Study Guide for the Pennsylvania Workers’ Compensation Law Section Specialty Certification Examination

Tom and several other attorneys prepared the below outline in preparation for the 2013 first ever PA Workers’ Compensation Law Section Specialty Certification Examination. Hope it helps you:

1. Exam Subjects

Preparation of all types of petitions and answers

Claim Petition – An injury arising in the course and scope of Employment related thereto

Employment Relationship – 4 elements
Right to Select the Employee
Power to fire or remove the employee
Direct manner of performance
potential power to control

NOTE: All employees in the construction industry are now subject to new construction workplace misclassification Act

EMPLOYEE DEFINED – all natural persons including executives who perform service (Executives can opt out by a written document) (Include illegal aliens)

Exceptions – Who is not an employee
Elected officials
Executive officers can opt out (If they have certain ownership interests in certains sub s or sub c as defined by tax reform code
Widow where spouse elects not to be covered
Job applicant


General Rule –
Natural Person
Profit and non profit
municipal corporations
government agencies
good samaritan if
Help is solicited
Not acting as mere volunteer
Where a third party agent – represents to the employee prior to his (employees) entering into a lease agreement that he (employee) would be covered; that employer is stopped from denying employer/employee relationship

Borrowing Employer can be Employer if Right to control work to be done (transfer of the right to select, hire and fire) and Manner of performing it
Irrespective of whether control is actually exercised
Example – Truck driver rented to another – the other can be sued because not an employer when employee injured in the plant
Contractor – various definitions of Contractor are set forth in sections 105, 203, 302(a) and 302(b)

Statutory Employer defined (Not defined in Act)-
Is a master who is not a contractual or common law but made by the Act
Once found to be employer by WCJ, ER is stopped from challenging the finding
Commonly applied to construction industry but can apply to municipality (Joe’s example – city festival)
Statutory Employer liable to employee of subcontractor unless subcontractor has WC insurance
Definition under 302(b) – 5 distinct Elements
contract with owner of land or one in the position of an owner
premises occupied or under the control (Must be in actual control, not just the mere right of control) of the contractor seeking statutory employer status
subcontract made by contractor
part of contractor’s regular business must be entrusted to the subcontractor under the contract; and
employee of subcontractor is injured on the premises
(An owner or lessee of land in possession and control of the premises cannot be a statutory employer)

Employer Defined under 302(a)- one who contracts with another
To have work performed consisting of
Removal, excavation or drilling of rock, soil of minerals OR
cutting or removal of timber from lands

