Workers' Compensation Law Section Newsletter - International ...

Pennsylvania Bar Assn.
100 South St., P.O. Box 186
Harrisburg, PA 17108-0186
(717) 238-6715
In PA (800) 932-0311
Fax (717) 238-7182
Officers
C. Robert Keenan III
Section Chair
Brian R. Steiner
Chair-Elect
Matthew L. Wilson
Vice Chair
Peter A. Pentz
Secretary
Daniel K. Bricmont
Treasurer
Lawrence R. Chaban
Immediate Past Chair
R. Burke McLemore
Section Delegate
Council Members
Eric P. Betzner
Washington County
Hon. Martin Burman
Chester County
Nariman P. Dastur
Allegheny County
Dean V. Dominick
York County
Hon. Ada Jane Guyton
Westmoreland County
Edward H. Jordan, Jr.
Dauphin
Marla A. Joseph
Montgomery
Hon. Robert A. Krebs
Allegheny
Valerie H. Lieberman
Montgomery
Joanne C. Ludwikowski
Lycoming
Michael P. Routch
Blair County
Hon. Todd B. Seelig
Philadelphia County
Marie Jurbala Shiring
Allegheny County
Sandra L. Voss
Delaware County
Michael J. Wagner
Blair County
John J. Bagnato
Board of Governors Liaison
Workers’ Compensation Law
Section Newsletter
David B. Torrey, Editor
Vol. VII March 2013 No. 114
Fall Section Meeting
Planning in Full Swing
This year’s Fall Section Meeting, our
own “bench bar conference,” is slated for
Thurs.-Fri. Sept. 12-13 in Hershey.
Program committee chair Toni Minner,
section chair Rob Keenan , and chair elect
Brian Steiner are working with PBI and
the advisory panel to craft this year’s
Section meeting.
Electrodiagnostic testing,
penalties, offsets, IRE’s, MSA’s, an
ethics session and more are on the
agenda--plus the ever-popular roundup
of recent cases.
The open bar at this year’s reception
will feature top-shelf liquor to accompany
a lavish dessert buffet.
Faculty recruitment is about to begin.
If you are interested, please contact PBI
program attorney Susan Swope at
sswope@pbi.org or 1-800-932-4637, ext.
2260.
June 9: Tee Up for the Kids
Speaking of full swings, don’t miss the
8th Annual Kids’ Chance
Golf Outing, Sunday
June 9 at the
Hershey Club.
Full details and
registration/
sponsorship form
enclsoed, or follow
this link to the
website. May 28
registration deadline, or if you can’t make it this
is a great chance to make a donation.
All Set for Tough Problems
CLE in April
The mobile worker, compensation for
medical treatment, fee review, recent
developments, and do’s and don’ts from
the judges are the focus of PBI’s popular
advanced-level course, Tough Problems in
Workers’ Compensation.
Under the leadership of David Greene &
Norm Dastur it will be held:
♦ April 9 Philadelphia
♦ April 3 Pittsburgh
♦ April 16 Mechanicsburg
♦ April 16 simulcast locations across the
state
♦ April 16 live webcast
Details/registration on PBI website &
on the enclosed flyer.
Mediation Course Returns in
August
All three PBI conference centers will see
the return in August of How to Handle a
Workers’ Comp Mediation. See the
enclosed flyer for more info and to register.
May 16: Into the Jefferson
Anatomy Lab!
May 16 in Philadelphia offers the
opportunity to get a spot in PBI’s sell-out
course Into the Anatomy Lab, with Sam
Hodge in the morning and hands-on work in
the brand new anatomy lab at Jefferson
Medical College in the afternoon. More info
on PBI’s website.
Save the Dates for the Fall Section Meeting!
Sept 12-13, 2013 | Sept 11-12, 2014
October 7-8, 2015 | October 5-6, 2016 | October 4-5, 2017

~ Leading Developments, Court Cases ~
Message from Chairman C. Robert Keenan, III, Esq.:
“Lincoln as a Lawyer for Our Times” …………………………………………………….04
Commonwealth Court Historical Society: A Lincoln-Based CLE ………………………………..05
PBA WC Law Section Forms 100 th Anniversary Commemoration Committee …………………..11
NAWCJ Announces Annual College for WCJs (Orlando, FL) ..…………………………………16
SEAK Announces Annual Workers’ Compensation
And Occupational Medicine Conference (Hyannis, MA) ………………………………...15
UPDATE: Labor & Industry Working on New Computer System for WC Program …………….09
L&I WCJ Rules Committee Proposes, Publicizes, Changes to Rules …………………………… 14
The Affordable Care Act and Effects on the Workers’ Compensation System:
In General, Cost-Shifting, and the Implications of Employer-Sponsored Wellness Programs
by David B. Torrey, WCJ ……………………………………….. 30
~ Cases, in General ~
Undocumented Worker – Ongoing Entitlement to Benefits – Res Judicata – Waiver – Ortiz …43
Compromise and Release – Effect of Release – Additional Injury – DePue …………………...44
Subrogation – Spoliation – Burden of Proof – “Preponderance” – Glass ..……………………..46
Subrogation – Employer’s Fumble of Lien Amount – Richman ………………………………. 51
Availability of Work – Access to Transportation – Burden of Proof –
Reinstatement/Modification Dichotomy – North Pittsburgh Drywall ………………….46
Reinstatement Petition – Job Availability – Funded Employment –
Quit From Funded Employment – Napierski ………………………………………….. 49
~ Notes ~
Kids’ Chance: The National Workers’ Compensation Charity .……………………………….. 14
Kids’ Chance Golf at BWC Seminar 2013: June 2013 .……………………………………….. 15
Unpublished Opinions Committee .……………………………………………………………..16
Issue Expedition Committee .……………………………………………………………………16
~ Articles ~
An Update on the SMART Act
by Anita Reno, Esq………………………………………………06
Notes on Assessing Credibility,
the Value of Surveillance Evidence, and Attorney Performance
by David B. Torrey, WCJ ……………………………………….17
Same-Sex Domestic Partner as Potential Fatal Claim Beneficiary:
A Pennsylvania Update and the Current Alaska Challenge
by David B. Torrey, WCJ ……………………………………… 25
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Thoughts on Adoption of Proposed Findings
by David B. Torrey, WCJ ……………………………………… 27
~ Archives of Compensation ~
Workers’ Compensation and the Right of Trial by Jury
by David B. Torrey, WCJ ……………………………………….12
~ Recent Articles ~
David B. Torrey, Reports as Admissible in Evidence, LEX & VERUM (February 2013). (p.41)
Rebecca Shafer, Off-site Transitional Duty Very Effective in Reducing Workers Comp Costs
(WorkersCompensation.com) (Feb. 20, 2013). (p.42).
~ Book Notes ~
THE SYMPATHETIC STATE:
DISASTER RELIEF AND THE ORIGINS OF THE AMERICAN WELFARE STATE
by Michele Landis Dauber (University of Chicago Press 2013). (p.39)
EMPLOYERS’ LIABILITY AND WORKERS’ COMPENSATION
by Ken Oliphant and Gerhard Wagner (Editors)
(De Gruyter/European Centre of Tort and Insurance Law 2012). (p.40)
AN INJURY LAW CONSTITUTION
by Marshall S. Shapo (Oxford University Press 2012). (p.40)
All materials (except as otherwise noted) are written and edited by David B. Torrey, Workers’ Compensation
Judge, Department of Labor & Industry, Office of Workers’ Compensation Adjudication, 411 7 th Avenue,
Suite 310, Pittsburgh, PA 15219 (412)-565-5277 x1019; e-mail: DavdTorrey@aol.com; Website:
http://www.davetorrey.info.
Editors: David Henry, WCJ; Nariman Dastur, Esquire; Brad Andreen, Esquire; Michael Routch, Esquire;
Mark Cowger, Esquire; Thomas R. Bond, Esquire.
Front page prepared by Pennsylvania Bar Institute in cooperation with the Editor and the Section.
All statements and comments are purely those of the author, and are not to be attributed to the Department
of Labor & Industry and/or the Workers’ Compensation Office of Adjudication. The author has avoided in
this text any manifestation of bias or prejudice based upon race, sex, religion, national origin, disability, age,
sexual orientation or socioeconomic status.
3

MESSAGE FROM THE SECTION CHAIR
“LINCOLN AS A LAWYER FOR OUR TIMES”
by C. Robert Keenan III
We workers’ compensation lawyers are the last of the circuit riders.
Do you know the shortest route between Brookville and Johnstown? Me, too.
How about Warren to Erie? Yep. Lancaster to Uniontown? Done that.
Indeed, this is such common knowledge among us that a fellow
defense lawyer unexpectedly provoked tears from his then eight-months-pregnant wife when he
casually mentioned that if he were ever found dead, it’d likely be on Route 22 between
Blairsville and Altoona. (Happy ending, though: mother and baby did well despite dad’s
unguarded comment.)
Our practice came to mind when reading Lincoln’s Ladder to the Presidency: The Eighth
Judicial Circuit, by an Illinois lawyer, Guy Fraker (Southern Illinois University Press, 2012).
This is a wonderful addition to an under-appreciated part of the life of our Sixteenth President:
his active trial practice.
There’s Lincoln asking Judge David Davis for a “writ of quietus” to stop the sound of
pigs rooting beneath the courtroom. There he is getting a great result for the Illinois Central
Railroad, and then having to sue the company when they try to beat him out of his fee. There are
the fast friends, fiercely loyal, such as Ward Hill Lamon.
We are fortunate to have Lincoln depicted on the big screen last year – the Steven
Spielberg film won a couple of Oscars, and the movie itself drew heavily on Doris Kearns
Goodwin’s solid political memoir, A Team of Rivals. And his transformation into the Great
Emancipator is depicted ably in Lewis Lehrman’s Lincoln in Peoria.
But what makes Lincoln so special to all of us, especially us lawyers? Ralph Ellison got
to the heart of it. Author of the classic The Invisible Man, Ellison threw decades of hard writing
and re-writing into a novel he never got to finish, Juneteenth. When Ellison’s drafts and notes
were put together ably and posthumously by John Callahan and released in 1999, one of the
central characters in Juneteenth, Rev. Hickman, perhaps spoke for all of us in ruminating about
“Father Abraham:”
. . . you are and you’re one of the few who ever earned the right to be
called “Father.” George [Washington] didn’t do it, though he had the
chance, but you did. So yes, it’s all right with me; yes. Yes, and
though I’m a man who despises all foolish pomp and circumstance and
all the bending of the knee that some still try to force upon us before
false values, yes, and yes again. And though I’m against all unearned
tribute which the weak and lowly are forced to pay to a power based
Chairman, PBA WC Law Section. Partner, Davies, McFarland & Carroll, P.C., One Gateway Center, Tenth Floor
Pittsburgh, PA 15222-1416; Phone: 412-338-4754; crkeenan@dmcpc.com .
4

on force and false differences and false values, yes, for you “Father” is
all right with me. Yes . . .
So, yes, let’s celebrate our profession and our colleagues who came before us, especially
Abraham Lincoln, trial lawyer.
Finally, in addition to noting the “Tough Problems” CLE next month (and featured
elsewhere in this issue of the Newsletter), please mark your calendars for these dates, too:
Monday, April 8, in Harrisburg: “Three Legal Challenges for Abraham Lincoln,”
a CLE program hosted by the Commonwealth Court Historical Society (more
details immediately below.)
Wednesday, May 8: Section Council Meeting as part of PBA Annual Meeting in
Pittsburgh (not May 9 as previously reported);
Monday-Tuesday, June 10 and 11: 12 th Annual Bureau of Workers’
Compensation Conference, Hershey, PA.
Thursday and Friday, September 12 and 13: Fall Section Meeting in Hershey.
I look forward to seeing you again, somewhere on the circuit!
COMMONWEALTH COURT HISTORICAL SOCIETY
HOLDING CLE WITH LINCOLN AS FOCUS
Harrisburg, PA
April 8, 2013, 1:30 p.m.
Dan Schuckers has written to report the Pennsylvania CLE Board
has approved the Commonwealth Court Historical Society’s application for a 3-hour (2
substantive hours and 1 ethics hour) CLE program on Monday, April 8 from 1:30 to 4:45 on the
first floor of the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Harrisburg, PA
17106.
“As befitting a historical society, the program will have a legal-historical orientation.
The title of the program is “Three Legal Challenges for Abraham Lincoln.” The first hour will
involve Lincoln and Professionalism and will be presented by Widener Professor Randy Lee and
by me. The second hour will involve a presentation by Gettysburg College history professor
Michael Birkner, and will focus on the political and legal positions of and challenges for
Presidents Buchanan and Lincoln as they faced the secession crisis of 1860-61. The third hour
will involve a presentation by Duquesne Law Professor Wes Oliver and Widener Law Professor
Michael Dimino on Lincoln and civil liberties during the Civil War and the need for the
executive branch of government to strike a balance between liberty and security during war.
The cost of the 3-credits is $100 for nonmembers of the Historical Society and $75 for
members of the Historical Society. For those who are not members of the Historical Society,
$25 of the $100 cost will entitle them to membership in the Historical Society for 2013, and they
will receive an invitation to our annual one-hour CLE presentation, our reception, and our formal
dinner on Tuesday, September 10. If you want to RSVP or if you have any questions, please e-
mail me at dan.schuckers@gmail.com.”
5

UPDATE ON THE SMART ACT:
AMENDMENTS TO THE MEDICARE SECONDARY PAYER
STATUTE (MSP) PROVIDE CERTAINTY AND EFFICIENCY
IN THE CONDITIONAL PAYMENT PROCESS,
BUT LEAVE UNANSWERED QUESTIONS
WITH REGARD TO ACTUAL PRACTICE
by Anita Ellis Reno, Esq.
I. Introduction
President Obama, on January 10, 2013, signed in to law the SMART Act (Strengthening
Medicare and Repaying Taxpayers Act of 2012). The law had been passed by both houses of
Congress as part of H.R. 1845, and was attached to the Medicare IVIG [Intravenous Immune
Globin] access bill. The good news for Workers’ Compensation practitioners is that this
legislation reforms some of the Medicare Secondary Payer (MSP) rules in an effort to promote
more cost effective, timely, and efficient settlement of claims.
The full text is available at: http://www.gpo.gov/fdsys/pkg/BILLS-
112hr1845rds/pdf/BILLS-112hr1845rds.pdf. The SMART Act amendments are codified at 42
U.S. Section 1395y(b) et seq.
II. Highlights of the SMART Act
A. Section 201 – Conditional Payment Reimbursement
There is going to be a significant change in the process of obtaining the final conditional
payment amount when settling a claim. The problem in our current practice is that the final
conditional payment amount cannot be obtained until after a claim has been settled, and the
settlement has been reviewed by the CMS contractor. We essentially settle claims with only
estimates of what the actual conditional payments may be, and it can take months to obtain final
figures. Section 201 addresses this problem by providing a timeline for this process which will
enable the parties to obtain the final figure before the settlement occurs. Section 201 will go
into effect in October 2013.
Under Section 201, the parties can notify CMS of a potential settlement, and request a
“statement of reimbursement amount” up to 120 days before a settlement is reasonably expected
to take place. CMS will provide access to claims and conditional payment information through a
website. The site should have accurate information as they must update the same within fifteen
days after payments are made.
Once CMS has received the request for a “statement of reimbursement,” it will have 65
days to respond. If it responds within that 65 day timeframe, the figure that is provided will
stand as the final conditional payment subject to recovery. Note, however, that if CMS fails to
Chair of the PBA WC Section Legislation Committee. Attorney, United States Steel Corporation, 600 Grant Street
– Room 1500, Pittsburgh, PA 15219-2800; (412) 433-2944; aereno@uss.com.
6

espond within the 65 days, it gets an additional 30 days to provide the final figure. During this
65 to potentially 95 day timeframe, the parties are in a “protected period.” During this period
the parties can rely on the figure downloaded from the CMS website as the final conditional
amount subject to recovery. This is so as long as it was downloaded within three business days
before the date of the settlement. Note also that if the settlement does not occur within 120 days
from when CMS is first notified of a settlement, the entire process must be started over.
Finally, a provision for the resolution of discrepancies is also included in Section 201. If
there is a dispute regarding the amount of the conditional payment, the attorney must provide
documentation of the discrepancy and their proposal to resolve it in writing to CMS. CMS then
must respond within eleven business days. In the event CMS fails to respond within the eleven
business days, the proposal to resolve is deemed accepted.
The obvious fly in the ointment here is the difficulty in predicting that a settlement will
occur at all, let alone within the120 days. In addition, the “protected period” of 65-95 days,
during which the figure downloaded from the website can be relied upon as the final conditional
amount, seems murky and subject to some interpretation depending on the timing of the response
from CMS. Finally, the provision for the resolution of discrepancies is still not subject to any
administrative or judicial review.
Still, the changes represent a major improvement over settling claims without having
final figures and having to wait months to obtain final figures, which has historically caused
lengthy delays in disbursing funds in some cases.
B. Section 202 – Reporting Thresholds
CMS must, by November 15 of each year, publish a minimum dollar threshold amount
below which there are no reporting and conditional payment reimbursement obligations. This
mandate starts in January 2014. The intent is to prevent CMS from pursuing small claims that
waste time and money, and to promote fiscal efficiency and revenue neutrality. This number
should be tied to Medicare’s per claim operating costs.
C. Section 203 – Fines
The good news here for RRE’s (Responsible Reporting Entities) is that the automatic
fines of $1,000 per day per claim for non-compliance are now discretionary as opposed to
mandatory. By April 2013, CMS must solicit proposals outlining good faith safe harbor
guidelines about what practices will and will not be sanctioned. This will undoubtedly be
welcome by the RRE’s for whom the mandatory fines were always a concern.
D. Section 204 – Use of SSN’s
RRE’s will eventually no longer be required to report social security numbers. The
implementation timeframe for this section is uncertain as CMS has been given eighteen months
to publish the rules. CMS is, however, entitled to seek one or more extensions of up to one year
if needed.
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Given the national concern about identity theft, this change will protect the beneficiaries
as well as those in the claims profession by reducing liability in the event that systems are
hacked.
E. Section 205 – Statute of Limitations
Addition of a limitation is perhaps the most significant item in the SMART Act. Under
Section 205, the statute of limitations for conditional payment recovery by CMS is three years
after the receipt of notice of the settlement, judgment, or award. The effective date of this section
is in June 2013. Previously there was no definitive answer in the statute as to how long CMS
was able to come after the parties seeking recovery of conditional payments. This concern is
now put to rest with respect to those conditional payments.
III. Conclusion
The SMART Act is clearly pushing the CMS claims process to be conducted online
which should streamline the process in the long run. While there will undoubtedly be operational
issues to be sorted out as the implementation progresses, the upside to obtaining final conditional
payment figures before a settlement occurs is invaluable. And the fact that CMS is now subject
to a three-year statute of limitations to seek conditional payment gives much needed certainty
and finality to the settlements that are achieved.
8

