Workers' Compensation Law Section Newsletter - Pennsylvania Bar ...

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
Lawrence R. Chaban
Section Chair
C. Robert Keenan III
Chair-Elect
Brian R. Steiner
Vice-Chair
Matthew L. Wilson
Secretary
Peter A. Pentz
Treasurer
Gary Hamilton Hunter
Immediate Past Chair
R. Burke McLemore
Section Delegate
Council Members
Daniel K. Bricmont
Allegheny County
Hon. Martin Burman
Chester County
Michael J. Diamond
Philadelphia County
Dean V. Dominick
York County
Hon. Harold V. Fergus, Jr.
Washington County
Hon. Ada Jane Guyton
Westmoreland County
Edward H. Jordan, Jr.
Dauphin
Marla A. Joseph
Montgomery
Robert A. Krebs
Allegheny
Joanne C. Ludwikowski
Lycoming
Michael Paul Routch
Blair County
Hon. Todd 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 2012 No. 110
Great Spring CLE Line-up
March brings us PBI’s practical intro course
Handling the Workers’ Comp Case, as well as a
new seminar focusing on Workers’ Comp Issues
for the Large Employer.
April sees a new twist on Sam Hodge’s popular
anatomy courses when PBI pairs him with a
renowned litigator (our own Vince Quatrini in
Pittsburgh, Lisa Benzie-Woodburn in
Mechanicsburg, and Harris Bock in Philadelphia) for
Anatomy, Injuries and Surgery.
May 16 in Philadelphia offers the chance 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 Jefferson Medical College Lab in the
afternoon.
Also in May, the latest edition of the “bible” is
released for Workers’ Compensation Practice &
Procedure 2012, PBI’s biannual award-winning
flagship course, manual, and CD-ROM. Dates below.
Full information and registration forms for each
course are on the enclosed flyers and by following
the blue links to PBI’s website above.
Play Golf & Help the Kids
“Scramble” in Butler on Fri., May 18 or join
John McTiernan in Hershey on Sun., June 10-and
help Kids Chance. For more info and
to sign up go to http://
www.kidschanceofpa.org/events/
upcomingevents.php.
Certification!
The Supreme Court has approved the Section as
the first state bar-related organization authorized to
certify lawyers’ expertise in an area of practice. Those
who meet the qualifications and pass the test will be
able to assure clients--and potential clients--that they
are “certified as a specialist... as authorized by the
Pennsylvania Supreme Court.” This is the result of a
long, thoughtful process led by John Bagnato. For
more info, see the press release and the article in this
newsletter--and come to the Fall Section Meeting.
Fall Section Meeting
Planning Begins
This year’s Fall Section Meeting, our own
“bench bar conference,” is slated for Thurs.-Fri. Sept.
13-14 in Hershey.
Program committee chair Dan Bricmont, section
chair Larry Chabin, and chair elect Rob Keenan are
working with PBI and the advisory panel to craft this
year’s Section meeting.
MSA’s, the Section’s new court-approved
certification program, foot and ankle injuries and
treatments, the interplay of Act 534 and the Heart &
Lung Act, withdrawal from the workforce, and an
ethics session are all on the agenda--and of course
the ever-popular round-up of recent cases.
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.
Workers’ Comp Practice & Procedure 2012 (the “bible” course):
Pittsburgh Fri. May 4 morning | Camp Hill Mon. May 14 afternoon
Philadelphia choice of Thurs., May 17 afternoon or Fri. May 18 morning
Statewide simulcast and live webcast Fri., May 18 morning
More details/registration on PBI website & on the enclosed flyer.
Save the Dates for the Fall Section Meeting!
Sept. 13-14, 2012 | Sept 12-13, 2013 | Sept 11-12, 2014
October 7-8, 2015 | October 5-6, 2016 | October 4-5, 2017

~ Leading Developments, Court Cases ~
Workers’ Compensation Practice of Law Certification Approved;
Detailed Criteria Required of Applicants ………………………………………………… 09
Esteemed Judge-Mediator Mike Snyder Retires and is Feted by Admiring Bar …………………. 05
Labor & Industry Working on New Computer System for WC Program …………………………08
ABA WC Sections CLE: Westin Riverwalk, San Antonio, TX, March 7-10, 2012 ……..06
BWC Annual Conference: Hershey, PA, June 11-12, 2012 …………………………….. 06
Exclusive SEAK WC Seminar: The Resort at Hyannis, MA: July 17-19, 2012 …………………. 06
L&I WCJ Rules Committee Reconvenes (With Update) …………………………………………05
Attorney McTiernan Receives Irv Stander Award ……………………………………………….. 05
C&R – Unemployment Compensation – Retirement – Voluntary Quit – Disqualification – Lee ... 11
Supersedeas Fund – Petition to Set Aside NCP – Home Insurance (1986) Overruled – Comcast . 37
Supersedeas Fund Reimbursement – Heart & Lung Benefits – Excalibur Ins……………………. 43
Voluntary Withdrawal – Chronic Orthopedic Conditions – Application for SSD – Burks ………..48
Limitation of Actions – 500-week Period – Full Duty v. Light Duty – Palaschak ………………..13
Causation – Import of Utilization Review Determination – Death Case –
Death via Overdose of Drugs Prescribed for Work Injury – J.D. Landscaping …………. .40
Act 57 –SSR Setoff – Section 204(a) of the Act – Constitutionality – Caputo …………………... 52
Act 57 – SSR Offset – Constitutionality – Source of SSR Contributions – White ……………….. 55
~ Cases, in General ~
Reinstatement of Benefits – Fault – Worsening of Condition – Bufford Case – Allen …………… 33
Medical Evidence – Legal Competence of Medical Evidence –
Heart Attack Case – Review of Entire Opinion – Bemis ………………………………….34
Termination of Benefits – Eye Injury – Baxter Case – City of Phila./Whaley-Campbell ………… 35
Act 44 – Pension Offset – Defined Benefit Pension – Interpretation of Harvey Case – Davis …… 36
Proceedings to Secure Comp’n – Appeal and Order – Phrase, “With Prejudice” – Boyertown ….. 39
Proceedings to Secure Comp’n – Reinstatement Petition –
Collateral Estoppel – Application of Weney Case – Namani ……………………………. 39
Average Weekly Wage – Inclusions or Exclusions –
Unemployment Compensation Benefits – “SUB” Payments – Bucceri …………………..42
Proceedings to Secure Compensation – Collateral Estoppel –
Specific Loss – Worsening of Condition – Argyle ……………………………………….. 44
Reinstatement Petition – Burden of Proof – Import of Surveillance Evidence – Soja ……………. 45
Insurance – Declaratory Judgments Act – Action Against SWIF – Jurisdiction –
Commonwealth Court Original Jurisdiction or Board of Claims? – Hanover Insurance … 46
Reinstatement Petition – Claimant’s Stopping of Work Based Upon Reliance
on Errant Doctor Restrictions – Interpretation of Bufford Case – Verity …………………. 50
Limitation of Action – 500 Weeks – Post-Expiration of Limitation
Agreements and Payments – Cozzone …………………………………………………… 53
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Act 44 – Fee Review – Acute Care – Fall Injury – Roman Cath. Priest – Diocese of Allentown … 56
Voluntary Withdrawal – No Application for Pension because of Misconduct – PGH/Marinack .. 33
Box 4 Denial – Legitimate Device When Claimant Returns to Work – Zuchelli ………………… 33
~ Notes ~
Kids’ Chance Charity …………………………………………………………………............... 07
Kids Chance Golf Outings: Two Locations! …………………………………………………... 07
Unpublished Opinions Committee ………………………………………………………………08
A Briefing on Exclusive Remedy Cases, 2011
Dual Capacity, Dual Persona Doctrines – Ritz Cracker Machine – Soto ……………… 15
Fraudulent Concealment – Beryllium Exposure – Dental Lab – Rakoczy ……………... 16
NIED, IIED Actions – Firing for Pregnancy – Galezniak ………………………………17
NIED, IIED Actions – Churlish, Terrorizing School Bd. Members – Forrest ………….17
Statutory Employer – Hospital Addition – Premises Liability – Dalessandro ………….18
~ Compromise Settlement Watch ~
C&R – Unemployment Compensation – Retirement – Voluntary Quit – Disqualification – Lee …11
PA Federal Court Case: Inclusions of approved C&R Agreement
collaterally estop claimant from alleging further injuries in tort suit – Holts ………….. 19
PA Federal Court Case: Last-minute general release held not sufficient
to bar claimant’s post-C&R Title VII and ADA actions – Miller ……………………... 20
Mandatory Mediation – Coming and Going – (Maine case) – Feiereisen .................................. 22
~ Book Note ~ 22
MAKING CAPITALISM SAFE:
WORK SAFETY & HEALTH REGULATIONS IN AMERICA, 1880-1940
by Donald W. Rogers (University of Illinois Press 2009).
~ Recent Articles ~ 23
Claire Been, Bypassing Redundancy: Resolving the Jurisdictional Dilemma under the Defense
Base Act, 83 WASHINGTON LAW REVIEW 219 (2008). (p.23)
Nathaniel R. Boulton, Establishing Causation in Iowa Workers’ Compensation Law: An Analysis
of Common Disputes over the Compensability of Certain Injuries, 59 DRAKE LAW REVIEW 463
(2011). (p.23)
Laura McLain, Managing Dental Claims in Workers Comp, RISK MANAGEMENT MAGAZINE
(undated, 2011). (p.25)
Perry D. Merlo, Employers’ Right to Reimbursement in Workers’ Compensation Supersedeas
Cases, 82 PENNSYLVANIA BAR ASSOCIATION QUARTERLY 178 (October 2011). (p.26)
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William H. Owen, Racketeering and Workers’ Compensation: Why RICO Trumps the Exclusive
Remedy, 46 TORT TRIAL & INSURANCE PRACTICE LAW JOURNAL 783 (2011). (p.29)
David B. Torrey, Reflections of a Jurist on the Durability of Workers’ Compensation Law
Against its Adversaries, in WORKERS’ COMPENSATION CENTENNIAL COMMEMORATIVE VOLUME:
REFLECTIONS ON THE HISTORY AND DEVELOPMENT OF WORKERS' COMPENSATION IN THE UNITED
STATES (IAIABC 2011). (p.29)
David B. Torrey, The Intersection of Workplace Safety and Workers’ Compensation, 39 LABOR
AND EMPLOYMENT LAW 7 (American Bar Association, Summer 2011). (p.30)
David B. Torrey, Master or Chancellor? The Workers’ Compensation Judge and Adjudicatory
Power, 30 JOURNAL OF THE NATIONAL ASSOCIATION OF ADMINISTRATIVE LAW JUDGES ___
(forthcoming 2012). (p. 30)
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.
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.
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HIGHLY ESTEEMED JUDGE MEDIATOR
HON. A. MICHAEL SNYDER RETIRES
WCJ A. Michael Snyder retired recently from the Philadelphia Northeast
office after fifteen years of service to the Commonwealth. Judge Snyder has
moved onward and upward to join the Dispute Resolution Institute of
Philadelphia. His success and transition was commemorated on the evening of
Monday, January 30, 2012, when 115 WCJ’s and attorneys attended a reception in his honor.
A graduate of Muhlenberg College and Temple University School of Law, WCJ Snyder
practiced civil litigation for many years prior to becoming a WCJ. He was the consummate
judicial mediator, a family tradition dating back to his grandfather who served in dispute
resolution in Russia. He was respectful, patient and helpful to the litigators and the parties. As a
masterful mediator, he would routinely undertake over 200 voluntary mediations a year with a
90% success rate. Judge Snyder will be missed! (For more on the Dispute Resolution Institute,
and more Judge Snyder biography, see http://www.adrdri.com/pg58.cfm).
BAR LEADER JOHN McTIERNAN WINS
IRVIN STANDER AWARD
As reported in the Pittsburgh Post-Gazette, Caroselli Beachler Attorney John W.
McTiernan was awarded the Irvin Stander Award for Professionalism in Workers'
Compensation for 2011. The Stander Award was established in 2000 to recognize a
Pennsylvania attorney who has excelled in the practice of law, whose dedication to his or her
clients, professionalism and regard for colleagues serves as an example to others, and who
embodies the principle of “striving mightily while treating colleagues and judges as friends.”
Pittsburgh Post-Gazette (Nov. 28, 2011), available at http://m.post-gazette.com/business/legalnews/on-the-docket-pittsburgh-112811-1192593?p=0.
See also PBA NEWS, p. 3 (Dec. 5, 2011).
DEPARTMENT OF LABOR & INDUSTRY
WCJ RULES COMMITTEE
RECONVENES, WITH ATTORNEY McTIERNAN PRESIDING AS NEW CHAIR
The L&I WCJ Rules Committee reconvened recently 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.
The Committee held a crucial meeting on Friday, February 3,
2012. The proposed changes were subject to a final vote. Among the
proposed changes (still subject to review by the Secretary of Labor &
Industry, the public, IRRC, and the legislature) are a set of rules to
streamline the procedure when the Uninsured Employers Guaranty
Fund (UEGF) is a party. The UEGF has encountered difficulty in
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assessing its rights and liabilities in some regions because of inflexible WCJ trial scheduling and
discovery protocols. The proposed new rules would establish a framework for consistent and
workable handling of such cases.
Not all members thought that special rules were needed or appropriate. Still, Chairman
McTiernan for one was supportive of the idea. He pointed out at the most recent meeting that
the “dynamics” of a claim involving the UEGF are markedly different from those of a
conventional case. Given the “unique nature” of these cases, he posited, the system may have to
“sacrifice one thing” (unfettered WCJ discretion as to trial order) in order to “gain another”
(workable procedures for the UEGF).
ABA WORKERS’ COMPENSATION SECTIONS
ANNOUNCE MIDWINTER SEMINAR & CONFERENCE
Westin Riverwalk, San Antonio, TX, March 8-10, 2012
The ABA WC Sections have scheduled their
exciting Midwinter meeting! The event will be held at
the Westin Riverwalk in San Antonio. The agenda
includes presentations on undocumented workers,
veterans’ benefits, social networking, the personal
comfort doctrine (featuring the dynamic speaker Judge Todd Seelig of
Philadelphia), the recent Illinois Act reforms, and a review of teaching
workers’ compensation in the nation’s law schools. For more information,
see http://apps.americanbar.org/dch/committee.cfm?com=LL122000.
PENNSYLVANIA BWC CONVENES ANNUAL SEMINAR
Hershey, PA, June 11-12, 2012
The can’t-miss Bureau of Workers’ Compensation Conference will be
held this year in Hershey, June 11-12, 2012. For more information, and for
registration information, see
http://www.portal.state.pa.us/portal/server.pt/community/annual_conference/
12991.
SEAK, INC.’s 32 st ANNUAL NATIONAL
WORKERS’ COMPENSATION & OCCUPATIONAL MEDICINE CONFERENCE
Hyannis, MA, July 17-19, 2012
The SEAK workers’ compensation conference will again be held
at Hyannis, Massachusetts this year. According to the organizers, “This
conference is currently the largest and longest-running national workers’
compensation and occupational medicine conference of its kind in the
United States.”
Pennsylvania Bar Association member LuAnn Haley, now an ALJ in the Tucson,
Arizona, office of the state’s Industrial Commission, is one of the speakers enjoying the glamour
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and applause of this prestigious event! Judge Haley’s presentation is “Cost Savings in the
Litigated Case: What Works.” Judge Haley will present an overview of what drives costs in the
litigation of claims. She will review medical causation issues, cost considerations when
developing medical evidence such as IME’s, diagnostic tests, and surveillance – and whether it is
worth the expense. She will also discuss the unique problems associated with attempts to reduce
medication costs and the payment of non-compensable expenses during litigation. She will offer
practical suggestions for litigated cases involving issues of return to work, mediation, collateral
benefits, and final settlements. For more information, and to view the brochure, see
http://www.seak.com//App_Themes/seak/pdf/July2012.pdf.
INFORMATION ON KIDS’ CHANCE
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 who have been disabled as a result of
a work-related 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: (484) 945-2104. See also www.kidschanceofpa.org.
KIDS’ CHANCE GOLF OUTINGS ANNOUNCED
Western PA: Friday, May 18, 2012
Central PA: Sunday, June 10, 2012
Kids’ Chance will hold its 13 th Annual Benefit Golf Scramble on
Friday, May 18, 2012. The venue is Lake Arthur Country Club, Butler, PA.
Reservations should be received no later than May 4, 2012. The shotgun
start is at 9:00 a.m. For more information, call Bill Onyshko, Chairman of the
Golf Committee, at 412-766-3832, or e-mail him at PIRC@comcast.net. See
also http://www.kidschanceofpa.org/events/upcomingevents.php.
The organization will also have a golf outing in conjunction with the Bureau Conference.
That annual event will be on Sunday, June 10, 2012, Hershey Country Club, West Course, 1000
E. Derry Rd, Hershey, PA 17033. A dinner will follow. This event, too, is advertised on the
Kids Chance website. See also http://www.kidschanceofpa.org/events/upcomingevents.php.
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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 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 provided 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 a 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.
LABOR & INDUSTRY ANNOUNCES
FURTHER AUTOMATION OF WORKERS’ COMPENSATION SYSTEMS
In October 2011, members of the workers’ compensation
community were advised by the Department that it is developing a new
computer system to replace the “aging” technology that is currently
being used. According to the Department’s memo, the “Workers’
Compensation Automation and Integration System, or WCAIS, will
integrate and streamline business processes for the Bureau of Workers’
Compensation, Office of Adjudication and the Workers’ Compensation Appeal Board, while
respecting the integrity of each separate business area. The initial phase will be introduced in the
fall of 2012, and the final phase will be completed in the fall of 2013.” To be included on a
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mailing list to receive information about the project, send your name and email address to RA-
LI-PA-WCAIS-UP@pa.gov.
WORKERS’ COMPENSATION SECTION RECEIVES
APPROVAL FROM SUPREME COURT TO CERTIFY
SPECIALISTS IN THE PRACTICE OF WORKERS’ COMPENSATION LAW
PBA issued the following Press Release (excerpted here) on January 19, 2012. �
The Pennsylvania Supreme Court has approved a recommendation of
the Pennsylvania Bar Association (PBA) Review and Certifying Board to
grant accreditation to the PBA Workers’ Compensation Law Section as a
certifying organization in the area of workers’ compensation law.
With last week’s Supreme Court order, the PBA Workers’
Compensation Law Section became the first bar association entity in Pennsylvania to receive
approval as a certifying organization. “Certification of lawyers in workers’ compensation law
will give consumers valuable guidance, and it will afford legal practitioners the opportunity to
showcase their knowledge and expertise in the area of workers’ compensation law,” said
Matthew J. Creme Jr., PBA president.
A twelve-member Certification Committee of the PBA Workers’ Compensation Law
Section will be responsible for the certification process, said John J. Bagnato, Esq. of Johnstown,
chair of the Certification Committee. A former PBA Workers’ Compensation Law Section chair
and Pennsylvania Bar Institute president and current PBA Zone Eight Governor, Bagnato has
worked on certification issues for the PBA for almost 20 years. Bagnato said the committee is
working towards having certification applications available by late fall. A lawyer successfully
completing the process will be certified for five years, after which time the lawyer could apply
for recertification. Bagnato said the committee anticipates setting an application fee of up to
$1,000 depending upon costs.
Applicants will be required to take a written examination composed of essay questions
and multiple-choice questions. The examination will be given annually or more frequently if
circumstances require, and examination questions will be revised annually to incorporate new
developments and eliminate repetitive questions.
According to Bagnato, an applicant also must establish by documentation that he or she is
admitted to practice in Pennsylvania, is actively engaged in the practice of law for a minimum of
five years, and devotes a minimum of 50 percent of his/her practice to the specialty field of
worker’s compensation. The applicant also must submit a variety of documents showing active
practice in the workers’ compensation law field, and participation in Mandatory Continuing
Legal Education in workers’ compensation law.
� See also Jason Cato, “Workers’ comp lawyers get court’s OK to certify,” Pittsburgh Tribune-Review (Jan. 20,
2012), available at http://www.pittsburghlive.com/x/pittsburghtrib/business/s_777522.html; PBA News, February 6,
2012, at 1.
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Certified applicants will be permitted to use the following language when communicating
their certifications to the public: “Certified as a specialist in the practice of workers’
compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation
Law as authorized by the Pennsylvania Supreme Court.” Bagnato said the Committee also will
have the authority to revoke certification under certain circumstances, and the Committee created
an appeal process for such cases.
“Our Workers’ Compensation Law Section’s certification process now stands as a model
for others,” explained Bagnato. “I anticipate that we will be called upon to help interested PBA
committees and sections that are thinking of pursuing certification in other areas of the law.”
Editor’s Note: As for “applicant criteria,” the Section has established the following protocol:
Applicants seeking certification in the field of workers’ compensation must
establish that he or she:
(a) Has been admitted to practice in the Commonwealth of Pennsylvania and is
actively engaged in the practice of law for a minimum of five (5) years;
(b) Devotes a minimum of fifty percent (50%) of his/her practice in the specialty
field of workers’ compensation;
(c) Has directly participated over the past five (5) years in a minimum of seven
(7) of the following categories of workers’ compensation litigation:
(1) Claim Petitions;
(2) Fatal Claim Petitions;
(3) Specific loss Petitions;
(4) Utilization Review;
(5) Occupational Disease claims under § 108 of the Workers’
Compensation Act;
(6) Termination Petitions;
(7) Suspension Petitions;
(8) Modification Petitions;
(9) Compromise and Release proceedings;
(10) Appeals before the Workers’ Compensation Appeal Board;
(11) Appeals before the Commonwealth Court of Pennsylvania.
(d) Has directly participated in both direct and cross-examination of at least
twenty-five (25) medical, vocational or other expert witness depositions;
(e) The applicant shall submit three (3) samples of any of the following
documents which they personally authored:
(1) Proposed Findings of Fact, Conclusions of Law and Brief submitted to
a Workers’ Compensation Judge;
(2) Briefs filed before the Workers’ Compensation Appeal Board;
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(3) Petition for Supersedeas and/or Answer to Supersedeas before the
Workers’ Compensation Appeal Board and/or Commonwealth
Court; and
(4) Briefs filed with the Commonwealth Court.
(f) The applicant shall submit a detailed description of ten (10) cases involving
the above matters including the caption and Bureau Claim Number of cases,
Appeal Number before the Workers’ Compensation Appeal Board and docket
number before the Commonwealth Court and shall further describe the nature of
the action or proceeding, names and addresses of counsel, name of the Workers’
Compensation Judge and any other information the applicant may deem relevant.
(g) Continuing legal education. The applicant shall submit detailed
documentation with regard to Continuing Legal Education. At least seventy-five
percent (75%) of the Mandatory Continuing Legal Education (MCLE) hours over
the past five (5) years and during the period of certification must be in the field of
workers’ compensation including, but not limited to, medical, trial advocacy, etc.
(h) Writing. The applicant shall submit a list, if any, of writings published in
recognized publications in the field of workers’ compensation.
PBA WC Law Section, Application for Accreditation.
CLAIMANT WHO RESIGNED AS PART OF C&R DISQUALIFIED
FROM RECEIPT OF UNEMPLOYMENT COMPENSATION BENEFITS
Lee v. Unemployment Comp’n Bd. Of Review, ___ A.2d ___ (Pa. Commw. 2011)
[Pa. Commw. No. 2085 C.D. 2010, filed Dec. 21, 2011, McCullough, J.].
Two well-known reasons exist for a worker to be disqualified from
unemployment compensation (UC) benefits. These are willful misconduct and a
voluntary quit “without necessitous and compelling cause.” In two unreported
cases, one from 1996 and other from 2011, the Commonwealth Court held that a
claimant quits voluntarily without good cause, and hence has no UC claim, when he or she
resigns in order to facilitate a compromise settlement of a workers’ compensation case. In yet a
third case, on this occasion a reported precedent, the court has now ratified its prior view.
In that case, the claimant, Lee, was employed as a classroom assistant for her employer, a
school district. She hurt her low back in a work-related injury, in September 2005. She was
paid some level of benefits voluntarily (inferred). In January 2009, she was release for light
duty, and she began working full-time for the employer. Not long after, she agreed to a C&R.
“In consideration for the settlement agreement,” the opinion states, claimant also agreed to
execute a “separate resignation/release and resign her position …, effective December 10, 2009
….” The general release also stated that she was waiving, among other rights, any claims under
the Pennsylvania Unemployment Act.
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Of note is that the school district foreswore any knowledge of the resignation. Its witness
was to testify that this was demanded by its insurance carrier, and that claimant’s departure had
actually disrupted the workplace, as a vacancy was created as a consequence. According to
employer’s witness, it was the insurance carrier attorney who demanded the release, and “that’s
the downfall of worker’s [sic] comp … that there could be a conflict.” On the other hand, she
testified that a resignation as part of C&R was, to her knowledge, “standard, but [in this case] we
did not ask.”
Although she had signed the waiver, claimant then applied for UC. The local job center
and the referee granted benefits, ruling that claimant had not voluntarily quit, but instead that
“she was forced to resign” as part of the C&R, “under an invalid agreement.” In this latter
regard, Section 701 of the UC Act, 43 P.S. § 861, states, among other things, “No agreement by
an employe to waive, release, or commute his rights to compensation, or any other rights under
this act, shall be valid.”
The UC Board, however, reversed. In its view, claimant voluntarily terminated her
employment in order to settle her workers’ compensation claim. Further, “continuing work
within her medical restrictions was available had Claimant not accepted the settlement
agreement.”
Commonwealth Court agreed. True, claimant had testified that she resigned “because her
former attorney told her that the settlement would not take place if she did not sign the
resignation/release.” It was likewise true that claimant complained that “she was under
psychological pressure to settle.” Finally, it may have been true that “her resignation was
accomplished without Employer’s knowledge and was based on her mistaken belief that
Employer no longer had work for her.” These allegations, however, did not change the critical
analysis. The court rejected the idea that claimant was truly “forced” to resign (this writer’s
conceptualization). To the contrary, given claimant’s admission that she signed the resignation
on advice of counsel, to make the C&R happen, the only conclusion that could be reached was
that she had acted voluntarily:
Claimant asserts that her resignation was accomplished without Employer’s
knowledge and was based on her mistaken belief that Employer no longer had
work for her; therefore, Claimant contends that her resignation is invalid and
involuntary as a matter of law.
[H]owever, when asked at the hearing why she agreed to resign, Claimant
testified that she did so because her attorney stated that the workers’
compensation settlement would not occur otherwise. This testimony supports the
Board’s determination that Claimant voluntarily quit her position in order to settle
the workers’ compensation litigation. In unemployment compensation
proceedings, the Board is the ultimate fact-finder, empowered to determine the
credibility of witnesses and resolve conflicts in evidence.
Slip op. at 7-8.
12