To perform work of a kind which is a regular part of the business, occupation, profession or trade of such person shall be deemed a contractor and such other person a subcontractor
This does not apply to an owner or lessee of land principally used for agriculture who is not a covered employer under this Act and who contracts for the ?
removal of timber from such land
Distinction between Employee and independent contractor
Employee is servant who master controls – Tools and other implements of work are supplied by the masters and taxes withhold
Independent contractor – Factors to consider
Terms of agreement between the parties
Nature of work
skill of work performed
is employee engaged in the distinct occupation or business
which party supplied tools
whether payment is by time or job
whether work performed is part of the regular business of alleged employer
Right to Terminate
Right to control either the work to be done or the manner in which the work is to be performed (PRIMARY FACTOR)
Direction or control (The right to control and not the actual exercise of the right) (KEY ELEMENT)
Payment of wages – employee must be paid
Contractual relationship – and state and federal regulations
If actual employment relationship exists a subsequent agreement saying an independent contractor relationship exists does not mean the Employee is an independent contractor
Construction Workplace Misclassification Act (Effective 2/10/2011)
An individual who performs services in the construction industry for remuneration is an independent contractor only if all three of the following criteria are satisfied:
The individual has a written contract to perform such services
The individual is free from control or direction over performance of such services both under the contract of service and in fact
as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business
possess essential tools, equipment and other assets necessary to perform the service
can realize a profit or loss from the service
performs the service through a business in which the individual has a proprietary interest
maintains a separate business location
Previously engaged in similar services while free from direction and control
Maintains liability insurance of at least 50K
Miscellaneous Included Employees
Volunteer firefighters
Volunteer Ambulance
Volunteer rescue and life saving squad
volunteer members of state parks and forest program
PA deputy game protectors
Special waterways patrolmen
Forest firefighters
Volunteer members of hazardous materials response teams
Auxillary police
Special school police
Special fire police if nominated, confirmed and displayed a badge of authority
illegally employed still entitled and penalties will attach to employer if employer knew or should have known
Statutory exclusions
Casual employees are excluded
if employment is both casual in character AND
(Tests of casual nature are infrequent service at irregular intervals for a limited temporary purpose)
Or not in the regular course of business (Regular course of business means the normal operation that regularly constitutes the business in question)
not in the regular course of business of the employer
Home workers are excluded if
They are persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale in the workers’ home or on other premises, or under control or management of the employer
Domestic Service Unless
Employer purchase coverage (Precluded from using Domestic Service Defense) or
The EMployer elects to be covered and submits an application to the Board prior to any work injury, which application is approved by the WCAB
Babysitting considered domestic service
Catering work in a family business was not a domestic service and therefore a WRI was compensable
Agricultural workers are excluded unless
Employer is otherwise covered by the Act
The Employer, during the calendar year has paid wages totaling $1200 or
The employer furnishes employment to one ee in agricultural labor totaling more than 30 days
child of employer under 18 is not an employee unless written K filed with the Department
Conscientious objectors –
Licensed real estate salespersons or associate real estate brokers affiliated with a licensed Real estate Broker
Licensed insurance agent affiliated with a licensed insurance agency is exempt

To any Employee regardless of any pre existing condition including

Key is it is related to employment
Exposure to risk or disease if a
highly contagious nature
infection = potentially deadly = injury
Example – testing for hepatitis if exposed to disease as part of job

Need not point to specific event or definable incident as long as injury arose in the course of employment and is related thereto (Cumulative trauma)
Need to establish that each day in the workplace constitutes a separate trauma that substantially contributes to the ultimate inability to perform the time of injury job
Much litigation over recurrence versus aggravation for purposes of deciding which carrier
IW can’t collect more than the max comp rate if injured from two different employers (Act 44)
Section 322 allows two different carriers pay the Claimant benefits for two injuries when disability relates to two distinct injuries but cannot exceed max comp rate between both (Pro Rata basis based on DOI Comp Rate)
Where two separate WRI substantially contributed to EE’s ongoing disability apportionment of benefits between the insurers need to be based on employee’s earnings at the time of injury for each employer
Can get partial from one carrier and TD from another carrier – can’t be greater than statewise AWW
An injury unrelated to employee’s job is compensable if the injury is the proximate, natural and probable result of prior work related injuries

iii. Course and Scope of Employment – 301(c)(1)

Actually engaged in Furtherance of employer’s business
Employees do not depart from being actually engaged in the furtherance of the Employer’s business during leisure within regular hours during “momentary and temporary” departures from work routine, while administering to the employee’s personal comforts or during inconsequential or innocent departures from actually furthering the Employee’s business

Not in further of Employer’s business
Activity that does not further the Employer’s interest

Travelling Employees
If injured after setting out on the business of the Employer, presumption is that injury is in the course and scope
Must be distinct break in job duties before abandonment will be found
Coming and going rule – exceptions
Ee has no fixed place of work
2 different work site cases (Travelling between work sites – compensable)
Required to travel with work tools and go to different work sites on daily basis
Long term health care providers (one assignment – travel to and from not covered)
EE contract included transportation to and from work –
two elements
EE must prove that a travel allowance is related to the actual expense and time involved in the EE’s commute; AND
Employer provided or controlled the means of the commute
Sales rep given unfettered use of company vehicle – compensable
Act 44 provides that driving company car is not compensable unless ee actually engaged in course of employment – DESPITE THIS AMENDMENT employment contract (Contract provides for transportation) exception to coming and going rule continues to be valid
Mere permission to use a company vehicle for personal use does not constitute providing transportation
Special assignment or
Special circumstances are such that the employee was furthering the business of the Employer
Social and Athletic Activities
Premises and Parking Lot Cases
Does not include job applicants