DIRECTOR OF ADJUDICATION ELIZABETH CRUM
UPDATES THE BAR ON WCAIS
In September, 2012, the first phase of the Workers’
Compensation Automation and Integration System (WCAIS) computer
project was implemented – the Workers’ Compensation Appeal Board
(WCAB) and the Bureau of Workers’ Compensation (BWC) helpline.
Now, parties to workers’ compensation matters can request records, file
appeals and WCAB petitions, and access their claims records
electronically.
Ultimately, WCAIS will integrate the three program areas of workers’ compensation –
BWC, WCAB and the Workers’ Compensation Office of Adjudication (WCOA).
When WCOA and the rest of BWC go live on September 9, 2013, the workers’
compensation community will have electronic access to workers’ compensation information
through WCAIS, including adjudication, claims, healthcare and self-insurance. Parties will be
able to file petitions, answers briefs, documents and correspondences with the Office of
Adjudication and the WCAB; monitor claims; and more.
This is what you can expect with Release 2 in September:
• Access to a common electronic case file for BWC, WCOA, WCAB and interested
parties;
• Security roles to determine what can be viewed and what actions can be taken in WCAIS;
• Electronic filing of First Reports of Injury (FROI) and many Subsequent Reports of
Injury (SROI) through Electronic Data Interchange (EDI);
• Fully automated self-insurance application and renewal process;
• Parties’ hearing and mediation dates and times on their dashboards (personal home page);
• Petitions, requests, and other documents and correspondences filed and reviewed
electronically;
• Correspondence and decisions sent and delivered electronically.
In order to use WCAIS and its features, parties must register with the system.
Registration for attorneys is a two-step process that can be completed in any order, but,
you have to complete both: (1) attorneys must present their Pa Supreme Court identification
card and a photo ID at one of WCOA’s 23 field offices or at the BWC office on S. Cameron St.,
and (2) go to the WCAIS home page at www.wcais.pa.gov and follow the process for a “New
User” to set your password and receive a Keystone ID that you will be unique to you. You will
use your ID and password each time you want to access WCAIS.
You will also find other useful information on the WCAIS home page about the three
program areas, including FAQs and how-to guides that will provide you with specific
information about how to use the system and what is available to you.
9

Webinars are available to assist attorneys and their law firms in using the current WCAIS
functions. Training and webinars to use WCAIS after WCOA and BWC go live in September,
will be provided at later dates. The dates and topics of upcoming webinars are:
March 22
April 12
April 26
May 24
June 28
Navigating and Customizing Your Dashboard
The “How To” of Being the Law Firm Administrator (repeat)
Attorney Self-Registration and the Role of the Law Firm Administrator
Filing an Appeal and Filing a WCAB Petition
Navigating and Customizing Your Dashboard
Over the upcoming months, WCAB, WCOA and BWC staff will be testing the system,
and will undergo training to use the system. Attorneys, paralegals and other staff, insurers and
employers, will conduct testing in WCAIS in the late summer. Some attorneys have already
volunteered to test WCAIS this summer, but if you have not volunteered and would like to test,
you can email Liz Crum at ecrum@pa.gov.
To sign up for a webinar or to receive ongoing information about WCAIS, please send an
email to RA-LI-OIT-WCAIS@pa.gov asking to be added to the mailing list. You will receive
valuable WCAIS information, newsletters and calendar invitations to webinars.
AND NOW, a P.S.:
TOP SIX REASONS TO REGISTER AND USE
THE WORKERS’ COMPENSATION AUTOMATION
AND INTEGRATION SYSTEM (WCAIS)!
1. Save Money: Save paper, ink and mailing costs when you file
petitions and WCAB appeals online
2. Save More Money: No postage required to upload forms and documents into WCAIS
3. Save Time: View correspondence online instead of opening and processing mail
4. Save More Time: View hearing schedules online
5. Expedite the process: No more waiting for the mail to arrive or to be mailed out
6. Improve Case Management and Efficiencies: Information and filing in all of your
cases available 24/7!
10

PBA WORKERS’ COMPENSATION LAW SECTION
100 th ANNIVERSARY OF WORKERS’ COMPENSATION ACT
COMMEMORATION
The Section has formed a committee to plan a celebration of the 100 th
anniversary of the Pennsylvania Workers’ Compensation Act. The anniversary
date is June 2, 2015, to be precise. The Section, with the help of PBI’s Ms.
Susan Swope, is planning to construct an educational website; our further hope is
to convene a June 2015 event in concert with the Bureau Conference, lectures at the Fall 2015
Section Meeting, and a law school-based symposium. The ABA, IAIABC, the Triangle
Shirtwaist Fire Memorial, and the states of Massachusetts and Wisconsin, all recognized the
100 th Anniversary of the first compensation acts in 2011, so we have some good examples to
follow.
Following this note is an item of historical note about workers’ compensation
(“Archives”) that should be of interest. Also – as noted here last issue – the Philadelphia Bar,
under the leadership of Judge Olin, has been foreshadowing the Pennsylvania 100 th Anniversary
for some time now with its art commissions and exhibit. Thanks to Judge Olin for sharing these
beautiful works, one of which appears below.
“Philadelphia Moves the Nation” by Shaina Anderson
See Scott Olin, Art in the Courts, Workers’ Compensation Act Centennial Commemorated in Painting, The
Philadelphia Lawyer, p. 22 (2010), available at
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/TP
L_summer2010_workerscomp.pdf.
11

PENNSYLVANIA CENTENNIAL SPECIAL
ARCHIVES OF COMPENSATION:
WORKERS’ COMPENSATION
AND THE RIGHT OF TRIAL BY JURY
My principal hangout, while a third-year law student here in
Pittsburgh, was (of course) the law library. There, I became friends with the
redoubtable reference librarian, Mr. Singh, who knew I was already involved
in workers’ compensation. Armed with that knowledge, on occasion he would point in my
direction individuals with nuanced research questions about comp law.
My most memorable – and in fact unsuccessful – mission was to explain to an inquiring
injured worker why he was not entitled to a jury trial as part of his action for personal injury
against his employer. After all, didn’t he have this right at common law, and wasn’t it
guaranteed by the federal and state constitutions? I explained, of course, that in our state comp
had long ago displaced the tort remedy, and that he had to be satisfied with the administrative
law forum that had been established by the workers’ compensation law.
The worker seemed unpersuaded, was definitely unsatisfied with this message, and
stormed out, insisting that he would have his jury.
My advice to this individual thirty years ago is basically the same as I would give him
now. Still, what is the precise reason why the U.S. Supreme Court, and most state courts, held
that the right to jury trial could be abolished by workers’ compensation laws? I could have given
the disgruntled worker a more nuanced explanation.
It turns out that quite a bit of history exists on this point. And, in looking into the issue,
we see that that this history, to a great extent, is responsible for the fact that in four states a right
to a jury trial does exist – though only after the exhaustion of the remedies that workers’
compensation judges administer.
So here is the short version. The U.S. Supreme Court declared, nearly 100 years ago, that
parties indeed do not have a right, under the federal constitution, to a trial by jury in a contested
workers’ compensation case. The reasoning was straightforward – trial by jury is not a right
protected by the Fourteenth Amendment. 1 Meanwhile, the Seventh Amendment, quoted below,
only provides for jury trials in cases brought in federal court. 2 (That fact didn’t prevent the
argument in one case that it purportedly applied to the work injury situation). 3
1 Hawkins v. Bleakly, 37 S. Ct. 255 (U.S. 1917) (“Objection is made that the act dispenses with trial by jury. But it is
settled that this is not embraced in the rights secured by the Fourteenth Amendment.”) (employer trying to have
Iowa Act declared unconstitutional for depriving it of trial by jury).
2 The Seventh Amendment of the U.S. Constitution provides as follows: “In Suits at common law, where the value
in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury
shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
12

The question remained, however, with regard to whether state constitutions guaranteed
such a right. Some legislatures, like that of Pennsylvania, sought to avoid the problem
altogether, originally, by codifying the fiction that the law was elective, not mandatory, so that
the parties were conceived of as having waived the right to any jury trial. 4
Other states, like California, addressed the problem via constitutional amendment,
providing that the legislature was empowered to create any dispute resolution for the program
that it pleased. The amendment provided, “The legislature may provide for the settlement of any
disputes arising under the legislation … by arbitration, or by an industrial accident board, by the
courts, or by either any or all of these agencies, anything in this constitution to the contrary
notwithstanding." 5
The Montana Supreme Court, meanwhile, dismissed the right-to-jury-trial argument by
conceptualizing “adjustment of claims” as “an administrative function and not a judicial
proceeding, and it is only in certain cases falling under the latter designation that trial by jury is
guaranteed by the Constitution. ‘Due process of law’ does not necessarily require a jury trial.” 6
The current day reasoning of Pennsylvania courts, notably, is that, while the state
constitution preserves “[t]rial by jury as heretofore,” such guarantee “does not … prevent the
legislature from creating and providing modes or tribunals other than the jury trial for the
determination or adjustment of rights and liabilities which were not in existence prior to the
adoption of the state constitution….” 7
Still, an early version of the Maryland Act was declared unconstitutional, seemingly
because it failed to provide for a jury trial. 8 As an apparent result, the legislature was sure to
allow for such a proceeding in its subsequent enactment. 9 Consequently, under current Maryland
3 See, e.g., Bio-Tech Pharmacal, Inc. v. Blouin, 2010 Ark. App. LEXIS 762 (Ct. Appeals Arkansas 2010) (“The only
constitutional argument Bio-Tech made to the Commission, and upon which the Commission ruled, was that [the
Act] … violates its Seventh Amendment right to a jury trial. This argument … is easily decided. ‘[T]he 7 th
Amendment applies only to proceedings in courts of the United States, and does not in any manner whatever govern
or regulate trials by jury in state courts, or the standards which must be applied concerning the same.’”).
4 Anderson v. Carnegie Steel Co., 99 A. 215 (S. Ct. Pennsylvania 1916).
5 Western Indemnity Co. v. A.J. Pillsbury, 151 P. 398 (S. Ct. California 1915).
6 Cunningham v. Northwestern Improvement Co., 119 P. 554 (S. Ct. Montana 1911).
7 Grant v. GAF, 608 A.2d 1047 (Pa. Super. 1992) (as a result, “The legislature may withhold trial by jury from new
judicial proceedings created by statute and clothed with no common law jurisdiction.”).
8 In 1902, Maryland was the first state to pass a workers’ compensation law, although it was later (1904) declared
unconstitutional. See John Fabian Witt, Crippled Workingmen, Destitute Widows, and the Remaking of American
Law, p.137 (2004) (citing contemporary accounts).
9 An expansive discussion of trial by jury under the Maryland Act is found in Branch v. Indemnity Ins. Co., 144 A.
696 (Ct. Appeals Maryland 1929). The court’s ultimate conclusion was that inclusion of trial by jury was not
required to support the law’s constitutionality.
13

law, the potential for a jury trial still exists, though the findings of the Commissioner (there is no
intra-agency review) are entitled to a “presumption of correctness.” 10 Likewise, a right to a jury
trial under the Texas Act (now modified), has always existed, because of constitutional
concerns. 11 The same concerns seemingly led the Ohio 12 and Vermont 13 legislatures, among
others, to allow for a jury trial after the adjudications of the Workers’ Compensation
commission. It is in these states, along with Washington, that the eventual right to a jury trial
endures today.
I don’t think that I have again been approached with an inquiry concerning the
availability of a jury trial in the work injury setting. I don’t doubt that many an injured worker
has pondered the matter, but by the time they reach my hearing room their lawyers have briefed
them on the law. Still, if I do again receive the question, I will be armed with these thoughts to
help explain the answer.
DEPARTMENT OF LABOR & INDUSTRY
WCJ RULES COMMITTEE IS
CIRCULATING PROPOSED CHANGES:
REFER TO LABOR & INDUSTRY WEBSITE NOW
The L&I WCJ Rules Committee has been meeting for the last year under the leadership
of attorney John W. McTiernan of the Pittsburgh law firm Caroselli Beachler. Mr. McTiernan
solicits from you any recommendation for changes or additions to the WCJ Rules of Practice.
Contact him at: jmctiernan@cbmclaw.com.
John reports that the Rules Committee is now circulating suggested changes for
comments. “The suggested changes,” he states, “have already been circulated to the membership
but are also available on the Department website. Any comments or suggested changes to any
Rule should be submitted to my attention for review by the Committee prior to submission to the
next level in the regulatory approval process (IRRC).” The proposed rule changes, portrayed
alongside the current rule (where applicable), can be found by going to the following link:
http://www.portal.state.pa.us/portal/server.pt?open=514&objID=552
593&mode=2.
KIDS’ CHANCE:
THE NATIONAL WORKERS’ COMPENSATION CHARITY
Kids’ Chance is a certified § 501(c)(3) non-profit corporation
which provides scholarships to children of workers who have been
catastrophically or fatally injured, or have been otherwise disabled as a result of a work-related
10 Md. Labor & Employment Code § 9-745(b), (c).
11 Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504 (S. Ct. Texas 1991).
12 See State v. Creamer, 97 N.E. 602 (S. Ct. Ohio 1912).
13 An expansive discussion of trial by jury under the Vermont Act (regarding procedure) is found in Pitts v. Howe
Scale Co., 1 A.2d 695 (S. Ct. Vermont 1938).
14

injury. Scholarships are funded solely by TAX DEDUCTIBLE donations from individuals,
insurance companies, employers, attorneys, physicians, labor organizations, vocational
organizations, professional associations, and other workers’ compensation related organizations.
Kids’ Chance is extremely grateful for the support it has received from the Workers’
Compensation Section of the Pennsylvania Bar Association, from individual law firms, and from
individual attorneys. That support has greatly aided applicants as they pursue their academic
careers. Any support members of the Workers’ Compensation Section can give is greatly
appreciated by Kids’ Chance and the students who receive the scholarships. Your tax-deductible
contributions to Kids’ Chance of PA may be mailed to: Kids’ Chance, P.O. Box 543,
Pottstown, PA 19464 – phone: (610) 970-9143. See also www.kidschanceofpa.org.
TEE OFF FOR THE KIDS!
8TH ANNUAL KIDS' CHANCE OF PA GOLF OUTING
Kids’ Chance is holding its 8 th Annual Golf Outing fundraiser in
connection with the Bureau Conference. The event is Sunday, June 9,
2013. Registration: Noon; Golf: 1:30 PM. The venue is Hershey Country
Club, West Course, 1000 East Derry Road, Hershey, PA 17033
Sponsorship opportunities are still available. Contact the Kids’ Chance Office if you are
interested in supporting the organization’s mission! Kids’ Chance of Pennsylvania, P.O. Box
543, Pottstown, PA 19464; Phone: 610-970-9143; Fax: 610.970.7520; www.kidschanceofpa.org
SEAK, INC. TO CONVENE
33 rd ANNUAL NATIONAL
WORKERS’ COMPENSATION
AND OCCUPATIONAL MEDICINE CONFERENCE
Cape Cod, MA, July 16-18, 2013
Steve Babitsky and his group SEAK are again presenting their renowned conference in
Cape Cod! The conference is currently the largest and longest-running national comp and
occupational medicine conference of its kind in the country. (Heck, even a reading of the
brochure is an education.) Whatever you do, don’t miss it! See www.SEAK.com.
A number of Pennsylvanians will garner all the glamour and applause of being speakers
at the conference this year. These are Joanne Ebert, RN, Director of Occupational Health
Services at GlaxoSmithKline in King of Prussia. Her presentation is entitled, “Integration of
Benefits: Workers’ Compensation, Short-Term Disability, Long-Term Disability, and FMLA:
What Works.” Dr. Raymond Fabius of Newton Square, meanwhile, will present on “Worksite
Wellness: Creating Health and Wellness Programs for your Worksite.” Philadelphia surgeon A.
Lee Osterman, M.D. will present on occupational hand injuries, and the ubiquitous Jim Pocius
of Scranton will update the audience on the equally ubiquitous topic of Medicare Set Asides.
15

