Case Law Updates

November 8, 2011

Zero Impairment Rating
Westmoreland Regional Hospital v. WCAB (Pickford), No. 1188 CD 2009, filed September 23, 2011

A zero impairment rating does not render an IRE invalid. The AMA Guides requires objective evidence before a condition can be rated. In the absence of such evidence, an impairment rating of anything more than zero would violate the AMA Guides.


Here, the IRE doctor found no objective evidence or any sensory or motor impairment of two work-related conditions on the date of the IRE examination, and assigned a zero impairment rating for both. The Court upheld the impairment rating and granted a modification of benefits, finding that the IRE doctor had acknowledged the work injury and that he had simply found no objective evidence or signs of impairment of those conditions on the day of the IRE. The Court recognized that an impairment rating must be based on the claimant’s condition as of the date of the IRE.


Course and Scope Analysis
Lewis v. WCAB (Andy Frain Servs.), No. 1501 CD 2010 Filed September 22, 2011

A course and scope analysis requires a claimant to prove whether he was engaged in furtherance of the employer’s business or affairs at the time of the injury. To determine whether an employee was actually engaged in furtherance of the employer’s business or affairs, the nature of the employment and claimant’s conduct must be taken into consideration.


Werner v. WCAB (Greenleaf Service Corp.), No. 25 CD 2011, Filed September 1, 2011

A wife filed a fatal claim petition after her husband passed away from an intracranial hemorrhage. The husband had a home office in his basement and the specific circumstances surrounding his injury were unclear.


In denying the fatal claim petition, the Commonwealth Court noted that the record was unclear as to causation, location, and time of injury. Most critically, there was nothing to demonstrate what the husband was doing when he was injured. Accordingly, the wife failed to establish that her husband was injured in the course and scope of his employment.


Abnormal Working Conditions
PA Liquor Control Board v. WCAB (Kochanowicz) (Pa. Cmwlth. No. 760 C.D. 2010, filed September 20, 2011)

Here, the claimant filed a claim petition after being diagnosed with post-traumatic stress disorder following an armed robbery at the retail liquor store in which he worked. The Commonwealth Court reversed the granting of a mental/mental claim because the employer presented evidence of 99 robberies of its stores in the same geographic area since 2002, including four store robberies in close proximity to the claimant’s store location within weeks of the robbery at the claimant’s store. The Commonwealth Court found that robberies are a normal condition of retail liquor store employment, by taking into consideration the frequency of robberies and the proximity of the recent incidents.


Termination Petition
O’Neill v. WCAB(News Corp. Ltd.), No. 2203 C.D. 2010, Filed June 15, 2011 (Published September 15, 2011)

The Court once again emphasizes that a medical expert need not necessarily believe that a particular work injury actually occurred and that an opinion is competent to support a termination of benefits if the medical expert assumes the presence of a previously accepted work-related injury and finds that it has resolved by the time of his examination.


Here, the claimant cited to portions of the IME doctor’s testimony to argue that he rejected her work related injury. A review of the IME doctor’s testimony, however, demonstrated that he accepted the diagnoses, that he established a history of symptom magnification, and that he found claimant fully recovered by the time of the IME, notwithstanding his skepticism. The testimony was sufficient to support a termination of benefits.

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