V. Exclusions

Intentional self inflicted injury or death
BOP on The Employer
Chain of Causation Test to determine the compensability of a death by suicide – even when death is suicide the death is compensable where employee proves:
It occurred after there was an initial work related injury
which injury directly caused the EE to be dominated by a disturbance of the mind so severe as to override normal rational judgment
Disturbance resulted in suicide
Employee’s violation of Law
Illegal use of drugs
Caused by violation of law that is either a misdemeanor or a felony (Not summary offenses)
DUI alone is not enough – ER must prove intoxication caused the injury or death
Proof of conviction is not required
Employee’s violation of positive orders of Employer (Removes from the course and scope)
When an injury is caused by violation of a positive work order, the Employee knew of the positive work order before the DOI, and the order prohibited an activity not connected with the Employee’s work duties, no benefits are payable
Must be acting outside the realm of work activities
Negligent act does not preclude WC benefits
Example – trainmen running red light injured (Still awarded WC)
mere horseplay does not preclude WC
Personal Animosity (affirmative defense – ER BOP)
An injury caused by the act of a third party intending to injure an employee because of reasons personal to the third person and not directed against the employee because of the employment is excluded from the course of employment by Section 301(c)(1)

Work Injuries caused by intoxication
But for intoxication, the injury would not have occurred
Injuries that occur when using company car are not covered unless employee is engaged in the course of employment at the time
ER must establish intoxication was a substantial contributing factor to the injury
Magic words are not required
Hostile attacks
Injured from hostile attacks on the US or from military of us military

B. Reinstatement Petition

Periods of suspension do not count toward the 500 weeks during which partial disability benefits are payable
Consider – Must file petition to reinstate during 500 week period if in suspension status in contrast to Employee who receives 500 weeks of PD benefits has three years to file reinstatement petition
BOP – injured worker must establish
Reason for suspension no longer exists
Through no fault of his/her own
His earning power is once again adversely affected by the disability and
Disability that gave rise to original claim continues (Unclear if medical evidence is needed – Latta – no medical evidence needed
POST 500 week BOP (additional BOP for claimant)
No ability to generate earnings
Medical condition has worsened
Post discharge
Claimant must establish a worsening of medical condition to establish cannot perform pre discharge jobs
However, if discharged for pre work injury conduct, ongoing disability would presumably relate to WRI and ER has BOP to establish availability of work
Post work injury discharge, burden remains on IW

C. Employee Petition to review – 413(a)

Used by Claimant to correct material mistake that was made at the time of the agreement for compensation/NCP
To correct a mistake in the description of injury (corrective amendments)
a WCJ can do this sua sponte pursuant to second paragraph of 413(a)
To correct a mistake in the AWW or
to correct the DOI
Can also be used by ER for same purpose
The second paragraph of 413a is used where there is a change in injury dx subsequent to the issuance of the agreement (consequential conditions)
To modify or expand the dx of the injury
The petition to review may also be used for:
To review medical treatment or billing or
To challenge a benefit offset
To challenge a notice of change of disability status based on an IRE (to establish disability greater than 50 percent)

b. Elements of – LOU

1. specific loss – Payable for loss or permanent loss of use of members of the body, binaural hearing impairment of 10 %, loss of vision in one or both eyes and disfigurement.