What, however, of the illegal waiver? The court agreed that that provision of the general
release “purporting to waive Claimant’s right to unemployment benefits is invalid under Section
701 of the Law.” Still, this invalidity was of no moment, because for the proscription “to be
relevant, a claimant must first establish that she has a right to benefits under the Law….” Dept.
of Labor & Industry v. UCBR, 211 A.2d 463 (Pa. 1965). Here, “the Board did not overlook or
disregard section 701 of the Law and conclude that Claimant waived her right to benefits by
signing the resignation/release. Instead, the Board determined that Claimant is ineligible for
benefits pursuant to section 402(b) of the Law because she chose to terminate her employment in
order to settle her workers' compensation claim.”
Editor’s Note (Brad Andreen, Esq.): To potentially avoid any confusion on the issue, it may be
beneficial to include, at paragraph 19 of the C&R Agreement, a proviso that the claimant is
aware that his/her resignation from employment, executed in connection with entering into a
C&R, is being undertaken voluntarily and shall be considered a voluntary quit for the purposes
of a potential application for unemployment compensation benefits. The proviso could continue,
”Pursuant to current case law, the claimant understands that he/she would not be entitled to
receipt of unemployment compensation benefits as he/she has entered into a voluntary separation
from employment so as to resolve his/her workers’ compensation claim.”
COMMONWEALTH COURT CONTINUES TO TREAT
500 WEEKS AS LIMITATION OF ACTION FOR CLAIMANT
WHOSE BENEFITS HAVE BEEN SUSPENDED;
THAT CLAIMANT WAS UNDER RESTRICTIONS NOT RELEVANT
Palaschak v. WCAB (U.S. Airways), ___ A.3d ___ (Pa. Commw. 2012) [Pa. Commw. No. 1699
C.D. 2010, filed Jan. 23, 2012, Leavitt, J., court en banc].
A number of precedents, from both Supreme Court and
Commonwealth Court, have held that the 500 weeks of partial disability
entitlement can operate as a limitation of action.
In this regard, when a claimant returns to work on a suspension,
the 500 weeks start “ticking away” (this writer’s term), even if he does
not actually collect any partial disability. If claimant does not receive any benefits during this
period of time, his right to either total or partial is extinguished at the end of the 500 weeks.
Roussos v. WCAB (St. Vincent Health Center), 630 A.2d 555 (Pa. Commw. 1993). An arguable
irony exists: if claimant actually collects payments of partial disability during the 500 weeks, at
the cessation of the same he may file for reinstated total or partial disability within three years.
See Stewart (Pa. 2000), full cite below. (The worker’s burden of proof – a different
consideration, of course – will be to show a worsening of condition.)
In this new case, which was heard by the court en banc, this familiar dichotomy was
upheld. The existing regime was so sustained in the face of two arguments. They were: first,
that because the claimant was, over the 500 weeks, only at modified duty, the 500 weeks should
not be deemed to tick away; and second, that the Supreme Court had hinted that the dichotomy
itself was not justified, perhaps a suggestion by the high court that the dichotomy should be
13

abolished. The first argument was submitted by the claimant. The second was submitted by
Judge Pellegrini in dissent, with Judge Simpson joining. Perhaps the case will be accepted by
the Supreme Court.
Claimant, Palaschak, was employed as a mechanic at U.S. Airways. He suffered an
injury to his neck, arising in the course of his employment, in January 1992. He was paid
benefits voluntarily under an NCP, and he was off of work for four years. He returned to work
performing his pre-injury job, with restrictions, in February 1996. Ten years had passed when,
in March 2006, claimant indicated that his new physician was limiting him further. As no work
of such kind was available, he was placed on an unpaid leave, and did not work thereafter.
Claimant then sought to reinstate benefits, but employer opposed the claim as barred by the 500
weeks. The WCJ and Board dismissed the petition, as has Commonwealth Court.
True, claimant was back to work at restricted duty, but this factor was not relevant to the
critical analysis. “The Act” the court declared, “does not speak to the kind of job a claimant
performs, but only his earnings.” True also, as pointed out by the dissent, the Supreme Court in
the year 2000 “criticized the fact that Section 413(a) gives claimants on partial disability a longer
period of time to seek reinstatement than it gives claimants whose disability has been
suspended.” As far as the court was concerned, however, that criticism was perhaps intended as
an invitation to the legislature to “take another look at its policy decision.” The critique had not,
however, had the effect of legislative change to the statute or its interpretation over the decades.
(The court in this regard was referring to the case, Stewart v. WCAB (PA. Glass Sand/US Silica),
756 A.2d 655 (Pa. 2000)).
As to the purpose of the limitation, the same is “to avoid the ‘inconvenience and
prejudice resulting from deciding stale cases on stale evidence.’” (Quoting Deppenbrook v.
WCAB (Republic Steel Corp.), 655 A.2d 1072 (Pa. Commw. 1995)).
Editor’s Note I: The statutory proviso that has been held to create the dichotomy is Section
413(a) of the Act, 77 P.S. § 772. Recalling that the maximum period of partial disability is 500
weeks (see Section 306(b)), the pertinent portion is as follows – emphasis the court’s:
Id.
Provided, That, except in the case of eye injuries, no notice of compensation
payable, agreement or award shall be reviewed, or modified, or reinstated, unless
a petition is filed with the department within three years after the date of the most
recent payment of compensation made prior to the filing of such petition. . . . And
provided further, That where compensation has been suspended because the
employe's earnings are equal to or in excess of his wages prior to the injury that
payments under the agreement or award may be resumed at any time during the
period for which compensation for partial disability is payable, unless it be
shown that the loss in earnings does not result from the disability due to the
injury.
14

Editor’s Note II: With regard to the post-Stewart cases where Commonwealth Court applied
the Roussos rule, see Stehr v. WCAB (Alcoa), 936 A.2d 570 (Pa. Commw. 2007); Prosick v.
WCAB (Hershey Choc.), 936 A.2d 177 (Pa. Commw. 2007); Cicchiello v. WCAB (Frank L.
Markel Corp.), 761 A.2d 210 (Pa. Commw. 2000) (appeal denied).
Editor’s Note III (Norm Dastur, Esq.): The result in Palaschak is supported by the plain
language of Section 413(a). However, the purpose of that portion of the Act remains a point of
frustration for claimant’s attorneys. As noted by the court, the purpose of time limitations under
the Act is to avoid litigating “stale cases on stale evidence.” However, the issues and evidence in
these cases are anything but “stale.” In general, the issue is the claimant’s medical condition at
the time he or she stops working and not some remote time in the past. For example, in the
present case, the issue was whether the “Claimant suffered a new injury, aggravation or any
worsening of his condition in early 2006” Slip opinion at p. 2.
A BRIEFING ON THE EXCLUSIVE REMEDY:
DEVELOPMENTS, 2011 �
1. Plaintiff unsuccessful in “Dual Capacity,” “Dual Persona,” tort suit. The
Pennsylvania Supreme Court has afforded to the exclusive remedy the sharpest
of teeth. Still, an exception to immunity may be found in the “dual capacity”
doctrine.
In our state, however, the exception is very narrow. In the one and only
case where the Supreme Court applied the doctrine, an employee was permitted to sue her
hospital employer for emergency room malpractice. In this regard, the worker was injured in the
course of her work at the hospital, and she was taken to the employer’s E.R. There, she fell
victim to further injury. The suit was allowed as the worker at the time “was in the same
position as any other member of the public receiving medical treatment because the emergency
room was open to the general public.” Tatrai v. Presbyterian University Hosp., 439 A.2d 1161
(Pa. 1982).
Another exception exists – poorly developed under Pennsylvania law – called the “dual
persona” rule. Under this doctrine, an employer may be sued by an employee in tort, “but only if
the employer has a second identity, so completely independent and unrelated to its status as an
employer, that the law would recognize the employer in its second capacity as a separate legal
person.” See Callender v. Goodyear Tire and Rubber Co., 564 A.2d 180 (Pa. Super. 1989).
In a 2011 case, the Superior Court considered these doctrines. See Soto v. Nabisco et al.,
32 A.3d 787 (Pa. Super. 2011). In that case, the plaintiff, Soto, sustained a catastrophic injury in
2007 when his left arm was amputated while using his employer’s Ritz Cracker Cutting
Machine. His employer at the time was Kraft, which had taken over Nabisco in a 2001 merger.
Soto apparently received benefits from Kraft, but nevertheless sued Kraft (the caption states
Nabisco). The trial court granted the employer’s preliminary objections, based on the exclusive
remedy.
� by Dave Torrey
15

In Superior Court, Soto asserted that “Kraft’s position as successor in interest to Nabisco
exposed Kraft to third-party liability.” He identified “Kraft’s ‘dual persona’ nature as (1) his
employer and (2) the successor in interest to Nabisco, the manufacturer of the defective machine
that caused [his] injuries at work.”
Superior Court, however, affirmed. The plaintiff had not made out a case so that either
exception, as defined above, would apply. As to dual capacity this was quite plain, as only
employees of the company, not the public, would use the Ritz Cracker machine.
This was likewise so, however, with regard to “dual persona.” The purpose of that
doctrine “is to prevent an employer from asserting statutory immunity ‘from obligations it
inherited through corporate merger simply because of the immunity for its own negligence it
possessed as the employer of the insured employee’…. In other words, if the exclusivity of the
WCA does not preclude a plaintiff’s right to sue a third party, a merger should preserve that
right.” (Quoting Gurry v. Cumberland Farms, Inc., 550 N.E.2d 127 (Mass. 1990). The “dual
persona doctrine should not,” at the same time, “be applied to allow ‘a merger to increase, rather
than preserve, inchoate liability.’” Van Doren v. Coe Press Eqt. Co., 592 F. Supp.2d 776 (E.D.
Pa. 2008).
In the present case, assuming the doctrine applied under Pennsylvania law, “workers’
compensation would be his sole remedy; any third-party claim against Nabisco as the
manufacturer of the equipment would fail. To allow Appellant to sue Kraft, solely as the
successor in interest to Nabisco, for third-party damages effectively enlarges Appellant's
remedies as a result of the merger, in contravention of the ‘dual persona’ doctrine, which was
designed to preserve but not expand liability. If Nabisco as the employer would have no thirdparty
liability beyond workers’ compensation, then Kraft as the successor employer should have
no third-party liability under the circumstances of this case.”
Editor’s Note: The court also cited decisions of other state courts as it analyzed the potential
operation of the “dual persona” doctrine. These included cases from Florida, Michigan,
Washington, and the First Circuit.
2. Beryllium exposure and application of Martin v. Lancaster Battery.
The Pennsylvania Supreme Court has enforced the exclusive remedy
with an iron first. Consistent with this proposition, no intentional tort
exception of any kind exists.
The court has, however, recognized the tort of “fraudulent concealment.” That is, if an
employee sustains a work-related injury or disease, the employer knows of the same, yet
proceeds to “affirmatively conceal the dangerous exposure,” a tort suit is cognizable. This is the
holding of the landmark Martin v. Lancaster Battery, 606 A.2d 444 (Pa. 1992).
In a new case, a common pleas court considered a tort suit based on this theory. See
Rakoczy v. Hubert C. Jasinski Lab., Inc., dba Newtech Dental Laboratory et al., 2011 Phila Ct.
Com. Pl. LEXIS 304 (filed Oct. 19, 2011). There, the plaintiff, a dental ceramist, worked for
defendant Newtech. He maintained that he was exposed to respirable beryllium dust, and that as
16

a result he contracted chronic beryllium disease. He sued his employer, alleging fraudulent
concealment, but the trial court granted summary judgment. Characterizing such suits as a “rare
exception” to exclusivity, the court rejected the proposition that plaintiff could prove the
necessary elements as summarized above.
This was so even in the face of an allegation that, during or at the end of claimant’s work
with employer, it had been cited by OSHA for not having sufficient warnings in the workplace.
The court, with regard to this allegation, noted that the Supreme Court had previously held that
“lack of adequate safety measures at the worksite … is not sufficient to establish an exception to
exclusivity ….” (Citing Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987)).
3. Unsuccessful NIED and IIED claims arising out of termination-forpregnancy.
Except for when the plaintiff can successfully plead a “personal
animus” by an employer, a claim for negligent infliction of emotional distress
(NIED) or intentional infliction of emotional distress (IIED) is barred by the
exclusive remedy.
In an early 2012 case, this assertion was put to the test. See Galezniak v.
Millville Health Center, 2012 U.S. Dist. LEXIS 5808 (M.D. Pa. 2012). The
plaintiff in this case began work as a certified nursing assistant in June 2008. When she told her
employer in October 2008 that she was pregnant, she was allegedly told in reply that no light
duty was available, and that she was therefore obliged to fill out forms to “’take a non-paid leave
of absence and ultimately termination.’” She sued on a number of counts, including NIED and
IIED. She maintained that employer’s action caused her “severe emotional torment and stress.”
The district court, however, granted employer’s 12(b)(6) motion. Outside personal animus
situations, the Act bars such claims. Here, plaintiff’s claims arose from the employment
relationship, and the court held that the suit was, as a consequence, necessarily barred. (Citing
Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933 (3 rd Cir. 1997)). The court noted
miscellaneously that it was only in IIED (not NIED) cases that the personal animus exception
would ever arguably come into play. (Citing Brooks v. Mendoza, U.S. Dist. LEXIS 4491 (E.D.
Pa. 2002)).
4. Successful NIED and IIED claims arising out of employment
termination. In contrast to the case summarized above, a plaintiff
in a case filed a few months previously was able to set forth a
cognizable cause of action. See Forrest v. Owen J. Roberts School
Dist., 2011 U.S. Dist. LEXIS 35839 (E.D. Pa. 2011).
There, a school superintendant was subjected to alleged
harassment by the majority bloc of the school board. She alleged that she was sexually harassed,
subjected to cursing and vulgarities at school board meetings, maliciously given a bad
performance evaluation, and ultimately terminated “without cause.” She filed a multiple-count
federal lawsuit alleging, among other things, sexual harassment and due process violations. She
also included NIED and IIED claims, asserting she had become physically and mentally sick
from the Board members’ actions. The Board moved to dismiss these counts on the basis of the
exclusive remedy.
17

The court, however, found that personal animus had been sufficiently pleaded. In
explaining the law, the court stated that the “’critical inquiry in determining the applicability of
the [personal animus exception] is whether the attack was motivated by personal reasons, as
opposed to generalized contempt or hatred, and was sufficiently unrelated to the work situation
so as not to arise out of the employment relationship.’ Joyner v. School Dist. of Philadelphia,
313 F. Supp. 2d 495, 503 (E.D. Pa. 2004) (citing Fugarino v. University Servs., 123 F. Supp. 2d
838, 844 (E.D. Pa. 2000)).
Stated differently, ‘[i]f the third party would have attacked a different person in the same
position as the injured employee, the attack falls outside the [personal animus] exception.’” In
this case, “The Complaint alleges that: (1) Defendants deliberately created a hostile work
environment caused by sexual harassment, (2) in that regard, Plaintiff was the subject of personal
(as opposed to work-related) animus, and (3) Plaintiff suffered severe emotional and physical
harm as a result. … This is sufficient and the claim is not pre-empted by the PWCA. This claim
will proceed.”
5. General Contractor, contracting hospital, escape liability in tort suit
by injured worker. The employee of a contractor on a construction
project cannot, as a general rule, sue the general contractor (GC) in tort.
This is because the GC is usually clothed with the immunity enjoyed by
the worker’s immediate employer, under what is known as “statutory
employment.”
In a new case, the injured worker nevertheless sought to sue the GC. He also sought to
sue the hospital which had hired the GC for its expansion project. The trial court granted
summary judgment to both defendants, one on the grounds of workers’ compensation immunity
and the other on tort liability principles. See Dalessandro v. Turner Construction & St. Luke’s
Hosp., 2011 Phila. Ct. Com. Pl. LEXIS 121 (Ct. Common Pleas Phila. Co. 2011).
The plaintiff, Dalessandro, suffered serious injuries arising in the course of his
employment on October 12, 2007. At the time, he was employed by Island International
Fireproofing on a hospital addition job at which the GC was Turner Construction. He suffered
fall injuries when he moved a plywood box which was being used as a hole cover blocking an
elevator shaft. He was apparently paid benefits voluntarily (the opinion is silent on this point),
but he then filed a tort action against Turner and St. Luke’s, the hospital.
As foreshadowed above, the trial court granted summary judgment to both defendants. In
its view, the GC met all elements of the test found in the controlling precedent McDonald v.
Levinson Steel Co., 153 A. 424 (Pa. 1930). Plaintiff apparently alleged that Turner was not
actually in control of, or occupying, the premises. However, the court stated that Turner “had
supervisors on the site daily and also regularly assigned employees on the premises at the same
time as the employees of the subcontractor. This can satisfy the occupancy requirements of the
McDonald test.” (Citing Emery v. Leavsly McCollum, 725 A.2d 807 (Pa. Super. 1999)).
The hospital, meanwhile, was dismissed as it was not in possession or control of the
property at the time, and thus would have no vicarious liability for the purported acts or
omissions of its contractor. The court applied the recent Supreme Court case which sustained
18

this traditional rule. See Beil v. Telesis Constr., Inc., 11 A.3d 456 (Pa. 2011). In that case, the
court quoted the Restatement of Torts as follows: “’[T]he employer of an independent contractor
is not liable for physical harm caused to another by an act or omission of the contractor or his
servants.’ This foundational law is based upon the longstanding notion that one is not
vicariously liable for the negligence of an independent contractor, because engaging an
independent contractor ‘implies that the contractor is independent in the manner of doing the
work contracted for. How can the other party control the contractor who is engaged to do the
work, and who presumably knows more about doing it than the man who by contract authorized
him to do it? Responsibility goes with authority.’” (Citing Restatement (Second) of Torts § 409,
which cites, in turn, older Pennsylvania cases).
COMPROMISE SETTLEMENT WATCH
1. Inclusions of approved C&R Agreement collaterally estop claimant from
alleging further injuries in tort suit. An approved and adjudicated C&R has
the force of a judgment. In a recent Philadelphia common pleas case, this
critical fact had real implications. See Holts v. Thyssenkrupp Elevator Co.,
2011 Phila. Ct. Com. Pl. LEXIS 235 (Ct. Common Pleas Phila. Co. 2011).
In that case a worker, Holts, was employed at Albert Einstein Medical Center. She was
injured on September 29, 2007, in an unwitnessed accident on an elevator. She was paid benefits
voluntarily under an NCP. When the original accident report was filled out, she wrote upon the
document that she had hurt her forehead, lip, finger, and knee. In 2008, WCJ Goodwin approved
a stipulation, pursuant to claimant’s review petition, to the effect that claimant not only suffered
the above injuries but also low back and neck injuries. In 2010, meanwhile, claimant entered
into a C&R. The claimant signed the release which was attached to the familiar LIBC
stipulations form; this stipulation provided that claimant’s injuries were “contusions of the head,
right knee, and left 2 nd finger.” WCJ Santoro approved the C&R on July 29, 2010.
The prior September, Ms. Holts had filed a personal injury action against the contractor
that maintained the employer’s elevators. The trial date approached in early 2011, at a point in
time after the approval of the C&R. On the eve of trial, the defendant filed a motion in limine
seeking to prevent plaintiff from presenting evidence that she had also injured her left shoulder
in the accident. The trial court granted the motion. In the ensuing trial, the jury did not learn of
any such alleged injury.
In the end, the jury found that the defendant was negligent, but that such negligence was
not a factual cause of the plaintiff’s injuries. In post-trial motions, the trial court ratified its prior
ruling that plaintiff was not permitted to present evidence of left shoulder injuries. In this regard,
the court agreed that Ms. Holts was collaterally estopped from arguing that she had hurt her
shoulder on the day in question. The issue of the extent of her injuries had twice been the subject
of litigation, and she had never alleged, as far as the court could tell, that her shoulder was
injured. Thus, collateral estoppel applied. Notably, the doctrine did, as here, operate to preclude
the re-litigation, in a civil action, of issues decided by administrative agencies. As to the current
Pennsylvania law:
19