NATIONAL ASSOCIATION
OF WORKERS’ COMPENSATION JUDICIARY
ANNOUNCES ANNUAL WC COLLEGE FOR JUDGES
Orlando, FL
August 19-21, 2013
The National Association of the Workers’ Compensation Judiciary (NAWCJ) will
convene its annual College for WCJs next August in Orlando. The agenda is complete. To
view, go to www.NAWCJ.org, and check out the most recent newsletter (March 2013).
For the website of our partner group, the WCI, which holds its gala conference at the
same time, see http://www.wci360.com/conference.
PBA WORKERS’ COMPENSATION LAW SECTION
UNPUBLISHED OPINIONS COMMITTEE
The Workers’ Compensation Section has established an
Unpublished Opinions Committee that reviews and seeks publication of
significant memorandum Commonwealth Court Opinions. The
Committee is comprised of two defense attorneys, two claimant’s
attorneys, and a Workers’ Compensation Judge. Anyone seeking
consideration of an opinion for publication should contact the Chairman
of the Committee, Michael Routch, Esquire, at (814) 283-2000, or by email at
mproutch@mqblaw.com.
The subject of unreported opinions, and how to seek their publication, was addressed at
the Fall 2011 Meeting of the Section. Mr. Routch, along with Harrisburg attorney Burke
McLemore, presented on the issue and prepared a seminar paper, What You Need to Know about
Unreported Opinions. Among other things, the authors include a valuable sample of an
“Application to Report Unreported Opinion,” and they provide a list of recent memo opinions
that were accepted for publication. Four of these were published on the Section’s motion. See
R. Burke McLemore, Jr. & Michael P. Routch, What You Need to Know About Unreported
Decisions, in COLLECTED PAPERS, PBA WC LAW SECTION 27 TH ANNUAL FALL SECTION MEETING
(Sept. 15-16, 2011) (PBI No. 2011-5396).
PBA WORKERS’ COMPENSATION LAW SECTION
ISSUE EXPEDITION COMMITTEE
On occasion, workers’ compensation counsel may be faced with a case involving an issue
of significant importance that may merit expedited action, either before the WCAB or the
Commonwealth Court. If you feel that you have a case or an appeal of significant importance,
you can explore the possibility of expedited action by contacting the Chair of the Council’s Issue
Expedition Committee, Mike Wagner. Mike’s contact information is: Phone: (814) 944-4700 or
e-mail: mwagner@wagfinn.com. Mike would be happy to discuss the particulars of your
appeal, and to forward your request to the appropriate individual at either the Commonwealth
Court or the Board.
16

NOTES ON ASSESSING CREDIBILITY,
THE VALUE OF SURVEILLANCE EVIDENCE,
AND ATTORNEY PERFORMANCE
David B. Torrey, WC Judge
For the exciting ABA CLE sessions in Coral Gables (March 2013), I
was asked to answer three questions with regard to the process of judging
workers’ compensation cases. With some luck, these miscellaneous comments will be of interest
and assistance to practitioners.
I. How do Workers’ Compensation Judges assess the credibility of the injured worker and other
lay witnesses?
A. Demeanor: “Carriage and Deportment”
Most veteran judges believe that demeanor, or the manner in which the witness carries
and deports him- or herself, can be a reliable – though at times a hazardous – basis to judge
credibility. This is my belief as well. A witness who is evasive, consistently hesitant, aloof, or
inappositely nervous, raises an eyebrow.
Still, I agree with commentators who observe that the formal environment of court is
artificial, and that people called to testify may, as a result, be nervous or acting unnaturally.
They may also be angry and/or depressed, as is the case with a class of people who are by
definition injured and often without money. This problem is compounded further in
compensation, because we are dealing with a clientele which (at least in my state, Pennsylvania),
is largely composed of the working class and the working poor. Many of our claimants have
never been to a business meeting – or even worn a tie – never mind having gone to court.
Aspects of demeanor and deportment do exist which, I admit, at times can throw me.
These include gross exaggeration, crying, excessive anger or obsequiousness, aloofness, and
grandiosity. These types of behaviors have the potential to put off anyone who is in the role of
fact-finder. What I do, as all fact-finders must, is set aside the prejudice that is raised by such
behaviors and wait until all the evidence is in before judging credibility.
In any event, I am a believer that the judge of credibility should see and hear the
witnesses. Only in this way can the mysteries of intuition, as some have put it, be operative.
Considering the deposition of lay witnesses is a poor and usually unsatisfactory substitute.
B. Plausibility
Jurors are routinely instructed to use their “acquired experience,” or common sense, with
regard to whom to trust, in their own lives, as they deliberate on the issue of witness credibility.
The same admonition might be applied to the comp judge. One such common-sense response to
a disputed account is whether the story is “plausible,” given one’s everyday experiences. I have
17

found one federal judge’s explanation of this basic concept compelling. Writing in an ABA
publication, he states, “[I]nternal coherence is critical in evaluating credibility. When the actions
of the person involved are shown to be in accordance with their nature or characters, when they
do the kind of things people will do (consistent with probability or necessity), credibility is
enhanced. A causally connected string of actions and behavior not shown to be motivated by
psychological norms convinces no one.” 1
C. Corroboration
When the claimant’s credibility is at issue, corroboration can make a significant
difference. When question exists as to the occurrence of an accident, I will want to see what the
claimant, in the immediate aftermath of the event, has told the EMT and ER. We all know that
the “history” portions of hospital and medical records are not perfect, but a statement in such
records corroborative of the testimony can be of significant weight.
When an injury or disability is contested, and credibility is at issue, objective verification
via diagnostic tests is also critical. If claimant complains of chronic pain down the leg, but the
MRI is negative for nerve compression, an eyebrow is raised. When claimant says that he cannot
return to work even at light duty, but he has, via FCE, shown functional capabilities, a question
of credibility has likewise been raised. If claimant says that he has such chronic pain from
alleged spinal damage that he can tell when the weather is changing, and his x-rays show no
arthritis, claimant’s credibility is certainly in question. In other words, subjective complaints that
far outweigh the objective findings raise an issue with regard to credibility.
Surveillance films showing the claimant undertaking tasks significantly at odds with the
impairment or disability complained of in court can be damaging to a claimant’s credibility.
Most judges, including myself, are only persuaded of claimant misleading when the activity
depicted is significant and continuous. 2
D. Consistency
Consistency of account is also important to the credibility determination. If the claimant
gives inconsistent accounts of what allegedly happened, credibility may be questioned. This
aspect of judging credibility is very important in the Pennsylvania “serial hearing” system, where
I will hear the claimant testify an average of three times in the typical case.
E. Evidence of secondary gain
The cynical might argue that secondary gain is always a question in disability cases,
because if the claimant wins his or her case, he will be able to stay at home yet receive a weekly
check. Such a simple, devious subjective desire to mislead is unfortunate but hard to detect. A
secondary gain motivation can be more objectively determined by a showing that claimant needs
1 John L. Kane, “Judging Credibility,” in Litigation, Vol. 33, No. 3 (ABA Spring 2007), available on-line at
http://apps.americanbar.org/abapubs/lrc/pdfs/kane.pdf.
2 See infra Part III.
18

to be at home because of (1) pressure from a spouse; (2) childcare responsibilities; or (3) senior
care responsibilities.
F. Collateral support
A claimant who has other forms of wage replacement, like short-term disability, longterm
disability, Sickness & Accidents benefits (S&A), and/or insurance for motor vehicle
payments, may be in a position to exaggerate his or her condition during the prosecution of the
workers’ compensation case. (It may be that fewer workers have such “collateral benefits” than
in years gone by. The most frequently encountered of late is unemployment compensation.) On
the other hand, of course, a person without such other incomes may be put in a position where he
or she has even more reason to exaggerate – to obtain the benefits he or she feels truly entitled
to.)
G. Pendency of Third-party Litigation
Workers’ compensation litigation may be time-consuming. Still, such proceedings
usually are more expeditious than those in the civil courts. When a claimant eligible for
compensation sues a third party (like the manufacturer of a machine involved in an accident) in
civil court, he may be tempted to continue to exaggerate his pain and disability pending the trial
date. To return to work, disavow disability, and sign off of compensation can be inconsistent
with a continuing demand for damages.
H. Treating with an “Over-treater”?
I often raise an eyebrow at a claimant who is attending frequent medical care with a
known over-treater. If the claimant also tells me that the care affords her no improvement, I
raise my eyebrow even higher.
I. Tests Such as MMPI and the “Fake Bad Scale”
The legal literature is full of references to scientific methods of assessing credibility.
Some psychologists have used the MMPI-2 test, for example, to try and detect malingering.
More recently, psychologists have argued for a test known as the “Fake Bad Scale.” In the
Pennsylvania workers’ compensation practice, defendants have not employed these tests to try to
prove malingering. This is so, perhaps, because their relatively significant cost is out of
proportion to compensation liability.
J. Motivation to Return to Work
A worker’s willingness to return to work can operate as powerful indicia of credibility.
Many credibility disputes in workers’ compensation have their genesis, after all, in the anxiety
over whether the injured worker is an authentic case. Once the claimant evinces a willingness to
return to work, or actually returns to work during the litigation, much of the tension is dispelled.
19

K. History of Prior Claims
The fact that an injured worker has had prior workers’ compensation claims may have an
effect on credibility. Still, this factor must be approached with caution. Workers’ compensation
is, after all, a form of health insurance, and we want workers who suffer injuries arising in the
course of their employment to utilize such coverage. Thus, I probably would not be impressed
with a print-out showing that a veteran construction laborer has filed a number of medical-only
claims over his long career. On the other hand, a pattern of disputed lost-time claim filings
ending in the inevitable compromise settlement may raise an eyebrow.
L. Credibility and Other Lay Witnesses
The considerations with regard to credibility noted above apply equally to other lay
witnesses. In the workers’ compensation realm, the range of such witnesses is very wide.
Typical witnesses include eyewitnesses to a contested accident, co-workers who corroborate the
rigors of the worker’s pre-injury labor, management or other witnesses who contest that an injury
occurred, and supervisors who verify the availability of modified duty. When a lay witness
testifies, I also listen to see if some bias is present. This may be reflected by the witness having a
close family or social relationship with the claimant. Management employees, of course, are
often depicted on cross-examination as necessarily biased toward the employer-defendant –
certainly so when they continue employment with the defendant. Thus, this challenge to
credibility must be considered very carefully.
Often, the lay witness who is testifying has not so much a credibility problem as what is
called a “competence” problem. In this regard, the witness lacks personal knowledge about what
he is being asked about. This occurrence is nothing new in court proceedings. Still, an
especially frustrating response from an employer witness in the present day is that he cannot
answer a question on cross-examination, as the file is exclusively on the computer and/or that all
communications were by non-retained e-mails: “Oh, no, I don’t recall – we’re paperless!”
II. What is the effectiveness of surveillance evidence?
My book co-author Andrew Greenberg has posited: “Perhaps the one aspect of workers'
compensation practice that makes it so interesting is its fact-intensive character. In this regard, a
single fact, properly presented, can significantly alter the outcome of a given case. Indeed,
virtually every compensation case involves a fundamental credibility question that the parties
must explore and analyze thoroughly so as to enhance the possibility of success before the
WCJ.” 3 Surveillance evidence, therefore – in the form of personal observations made by an
investigator and/or in the form of film or videotape – can have significant impact on the
credibility question at issue. Such evidence can obviously “carry the day” before the WCJ, by
3 DAVID B. TORREY & ANDREW E. GREENBERG, PENNSYLVANIA WORKERS’ COMPENSATION: LAW & PRACTICE,
§ 19:3 (Thomson Reuters/West 3rd ed. 2008).
20

efuting the claimant's supposed physical condition or by revealing the claimant's surreptitious
return to the work force.
In the actual return to work situation, surveillance film is most effective when submitted
in conjunction with the analysis of a vocational specialist or business analyst – such as a forensic
accountant – who, through an assessment of the claimant's job itself or through an assessment of
the local business market, “imputes” wages to the claimant in the particular capacity.
As posited in the previous section of this paper, surveillance films showing the claimant
undertaking tasks significantly at odds with the impairment or disability complained of in court
can be damaging to a claimant’s credibility. Most judges, including myself, are only persuaded
of claimant misleading when the activity depicted is significant and continuous.
Although surveillance film often is devastating to the claimant's claim, claimant's counsel
should not automatically assume that its existence will necessarily undermine the claimant's
effort to obtain or to continue to receive workers' compensation benefits. Indeed, surveillance
evidence is, quite often, strikingly ineffective in establishing anything of any real significance.
Rather, it very often demonstrates what the claimant usually maintains – that he or she is not a
complete invalid, but, because of his or her work-related injury, is incapable of returning to work
in a physically demanding capacity.
A perfunctory surveillance effort or a poorly conceived surveillance effort will very often
have little impact on the claimant's claim. Thus, from this WCJ’s point of view, defense counsel
is best advised to undertake surveillance with the following thoughts in mind:
1. Attempt to obtain multiple days of coverage during various times of day
in order to obtain a complete, fair, and accurate picture of the claimant's physical
capabilities and activity level.
2. Make certain that the injury/disability at issue is correctly understood
and properly addressed by the surveillance investigator.
3. Make certain that a complete and accurate description of the claimant is
provided to the investigator along with a correct home address and thoughts on
how the claimant spends his or her time.
4. Review the film carefully in order to make certain that it actually
depicts the claimant.
5. Provide the film to the defendant's medical expert or claimant's treating
physician for comparison to the claimant's contemporary physical examinations of
the claimant.
6. Prepare a “highlight film” for the assigned WCJ while simultaneously
retaining the complete film for viewing, if requested.
7. Have the appropriate surveillance investigator available and prepared to
authenticate both the surveillance film and the edited “highlight film.”
21

8. Make certain that the WCJ's surveillance procedures are determined and
followed.
9. Make certain that the hearing room is equipped with the necessary
viewing equipment or that the surveillance investigator brings with him or her the
necessary viewing equipment.
10. Make certain, if appropriate, that the surveillance investigator testifies,
from a factual – not medical – standpoint that the claimant does not exhibit any
physical abnormality consistent with the alleged injury/disability.
III. What behaviors of counsel can actually hurt his or her client’s chance of success in a case?
(A Top Ten List).
Most lawyers who have the privilege of sitting as judges will posit the same thing: while
certain lawyer behaviors are annoying, the judge must put subjective feelings about counsel out
of his or her mind when it comes to actually adjudicating cases.
A venerable Pennsylvania judge states, “If I am writing against [a] disliked
lawyer`s client I set the opinion aside for a week and then reconsider. Nobody should lose
because the judge can’t stand his lawyer!” This seems the preferred approach.
Another colleague states, “arrogant, argumentative and unprofessional behavior isn’t
helpful, but this isn’t generally counted against the Claimant or Defendant.” She identifies,
however, an ominous, unintended, consequence: “sometimes when the attorney acts this way, the
client does too, and this can hurt the client.”
These views simply state the obvious: the essential virtue of the individual who sits as
judge is his or her impartiality. A senior Pennsylvania judge sums it up: “I believe that a WCJ,
throughout his/her career, should make a conscious effort to form no strong personal feelings
with respect to counsel appearing before her/him. While this may be a difficult aspect of this
position, it is important and will contribute to producing what we should all strive to be – an
impartial adjudicator and fact finder.”
With this imperative in mind, here are a number of behaviors that my colleagues and I
have nevertheless identified as harmful to a client’s chances of success in case.
1. Lack of preparation. For example, a neglect to have prepared witnesses before the hearing
and having exhibits ready in logical order. An unprepared direct examination of a key witness
can almost ruin such testimony.
Some attorneys, meanwhile, may rely on their previous reputation and simply try to
“wing it,” and this approach may sometimes make a case crash and burn. That attitude,
according to one of my correspondents, “mixed many times with showing a lack of respect to the
judge, can hurt a client’s case.”
22

2. Ignorance of the applicable law. The failure to understand the law can be deadly. In a recent
case handled by this writer, an attorney revealed himself as not knowing the meaning and import
of the phrase, “affirmative defense.” Thus, he misperceived which party had to move forward
first with the proofs. He then argued with me about the very definition of the phrase. Missing
such important elements in the prima facie case, or misperceiving (as above) the burden of proof,
can be pivotal errors.
Incorrect citation, or mis-citation of the law is, to this writer, intolerable and places
counsel’s position in a case in a very bad light. This can hurt a litigant’s case. In a petition
twenty years ago, a lawyer for the Commonwealth argued to me that, as the purported custodian
of one of the state funds, I had the duty to protect the same from attempts by claimant at
compensation. This assertion was so misconceived that, even many years later, I still remember
my dismay and his derailed defense.
3. Violating the code of civility. Some judges may become disturbed when attorneys start
insulting the opposition and submitting briefs full of sharp comments. A belligerent and bullying
attitude, lack of decorum and, talking too much (i.e., not knowing when to stop beating a dead
horse), all are risky. It is possible that some behaviors are so over the top that the party’s
substantive case is hopelessly poisoned despite the fact that the case was originally a winner.
4. Failure to formulate a strategy and choose your issues carefully at the hearing and in the
brief. As appellate judges have asserted similarly for decades, too many issues can lead to the
conclusion that there is no merit to any of them.
5. Engaging in the misconceived crusade. Effective defense counsel always avoids dead-end
strategies which may (fortunately only on very rare occasions) be promoted by insurance
adjusters or human resources folk. Such a strategy is typically reflected by a petition or defense
which has no legitimate basis in the facts or the law. Strategies which are inherently bound to be
ineffective work to deconstruct a properly operating system, breed distrust in the mind of the
WCJ, and are self-defeating.
6. Not having doctors explain why they hold the opinions they give. Most administrative law
systems require the judge to provide reasons for their decisions. Indeed, books have been written
on the subject. 4 In workers’ compensation, reasons must be provided, in particular, about the
credibility determinations the judge has made with regard to expert testimony. The lawyer who
wants both to win – and equip the WCJ with the information to perform his job – must have the
expert physician explain the reasoning behind the opinions he expresses.
The Logistical Defaults (Claimant’s Case)
One of my colleagues, who represented claimants for many years, identified to me what I
would term “logistical defaults.” These behaviors are lawyer or system driven and can hurt a
4 Jerry Mashaw, for example, discusses the issue and asks rhetorically, “How much are good decisions worth?”
JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS, p.79 (Yale 1983).
See also Jerry L. Mashaw, Small Things Like Reasons are Put in a Jar: Reason and Legitimacy in the Administrative
State, 70 FORDHAM L. REV. 17 (2001).
23

client’s chances for success. These items for the most part reflect the modern-day challenge that
claimants’ attorneys (particularly those in Pennsylvania) face in the prosecution of cases.
7. Worrying too much about litigation costs – trying to find the cheapest route rather than the
most legally sound route.
8. Holding up litigation and not scheduling depositions because the Claimant can’t afford to pay
the costs. In these instances counsel should either advance the costs or refer the Claimant to
someone who will front the same.
9. Taking too many depositions – because the different medical opinions tend to start
contradicting, rather than supporting, each other.
10. Not spending time reading and understanding the medical records – and putting medical
records into evidence that actually diminish the case.
24

