Commonwealth's Contributions to PSERS Are Not Offset From W.C. Benefits

In Pittsburgh Board of Education v. WCAB (Dancho) the issue was offset for pension contributions of the Commonwealth to the Public School Employees Retirement System. The WCJ accepted the argument of the Employer School District that it was an agent of the Commonwealth, therefore the pension offset should be in the amount of both the School District's and the Commonwealth's contributions to the Claimant's pension. The Board reversed and the Commonwealth Court affirmed, noting that the Commonwealth is not and could not be the "employer liable for the payment of compensation," the party entitled to an offset for its pension contributions under Section 204(a). The Court did not address the effect of the policy in place since June 30, 1995 whereby the school district makes the contribution of the school district and the Commonwealth and is then reimbursed for the Commonwealth's share. The Court stated this issue was not raised below.

Claimant Cannot Reinstate By Offering Evidence That He Could Never Do The Job In The Prior Modification

In R. Williams v. WCAB (Hahnemann University Hospital) the Claimant was modified by Order of the WCJ, then petitioned for reinstatement after the 500 weeks expired. The Claimant's burden, of course, is to prove the Claimant cannot perform the job that was found available in the prior modification petition and can perform no work. In Williams, the Claimant presented medical and vocational evidence that he was never able to perform the work he was found capable of performing in the prior petition. The Commonwealth Court held this evidence that contradicted the prior findings of the WCJ was incompetent, and did not meet the Claimant's burden for reinstatement.

Commonwealth Court Holds No Pension Offset Unless Employer is Self-Insured

In Welliver McGuire, Inc. v. WCAB (Padgett) the Commonwealth Court addressed the argument that an Employer is not entitled to offset for a pension if the Employer is not self-insured. Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corporation), 794 A.2d 953 (Pa. Cmwlth. 2002), petition for allowance of appeal granted, 820 A.2d 700 (Pa. 2003) held the Employer is not entitled to an offset for severance benefits unless it is self-insured. The Court applied the reasoning in Kramer and held an Employer is entitled to an offset for the Employer's contribution to a pension only to the extent it is self-insured. This decision will be impacted by the Supreme Court's holding in Kramer, which will be argued in Harrisburg on December 2, along with Colpetzer/Zerby.

Commonwealth Court Remands Case to Board to Explain How the Range of Weeks Most Judges Would Award For Disfigurement is Arrived At

In Lord & Taylor v. WCAB (Bufford) the record supported only a finding that a scar that is three-quarters of an inch to an inch in length is permanent and related to the work injury. The WCJ awarded thirty weeks. The Board stated the award was significantly outside the range most judges would select. Without stating the range, the Board awarded 100 weeks. The Commonwealth Court remanded for the Board to explain 1) what disfigurement is covered by the award; 2) what is the range most WCJ's would award; and 3) how the Board arrives at that range. The Board can then state whether the WCJ's award fell in the range, and modify the award if it did not.

Treatment of Low Back Pain News

The World Health Organization released a report entitled The Burden of Musculoskeletal Conditions at the Start of the New millennium. The report indicated Low back pain has reached epidemic proportions being reported by about 80% of people at some time in their life. Total costs of musculoskeletal disease in the US in 2000 have been calculated at US$254 billion.

On the treatment front, spinal endoscopic adhesiolysis was found effective in a study reported in Doctor's Guide, as was the IDET Procedure in a study recognized as an outstanding paper by the North American Spine Society.

When spinal fusion is contemplated, another study recommends the use of the Dallas Pain Questionnaire to predict the outcome of spinal fusion surgery. According to the study, "the largest risk factors for inferior outcomes after spinal fusion are the pre-procedure existence of emotional distress, previous surgery and a status of not working."

Take a one hour CME course in the assessment and treatment of low back pain

No Specific Loss of Foot When Ankle is Useless

In Maple Creek Mining Co. v. WCAB (Bakos) the Employer moved to suspend benefits alleging the Claimant's ankle injury resolved into a specific loss of the foot. All the doctors testified the Claimant had lost the use of his foot based on the condition of his ankle. The WCJ and Board dismissed the case, and the Commonwealth Court affirmed. The Act does not provide for specific loss of the ankle, and there was no amputation. Accordingly, The Court held there is no statutory provision that allows the relief the Employer was seeking.