2. Definition : Sword and shield , is the exclusive remedy and excludes consideration of any disability that usually flows from the injury.
3. Industrial Loss v. All practical intents and purposes. Old Act used the Industrial Loss standard for the proposition that you could not do your time of the injury job due to the loss. Current standard is that the loss be permanent and “for all practical intents and purposes”. This is a higher standard than the industrial loss. Issue of Fact DAH, not law.
Requires medical evidence is necessary.
Date of traumatic event SEEMS to be the rule but one STUPID Supreme Court case states that it is it is the date of the amputation that controls the AWW calculation. That case involved a “slow diminution” in the use of the soon to be amputated finger.
Can get both specific loss and regular injury TTD if there is two DIFFERENT injuries on two different dates. (Acme Markets v. WCAB) p 173 bible. but see section 322
No UC offset for specific loss because wages.
Separate and Apart. Can get both ttd and specific loss if you can show that the “injury” was “separate and apart”. from that which normally flows from that injury, then you get both. Example is a painful neuroma. (Rowan v. WCAB)
Bd can, in the use of its discressionary powers, determine that an employee is totally disabled even if the employee RTW and earns wages. On the other hand, there is presumption of total disability if the Claimant loses both hands, arms, feet, eyes or legs.
Subsequent injury fund: two different specific loss injuries and two different injury dates can get TTD after the expiration of the second specific loss and one of the specific losses can even be non work related.
3. Disfigurement of head, neck or face.

G/R: if “usually incident to employment” then you don’t get the scarring. Most cases hold; however that, for example, getting burned as a firefighter is NOT usually incident to employment.

3. Death Claims

c. Jurisdictional issues


1. GENERAL RULE: All injuries in Pa are PA injuries regardless of where contract is made. This has been upheld based on the Full Faith and Credit Clause of the US Constitution. Jay Lines Inc. v. WCAB) IF THE INJURY OCCURS WITHIN THE STATE OF PA, THE ACT APPLIES AND THE EXTRATERRITORIAL PROVISIONS ARE MEANINGLESS!


a. Developed by statute. Pa law can apply to injuries occurring outside of Pa if;

1. employment is “principally localized” (See ‘d’ below for definition) in PA ;

2. Contract for hire made in PA and not principally localized in ANY state;

3. Contract of hire made in Pa but principally localized in another state and that state’s comp Act DOES NOT APPLY!

4. Contract for hire made in Pa with employment outside of US or Canada.

b. Can’t get PA comp if getting it from other state or Federal Government for same injury. Get it, no SIMULTANEOUS collection of benefits, BUT can get PA benefits once the other jurisdictions benefits have ceased. (Merchant v. WCAB). Employer; however can get a credit for the other benefits paid from the other state once PA benefits kick in. Section 305.2(b).

c. GENERAL RULE: is if a PA injury and no other “REGULAR EMPLOYMENT” in at least one other state, then even if there is an agreement transferring jurisdiction to another state, the agreement is UNENFORCEABLE!. It will also be unenforceable if the other state refuses jurisdiction. (Creel v. WCAB)

– Also, if an agreement attempts to bind an employee to benefits of one particular jurisdiction avoiding the more favorable PA Act , such an agreement will not be enforced.

– If the employer is not insured under the ACT, the carrier insuring in the other jurisdiction will pay benefits due under that law and any difference due is the responsibility of the employer.

d. PRINCIPALLY LOCALIZED DEFINED: (This is one of the ways to get an injury occurring outside of PA back under PA jurisdiction). Employment is “principally localized” in Pennsylvania OR another state when:

i. Employer has or operates a business in this or another state and the employee REGULARLY works at or from such business;

ii. having worked at or from such place of business, his duties have required him to go outside of the State for under one year.

iii. CATCH ALL if one or two above he is domiciled and spends a substantial part of his working time in the service of his employer in PA or another state.

iv. Principally Localized in another state if

a. Employer has a place of business in that state and

b. Employee regularly worked at that place of business

e. Examples of where PA jurisdiction did not attach

i. Employer office in PA,

-Employee PA resident

-working in N.J.

-injured in N.J.

-70% work in PA

– HELD No PA jurisdiction attaches because Employer had right control activity in N.J.

ii. Out of State injury

– over the road truck driver

– working from Employers’ CUSTOMERS PA offices in PA

– employer had no control over these customers(Pugh v. WCAB)

iii. K for hire made in this state

– principally localized in another state

– NO PA JURISDICTION (General Electric v. WCAB)

iv. Where the WCJ decides K for hire made outside of PA,


v. If an employee fails to establish that the comp law of the other jurisdiction does not apply to the Employer, a claim under the ACT is NOT established.