Collateral estoppel does not require “an identity of parties between the two
actions to preclude re-litigation of an issue.” …. The doctrine does require a final
judgment on the merits in the prior adjudication; “the party against whom the
doctrine is asserted was a party to the prior adjudication”; and “the party against
whom it is asserted had a full and fair opportunity to litigate the issue in the prior
adjudication.” ….
p. *7 (citing John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963 (Pa. Super. 2007);
Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995), appeal denied, 544 Pa. 599, 674
A.2d 1065 (Pa. 1996); Grant v. GAF Corp., 608 A.2d 1047, 1054 (Pa. Super. 1992), affirmed,
536 Pa. 429, 639 A.2d 1170 (Pa. 1994)).
As far as the court was concerned, “this … court is bound to accept the terms of the
judicially approved stipulation, particularly the injuries Plaintiff and her employer agreed were
suffered. Undisputedly, this stipulation did not include a shoulder/rotator cuff injury. See also
Coleman v. Wyeth Pharms., Inc., … 6 A.3d 502 … (Pa. Super. 2010), which held that a judicial
admission includes a statement of fact by one party, including stipulations, made in clear and
unequivocal terms.”
2. Last-minute general release held not sufficient to bar claimant’s post-
C&R Title VII and ADA actions. In many Pennsylvania cases subject to
C&R, the employer also demands a general release. Such a release features
the claimant agreeing that, as part of the settlement, and in exchange for a
payment of one kind or another, he or she will not sue the employer under a
variety of civil causes of action. On most occasions, the consideration is
that of the C&R lump sum, on other occasions it may be $100.00, in still others it is a quaint
Sacagawea $1.00, and in one case, by report, the consideration was just an old beaver hat.
The universal colloquialism for requesting a general release at time of a C&R is that of
“global settlement.” Some WCJs, at time of C&R review, inquire after this issue, while some
ignore it. Regardless, the WCJ never presumes to approve or deny this aspect of the
arrangement, though it may well have been an essential aspect of the parties’ negotiations on
their own and/or before a WCJ-mediator.
In a new case, this scenario, with an unfortunate result for the release holder, is laid out in
some detail. Ultimately, the court held that the release was not executed by a knowing plaintiff,
and it was found not sufficient to bar the plaintiff’s post-C&R lawsuit against employer. Miller
v. Tyco Electronics, 2011 U.S. Dist. LEXIS 135037 (M.D. Pa. 2011).
A worker, Miller, was employed by Tyco from 1994 to 2009. Near the end of this
service, she apparently sustained an injury, in February 2009. As far as can be told, her claim
was questioned in whole or part. When she was soon thereafter discharged, she filed a charge of
discrimination with the PHRC and the EEOC. Among the claims were sex, race, and disability
discrimination. Meanwhile, the parties attended a WCJ-convened mediation (presumably a
claim petition was pending), and a C&R in the amount of $82,500.00 was agreed upon. Shortly
before the C&R hearing, in November 2009, the Tyco attorney gave Miller and her attorney a
20

copy of the C&R agreement, and also a general release. Plaintiff initially refused to sign the
general release; however, after Plaintiff's attorney and Tyco’s attorney negotiated a handwritten
amendment, Plaintiff signed the release. The WCJ then approved the C&R.
In December 2010, Miller sued in federal court, bringing claims under Title VII, the
Equal Pay Act, and the ADA. Employer raised the release as a defense, and sought summary
judgment. The court, however, denied the employer’s motion. In the district court’s view,
“Plaintiff did not knowingly and willfully relinquish her right to bring the instant suit ….” In so
ruling, the court remarked as follows:
An employee may validly waive claims of discrimination against an employer if
the waiver is made knowingly and willfully. Coventry v. U.S. Steel Corp., 856
F.2d 514, 521-22 (3d Cir. 1988) ….. In determining the validity of a waiver,
courts consider general principles of contract construction; however, “[i]n light of
the strong policy concerns to eradicate discrimination in employment, a review of
the totality of the circumstances, considerate of the particular individual who has
executed the release, is also necessary.” ….
According to the court, “This totality of the circumstances inquiry is made considering
the following factors: (1) the clarity and specificity of the release language; (2) the plaintiff's
education and business experience; (3) the amount of time the plaintiff had for deliberation about
the release before signing it; (4) whether plaintiff knew or should have known his rights upon
execution of the release; (5) whether plaintiff was encouraged to seek, or in fact received benefit
of counsel; (6) whether there was an opportunity for negotiation of the terms of the agreement;
and (7) whether the consideration given in exchange for the waiver and accepted by the
employee exceeds the benefits to which the employee was already entitled by contract or law.”
(Citing Coventry, supra).
The court then applied these criteria to the facts of the present case. In the end, the court
was untroubled about the eleventh-hour aspect of the agreement, as Miller had benefit of
counsel. However, in the court’s view, the ambiguity of the release (which it carefully reviewed)
could have caused Miller reasonably not to have understood her rights upon execution of the
release.
Editor’s Note I: The general release read as follows: Plaintiff “remise[s], release[s], and forever
discharge[s] [Tyco] . . . of and from all waivable actions and causes of actions, suits, debts,
claims and demands whatsoever based on tort or contract, in law or equity, from the beginning of
[her] employment to the date of [the] Release, as well as any waivable claims arising from any
constitutional or statutory provisions of federal, state or local governments, including the
Pennsylvania Human Relations Act, the Americans With Disabilities Act, and the Civil Rights
Acts of 1964 and 1991….” The handwritten addendum, meanwhile (initialed by Plaintiff)
provided: “This waiver and release shall not apply to the currently active Pennsylvania Human
Relations Commission docketed at PHRC Case #200804540.”
Editor’s Note II (Mike Routch, Esq.): Unfortunately for the defendant, there were many bad
facts in this case that doomed the release (e.g., last minute tender, vague handwritten changes,
21

and no separate consideration, to name a few). Additionally, PHRC and EEOC cases are usually
filed jointly, so releasing one and not the other does not really accomplish anything. Finally,
specific releases exist that are generally used for PHRC/EEOC cases. I use these if a charge has
actually been filed at the time of C&R. That effort would have helped here also.
3. Injury while traveling to mandatory mediation not course of
employment. Under the Maine Workers’ Compensation Act,
attendance at mediation is an obligation of both employer and
employee. In a 2010 case, a claimant was driving to such a
session when he was injured in a motor vehicle accident.
Claimant asserted that his activity at the time occurred in the
course of employment, but the hearing officer and thereafter the state supreme court denied the
claim. Feiereisen v. Newpage Corp., 5 A.3d 669 (S. Ct. Maine 2010).
Claimant argued without success that his activity was properly analogous to a claimant
receiving work-injury related medical treatment. In that context, Maine precedent held that
injuries occurring in travel to the same were in the course of employment. (This is the same rule
as in Pennsylvania). Employer, on the other hand, argued successfully that the case was more
analogous to a 1991 precedent, where the court held that an injury sustained by an employee
while retrieving records to pursue his claim did not arise out of and in the course of employment.
In agreeing with employer, the court noted that “[f]ew courts have addressed whether injuries
occurring during travel to pursue litigation of a workers’ compensation claim are compensable.
Of those that have, however, the majority hold that such injuries are not compensable.” (Citing
cases from Arizona, Maryland, and South Carolina.) The court was unmoved by the fact that
attendance was mandatory.
BOOK NOTE
MAKING CAPITALISM SAFE:
WORK SAFETY & HEALTH REGULATIONS IN AMERICA, 1880-1940
by Donald W. Rogers (University of Illinois Press 2009).
See also
http://www.press.uillinois.edu/books/catalog/48gfr8nh9780252034824.html.
The modern history of workplace safety surely begins with the creation of
OSHA in 1970. Historian Donald Rogers demonstrates, however, that enhancing occupational
safety has long been a focus of policymakers.
In this book, which largely centers on the early Wisconsin Industrial Commission, Rogers
chronicles the efforts of progressive policymakers to encourage industry to join with government
in improving workplace safety. The author also compares the early Wisconsin experiences with
those of other states, including California, Ohio, Illinois, and Alabama. Rogers stresses that the
politics and personalities of each jurisdiction caused these states to approach safety efforts in
different ways. A key theme of the author is the tension over who was to be the leader in
promoting a culture of industrial safety – government, industry, or both working together.
22

This book, a tour de force examination of the pre-World War II world of workplace
safety, may be a daunting read to some. It is, after all, essentially a history of bureaucracy. Still,
the enlightenment to be gained will be worth the reader’s effort. (Ever want to know, for
example, where the motto of “Safety First” came from?) A review of the bibliography,
meanwhile, is an education in itself. The author has done us all a favor by his wide reading,
learning, and synthesis.
ARTICLES OF INTEREST
1. Claire Been, Bypassing Redundancy: Resolving the Jurisdictional
Dilemma under the Defense Base Act, 83 WASHINGTON LAW REVIEW 219
(2008).
The Defense Base Act, an extension of the Longshore Act, covers
civilian workers employed overseas under U.S. government contracts or on
U.S. military bases. A disputed case is heard first by a federal ALJ, the final fact-finder, and
then reviewed by the Department of Labor’s Benefits Review Board (BRB). A quandary has
existed for decades, however, on the issue of true judicial review. Does the appeal go to the
district court or the Court of Appeals? Under the major Longshore Act amendments of 1972,
appeals from the newly-created BRB are taken directly to the appeals court. This procedure
changed the traditional arrangement, which featured appeal directly from ALJ to district court.
Unfortunately, when the Longshore Act was amended, no similar change was made to the DBA.
Thus the “jurisdictional dilemma” referred to in the title of this article. The author asserts that
“context, statutory [construction] cannons, legislative history, construction of other Longshore
Act extensions, and policy considerations establish that review of final agency decisions in DBA
cases must be in the court of appeals.” 1
2. Nathaniel R. Boulton, Establishing Causation in Iowa
Workers’ Compensation Law: An Analysis of Common Disputes
over the Compensability of Certain Injuries, 59 DRAKE LAW
REVIEW 463 (2011).
In this article the author, a claimant’s attorney, has
composed a masterful, comprehensive treatise on the Iowa law of medical causation and course
of employment.
The author identifies one notable area – complete lack of injured worker choice of
provider – that demonstrates that the Iowa Act is not particularly solicitous of claimants’
interests. On the other hand, the Act is liberally construed, a statutory construction tool that the
courts have frequently utilized to find coverage. In addition, the concept of injury is “broadly
defined.” Thus, as in Pennsylvania, in a multiple-causation case, as long as a work factor is a
substantial contributing factor, a compensable injury may be found. The author observes that, to
date, legislative attempts, like those in Florida and Oregon, to restrict such cases, have been
1 With regard to the Defense Base Act, generally, see Torrey & Greenberg, PENNSYLVANIA WORKERS’
COMPENSATION: LAW & PRACTICE, § 24:27 (Thomson Reuters/West 3rd ed. 2008).
23

unsuccessful. The Iowa manifestation of this retractive proposal is that a “cumulative work or
aggravating injury must be ‘the single most substantial factor’ in causing the injury to be
compensable.” The author opposes such legislation, noting, accurately, that “[i]t would be
medical fiction in most cases to require a worker to specifically designate a percentage or even
the predominant cause of an injury related to the progression of accumulative traumas.”
Iowa law maintains a heightened burden in “pure” mental stress cases that will be
familiar to the Pennsylvania reader. The claimant must establish that the mental injury “was
caused by workplace stress of greater magnitude than the day-to-day mental stresses experienced
by other workers employed in the same or similar jobs,” regardless of their employer.
As the author discusses how Iowa courts have interpreted the “arising” test, he notes that
decisions show attention to the Larson treatise analysis of the concept. Larson, of course, tried to
isolate the various ways this century-old phrase has been interpreted. In this regard, the book
has always referred to the “five lines of interpretation” of the term “arising.” Boulton establishes
that Iowa courts have never embraced the expansive “positional risk” approach, which provides
that an injury arises out of the employment as long as “but-for” the work, the injury would not
have occurred. On the other hand, the courts will not demand of claimant proof of “increased
risk.” Under that formulation, before an injury is said to have arisen out of the employment, the
tasks being undertaken at time of injury must enhance, in a special way, the potential for harm.
Instead, the Iowa approach is typically to apply the middling “actual risk” test. Under this test,
“The injury must not have coincidentally occurred while at work, but must in some way be
caused by or related to the working environment or the conditions of [the] employment.”
Of interest is that Pennsylvania courts have never undertaken this type of categorical
analysis. The concepts of positional risk, actual risk, increased risk – and the most demanding
test, for that matter, “peculiar risk” – are foreign to the Pennsylvania practitioner and jurist. We
are guided, instead, by fairly detailed Section 301(c)(1) of the Act, dating most recently from
1972, and its particularized interpretations. In the writer’s opinion, the failure of Pennsylvania
courts to take account of these widely acknowledged analytical categories has stymied
development of a coherent course of employment law. When, for example, the Commonwealth
Court was presented with a claimant who developed debilitating knee pain, simply by a painful
“stepping up” and then crossing of his legs, the court seemed at a loss at how to analyze the case.
Ultimately, coverage was found, but the opinion is disappointing and hardly instructive.
Nowhere in the opinion, certainly, may be found any effort to analyze the word “arising.”
Indeed, the court did not even cite the Workers’ Compensation Act. 1/2
The most interesting issue that Boulton addresses is that of the completely random
personal assault. Both the Iowa and Pennsylvania Acts exclude such purely personal injuries.
The Iowa statute excludes them with the following phraseology:
Injuries caused “[b]y the willful act of a third party directed against the employee
for reasons personal to such employee” are not compensable. 1
1/2 See Ruhl v. WCAB (Mac-It Parts), 611 A.2d 327 (Pa. Commw. 1992).
1 Iowa Code § 85.16.
24

The Pennsylvania statute, meanwhile, provides:
The term “injury arising in the course of his employment,” as used in this article,
shall not include an injury caused by an act of a third person intended to injure the
employe because of reasons personal to him, and not directed against him as an
employe or because of his employment. 2
According to the author, the Iowa Supreme Court has read its statute to mean that “[w]hen the
claimant is ‘merely the passive object’ of a third-party’s assault, such an attack cannot be
deemed to be motivated by reasons personal to the claimant.” 3
Of interest is that this common-sense and just result does not necessarily follow under the
more arcane Pennsylvania formulation. In at least one case, the court has held that the statute,
when referencing “reasons personal to him,” mean reasons personal to the third person, as
opposed to the employee. 4 This reading could alter the analysis when it comes to the “random
personal assault.”
In a renowned Pittsburgh case, for example, an unemployed immigration lawyer named
Bauhammers developed a hatred of minorities, particularly of Asians. Knowing that he could
find Asians laboring in a Chinese restaurant, on April 28, 2000, he entered the premises armed
with weapons and assassinated the helpless employees. The employer’s carrier reportedly
denied the claims based on the Section 301(c)(1) proviso, on the grounds that Bauhammers had
assassinated the workers for reasons personal (hatred) to him (Bauhammers).
The matter was never addressed by either the compensation authorities or the courts, as
all the cases were subject to compromise settlement. Under the preferred Iowa formulation, of
course, this perverse defense could never have been raised in the first place. It is harder to
visualize a more “passive object” than a worker, laboring at his post, victimized by an intruding
madman.
3. Laura McLain, Managing Dental Claims in Workers Comp, RISK
MANAGEMENT MAGAZINE (undated, 2011) available at
http://www.rmmagazine.com/MGTemplate.cfm?Section=RMMagazine
&NavMenuID=128&template=/Magazine/DisplayMagazines.cfm&Issue
ID=360&AID=4438&Volume=58&ShowArticle=1.
In a recent case heard by this writer, the claimant had experienced an injury in which his
teeth were damaged. The accident was witnessed, and the employer and carrier did not question
the claimant’s credibility or need for treatment. Still, it seemed that the carrier was completely
befuddled with regard to how to provide the worker care. The case languished for months
2 Section 301(c)(1) of the Act, 77 P.S. § 411(1).
3 Boulton, p.496 (citing Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979).
4 Cleland Simpson Co. v. WCAB, 332 A.2d 862 (Pa. Commw. 1975).
25

despite the fact that the claimant was represented by one of the venerable deans of the claimants’
bar.
This new article perhaps explains what was going on behind the scenes. The author, who
works for a company that manages dental claims, confirms that many carriers do not appreciate
the complexity of dental claims. And, indeed, they become befuddled with regard to how they
are best handled. She cautions that many dental claims can be expensive and need to be handled
properly. If not treated and adjusted properly, she notes, the injured worker’s recovery will be
delayed and “hefty,” often unnecessary, costs will be added.
Of interest is the author’s observation that “[b]y nature, dentists are accustomed to
treating the whole mouth, which can drive up costs when services treat ailments unrelated to the
injury the claim is intended to cover. For example, an injured worker may have chipped a tooth,
but a payer may receive a $20,000 bill because the dentist also charged them for the treatment of
four cavities, periodontal diseases and gingivitis.” The author posits that carriers should manage
dental care, and that dentists should be subject to “clinical oversight.” Indeed, she asserts that
participating dentists should know in detail about the parameters of their reimbursable treatment.
This balanced essay is written by a dental care vendor (so we are perhaps reading an infomercial
or sorts), but certainly her observations are apt.
Postscript: On the subject of dental care, Medicare does not cover dental services. As
the Medicare website states, “Medicare does not cover routine dental care or most dental
procedures such as cleanings, fillings, tooth extractions or dentures. In rare cases, Medicare Part
B will pay for certain dental services. In addition, Medicare Part A will pay for certain dental
services that you get when you are in the hospital.”
Of course, provider reimbursements under the Pennsylvania practice are based on the
Medicare fee schedule (“113% of Medicare.”) Thus the billings of dental providers must be
specially handled. According to an expert Bureau official, “the cost containment rules apply to
dentists when treating injured workers. They have ‘D’ Codes which describe their treatment in
the fee schedule…. If there is a ‘0’ in the fee schedule amount, [34 Pa. Code] § 127.102 states
that ‘If a Medicare mechanism does not exist for a particular treatment, accommodation, product
or service, the amount of payment made to a health care provider shall be either 80% of the usual
and customary charge for that treatment, accommodation, product or service in the geographic
area where rendered, or the actual charge, whichever is lower.”
4. Perry D. Merlo, Employers’ Right to Reimbursement in Workers’
Compensation Supersedeas Cases, 82 PENNSYLVANIA BAR
ASSOCIATION QUARTERLY 178 (October 2011).
In a 2011 case, the Supreme Court addressed an unsettled issue
surrounding the essential rules of Supersedeas Fund reimbursement. Is
an employer, the court was asked, entitled to reimbursement for a payment it has made, after
supersedeas request and denial, where the procedure that generated the bill was undertaken prior
to the supersedeas request, and the bill is only presented to it after such request? The
Commonwealth Court, in its 2009 decision in the case, ratified the reasoning of a WCJ who ruled
26

that Fund reimbursement can follow in such situations. The court adopted the WCJ’s view that
“[i]t is not the date of services that causes the compensation to be due. It is the date when the bill
is properly presented.” The Supreme Court has affirmed in its 2011 consideration of the case.
See Department of Labor & Industry v. WCAB (Crawford & Co.), 23 A.3d 511 (Pa. 2011) (filed
July 19, 2011), affirming, 965 A.2d 332 (Pa. Commw. 2009).
Skillful and intrepid counsel who prevailed has published a summary and analysis. Of
interest is his criticism of the Bureau in its role as conservator of the Fund. The writer suggests
that the Fund should not have aggressively opposed employer’s reimbursement demand. “Not
only did the employer incur costs and loss of use of money that was rightfully its own,” he
asserts, but “the Commonwealth also devoted [untold] thousands of dollars in Commonwealth
resources to pursue a losing proposition…. In hindsight, whether the Fund was properly
administrated by engaging in over four years of litigation in this matter is debatable.”
In defense of the Bureau position, however, one should recall that funds administered by
the Bureau have been subject to a number of creative “raids” over the years. 5 Hence, the Bureau
is highly vigilant about marginal efforts to gain reimbursement. Further, presumably the
attorneys at the Fund are as zealous as the estimable writer in representing client interests. The
Commonwealth, after all, employs lawyers, not potted palms.
Of critical interest is the author’s opinion that certain language of the opinion has
invested the WCJ with supersedeas authority over medical treatment. That language is as
follows:
The legislature has expressly conferred broad suspension authority on WCJs
during the litigation of termination, suspension, or modification petitions, 77 P.S.
§774(2), and we cannot find a WCJ lacks the authority to suspend insurerprovided
compensation payments relative to treatment rendered before the date of
a supersedeas request. One can fathom a host of situations where justice might
require a supersedeas relative to payment for past medical services, such as where
the treatment is unrelated to a work injury, the employer had no notice or
opportunity to challenge the treatment prior to its execution, or where the insurer
has no precertification or prior approval of the treatment. To tie the WCJ’s hands
in light of the plain language of the statute and the clear authority provided by the
legislature would go against our duty to effectuate the legislature's intentions,
1 Pa.C.S. § 1921(a), and we decline to do so.
The insurer challenged its obligation via the supersedeas — when that was
denied, the insurer lost the right to delay payment until the issue of responsibility
was resolved. The insurer continued meeting its responsibility until the WCJ
found Mr. Dressler was not suffering from a work-related injury at the time of the
surgery. Had supersedeas been granted, payment would not have been made, but
supersedeas was not granted and payment necessarily followed. It is the bill, post-
5
See, e.g., Torrey & Greenberg, PENNSYLVANIA WORKERS’ COMPENSATION: LAW & PRACTICE, § 11:13 (Thomson
Reuters/West 3rd ed. 2008).
27

denial, that caused money to leave the coffers of the insurer. Ergo, payment
resulted from the denial….
23 A.3d at 515-516.
This writer (Torrey) noted this language as well, and in the last issue of this newsletter he
took the position that the language was dicta. See PBA WC Law Section Newsletter, Vol. VII,
No. 109, p.7 (October 2011). Mr. Merlo, however, takes this language at its face value and
argues that the WCJ indeed has supersedeas power over medical treatment. “Employers,” he
asserts, “have every right to stop paying medical bills and indemnity during the pendency of a
termination petition [where] Supersedeas has been granted pursuant to the Crawford [& Co.]
case.”
The quoted language still seems like dicta to this writer – WCJ supersedeas power over
medical was simply not the issue in the case, and the language was not critical to the court’s
holding. Still, the author’s argument is intriguing. Will the next Commonwealth Court case to
treat the issue definitively invest the WCJ with such new power? It has allowed the same,
notably, in the refusal of medical exam context. That case is currently before the Supreme
Court. See Giant Eagle, Inc. v. WCAB (Givner), 984 A.2d 1034 (Pa. Commw. 2009) (allocatur
granted, 2010).
It is true, after all, that Section 306(f) was altered by Act 44 (1993), so that the renowned
prohibition on supersedeas was eliminated. That pre-UR regime proviso, which led to many a
tear shed by defense counsel, read, “The employer shall have the right to petition the department
for review of the necessity or frequency of treatment or reasonableness of fees for services
provided by a physician or other duly licensed practitioner of the healing arts. Such a petition
shall in no event act as a supersedeas, and during the pendency of any such petition the
employer shall pay all medical bills ….”
Years ago, it was the existence of this statute that led the Fund to contest the very idea
that any medical treatment billings – when and however submitted – could be recovered from the
Supersedeas Fund. If supersedeas could never be requested on medical, how could it ever be
reimbursed from the Supersedeas Fund? That question was answered in 1991, when the
Commonwealth Court took the employer-applicant’s view that “compensation” in Section 443
(the Supersedeas Fund proviso), meant both disability and medical, regardless of the Section
306(f) prohibition on supersedeas. See INA v. WCAB (Kline and Packard Press), 586 A.2d 500
(Pa. Commw. 1991). The court’s action at the time was quite a cause célèbre. 6
Perhaps this issue has been a “sleeper,” because Act 44 supplied two other remedies to
control medical costs, namely Utilization Review (UR) and Fee Review (FR). The Act 44
overhaul was a “nuclear” option vis-à-vis the WCJ – it completely deprived the WCJ of
authority, at least in the first instance, over medical treatment. This dramatic act is what weakens
the argument that the WCJ has supersedeas power over medical treatment – the law deliberately
6 See Torrey & Greenberg, PENNSYLVANIA WORKERS’ COMPENSATION: LAW & PRACTICE, §§ 1:50, 1:51 (Thomson
Reuters/West 3rd ed. 2008). The INA case was affirmed without opinion by the Supreme Court. See 619 A.2d 1356
(Pa. 1992).
28

deprived the judge of jurisdiction over the same. If treatment it is not reasonable and necessary,
the issue goes to UR. If the billings are late or incorrect, they go to FR. If the treatment is not
causally related, meanwhile, the bills (under case law) are the subject of a denial.
Act 44, in short, deleted the prohibition on supersedeas on medical, but the law hardly
invested the WCJ with such power. At the same time, the law erected a definitive scheme of
how medical disputes are to be handled. Except for de novo review of UR, the legislature
wanted the WCJ out of the medical management business. The judge should not be placed back
into the scheme twenty years later by the elevation of dicta into doctrine.
5. William H. Owen, Racketeering and Workers’ Compensation: Why
RICO Trumps the Exclusive Remedy, 46 TORT TRIAL & INSURANCE
PRACTICE LAW JOURNAL 783 (2011).
Workers’ compensation claimants in Michigan have tried to sue their
employers, TPA’s, and IME physicians under the Racketeer Influenced and
Corrupt Organization Act (RICO). The typical allegation is that the employer
deliberately selected unqualified doctors to provide erroneous medical opinions that would
support fraudulent denials of workers' compensation benefits.
The most widely-known case is Brown v. Cassens Transportation, 2010 U.S. Dist.
LEXIS 101660 (E.D. Mich. 2010) [latest citation]. In that long-saga of a case, the court of
appeals held in 2005 that such a claim was not reverse-preempted by the McCarran-Ferguson
Act (which leaves regulation of insurance to the states), and could proceed, but since that time
the case has been dismissed on the alternative grounds of the exclusive remedy (2010). In the
course of 2011, two further cases filed under the auspices of RICO were also dismissed. See
Lewis v. Drouillard, 788 F. Supp.2d 567 (E.D. Mich. 2011); Brown v. Ajax Paving Indus., 773 F.
Supp. 2d 727 (E.D. Mich. 2011).
Though the RICO remedy has thus run into stiff resistance, this article argues vigorously
that the exclusive remedy should not bar such an action. He asserts, among other things, that
federal law can and should preempt state workers’ compensation acts. He further argues that
recognizing the action would leverage employers and insurers into more principled claims
adjusting, as they would not be tempted, for fear of lawsuit, to arbitrarily deny claims. He
anticipates and rejects the “opening-of-the-floodgates” argument, as a special set of
circumstances (which he describes nicely) must be identified and pleaded before the plaintiff
would ever be able to state a RICO cause of action.
Reader friendly, beautifully written, and flawlessly edited, this educational article is
surely one of the best law review articles on workers’ compensation for 2011.
29

