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April 2018

Sixth Edition




Spring has sprung (I hope)!


1. In a continuing Claimant oriented trend, the Pennsylvania Supreme Court has held that the Pennsylvania Workers’ Compensation Act does not allow for the disgorgement of unreasonable contest attorney’s fees previously paid to Claimant’s counsel, even after an Appellate Court ruling that such fees were not in fact due and payable.  County of Allegheny v. WCAB (Parker), 177 A.3d 864 (Pa. Jan. 18, 2018).  This decision overturned the Commonwealth Court’s Opinion and Order granting such a repayment to the Employer/Carrier.  In reversing Commonwealth Court, the Supreme Court noted that the Lucey and Barrett cases cited by Commonwealth Court did not in fact support their holding.  Therefore, even the Barrett case itself supporting the disgorgement of costs was not necessarily correct.  Basically, the Supreme Court found that the Act did not provide for such disgorgement and, with respect to attorney’s fees, the threat of same would have a chilling effect on the enforcement of claimants’ rights and employers’ responsibilities under the Act.  Accordingly, Commonwealth Court was overruled and said attorney’s fee repayment disallowed.


2. The Commonwealth Court has extended the Supreme Court’s Phoenixville Hospital holding in Smith v. WCAB (Super Valu Holdings Pa, LLC), ______ A.3d _______ (Pa. Cmwlth. 2018) [No. 796 C.D. 2016, filed January 5, 2018, Simpson, J.].  The Smith case involved earning power assessment efforts by the employer where the claimant actually pursued the jobs being identified.  After the employer’s filing of a Modification Petition based upon a labor market survey, the Judge granted same which was affirmed by the Board.  Claimant appealed this decision to reduce his benefits following a work injury to his head and neck to Commonwealth Court.  The Court held, inter alia, that there was substantial evidence that only two of the five positions that the vocational counselor had identified remained open and available to claimant to support the Judge’s findings that substantial gainful employment existed, and said modification could not be granted without evidence that the positions remained open until such time as the claimant was afforded a reasonable opportunity to apply for same.  Moreover, the employer had the burden of proof regarding said facts under the Modification Petition.  This case is important because it permits an aggressive claimant the opportunity to prove by their own actions whether or not a labor market survey job actually exists or not.  Therefore, this area of the law is devolving into a Kashinsky type situation where, if a claimant finds out through her own inquiries that a job is not actually open and available, said job will not be eligible to modify a claimant’s benefits in an earning power assessment case.  This is reminiscent of the old actual job referral days which further erodes the effectiveness of labor market surveys as they were initially intended to be under the Act.


3. In a course and scope of employment case involving a flight attendant parking in a designated employee parking lot not owned by the employer, claimant’s fall while boarding the employee shuttle bus occurred on premises integral to the employer’s business and was therefore a covered work injury under the PA Workers’ Compensation Act.  US Airways, Inc. v. WCAB (Bockelman), No. 612 C.D. 2017 (Feb. 22, 2018); Section 301(c)(1) (77 P.S. 411(1)).  In yet another extension of parking lot coverage, this case shows the application of the Workers’ Compensation Act even upon premises not owned by the employer.  The key fact in this case was that the employer provided parking and shuttle service to transport employees from the parking lot to the airport at no cost.  Employers should therefore be careful when providing for employee parking and possible shuttle transport to the job site since this can be construed as an extension of the employer’s premises under Section 411(1) of the Act.


4. The case of Whitfield v. WCAB was argued before the Commonwealth Court en banc in March 2018.  Some of you may have seen this argument on PCN television that month.  Whitfield involves four related cases currently on appeal to Commonwealth Court regarding the extent of retroactivity of the PA Supreme Court’s Protz decision decided last year.  The main theory of claimant’s counsel was that there should be reinstatement after a suspension, regardless of whether the constitutional issue was preserved by claimant below, because “the reason for the suspension no longer exists”, i.e. the entire impairment rating statute involved was declared unconstitutional by the PA Supreme Court.  This is a Pifer/Latta argument, and Backsalary was also cited by claimant’s counsel as support for complete retroactivity when a constitutional violation has occurred.  While Backsalary was a Federal Court case, it is an analogous situation to the case at bar.  We will keep you advised what the Commonwealth Court decides.  Certainly, if the Court expands the retroactivity of the Protz decision, this will only further disrupt the market and cause further litigation below.  We shall see.












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