SAME-SEX DOMESTIC PARTNER
AS POTENTIAL FATAL CLAIM BENEFICIARY:
A PENNSYLVANIA UPDATE
AND THE CURRENT ALASKA CHALLENGE
The viability of a fatal claim by a same-sex domestic partner
under the Pennsylvania Act is legally questionable. In this regard, the Act is traditional in
defining beneficiaries under the workers’ compensation law. Indeed, the Act, at section 307, 1
refers to “widows” and “widowers” as the potential claimants. The definition of “widow” is “a
woman who has lost her husband by death and has not remarried.” “Widower,” meanwhile, is
defined as “a man whose wife is dead, and who has not married again.” 2 Given these
unambiguous definitions, among other factors, the same-sex domestic partner of a worker
perishing in a work-related accident would receive a cool reception by Pennsylvania courts.
Still, in an earlier age, when workplace deaths were common, Pennsylvania courts
showed amazing liberality and flexibility in defining the family. A common law spouse, for
example, was not mentioned in the statute as a beneficiary, but was allowed a fatal claim.
(Common law marriage has since been abolished in Pennsylvania. 3 ) Further, “children” under
the Act encompasses all natural and posthumous children, whether legitimate or illegitimate.
Likewise, the conception of “in loco parentis” is construed liberally under the Act. In
this regard, a person in loco parentis to a child is “a person who means to put himself in the
situation of a lawful father of the child with reference to the father’s office and duty of making
provision for the child.” 4 Grandparents and even siblings have been held to be “in loco parentis”
to minor children. The concept of “household” has also been liberally construed.
Arguments by the defense that section 307 must be “strictly construed” would be refuted
by precedent. Still, a fatal claim by a same-sex domestic partner, under the Pennsylvania Act,
would constitute an uphill battle.
Because this is the lay of the land in Pennsylvania, a current challenge to a similar statute
in Alaska is of interest. A civil rights group, Lambda Legal, has filed, with the Alaska Workers’
Compensation Board, a challenge on behalf of Deborah Harris. Ms. Harris’ same-sex partner,
Kerry Fadely, was shot and killed by a disgruntled former employee whom Fadely had fired. 5
1 77 P.S. § 542 et seq.
2 2 FUNK & WAGNALLS STANDARD DESK DICTIONARY 783-84 (1984). See also OXFORD AMERICAN DICTIONARY
795 (1980).
3 See D. TORREY & A. GREENBERG, PA WORKERS’ COMPENSATION: LAW & PRACTICE, § 7:60 (Thomson-
Reuters/West 3 rd ed. 2008).
4 Kransky v Glen Alden Coal Co., 47 A.2d 645 (Pa. 1946).
5 Harris v. Millennium Hotel (AWCB Case No. 201116890, filed Sept. 24, 2012). This summary is adopted by the
editor (Torrey) in significant part from a Lambda Legal Press Release. The Board filing is posted in its original on
the group’s site. See http://www.lambdalegal.org/news/ak_20120924_lambda-legal-seeks-survivor-benefits.
25

Under that state’s law, the spouse of an individual who dies from a work-related injury is
eligible to receive survivor benefits but, as in Pennsylvania, same-sex couples are excluded from
that legal protection. Harris is not challenging the state’s exclusion of same-sex couples from
marriage, but instead is challenging the exclusion of such couples from eligibility for survivor
benefits.
Notably, the Alaska statute’s designations of the spouse entitled to dependency benefits
are the same as that of the Pennsylvania statute – i.e., “widow” and “widower.” 6 These terms are
defined as follows:
(40) “widow” includes only the decedent’s wife living with or dependent for
support upon the decedent at the time of death, or living apart for justifiable cause
or by reason of the decedent's desertion at such a time;
(41) “widower” includes only the decedent’s husband living with or dependent for
support upon the decedent at the time of death, or living apart for justifiable cause
or by reason of the decedent's desertion at such a time. 7
Lambda Legal and Harris claim that this discrimination violates the constitutional
guarantees of equality secured by the Alaska and U.S. Constitutions. The filing with the Board
commences a constitutional challenge.
Because the Board and its Appeals Commission cannot – as in Pennsylvania – decide
constitutional issues and will be forced to deny Harris’ claim, Harris will have the right to appeal
directly to the Alaska Supreme Court. That court will then presumably decide whether
excluding same-sex couples from survivor protections is constitutional.
The Lambda Legal case is captioned Harris v. Millennium Hotel. The action names the
hotel because it employed Harris’ partner, but the legal challenge is against the State of Alaska’s
exclusion of same-sex couples from survivor benefits. According to Lambda Attorney Peter
Renn, on December 19, 2012, the parties submitted a stipulation requesting a final decision and
order from the Board. The case was still pending as of March 1, 2013.
6
ALASKA STATUTES § 23.30.215.
7 ALASKA STATUTES § 23.30.395(40), (41).
26

THOUGHTS ON ADOPTION OF PROPOSED FINDINGS
David B. Torrey, WC Judge
The practice of a judge adopting the prevailing party’s proposed
findings and/or order has been a topic long-discussed by appellate courts
and commentators. In the Pennsylvania system, the workers’ compensation
judge (WCJ) must produce a detailed decision consisting of findings of fact
and conclusions of law, and the adjudication must set forth reasons
explaining the basis of the same. Our decisions are thus scrutinized carefully as matters of both
employee performance and appellate review. Still, Pennsylvania courts have expressly stated
that adoption of proposed findings is a legitimate practice, as long as the decision itself is based
on substantial evidence, and satisfies our “reasoned decision” requirement. 1 The U.S Supreme
Court in a 1964 case has communicated the same sentiment. 2
Many Pennsylvania WCJ’s – and, I sense, those of other jurisdictions – in the present day
nevertheless believe that the practice is questionable. Such judges have a concern that adoption
of findings suggests that the judge did not undertake his own, independent, judicious study of the
record, sufficient for the judge to come up with his own findings and legal conclusions. Others
view adoption of findings as suggesting that the judge is lazy or unskillful, unable or unwilling to
fashion a well-reasoned, well-structured final decision that will have staying power through the
appeal process.
In 2003, an expert on judicial conduct addressed the issue of verbatim adoption in the
periodical Legal Affairs. The article was prompted by a charge that a Florida appeals court judge
had committed plagiarism by adopting, in his opinion, “almost verbatim replication of [one of
the briefs] without a single attribution.” 3
The author, Professor Charles Geyh, submitted that it is not, in fact, unlawful or unethical
for a judge to incorporate the inclusions of a brief in his or her own opinion. Geyh argued that it
would only be unlawful or unethical were we to “elevate judicial originality to the status of a
constitutional responsibility.” Still, adoption “without attribution” in an appellate court opinion,
particularly one that is to be a reported precedent, is troublesome: “Even if a judge believes that a
brief offers a perfect expression of the law, copying it creates the perception that the jurist is
1 Dillon v. WCAB (City of Philadelphia), 853 A.2d 413 (Pa. Commw. 2004) (WCJ had not failed to issue a reasoned
decision by adopting verbatim employer’s proposed findings; court did not see such practice as prohibited by statute
or the leading precedent Daniels v. WCAB (TriState Transportation), 828 A.2d 1043 (Pa. 2003)); Jenkins v. WCAB
(Woodville State Hosp.), 677 A.2d 1288 (Pa. Commw. 1996) (“[a]lthough this practice of verbatim adoption has
been criticized, the law remains that a WCJ may adopt a party’s submitted findings as long as those findings are
based on substantial evidence.”).
2 U.S. v. El Paso Natural Gas Co., 376 U.S. 651 (U.S. 1964) (indicating that even when findings are derived
without variation from a party’s pleadings, such findings are to be treated as those of the trial judge and evaluated on
such basis: “Those findings, though not the product of the workings of the district judge’s mind, are formally his;
they are not to be rejected out of hand, and they will stand if supported by evidence.”).
3
Charles Geyh, Are Judges Who Borrow From Lawyers’ Briefs Committing Plagiarism?, Legal Affairs, p.17
(November/December 2003).
27

sloppy, lazy, or intellectually moribund. That perception may be unfair .… But the perception
will remain, to the detriment of the public's confidence in the judicial system.”
Geyh did not, however, extend this critique to the trial court level where the WCJ dwells:
“In an adversarial system of justice ..., judges are expected to crib from the arguments, ideas, and
research of the adversaries. They mislead no one into thinking they’ve done otherwise if they
don’t festoon their opinions with citations to the briefs. The point is for judges to get it right, not
for them to get there on their own intellectual steam. In an age of crowded dockets and
overworked courts, lawyers routinely draft proposed orders, findings of fact, conclusions of law,
and briefs on behalf of their clients in the hopes that judges will borrow from them freely.”
A brand new, tour de force treatment of this issue has been penned by a Canadian
analyst. 4 The author, Professor Simon Stern, explains that the Canadian Supreme Court demands
that decisions be “sufficient,” meaning well-explained and reasoned, 5 but notes further that the
practice of trial judges copying the parties’ pleadings in preparing their decisions has always
been an approved practice. In a 2011 case, however, this lattermost view was called into
question. 6 In this regard, a trial judge in British Columbia produced a decision, in a medical
malpractice case, that adopted no fewer than “321 paragraphs almost word-for-word from the
[plaintiff’s] written closing submission,” and without any attribution to the source of the same.
The court of appeals thereafter deemed the trial judgment “insufficient,” and it ordered that a
new trial be convened.
Stern is a critic of the decision. He questions, in this regard, the proposition that such a
defect caused the decision to be lacking in “sufficiency,” as that concept had been understood in
Canadian jurisprudence. Still, the basis for the court’s ruling certainly implicates the traditional
concern that surrounds wholesale adoption of proposed decisions. In this regard, the court held
that the all-important “reasons [for the adjudication] must be ‘rejected because they cannot be
taken to represent the trial judge’s analysis of the issues or the reasoning for his conclusions.’”
My own practice is to prepare my own findings, conclusions of law, and order. I do so,
in part, because of this very concern – the anxiety that the parties, Appeal Board, and court, will
all infer that I have not undertaken my own rigorous analysis of the evidence and have thus
abdicated my role as judge. On occasion, however, I have adopted the proposed findings of the
prevailing party whose lawyer has submitted a document that not only shows pristine fidelity to
the record but that is, as well, skillfully crafted in precisely my style. The criterion is whether I
am likely to prepare anything meaningfully different and/or superior. If the answer is no, the
prevailing lawyer in a minority of cases may find his proposed findings adopted.
Stern’s article, however, has me questioning even this occasional practice. In this regard,
the author treats at length the point that the exercise of writing up one’s own decision is not
4 Simon Stern, Copyright Originality and Judicial Originality, 63 University of Toronto Law Journal 1 (2013).
5 R. v. M.(R.E.), 2008 SCC 51 (noting that the “sufficiency” test specifies “three functions that a judgment must
serve: ‘[E]xplaining why the accused was convicted or acquitted, providing public accountability and permitting
effective appellate review.’”).
6 Cojocaru v. British Columbia Women’s Hosp. and Health Center, 2011 BCCA 192.
28

simply a mechanical task, but one of “cognition” and the decision-making process itself.
Writers, after all, often “find that they are not simply presenting a snapshot of their already
formed ideas, because the process of recording their analysis transforms their relation to the
subject.... ‘Writing not only demands thinking; it is a means of thinking….. By writing about a
subject, one learns what one thinks about the subject.’” 7
These admonitions ring true. I have, more than once, initiated the process of adjudicating
a case with a preconceived notion of which side is to prevail. By the time I have completed my
review and tried to dictate out loud such an outcome, my initial impressions and preconceived
notions collapse, and I find I must decide for the other side.
7 Stern at this point quotes and references (respectively), Ronald T. Kellog, The Psychology of Writing (1994); and
Chad M. Oldfather, Writing, Cognition, and the Nature of the Judicial Function, 96 Georgetown Law Journal 1283
(2008).
29

THE AFFORDABLE CARE ACT AND EFFECTS
ON THE WORKERS’ COMPENSATION SYSTEM:
IN GENERAL, COST-SHIFTING, AND THE
IMPLICATIONS OF EMPLOYER-SPONSORED
WELLNESS PROGRAMS
by David B. Torrey, WC Judge
I. Introduction
On March 23, 2010, President Obama signed into law what he termed “the most
important piece of social legislation since the Social Security Act passed in the 1930’s and the
most important reform of our health care system since Medicare passed in the 1960s.” 1 The law
creates a national framework for near universal coverage and outlines strategies to increase
access to affordable, improved care while containing costs.
Upon full implementation, the Affordable Care Act (ACA) will extend health insurance
coverage to 94 percent of the population while establishing a set of strategies to improve care
and contain costs. The central provisions of the Act – guaranteed affordable and accessible
coverage – take effect January 1, 2014. Important insurance reforms aimed at improving
coverage become effective before that date, as do a series of efforts directed at improving the
accessibility and quality of health care.
Determining the practical repercussions of the ACA vis-a-vis workers’ compensation has
been a difficult task for members of the workers’ compensation community. Most of the
evaluations, notably, have been undertaken not by lawyers but, instead, by those interested in
insurance and system costs.
A.B., 1982, West Virginia University; J.D., 1985, Duquesne University School of Law. Workers’ Compensation
Judge, PA Department of Labor & Industry, Pittsburgh, PA. Adjunct Professor of Law, University of Pittsburgh
School of Law; President, The National Association of Workers’ Compensation Judiciary. Thanks to Mr. Charley
Monroe (Pitt Law Class of 2014), for his research assistance on this seminar paper. Thanks also to Leonard Y.
Nason, Esq., Bedford, MA. Any opinions expressed are strictly those of the author and not of the Department of
Labor & Industry. Contact: DTorrey@pa.gov. A version of this paper was prepared for the 2013 ABA Workers’
Compensation CLE, Coral Gables, FL (March 16, 2013).
1 Remarks by the President on Senate Passage of Health Insurance Reform, The White House, Office of the Press
Secretary, December 24, 2009, available at http://www.whitehouse.gov/the-press-office/remarks-president-senatepassage-health-insurance-reform.
The health reform law consists of two statutes. They are: The Patient Protection and Affordable Care Act
(March 23, 2010); and The Health Care and Education Reconciliation Act (March 30, 2010) (along with
implementing regulations). These two laws are referred to herein as the Affordable Care Act (ACA). The Patient
Protection and Affordable Care Act (PPACA), is, specifically, Pub. L. 111-148, 124 Stat. 119 (to be codified, as
amended, at various sections of Title 42 of the United States Code). The Health Care and Education Reconciliation
Act (HCERA), meanwhile, is Pub. L. 111-152, 124 Stat. 1029. See http://www.healthcare.gov/law/index.html (full
text of law, with abstracts, available via this link).
30

This is so, perhaps, because the ACA hardly addresses workers’ compensation directly at
all. This is in contrast to the unsuccessful versions of the Clinton-era health reform efforts. As
summarized by an observer at the time, these healthcare reform proposals, none of which were
enacted, represented “three basic options for addressing workers’ compensation: full integration,
partial integration, and exclusion.” 2
Many in the compensation community opposed such integration. Counsel for an
insurance lobby, for example, wrote that superseding state workers’ compensation laws would be
harmful for both employees and employers, the former by introducing deductibles into medical,
and the latter by disallowing managed care with a focus on return-to-work. 3
Under the ACA, no attempt is made at integration. 4 As Dr. Dean Hashimoto summarized
at an April 2011 ABA workers’ compensation session, “While the 1993 Clinton proposal sought
to combine workers’ compensation medical care with mainstream medical care, the 2010 Health
Care Reform rejected this ‘24 hour care’ approach.” 5 Perhaps this was so because the reformers
were anxious to avoid “tangential and unnecessary political battles,” as the contemporary
observer would put it, that could interfere with the broader debate.
II. Effects of the ACA; The Difficulty in Predictions
A number of indirect effects of the ACA on workers’ compensation are discernible.
These effects are discussed below. A prefatory note, however, is in order. In this regard, at the
time of this seminar (March 2013), when it comes to predictions, “the realm of possibilities”
surely describes the situation. This is so because many of the law’s provisions (and its many
regulations) are new or not yet in force. And, indeed, perhaps broad predictions are impossible.
Hashimoto, in his 2011 remarks, asserted that “many unknowns” existed in this area, and
uncertainty may well continue to be the case. After all, “flexibility was built in to the reform.” 6
Hashimoto also counseled, wisely, that impacts may vary among states. (His ultimate
conclusions were that the ACA would, short term, have “no immediate impact” on
compensation, with the “long-term impact likely related to reduction in Medicare Costs.” 7 )
A concern that has been expressed by both Hashimoto (2011) and Krohm (an IAIABC
consultant, 2012), that is still hard to gauge is whether improving access to doctors by the
2 Debra T. Ballen, The Sleeper Issue in Health Care Reform: The Threat to Workers’ Compensation, 79 CORNELL
LAW REVIEW 1291, 1297 (1994).
3 Id.
4 In the run-up to passage of the ACA, the ABA TTIPS Section submitted a recommendation that Congress be
“urged not to adopt legislation that merges medical payment components of workers compensation and medical
payment components of automobile insurance with health insurance, commonly referred to as Universal 24 Hour
Health Coverage.” TTIPS Recommendation (Nov. 13, 2009) [on file with the Author.]
5 Dean Hashimoto, M.D., J.D., ABA WC Sections CLE, Boston, MA (Apr. 7, 2011) [power-point slide].
6 Comments of Dean Hashimoto, M.D., J.D., ABA WC Sections CLE, Boston, MA (Apr. 7, 2011).
7 Dean Hashimoto, M.D., J.D., ABA WC Sections CLE, Boston, MA (Apr. 7, 2011) [power-point slide].
31

general population will hurt access to care by workers’ compensation recipients. 8 Hashimoto
seemed to discount this concern, as medical care in the workers’ compensation sphere is often
afforded by specially-designed networks and/or by health care providers who have a special
interest in the field. Further, if general health plans feature lower reimbursement rates than
workers’ compensation, patients who are compensation claimants “will become more desirable
financially ….” 9 In his verbal remarks on this topic, Hashimoto predicted “more segregation of
workers’ compensation/occupational medicine and general healthcare.” 10 Krohm, on the other
hand, found credible predictions that the U.S. faces a shortage of primary care physicians in the
next decade that “will create serious access problems for injured workers.” He also
characterized as “worrisome” the trends toward (1) having injured workers treat with nurse
practitioners; and (2) reduction in the number of available occupational medicine specialists. 11
Despite the continuing uncertainty, many have posited that, with the predicted increased
number of workers having group health insurance, presumably less cost-shifting of non-work
accident and illness expenses onto the workers’ compensation system will occur. Second,
workers will become healthier and less likely to experience injuries or diseases, including some
that would qualify for workers’ compensation benefits. Third, with employers encouraged to
institute workers onto employee wellness programs, presumably injuries suffered during these
programs will be deemed as having arisen in the course of employment.
III. The Cost-shifting issue
A large proportion of workers’ compensation claimants involved in litigated cases
(certainly in Pennsylvania) are members of the working poor or near-poor. The high percentage
of claimants who labor full time yet have no health insurance is a key indicator of belonging in
these categories. This number may be as high as 40%. In this connection, I had the occasion to
systematically evaluate Pennsylvania workers who were accepting lump sum settlements during
2005 and 2006, and the uninsured rate among that group of workers was easily over 50%. 12 This
higher amount is not surprising, since most workers who do have health insurance through work
lose that coverage within a few months after separation.
Most of these workers are not single, younger men who overall can probably afford to go
without health insurance. Instead, they are more often than not middle-aged individuals who
have families for whom they are responsible.
8 Id., See also Comments of Gregory Krohm, Ph.D, IAIABC Webinar Briefing (Dec. 13, 2012) [power-point slide.]
9 Dean Hashimoto, M.D., J.D., ABA WC Sections CLE, Boston, MA (Apr. 7, 2011) [power-point slide].
10 Dean Hashimoto, M.D., J.D., ABA WC Sections CLE, Boston, MA (Apr. 7, 2011).
11 Comments of Gregory Krohm, Ph.D, IAIABC Webinar Briefing (Dec. 13, 2012) [power-point slide.]
12 David B. Torrey, Compromise Settlements Under State Workers’ Compensation Acts: Law, Policy, Practice and
Ten Years of the Pennsylvania Experience, 16 WIDENER LAW JOURNAL 199 (2007).
32