– NOT LOCALIZED ELSEWHERE – Can show more time in PA then other state, EXAMPLE truck logs

showing percentage of time in PA

ii. Employee works for an employer on a

– per job basis

– with an ongoing employment relationship

– Contract for hire made in PA

– employment not principally localized in another state (Atkins v


d. Exclusivity of the ACT -(Jurisdictional and not an affirmative defense). There is under the STATUTORY section of 303 language that makes the Act mandatory and forbids law suits outside of the Act for injuries occurring under the Act against the Employer, Statutory Employer (in 1974 amendment), and co-employees. Applies even where statute of limitations for comp has expired BUT CAN SUE CIVILLY IF:

1. Employer failed to insure. If after January 8, 2007, can bring an action through/against Uninsured Employers Guaranty Fund.

a.. The Claim will not be against the Employers General Liability Carrier but rather against the employer’s employees First Party benefit Policy

2. Intentional Act/ Injury by an Employer

a. Must be distinguished from a negligent act

b. the action must be based on a misrepresentation to the employee by the employer (not a third party) causing an aggravation of the condition. See Martin v. Lancaster Battery- (Lost opportunity to avoid further exposure to lead by employer’s fraudulent concealment.)

3. Employee injures employee for “reasons personal” to that and is therefore, excluded from the Act.

4. Products Liability injury.

5. NOTE: Can NOT sue the KING . Sovereign immunity Doctrine still applies.

6. Borrowed Employees: Stays with original employer unless borrowing employer exercises control

5. Dual Capacity -Can sue if not in course and scope but employee injured on employers premises. Example: Employee injured at work and then further injured again when the x ray table was improperly maintained, injured the employer further. (Budzichowski v. WCAB) Dissent notes that might have a different outcome if the employee was injured in the company dispensary.

i. GENERAL RULE: As long as the employee is injured while actually engaged in the performance of the job, the dual capacity exception will not apply.

6. Employers negligent spoilage of evidence.

7. Discrimination

8. Wrongful discharge/retaliatory discharge. (Shick)

9. OSHA Claim not preempted by the Act.

10. Sexual Harassment but if harassment causes actual injury, the Comp is exclusive.

11. Defamation and

12 . Abuse of process.

13. MVFRL – can’t get comp and un/underinsured from employers policy unless the employer has purchased it for its employees.

e. Occupational Disease Claims under section 108 of the WCA



f. Exclusive remedy

A. GENERAL RULE: Where a Judge finds compensability under the Act, a civil suit by the employee against the employer will be barred. STATUTORY confirmed by decisional law.

1 applies to Statutory employer

2. Co-employee for death or injury

a. UNLESS there was a fraudulent, intentional misrepresentation.

b. Motor Vehicle Financial Responsibility Law Does not trump WC Act. therefore can’t sue co employee in tort for MVA occurring in the course and scope of employment.

3. General Contractor

a. in control and possession of the land/ construction site(BUT NOT AN OWNER OF THE PROPERTY OR PREMISES) .

b. by an employee injured while working for a sub contractor

B. . EXCEPTION : Applies even where statute of limitations for comp has expired BUT CAN SUE CIVILLY IF:

1. Employer failed to insure. If after January 8, 2007, can bring an action through/against Uninsured Employers Guaranty Fund.

a.. The Claim will not be against the Employers General Liability Carrier but rather against the employer’s employee’s First Party benefit Policy.

2. Intentional Act/ Injury by an Employer

a. Must be distinguished from a negligent act

b. the action must be based on a misrepresentation to the employee by the employer (not a third party) causing an aggravation of the condition. See Martin v. Lancaster Battery- (Lost opportunity to avoid further exposure to lead by employer’s fraudulent concealment.)

3. Employee injures employee for “reasons personal” to that and is therefore, excluded from the Act.

4. Products Liability injury.

5. NOTE: Can NOT sue the KING . Sovereign immunity Doctrine still applies.

6. Borrowed Employees: Stays with original employer unless borrowing employer exercises control

5. Dual Capacity -Can sue if not in course and scope but employee injured on employer’s premises (Example – Hospital Employee get injured on the job and then obtains medical treatment?).

