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MONTHLY SUMMARY OF SIGNIFICANT PENNSYLVANIA WORKERS’
COMPENSATION CASES FOR MARCH 2005
SUPREME COURT CASES
Average Weekly Wage Calculation
Colpetzer v. WCAB (Standard Steel), No. 63 MAP 2003 (March 30, 2005);Zerby v. WCAB (Reading Anthracite Company), No. 194 MAP 2003 (March 30, 2005)
The sole issue involved the proper manner of calculating the average weekly wage in an instance where a Claimant received reduced or no wages during a pertinent period solely because of a prior work injury. Sections 309(a), (b) and (c) of the Pennsylvania Workers’ Compensation Act apply, respectively, to situations where the Claimant’s wages are fixed by the week, month, or year. Section 309(d) applies when the Claimant’s earnings are not fixed by the week, month or year, and requires that total wages earned in the employ of the employer in each of the highest three of the last four consecutive periods of 13 calendar weeks in the 52 weeks immediately preceding the injury be divided by 13 and the total amounts earned during these periods be averaged. Section 309(d)(1) controls if the Claimant has not been employed by the employer for at least three consecutive periods of 13 calendar weeks in the 52 weeks immediately preceding the injury. The real issue which was presented to the Supreme Court was whether a Claimant who has been receiving indemnity benefits for a prior injury is deemed to have been in the “employ of the employer” when collecting indemnity benefits. Stated differently, the issue presented was whether Section 309(d) controlled if the Claimant remained as an employee but was not actually working for wages, and was instead collecting indemnity benefits for a prior injury. The Supreme Court held that Section 309(d) did indeed control, that that in making the calculation under said section, relevant periods of compensated work disability for a prior injury should be included for a second work injury by using the average weekly wage that was already established for the first work injury. That is, during periods in which the Claimant is not working, and is instead collecting temporary, total disability benefits, the average weekly wage for the first injury should be included in the 13 week earnings for each calendar quarter for the second injury average weekly wage calculation.
COMMONWEALTH COURT CASES
Job Availability
City of Philadelphia v. WCAB (Shanks), No. 2316 C.D. 2004 (March 1, 2005)
The Claimant sustained a compensable injury on March 14, 1990, while employed as a fire fighter and an emergency medical technician for the City of Philadelphia. On January 25, 1996, the employer informed the Claimant that a fire communications dispatcher position had opened and he was to report for work on February 5, 1996. The Claimant never reported for work. The issue which presented was whether the fact that the Claimant would have effectively forfeited the normal retirement age of 45 for firefighters, thus causing him a loss of “qualitative benefits”, made the dispatcher position unavailable to him.
A job is not deemed to be available if, upon taking a position, the Claimant would suffer loss of qualitative benefits associated with the Claimant’s pre-injury position. St. Joe Container Company v. WCAB (Staroschuck), 633 A.2d 128, 130 (Pa. 1993). However, the Supreme Court has explained that qualitative benefits are not lost when those benefits are merely suspended. City of Philadelphia v. WCAB (Szparagowski), 831 A.2d 577 (Pa. 2003). In the latter case, had the Claimant accepted the job which was offered to him, he would have ceased to receive a pension payment only while employed, and the pension payment would have resumed in full once the modified job made available to him had ended. Therefore, the modified job was deemed to be “available”. In Shanks, were the Claimant to have accepted the dispatcher position, the Claimant would have received different pension benefits such that he would have to work an extra 10 years before retiring and would never receive certain pension benefits associated with his pre-injury position. Therefore, the dispatcher position was deemed to be “unavailable” to the Claimant because he would have suffered a “qualitative loss” in benefits associated with his former position by accepting the dispatcher position.
Course of Employment
Wright v. WCAB (Larpat Muffler, Inc.) No. 1584 C.D. 2004 (March 1, 2005)
The Claimant was employed as a mechanic. The employer’s place of business was located along side Route 51, a five-lane highway. Because the employer’s parking lot was under construction, the Claimant was instructed to park across Route 51 in the K-Mart parking lot. On April 7, 1998, the Claimant had punched into work, but decided to retrieve some auto parts for his personal vehicle that he wished to exchange. While crossing Route 51 to get to his vehicle, the Claimant was injured when struck by a car.
