an updated expert vocational interview following a Judge’s Order compelling his appearance.  During the appellate litigation, the injured worker’s Petition For Review challenged the Workers’ Compensation Appeal Board’s affirmation of the Judge’s Decision suspending the injured worker’s compensation benefits during the time period he refused to attend the expert vocational interview. 

In its 12-page Opinion, the Commonwealth Court rejected all four issues presented by the injured worker on appeal. First, the Court found that employer’s Suspension Petition was not barred by the doctrines of collateral estoppel or res judicata.  The Court explained that the issue of suspension of benefits as a result of the injured worker’s failure to appear at a judicially ordered updated expert vocational interview was not previously litigated.  Second, the Court rejected the injured worker’s argument that the Judge lacked subject matter jurisdiction to decide the Suspension Petition.  Third, the Court aptly noted that the injured worker was required, per Section 314 of the Pennsylvania Workers’ Compensation Act, to comply with the Judge’s Order compelling his attendance at an updated expert vocational interview.  When the injured worker did not comply, employer’s proper remedy was to file a Suspension Petition.  The Court noted that the injured worker failed to offer any reasonable excuse for his failure to appear at the judicially ordered expert vocational interview.  Thus, the injured worker was not entitled to collect workers’ compensation benefits during his period of non-compliance with the Judge’s Order.  Finally, the Court rejected claimant’s request for counsel fees.  The Court noted that since claimant did not prevail in whole or in part in the underlying litigation, there was no basis for seeking attorney’s fees.