6. David B. Torrey, Reflections of a Jurist on the Durability of
Workers’ Compensation Law Against its Adversaries, in WORKERS’
COMPENSATION CENTENNIAL COMMEMORATIVE VOLUME:
REFLECTIONS ON THE HISTORY AND DEVELOPMENT OF WORKERS'
COMPENSATION IN THE UNITED STATES (IAIABC 2011).
Workers’ compensation has, over the past century, shown remarkable durability. This
has been so despite the existence of many adversaries. In this essay, the author identifies these
adversaries and their specific briefs against the system. This article then posits why workers’
compensation has, in spite of these enemies, endured.
The original adversaries were those who argued that workers’ compensation was, with its
operative principle of no-fault liability, unconstitutional. In the present day, the principal
adversaries are those who argue for federalization of the system to promote parity and the more
efficient interface of employment laws; those who argue that workplace safety is better promoted
by strengthening OSHA – and expansion or restoration of tort liability; those who believe that
workers’ compensation promotes disability and an “illness culture”; and those in the community
and media who have encountered the system and had an unsatisfactory experience or discerned
imperfection.
This essay submits that, despite these adversaries, and their at-time justified critiques,
workers’ compensation continues to serve its century-old purposes of benefiting employers and
employees, and in promoting workplace safety. Employers obtain the benefit of immunity from
tort liability and unpredictable damages. Injured workers, many or most of whom would have no
basis for a civil suit, receive wage-loss replacement and medical treatment. Workplace safety,
finally, is enhanced in light of the financial incentives of the program, undergirded as it is by
mandatory insurance and experience rating.
7. David B. Torrey, The Intersection of Workplace Safety and
Workers’ Compensation, 39 LABOR AND EMPLOYMENT LAW 7
(American Bar Association, Summer 2011).
When workers’ compensation was introduced in the early part
of the 20 th century, many, if not most, believed that workplace injuries
and deaths, then a ubiquitous feature of industry, were inevitable. Thus, workers’ compensation
was more remedy for social ill than device to promote safety. Still, the idea that experience
rating of employers’ workers’ compensation insurance premiums would leverage employers to
safe practices has been current from the beginning. Further, the introduction of workers’
compensation led to industry’s wide employment of safety engineers and the growth of
occupational medicine as a field. As discussed elsewhere in this newsletter, further, progressives
in Wisconsin were exuberant in their efforts to design a holistic program that administered
workers’ compensation law right along with safety code development and factory inspection.
In this article, the author discusses these and other examples of the intersection of
workplace safety and workers’ compensation. This issue of the LEL Quarterly (Summer 2011)
also features an historical article about the Triangle Shirtwaist Fire (upon the 100 th anniversary
30

of the disaster) and three essays in commemoration of the 40 th anniversary of OSHA. The essays
are authored by representatives of labor, government, and employers.
8. David B. Torrey, Master or Chancellor? The Workers’
Compensation Judge and Adjudicatory Power, 30 JOURNAL OF THE
NATIONAL ASSOCIATION OF ADMINISTRATIVE LAW JUDGES ___
(2012). �
This article is a 50-state survey, analysis, and commentary on
the various approaches states take, and have taken in the past, with regard to the fact-finding in
contested workers’ compensation cases.
The author begins by identifying the basic models. The first is what Larson has referred
to as the “orthodox” rule. Under this process, the WCJ is in effect a master for the Board or
Commission, which reserves the right to make final fact-findings. They do so typically on a
“cold record.” (California and New York are examples.) A century ago, when workers’
compensation was first introduced, this was, for the most part, the universal model. The second
approach, which is still the minority rule, is for the WCJ to have final fact-finding power
(Pennsylvania and Kentucky are examples.) In these states, intra-agency review follows, based
on substantial evidence or a similar standard. A third approach is for the WCJ to have final factfinding
power, with the appeal, based on substantial evidence, taken directly to true judicial
review. (Florida and Montana are examples.) Two states, meanwhile, Alabama and Tennessee,
entertain the litigation of contested cases in civil court. Even here, however, a plain distinction
exists. In Alabama, the trial judge is the final fact-finder, whereas in Tennessee the appellate
courts reserve the right to reassess credibility and change the facts.
The article includes the following quick-reference table:
Majority and “Orthodox” Rule:
Board, Commission, or judicial branch
is final fact-finder
Minority Rule:
WCJ is final fact-finder;
Board, Commission, or judicial branch
exercises appellate review or the like
States where workers’ compensation cases
are litigated in civil court (bench trials)
States where appeal from agency adjudication
may involve jury trial
States where appellate court reserves right to
reassess credibility
States where workers’ compensation disputes
are addressed in a judicial branch workers’
compensation court
31
AR, CA, GA, HI, ID, IL, IN, IO, KS, MD, MS,
MO, NV, NH, NY, ND, NC, OH, OR, SC, SD,
UT, VT, VA, WA, WI
AK, AZ, CO, CN, DE, FL, KY, LO, ME, MA,
MI, MN, MT, NE, NJ, NM, OK, PA, RI, TX,
WV, WY, DC, LHWCA
AL, TN
MD, OH, TX, VT, WA
SD, TN
NE, RI, OK
�
The author’s principal research assistant was Mark Cowger, Esq., who is now an associate of Post & Schell,
Lancaster, PA office.

Treating the history of fact-finding in the system, the author discusses the early
constitutional challenges to jury trial abolition. Such abolitions usually attended enactment of
workers’ compensation laws. The U.S. Supreme Court promptly held that a jury trial was not
required under the federal constitution, but questions remained in a number of states. Of interest
is that in five states a jury trial (usually limited in scope) is still available.
Treating the nature of the WCJ decision, meanwhile, the author observes that the WCJ
decision is, unlike many administrative law adjudications, “judicial,” and not “institutional,” in
nature. This fact, of course, recalls Larson’s memorable declaration that, “in the spectrum of
administrative agencies … the compensation commission … while deciding controverted claims
… is as far towards the judicial end of the spectrum as it is possible to go without being an
outright court.”
The author then seeks to account for the slow trend away from the orthodox rule towards
the minority rule, such as that which prevails in Pennsylvania. He provides a short history and
background of the change for each of the evolved states.
The author concludes that the evolving tendency over the years is, indeed, for legislatures
to prefer the first level hearing officer in such role. Of course, this preference echoes the
common law, which generally calls for deference to the fact-findings of the individual who heard
the witnesses and assessed their demeanor. This policy may be seen at work in the trend to make
the first-level hearing officer the final fact-finder. Still, this evolving legislative preference
exists mainly because finality at the first level of adjudication is thought to enhance efficiency in
the litigation of contested cases. In a number of jurisdictions, meanwhile, including
Pennsylvania and the Longshore Act, establishing the judge as fact-finder was part of a general
restructuring of the administrative agency responsible for enforcing the law. In still others, the
change was effected as part of the most fundamental institutional reform: changing the forum for
contested cases from civil court to an administrative forum.
The author also reviews the majority of states that hew to the orthodox rule. A key
inquiry is whether the Board or Commission in such states actually changes the fact-findings
with any frequency, and under what circumstances. A number of commissions are said to revisit
credibility with some regularity. Illinois, Kansas, Mississippi, and North Carolina are perhaps
examples. In other states, the commission is said to show more forbearance. California,
Missouri, Oregon, and Virginia seem to be in this category.
Of note is that many commissions are less willing to defer to a first-level fact finder when
the issue is not live-witness credibility but, instead, credibility of a witnesses who have testified
by deposition. This is particularly so in the case of expert witnesses. Boards and even courts
(Missouri and Tennessee, for example), may believe that they are in just as good a position in
this context to judge credibility as is the WCJ.
The author treats specially the Wisconsin approach, which is remarkable for its
significant nod towards due process. In this regard, if the commission has concerns over the
credibility of a witness, it must, prior to its changing of a credibility-based finding, convene a
“credibility conference” with the ALJ who actually heard the witness. Further, to change such
32

credibility determinations, the commission must set forth reasons for doing so.
The author also discusses the traditional, though not universal, rule that a request for
review of the WCJ’s decision operates to stay, automatically, the effect of the decision or
recommended decision. In the present day, many states, chiefly those abiding by the orthodox
rule, provide for an automatic stay. This is, however, hardly an ironclad rule. For example, a
request for review or appeal in California and Washington does not result in an automatic stay.
Further, in some states where the WCJ is the final fact-finder, his or her order is subject to a stay
pending review or appeal. Connecticut and Kentucky are examples.
In the final sections of the article, the author discusses the challenges that are posed in the
slow trend towards making the WCJ the final fact-finder. The author is generally persuaded that
the values of efficiency, accuracy, independence of judging, and transparency make this
development a positive one. Still, an appropriate structure must be in place to ensure
accountability. The traditional protection of appeal and review is, of course, the primary key to
ensuring judicial responsibility. Still, WCJ accountability via (1) careful assessment in the
original hiring or appointment, (2) ongoing performance evaluations, (3) strict ethical codes, and
(4) reasoned decision requirements, are also essential.
DIGEST OF CASES
~ LATE ARRIVALS! ~
Zuchelli v. WCAB (IUP), ___ A.3d ___ (Pa. Commw., filed Oct. 12, 2011, ordered
reported, Jan. 18, 2012) (WCJ and Board did not commit error in concluding that
claimant had failed to demonstrate medical causation in her case, particularly where
no obvious causal connection existed between injury and pathology and WCJ
credited employer’s physician; further, employer’s timely issuance of a “Box 4”
NCD acknowledging a work injury, but disputing the claimant’s disability, was
proper as the claimant admittedly returned to work after the incident).
City of Pittsburgh v. WCAB (Marinack), ___ A.3d ___ (Pa. Commw., filed February
7, 2012) (WCJ committed error in suspending claimant’s benefits on voluntary
withdrawal from workplace theory; court applied Robinson case “totality of the
circumstances”).
Case: Allen v. WCAB (Delaware County SPCA)
Court/Docket/Date Filed/Judge: Pa. Commw. 1170 C.D. 2011, filed December 29, 2011,
Friedman, S.J.
Type of Case: Reinstatement of Benefits – Fault – Worsening of Condition – Bufford Case
Issue or Issues: Did the WCJ permissibly reinstate claimant’s benefits as of the date he proved a
worsening of condition, in the wake of a suspension of benefits attended by his voluntary departure
from his light duty?
33

Claimant, Allen, suffered an injury arising in the course of his employment on March 24,
2007. At the time, he was working as a kennel attendant. He injured his right shoulder. Despite the
injury, claimant continued to work, and experienced no wage loss. Some four months later,
however, on January 3, 2008, claimant quit his job because of the “deterioration of the relationship
between the claimant and upper management and the claimant’s continuing treatment….”
Claimant then filed a claim petition. The WCJ granted the petition, in an order which at
once awarded benefits and then suspended them as of the January 3, 2008 date when he voluntarily
quit his job. However, the WCJ did direct that claimant’s benefits be paid at TTD as of January 29,
2008. In this regard, claimant had presented the credible testimony of a Dr. Murphy, who found
that claimant’s condition had worsened and that he was disabled from his pre-injury job as of that
date. The Board, however, reversed the reinstatement of benefits, apparently “because of claimant’s
quit on January 3, 2008, for reasons unrelated to his work injury.”
The court reinstated the WCJ’s award. The WCJ correctly suspended benefits as of January
3, 2008 because of the voluntary quit. However, as claimant had shown a worsening of condition as
of January 29, 2008, benefits were legitimately reinstated. According to the court, the law is as
follows: “In cases involving a reinstatement of benefits after a suspension for failure to pursue an
available job in good faith, the claimant must prove a change in his or her condition such that he or
she could no longer perform the job that served as the basis for the suspension.” Slip opinion at 4
(citing Liggett v. WCAB (SEPTA), 669 A.2d 513 (Pa. Commw. 1996)). The court cited, though it
did not directly apply, the Supreme Court case Bufford v. WCAB (North American Telecom), 2 A.3d
548 (Pa. 2010).
Editor’s Note (Brad Andreen): The court noted that the claimant’s benefits were suspended as
he, in effect, failed to pursue an available job in good faith. Thus, while not explicitly stated in
the decision, it would appear that the employer may not have to prove job availability in such an
instance if the claimant’s condition would improve to the point where he could return back to
work performing the job he voluntarily left. This is so as the employer is not required to
reestablish job availability following a period of TTD, where the employee originally refused a
job offer in bad faith. See J.A. Jones Constr. Co. v. WCAB (Nelson), 784 A.2d 280 (Pa. Cmwlth
2001).
Case: Bemis v. WCAB (Perkiomen Grille Corp.)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 2687 C.D. 2010, filed December 27, 2011,
McCullough, J.
Type of Case: Medical Evidence – Legal Competence of Medical Evidence – Heart Attack Case –
Review of Entire Opinion
Issue or Issues: Did the WCJ and Board commit error in concluding that claimant’s expert was
equivocal in his opinion on causation?
The claimant, Bemis, was employed as a chef and manager for the employer, a restaurant.
He had two episodes of acute chest pain. The first occurred on April 11, 2008 as he was moving
kegs of beer. The second occurred three days later when he was lifting a heavy pot of chili. He did
not have such episodes outside of work. When he finally sought out a physician, he learned that he
had suffered a heart attack. On May 28, 2008, claimant underwent quintuple bypass surgery.
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In August 2008, claimant filed a claim petition. Employer defended on the grounds that no
work causation existed.
In the proceedings which followed, claimant offered the expert testimony of Dr. Skorinko.
In the course of his deposition, the doctor vouched for causation between work activities and heart
attack. Still, at times he seemed less than certain. The WCJ, ultimately, found that Dr. Skorinko
was “credible” in his opinion, but that in the end he was equivocal and uncertain. Thus, the WCJ
dismissed the petition because claimant had proffered a legally insufficient expert opinion. The
Appeal Board affirmed.
Commonwealth Court reversed. Citing a renowned 1983 case, the court reminded the
parties that “the law does not require every utterance which escapes the lips of a medical witness on
a medical subject to be certain, positive, and without reservation or exception.” Slip opinion at 7
(quoting Philadelphia College of Osteopathic Medicine v. WCAB (Lucas), 465 A.2d 132 (Pa.
Commw. 1983)). The court also pointed out that in making a determination of whether an opinion
is unequivocal or equivocal, “we examine the testimony of the witness as a whole and do not take
words or phrases out of context.”
In the present case, the court undertook its own review of the doctor’s testimony. It was not
persuaded by the WCJ and Board that the doctor had used any words of fatal equivocation. For
example, the doctor used the phrases “certainly could” and “very likely,” in the course of vouching
for causation. According to the court, “while these statements appear to render Dr. Skorinko’s
testimony equivocal, a review of [his] entire testimony as a whole does not support such a
conclusion.”
To the contrary, at other points in his opinion, the doctor actually explained the
pathophysiology which supported the idea that causation existed in the case. The doctor made clear
that claimant already had significant narrowing of the arteries, and that the two acts of exertion
noted above “caused this gentleman to have further chest discomfort and ultimately led to his
hospitalization.” The doctor had insisted that “the demand of the exertion exceeded the supply of
blood that was available,” and this resulted in the chest discomfort and heart attack. The doctor,
similarly, had explained “that the stress of the lifting caused an irritation of these [clogged] arteries,
resulting in an increased narrowing and decreased blood flow to claimant’s heart.” Finally, the
doctor had pointed out that as far as he knew the claimant had not suffered similar symptoms,
particularly when “he worked out in the mornings” of the days of the two work exertions noted
above.
Case: City of Philadelphia v. WCAB (Whaley-Campbell)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 981 C.D. 2011, filed December 23, 2011,
Friedman, S.J.
Type of Case: Termination of Benefits – Eye Injury – Baxter Case
Issue or Issues: Did the WCJ commit error in denying the employer’s termination petition?
The claimant, Whaley-Campbell, suffered an injury arising in the course of her employment
in 1992. In this regard, a WCJ, in 1996, granted claimant’s original claim petition alleging a chronic
eye condition from exposure to air pollution at work. The specific malady awarded was a constant
35

urning of the eyes, frequent mucus discharge, eyelid swelling and eyelid closing, resulting in
severe pain and reduced vision.
Thirteen years passed. Then, in 2009, employer sought termination of benefits. Employer,
in this regard, utilized the expert testimony of Dr. Bedrossian. This ophthalmologist opined that
claimant was fully recovered. True, claimant had recurrent episodes of conjunctivitis that were
relieved by treatment. He apparently reasoned that had claimant not fully recovered, the same
“episodes would be constant.”
The doctor also noted, in forming his opinion, that on one occasion when claimant went
away on a vacation, her symptoms were reduced, “indicating that her symptoms are related to her
home environment ….” The doctor also noted, in forming his opinion, that claimant’s symptoms
were “seasonal.” In this regard, claimant admitted that she had significant allergies since the time
she was born. In Dr. Bedrossian’s opinion, “claimant’s recurrent episodes were due to claimant’s
baseline atopic allergic nature, a condition whereby certain irritants such as dust, dirt, pollen, grass,
cat hair or dog hair caused flare-ups of her eye symptoms.”
Claimant, meanwhile, presented her own expert. He opined that claimant was not fully
recovered.
The WCJ denied the petition. The Appeal Board affirmed.
In Commonwealth Court, employer continued to argue that, in a situation such as this,
termination of benefits was proper. Employer cited the Supreme Court case Bethlehem Steel Corp.
v. WCAB (Baxter), 708 A.2d 801 (Pa. 1998). The WCJ and Board had rejected this argument,
pointing out that while claimant had always had allergies, she never had an allergic eye condition
until her work exposure and injury. Commonwealth Court agreed.
In Baxter, the claimant suffered from pre-existing asthma, and experienced breathing
problems when he was exposed to fumes. In that case, the Supreme Court limited the claimant’s
benefits for these temporary aggravations. See id. (claimant is not “entitled to receive workers’
compensation benefits for a pre-existing non-work related condition when the claimant has fully
recovered from any work-related injury caused by an aggravation of that condition.”). The
Supreme Court in that case did state, however, “that the claimant would have been entitled to
benefits if he had shown that his exposure to paint fumes while working for the employer had
resulted in an ongoing condition that affected his pulmonary capacity.”
Precisely such an ongoing condition had been demonstrated by the claimant in the present
case. This factor distinguished Baxter: “Here, although claimant had lifelong allergies, claimant
did not have chronic conjunctivitis until she began to work for employer.” As far as the court was
concerned, the claimant’s exposure “to her work environment resulted in an ongoing condition that
affected her eyes.”
Case: School District of Philadelphia v. WCAB (Davis)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 166 C.D. 2011, filed December 22, 2011,
Brobson, J.
Type of Case: Act 44 – Pension Offset – Defined Benefit Pension – Interpretation of Harvey Case
36

