Pennsylvania Workers' Compensation Update - 1st Quarter '10


Category: Pennsylvania

Duferco Farrell Corp. v. WCAB (Zuhusky), 1304 C.D. 2009 (Filed  January 14, 2010)

Issue: Whether an employer is entitled to the presumption that a claimant has voluntarily withdrawn from the labor market when he accepts a pension from a source other than the employer?

Answer:  Yes.

Analysis: Claimant suffered a work injury involving his knee accepted via Notice of Compensation Payable. Claimant returned to work modified duty and his benefits were modified. He subsequently went off of work at which time he underwent knee surgery and filed a Reinstatement Petition. Claimant acknowledged that he had applied for and been granted Social Security Retirement Benefits and subsequently applied for and received a pension through his union. He further acknowledged that his physician had released him to return to modified duty, but he had not looked for work within those restrictions. He also conceded that he had planned to retire following his knee surgery.  The WCJ granted the Reinstatement Petition and awarded unreasonable contest fees. The WCAB affirmed.

The Commonwealth Court reversed. The Court agreed with the Employer's argument that Hensal applied such that Claimant's acceptance of a pension established a rebuttable presumption that he had voluntarily retired from the workforce and therefore he was obligated to show that he had been looking for work. Hensal, 948A.2d at 910 (citing Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995)). The Court held that Claimant had not met his burden and therefore, he was not entitled to reinstatement. The Court noted that it would be overly burdensome on an employer to establish that a claimant had no intention of returning to the work force where, as here, he mentioned to his employer that he intended to retire, he applied for and accepted both Social Security Retirement and a Union Pension.

Conclusion:   The rebuttable presumption of voluntary removal from the workforce applies even when the pension applied for  and received by the claimant is from an entity other than the time of injury employer.

Ashman v. WCAB (Help Mates, Inc., 1429 C.D. 2009 (Filed January 11, 2010)

Issue: Whether an employer is obligated to issue a Notice of Ability to Return to Work every time there is a subtle change in the claimant's restrictions and the claimant is actually working?

Answer: No.

Analysis: Claimant filed a Claim Petition seeking a closed period of total disability benefits and an open period of partial disability benefits. Claimant also filed a Penalty Petition alleging defendant failed to properly investigate her claim. The testimony established that after a period where Claimant was off work entirely she accepted a modified duty job with her Employer and that her Employer modified her work load each time her treating physician revised her restrictions. However, Employer did not file a Notice of Ability to Return to Work (LIBC 757) at the time of her original release or when her restrictions changed. Claimant subsequently obtained a slip from her treating physician taking her off of work completely. The WCJ granted the claim but found that she was capable of continued modified duty and therefore modified her benefits. The WCJ denied the penalty petition and request for unreasonable contest. There were some procedural remands but ultimately, the case went to the Commonwealth Court on the issue of whether the Employer could be successful in maintaining a modification status when the Employer did not send an initial LIBC 757 and did not send new ones when claimant's restrictions lessened.

To the Commonwealth Court, Claimant argued that the WCJ erred in modifying her benefits to TPD as Employer never issued an LIBC 757 and didn't issue one each time her restrictions changed. The Commonwealth Court disagreed. The Court held that the Notice of Ability to Return to Work does not need to be issued for "minor changes" when a claimant is working.

Conclusion:   When a claimant is working, the defendant is not required to issue a Notice of Ability to Return to Work each time there is a minor change in the claimant's medical condition and work restrictions.  However, we nevertheless recommend that you issue this form in any situation where there has been a new physician's release or a different medical release as it is required in virtually every situation as a prerequisite to succeeding on a petition based on job availability.

Department of Labor and Industry, Bureau of Workers' Comp. v. WCAB (Excelsior Ins.), 2012 C.D. 2008 (Filed January 11, 2010)

Issue: Whether an employer is entitled to reimbursement from the Supersedeas Fund for compensation that was paid after the parties entered into a Third Party Settlement Agreement?

Answer: Yes.