This lack of general health insurance is unsatisfactory in general, but lack of such
insurance has also long generated a “perverse motivation” – workers and their healthcare
providers seeking to portray what are essentially non-work-related illnesses as work-related, so
that workers’ compensation, which covers almost all employees, will pay the bills.
This phenomenon is universally known as “cost-shifting.” On occasion, the misportrayal
may be intentional and overt – what some might consider fraud. In many cases, however,
causation is ambiguous (aggravation injuries are an obvious example), and it is not unreasonable
for the worker and his or her provider to characterize the condition as caused by work.
The prospect of the ACA extending coverage to the majority of workers, including those
with pre-existing conditions, has the potential to end this type of cost-shifting. In 2011, the
National Council on Compensation Insurance opined, “Those without health insurance or with
nonwork-related preexisting conditions could potentially be accessing workers compensation
currently for medical care. Since the healthcare law expands the number of people covered and
requires coverage of preexisting conditions, there may be a decline in workers compensation
funding of treatments for preexisting nonwork-related conditions.” 13
A writer who examined the effects of the predecessor Massachusetts Health Care
Insurance Reform Law 14 noted that, long before the ACA, Massachusetts observers believed that
expanding coverage in that state “would reduce workers’ compensation for medical service
needs that did not directly relate to compensable harm.” Perhaps that belief was borne out, as a
study “suggested … ‘that the reform can account for a roughly 5 percent to 10 percent decline in
WC [emergency room] ER bill volume.” 15 On the other hand, Hashimoto, in his 2011
comments, stated that the Massachusetts experience with 24/7 medical coverage to date had not
shown “an impact on reducing litigation and costs.” He ventured that perhaps this was so as
many of the uninsured who had become covered were “young and healthy” anyway. 16
IV. Employee Wellness Programs: In General and a Course of Employment Issue –
Injuries Suffered Arising out of Participation in Wellness Programs
An employee wellness program is one where the worker, to secure a discount on his/her
healthcare premium contribution, or receive some other award, agrees to such programs as diet
modification, exercise, or smoking cessation. Under the ACA, such programs are encouraged.
Employee wellness programs are, in this regard, a key part of the ACA theory that preventive
13 The Affordable Care Act and Workers Comp, WORKERS COMPENSATION ISSUES REPORT, p.32 (2011), available at
https://www.ncci.com/Documents/IssuesRpt-2011-AffordableCare.pdf.
14 This is the so-called “Romneycare.” Chapter 58 of the Acts of 2006, available at
http://www.malegislature.gov/Laws/SessionLaws/Acts/2006/Chapter58.
15 John Stahl, Workers’ Compensation Under Romneycare Provides Clues for Nationwide Future of Systems,
LexisNexis Workers’ Compensation Law Community (Jun. 29, 2012).
16 Comments of Dean Hashimoto, M.D., J.D., ABA WC Sections CLE, Boston, MA (Apr. 7, 2011).
33

medicine can lower health care costs and, at once, improve the quality of life.
Rules under the ACA released in November 2012 gave “employers new freedom to
reward employees who participate in workplace wellness programs intended to help them lower
blood pressure, lose weight or reduce cholesterol levels. The maximum permissible reward
would be increased to 30 percent of the cost of coverage, from the current 20 percent…. The
rules would further increase the maximum reward to 50 percent for wellness programs intended
to prevent or reduce tobacco use.” 17
The regulations which accompany and implement the ACA elaborate at length on the
manner in which employers incentivize workers into taking part in wellness programs:
Incentives are offered in a variety of forms, such as cash, gift cards,
merchandise, time off, awards, recognition, raffles or lotteries, reduced health
plan premiums and co-pays, and contributions to flexible spending or health
savings accounts….[T]he Kaiser/HRET 2011 survey reported that among firms
offering health benefits with more than 200 workers, 27 percent offered cash or
cash equivalent incentives (including gift cards, merchandise, or travel
incentives). In addition, 11 percent of these firms offered lower employee health
plan premiums to wellness participants, two percent offered lower deductibles,
and 11 percent offered higher health reimbursement account or health savings
account contributions. Meanwhile, 13 percent of firms with fewer than 200
workers offered cash or equivalent incentives, and each of the other types of
incentives were offered by only two percent or less of firms. 18
The increased availability of these plans, made possible by the expansion of insurance
coverage and grants for the same for small employers, 19 may reduce workers’ compensation
costs. 20 This is so because poor lifestyle habits – the focus of employee wellness programs – are
known to drive up workers’ compensation costs. Indeed, obesity, 21 diabetes, and hypertension
are frequently identified as imposing these types of costs. 22 In 2010, notably, NCCI chief
17 Robert Pear, “Administration Defines Benefits that Must be Offered Under the Health Law,” NEW YORK TIMES,
p.A17 (Nov. 21, 2012).
18 Federal Register Volume 77, Number 227, p.70629 (Monday, November 26, 2012), available at
http://www.regulations.gov/contentStreamer?objectId=0900006481172f19&disposition=attachment&contentType=
html.
19 See Shannon C. Egle, Effective Dates are Lurking: What you Should Know About Healthcare Reform, THE BRIEF,
p.12, at 16-17 (ABA, Winter 2013).
20 Cf. Comments of Gregory Krohm, Ph.D, IAIABC Webinar Briefing (Dec. 13, 2012) (referring in general to the
expansion of insurance coverage as potentially reducing costs by causing better health).
21 T. Ostybe, T.M. Dement, & K.M. Krause, Obesity and Workers’ Compensation, 167 ARCHIVES OF INTERNAL
MEDICINE 766 (April 23, 2007).
22 Mary Anne Hawrylak, Obesity and Workers’ Compensation Costs, INSURANCE JOURNAL (Jan. 13, 2013),
available at http://www.insurancejournal.com/magazines/features/2013/01/14/276698.htm (“Diabetes and smoking
34

Stephen Klingel, predicting the effects of the ACA on workers’ compensation law, ventured that
the new law’s promotion of “wellness initiatives” could “reduce the incidence and duration of
workers’ compensation claims” – for example, if lessened obesity in the working population
generates better health. 23
Under the ACA, no wellness program tax credit is to be implemented. However, “as was
true previously, the expense of an employer-provided wellness program for employees is
deductible as a business expense [under section 162 of the IRC].” And, as foreshadowed above,
“The new regulations, scheduled to be implemented in January of 2014, further clarify previous
wellness-related regulations as well as expand the options of employers….” 24
An ironic phenomenon may be created by this positive of the ACA. In this regard, if
participation in active wellness programs does expand, more claims may be heard that
participation in the same has itself given rise to an injury. This assertion is hardly speculative.
In a 1992 case from Pennsylvania, for example, the claimant, prior to work, was
exercising on the premises as part of his employer’s wellness plan. He had a heart attack, and the
appellate court awarded benefits. 25 The employee’s workout was, notably, developed for him
by the staff of the employer’s fitness center. The court, in awarding benefits, held that the
deceased was engaged in activities “in furtherance of employer’s business or affairs” at the time
of his death; he was hence in course of his employment.
In a 2009 case from New York, meanwhile, the claimant sustained a spinal cord injury
while taking part in an exercise class at a gym that his employer had made available for
employees during work hours. In this case, too, the appellate court awarded benefits, holding
that when an employee can show an employer’s overt act, or overt encouragement, supporting
participation, the injury arises out of the course of employment. 26 This holding led Jackson
Lewis attorneys to counsel, “Employers … need to consider the effects of a potential increase in
workers’ compensation claims on the effectiveness of their wellness programs, and how the
design of their programs can mitigate those risks.” 27
are right behind an expanding waistline in their impact on workers’ comp claims. Diabetes is directly correlated with
obesity and affects the wound-healing process. Smoking, in addition to all of its well-publicized health risks, also
affects surgery to repair fractures. A smoker’s bones take longer to knit, and there is a higher risk of re-fracture. In
fact, there is a growing trend for physicians to delay or avoid surgery on a heavy smoker because of potential
complications.”).
23 Steve Klingel, Federal Health Care and Workers’ Compensation, FLORIDA UNDERWRITER (Special Supplement,
Summer 2010).
24 See http://www.wellnesstaxcredit.com/.
25 Stanner v. WCAB (Westinghouse Electric Co.), 604 A.2d 1167 (1992), appeal denied, 615 A.2d 1314 (Pa. 1992).
26 Torre v. Logic Technology, Inc., 881 N.Y.S.2d 675 (A.D. 2009). Under the New York statute, notably, a
claimant cannot recover workers’ compensation benefits for an injury arising out of his or her “voluntary
participation in an off-duty athletic activity not constituting part of the employee's work related duties unless the
employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in
such activity or (c) otherwise sponsors the activity.” N.Y. Workers Compensation Law § 10 (McKinney 2011).
35

These types of claims are most likely cognizable when the state in question has a broad
conceptualization of the pivotal, time-honored statutory test of “arising out of the employment.”
This test is broader than the slang phrase “on-the-job injuries,” or the tort-law import, “course
and scope.” Instead, a liberal court, applying the Larson test, will often define the phrase
broadly, as capturing those risks that have their origin in the “conditions and obligations” of
work. 28 And, when an employer encourages a certain employee behavior, an injury that results
may easily be conceived of as having arisen from his employment.
Evidence that an employer benefits from an activity like a wellness program effort, even
if participation is not mandatory, may give rise to the legal/causal connection to the
circumstances and obligations of work. And, notably, it is easy to find promotions of wellness
programs that advertise direct benefits to employers. The following is an example:
Companies can benefit greatly from adopting and maintaining employee wellness
programs. Employee wellness programs can include things like health risk
assessments, onsite health screening, health coaching, alcohol and drug
counseling, mental health assistance, safety in the workplace, preventing violence
in the workplace and diversity education.
The tangible benefits of employee wellness program which directly result in
economic savings can best be seen in these four areas:
1. Reduction in demand for medical services. Businesses that incorporate an
employee wellness programs enjoy significant savings on medical expenses and
other related costs.
2. Reduction in employee absenteeism. Simply put healthy employees miss less
work. This is another factor that makes employee wellness programs a very cost
effective maneuver.
3. Reduction in on-the-job injuries and worker’s compensation costs. Employee
wellness programs that educate employees about workplace safety have fewer
injuries on the job thereby lower worker’s compensation costs.
4. Reduction in Disability Costs. Healthy employees are less likely to require
disability care. With employee wellness programs educating employees on health
issues such as heart disease, diabetes, mental health issues and work related
injuries, awareness leads to prevention. 29
27 “Can Your Wellness Program Trigger a Workers’ Compensation Claim?,” Jackson Lewis LLP Workplace
Resource Center (Oct. 9, 2009), available at http://www.jacksonlewis.com/resources.php?NewsID=1879.
28 See in re Question Submitted by the US Ct. App., 10 th Cir. v. Martin Marietta Corp., 759 P.2d 17 (Col. 1988)
(citing 1 LARSON, WORKERS’ COMPENSATION LAW, § 6.50 (1985)).
29 John Bates, Companies Make Great Gains with Employee Wellness Programs (undated), available at
http://wellnessproposals.com/wellness-articles/companies-make-great-gains-with-employee-wellness-programs/.
36

At least one state, Minnesota, has anticipated such potential liability. That state includes
in its compensation law the following proviso:
Subd. 9. Employer responsibility for wellness programs. Injuries incurred
while participating in voluntary recreational programs sponsored by the employer,
including health promotion programs, athletic events, parties, and picnics, do not
arise out of and in the course of the employment even though the employer pays
some or all of the cost of the program. This exclusion does not apply in the event
that the injured employee was ordered or assigned by the employer to participate
in the program. 30
While wellness program cases are not found in abundance in the precedents, another type
of case is analogous. These are the precedents that feature a worker becoming ill after receiving
an inoculation – like a flu shot – on the urging of the employer. The Larson treatise position,
notably, has long been that if an employer has strongly urged such inoculations, and a mutual
benefit may be discerned in the employee’s presumed continued wellness, the pathological
reaction is compensable. 31 Thus, in a Florida case, a worker who was sickened by a typhoid shot
sponsored by her employer, after a hurricane damaged the water supply, was held by the state
supreme court to have suffered a compensable injury. 32
IV. Conclusion
Uncertainty remains relative to the effects of the ACA on workers’ compensation. The
one area where helpful precedent exists is the relatively niche-like course of employment issue of
wellness program injuries. On the more important issue of reduced cost-shifting – with its
potential for reduction in overall costs – meanwhile, it is worth remembering one of Hashimoto’s
admonitions. That is, that the expected reduced costs may not unfold, as a major incentive for an
injured worker to advance a compensation claim is the disability benefits that accompany the
same. For those who labor daily in the trenches of litigation, this admonition has the ring of
truth.
See also Workers’ Compensation: The Impact of Health-Related Claims (Sept. 27, 2012), available at
http://www.associatedfinancialgroup.com/Data/eLineNewsletters/RiskManagement/Vol11/No8sep12/riskartsep12.a
sp. See also Hawrylak, supra (“These issues may not have seemed as imperative in the past several years, but with a
rise in both workers’ comp rates, increasing non-renewals and tightening capacity, it’s time for agents, brokers and
other insurance partners to discuss obesity and other wellness issues with their clients – and help these employers
find solutions to improve worker health and control medical and workers’ comp costs.”).
30 MINN. STAT. § 176.021. The Supreme Court of Minnesota has held, “it cannot be contended that an employee
injured while participating in an employer-sponsored athletic event or wellness program is entitled to workers'
compensation benefits unless the employee's participation was ordered by the employer.” McConville v. City of St.
Paul, 528 N.W.2d 230, 231 (Minn. 1995).
31 See, e.g., E.I. Dupont DeNemours Co. v. Faupel, 859 A.2d 1042 (Del. Super. 2004). See also Hick’s Case, 820
N.E.2d 826 (Mass. App. 2005) (employee blinded as a result of flu shot) (court citing Larson treatise as follows:
“When the inoculation is not . . . strongly tied to the employment either by employer compulsion or by the special
risks of the assignment, it may still be covered if there is a combination of strong urging by the employer and some
element of mutual benefit in the form of lessened absenteeism and improved employee relations.”).
32 Suniland Toys and Juvenile Furniture, Inc. v. Karns, 148 So. 2d 523 (Fl. 1963).
37

REFERENCES
Debra T. Ballen, The Sleeper Issue in Health Care Reform: The Threat to Workers’
Compensation, 79 CORNELL LAW REVIEW 1291, 1297 (1994).
John Bates, Companies Make Great Gains with Employee Wellness Programs (undated),
available at http://wellnessproposals.com/wellness-articles/companies-make-great-gains-withemployee-wellness-programs/.
Dean Hashimoto, M.D., J.D., The Impact of Health Care Reform on Workers’ Compensation,
Power-Point Slides, ABA WC Sections Mid-Winter CLE, Boston, MA (Apr. 7, 2011).
Mary Anne Hawrylak, Obesity and Workers’ Compensation Costs, INSURANCE JOURNAL (Jan.
13, 2013), available at
http://www.insurancejournal.com/magazines/features/2013/01/14/276698.htm
Steve Klingel, Federal Health Care and Workers’ Compensation, FLORIDA UNDERWRITER
(Special Supplement, Summer 2010).
Greg Krohm, Health Care Reform and Workers’ Compensation: What to Prepare For, Powerpoint
Slides, IAIABC Webinar (Dec. 13, 2012).
T. Ostybe, J.M. Dement, & K.M. Krause, Obesity and Workers’ Compensation, 167 ARCHIVES
OF INTERNAL MEDICINE 766 (April 23, 2007).
Robert Pear, “Administration Defines Benefits that Must be Offered Under the Health Law,”
NEW YORK TIMES, p.A17 (Nov. 21, 2012)
John Stahl, Workers’ Compensation Under Romneycare Provides Clues for Nationwide Future
of Systems, LexisNexis Workers’ Compensation Law Community (Jun. 29, 2012).
David B. Torrey, Compromise Settlements Under State Workers’ Compensation Acts: Law,
Policy, Practice and Ten Years of the Pennsylvania Experience, 16 WIDENER LAW JOURNAL 199
(2007).
Jackson, Lewis et al., “Can Your Wellness Program Trigger a Workers’ Compensation Claim?,”
Jackson Lewis LLP Workplace Resource Center (Oct. 9, 2009) , available at
http://www.jacksonlewis.com/resources.php?NewsID=1879.
Workers’ Compensation: The Impact of Health-Related Claims (Sept. 27, 2012), available at
http://www.associatedfinancialgroup.com/Data/eLineNewsletters/RiskManagement/Vol11/No8s
ep12/riskartsep12.asp.
38