6. Employer’s negligent spoilage of evidence.

7. Discrimination

8. Wrongful discharge/retaliatory discharge. (Shick)

9. OSHA Claim not pre-empted by the Act.

10. Sexual Harassment but if harassment causes actual injury, the Comp is exclusive.

11. Defamation and

12 . Abuse of process.

13. MVFRL – can’t get comp and un/underinsured from employers policy unless the employer has purchased it for its employees.


h. AWW

1. Salaried Employees – 309(e) – Act 57 is unchanged for salaried employees

2. Employees – 309(d) – Employed for more than 3 consecutive periods of 13 weeks

a. Average of the highest three of the last 4 consecutive periods of 13 calendar weeks

b. If absent due to WRI during some of the 52 week period, the AWW for the periods the IW was out for the other WRI would apply for those periods the IW was out of work. (Colpetzer).

3. Employees – less than a 3 completed quarters – 309(d.1)

a. Divide by 13 the total wages earned in the employ of the employer for any completed period of 13 weeks immediately preceding the injury and average the total amount

4. Employees – less than 13 weeks

a. Hourly rate multiplied by the number of hours the employee was expected to work. This is subject to WCJ credibility determination

5. Seasonal Employees –

a. Employment that cannot be carried on throughout the year, AWW is 1/50th of the total wages the Employee earned for the entire year prior to the WRI UNLESS it is determined that this does not fairly ascertain the earnings of the IW


a. Included if working at the time of WRI with other employer

b. Knowledge by ER is not required (Used to be prior to 1972)

6. Volunteer Emergency workers (covers all emergency workers that are volunteers – even retirees)

a. Section 601 – Irrebuttable presumption that their wages are at least equal to the SAWW for the purpose of computing comp under Section 306 and 307

i. Deposition and Discovery (LOU)




j. Direct and cross exam

1. Fact witnesses

2. Medical Witness

a. GENERAL RULE: Not necessary to present medical evidence where the injury is “OBVIOUS”.

b. “OBVIOUS” INJURY DEFINED: an act by an individual requiring force or strain and pain is immediately felt at that point of force or strain. (Northwest Med Center).

1. Example: employee feared returning to work after being shot. This was considered an obvious reaction to a physical stimulus and as such no medical testimony was needed. (Vactor v. WCAB).

d. Who can Testify? Key is are they a “Health Care Provider” under section 109 of Act 44, 77 P.S. s 29.

i. Chiro’s

ii. an Otherwise competent and properly qualified nurse may give medical testimony. ( Freed)

iii. Clinical Psychologist (Serrano)

iv. Psychologist

3. Judge Power and Evidence:

a. GENERAL RULE: Can accept or reject any medical witnesses’ testimony in whole or in part. (Hills Department Store)

b. The Judge can not deny a party the right to take a medical expert live versus at a deposition. (Otis Elevator)

c. The testimony from a single medical witness is a reasonable basis to arrive at a finding of fact in spite of conflicting medical evidence. (Robertson Controls Company)

d. Where the record as a whole supports causation, the Judge may award compensation( Stone Container and Unity Builders)

e. Judge may give more credibility to Claimant’s treating doctor than to IME doctor who examined the Claimant for purposes of giving testimony. (D.P Herk Zimmerman, Jr. )

f. The Judge may or can give more credence to an employee’s testimony regarding incapacitation pain than to a defense IME doctor even where no medical evidence is presented. BUT SEE ALSO, the court held that the employee’s testimony as to subjective complaints of pain was not sufficient to counter the employer unrebutted medical evidence. (World Kitchen Inc)

4. Medical testimony

a. The testimony of the medical expert may stray from his written report (Stech v. WCAB)

b Medical testimony is incompetent when the physician had no knowledge of the employee’s physical condition prior to the injury and did not review extensive pre-medical records that detailed prior extensive injuries to the same body part. (Southwest Airlines v. WCAB) BUT NOTE that not having all of the Claimant’s medical records goes to the weight given to the expert’s testimony not to his competency. (Huddy v. WCAB).