Analysis: Employer initially filed a Petition for Suspension  based upon work available within claimant's restrictions.  While that Petition was pending, Claimant settled his third party action that gave rise to his workers' compensation claim and Clamant and Employer entered into a third party settlement agreement.  Thereafter, Claimant received only $164.42 per week instead of his full compensation rate.  Ten months after signing the third party settlement agreement, the parties entered into a full C&R.  The parties continued to litigate the Suspension Petition which was ultimately granted by the WCJ.  Employer then sought reimbursement from the Supersedeas Fund for benefits paid following its Petition.   The Fund contested Employer's right to reimbursement, asserting that what was paid was not compensation but payments for Employer's share of the costs of recovering the settlement in the third party action, i.e. attorney's fees and costs, which cannot be recovered from the Fund.  The Commonwealth Court disagreed and held that the payments made were in fact compensation.  Moreover, the Court held that Employer did not receive full reimbursement as a result of the third party settlement since it remained obligated to continue paying claimant and that benefits paid to Claimant are not suddenly stripped of being compensation simply because there is a third party settlement agreement. Therefore, supersedeas fund reimbursement was appropriate.

Conclusion:  Mere entry into a third party settlement agreement does not affect superesedeas fund recovery.

Barrett v. WCAB (Sunoco, Inc., (R&M)), No. 793 C.D. 2009, (Filed February 2, 2010)


  1.  Whether a claimant can challenge an IRE determination via Review Petition filed within 60 days of the Notice of Change of Status without first obtaining an IRE of greater than 50%?
  2. Whether claimant counsel can be ordered to reimburse litigation costs paid by defendant which are subsequently found not reimbursable?


  1. Yes
  2. Yes

Analysis:   Claimant suffered a work injury to his left shoulder which was accepted via NCP. Subsequently, while traveling to an IME, claimant was involved in a motor vehicle accident in which he suffered a cervical and lumbar strain and sprain, acknowledged via NCP. Upon payment of 104 weeks of TTD benefits, Employer requested an IRE. The IRE physician found an impairment of less than 50%,  and the Employer filed a Notice of Change in Status form converting Claimant's benefits from TTD to TPD.   Claimant filed a Review Petition,  challenging the change in status and subsequently filed a second Review Petition to expand the injury description beyond the cervical and lumbar strain and sprain. Employer filed a Termination Petition.

The WCJ granted the Review Petition and expanded the injury description but denied the Review Petition challenging the validity of the IRE. The WCJ denied the Termination Petition and ordered Employer  to pay the all of Claimant's litigation costs, including the cost of the IRE physician's deposition.

Both parties appealed. The WCAB remanded for a determination as to whether the IRE physician's testimony was limited to only the Review Petition on which claimant did not prevail. The WCJ found that the IRE physician's testimony was so limited.  Both parties appealed.

The WCAB affirmed in all respects, except it found the IRE physician's testimony also went to the Termination Petition on which claimant succeeded and therefore the expense was reimbursable. Both parties again appealed.

To the Commonwealth Court, Claimant argued that the IRE was invalid as it did not comply with the AMA Guidelines and did not provide a rating for each body part involved.    Employer argued that the WCJ erred in allowing the Claimant to depose the IRE physician without an independent IRE that found Claimant to be at least 50% impaired . The Court found that because the Claimant filed the Review Petition within the 60 day period following the Notice of Change in Status Form, Claimant could challenge the validity of the IRE via deposition testimony or otherwise and was not required to obtain an IRE greater than 50%.

The Court agreed with Employer's position that the IRE physician was deposed solely related to the Review Petition on the IRE issue, that Claimant lost on this issue, and therefore costs attributable to that Petition were not reimbursable. The Court further agreed with Employer that the overpayment to claimant's counsel for these costs can be corrected and ordered counsel to reimburse the Employer for the amount of the IRE physician's deposition cost.

Conclusion:   The claimant may challenge the validity of an IRE without first obtaining an IRE showing an impairment of 50% or greater if the challenge is filed within the 60 day period before the change in status becomes effective.  Claimant counsel may be ordered to repay litigation costs paid pursuant to an order which is later overturned.

MV Transportation v. WCAB (Harrington), No. 974 C.D. 2009 (Filed February 25, 2010)

Issue: Whether a defendant may file a UR against all of claimant's physical therapists in one UR?