BOOK NOTE
THE SYMPATHETIC STATE: DISASTER RELIEF
AND THE ORIGINS OF THE AMERICAN WELFARE STATE
by Michele Landis Dauber
University of Chicago Press. 353 pp. 2013.
The author, in what is perhaps a revisionist account, asserts that the
foundation of the welfare state was laid by way of congressionally-approved
disaster relief efforts that reached back all the way to the Whiskey Rebellion.
Congress (not without some dissenters) believed that it could tax and spend for the general
welfare, and that it could determine precisely what the “general welfare” was. The Supreme
Court, she notes, was never particularly averse to this Article I, Section 8 theory, and the lawyers
who defended New Deal programs were highly animated by the belief that the court would
ultimately sustain Roosevelt’s legislative efforts on this constitutional basis. Indeed, Dauber
recounts how Justice Stone furtively dropped the hint to Secretary of Labor Frances Perkins.
Of historical note to the comp specialist: Some in Congress, even before states started
enacting workers’ compensation statutes, were convinced that it could establish a federal
workers’ compensation law under precisely this constitutional power. Professor Dauber, who
teaches law at Stanford University, explains that Congress, in 1910, established a bipartisan blue
ribbon panel to: “study the subject of employer liability and workers’ compensation…. The
panel was charged with investigating the policy and legal dimensions of replacing the thencurrent
negligence-based system with compulsory workers’ compensation…. Legally, the
pressing question was whether any system that required employer contributions would be
constitutional under the Due Process Clause of the Fifth Amendment…. This difficulty seemed
a serious obstacle to a national system….”
According to Dauber, at least some on the panel were convinced of the constitutionality
of such a national program. They were intrigued by the many examples of Congress having
flexed its muscles to tax and spend for the general welfare in past times of emergency. (The
commission ultimately recommended a bill to Congress, “justified under the commerce power
rather than the General Welfare Clause.” This proposed national workers’ compensation
program, however, “failed to pass the House, and President Taft decided to test the waters by
starting a compensation scheme in the Panama Canal zone instead ….” 1 )
Of contemporary significance, of course, is that Justice Roberts, in upholding the
Affordable Care Act, found constitutional support for the controversial “individual mandate” in
precisely this power. This irony has been noted in an important review of Professor Dauber’s
1 Id. The Commission report can be accessed as a Google book:
http://books.google.com/books?id=dDofAQAAMAAJ&printsec=frontcover&dq=Message+of+the+President+of+th
e+U.+S.+transmitting+the+report+of+the+Employers'+liability+and+workman's+compensation+commission&hl=e
n&sa=X&ei=TufzUNe9JeqQ0QGo5oGIBg&ved=0CDMQ6AEwAA#v=onepage&q=Message%20of%20the%20Pr
esident%20of%20the%20U.%20S.%20transmitting%20the%20report%20of%20the%20Employers'%20liability%20
and%20workman's%20compensation%20commission&f=false.
39

enlightening book. 2 Read her masterful text and you will find yourself totally immersed in this
important clause of the U.S. Constitution.
BOOK NOTE
EMPLOYERS’ LIABILITY AND WORKERS’ COMPENSATION
by Ken Oliphant and Gerhard Wagner (Editors).
De Gruyter/European Centre of Tort and Insurance Law, 619 pp. (2012).
Here the authors have produced that rare item – a comparison of how injured workers are
compensated across the developed world. They treat the United Kingdom and Wales, Austria,
Germany, France, Denmark, Italy, The Netherlands, Japan, Poland, Romania, and the United
States. After reviewing these diverse approaches, the authors pen essays on compensation of
work injuries in a changing world, and the various policy issues that are presented by such
changes. The authors remark that there has never been a “comparative academic study of this
scale,” but a well-regarded book from 1991 is C. Arthur Williams’ An International Comparison
of Workers’ Compensation (Springer 1991).
BOOK NOTE
AN INJURY LAW CONSTITUTION
by Marshall S. Shapo
Oxford University Press. 284 pp. (2012).
The author, an eminent scholar of products liability law, asserts that the
body of law legislatures and courts have developed concerning responsibility for
injuries – and prevention of the same – has some of the qualities of a constitution. That is, “a
fundamental set of principles that govern relations among people and corporate and
governmental institutions.” This Injury Law constitution includes tort law, systems like workers’
compensation, and the various and very numerous state laws that regulate the safety of risky
activities and products.
The highly philosophical flavor of the book may be gleaned from Professor Shapo’s
commentary on the majority rule that the negligent employer cannot be joined by a third party in
a tort action, and is usually entitled to subrogation to boot: “In this area of controversy about the
reach of the exclusivity provisions of the workers’ compensation laws, courts are left to find
justice in a mélange of history with mixed considerations of fairness and efficient loss
distribution. The injury law constitution is supple in the joints, especially where it is not clear
which rule is fairer or allocates losses most efficiently. When a decision either way will draw
accolades or brickbats from different interest groups, that constitution exhibits an ongoing
dialectic about the meaning of justice in workplace injuries.”
2 Dan Farber, Did Hurricane Sandy Save Obamacare?, WASHINGTON MONTHLY (Jan./Feb. 2013), available at
http://www.washingtonmonthly.com/magazine/january_february_2013/on_political_books/did_hurricane_sandy_sa
ve_obama042130.php?page=1.
40

RECENT ARTICLES
1. David B. Torrey, Reports as Admissible in Evidence, LEX & VERUM
[Monthly of the National Association of Workers’ Compensation
Judiciary] (February 2013). Available as a PDF at www.NAWCJ.org (go
to “Newsletters” link).
For this study, the author researched the fifty states, the District of
Columbia, and the Longshore Act to try to determine how many state workers’ compensation
laws allow into evidence a signed medical report over a hearsay objection. As it turns out, such
allowance is by far the majority rule. Only a few states – Pennsylvania, New Jersey, Delaware,
and Kansas among them – maintain a regime where the party offering the medical report must
schedule and pay for the physician’s deposition, so as to make him available for crossexamination.
A particularly charming find: the Alaska practice is similar to that of Pennsylvania.
Thus, if a hearsay objection is lodged the party offering the report must make the physician
available for cross-examination at its expense. Lodging such an objection was, at least at one
time, called “Smallwooding” an opponent – that is, objecting as a routine tactical matter to any
report, to shift the task and expense of producing medical testimony to the offering party. See
Frazier v. H.C. Price, 794 P.2d 103 (Alaska 1990).
The article features a complete chart detailing the laws of the various jurisdictions. The
chart is preceded by an analysis of typical system features. At least ten additional features may
be discerned:
Most workers’ compensation statutes provide that the WCJ shall not be bound by the
common law or statutory rules of evidence. (e.g., CA, LO, MO, MS, UT, VT, LHWCA).
This is a downright historic formulation found, notably, in the earliest statutes. 3 A statute
that features this language, or a variation on the same, surely enables the agency to
formulate a rule allowing for presumptive admissibility of medical reports.
A typical formulation is that a medical report is admissible, but the party proposing the
report must notify the other side a certain period of time in advance. (e.g, CA, FL, GA).
A similarly typical formulation allows the medical report into evidence, but indicates
that the party against whom it is submitted may cross-examine on its (or his or her)
motion. (e.g., CO).
A well-developed statute of the latter type specifically provides for which party must bear
the expense of the testimony or deposition. (e.g., AK, AR, IA, ME, MS).
3 In Pennsylvania, an early (1919) amendment to the law was addition of the phrase, “but all findings of fact shall
be based only upon competent evidence.” David B. Torrey, The Rules of Evidence Under the Pennsylvania
Workmen’s Compensation Act: Sources and Theoretical Considerations, 29 DUQUESNE LAW REVIEW 447, 484
(1991).
41

Another well-developed statute of this type requires that the report be under affidavit or
some other type of certification. (e.g., CO, LO, MS, RI).
A few well-developed statutes set forth what a report must include before it can be
considered for admission. (e.g., AK, CA, MN).
At least two states acting on the latter principle prescribe and publish forms which are
intended to be used in litigation. (e.g., KY, NM).
Rules may differ on admissibility in terms of whether the proceeding at issue is
preliminary or final. In many preliminary settings, a jurisdiction which would otherwise
exclude a medical report allows admission. (e.g., KS, PA).
Some state laws specifically state that expert and other testimony may be undertaken by
deposition. Rules of this sort seem to have been promulgated to avoid arguments being
heard that the WCJ must observe personally all lay and expert testimony. (e.g., CO, IA,
MN, NC).
A few states direct that the medical expert who has already prepared a report is not to
testify to the same (that is, read his report), at time of deposition. (e.g., AK, CA).
2. Rebecca Shafer, Off-site Transitional Duty Very Effective in
Reducing Workers Comp Costs (WorkersCompensation.com) (Feb.
20, 2013), available at
http://www.workerscompensation.com/compnewsnetwork/mobile/m
obile/workers-comp-blogwire/16147-off-site-transitional-duty-veryeffective-in-reducing-workers-comp-costs.html.
Few issues have, over the years, raised as much emotion in our system as funded
employment. The Commonwealth Court has said nihil obstat to the practice – but the irony is
that this approval came during a more recent period where few employers seem interested in
such efforts.
In any event, in this new essay a comp consultant recommends funded employment as
part of a transitional duty program. The author, who also has a law degree, identifies the benefits
to employer and employee. I had not seen these items spelled out before, so here is the critical
quote: “(1) The employee continues his/her salary as opposed to receiving a lower work comp
indemnity payment; (2) the employer can deduct the salary paid to the employee as a charitable
donation (consult your tax adviser); (3) The employee’s deconditioning is reduced by the
employee remaining active instead of being inactive; (4) the employee avoids the unable to work
syndrome and maintains a daily routine of going to work; (5) the employee maintains a higher
sense of self-esteem from performing productive and meaningful work; (6) the indemnity cost of
the work comp claim is reduced which in turn lowers the employer’s experience modification
factor ….; (7) it has been shown by several studies that employees who work light duty recover
faster than the employees who do not. The faster recovery results in lower medical cost; (8) the
employee may learn an alternative skill set while working light duty.”
42

COMPLETE DIGEST OF REPORTED CASES
Case: Ortiz v. WCAB (Rodriguez General Contractors)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 446 C.D. 2012, filed January 15, 2013,
Leavitt, J.
Type of Case: Undocumented Worker – Ongoing Entitlement to Benefits – Res Judicata –
Waiver
Issue or Issues: (1) Did the WCJ commit error in awarding benefits to an undocumented worker,
particularly partial disability benefits, after his return to work – while still undocumented? (2)
Did the claimant waive a res judicata defense by purportedly not raising the same?
The claimant, Ortiz, was an undocumented worker. He sustained an injury arising in the
course of his employment on June 16, 2007. His original claim was contested. During the
pendency of the claim petition, claimant actually returned to work for a different employer. At
all times, claimant had no documents which would permit him to be employed in the U.S.
The WCJ granted benefits, awarding him total disability and, in turn, partial disability,
given his return to work part time for the new employer.
The Judge’s decision was filed on December 1, 2008. Ten months later, in September
2009, employer filed to suspend on the allegation that claimant was not authorized to work in the
U.S., and that claimant had, in fact, returned to work.
The petition was assigned to the same WCJ. He denied the modification petition on the
grounds that employer was required to prove a change in claimant’s condition and had not done
so. The Board, however, reversed. Indeed, the Board ruled that claimant was not entitled to
benefits as of November 2007, the date of the return to work; this date is remarkable as it long
preceded the Judge’s first adjudication of December 1, 2008.
The claimant appealed the disallowance to Commonwealth Court, but the court affirmed.
As a preliminary matter, the court rejected the proposition that employer’s petition was barred by
res judicata. In this regard, “since claimant has not raised res judicata, that issue is waived.”
(This seems an unsatisfactory response, because the “change in condition” theory is premised on
the theory of res judicata.)
With this issue, however disingenuously, out of the way, the court held that the Board
committed no error in concluding that claimant was not entitled to disability benefits as soon as
he was fit for work. These are the holdings of the leading precedents Reinforced Earth v. WCAB
(Astudillo), 810 A.2d 99 (Pa. 2002); and Mora v. WCAB (DDP Contracting Company, Inc.), 845
A.2d 950 (Pa. Commw. 2004). The court noted that under these holdings, “an employer seeking
to suspend the disability benefits of a claimant who is an unauthorized alien is not required to
show job availability. …In that situation, the employer need only demonstrate that the claimant
is an unauthorized alien and that the claimant is no longer totally disabled.” The theory, in this
43

egard, is that when the claimant experiences a recovery that makes him able to work, it is now
“his status as an unauthorized alien that prevent[s] him from legally working.”
To reiterate, “to suspend weekly wage benefits of an unauthorized alien, the employer
need only demonstrate that a claimant’s medical condition has improved enough to work at some
job, even one with restrictions.”
Case: DePue v. WCAB (N. Paone Construction, Inc.)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1113 C.D. 2012, filed January 13, 2013,
Leadbetter, J.
Type of Case: Compromise and Release – Effect of Release – Additional Injury
Issue or Issues: Did the WCJ and Board commit error in denying claimant’s post-C&R petition
for review seeking to add a left shoulder injury?
The claimant, DePue, sustained an injury arising in the course of his employment on
February 26, 1996. His injury was accepted as a closed head injury. He was paid benefits
voluntarily under an NCP.
The parties, more than a decade later, then began to talk settlement. A hearing date was
apparently arranged. In the days or weeks before the C&R hearing, the employer drew up the
proposed release. In the course of this process, claimant’s counsel sent a “proposed addendum”
to defense counsel. The proposed addendum stated that the “accepted injury includes a ‘closed’
head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short-term memory and
bi-polar disorder. Defendant agrees to continue to provide medication and medical care, which is
reasonable and necessary, and causally related to his injury.” However, defense counsel
thereafter advised claimant that he would not consent to the left shoulder fracture, chronic pain,
and bi-polar disorder in the addendum. Defense counsel advised claimant, “we already
negotiated these injuries at the time of the last settlement.”
Ultimately, Judge Kelley approved the C&R. Consistent with the back and forth between
the lawyers, the description of injury stated only, “severe closed head injury with seizure
disorder and short-term memory loss.”
Judge Kelley approved the C&R on or about March 3, 2008. Importantly, the C&R was
for disability only – the case stayed open for medical.
Some two and a half years passed. Then, in July 2010, claimant filed a penalty and
review petition. He sought to add to the description of his work injury the left shoulder. He also
complained of $1,200.00 in medical bills for treatment of the shoulder injury.
Judge Callahan dismissed the petition, concluding that the review petition was barred
“because claimant was aware of the left shoulder injury and agreed not to include it in the C&R
agreement….” The Judge cited the case Weney v. WCAB (Mack Industries Sprinkler Systems,
Inc.), 960 A.2d 949 (Pa. Commw. 2008). The Appeal Board affirmed.
44

Commonwealth Court has also affirmed. The court, however, did not rely on res judicata
and Weney, as had the WCJ.
Instead, the court stressed the finality of settlement. It did not reproduce or cite the Weney
res judicata case in its decision. The court, in stressing finality, reproduced large swaths of the
testimony from the March 2008 C&R hearing. The court also stressed Judge Kelley’s decision
that claimant understood the full significance of the agreement. As far as the court was
concerned, a valid C&R agreement once approved is “final, conclusive, and binding on the
parties.” Only fraud, deception, duress, mutual mistakes or unilateral mistakes caused by an
opposing party’s fault can set aside a C&R. In this case, “after negotiations with employer,
claimant agreed to omit the left shoulder injury from the description of the injury …. The record
simply does not support claimant’s assertion that the left shoulder injury was erroneously
omitted in the final draft …. The C&R agreement was final and binding on the parties and may
not be amended after its unappealed approval.”
Citing civil cases addressing settlements, the court added, “because claimant did not
expressively reserve his right to add a new injury to the description of his work injury, he was
precluded from doing so more than two years after the approval of the C&R agreement.”
The court understood claimant to be arguing that employer was somehow estopped from
denying that the shoulder should have been acknowledged as part of the injury that claimant had
indeed suffered. In the present case, however, the court saw no room for an estoppel argument.
True, the employer may have paid some bills since the C&R for the left shoulder. Claimant,
however, could not “rely on employer’s voluntary payment of the medical bills for the left
shoulder injury to support his estoppel claim. As the court has consistently held, an employer’s
voluntarily medical payment does not constitute an admission of liability for an injury …. To
hold otherwise would be contrary to the Act’s policy of encouraging employers to voluntarily
pay medical expenses to injured employees to assist them in regaining health without fear of
being later penalized for the payment. Employer’s voluntary payment of medical expenses was
not an admission of its liability for the left shoulder injury and cannot be construed as a promise
to continue to make such payments.” Slip opinion at 10-11.
The court, addressing claimant’s argument about estoppel, stated, among other things,
“Promissory estoppel may be invoked to enforce a promise made by a party to an opposing party
when there is no enforceable agreement between the parties.” The court then went on to
reproduce the definition of promissory estoppel. The court also reviewed the “essential elements
of equitable estoppel.” This concept has as its essential element, a party’s “inducement of the
other party to believe certain facts to exist and the other party’s reliance on that belief to act.”
Importantly, the court stated, “A party invoking the doctrines of promissory and equitable
estoppel has the burden of establishing all the elements of the doctrines.”
45