Issue or Issues: Did the WCJ and Board commit error in disallowing employer a pension credit?
Claimant, Davis, suffered an injury arising in the course of her employment on September 9,
2003. She was paid benefits voluntarily under an NCP. A few months after the accident, while
claimant was receiving TTD, she retired and apparently started receiving a pension.
In December 2007, employer filed a review benefit offset petition, seeking an offset
reflecting claimant’s receipt of pension benefits. Before the WCJ, employer submitted the
testimony of Ms. Cranna, an actuary who provided services to the Pennsylvania School Employees
Retirement System (PSERS). The claimant did not submit any rebuttal actuary.
In the course of the testimony, Ms. Cranna was subject to cross examination, in which she
acknowledged that when certain employees quit the school system before they are vested, “those
employees receive their contributions plus a four percent statutorily mandated return on their
contributions.” Ms. Cranna admitted that any such return on contributions above the four percent
(4%) statutory return remained, commingled, in the Fund.
In the end, the WCJ denied employer any offset. He rejected Ms. Cranna’s testimony as
incredible because of the admission noted above. The WCJ opined that Ms. Cranna’s testimony
“that no effort was made to isolate the portion of [the Fund] funded by investment growth on the
contributions of non-vested employees compels rejection of her conclusion that the formula used by
PSERS accurately establishes employer’s contributions for offset.” The Appeal Board affirmed.
Commonwealth Court has reversed. According to the court, “At issue in this case is the
question of whether the isolated admissions of Ms. Cranna …, upon which the WCJ relied …, are
relevant under Section 204(a) of the Act and the decisions of this Court and our Supreme Court
which have interpreted that provision.”
According to the court, they were not. The critical precedent, in this regard, was DPW v.
WCAB (Harvey), 993 A.2d 270 (Pa. Supreme 2010). That case, of course, held that “actuarial
assessment represented the most reasonable approach to quantifying employer funding pertaining to
individual defined-benefit pensions.” The Supreme Court, the new opinion states, “focused on the
reliance by the employer’s experts on a foundation premised on prediction rather than certainty ….”
The Harvey case also “recognizes the imprecision inherent in the analysis.”
With these thoughts in mind, the court agreed with employer’s position that the WCJ
“veered from the essence of the controlling decisional law by rejecting actuarial testimony he
deemed to be credible … in favor of the view that an employer must demonstrate exact amounts of
its contributions to a pension fund.” The employer, in this vein, asserted that the “WCJ’s rejection
of its witness’s testimony results in a practical rejection of this Court’s decisions holding that
actuarial proof of the extent of employer funding, rather than proof of actual contributions, is
sufficient.”
As foreshadowed above, the court agreed with this analysis. The approach taken by Ms.
Cranna was consistent with that endorsed by the Supreme Court in Harvey: “Thus, we conclude
that the WCJ erred in basing his conclusion that Employer failed to satisfy its burden to prove its
contribution to claimant’s pension on Ms. Cranna’s testimony that returns of four percent remain in
the Fund.”
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Judge Kelley, dissenting, opined that the WCJ was the arbiter of credibility and could have
rejected the actuary’s testimony on grounds of lack of credibility.
Case: Comcast Corp. v. WCAB (Jones)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 2208 C.D.2010, filed December 12, 2011,
Brobson, J. (en banc)
Type of Case: Funds – Supersedeas Fund – Petition to Set Aside NCP – Home Insurance (1986)
Overruled
Issue or Issues: Was an employer entitled to Supersedeas Fund recovery, in a case where
supersedeas had been denied on a petition to set aside NCP, but where the Judge in the end ruled in
employer’s favor?
A worker, Jones, alleged a work injury in 2005. He was paid benefits voluntarily under an
NCP. After two years, employer filed a petition seeking set aside of the NCP. Employer filed this
petition in February 2007, and followed up with a straight termination petition in December 2007.
Ultimately, however, the parties entered into a C&R agreement. The parties compromised all future
payments in the amount of $20,000.00. The agreement noted, however, that $50,562.60 had
previously been paid. As part of the C&R agreement, the parties, with the Judge assenting, agreed
“that employer’s review petition and termination petition remained pending for disposition.”
Shortly thereafter, the Judge granted the review petition. She set aside the NCP, reasoning
that claimant’s conduct “in concealing relevant medical information ‘taints the compensation
agreement and legitimately calls into question whether the claimant’s disability is work-related.’”
The Judge also ruled that, assuming the NCP had been correctly issued, claimant had fully
recovered as of November 21, 2007.
In light of this final decision in its favor, employer sought Supersedeas Fund reimbursement.
This was opposed by the Commonwealth. A new WCJ, hearing the reimbursement request,
allowed reimbursement only in part. He allowed reimbursement for the period of time from the
supersedeas request and final order on the straight termination petition. However, he refused
reimbursement on the petition to set aside the NCP. In so ruling, he relied upon the precedent Home
Insurance Company v. WCAB (BWC), 510 A.2d 1280 (Pa. Commw. 1986). The Appeal Board
affirmed.
Commonwealth Court, however, reversed. In doing so, it overruled its Home Insurance
Company precedent. The reasoning of Home Insurance Company “rel[ied] on the truism that
compensation is ‘payable’ under an NCP until the NCP is set aside.” Thus, the prior thinking was
that the critical criterion of Supersedeas Fund recovery, that is, that a final order indicates that
compensation was not in fact payable, was not met in the set aside context. The court, however,
rejected this type of thinking: “But the same is true with respect to modifications, suspensions, and
terminations – i.e., compensation at the established level is due and ‘payable’ until relief is granted.”
The court continued:
Yet our precedent would allow employers to succeed in modification, suspension, or
termination petitions due to a change in the claimant’s status to obtain
reimbursement from the Fund as of the date the employer makes its supersedeas
request or before benefits are actually modified, suspended or terminated, i.e., while
38

they are still “payable.” We can find no basis in our precedent for this inconsistency
in treatment, and while the Commonwealth relies on our precedent, it does not offer
a substantive defense of the precedent. Such disparate treatment is simply not
grounded in the statutory language.
Slip opinion at 13-14.
Editor’s Note: The court also recognized, of course, the principle of stare decisis. Needless to say,
the Commonwealth was arguing for this concept’s application as it invoked Home Insurance. The
court pointed out, however, that the Supreme Court has “cautioned jurists not to adhere blindly to
precedent where doing so would perpetuate error.” This would be the case were it to continue to
recognize and enforce the Home Insurance case.
Case: Boyertown Foundry v. WCAB (Martinez)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1273 C.D. 2011, filed December 8, 2011,
Friedman, J.
Type of Case: Proceedings to Secure Compensation – Appeal and Order – Phrase, “With
Prejudice”
Issue or Issues: Did the WCJ legitimately include the phrase, “denied with prejudice,” when he
denied and dismissed a fully litigated claim petition?
Claimant, Martinez, alleged that he sustained a left knee injury arising in the course of his
employment. Employer denied such allegation. In the course of the ensuing claim petition,
employer presented a medical expert opinion that claimant did not suffer any such injury. In the
end, the WCJ denied the claim petition. As he denied and dismissed the petition, he added the
phrase “with prejudice.” On appeal, the Board affirmed, but modified the decision so that it was
denied and dismissed “without prejudice.”
Commonwealth Court reversed and restored the WCJ’s order in full. The court agreed with
employer that the Board “should not have modified the WCJ’s order….” According to the court:
We reach this conclusion because an order that is entered “without prejudice”
signif[ies] that further proceedings [are] contemplated,” …, which is clearly not the
case here.
As previously explained, the WCJ dismissed the claimant’s claim petition after
determining that claimant did not meet either his burden of production or persuasion.
The WCJ’s decision and order thus constituted a final adjudication on the merits, to
which the doctrines of res judicata and collateral estoppel apply. …Moreover,
while the WCJ included the words “with prejudice” when he denied and dismissed
claimant’s claim petition, a review of the Special Rules of Administrative Practice &
Procedure Before [WCJs] reveals that such language was mere surplusage. [The
[implicated regulation] … specifically provides that, with limited exceptions,
including appeal, “[t]he decision of the judge will be a final order…” Therefore,
regardless of whether the WCJ’s order specifically dismissed claimant’s claim
petition with prejudice, claimant is now precluded from raising the same cause of
39

action or the same previously litigated and validly determined issues of law or fact
again.
Slip opinion at 4-5.
Case: Namani v. WCAB (A. Duie Pyle)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 552 C.D. 2011, filed December 6, 2011, Cohn
Jubelirer, J.
Type of Case: Proceedings to Secure Compensation – Reinstatement Petition – Collateral
Estoppel – Application of Weney Case
Issue or Issues: Did the WCJ commit error in dismissing claimant’s petition on collateral estoppel
grounds?
The claimant, Namani, suffered an injury arising in the course of his employment on
December 23, 2004. He was paid benefits voluntarily under an NCP. The NCP described the injury
as “left arm and left hand contusions.”
Two years later, after litigation, a WCJ granted termination effective June 21, 2005. This
order became final through a Commonwealth Court affirmance on December 21, 2007.
A year passed. Then, in November 2008, claimant filed two petitions. The first was a
reinstatement petition alleging a worsening of condition, and the second was a claim petition
alleging that he originally suffered, not only the contusions noted above, but a number of serious
neck conditions and RSD. Among other things, as to this latter allegation, claimant maintained that
he neither knew or should have known of these diagnoses until after the court affirmed the
termination order. In light of these latter allegations, claimant’s third petition sought to review the
NCP for an incorrect description, to wit, to add the serious neck injuries and the RSD.
The WCJ denied and dismissed all petitions. The Appeal Board affirmed.
Commonwealth Court likewise affirmed. On appeal, claimant assailed the WCJ’s reasoning
that his expert, in testifying about claimant’s condition, had been shown to know nothing of the
prior NCP and the adjudication which found a full recovery. The court, however, found no error.
Indeed, the WCJ was correct in rejecting the expert as he “essentially testified that there has been no
change in claimant’s condition since December 23, 2004, which contradicts the WCJ’s November
2006 decision granting employer’s termination petition based on a finding of full recovery.” The
court explained that this physician’s opinions “on causation are contrary to the established facts of
record and are based on inaccuracies.” Such opinions are legally incompetent. (Citing National
Fiberstock Corporation v. WCAB (Grahl), 955 A.2d 1057, 1062 (Pa. Commw. 2008)).
The court also agreed that the WCJ was correct in finding that claimant was attempting to
relitigate the termination proceedings, as he sought to advance pre-termination order medical tests.
In this regard, the Judge had found that these test results were available to claimant during the prior
proceedings “and it was not appropriate to pursue his claim in a ‘piece-meal’ fashion.” Indeed, this
type of reasoning had been endorsed by the court in 2008 in Weney v. WCAB (Mac Sprinkler
Systems, Inc.), 960 A.2d 949 (Pa. Commw. 2008). The court admonished, “the issue of whether
40

claimant suffered a cervical injury as a result of his … work-related accident should have been
litigated during the termination proceedings.”
Case: J.D. Landscaping v. WCAB (Heffernan)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 1866 C.D. 2010, filed December 2, 2011,
Brobson, J.
Type of Case: Causation – Import of Utilization Review Determination – Death Case – Death via
Overdose of Drugs Prescribed for Work Injury
Issue or Issues: Did the WCJ and Board commit error in awarding a worker’s widow benefits?
A worker, Heffernan, suffered an injury arising in the course of his employment on July 12,
2002. He injured his back in an accident ultimately shown to have involved a herniated disc at L4-
L5. He was paid benefits voluntarily under an NCP.
Some four years later, in early 2006, employer sought utilization review (UR) of medication
therapy by Dr. George Rodriguez. On June 4, 2007, a UR determination, authored by Dr. Kaplan,
concluded that the treatment, including prescriptions for Sonata, Fentanyl, Oxycodone, Sentora, and
Lyrica, was neither reasonable nor necessary.
Within just a few days, Mr. Heffernan found his prescriptions rejected by the local
pharmacy, which had apparently learned that the UR had relieved the insurance company of
liability. At that time, claimant was seen by the doctor’s sister, who was also a physician, and she
prescribed medications including Fentanyl patches. Heffernan filled the prescriptions.
The prescriptions from Dr. Daisy Rodriquez, were dated June 16, 2007. After the worker
received the Fentanyl transdermal delivery patches, he was found dead on June 18, 2007 “with a
box of Fentanyl patches in his hand and pink froth coming from his mouth ….” Through autopsy,
and review of toxicology reports, the uncontested conclusion was “Fentanyl alone was sufficient to
account for death, in even a tolerant user, as decedent … certainly was. Decedent died from drug
intoxication due to an overdose of Fentanyl prescribed for his work injury.”
The widow then filed a fatal claim petition. The WCJ granted the petition, finding that
Heffernan’s “death was causally related to an accidental overdose of pain medications, primarily
Fentanyl based medications, which were prescribed for decedent’s work-related back injury.” The
Appeal Board affirmed.
Of course, the law applicable in general is clear: “Where a decedent’s death results from
medical treatment received for a work-related injury, the law regards the decedent’s death as having
been caused by the work-related injury.” Slip opinion at 13 (citing Powell v. Sacred Heart Hospital,
514 A.2d 241 (Pa. Commw. 1986)). The court rejected employer’s argument, which had been
advanced from the outset, “that there can be no causal relationship between a decedent’s death and a
work-related injury where a decedent died as a result of medical treatment deemed by a UR
determination to be neither reasonable or necessary.” Slip opinion at 14.
As far as the court was concerned, however, the employer had misconstrued the import of a
UR determination. Under the statute and regulations, “the issue of causation is separate and distinct
from the reasonableness and necessity of medical treatment.” Indeed, in an earlier precedent,
41

involving a termination petition, the court had held the same way. See Corcoran v. WCAB (Capital
Cities), 725 A.2d 868 (Pa. Commw. 1999).
Editor’s Note (Norm Dastur, Esq.): This decision is also consistent with the Commonwealth
Court’s prior holding in Brockway v. WCAB (Collins), 792 A.2d 631 (Pa. Cmwlth. 2002). In
Collins, a claimant sought reinstatement following a surgery which rendered her totally disabled.
The doctor who performed the surgery had previously been subject to an unfavorable UR
determination (and subsequent adjudication in a UR appeal). The Commonwealth Court held
that the claimant was entitled to a reinstatement of benefits. It reasoned, “[I]t is well settled that
a claimant may recover workers’ compensation benefits for an injury or illness that results from
unnecessary or negligent medical treatment.” Collins, 792 A.2d at 635.
Case: Bucceri v. WCAB (Freightcar America Corp.)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 2021 C.D. 2010, filed November 21, 2011,
McCullough, J.
Type of Case: Average Weekly Wage – Inclusions or Exclusions – Unemployment Compensation
Benefits – “SUB” Payments
Issue or Issues: Did the Appeal Board commit error in excluding from the calculation of the
claimant’s average weekly wage “supplemental unemployment” (SUB) benefits that claimant had
received under his collective bargaining agreement?
Claimant, Bucceri, suffered an injury arising from the course of his employment on June 4,
2002. He hurt his left knee. Claimant received benefits voluntarily under an NCP. The employer
accorded to claimant an average weekly wage of $319.36 and a corresponding TTD rate of $287.42.
Five years passed. Then, claimant filed a review petition, maintaining that his average
weekly wage (AWW) was calculated incorrectly. Claimant specifically asserted that two types of
payments he had received in the four quarters prior to his injury should have been included. These
were supplemental unemployment benefits (SUB) and unemployment compensation benefits he had
received during a period of layoff.
The WCJ ruled in claimant’s favor and included both in the AWW. The Board, however,
reversed. The Board observed that the Supreme Court had excluded unemployment compensation
benefits from the average weekly wage. Reifsnyder v. WCAB (Dana Corp.), 883 A.2d 537 (Pa.
2005). The Board also excluded the SUB payments, on the reasoning that such payments “are
intended to be paid when an employee is no longer working for an employer….”
The court reversed in part. The court did agree that unemployment compensation benefits
are not includable. See Lenzi v. WCAB (Victor Paving), 29 A.3d 891 (Pa. Commw. 2011) (appeal
denied). However, the court held that SUB payments were properly includable. In this regard,
while the issue had not been specifically addressed before, the court had held in a different context
that certain SUB payments were “in the nature of wages.” The context in which this had been held
was “in determining an employer’s offset against workers’ compensation liability ….” (Citing
Dana Corp. v. WCAB (Beck), 718 A.2d 111 (Pa. Commw. 2001)). The court analogized SUB
payments to S&A benefits. According to the court, its precedent had already held that such
benefits, “received as compensation for days missed from work[,] are to be included in the
42

calculation” of the AWW. (Citing Shire v. WCAB (General Motors), 828 A.2d 441 (Pa. Commw.
2003)).
Editor’s Note I: The court’s opinion features an extensive footnote in which it quotes the
collective bargaining agreement so as to identify and define specifically SUB benefits. Among
other things, this footnote indicates that the employer “will pay any employee with five … or more
years of pension service at the time of layoff, $100.00 for each ‘waiting week’ before state
unemployment begins.” The agreement also provided, “SUB payments beyond the ‘waiting week’
will be available to employees with between ten … and sixteen … years of pension service at the
time of layoff” under further detailed formulas.
Editor’s Note II: In deciding the case, the court also applied the familiar rule of liberal
construction. According to the court, under this rule, “borderline interpretations of Section 309
must be construed in the injured party’s favor.” And, of course, the Supreme Court had held that
calculations are to be made while focusing on “the economic reality of a claimant’s recent preinjury
earning experience.” (Citing Triangle Building Center v. WCAB (Linch), 746 A.2d 1108 (Pa.
2000)).
Case: Bureau of Workers’ Compensation v. WCAB (Excalibur Insurance Management Service)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 376 C.D. 2011, filed November 17, 2011,
Butler, J.
Type of Case: Supersedeas Fund Reimbursement – Heart & Lung Benefits
Issue or Issues: Did the WCJ and Board commit error in allowing Supersedeas Fund
reimbursement relative to the claim of a police officer who had received Heart & Lung benefits?
A worker, Rittel, was employed as a police officer for the City of Wilkes-Barre. He suffered
an injury arising in the course of his employment on January 10, 2006. As a result, the City, which
was self-insured, recognized its workers’ compensation responsibilities. Although the opinion is
silent as to how the case was “adjusted” for workers’ compensation purposes, this liability was
recognized. However, as claimant was a police officer, he received salary continuance under the
Heart & Lung Act. See 53 P.S. § 637-638.
Eighteen months passed. Then, the City filed a termination petition. Supersedeas was
denied shortly thereafter. Roughly 18 months later, in May 2009, the WCJ granted the termination
petition. The City then sought Supersedeas Fund reimbursement. The Fund opposed the claim.
The WCJ and Board granted Supersedeas Fund recovery. In Commonwealth Court, the
Fund argued first that the WCJ and Board had no subject matter jurisdiction to adjudicate the City’s
request for Fund reimbursement “because claimant’s compensation was paid pursuant to the Heart
& Lung Act.” The Fund argued that case law holds that the workers’ compensation system “cannot
administer or adjudicate claims or remedies under the Heart & Lung Act…” The court rejected this
argument. Neither the Board nor the Judge attempted to adjudicate a Heart & Lung issue: “Rather,
both confined their decisions and orders to the Workers’ Compensation Act.” Further, the City did
not request Supersedeas Fund reimbursement for Heart & Lung benefits; it requested
reimbursement for workers’ compensation paid.
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The Fund’s second argument was that the evidence of record did not support the conclusion
that two-thirds of the monies paid to claimant “represented workers’ compensation benefits.” The
proof submitted to it, the Fund argued, showed nothing but “entirely Heart & Lung benefits and
consisted of full wages.”
As foreshadowed above, the court noted that the City was self-insured. This being the case,
precedent held that when an employer is self-insured, two-thirds of the monies claimant receives
represent workers’ compensation benefits. (Citing Wisnieski v. WCAB (City of Pittsburgh), 621
A.2d 111 (Pa. Commw. 1993)). The court pointed out that if the City had been insured by a third
party for workers’ compensation purposes, claimant would have received a check from the third
party insurance company which he then would have had to forward to the City. The court
explained, “in that scenario, had the insurance company requested and been denied supersedeas, it
would be entitled to Supersedeas Fund reimbursement. …In this case, Wilkes-Barre did not send
claimant an additional check, because claimant would then have been required to return it. That
should not, however, place Wilkes-Barre as the insurer, at a lesser advantage point than a thirdparty
insurer.” This having been said, the court held “that, unless there is evidence to the contrary,
as a matter of law, when an employer is self-insured for workers’ compensation purposes, and it is
required to pay Heart & Lung payments in addition to workers’ compensation benefits, two-thirds
of the amount paid automatically represents workers’ compensation benefits.”
Case: Argyle v. WCAB (John J. Kane McKeesport)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 43 C.D. 2011, filed September 2, 2011,
Brobson, J.
Type of Case: Proceedings to Secure Compensation – Collateral Estoppel – Specific Loss –
Worsening of Condition
Issue or Issues: Did the WCJ commit error in dismissing claimant’s modification petition?
Claimant, Argyle, suffered an injury arising in the course of his employment on March 31,
1993. At the time, he was a laborer with John J. Kane Center, an assisted living facility in
McKeesport. He was paid benefits voluntarily under an NCP which described the work-related
injury as “sprain, right wrist.” Following the injury, claimant underwent multiple medical
procedures for the wrist, including fusion.
He was off of work receiving TTD when, in November 1998, he filed for specific loss of the
right forearm and/or hand. The WCJ denied the petition, ruling that the claimant had failed to
establish a specific loss. The decision was issued in February 2000 (WCJ Torrey).
Eight years passed. Then, claimant filed to modify once again alleging, as before, a specific
loss. On this occasion, the petition was assigned to a different judge, WCJ Tobin. In the course of
this petition, claimant maintained that he had “absolutely no use” of the right hand, and that he had
had such chronic pain that he even tried to commit suicide shortly before the filing of the petition.
He also submitted the deposition of a physician, Dr. Swartz, who opined that the claimant had a
permanent loss of use of his upper extremity “for all practical intents and purposes, and more
specifically his hand and wrist.” The claimant also submitted the 2006 and 2007 reports of
Stephen M. Thomas, M.D., who performed IME’s on behalf of the employer. Dr. Thomas was
of the opinion that the claimant had a specific loss of his right wrist.
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The employer, meanwhile, presented an addendum report of Dr. Thomas in which he
clarified his opinion that the Claimant’s loss of use of his right wrist dated back to the January
12, 1995 wrist fusion surgery. Employer likewise submitted a deposition of Dr. Adelsheimer, who
had performed multiple examinations of claimant from 2000 to the present, and who opined that
Mr. Argyle’s “physical condition did not change significantly” during this period of time. He also
opined that his physical findings were consistent with those of another physician, whose opinions
had been credited by Judge Torrey in the course of the 1998 petition. Among other things, Dr.
Adelsheimer had also stated that the claimant’s grip strength testing “remained fairly constant over
the years.”
WCJ Tobin denied the petition, ruling that claimant had failed to meet his burden of
showing a specific loss. She credited Dr. Adelsheimer over Dr. Swartz, noting that the former was
in a better position given his multiple examinations over time. Judge Tobin also held that claimant
was collaterally estopped from arguing for a specific loss in light of credible evidence indicating no
change of condition from the time of the WCJ Torrey decision of 2000 to the present.
The Appeal Board affirmed, as has Commonwealth Court. The court, however, did not in
so many words apply the doctrine of collateral estoppel. Instead, the court first held that the Judge
was acting within her discretion in crediting Dr. Adelsheimer over Dr. Swartz. In addition, the
court noted that even had the judge rejected Dr. Adelsheimer’s testimony, claimant would not have
met his burden of proof. This was because the opinions of claimant’s expert regarding the specific
loss were not competent. As far as the court could tell, the claimant’s physicians ascribed the loss
of use of the right wrist back to the 1995 wrist fusion. These opinions “are directly contrary to a
fact established in WCJ Torrey’s February 8, 2000 decision ….”
Of course, where the “foundation for the medical evidence is contrary to the established
facts in the record, or is based on assumptions not in the record, the medical opinion is valueless and
not competent.” Slip opinion at 14 (quoting Indiana Floral Company v. WCAB (Brown), 793 A.2d
984 (Pa. Commw. 2002)).
Thirdly, claimant failed in any event to show any change of condition. Under the law, before
benefits can be modified, disability must have “increased, decreased, recurred, or has temporarily or
finally ceased ….” Section 413(a) of the Act, 77 P.S. § 772. See Lewis v. WCAB (Giles &
Ransome, Inc.), 919 A.2d 922 (Pa. 2000)). Here, “claimant, to succeed, had the burden to prove,
through the presentation of medical evidence, that his condition changed” after the 2000 decision.
The claimant had not met this burden. True, claimant testified that he was worse, but
“claimant’s testimony does not constitute medical evidence ….” (On the other hand, claimant’s
testimony about worsening of condition was not that strong either; claimant purportedly indicated
that there had been no change in his condition since he testified in 1998).
Case: Soja v. WCAB (Hillis-Carnes Engineering Associates)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 455 C.D. 2011, filed November 7, 2011,
Leavitt, J.
Type of Case: Reinstatement Petition – Burden of Proof – Import of Surveillance Evidence
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Issue or Issues: Did the WCJ commit error in suspending claimant’s benefits, after first ordering
their reinstatement, on the inference, based on surveillance evidence, that claimant was once again
fit for work?
Claimant, Soja, sustained an injury arising in the course of his employment in 2005. At the
time, he was employed as a manual laborer, and he had injured his back. Employer made payments
for this injury under an Agreement for Compensation. A year later, benefits were voluntarily
reinstated for an aggravation. Later that same year, while claimant was working for a new employer,
he was at home and suffered recurrent disabling symptoms. On this occasion, employer did not
voluntarily reinstate claimant’s benefits, and claimant filed a reinstatement petition.
In the course of the proceedings which followed, claimant depicted himself as extremely
debilitated. At the third hearing, claimant walked to and from the hearing “limping and leaning on a
cane.” However, employer submitted surveillance evidence showing claimant, later in the day,
indeed, directly after the hearing, “driving through an automotive salvage yard and vigorously
working on a car: Claimant lies on the ground to remove a part from the bottom of a van and places
a hand-jack under the van. After his friend changes the tire, claimant uses a wrench to tighten the
lug nuts on the tire. As he does so, claimant bends and twists his body. Claimant is seen jumping
into the back of his truck and throwing auto parts into it.”
There was no use of a cane.
The WCJ granted the reinstatement petition, but suspended them as of the date of the final
hearing, finding that “claimant failed to prove a continued inability to work as of the day of the
video.” The Appeal Board affirmed.
In Commonwealth Court, claimant argued that “compensation benefits cannot be suspended
on the basis of video surveillance.” The court, however, rejected this argument. True, surveillance
evidence alone is not sufficient to satisfy a party’s burden, but such evidence is admissible to help
establish facts. “Rather,” the court stated, “the video must be examined by a physician or a
vocational specialist who can offer evidence of what kind of jobs the claimant can do, other than his
pre-injury job. Likewise, where the employer has filed a termination or suspension petition, a video
will not be sufficient to satisfy the employer’s burden of proof.”
To reiterate, however, it is when an employer has the burden of proof in the suspension or
termination petition that video is inadequate evidence standing alone.
In the present case, in contrast, claimant had the burden of proof. Under the most recent
Supreme Court precedent, when a claimant files for reinstatement, “he needs to establish that ‘his or
her earning power is once again adversely affected by his or her disability, and that such disability is
a continuation of that which arose from his or her original claim.’” (Quoting Bufford v. WCAB
(North American Telecom), 2 A.3d 548 (Pa. 2010). In the present case, claimant did not meet this
burden of proof. This was so once the WCJ “concluded that claimant’s testimony that he continued
to suffer disabling pain as of April 24, 2008, was false.”
To reiterate, the court submitted “that it was claimant’s burden to prove that the pain has
persisted, not dissipated, through the pendency of the reinstatement proceeding.” The burden never
shifted to the employer in this situation: “Claimant argues that proof of disabling pain for a single
day [that is, the date when the Judge first concluded that a recurrent disability occurred], shifted the
46