Answer: Yes.

Analysis: Employer filed a UR against all of Claimant's physical therapists in one UR.  On page one, Employer listed the main therapist (Shenko) and on page 2,  advised that it was challenging not only Shenko's physical therapy but also any other identical physical therapy being performed in the same office.  The UR Reviewer found all treatment rendered by therapist Shenko unreasonable and unnecessary but refused to address like treatment provided by any other therapist at the facility on the basis that the Employer had not properly requested review of that treatment.  Both Employer and Claimant filed  Petitions to Review UR and the WCJ affirmed the finding that the treatment rendered by Shenko was unreasonable and unnecessary and rejected the argument that the finding should apply to all physical therapists in the practice. Employer appealed. The WCAB affirmed.

The Commonwealth Court reviewed the cases of Bucks County Community College v WCAB and Schenck v WCAB which had led to the presumption that a separate UR request had to be filed for each provider within a practice. The Bucks County case dealt with a UR that sought to review treatment by multiple physicians in the same practice and specialty. The Schenk case addressed the propriety of applying a UR determination against one physician to the treatment of a subsequent physician. The Court found that these cases were distinguishable in that they addressed treatment by physicians who have the power to act independently of each other.

The Court found that the physical therapy provided in this matter, however, was under the prescription of just one physician and was simply carried out by multiple physical therapists under the physician's supervision. The Court noted that the Claimant could be treated by a different physical therapist at each visit and it would not be reasonable to require the Employer to name each individual therapist when the challenge is to the entire course of physical therapy. Additionally the Court recognized the absurdity of different UR determinations for identical treatment being rendered under the direction of only one physician.

The Court ultimately concluded that it is unnecessary to file a UR against each therapist performing physical therapy in the same office.

Conclusion:  In order to challenge physical therapy in one office involving multiple therapists, the Utilization Review Request should name the prescribing doctor AND the facility where claimant receives that therapy.  By doing this, you should be able to challenge all physical therapy in one UR and avoid the cost of multiple URs and the ridiculous result when the UR Determinations are inconsistent.

We anticipate that the Bureau may have to revise the UR request as a result of this change in the law.  We also anticipate that the Bureau may improperly reject properly filed URs under the Harrington decision.

Wells v WCAB (Skinner), No. 1136 C.D. 2009 (Filed March 12, 2010).

Issue: Whether an Employer must issue a Notice of Ability to Return to Work (LIBC 757)  where it seeks a suspension or modification based upon medical evidence of change in condition even if the claimant is totally disabled from returning to work due to non-work related medical conditions?

Answer: Yes.

Analysis: Claimant suffered a work injury to his back.  He also suffered from diabetic neuropathy, atrial fibrillation, chronic obstructive pulmonary disease, and high blood pressure.  The medical evidence revealed that claimant was totally disabled as a result of his non-work related conditions.  With regard to his work-related back injury, claimant could work in a sedentary position.  The WCJ granted the Suspension Petition, finding that because Claimant was totally disabled as a result of non-work-related conditions, employer was not required to show job availability.  The WCJ also concluded that Claimant failed to respond in good faith to the job offer.  Claimant appealed arguing that there was never a Notice of Ability to Return to Work issued.  The WCAB reversed.

The Commonwealth Court affirmed.  In its decision, the Court found that under Section 306(b)(3), the Employer must issue the Notice of Ability to Return to Work when seeking a change of status due to the receipt of medical evidence.  In this case, even though the Claimant was totally disabled due to non-work-related conditions, it was not conclusive that this disability was permanent.  Therefore, Employer was required to prove job availability.  Whenever an employer pursues a Modification/Suspension based on  job availability, it must issue a Notice of Ability to Return to Work.

Conclusion: This case further exemplifies the importance of issuing a Notice of Ability to Return to Work in virtually all situations.

David G. Greene, Esq.

Renee M. Porada, Esq.

Contributing Authors
Timothy Yunker, Esq./ Megan Murray, Esq./ Renee M. Porada, Esq.

Media Contacts

Lexi Burchmore

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