Case: Glass v. WCAB (City of Philadelphia)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1274 C.D. 2012, filed January 10, 2013,
Cohn Jubelirer, J.
Type of Case: Subrogation – Spoliation Burden of Proof – “Preponderance”
Issue or Issues: Did the WCJ and Board commit error in concluding that employer, despite its
destruction of evidence which could have assisted the claimant (plaintiff) in a civil action, was
entitled to unrestricted subrogation?
The claimant, Glass, was a City of Philadelphia police officer. He sustained an injury
arising in the course of his employment on April 12, 2006. At the time, he was training with a
police motorcycle. An accident occurred, and the motorcycle fell on top of him. He was paid
benefits voluntarily. However, he also filed a third party tort action against Philadelphia Cycle
Center (PCC), alleging that improper maintenance caused him to lose control of the motorcycle
resulting in the crash and his injuries.
Shortly after the accident, the claimant’s attorney wrote to the City of his concern over
the motorcycle, and he requested the City to ensure that the motorcycle was not altered or
repaired before inspection by his expert. The City’s “legal assistant” was ultimately to testify
that she promptly told the police of this request. However, the police were later to contest this
proposition. What was known, however, was that another police officer then commenced to use
the motorcycle, sometime in late April 2006, all the way through May 2007. In September 2006,
meanwhile, a repair order was issued and the selfsame Philadelphia Cycle Center apparently
undertook the repairs. By the time the police allowed claimant’s expert to inspect the motorcycle
in late January 2007, of course, these repairs had apparently been made.
Time passed, and then in February 2009, claimant secured an arbitration award in the
amount of $490,000.00 in his lawsuit against PCC. The City promptly learned of this recovery,
and sought subrogation in its lien amount of $219,755.53. Claimant opposed the petition,
claiming that employer had acted in bad faith by allowing for the “spoliation” of evidence, which
had affected his third party recovery. Claimant asserted that when spoliation of evidence has
occurred, an employer is barred from subrogation. Thompson v. WCAB (USF&G), 781 A.2d
1146 (Pa. 2001).
The WCJ, however, allowed subrogation. He found the police witnesses more credible
than that of the legal assistant with regard to the communications that the motorcycle was not to
be altered before it could be inspected. The WCJ further concluded, however, that claimant did
not establish that employer had acted “in deliberate bad faith” to subvert the claimant’s third
party action. In the WCJ’s view, this was required by the Thompson precedent. The Appeal
Board affirmed, noting also that the claimant’s burden of proof in a case like this, where
circumstantial evidence was involved, was that the evidence “must preponderate in favor of that
conclusion so as to outweigh any other evidence and any inconsistent inferences.” (The court,
for this burden of proof, was ultimately to cite Mathies Coal Company v. WCAB (Tau), 591 A.2d
351 (Commw. 1991)).
46

Commonwealth Court also affirmed. As to the burden of proof, the court agreed that
when a claimant seeks to meet his burden of proof through circumstantial evidence, “such
evidence … must be adequate to establish the conclusion sought and must so preponderate in
favor of the conclusion as to outweigh in the mind of the fact finder any other evidence and
reasonable inferences therefrom which are inconsistent therewith.” Here, the WCJ was within his
power to determine that the claimant’s assertion of deliberate bad faith “did not so preponderate
and outweigh … the inconsistent inference from that evidence that the alteration was the product
of [simple] miscommunication.” The court, in general, agreed that the controlling precedents in
the present case were Thompson, supra; and Curtis v. Simpson Chevrolet, 348 F. Supp. 1062
(E.D. Pa. 1972).
Editor’s Note: The court referred to the fact finding power of the Judge as being the controlling
criterion. According to the court, “like credibility determinations, the weight given to evidence
and the reasonable inferences deducible therefrom, is a question solely for the WCJ as the fact
finder. …Therefore, we will not reweigh the evidence as claimant essentially requests this court
to do.” (Citing Elliot Turbo Machinery Co. v. WCAB (Sandy), 898 A.2d 640 (Pa. Commw.
2006)).
Case: North Pittsburgh Drywall Co. v. WCAB (Owen)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1257 C.D. 2012, filed January 9, 2013,
Cohn Jubelirer, J.
Type of Case: Availability of Work – Access to Transportation – Burden of Proof –
Reinstatement/Modification Dichotomy
Issue or Issues: Did the WCJ and Board commit error in denying employer’s suspension
petition, in a case where claimant had actually undertaken two days of referred work, but then
had to abort the same because he had no transportation?
Claimant, Owen, sustained an injury arising in the course of his employment on October
11, 2001. He was paid benefits voluntarily under an NCP. Roughly a year and a half later,
claimant secured a release to return to light duty. Employer thereupon offered claimant light duty
in April 2003. When claimant did not return to work, employer filed for a suspension.
Shortly thereafter, claimant actually returned to two days of light work. The site was
about an hour and a half away from his home. (Though this was far, claimant, when at full duty,
would also have to travel approximately the same distance.) In any event, claimant had returned
to these two days of light duty position, was able physically to do so, “but, after two or three
days, claimant’s father needed his vehicle back. Without transportation, claimant was unable to
return to his light duty position at employer’s warehouse.”
A WCJ refused to modify benefits under this scenario and, after two remands, in a third
decision, dated August 6, 2010, he again declined to modify benefits. The Appeal Board
affirmed.
47

The court, however, reversed. In the court’s view, the claimant’s inability to secure
transportation was not an excuse for continuing not to return in good faith to the light duty
performed. Claimant was responsible for his transportation.
The court stated that the most applicable precedent was Campbell v. WCAB (Foamex),
707 A.2d 1188 (Pa. Commw. 1998). There, claimant sustained an injury and returned to work at
modified duty. His benefits were suspended by agreement. Thereafter, however, he lost his only
vehicle in divorce proceedings and he had no longer any transportation to his job. He,
accordingly, quit and sought reinstatement of benefits. In that case, Commonwealth Court held
that claimant’s loss of earnings was not attributable to his work injury. The court stated that
“once a claimant has suitable alternative employment, any loss of earning power not related to
the work related injury does not justify reinstatement of total disability benefits.”
Another apt precedent was Beattie v. WCAB (Liberty Mutual Insurance Company), 713
A.2d 187 (Pa. Commw. 1998). There, claimant suffered a work injury, returned to work without
wage loss, and his benefits were similarly suspended by agreement. The claimant later quit the
modified work due to stress and interpersonal problems with the new employer’s board
members. Claimant then sought reinstatement but the court disallowed benefits. The court there
explained that when a claimant has voluntarily terminated his job, “the claimant has the burden
to prove that he left due to his disability … [and] where the claimant quit their jobs for reasons
unrelated to the disability or work related injury, benefits are not to be reinstated.”
The court, in contrast, rejected the idea that certain other of its precedents applied. These
cases were DME Company v. WCAB (Peters), 639 A.2d 869 (Pa. Commw. 1994); and Titusville
Hospital v. WCAB (Ward), 552 A.2d 365 (Pa. Commw. 1989). These precedents were
Kachinski-era cases where the court held that when an employer offered work opportunities to a
claimant a long distance away, and claimant did not have transportation, actual job availability
had not been shown.
The court, notably, showed little interest in nuanced arguments about which party had the
burden of proof (here, of course, employer was seeking to prove the availability of work):
In each of these cases [i.e., other precedents cited by the Court], regardless of the
procedural posture or the factual basis for the claimants’ separation from their
modified-duty position, this Court and the Supreme Court examined the
relationship between the reason for the separation and the claimants’ work
injuries. If the separation was proven to be related to the claimants’ work injuries,
then the claimants continued to receive benefits or had their benefits reinstated.
However, if the reason for separation was not related to the claimants’ work
injuries, either because of the claimants’ bad faith conduct or voluntary quitting
for reasons unrelated to their injuries, then benefits would be suspended or not
reinstated.
[In the present case], claimant testified that he was capable of performing, and did
perform, the light-duty position without difficulty, his work related injury did not
prevent him from performing those duties, and he left the light duty position
48

ecause he no longer had transportation available to him. …. Claimant testified
that it was the loss of his borrowed transportation that prevented him from
returning to the light duty position. While we empathize with claimant’s
transportation difficulties, it was these difficulties and not his work related injury
that led to claimant’s loss of earning power. That claimant worked those two or
three days in good faith does not alter the fact that claimant left the light duty
position for a reason other than his work related injury. …
Slip opinion at 29-30.
The court then remanded for findings of fact on claimant’s rate of pay for the light duty
position and the duration of that position.
Editor’s Note I: Other cases cited by the court were Virgo v. WCAB (County of Lehigh-
Cedarbrook), 890 A.2d 13 (Pa. Commw. 2005); Hertz-Penske Truck Leasing Company v. WCAB
(Bowers), 684 A.2d 547 (Pa. 1996); and Pappans Family Restaurant v. WCAB (Ganoe), 729
A.2d 661 (Pa. Commw. 1999).
Editor’s Note II: Of some note is that for the claimant’s two days of work, employer never
actually paid him. The WCJ and Board, in denying the employer relief, relied in part on this fact.
The court, however, agreed with employer that “this issue is a red herring and … a claim for
unpaid wages does not fall within the scope of the Act and should not defeat an otherwise valid
suspension of claimant’s benefits…. We agree with employer that this issue is not a reason for
denying the suspension petition.”
Editor’s Note III: The court did affirm an award of penalty. In this regard, the employer had
not paid benefits in the course of one of the appeals that led to the remand. The court discerned
no excuse for such inaction.
Case: Napierski v. WCAB (Scobell Company, Inc.)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 330 C.D. 2012, filed January 10, 2013,
Leavitt, J.
Type of Case: Reinstatement Petition – Job Availability – Funded Employment – Quit From
Funded Employment
Issue or Issues: Did the WCJ and Board commit error in refusing claimant’s reinstatement
petition?
Claimant, Napierski, sustained an injury arising in the course of his employment on July
28, 1995. He was paid benefits voluntarily under an NCP. Roughly ten years later, the employer
retained the Expediter Corporation to arrange for claimant to return to light work. The light work
was to be at Information Direct, Inc. (IDI), working forty hours per week in telephone customer
service. The job was funded by employer and paid less than claimant’s pre-injury wage.
Claimant’s physician approved the job. Claimant actually returned to the work in October 2004.
49

In August 2005, claimant noted an un-hygienic condition attendant to his work premises.
This condition was at IDI’s new premises, to which it had recently moved. Claimant “quit on the
spot, concluding that employer was ‘playing games’ with him.”
The employer then sought modification of benefits. The WCJ concluded that claimant in
bad faith had refused to work at the location where he found the purportedly un-hygienic
condition. The Appeal Board and Commonwealth Court (in an unreported decision from January
2009), affirmed. Claimant was reduced to partial disability.
After the Supreme Court denied claimant’s petition for allowance of appeal in 2009, he
filed to reinstate benefits. He did so after having asked employer to “fund the job for him again
so that he could return to work.” Employer had ignored the request.
The WCJ, Board and court all refused the reinstatement attempt. The WCJ noted that
benefits were previously modified for bad faith refusal to return to work, and claimant had no
evidence that his medical condition worsened. The Judge also found it irrelevant that the job
was a funded position. The court agreed on basically the same reasoning. The court relied on the
precedent Spinabelli v. WCAB (Massey Buick, Inc.), 614 A.2d 779 (Pa. Commw. 1992). There,
of course, claimant’s benefits had been modified after he refused in bad faith light duty jobs his
employer had offered. Three weeks after the WCJ issued that decision, claimant offered to return
to work but was told that the light duty jobs were no longer available to him. Claimant’s
subsequent reinstatement attempt was refused: “We do not believe that employer has the
responsibility of keeping a job open indefinitely, waiting for the claimant to decide when he
wants to work.”
The court also relied on the Supreme Court’s similar ruling in Pitt Ohio Express v.
WCAB(Wolff), 912 A.2d 206 (Pa. 2006) (claimant’s bad faith refusal of employment relieves the
employer of the need to show that a job continues to be available).
True, claimant in this case contended that the rule should be different, as the position
refused was a funded position. The court rejected this argument. While the job in question was
funded, it was not limited in terms of duration, as was the case in the leading precedent General
Electric Company v. WCAB (Myers), 849 A.2d 1166 (Pa. 2004). The court stated as follows:
Myers is inapposite. The issue in Myers was modification of benefits not
reinstatement. The question was whether the job was within claimant’s
capabilities and how long the job would last, as is the case in any modification.
Here, the parties have already litigated the modification of claimant’s benefits,
and claimant did not present any evidence that the funded job was of limited
duration. …
Claimant also argued that this case was special, because “the job was created especially
for him. …” Claimant asserted that because this was the case, “employer could make the job
available for him again.” The court viewed this argument as completely irrelevant: “It is not
known whether the job was created or already existed, but it does not matter. Spinabelli
involved two jobs that the employer ‘specially created’ for the claimant, and this Court held that
50

the employer did not have to keep them available after the claimant refused them in bad faith.
Once the claimant refuses any kind of job in bad faith, whether funded or especially created for
the claimant, job availability ceases to be an issue. It matters not that an employer might be able
to provide any job for the claimant; it cannot be forced to do so more than once.”
UNREPORTED CASE
Case: Richman v. WCAB (Charming Shoppes, Inc.)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 540 C.D. 2012, filed February 15, 2013,
Brobson, J.
Type of Case: Subrogation – Employer’s Fumble of Lien Amount
Issue or Issues: Did the WCJ commit error in refusing to grant employer’s subrogation
demand?
The claimant, Richman, sustained an injury arising in the course of her employment on
September 24, 2005. The injury was to her left foot, and it occurred when a piece of drywall in
employer’s stockroom fell. She was paid benefits voluntarily and a significant lien developed.
Claimant ultimately settled her case with employer on February 14, 2008. She handed
over a release for disability benefits, but the agreement kept the claim open for twelve months.
With regard to subrogation rights, the lien box was marked, “yes,” and the statement was
inscribed upon the release, “employer retains Section 319 subrogation rights.”
Meanwhile, claimant had filed a third party action against Creekside Construction and
Remodeling, LLC and U.S. Electrical Construction Company. In September 2008, the federal
judge who was entertaining the suit convened a settlement conference. In apparent anticipation
of the conference, claimant sent a letter dated September 15, 2008 to counsel for the third parties.
She identified the lien amount as $347,723.16. The next day, however, employer’s counsel
indicated that the amount of the lien was actually must less: $232,843.99.
On the day of the settlement conference, counsel for the employer was present, although
employer had not actually intervened. Employer was later to maintain that the judge sought to
have employer agree to reduce its lien, “but employer refused to accept any amount below its
lien. Employer asserts that the reason it refused was because of the earlier compromise and
release [see above] that it had negotiated with claimant.”
The claimant then settled her case and signed a release. Employer thereupon realized that
the amount it had identified as its actual lien, and which claimant relied upon, “was erroneous,
and that the correct amount was $294,404.50.” Counsel immediately tried to contact claimant’s
counsel, but learned of the signing of the release that morning. The judge then dismissed the
lawsuit. He thereafter refused any attempt to have the settlement set aside.
Employer then sought subrogation. The WCJ concluded that the employer was bound by
the lien amount claimant relied upon.
51

The Board and Commonwealth Court, however, reversed. The court pointed out that
under Thompson v. WCAB (USF&G), 781 A.2d 1146 (Pa. 2001), subrogation “is automatic.”
The court further cited the precedent Growth Horizons, Inc. v. WCAB (Hall), 767 A.2d 619 (Pa.
Commw. 2001). There the court concluded “that, even when an employer incorrectly calculates
the amount of a subrogation lien, a claimant is not relieved of its obligation to pay from proceeds
of an action against a third party the full amount of the lien, unless the employer expressly agrees
to compromise the lien.” In the present case, the court rejected the proposition that employer
“knowingly agreed to compromise its subrogation lien.” The court insisted, “in the absence of
bad faith, equitable factors may not be used to support reductions in employer’s full subrogation
lien rights.”
52

Tee Off for the Kids!
Celebrate the 8 th Annual
Kids’ Chance of Pennsylvania
Golf Outing
Sunday, June 9, 2013
Hershey Country Club, West Course
1000 E. Derry Rd • Hershey, PA 17033
Registration: Noon • Golf: 1:30pm
Proceeds benefit Kids’ Chance of Pennsylvania. Each year, Kids' Chance provides financial support through
scholarship grants to children of Pennsylvania workers who have been killed or seriously injured in a work–related
accident resulting in financial need. Kids' Chance makes a significant difference in the lives of affected
Pennsylvania families by helping eligible students pursue and achieve their goals for post-secondary education.