c. A medical opinion based on a faulty history from the Claimant in the medical records or medical records. (Newcomer v. WCAB) BUT SEE also, cases that a Judge finds the testimony of the Claimant more credible even though not consistent with medical records. (Calex, Inc. v. WCAB)

d. medical witness may express an opinion based on or in part of the medical records of others not otherwise in the record but customarily relied upon by the expert in the pratice of medicine. (Commonwealth v. Thomas). Therefore a chiro is not qualified to evaluate reports or studies of a neurologist. (Pistella v. WCAB).

e. The report of uncontrolled pain in the absence of such a finding in the past, can support a finding that a knee replacement is necessary is competent testimony. (City of Harrisburg v. WCAB)

g. At a bare minimum , the expert must know what the accepted work related injury was competent to testify that an employee has fully recovered ( Westmoreland County v. WCAB)

h. Where the medical witness did take into account the prior WCJ finding with regard to the nature of the work injury, and also concluded that the employee’s injury was not permanent, the opinion was not an impermissible collateral attack on the employee’s judicially established work injury. (Inservco Ins. Sevices v. WCAB)

4. “Combo Injuries”

a. Med evidence establishing disability from either of two compensable injuries with the same employer, the employee is entitled to compensation even though the employee may be unable to unequivocally establish which injury was the cause of disability (Halaski v. Hilton Hotel.)

b. Where the med expert attributes causation to two injuries but is unable to specify the degree of contribution each injury had to the employee’s disability , the medical opinion is not rendered equivocal.(East West Equipment Company)

c. Where an occupational and non-occupational disability co-exist, benefits are awarded if the occupational disability is a ” substantial contributing factor”. The test is the same for an occupational disease. (Bell v. WCAB). Substantial Contributing factor applies to injury and O.D. Claims.

i. a medical expert’s testimony that the Claimant’s ongoing work was a contributing factor but was unable to say it was a “substantial contributing factor” was insufficient as a matter of law to establish causation. (Chicoine v. WCAB) BUT SEE ALSO cases that state that a doctor is not required to use MAGIC WORDS such as “substantial contributing factor” or ‘Materially Contributed” or “cause in fact” . It is only necessary that the doctor’s testimony permit a valid inference that such causation was present. (Thomas Lindstrom Company)

5. Hypothetical Questions:

a. GENERAL RULE: can use them if

i. based on facts of record

ii. warranted by the evidence

iii. Can be valid even if only a portion of a medical witnesses testimony is given in response to a hypo if other unequivocal testimony is offered. (Cordero v. WCAB).

b. Objections

i. if objected to , the party objecting to the hypo must specifically identify the elements challenged to allow opposing counsel the opportunity cure the objection. (Serafin v. WCAB)

ii.and need to definitively state the particular grounds for the objection to preserve those points. (Borough of Morrisville.)

iii. Where the specific grounds are set forth are stated, all other reasons for the exclusion are and may not be raised on ????. (Marriott v. WCAB)

6. Hospital Records; can come in as evidence of the medical and surgical matters stated therein. Hearsay statements in hospital records may be admitted if “patholigcally germaine” to the condition that caused the employee , who later died to come the hospital to begin with . Section 422(b) and S.K.F. Industries Inc. v. Cody

7. IMPARTIAL PHYSICIAN; Can be appointed by a Judge to

a. Examine an employee;

b. Review Medical Records

c. and testimony

– to make a written report and to be available for examination by the parties at a hearing before the Judge. This is discretionary with the Judge.

8. PEER REVIEW: Act 44 allows. allows the Judge to obtain an opinion sua sponte when necessary or appropriate or by request of a party in order to rule on a review under section 306(f.1) or any other provisions of the Act. Rules for requesting the same are in 34 Pa Code s 127.601. The Judge can consider the report as evidence and he fixes the compensation for the peer review and payment is made from the Workmen’s Compensation Administration Fund.


