Case Law Updates

December 13, 2011

Positive Work Order
Habib v. WCAB (John Roth Paving Pavemasters), No. 2612 CD. 2010 (filed August 12, 2011)


The claimant filed a claim petition after sustaining a cut to his right eye, which resulted in a total loss of the eye. The injury happened after the claimant repeatedly took a sledgehammer to a bowling ball that was found next to the job site. Prior to the injury, the foreman had told the claimant to stop striking the bowling ball.


The claimant was not entitled to benefits because he had violated a positive work order. The Commonwealth Court noted that the question of whether a claimant is in the course and scope of his employment is a question of law, which is subject to review by the Board and the Commonwealth.


Undocumented Alien Workers
Kennett Square Specialists v. WCAB (Cruz), No. 636 CD 2011 (Filed October 19, 2011)


While testifying in support of a claim petition, the claimant refused to answer questions concerning his immigration status, and instead pled the fifth. The Employer presented medical evidence which confirmed a work-related injury, but which established that claimant was capable of modified duty work. The WCJ granted the claim petition, but suspended wage loss as of the date of injury. The Workers’ Compensation Judge drew an adverse inference from the claimant’s refusal to testify, upon which he based his finding that the claimant was an undocumented alien worker.


The decision to suspend benefits was reversed. An adverse inference alone, is not sufficient to support a finding that the claimant was an undocumented alien. An adverse inference goes towards the credibility of the evidence presented by the party with the burden of proof. An adverse inference is not evidence and cannot satisfy a party’s burden of proof.


Voluntary Removal from the Workforce
Dep’t of Pub. Welfare/Norristown State Hosp. v. WCAB (Roberts), No. 1677 CD 2010 (Filed June 21, 2011)


If an employer can show that the claimant voluntarily withdrew from the workforce by retiring, the employer does not need to show that the claimant has been referred to open positions and failed to follow through or that work is generally available. Once retirement has been established, the burden shifts to the claimant to show that he is still seeking employment after retirement or that he was forced to withdraw from the workforce due to the injury.


Fee Review
Roman Catholic Diocese of Allentown v. Bureau of Workers’ Compensation Fee Review Hearing Office, No. 2711 C.D. 2010 (Filed October 28, 2011)


A claimant was treated by EMS personnel and transported by EMS to the hospital (Provider). The injury was accepted as work-related. The Employer issued an Explanation of Benefits that approved payment for inpatient hospital services, but which reduced the charges by almost $270,000.00. The Provider filed a fee review.


The Bureau determined that the Provider was entitled to the full amount and ordered the Employer to pay the outstanding amount, plus interest. The Hearing Officer agreed.


The Court affirmed, noting that a provider can file a fee review no more than 30 days after receiving notification of disputed treatment or 90 days following the original billing date for the treatment, whichever is later. The Court also noted that the claimant’s work injuries were immediately life-threatening and/or urgent for purposes of the trauma center exception in Section 306(f.1)(10) of the Act.

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