In denying the Claimant’s benefits on the premise that he was not in the course of his employment at the time of his injury, the Commonwealth Court relied on Giebel v. WCAB (Sears, Roebuck & Co.), 399 A.2d 152 (Pa. Cmwlth. 1979) (Claimant, an employee at a Sears retail store, slipped and fell in the store while shopping on her lunch hour but was deemed to be in a place where her presence was not required by the nature of her employment) and K-Mart Corp. v. WCAB (Fitzsimmons), 748 A.2d 660 (Pa. 2000) (Claimant, who during her lunch break, intervened in an attack on a co-worker who was stabbed by her husband and thereafter began experiencing nightmares, determined not to be in the course of her employment as she was not required to come to the aid of her co-worker or be at that location at the time of the alleged work injury). In the instant case, as the Claimant decided to retrieve some auto parts from his personal vehicle in order to exchange them, he was neither required by the nature of his employment to be crossing Route 51 at the time of the accident nor was he in the furtherance of his employer’s affairs in doing so.
Hearing Loss
McIlnay v. WCAB (Standard Steel), No. 1048 C.D. 2004 (March 11, 2005).
A claim for hearing loss must be filed within three years of the last exposure to occupational noise as required by the statute of limitations contained in Section 306(c)(8)(viii) of the Pennsylvania Workers’ Compensation Act. There is no “discovery rule” which extends the statute of limitations to three years from the date that the Claimant discovers that his purported hearing loss is causally related to exposure to hazardous noise in the work place.
Supersedeas Fund Reimbursement
Universal Am-Can Limited v. WCAB (Minteer), No. 1487 C.D. 2004 (March 16, 2005)
While indemnity and medical benefits may be reimbursed from the Supersedeas Fund, costs of prosecution and attorneys fees may not , and interest is not included in any indemnity and medical benefits which are reimbursed from the Fund.
Dismissal of Claim Petition with Prejudice
U.S. Airways v. WCAB (McConnell), No. 1978 CD. 2004. (March 17, 2005)
Numerous Claim Petitions were filed on behalf of the Claimant which were dismissed with prejudice as a result of a lack of prosecution. A Claim Petition may be dismissed with prejudice as the result of a lack of prosecution. However, the WCJ must made a finding to establish prejudice to the employer.
House Arrest
Keys-Pealers, Limited v. WCAB (Bricker), No. 1705 C.D. 2004 (March 18, 2005) [1]
A Claimant’s indemnity benefits may be suspended while the Claimant is under house arrest. However, benefits may not be suspended pursuant to the Claimant’s failure to apply for jobs which are deemed to be available to him. This is not a black letter rule. Whether a Claimant whose benefits have been suspended must pursue job referrals while in some form of incarceration depends on the terms of the house arrest. The terms of the house arrest determine whether a Claimant is required to pursue a proffered position. Here, the Claimant was under house arrest for approximately 21 hours per day. The balance of the day, during which time the Claimant was allowed out of the house, was to be used for personal needs, such as grocery shopping, laundry etc. This was not deemed to be sufficient time for the Claimant to apply for jobs to which he was referred. Similarly, the Claimant was deemed not to have earning power pursuant to Act 57 in that the jobs to which he was referred were not available to him.
Subject Matter Jurisdiction
MPW Industrial Services v. WCAB (Mebane), No. 1335 C.D. 2004 (March 29, 2005)
The employer filed a Petition to Review alleging that the decedent died as a result of a work related motor vehicle accident. The employer was attempting to forestall a tort claim. The Commonwealth Court held that the WCJ did not have jurisdiction to issue a determination that the decedent was not in the course and scope of his employment at the time of his death.
Pro Rata Payment of Indemnity Benefits
George v. WCAB (Conway Central Express), No. 2190 C.D. 2004 (March 29, 2005)
The Claimant sustained a compensable injury on July 18, 1996, while employed by Conway. Thereafter, the Claimant resumed work with JEM and sustained a second injury on October 7, 1997. Numerous petitions were litigated against both employers, and the WCJ determined that, as of February 11, 1999, the Claimant was disabled from both his 1996 and 1997 work injuries. As a result, liability for indemnity benefits was apportioned between the two employers. The Claimant ultimately entered into a Compromise and Release Agreement with JEM, releasing any and all claims for wage loss or medical benefits arising out of his October 7, 1997 work injury. The Claimant then filed a Petition to Reinstate against Conway, seeking reinstatement of total disability benefits for his 1996 work injury effective as of the date of the execution of the Compromise and Release Agreement. The Commonwealth Court held that the Claimant’s release of JEM had no effect on Conway’s proportional liability. Therefore, a reinstatement of temporary, total disability benefits in the context of the Claimant’s 1996 work injury was not appropriate.
[1] This case was previously designated as a Memorandum Opinion on January 4, 2005, and therefore not published at this time. |