Participation Packages
Individual Golfer & Dinner $200
Get a Hole in One… Win a Car!
Maguire’s Ford of Hershey will again be
sponsoring a hole in one prize. Put your accuracy
skills to the test!
Dinner Only $75
Foursome $800
Tee/Green Sponsorship $250
Foursome Sponsorship Package $1,000
Includes: Foursome Golf & Dinner
One (1) Tee or Green Sponsorship
Additional sponsorships opportunities are available. Please
contact the Kids’ Chance office for more information.
Registration Form
Deadline 5/28/2013
Golfers
1. Captain__________________________________
2. ________________________________________
3. ________________________________________
4. ________________________________________
Please reserve:
____Individual Golfer(s) @ $200 Each
____Foursome(s) @ $800 Each
____Tee/Green Sponsorship(s) @ $250 Each
____Foursome Sponsorship Package(s) @ $1,000 Each
____Dinner(s) @ $75 Each
____ I will not be able to attend, but please accept my cash donation of $______in support of Kids’ Chance of Pennsylvania, Inc.
____ I will not be able to attend, but would like to make a donation in support of Kids’ Chance of Pennsylvania, Inc. Please call me.
____ I will be able to attend and am interested in speaking about how my scholarship impacted my life.
Kids’ Chance of Pennsylvania is a registered, tax-exempt 501(c)(3) non-profit organization and therefore all contributions are tax deductible. You will receive a letter of
acknowledgement for tax purposes.
Thank you for your support. You may register online at www.kidschanceofpa.org and pay by credit card. Or send your check, payable to
Kids’ Chance of Pennsylvania to: Kids’ Chance of Pennsylvania, Inc. PO Box 543, Pottstown, PA 19464
Name:_______________________________________________________________________________
Address:_____________________________________________________________________________
City:______________________________________ ST___________ Zip: _________________________
Phone:______________________________ Email: __________________________________________
Kids’ Chance of Pennsylvania, Inc.
P.O. Box 543 • Pottstown, PA 19464
(P) 610.970.9143 • (F) 610.970.7520
info@kidschanceofpa.org • www.kidschanceofpa.org

WORKERS’ COMPENSATION
3
CLE CREDITS
substantive
How to Handle a Workers’ Comp Mediation
Dates & Locations
9:00 am to 12:15 pm; check-in begin at 8:30 am
Philadelphia•Thu., Aug. 1, 2013
Pittsburgh•Wed., Aug. 14, 2013
Mechanicsburg•Wed., Aug. 28, 2013
For complete addresses, see customer information
on the back page.
BOOK AND AUDIO CD AVAILABLE
Course Book 2013-7843 $49
Audio CD ACD-7843 $39
Audio CD & Book Set ACDS-7843 $79
Include $6.00 shipping & 6% Pa. sales tax on all book
& CD orders — see enrollment/order form.
TUITION (INCLUDES COURSE BOOK)
□ $249 Members — Pa., or any co. bar assn.
□ $229 Members admitted after 1/1/09
□ $269 Nonmembers
□ $99 Paralegals attending w/attorney
□ $125 Judges and judicial law clerks
□ $115 Judges and judicial law clerks
admitted after 1/1/09
Add $25 for registrations received 3 or fewer business days before the
presentation.
Gain an insider’s view from
the claims perspective
Learn the factors adjustors consider when
determining the settlement value of a case and
fi nd out how the judge can help you persuade
the adjuster. You will also have the opportunity to
discover negotiation techniques that will help you
to “move to the middle” toward a more realistic
claims settlement.
Analyze and prep your case
to capture the attention of the
judge
Discover how to capture the judge’s attention
through the use of pre-mediation memos and
disclosure forms. From the types of petitions
pending to potential exposure for your client, you
will uncover key elements in analyzing the value
of your case and receive tips for clarifying your
goals and your authority.
Use the judge and get your
client involved
Narrow down the issues that judges want to hear
by getting your client involved and discover tips
for a win/win situation includes the judge’s pet
peeves and the opportunity for the injured worker
to tell his or her story.
Course Planner
Gerald F. Strachan, Esq.
STRACHAN AND HATZELL, PHILADELPHIA
Faculty
Alfred J. Carlson, Esq.
MARTIN BANKS, PHILADELPHIA
Hon. Susan S. Cercone
WORKERS’ COMPENSATION OFFICE OF ADJUDICATION
PITTSBURGH
Martin N. Chitjian, Esq.
STRACHAN & HATZELL, PHILADELPHIA
Hon. David A. Cicola
WORKERS’ COMPENSATION OFFICE OF ADJUDICATION
JOHNSTOWN
Hon. Sandra R. Craig
WORKERS’ COMPENSATION OFFICE OF ADJUDICATION
PHILADELPHIA
Geoffrey W. Dlin, Esq.
KRASNO, KRASNO & ONWUDINJO, PHILADELPHIA
Hon. Marc Harrison
WORKERS’ COMPENSATION OFFICE OF ADJUDICATION
PHILADELPHIA
Marianne C. Plant, Esq.
CHARTIS, INC., PITTSBURGH
Glenn S. Sinko, Esq.
SINKO ZIMMERMAN, LLC, SEVEN FIELDS
et/mb

5EASY WAYS
YOU CAN
REGISTER
CALL our customer service line toll free at (800) 247-4PBI or (717) 796-0804 Mon. thru Fri., 9 am to 5 pm. Please have
product & credit card number available.
MAIL the registration form to: PBI, 5080 Ritter Rd., Mechanicsburg, PA 17055-6903
FAX your AMEX, VISA, Mastercard or Discover registration or order by dialing (717) 796-2348
REGISTER AT THE DOOR. Please call ahead to confi rm date, time, location and space availability.
REGISTER ONLINE. For more information, to register or to order online: www.pbi.org or e-mail: info@pbi.org
Registration Policy: We encourage early registration. Save
$25 on registrations received more than 3 business days
before the presentation date. Early registration helps us
ensure there will be suffi cient course materials, seating
and refreshment. Walk-in registrations will be accepted on
a space-available basis. Pre-registered customers receive
priority on the distribution of course materials. Those
intending to register at the door should check www.pbi.org
or call (800) 247-4724 to ensure that the course has not sold
out and that there have been no schedule changes.
Ticket Policy: Time permitting, you will receive a registration
ticket that will expedite your check in at the door. A
registration confi rmation ticket is not required for admittance.
Cancellation Policy: In order to receive a refund for
cancellation (less a $25 administrative fee), you must notify
PBI by mail or FAX no later than 2 business days prior to the
course presentation date for the appropriate site. Otherwise,
you will receive the course materials in full consideration of
tuition paid.
Weather Related Cancellations: Check www.pbi.org or call
(800)-932-4637 ext. 2205.
Registration Transfers: Requests for transfers will be
honored if they are received prior to the date of the course.
Services for Persons with Disabilities: If special
arrangements are required, please contact Customer Service
at (800) 932-4637 at least ten days prior to the
presentation date.
Speaker Substitutions: PBI reserves the right to substitute
speakers at all programs.
PBI Scholarships: PBI offers substantially reduced tuition for
most PBI seminars to allow attorneys experiencing fi nancial
hardship to fulfi ll their mandatory education requirement. For
details and an application, contact Scholarship Administrator
at scholarships@pbi.org or (800) 932-4637 Ext. 2284 at
least 30 days before the program. (Please note scholarships
are not available for Online CLE.)
Course Material Return Policy: A ten-day return privilege
applies to all book orders, less a handling & restocking fee
of $6.00. The return privilege does not apply to DVDs, CDs,
or tapes; however, we will be happy to replace any defective
disks or tapes at no cost to the customer.
Legal Services/Public Interest Lawyers: PBI waives tuition
fees for the fi rst 12 hours of CLE taken in each calendar
year for attorneys employed full-time by many nonprofi t legal
services and public interest organizations providing legal
services to individuals at no or de minimus fees. These
attorneys may enroll for additional CLE courses at 50 percent
of the highest member fee.
Name: Atty #: Firm Name:
Address: State: Zip:
Phone: ( ) - Fax: ( ) - Email Address:
COURSE TITLE: How to Handle a Workers’ Comp Mediation
COURSE SITE & DATE:
As a member of both the PBA and the
county bar association, I have enclosed my discount coupon in the
amount of $
for my: 1 st 2 nd 3 rd 4 th 5 th PBI seminar.
Charge my: Expiration Date: Card Number:
A check made payable to PBI in the amount of $
Please photocopy registration form for multiple registrants.
BOOK AND AUDIO CD AVAILABLE
Course Book 2013-7843 $49
plus $6.00 S&H & $3.30 tax ($58.30)
Audio CD ACD-7843 $39
plus $6.00 S&H & $2.70 tax ($47.70)
Audio CD & Book Set ACDS-7843 $79
plus $6.00 S&H & $5.10 tax ($90.10)
If you are ordering course materials separately, please allow two weeks
after the fi rst program for the shipment of books and 4 to 6 weeks for
shipment of the CDs and book/CD sets.
is enclosed.
TUITION (INCLUDES COURSE BOOK)
$249 Members — Pa., or any co. bar assn.
$229 Members admitted after 1/1/09
$269 Nonmembers
$99 Paralegals attending w/attorney
$125 Judges and judicial law clerks
$115 Judges and judicial law clerks
admitted after 1/1/09
3/8/2013
7843E
Add $25 for registrations received 3 or fewer business days before the
presentation.
3 3 CLE credits
substantive
How to Handle a
Workers’ Comp Mediation
Pittsburgh • Wed., Aug. 14, 2013
Philadelphia • Thu., Aug. 1, 2013
Mechanicsburg • Wed., Aug. 28, 2013
pbi.org • call 800-932-4637 • fax 717-796-2348

WORKERS’ COMPENSATION
4
CLE CREDITS
substantive
Tough Problems in
Workers’ Compensation 2013
Dates & Locations
8:30 am to 12:45 pm; check-in begins at 8:00 am
Philadelphia • Tues., April 9, 2013
Pittsburgh • Wed., April 3, 2013
Mechanicsburg • Tues., April 16, 2013
Live Webcast • Tues., April 16, 2013
Go to webcasts.pbi.org to register.
Simulcast • Tues., April 16, 2013
Allentown
Beaver
Easton
Greensburg
Hollidaysburg
Indiana
Johnstown
Lebanon
Mansfield
Meadville
Mill Hall
New Castle
Reading
Stroudsburg
Uniontown
Warren
West Chester
Wilkes-Barre
York
For complete addresses, see customer information
on the back page.
BOOK AND AUDIO CD AVAILABLE
Course Book 2013-7595 $69
Audio CD ACD-7595 $39
Audio CD & Book Set ACDS-7595 $99
Include $6.00 shipping & 6% Pa. sales tax on all book
& CD orders — see enrollment/order form.
TUITION (INCLUDES COURSE BOOK)
□ $249 Members — Pa., or any co. bar assn.
□ $229 Members admitted after 1/1/09
□ $269 Nonmembers
□ $99 Paralegals attending w/attorney
□ $125 Judges and judicial law clerks (including WCJs,
members & employees of the WCAB, the WC
Bureau & Dept. of Labor & Industry)
□ $115 Judges and judicial law clerks (including WCJs,
members & employees of the WCAB, the WC
Bureau & Dept. of Labor & Industry) admitted
after 1/1/09
Go to webcasts.pbi.org for webcast tuition and to register. Online
tuition differs from live course tuition. Sorry, we cannot accept
checks for online CLE.
Add $25 for registrations received 3 or fewer business days before the
presentation.
Master the in’s & out’s of
compensation for medical
treatment
• Help your insurance and employer clients avoid
substantial penalties for improperly contesting
medical treatment
• Assure that your injured worker clients continue
to get the treatment they need, when they need it
• Be prepared to teach your medical practitioners
how and when to complete and document
medical report forms.
• Learn to coach your insurance carrier clients
in the best way to challenge treatment for a
condition not related to the work injury.
Get a “buried treasure map”
Keys to establishing liability and coverage for
injuries in today’s mobile work force. Review the
most effective ways to handle dual jurisdiction and
employees who live far away:
• How claimants can get the best of two states’
benefi ts
• How employers and insurers can minimize their
exposure and costs
• How to coordinate benefi ts from two states
• How to establish jurisdiction in the state most
favorable to your client
• How to be sure you have settled the entire claim
• How to read the “Information Page” of a workers’
comp policy
Catch up on the latest cases
Insights and tips from both perspectives in a rapidfi
re review of all that’s happened since the Fall
Section Meeting.
Get the judges’ perspective
How-to’s, do’s and don’ts, tips and insights.
Fee review
What is it, and why should I care?
Course Planners
Nariman P. Dastur, Esq.
DEANGELIS DASTUR & ASSOCIATES, P.C., PITTSBURGH
David G. Greene, Esq.
WEBER GALLAGHER SIMPSON STAPLETON FIRES
& NEWBY, LLP, PHILADELPHIA
Judicial Faculty
WORKERS’ COMPENSATION OFFICE OF ADJUDICATION
Hon. Pamela L. Briston
WESTERN DISTRICT, PITTSBURGH
Hon. Martin Burman
EASTERN DISTRICT, MALVERN
Hon. Sandra R. Craig
SOUTHEASTERN DISTRICT, PHILADELPHIA
Hon. Elizabeth A. Crum
DIRECTOR OF ADJUDICATION
Hon. Michael R. Hetrick
EASTERN DISTRICT, LANCASTER
Hon. David B. Torrey
WESTERN DISTRICT, PITTSBURGH
Hon. Robert E. Vonada, II
WESTERN DISTRICT, ALTOONA
Faculty
Ronald P. Bartash, Esq.
Queena Baumbach, Esq.
Katherine E. Bavoso, Esq.
Rhett P. Cherkin, Esq.
Carol L. Cingranelli, Esq.
James M. Clancy, Esq.
William M. Conwell, Esq.
John C. Devine, Esq.
Geoffrey W. Dlin, Esq.
Patrick M. Donan, Esq.
Michael A. Farrell, Esq.
Drew P. Gannon, Esq.
Charles J. Hilton, Esq.
Barbara E. Holmes, Esq.
C. Robert Keenan, III, Esq.
Maureen Kowalski, Esq.
Jerry M. Lehocky, Esq.
Gary D. Monaghan, Esq.
Harsinie W. Panditaratne, Esq.
Joseph S. Weimer, Esq.
Matthew L. Wilson, Esq.
Barbara L. Young, Esq.
Kimberly A. Zabroski, Esq.
So that everyone can attend, Director of Adjudication Crum is asking
judges not to schedule hearings on the days of this program.

5EASY WAYS
YOU CAN
REGISTER
CALL our customer service line toll free at (800) 247-4PBI or (717) 796-0804 Mon. thru Fri., 9 am to 5 pm. Please have
product & credit card number available.
MAIL the registration form to: PBI, 5080 Ritter Rd., Mechanicsburg, PA 17055-6903
FAX your AMEX, VISA, Mastercard or Discover registration or order by dialing (717) 796-2348
REGISTER AT THE DOOR. Please call ahead to confi rm date, time, location and space availability.
REGISTER ONLINE. For more information, to register or to order online: www.pbi.org or e-mail: info@pbi.org
Registration Policy: We encourage early registration. Save
$25 on registrations received more than 3 business days
before the presentation date. Early registration helps us
ensure there will be suffi cient course materials, seating
and refreshment. Walk-in registrations will be accepted on
a space-available basis. Pre-registered customers receive
priority on the distribution of course materials. Those
intending to register at the door should check www.pbi.org
or call (800) 247-4724 to ensure that the course has not sold
out and that there have been no schedule changes.
Ticket Policy: Time permitting, you will receive a registration
ticket that will expedite your check in at the door. A
registration confi rmation ticket is not required for admittance.
Cancellation Policy: In order to receive a refund for
cancellation (less a $25 administrative fee), you must notify
PBI by mail or FAX no later than 2 business days prior to the
course presentation date for the appropriate site. Otherwise,
you will receive the course materials in full consideration of
tuition paid.
Weather Related Cancellations: Check www.pbi.org or call
(800)-932-4637 ext. 2205.
Registration Transfers: Requests for transfers will be
honored if they are received prior to the date of the course.
Services for Persons with Disabilities: If special
arrangements are required, please contact Customer Service
at (800) 932-4637 at least ten days prior to the
presentation date.
Speaker Substitutions: PBI reserves the right to substitute
speakers at all programs.
PBI Scholarships: PBI offers substantially reduced tuition for
most PBI seminars to allow attorneys experiencing fi nancial
hardship to fulfi ll their mandatory education requirement. For
details and an application, contact Scholarship Administrator
at scholarships@pbi.org or (800) 932-4637 Ext. 2284 at
least 30 days before the program. (Please note scholarships
are not available for Online CLE.)
Course Material Return Policy: A ten-day return privilege
applies to all book orders, less a handling & restocking fee
of $6.00. The return privilege does not apply to DVDs, CDs,
or tapes; however, we will be happy to replace any defective
disks or tapes at no cost to the customer.
Legal Services/Public Interest Lawyers: PBI waives tuition
fees for the fi rst 12 hours of CLE taken in each calendar
year for attorneys employed full-time by many nonprofi t legal
services and public interest organizations providing legal
services to individuals at no or de minimus fees. These
attorneys may enroll for additional CLE courses at 50 percent
of the highest member fee.
Name: Atty #: Firm Name:
Address: State: Zip:
Phone: ( ) - Fax: ( ) - Email Address:
COURSE TITLE: Tough Problems in Workers’ Compensation 2013
COURSE SITE & DATE:
As a member of both the PBA and the
county bar association, I have enclosed my discount coupon in the
amount of $
for my: 1 st 2 nd 3 rd 4 th 5 th PBI seminar.
Charge my: Expiration Date: Card Number:
A check made payable to PBI in the amount of $
Please photocopy registration form for multiple registrants.
BOOK AND AUDIO CD AVAILABLE
Course Book 2013-7595 $69
plus $6.00 S&H & $4.50 tax ($79.50)
Audio CD ACD-7595 $39
plus $6.00 S&H & $2.70 tax ($47.70)
Audio CD & Book Set ACDS-7595 $99
plus $6.00 S&H & $6.30 tax ($111.30)
If you are ordering course materials separately, please allow two weeks
after the fi rst program for the shipment of books and 4 to 6 weeks for
shipment of the CDs and book/CD sets.
is enclosed.
1/3/2013
7595E
TUITION (INCLUDES COURSE BOOK AND LUNCH)
$249 Members — Pa., or any co. bar assn.
$229 Members admitted after 1/1/09
$269 Nonmembers
$99 Paralegals attending w/attorney
$125 Judges and judicial law clerks
$115 Judges and judicial law clerks
admitted after 1/1/09
Go to webcasts.pbi.org for webcast tuition and to register. Online
tuition differs from live course tuition. Sorry, we cannot accept
checks for online CLE.
Add $25 for registrations received 3 or fewer business days before the
presentation.
4 4 CLE credits
substantive
Tough Problems in Workers’
Compensation 2013
Pittsburgh • Wed., Apr. 3, 2013
Philadelphia • Tues., Apr. 9, 2013
Mechanicsburg • Tue., Apr. 16, 2013
Live Webcast • Tues., Apr. 16, 2013
Go to webcasts.pbi.org to register.
Simulcast • Tues. Apr. 16, 2013
(Simulcast sites listed inside)
pbi.org • call 800-932-4637 • fax 717-796-2348