urden to employer to prove a cessation of pain. Claimant cites no precedent to support that broad
proposition. The nature of the reinstatement and the issue raised therein determines the burden of
proof. …” Slip opinion at 18.
Editor’s Note: In discussing the new Supreme Court case Bufford, the Court remarked that a
reinstatement petition “may be prompted by a number of circumstances…. Because every
reinstatement is different, the claimant’s burden of proof will be different.” Slip opinion at 13-14.
Case: Hanover Insurance Company v. SWIF
Court/Docket/Date Filed/Judge: Pa. Commw. No. 620 M.D. 2010, filed January 19, 2012,
McCullough, J.
Type of Case: Insurance – Declaratory Judgments Act – Action Against SWIF – Jurisdiction –
Commonwealth Court Original Jurisdiction or Board of Claims?
Issue or Issues: Was SWIF correct in its preliminary objections which asserted that
Commonwealth Court, in its original jurisdiction, had no jurisdiction over a declaratory judgment
action filed by a liability insurer against SWIF?
A claimant, Munez, was a nominal employee of the temporary employment agency,
“Workforce USA.” Workforce USA was insured by SWIF. Although Munez was a nominal
employee of Workforce USA, she was laboring at an entity called “Dependable Distribution
Company” at its premises.
While so laboring, she sustained a work injury.
Munez apparently received workers’ compensation benefits from SWIF, though this is
certainly not stated in the opinion.
In any event, Munez also filed a personal injury tort action against Dependable Distribution.
Also named as a defendant was W&W Realty, which leased the premises to Dependable.
Certain insurance policies, other than the standard SWIF policy insuring Workforce USA,
were in place at the time of the accident. They were explained by the court as follows:
At all relevant times, Workforce had a policy of workers’ compensation and
employers liability insurance issued by SWIF. The policy contained an alternative
employer’s endorsement that identifies Dependable as an alternate employer. The
employer liability coverage afforded to Workforce under SWIF’s policy provided
coverage for bodily injury claims that fell outside the scope of the workers’
compensation statute brought against Workforce by its employees. The alternate
employer’s endorsement extended this employer liability coverage to Dependable
with respect to such bodily injury claims brought against it by employees of
Workforce who allegedly were injured in the course of their special or temporary
employment with Dependable. Pursuant to the terms of the SWIF policy, this
liability coverage was intended to be primary over any other available coverage.
Slip opinion at 3-4
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Also in place was a policy of liability insurance issued by Hanover to Dependable.
Dependable also had a workers’ compensation carrier of its own, Seabright.
When Munez sued Dependable, Hanover made demands of SWIF to undertake
Dependable’s defense and provide indemnity in the lawsuit. SWIF refused. Dependable also made
demands of Seabright to undertake Dependable’s defense. Seabright had not answered.
As a result of this act and omission, respectively, Hanover sued SWIF and Seabright in
Commonwealth Court’s original jurisdiction pursuant to the Declaratory Judgment Act:
“petitioners are seeking a declaration of their rights under [the] insurance policy issued by SWIF
[described below].” Also, Hanover asserted “a breach of contract claim against Seabright Insurance
Company ….” In response, the Department of Labor & Industry/SWIF filed preliminary
objections. The “Commonwealth respondents” argued that jurisdiction against SWIF “lies solely
with the Board of Claims.”
The Commonwealth Court granted the preliminary objections, and ordered the case
transferred to the Board of Claims. The court pointed out that the Board, under its enabling statute,
has “exclusive jurisdiction to arbitrate claims arising from … a contract entered into by a
Commonwealth agency ….” Section 1724(a)(1) of the Procurement Code. (Codified in 62 Pa.
C.S.) See SWIF v. Caparo Real Estate, 635 A.2d 705 (Pa. Commw. 1993).
Judge Pellegrini dissented, asserting that the majority’s ruling was in conflict with the 2009
precedent, Fletcher v. Pennsylvania Property and Casualty Insurance Guaranty Association, 985
A.2d 678 (Pa. 2009). There, the Supreme Court held that a lawsuit against the “MCARE Fund”
remained in Commonwealth Court’s original jurisdiction. According to the majority, however,
unlike the MCARE Fund, SWIF is a state agency. Slip opinion at 18, note 7.
Still, the dissent insisted, “the Board of Claims does not have jurisdiction because SWIF
policies of insurance are not covered by the Procurement Code.” Slip opinion at 28. Judge
Pellegrini asserted, “SWIF generally must follow the same rules and requirements private workers’
compensation insurers must follow. [A]side from not being a procurement contract, because a
Commonwealth agency is not procuring goods or services, the method by which a subscriber
obtains insurance has nothing to do with the manner in which contracts are bid, issued or
administered under the Procurement Code, and [said law] simply does not apply to how SWIF
policies are issued or administered….”
Case: Burks v. WCAB (City of Pittsburgh)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 980 C.D. 2011, filed January 13, 2012,
Friedman, S.J.
Type of Case: Voluntary Withdrawal – Chronic Orthopedic Conditions – Application for SSD
Issue or Issues: Did the WCJ commit error in suspending claimant’s benefits, upon an allegation
of voluntary withdrawal from the workforce?
Claimant, Burks, suffered an injury arising in the course of her employment in April 1984.
She injured her right knee. She received benefits voluntarily under an NCP. Ultimately, she had to
have a number of operations for the condition. At about the same time (apparently), claimant began
receiving SSD. She had not worked, or looked for work, since 1984.
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Over the ensuing years, claimant developed other physical problems that grew out of work
accidents. During litigation in the mid-2000’s, on claimant’s review petition, her allegation that
various further orthopedic injuries, including problems with her right hip, right ankle, low back,
right shoulder and abdominal pain were unsuccessful. The WCJ found they were not related to the
work injury.
In 2008, employer sought suspension of benefits, alleging a voluntary withdrawal. The
WCJ granted the suspension request. In this regard, he based his conclusion on “claimant’s
admission that she has not sought work since 1984 ….” He reasoned that, given this admission, she
had necessarily voluntarily withdrawn.
While this was the Judge’s reasoning, it is to be noted that the WCJ also accepted the
opinion of an IME that claimant’s work injury was limited to the right knee and that, considering
this injury alone, claimant was fit for full time light work. (He also opined that, even with all
conditions, she should be capable of sedentary work.) The Judge rejected claimant’s expert who
opined that the right knee injury caused the claimant’s other problems.
The Board affirmed, as has Commonwealth Court, though on other grounds.
In this regard, the court held that the WCJ had erred in suspending benefits as a matter of
law. In this regard, the most recent precedent held that a claimant has no duty to seek work until
employer shows that he or she has voluntarily withdrawn from the work force: “Until the employer
proves a voluntary retirement, the employer has a duty to make job referrals to the claimant.”
(Quoting Keene v. WCAB (Ogden Corp.), 21 A.3d 243 (Pa. Commw. 2011)).
Still, the court authorized the suspension of benefits. In this regard, “considering the totality
of the circumstances,” claimant had voluntarily withdrawn. The court agreed with employer’s
argument “that claimant’s receipt of Social Security disability benefits, which is based on her
inability to engage in substantial gainful activity, establishes that claimant has voluntarily
withdrawn from the work force.” For the “totality of the circumstances” test, the employer cited
City of Pittsburgh v. WCAB (Robinson), 4 A.3d 1130 (Pa. Commw. 2010) (appeal granted). In
agreeing with the employer, the court’s reasoning was as follows:
In Keene [cited above], this Court noted that the receipt of Social Security disability
benefits could be evidence that the claimant’s work injury forced him or her out of
the labor market …. Indeed, if a WCJ finds that a claimant suffers from a work
injury and no other non-work-related medical condition, then the receipt of Social
Security disability benefits can mean only that the claimant’s work injury has forced
him or her out of the labor market. On the other hand, if the WCJ finds that the
claimant suffers from a work injury and non-work-related medical conditions and
that the work injury does not prevent the claimant from working, then the receipt of
Social Security disability benefits can mean only that the claimant is unattached to
the work force for reasons unrelated to the work injury.
Slip opinion at 8-9 (emphasis added). In the present situation, it was the latter situation that was in
evidence:
Here, claimant suffered from a work injury that limited claimant to light-duty work,
but she also suffered from non-work-related medical conditions that limited claimant
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further. Because of the latter conditions, claimant chose to apply for Social Security
disability benefits. To continue her receipt of those benefits, claimant can work only
through Social Security’s “Ticket to Work” program, but there is no evidence in this
case that claimant participates in that program. Thus, claimant’s decision to receive
Social Security disability benefits shows that she has voluntarily withdrawn from the
work force for reasons unrelated to the work injury.
Slip opinion at 9-10.
Case: Verity v. WCAB (The Malvern School)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 356 C.D. 2011, filed October 11, 2011, Cohn
Jubelirer, J.
Type of Case: Reinstatement Petition – Claimant’s Stopping of Work Based Upon Reliance on
Errant Doctor Restrictions – Interpretation of Bufford Case
Issue or Issues: Did the WCJ commit error in denying the claimant’s reinstatement petition?
Claimant, Verity, suffered an injury arising in the course of her employment on September
19, 2007 while working at a school. She was injured when she grabbed a child and felt pain in her
back. She was paid benefits voluntarily under an NCP. In December 2007, benefits were modified
to partial disability under a supplemental agreement. At that time, claimant returned to light duty.
In July 2008, claimant filed for reinstatement to temporary total disability alleging a
worsening of condition, and that there was no longer any light duty available to her. (It is to be
noted that this was a cross petition; the employer had first filed a termination petition alleging a full
recovery.) The WCJ denied the termination petition, having credited claimant that she still had
some restrictions; but more importantly because employer’s own expert would keep her at light
duty. The WCJ, however, also denied the reinstatement petition. In this regard, the proofs were
perhaps confusing. Claimant testified that her doctor, Dr. Lam, in June 2008, provided her a slip
restricting her from going up or down stairs. When employer received this script from claimant, the
light duty was withdrawn as claimant had to go up a flight of stairs approximately four times a day.
That the light duty was eliminated was apparently stipulated to by employer. When
claimant’s physician actually testified, however, the doctor stated that she did not intend for
claimant to be totally restricted from going up and down stairs, “but, instead, intended to restrict
claimant from doing frequent steps…” Indeed, in her testimony, Dr. Lam “encouraged claimant to
continue her light-duty….”
Given this testimony, the WCJ denied the reinstatement petition. This was particularly his
ruling because claimant herself testified that at the time she went off work she felt capable of
continuing light duty. She also testified that she was able to perform the light duty “until Dr. Lam
imposed the new restriction” on her.
The Appeal Board affirmed, reasoning that claimant had voluntarily left her light duty.
Commonwealth Court affirmed. The court disagreed with claimant’s argument that she had
no burden in a reinstatement petition to locate available work within her restrictions, and that her
only burden in the reinstatement petition was to show that the light duty was eliminated through no
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fault of her own. The court also rejected claimant’s argument that “benefits must be reinstated until
employer establishes either her full recovery or that ongoing work within claimant’s restrictions
remain available.”
In rejecting these arguments, the court (for one of the first times) applied the Supreme Court
reinstatement petition burden case Bufford v. WCAB (North American Telecom), 2 A.3d 540 (Pa.
2010). That case purported to clarify the reinstatement burden, and admonished that in a
reinstatement petition the claimant must show, in all cases, as a threshold matter, that “her earning
power is once again adversely affected by his or her disability….” In the present case, claimant has
simply failed to show this:
Based on the WCJ’s findings of fact, claimant failed to establish that her earning
power was once again adversely affected by her work-related disability. The WCJ
found that Dr. Lam did not intend for the “no stairs” restriction to stop claimant from
going up and down stairs altogether but, instead, the doctor intended to restrict
claimant from going up and down stairs frequently …. In addition, Dr. Lam testified
that she encouraged claimant to continue performing her light-duty job. …
More importantly, claimant admitted that her work-related disability did not prevent
her from going up and down several flights of stairs a day and that, at the time Dr.
Lam imposed the “no stairs” restriction, claimant was able to go up and down the
stairs at her place of employment four times a day. …
Slip opinion at 16.
The court then declared: “Claimant did not stop working due to employer’s elimination of
her light-duty position. Instead, claimant had to stop working because of the ‘no stair’ restriction
incorrectly placed on her by Dr. Lam. Claimant was aware that: this restriction was incorrect; she
could perform her light-duty position which required some use of stairs; Dr. Lam was not aware of
claimant’s ability to go up and down stairs…; and employer was honoring these restrictions.
Claimant did not contact Dr. Lam to explain or to ask her to issue a new note ….” According to the
court, “it was claimant’s failure to do so [that is, clarify the situation] that caused the loss of her
light-duty job, not her medical condition or employer’s actions.” As far as the court was
concerned, under these circumstances, claimant had failed to show “that her earning power was
once again adversely affected by her work-related disability.”
Editor’s Note I: The Bufford precedent, as this meticulous opinion reiterates, suggests that “fault”
is not part of the reinstatement burden analysis. Freedom from fault had been a hallmark of the
Pieper landmark’s (1991) reinstatement burden test. However, plainly the claimant in this case
disqualified herself from reinstatement of benefits because of volitional behavior – in other words, it
was claimant’s fault that the light duty was eliminated. This may well be called a failure to show
that the loss of earnings was from the injury, or it may be characterized as a voluntary departure; but
it still looks like fault as we have traditionally applied the reinstatement burden.
Editor’s Note II (Brad Andreen): The concept of fault is obviously still of import in the
reinstatement context. Pursuant to the holding of Bufford, the claimant does not have to prove
“through no fault of his/her own,” his/her earning power is once again adversely affected by
his/her work injury. However, if the employer can prove that the claimant’s loss of earning
51

power is through the fault of the claimant, it may prove to be a viable defense. The claimant in
Bufford left a position which he was capable of performing to take a higher paying job within his
restrictions. He obtained a reinstatement of benefits when the new job ceased even though he
would have still been able to earn wages if he would not have voluntarily left his initial job for
the higher paying job. The court did not find that this constituted “fault” on behalf of the
Claimant so as to disqualify him from receipt of wage loss benefits.
Case: Caputo v. WCAB (Commonwealth of Pennsylvania)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 191 C.D. 2010, filed January 5, 2012, Leavitt,
J. (en banc)
Type of Case: Act 57 – Social Security Retirement Setoff – Section 204(a) of the Act –
Constitutionality
Issue or Issues: Did the legislature’s provision in the Act for a 50% setoff for Social Security
retirement benefits received violate equal protection?
Claimant, Caputo, suffered an injury arising in the course of her employment in 2002. She
apparently filed a claim petition, and was awarded TTD.
In 2006, claimant became entitled to Social Security Retirement (SSR) (she also became
entitled to a retirement pension, but receipt of those benefits is not implicated in this new court
case).
In December 2006, meanwhile, employer began taking a 50% SSR offset pursuant to
Section 204(a) of the Act, 77 P.S. § 71(a). Claimant challenged this action, but the WCJ and Board
ratified the same without, of course, addressing constitutional arguments.
In Commonwealth Court, as foreshadowed above, claimant maintained that the legislature,
in allowing an employer to take a 50% SSR credit, enacted a law in violation of the Equal
Protection Clause of Article I, Section 1 of the Pennsylvania Constitution. That proviso states,
among other things, “all men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of … possessing and protecting property. …”
The court rejected this argument. True, the Utah Supreme Court in 2009 had struck down a
similar constitutional proviso. See Merrill v. Utah Labor Commission, 223 P.3d 1089 (Utah
Supreme Court 2009). However, the court parsed the reasoning of that case, and viewed it as
having been incorrectly decided.
Further, the Utah court had expressly rejected cost containment as a legitimate governmental
objective, that is, a “rational basis,” for legislating a SSR credit. The Pennsylvania Supreme Court,
however, had already, in general, approved cost containment as a reason for establishing an offset.
This was so held in the severance benefit offset case Kramer v. WCAB (Rite Aid Corp.), 883 A.2d
519 (Pa. 2005).
The court acknowledged that the law “creates a legislative classification.” Because this was
true, the court was willing to entertain the issue of whether the law passed constitutional muster.
According to the court, “a statutory classification in the area of social welfare [as here] is consistent
with equal protection if it meets the rational basis test.” The court went on to identify such rational
52

ases. In its view, the cost containment benefit for employers was one such rational basis. The
other was encouraging individuals collecting SSR to remain or re-enter the workforce, because
Section 204(a) does not permit the offset when a worker is injured while already receiving SSR.
The court also, in general, noted that “the legislature has made the policy decision that
because the employer helps to fund Social Security, it should receive a credit ….” True, a 50%
credit was not perfect, but “legislative classifications are not required to be perfect to pass
constitutional muster.”
In reaching this conclusion, notably, the court rejected claimant’s argument that the offset
was irrational “because workers’ compensation benefits and [SSR] benefits serve different purposes
….” According to Commonwealth Court, the Supreme Court had rejected a similar argument in the
severance benefit offset context. See Kramer, supra.
Furthermore, the court remarked generally that the legislature would have been well within
its power to otherwise limit the duration of workers’ compensation benefits, that is, “engage in an
infinite array of policy choices,” relative to the duration of disability vis-à-vis SSR. As far as
Commonwealth Court was concerned, the legislature could have provided in the law that TTD or
TPD could end as soon as the employee retires. The court pointed out that other states, in their
workers’ compensation laws, provide for a 100% offset for SSR or provide for “outright termination
of disability benefits at retirement,” and this type of prescription has survived “in the face of an
equal protection challenge.”
The court noted, in this regard, that at one time the West Virginia Supreme Court declared
unconstitutional a 50% SSR offset. This was so in the renowned case State ex rel. Boan v.
Richardson, 482 S.E.2d 162 (West Virginia 1996). In 2003, however, the same court changed its
view, noting that protecting the solvency of the State Fund was a legitimate reason for limiting
workers’ compensation benefits, and as a result it held constitutional a new compensation act
proviso “terminating disability benefits for permanently and totally disabled workers once they
reach age 65.” See State ex rel. Beirne v. Smith, 591 S.E.2d 329 (West Virginia 2003).
Case: Cozzone v. WCAB (Pa. Municipal/East Goshen Township)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 664 C.D. 2011, filed January 5, 2012,
Brobson, J.
Type of Case: Limitation of Action – 500 Weeks – Post Expiration of Limitation Agreements and
Payments
Issue or Issues: Did the WCJ and Board commit error in dismissing the claimant’s reinstatement
petition as untimely?
The claimant, Cozzone, suffered an injury arising in the course of his employment in 1989.
He was paid benefits voluntarily under an NCP. The injury was in January 1989, and he returned to
work in September 1989. He returned to full duty without any loss of earnings.
Benefits were apparently suspended, without any objection from claimant, but no
supplemental agreement was executed. (If there ever was such a document, it was not in the record
or evidenced by either party.)
53

Fourteen years passed. This was obviously more than 500 weeks.
At that point, claimant experienced certain periods of recurrent disability. Indeed, these
periods of recurrent disability occurred in 2003, 2005, 2007 and 2008. In January 2008, a final
supplemental agreement was executed placing claimant on partial disability.
Claimant went off of work later in January 2008. At some time thereafter, employer
unilaterally discontinued paying the partial disability. Claimant then filed to reinstate to TTD. He
also alleged a violation of the Act for the unilateral stopping.
The WCJ granted the petition, determining that the employer was estopped from raising the
expiration of 500 weeks because it had “lulled claimant into believing that his compensation rights
were fully protected by executing various supplemental agreements ….”
The Board, however, reversed. It reasoned that equitable estoppel would not be applicable
because the 500 weeks and claimant’s concurrent right to compensation “had already been
extinguished by the expiration of the statute … by the time employer executed the supplemental
agreements ….” The Board reasoned, in this regard, that employer’s “action subsequent to the
expiration of the statute of repose could not have affected claimant’s right to compensation.”
Commonwealth Court agreed.
It is to be noted that in Commonwealth Court, claimant first argued that estoppel should
apply because the employer had suspended benefits back in September 1989 without any
supplemental agreement. Claimant maintained that the lack of a supplemental agreement (or order
suspending benefits, for that matter), lulled him into not pursuing his claim during the statutory
period. This was so because he was never notified that his right to seek reinstatement of his benefits
was limited by the 500-week period.
The court rejected this preliminary argument. First, the court was unbothered that the
supplemental agreement was absent, in light of the stipulation that claimant had gone back to full
duty with no wage loss: “[E]mployer was entitled to a suspension of claimant’s benefits …
notwithstanding the lack of a supplemental agreement.” Further, according to the court, claimant
does not “cite to any legal authority imposing a duty on employers to notify claimants of the
existence of the statute of repose. Claimant’s ignorance of the law will not operate to create an
estoppel.” For the first proposition, the court cited Bellows v. WCAB (Shabloski), 663 A.2d 267 (Pa.
Commw. 1995) (forgiving lack of any supplemental agreement); and Nevius v. WCAB, 416 A.2d
1134 (Pa. Commw. 1980) (claimant’s ignorance of the law will not create an estoppel).
The court added that even if claimant’s ignorance of the law should somehow be forgiven,
“there is no evidence of detriment.” This was because claimant had worked for more than 500
weeks without any apparent need to reinstate benefits. Over this 14-year period, “claimant would
not have sought reinstatement … even if employer had formally informed claimant” of the existence
of the 500 weeks.
With regard to the second argument, that is, the one addressed by the Board (see above), the
Board was correct that the renewed, apparently errant payments, and supplemental agreementmaking,
after the 500 weeks, were of no consequence. The relevant inquiry in determining whether
estoppel would prevent an employer from raising a limitation of action “is whether the employer’s
54

words or conduct convinced the claimant to not pursue his claim within the statutory period.” Here,
that did not occur. For this proposition, the court cited the precedent Sharon Steel Corp. v. WCAB
(Myers), 670 A.2d 1194 (Pa. Commw. 1996).
Claimant, nevertheless, argued that his case was not time barred in any event, because he
filed within three years of the last payment of compensation. The court replied, however, “we have
unambiguously held that Section 413’s three-year limitation ‘is totally inapplicable where there has
been a suspension.’” For this proposition, the court cited the cases Cicchiello v. WCAB (Frank L.
Markel Corp.), 761 A.2d 210 (Pa. Commw. 2000); Roussos v. WCAB (St. Vincent Health Center),
630 A.2d 555 (Pa. Commw. 1993); and Stewart v. WCAB (Pa. Glass Sand), 756 A.2d 655 (Pa.
2000).
Finally, the Board was correct in dismissing the penalty petition. As the employer had
unilaterally terminated benefits which were not due and owing in the first place, no violation of law
was occasioned by their cessation. As far as the court was concerned, “a supplemental agreement
entered into after the expiration of a statute of repose is void and unenforceable, and cannot
resurrect the claimant’s claim.” There were simply no benefits due in the present case “upon which
an award of penalties can be assessed.”
Case: White v. WCAB (City of Pittsburgh)
Court/Docket/Date Filed/Judge: Pa. Commw. No. 673 C.D. 2011, filed December 29, 2011,
Butler, J.
Type of Case: Act 57 – SSR Offset – Constitutionality – Source of SSR Contributions
Issue or Issues: Did the WCJ and Board commit error in allowing employer an SSR credit?
The claimant, White, suffered an injury arising in the course of her employment on
November 2, 1996. She was paid benefits voluntarily under an NCP.
Eleven years passed.
At that time, the employer started taking an offset of 50% of her SSR benefits. Claimant
filed a review petition objecting to such offset. She maintained that the employer was not entitled to
any such offset “because a portion of the amount she receives is a widow benefit attributable to her
husband’s earnings, or annual cost of living increases in her Social Security benefits.”
The WCJ denied the petition, reasoning that there was nothing in the Act or regulations “that
provides for reducing an offset by the amount of widow benefits or cost of living adjustments.” The
WCJ also noted that “even if the offset were based only on claimant’s earnings, there was nothing in
the record indicating that claimant’s Social Security benefits increased when her husband died, nor a
Certificate of Election from the Social Security Administration indicating that she elected to receive
widow benefits.”
The court affirmed the WCJ and Board denials of the review petition.
The court rejected, as a preliminary matter, claimant’s violation of equal protection
constitutionality arguments. The court applied the same reasoning as the Caputo en banc court did
55

a few weeks later. (See supra.) In short, the court saw no violence to the constitution by the
legislature’s enactment of the SSR credit.
With regard to the claimant’s other argument, it was true that claimant’s husband passed
away in 2003. This was a point in time after the claimant’s injury and receipt of TTD. It was also
true that claimant began receiving SSR in 1997, shortly after her injury and receipt of TTD.
With these stipulated facts in mind, the court remarked, “the Social Security Act clearly
distinguishes between old age benefits and widow’s benefits…. Therefore, it follows that the offset
allowed … applies only to the portion of Social Security benefits available to claimant” under the
old age benefit provisions. In the present case, however, the evidence submitted by claimant did not
prove that employer was taking anything else but a credit for these precise payments.
Editor’s Note: The court errantly refers to the Act 57 regulations as the “Board regulations.” The
regulation at issue is 34 Pa. Code § 123.7.
Case: Roman Catholic Diocese of Allentown v. Bureau of Workers’ Compensation, Fee Review
Hearing Office
Court/Docket/Date Filed/Judge: Pa. Commw. No. 2711 C.D. 2010, filed October 28, 2011,
Simpson, J.
Type of Case: Act 44 – Fee Review – Acute Care – Fall Injury – Roman Catholic Priest
Issue or Issues: Did the Fee Review Hearing Officer commit error in directing that the self-insured
employer was to reimburse a provider 100% of its bill?
A worker, the Roman Catholic Priest Father James Mulligan, suffered an injury arising in
the course of his employment in early January 2009. At the time, he was 72 years old, and he hurt
his back when he fell on an icy sidewalk. He was taken away by an ambulance. The ambulance
personnel contacted Lehigh Valley Hospital/Cedarcrest, and he was taken to that facility. The
hospital was an “accredited level I trauma center.”
After an examination at the hospital, the hospital admitted him as a trauma patient. Two
days later, he had spine surgery for two unstable spinal fractures. The hospital stay was apparently
fairly long, as he was only discharged on January 23, 2009.
It is to be noted that pursuant to American College of Surgeons Triage Guidelines, a spinal
fracture is considered a life-threatening or urgent injury because it could lead to paralysis.
Claimant’s injury was accepted as compensable on a voluntary basis. An NCP was
apparently issued. In May 2009, the hospital submitted to the employer a properly documented bill
in the amount of $406,303.79. This invoice reflected its usual and customary charges. In response,
in November 2009, employer issued an explanation of benefits. This document reflected that
employer was repricing in the amount of $142,196.00. Within three days, provider sought fee
review. The administrative determination by the Bureau stated that the provider was entitled to the
full amount of its bill. The employer then sought a de novo fee review hearing.
56

The Fee Review Hearing Officer ratified the administrative determination, and directed that
employer was to pay the full amount of the bill.
In reaching his conclusion, he determined that the injured worker was properly treated as a
patient with a life-threatening injury in a level I trauma center. Under the medical cost containment
regulations, specifically Section 127.128, charges “shall be paid based on 100% of usual and
customary charges if … the patient has an immediately life-threatening injury or urgent injury.” 34
Pa. Code § 127.128. The Hearing Officer reached this decision after crediting the provider’s
physician that spinal fractures of the unstable type are indeed considered immediately lifethreatening.
Further, the physician testified credibly about the ACS guideline noted above. Provider
had also successfully presented the testimony of a witness from the hospital who indicated that the
hospital was indeed a “level I trauma center.” Employer, meanwhile, had submitted the testimony
of a repricing expert. However, the Hearing Officer refused to allow the testimony of yet another
witness, a physician, who was supposed to be an additional expert for the employer. In this regard,
the employer had not announced its witness.
Commonwealth Court has affirmed. The court saw no error in the Hearing Officer’s
decision. Further, employer knew of the requirements of submitting witnesses, and the Hearing
Officer’s refusal of the witness did not operate to deny employer due process.
57

Course Planners
Charles J. Barreras, Esq.
The Chartwell Law Offices, LLP, Eagleville
Barbara E. Holmes, Esq.
Blaufeld Schiller & Holmes LLP, Pittsburgh
Faculty
Halmon L. Banks, Esq.
Martin, Banks, Pond, Lehocky & Wilson, Philadelphia
Daniel K. Bricmont, Esq.
Caroselli Beachler McTiernan & Conboy, LLC, Pittsburgh
Hon. Pamela L. Briston
Bureau of Workers’ Compensation, Western District, Pittsburgh
William M. Conwell, Esq.
Swartz Campbell, LLC, Pittsburgh
Hon. James P. Deeley
Workers’ Compensation Office of Adjudication
Central District, Harrisburg
Lee S. Fiederer, Esq.
The Chartwell Law Offices, LLP, Philadelphia
Joshua A. Gray, Esq.
The Chartwell Law Offices, LLP, Harrisburg
Marc S. Jacobs, Esq.
Galfand Berger LLP, Philadelphia
Andrew B. Klaber, Esq.
The Chartwell Law Offices, LLP, Sewickley
Kim D. Normann
Senior Claim Representative, Travelers Property Casualty Corp.
Pittsburgh
Hon. Todd B. Seelig
Workers’ Compensation Office of Adjudication, Eastern
District, Philadelphia
Dates & Locations
8:30 am to 4:30 pm; check-in begins at 8:00 am
Mechanicsburg • Thurs., Mar. 15, 2012
PBI Conference Center
5080 Ritter Rd., Rossmoyne Exit, Rt. 15
Philadelphia • Wed., Mar. 21, 2012
The CLE Conference Center, Wanamaker Building
10 Flr., Suite 1010, Juniper St. entrance
(between 13th & Broad Sts., opposite City Hall)
Pittsburgh • Thurs., Mar. 29, 2012
PBI Professional Development Conference Center
Heinz 57 Center, 339 Sixth Ave., 7th Flr.
Live Webcast • Thurs., Mar. 15, 2012
Go to webcasts.pbi.org to register.
Subject to 4-credit distance ed limit.
Simulcast • Thurs., Mar. 15, 2012
Locations to be announced.
5 SUBSTANTIVE/1 EThIcS*
* This program has been approved by the Pennsylvania
Continuing Legal Education Board for 5 hours of CLE
credit in substantive law and 1 hour in ethics. If you attend
less than the full time of the program, you will receive
only substantive credits for the time of your attendance. If
you attend the entire program, you will receive 5 credits in
substantive law and 1 credit in ethics.
Handling the Workers Compensation Case
Are you….new to workers’ comp practice? Experienced but interested in “refreshing”
your basic skills? Dabbling in comp practice, but hoping to do more?
Join PBI for an eye-opening day of instruction on everything you need to know to take
your first (or 100th!) workers’ comp case from initial claim to final negotiation and
compromise and release.
Learn through example as you watch a typical case unfold—pick up valuable questioning
strategies and practice tips as each stage is “performed” via skits. Participate in a lively
exchange as experienced comp attorneys and judges analyze the skits and then open the
floor to questions and comments.
This is the next best thing to shadowing a mentor.
Establish and revitalize your comp practice; learn—
• How to conduct client conferences, depositions and hearings
• How to utilize investigative services and the Internet to make or break a case: What
criteria a judge will use to decide a questionable case
• All about comp forms and filing—what forms are required when; how, when and where
to file
From A to Z on a typical case:
• Introduction to Workers’ Compensation Law
• Initial Presentation of Claim
• Litigation
• Argument
• The Ruling and the Appeal Process
• Other Petitions that Can Be Filed Subsequent to the Acceptance of the Claim or the
Granting of a Claim Petition
• Filing and Litigation of a Modification Petition/Attempts to Limit Exposure
• Negotiation Between Parties to Settle or Mediate
• Compromise & Release
• Ethics in Our Everyday Lives
Tuition (includes course book and lunch)
Early* Standard
$229 n Member — Pa., or any co. bar assn. n $254
$199 n Member admitted after 1/1/08 n $224
$249 n Nonmember n $274
$99 n Paralegals attending with an atty. n $124
$129 n Paralegals attending alone n $154
$115 n Judges and judicial law clerks n $140
(admitted after 1/1/08)
(including WCJs, members & employees
of the WCAB, the WC Bureau & Dept.
of Labor & Industry)
$105 n Judges and judicial law clerks n $130
(admitted after 1/1/08)
(including WCJs, members & employees
of the WCAB, the WC Bureau & Dept.
of Labor & Industry)
or n Go to webcasts.pbi.org for
webcast tuition and to register.
Online tuition differs from live course tuition.
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
Book & Audio CD
Course Book (2012-7268) — $69
Audio CD (ACD-7268) — $39
Audio CD & Book Set (ACDS-7268) — $99
If you are ordering course materials separately, please allow two weeks after
the first program for the shipment of books and 4 to 6 weeks for shipment of
the CDs and book/CD sets.
Include $6.00 shipping & 6% Pa. sales tax on all book & CD orders — see
enrollment/order form.
shs-sat-12/22/11-3856
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

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
Please photocopy registration form for multiple registrants.
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 sufficient course materials, seating and refreshment. Walk-in
registrations will be accepted on a space-available basis. Preregistered
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
confirmation 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 financial hardship to
fulfill 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 first 12 hours of CLE taken in each calendar year for attorneys
employed full-time by many nonprofit 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.
5 substantive/1 ethics*
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Cou r s e TiT l e:_____________________________________________________________________________
Handling the Workers Compensation Case
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Tuition (includes course book and lunch)
Early* Standard
$229 r Member — Pa., or any co. bar assn. r $254
$199 r Member admitted after 1/1/08 r $224
$249 r Nonmember r $274
$99 r Paralegals attending with an atty. r $124
$129 r Paralegals attending alone r $154
$115 r Judges and judicial law clerks r $140
(admitted after 1/1/08)
(including WCJs, members & employees
of the WCAB, the WC Bureau & Dept.
of Labor & Industry)
$105 r Judges and judicial law clerks r $130
(admitted after 1/1/08)
(including WCJs, members & employees
of the WCAB, the WC Bureau & Dept.
of Labor & Industry)
or r Go to webcasts.pbi.org for
webcast tuition and to register.
Online tuition differs from live course tuition.
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
Book & Audio CD
r Course Book (2012-7268) — $69
plus $6.00 S&h & $4.50 tax ($79.50)
r Audio CD (ACD-7268) — $39
plus $6.00 S&h & $2.70 tax ($47.70)
r Audio CD & Book Set (ACDS-7268) — $99
plus $6.00 S&h & $6.30 tax ($111.30)
If you are ordering course materials separately, please allow two weeks after
the first program for the shipment of books and 4 to 6 weeks for shipment of
the CDs and book/CD sets.
Handling the Workers Compensation Case
Mechanicsburg • Thurs., March 15, 2012
Philadelphia • Wed., March 21, 2012
Pittsburgh • Thurs., March 29, 2012
Live Webcast • Thurs., March 15, 2012
Simulcast • Thurs., March 15, 2012
(Locations to be announced.)
3856
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

Course Planners
Grace A. Sweeney, Esquire
Philadelphia
Ms. Sweeney received her Doctor of Jurisprudence
from Villanova University School of Law in
2003. She received her Bachelor of Science in
Nursing from West Chester University. Ms.
Sweeney concentrates her practice in workers’
compensation defense litigation. She is actively
involved in the Philadelphia Bar Association and
has served in various appointments, including
Secretary of the Workers’ Compensation Section
in 2008, Section Representative to the Board of
Governors in 2009 and Co-Chair for the Workers’
Compensation Section for 2011.
Mary S. Kohnke-Wagner, Esquire
Marshall, Dennehey, Warner, Coleman &
Goggin, Philadelphia
Ms. Wagner represents employers in workers’
compensation litigation. She handles matters for
trucking companies, nursing homes, hospitals,
retailers, food service companies and multiple
other employers. She concentrates on cases with
complex medical issues. In addition to holding a
Juris Doctorate, she also holds a Master of Science
in Nursing and Bachelor of Science in Nursing.
Ms. Wagner lectures on workers’ compensation
and medical-legal issues.
Faculty
Honorable Alfred Benedict2 Workers’ Compensation Office of Adjudication, New Castle
Honorable Martin Burman1 Workers’ Compensation Office of Adjudication, Malvern
1, 2
Richard Graham
Corporate Director, Insurance & Risk Control
Crozer-Keystone Health System, North Campus, Chester
Mary S. Kohnke-Wagner, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
Philadelphia
Amit Shah, Esquire1 Martin Banks, Philadelphia
Glenn Sinko, Esquire2 Sinko Zimmerman LLC, Seven Fields
Additional faculty may be added.
Speaking in: 1Philadelphia; 2Pittsburgh 3 SUBSTANTIVE
1, 2
PBI is pleased to cosponsor this program
with the PBA Labor and Employment
Law Section.
Workers’ Compensation Issues
Involving the Larger Employer
The course will provide valuable insight into the unique aspects of Workers’
Compensation from the perspective of the large employer. The program will address
the challenges involved with a multiple location, multiple jurisdiction employer with a
large and diverse workforce, especially in a health care provider setting; as well as the
considerations regarding identifying authority in a large employer setting. Panelists will
debate the lack of medical insurance coverage for American workers, and its implication
in providing adequate medical care to the injured worker.
Expert practitioners will also tackle the following issues, among others:
• Financial considerations, such as the self-insured or large deductible program,
• The changing workforce and issues involving violence in the workplace
• The obesity epidemic and an aging employee population
• The impact of social media and the 24-hour access to information to all employers
• Highlight recent case law regarding the use of social media in hiring and firing practices
• Offer advice on drafting and enforcing a social media policy in the workplace.
Tuition (includes course book and lunch)
Early* Standard
$229 n Member — Pa., or any co. bar assn. n $254
$209 n Member admitted after 1/1/08 n $234
$249 n Nonmember n $274
$99 n Paralegals attending with an atty. n $124
$129 n Paralegals attending alone n $154
$115 n Judges & judicial law clerks n $140
(including workers’ compensation judges),
and members or employees of the WCAB
and the Workers’ Compensation Bureau
$105 n Judges & judicial law clerks n $130
(including workers’ compensation judges),
and members or employees of the WCAB
and the Workers’ Compensation Bureau
(admitted after 1/1/08)
or n Go to webcasts.pbi.org for webcast tuition and
to register. Online tuition differs from live
course tuition.
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
Book & Audio CD
Course Book (2012-7128) — $69
Audio CD (ACD-7128) — $39
Audio CD & Book Set (ACDS-7128) — $99
If you are ordering course materials separately, please allow two weeks after
the first program for the shipment of books and 4 to 6 weeks for shipment of
the CDs and book/CD sets.
Include $6.00 shipping & 6% Pa. sales tax on all book & CD orders — see
enrollment/order form.
Dates & Locations
12:30 pm to 3:45 pm; check-in and lunch begin at
12:00 pm
Philadelphia • Thu., Mar. 1, 2012
The CLE Conference Center, Wanamaker Building
10th Floor, Ste. 1010, Juniper St. entrance
(between 13th & Broad Sts., opposite City Hall)
Pittsburgh • Wed., Mar. 14, 2012
PBI Professional Development Conference Center
Heinz 57 Center, 339 Sixth Avenue, Suite 760
Live Webcast • Thu., Mar. 1, 2012
Go to webcasts.pbi.org to register.
Simulcast • Thu., Mar. 1, 2012
Allentown
Bar Assn. of Lehigh Co.
1114 Walnut St.
Doylestown
Bucks Co. Bar Assn.
135 E. State St.
Erie
Erie County Bar Assn.
302 W. Ninth Street
Greensburg
Westmoreland IU 7
102 Equity Dr.
Johnstown
Univ. of Pittsburgh -
Johnstown
Living/Learning Ctr.
450 Schoolhouse Rd.
Mechanicsburg
PBI Conference Center
5080 Ritter Rd.
Rossmoyne Exit, Rt. 15
Media
Delaware Co. Bar Assn.
335 W. Front St.
Wilkes-Barre
Kings College
Sheehy-Farmer Campus
Center, Lane’s Lane
York
York College of PA
Business Admin. Bldg.
lm/tp-12/9/11-3856
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

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
Please photocopy registration form for multiple registrants.
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 sufficient course materials, seating and refreshment. Walk-in
registrations will be accepted on a space-available basis. Preregistered
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
confirmation 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 financial hardship to
fulfill 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 first 12 hours of CLE taken in each calendar year for attorneys
employed full-time by many nonprofit 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.
3 substantive
Fax your AMEX, VISA, Mastercard or Discover
registration or order by dialing (717) 796-2348
Register at the Door. Please call ahead
to confirm date, time, location and space
availability.
Register Online. For more information,
to register or to order online:
http://www.pbi.org or e-mail: info@pbi.org
5
Easy Ways
You Can
Register
Name______________________________________________Atty.#___________________________________
Firm___________________________________________________________________________________________
Address___________________________________Email Address _________________________________
City _____________________________ State ___________ Zip _______________ County _____________
Phone ______/___________-____________________ Fax _____/____________-______________________
Cou r s e TiT l e:_____________________________________________________________________________
Workers’ Compensation Issues Involving the Larger Employer
Co u r s e si T e & Da T e:_____________________________________________________________________
As a member of both the PBA and the ________________________ county bar association, I have enclosed my
discount coupon in the amount of $________________ for my: � 1st � 2nd � 3rd � 4th � 5th PBI seminar.
Charge my: � � � � Exp. Date _________________________________
Signature___________________________________________Card No._________________________________
A check made payable to PBI in the amount of $_________________________ is enclosed. lm/tp-12/9/11
Tuition (includes course book and lunch)
Early* Standard
$229 r Member — Pa., or any co. bar assn. r $254
$209 r Member admitted after 1/1/08 r $234
$249 r Nonmember r $274
$99 r Paralegals attending with an atty. r $124
$129 r Paralegals attending alone r $154
$115 r Judges & judicial law clerks r $140
(including workers’ compensation judges),
and members or employees of the WCAB
and the Workers’ Compensation Bureau
$105 r Judges & judicial law clerks r $130
(including workers’ compensation judges),
and members or employees of the WCAB
and the Workers’ Compensation Bureau
(admitted after 1/1/08)
or r Go to webcasts.pbi.org for webcast tuition and
to register. Online tuition differs from live
course tuition.
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
Book & Audio CD
r Course Book (2012-7128) — $69
plus $6.00 S&H & $4.50 tax ($79.50)
r Audio CD (ACD-7128) — $39
plus $6.00 S&H & $2.70 tax ($47.70)
r Audio CD & Book Set (ACDS-7128) — $99
plus $6.00 S&H & $6.30 tax ($111.30)
If you are ordering course materials separately, please allow two weeks after
the first program for the shipment of books and 4 to 6 weeks for shipment of
the CDs and book/CD sets.
Workers’ Compensation Issues
Involving the Larger Employer
Philadelphia • Thurs., Mar. 1, 2012
Pittsburgh • Wed., Mar. 14, 2012
Webcast • Thurs., Mar. 1, 2012
Simulcast • Thurs., Mar. 1, 2012
(Nine Simulcast site locations listed inside)
3856
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

Instructors
Prof. Samuel D. Hodge, Jr.
Chair, Legal Studies Department
Temple University School of Law, Philadelphia
Lisa M. Benzie-Wo0dburn, Esq.
Angino & Rovner, Harrisburg
Harris T. Bock, Esq.
Executive Director, The Dispute Resolution
Institute, Philadelphia
Vincent J. Quatrini, Jr., Esq.
QuatriniRafferty, Greensburg
Dates & Locations
8:25 am to 3:45 pm; check-in begins at 8:00 am
Philadelphia • Mon., Apr. 30, 2012
The CLE Conference Center, Wanamaker Building
10th Floor, Ste. 1010, Juniper St. entrance
(between 13th & Broad Sts., opposite City Hall)
Pittsburgh • Mon., Apr. 16, 2012
PBI Professional Development Conference Center
Heinz 57 Center, 339 Sixth Ave., 7th Fl.
Live Webcast • Mon., Apr. 23, 2012*
Go to webcasts.pbi.org to register.
Mechanicsburg • Mon., Apr. 23, 2012
PBI Conference Center
5080 Ritter Rd., Rossmoyne Exit, Rt. 15
Simulcast • Mon., Apr. 23, 2012
See locations above.
Allentown
Bar Assn. of Lehigh Co.,
1114 Walnut St.
Easton
Colonial I.U. 20, 6 Danforth
Drive
Erie
Erie County Bar Assn., 302
W. Ninth Street
Johnstown
Univ. of Pittsburgh -
Johnstown
Living/Learning Ctr.
450 Schoolhouse Rd.
Lebanon
Lebanon Co. Municipal,
Bldg., 400 S. 8th St.
Meadville
Economic Progress Alliance
Conference Ctr.
William J. Douglass Jr.
Corporate Conf. Ctr.
764 Bessemer St.
Mill Hall
Clinton Co. Cooperative Ext.
Resource/Education Ctr., 47
Cooperation Lane
New Castle
Penn State Coop. Ext. of
Lawrence Co.
Lawrence Co. Cthse., 430
Court St., 3rd Fl.
6 SUBSTANTIVE
Stroudsburg
Monroe Co. Bar Center, 913
Main St.
Uniontown
Penn State University
Fayette Campus
Eberly Corporate Training
Center
Route 119 North
Warren
Warren Library Assn., 205
Market St.
West Chester
Chester Co. Bar Assn., 15
W. Gay St.
Wilkes-Barre
Kings College
Sheehy-Farmer Campus
Center
Lane’s Lane
York
York College of PA, Business
Admin. Bldg.
Anatomy, Injuries and Surgeries
A plain-English seminar designed to improve your ability to evaluate,
prosecute or defend back, knee, hip, shoulder and hand injury cases
persuasively, and with confidence.
Knowing how to successfully present or refute claims of medical injuries can make an
enormous difference in the size of an award or negotiated settlement.
Sam Hodge returns with a new, exciting program that pairs anatomy/legal professor with
a skilled litigator to make practical, case-clarifying sense of the causes, trends, diagnosis
and treatment of the most common disorders of the back, knee, hip, shoulder, elbow and
wrist – the parts of the body most susceptible to injury.
This new course breaks down the body into neat, easy-to-understand segments:
the spine, upper extremities, and lower extremities. Each segment will start with an
anatomical orientation, followed by videos of actual surgeries, and will conclude with a
discussion of injury issues, causation and recovery.
You will leave the program with a solid understanding of common diagnoses and
treatment techniques, improving your ability to plan and manage cases involving
injury claim
8:00 - 8:25 Registration
8:25 - 8:30 Welcome & Introduction
8:30 - 9:30 The Spine
Parts of the spine, spinal cord and nerve roots; which parts are more prone to injury;
spinal surgeries; laminectomy, discectomy, fusion and more
9:30 - 9:45 Specific Spine Injury Questions
Sam is questioned about injury issues, causation, recovery and more
9:45 - 10:00 Break
10:00 - 11:00 The Spine, continued
11:00 - 11:15 Specific Spine Injury Questions
11:15 - 12:00 Upper Extremities
Causes, trends, diagnosis and treatment of the most common disorders and injuries
to shoulder, elbow, hand and wrist, what are the most common surgeries and how
are they done?
12:00 - 12:15 Specific Upper Extremities Questions
Sam is questioned about injury issues, causation, recovery and more
12:15 - 1:00 Lunch (included in your tuition)
1:00 - 2:00 Upper Extremities, continued
2:00 - 2:15 Specific Upper Extremities Questions
2:15 - 2:30 Break
2:30 - 3:30 Lower Extremities
The anatomy of the knee and why it’s so frequently injured; the most common types
of knee surgeries and how they’re done
3:30 - 3:45 Specific Lower Extremities and General Questions
Sam is questioned about injury issues, causation, recovery and more
*About Webcast credits
Because of the CLE board’s 4-credit distance education limit, you will be able to use no
more than 4 substantive CLE credits for Pennsylvania CLE purposes.
shs/sat-2/9/12-3856
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

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
Please photocopy registration form for multiple registrants.
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 sufficient course materials, seating and refreshment. Walk-in
registrations will be accepted on a space-available basis. Preregistered
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
confirmation 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 financial hardship to
fulfill 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 first 12 hours of CLE taken in each calendar year for attorneys
employed full-time by many nonprofit 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.
6 substantive
Fax your AMEX, VISA, Mastercard or Discover
registration or order by dialing (717) 796-2348
Register at the Door. Please call ahead
to confirm date, time, location and space
availability.
Register Online. For more information,
to register or to order online:
http://www.pbi.org or e-mail: info@pbi.org
5
Easy Ways
You Can
Register
Name______________________________________________Atty.#___________________________________
Firm___________________________________________________________________________________________
Address___________________________________Email Address _________________________________
City _____________________________ State ___________ Zip _______________ County _____________
Phone ______/___________-____________________ Fax _____/____________-______________________
Cou r s e TiT l e:_____________________________________________________________________________
Anatomy, Injuries and Surgeries
Co u r s e si T e & Da T e:_____________________________________________________________________
As a member of both the PBA and the ________________________ county bar association, I have enclosed my
discount coupon in the amount of $________________ for my: � 1st � 2nd � 3rd � 4th � 5th PBI seminar.
Charge my: � � � � Exp. Date _________________________________
Signature___________________________________________Card No._________________________________
A check made payable to PBI in the amount of $_________________________ is enclosed. shs/sat-2/9/12
Book & Audio CD
Course Book (2012-7113) — $69
Audio CD (ACD-7113) — $39
Audio CD & Book Set (ACDS-7113) — $99
If you are ordering course materials separately, please allow two weeks after
the first program for the shipment of books and 4 to 6 weeks for shipment of
the CDs and book/CD sets.
Anatomy, Injuries and Surgeries
Philadelphia • Mon., April 30, 2012
Pittsburgh • Mon., April 16, 2012
Live Webcast • Mon., April 23, 2012*
Mechanicsburg • Mon., April 23, 2012
Simulcast • Mon., April 23, 2012
(14 Simulcast site locations listed inside)
3856
Tuition (includes course book and lunch)
Early* Standard
$279 r Member — Pa., or any co. bar assn. r $304
$259 r Member admitted after 1/1/08 r $284
$299 r Nonmember r $324
$99 r Paralegals attending with an atty. r $124
$129 r Paralegals attending alone r $154
$140 r Judges and judicial law clerks r $165
$130 r Judges and judicial law clerks r $155
(admitted after 1/1/08)
r Go to webcasts.pbi.org for
webcast tuition and to register.
Online tuition differs from live course tuition.
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

Philadelphia — Wed., May 16, 2012
The CLE Conference Center, Wanamaker Building
10 th Floor, Ste. 1010, Juniper St. entrance
(between 13 th & Broad Sts., opposite City Hall)
(with afternoon anatomy lab at Jefferson Medical
College)
8:30 am to 4:00 pm; check-in begins at 8:00 am
Faculty
Professor Samuel D. Hodge, Jr.
Sam Hodge, a skilled litigator, is a professor at Temple
University where he chairs the Legal Studies Department.
Professor Hodge’s second area of educational pursuits
is anatomy which he teaches at Temple’s Law School to
both J.D. candidates and in the Masters Program in Trial
Advocacy. He has received multiple teaching awards and
his interactive teaching style has been the subject of stories
in the New York Times, the Philadelphia Daily News, the
Chronicle of Higher Education, National Public Radio and
television. Professor Hodge’s research focus is in medicine
and the relationship of trauma to personal injury. His
most recent book, Anatomy for Litigators, was published
by ALI-ABA, the educational arm of the America Bar
Association. This text was the 2008 recipient of the Award
for Professional Excellence in the area of legal publications,
from the international Association for Continuing Legal
Education.
Hector Lopez, MD
Dr. Lopez is the Co-Director of the Human Form and
Development course for first-year medical students at
Jefferson Medical College. He is responsible for all aspects
of the dissection room experience. An Assistant Professor
in the Division of Anatomy, Department of Pathology,
Anatomy and Cell Biology, Jefferson Medical College, his
responsibilities include the anatomical sciences education
of medical and health professions students; he provides
courses in human pathology and supervises laboratories in
neuroanatomy, gross anatomy and cross-sectional anatomy.
A Unique, Once-in-a-Lifetime
Opportunity
• Learn the way med students learn: in the
anatomy lab, examining actual human
bodies, under the direction of an anatomist.
• “Choose your body part:” the bodies will
already have been dissected and prepared
in a manner that permits the demonstration
of any system or part that interests you.
• Email Sam at Temple885@aol.com to let him
know the issues you’re struggling with, so
that he and the anatomists can tailor the
course for you.
• Combine unique practical instruction
from Sam Hodge, reinforced with in-lab
demonstrations of the actual body parts.
• Low student/teacher ratio assures that you
see and learn just what you need.
• This program may already be sold out!
Enrollment limited to 40 people.
Medical School for Lawyers:
Into the Anatomy Lab!
This unique course, the morning with Sam Hodge and the afternoon in the anatomy lab,
is limited to the first 40 persons to enroll. Find out what your colleagues are raving about:
“Thanks for the amazing experience.”
Don’t miss this exciting opportunity to hone your knowledge of anatomy. Sign up
today—before your opponent does.
Sam and the anatomists will tailor this course to your needs. Email Sam at Temple885@aol.com to
tell him the anatomical issue that’s in your files.
If you have attended one of Sam Hodge’s Anatomy for Lawyers courses, you already
know the unique educational experience that Sam delivers in his lively multi-media
format. Now Sam teams up with the anatomists at Jefferson Medical College to take you
into the anatomy lab! Brush up on anatomy with Sam in the morning, and then join
him for an afternoon in the anatomy lab at Jefferson with professor Hector Lopez, MD,
assisted by several other anatomists and medical students, viewing prosected cadavers
and “touring” the human body. The “hands on”course will focus on the back, knee, and
shoulder, plus a number of systems of the body, but the anatomists will be happy to
demonstrate any body part at issue in a case you’re dealing with right now. Sam will be
with you the whole time to keep the doctors focused on what lawyers need to know.
Morning session at PBI’s CLE Conference Center in the Wanamaker Building
8:00 – 8:30 Check-In & Continental Breakfast
8:30 – 10:30 Brush-Up and Some Advanced Pointers on Systems of the Body
10:30 – 10:45 Break
Integumentary, skeletal, muscular, circulatory, endocrine, digestive, respiratory,
urinary, reproductive, nervous, and sense organs.
10:45 – 12:45 Brush-Up and Some Advanced Pointers on the Back, Shoulder & Knee
Parts of the spine, spinal cord, nerves, discs, mechanisms of injury, etc.; rotator
cuff injuries, shoulder joint; soft tissues, ligaments, muscles, bones, and joints.
How they work together and what happens when they don’t.
12:45 – 2:00 Lunch break — (lunch included in your tuition)
Walk to Jefferson Medical College Anatomy Lab
2:00 – 4:00 View Cadavers in the Anatomy Lab
6 SUBSTANTIVE
Book Available
Course Book (2011-7049) — $159
Participants will receive Sam Hodge's award-winning
book, Anatomy for Litigators, Second Edition, published
by ALI-ABA: 470 pages with more than 350 pictures,
illustrations, and charts ($159 value).
Include $6.00 shipping & 6% Pa. sales tax on all book orders — see
enrollment/order form.
Register early.
Limited enrollment.
This course sells out!
Tuition (includes course book and lunch)
Early* Standard
$499 n Member — Pa., or any co. bar assn. n $549
$399 n Member admitted after 1/1/07 n $449
$549 n Nonmember n $599
$399 n Paralegals n $449
$399 n Judges and judicial law clerks n $449
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
7012-shs-1/27/12-3856
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

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
Please photocopy registration form for multiple registrants.
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 sufficient course materials, seating and refreshment. Walk-in
registrations will be accepted on a space-available basis. Preregistered
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
confirmation 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 financial hardship to
fulfill 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 first 12 hours of CLE taken in each calendar year for attorneys
employed full-time by many nonprofit 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.
6 substantive
Fax your AMEX, VISA, Mastercard or Discover
registration or order by dialing (717) 796-2348
Register at the Door. Please call ahead
to confirm date, time, location and space
availability.
Register Online. For more information,
to register or to order online:
http://www.pbi.org or e-mail: info@pbi.org
5
Easy Ways
You Can
Register
Name______________________________________________Atty.#___________________________________
Firm___________________________________________________________________________________________
Address___________________________________Email Address _________________________________
City _____________________________ State ___________ Zip _______________ County _____________
Phone ______/___________-____________________ Fax _____/____________-______________________
Cou r s e TiT l e:_____________________________________________________________________________
Into the Anatomy Lab
Co u r s e si T e & Da T e:_____________________________________________________________________
As a member of both the PBA and the ________________________ county bar association, I have enclosed my
discount coupon in the amount of $________________ for my: � 1st � 2nd � 3rd � 4th � 5th PBI seminar.
Charge my: � � � � Exp. Date _________________________________
Signature___________________________________________Card No._________________________________
A check made payable to PBI in the amount of $_________________________ is enclosed. 7012-shs-1/27/12
Book Available
r Course Book (2011-7049) — $159
plus $6.00 S&H & $9.90 tax ($174.90)
Participants will receive Sam Hodge’s award-winning book,
Anatomy for Litigators, Second Edition, published by ALI-
ABA: 470 pages with more than 350 pictures, illustrations,
and charts ($159 value).
If you are ordering course materials separately, please allow two weeks after
the first program for the shipment of books and 4 to 6 weeks for shipment of
the CDs and book/CD sets.
Into the Anatomy Lab
Philadelphia • Wed., May 16, 2012
3856
Tuition (includes course book and lunch)
Early* Standard
$499 r Member — Pa., or any co. bar assn. r $549
$399 r Member admitted after 1/1/07 r $449
$549 r Nonmember r $599
$399 r Paralegals r $449
$399 r Judges and judicial law clerks r $449
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.
Call 1-800-932-4637 • www.pbi.org • fax 717-796-2348

Workers’ Compensation Practice & Procedure 2012
Course Planning Committee
Hon. Joseph Hakun
Workers’ Compensation Judge
Office of Adjudication, Malvern
Barbara L. Hollenbach,Esq.
Norris McLaughlin & Marcus, P.A., Allentown
John W. McTiernan,Esq.
Caroselli, Beachler, McTiernan & Conboy
Pittsburgh
Toni J. Minner, Esq.
Thompson, Calkins & Sutter, Pittsburgh
Vincent J. Quatrini, Jr., Esq.
QuatriniRafferty, Greensburg
Peter J. Weber, Esq.
Weber Gallagher Simpson Stapleton Fires
& Newby LLP, Philadelphia
Matthew L. Wilson, Esq.
Martin Banks, Philadelphia
Special Guest Speakers
Hon. Elizabeth A. Crum
Deputy Secretary for Compensation and
Insurance, Pennsylvania Department of Labor
and Industry
George Martin, Esq.
Martin Banks, Philadelphia
4 SUBSTANTIVE
Bringing you up to date on recent developments, focusing on today’s most important issues,
building on an award-winning tradition of excellence, this is it: THE program for every
workers’ compensation practitioner and judge, the debut of the newest edition of the bible of
Pennsylvania Workers’ Compensation Practice and Procedure, the best CLE event anywhere.
The course: fast paced, focused, thought provoking.
The manual: found in the chambers of the Commonwealth court, in workers’ compensation
judges’ hearing rooms, and on lawyers’ desks across the state; in hard copy and on CD-ROM,
the starting point on any issue, the definitive source—the bible.
5 minutes Welcome (8:25 to 8:30 Pittsburgh May 4, Philadelphia and simulcast
locations May 18; 12:25 to 12:30 Camp Hill May 14 and Philadelphia
May 17
30 minutes Recent Developments (begun)
Ever-popular debate-style roundup of recent cases
20 minutes Pending & Recent PA Supreme Court cases (begun)
Like it or not, these will change the practice
• Section 301e (Kriebel)
• Suspension of medical benefits (Givener)
• Earning power assessment (Shoap)
10 minutes Conundrums
• Adverse inferences on immigration status disputes
• Taxability of social security
• You’re entitled to an offest for unemployment compensation, but how do you get the info?
15 minutes How to Litigate an IRE Petition
20 minutes Pending & Recent Supreme Court cases (continued)
• Third party subrogation and Supersedeas Fund reimbursement (Excelsior Insurance)
• Subrogation and Section 23 (Frazier)
• Exclusion of workers’ comp injuries from UM/UIM coverage (Heller)
• Specific loss benefit calculation (Webber Brown)
20 minutes The New Non Bureau Computer
Special guest Liz Crum
5 minutes Questions and answers for Ms. Crum
15 minutes Break
30 minutes Recent Developments (concluded)
15 minutes Medical-Only NCPs & Related Issues
10 minutes Strategic Issues in Medical Reports
10 minutes Construction Workplace Misclassification Act
10 minutes Utilization Reveiw
10 minutes Burden of Proof
20 minutes Pending & Recent Supreme Court cases (concluded)
• Statutory employer (Six Ls)
• Voluntary retirement (Robinson)
• Mental/Mental issues (Payes)
5 minutes The Judge Takes the Bully Pulpit
10 minutes Questions & Answers

Dates & Locations
Camp Hill • Mon., May 14, 2012
Radisson Penn Harris, Routes 11 & 15
12:30 pm to 4:45 pm; check-in begins at noon
Pittsburgh • Fri., May 4, 2012
David L. Lawrence Convention Center
1000 Ft. Duquesne Blvd.
8:30 am to 12:45 pm; check-in begins at 8:00 am
Live Webcast • Fri., May 18, 2012
8:30 am to 12:45 pm; check-in begins at 8:00 am
Go to webcasts.pbi.org to register.
Philadelphia — You Choose
The CLE Conference Center, Wanamaker Building
10th Floor, Ste. 1010, Juniper St. entrance
(between 13th & Broad Sts., opposite City Hall)
r Thurs., May 17, 2012 — Afternoon
12:30 pm to 4:45 pm; check-in begins at noon
or
r Fri., May 18, 2012 — Morning
8:30 am to 12:45 pm; check-in begins at 8:00 am
Special Extra Credit Offer—
New Ethics Video
Simulcast • Fri., May 18, 2012
8:30 am to 12:45 pm; check-in begins at 8:00 am
Allentown
Bar Assn. of Lehigh
Co., 1114 Walnut St.
Chambersburg
Franklin Co. Bar Assn.,
100 Lincoln Way East
Doylestown
Bucks Co. Bar Assn.,
135 E. State St.
Easton
Colonial I.U. 20, 6
Danforth Drive
Erie
Bayfront Conv. Ctr., 1
Sassafras Pier
Greensburg
Westmoreland Co. Bar,
Assn., 129 W. PA Ave.
Johnstown
Univ. of Pittsburgh -
Johnstown
Living/Learning Ctr.,
450 Schoolhouse Rd.
Lebanon
Lebanon Co.
Municipal Bldg., 400
S. 8th St.
Meadville
Economic Progress
Alliance Conference
Ctr.
William J. Douglass Jr.
Corporate Conf. Ctr.
764 Bessemer St.
Media
Delaware Co. Bar
Assn., 335 W. Front St.
Mill Hall
Clinton Co.
Cooperative Ext.,
Resource/Education
Ctr., 47 Cooperation
Lane
Workers’ Compensation Practice & Procedure 2012
Name______________________________________________Atty.#___________________________________
Firm___________________________________________________________________________________________
Address__________________________________________________Email _________________________________
City _____________________________ State ___________ Zip _______________ County _____________
Phone ______/___________-____________________ Fax _____/____________-______________________
Cou r s e TiT l e:_____________________________________________________________________________
Co u r s e si T e & Da T e:_____________________________________________________________________
As a member of both the PBA and the ________________________ county bar association, I have enclosed my
discount coupon in the amount of $________________ for my: � 1st � 2nd � 3rd � 4th � 5th PBI seminar.
Charge my: � � � � Exp. Date _________________________________
Signature___________________________________________Card No._________________________________
A check made payable to PBI in the amount of $_________________________ is enclosed. shs-1/27/2012-3856
1 EThIcS
If you find yourself short a CLE credit, or in need of an ethics credit, sign up for the
premiere of Professionalism and Ethics Issues in Workers’ Compensation Practice, a
one-hour video program specially recorded by this faculty, shown shortly after the
main course in Philadelphia, Camp Hill, and Pittsburgh only.
Flash: If you have already met your ethics requirement for the year, the ethics course
will count toward your general 12-credit requirement (ethics credits can be used as
“wild cards).
r $39 Persons registered for Workers’ Compensation Practice & Procedure r $59 All others
New Castle
Penn State Coop. Ext. of
Lawrence Co.
Lawrence Co. Cthse., 430
Court St., 3 rd Fl.
Reading
Berks County Bar Assn.,
544 Court Street
Stroudsburg
Monroe Co. Bar Center,
913 Main St.
Uniontown
Penn State University
Fayette Campus
Eberly Corporate
Training Center, Route
119 North
Warren
Warren Library Assn.,
205 Market St.
Washington
Washington Co. Bar
Assn., 119 S. College St.
West Chester
Chester Co. Bar Assn.,
15 W. Gay St.
Wilkes-Barre
Kings College
Sheehy-Farmer
Campus Center, Lane’s
Lane
Williamsport
Lycoming Law Assn.,
25 W. Third St., Ste. 601
York
York College of PA,
Grantley Hall
Can’t Attend the Course?
Buy the Book
Workers’ Compensation Practice &
Procedure Book/Audio CD Available
r Book w CD-ROM (2012-7013) — $159
plus $6.00 shipping & 9.90 tax ($174.90)
r Two to five copies — $139 each
____________copies plus $6.00 shipping &
6% sales tax = $________________
r Six or more copies — $109 each
____________copies plus $6.00 shipping &
6% sales tax = $________________
r Audio CD (ACD-7013) — $49
plus $6.00 shipping & 3.30 tax ($58.30)
r Audio CD & Book/CD-ROM Set
(ACDS-7013) — $199 plus $6.00 shipping
& 12.30 tax ($217.30)
If you are ordering course materials separately, please allow two
weeks after the first program for the shipment of books and 4 to 6
weeks for shipment of the CDs and book/ audio CD sets.
Tuition (includes course book)
Early* Standard
$349 r Member — Pa., or any co. bar assn. r $374
$299 r Member admitted after 1/1/08 r $324
$399 r Nonmember r $424
$199 r Paralegals attending with an atty. r $224
$249 r Paralegals attending alone r $274
$175 r Judges and judicial law clerks r $200
(including WCJs, members & employees
of the WCAB, the WC Bureau & Dept.
of Labor & Industry)
$150 r Judges and judicial law clerks r $175
(admitted after 1/1/08)
(including WCJs, members & employees
of the WCAB, the WC Bureau & Dept.
of Labor & Industry)
or n 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.
*Registrations received 3 or more business days before the
presentation qualify for the Early Registration Discount.