Act 57 allows a report to be considered as evidence , on review petitions from URO’s but the WCJ is NOT BOUND by the report. the report can limit the number of prospective visits per month but man not SPECULATE that care six months into the future would no longer be needed because the employee’s condition will improve by the end of that time. (Snyder v. WCAB)


3. Voc Witness

4. Others

3. Voc Witness

4. Others

k. Presentation of Medical Evidence (TOM)

l. General evidentiary principles

a. . Judges are not bound by common law or statutory rules of evidence but all findings of fact must be based on sufficient competent evidence

b.. Judges have broad discretion

c. Admission by counsel is binding on client

d. Hearsay rule applies to all evidence offered

e. Exception – Section 422 permits the admission of medical reports unless the other party objects or the Claim is less than 52 weeks

i. Certificates can be from “Health Care Provider”, not just a qualified physician.

ii.UR decision cannot be used on causation issue – JD Landscaping

iii. The Commonwealth court has applied the Walker rule which does not allow hearsay to support a finding unless corroborated by other competent evidence of record. Therefore, Claimant’s testimony or testimony of any OTHER person.

iv. Medical record alone cannot support a termination of benefits

v. Medical reports are admissible for 52 week claim with a suspension and/or when disability is not an issue

vi. VE testimony about job availability, hours and wages or particular position is admissible hearsay


f. HEARSAY exceptions

1. Present Sense impression

2. Excited utterance

3. The existing mental, emotion or physical condition

4. Statement for purposes of medical diagnosis or treatment

5. Records of regularly conducted activity

Presumption of reliability of business record even if witness did not prepare the records

6. records of religious organizations

7. Marriage, baptismal and similar certificates

8. Family records

9. Records of documents affecting an interest in property

10. Statements in documents affecting an interest in property

11. Statement in ancient documents

12. Market reports, commercial publications

13. Reputation concerning personal or family history

14. Reputation concerning boundaries or general history

15. Reputation as to character

16. Admission by party opponent

Hearsay exception; testimony of declarant necessary

1. Inconsistent statement of witness

2. Statement of identification

3. Recorded recollection

Hearsay exception – declarant unavailable

1. Former testimony

2. Statement under belief of impending death

3. Statement against interest

4. Statement of personal or family history

5. Forfeiture by wrongdoing

COLLATERal Estoppel

UC decision is not binding on WCJ – Different standards based on different policies and procedures and goals

SSD decision probably does not stop Employer from asserting ability to work


Judge has authority to conduct any investigation the WCJ deems necessary (Section 420) – For example, WCJ can request a view of the scene


Where EE loses both hands, both arms, both feet, both legs or both eyes, there is a presumption of TD unless the Board otherwise determines – 306©(23)

Hearing loss in excess of 75 percent is total and complete – 260 weeks of benefits

IRE of 50 percent presumes total disability

Volunteer firefighters, ambulance corps, forest firefighters are conclusively presumed to earn wages at least equal to the Statewide average weekly wage whether employed, self employed or unemployed

In Occupational diseases cases where EE establishes the presence of the disease in occupation is a hazard and the employee is disabled as a result

Pleadings are deemed served on the date when properly addressed and mailed – Judge’s rule 131.11

Presumed disabled if discharged for conduct that occurred prior to WRI


Adverse inference applies in cases where an uncalled witness is within the reach and knowledge of one of the parties

WCJ not required to make adverse inferences

Privilege against self incrimination can lead to adverse inference

Adverse inference is not evidence and cannot in and of itself serve as substantial evidence


PRE 201 provides that judicial notice may be taken of adjudicative facts

A Judicially noticed fact must be one not subject to reasonable dispute if it is either:

a. generally known; or

b. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Can be taken sua sponte or by request


Lay Testimony – PRE 701 allows opinion testimony by lay witnesses – Limited to those opinions or inferences that are within the witness’ personal knowledge and can assist Trier of fact in evaluating the facts

Expert testimony

PRE 702 provides for expert opinion by a witness qualified as an expert by knowledge, skill, experience, training or education

Can rely on hearsay if it is the type that is customarily relied upon by the expert in the practice of the expert’s profession

Can rely on scientific evidence if it has general acceptance in the relevant scientific community

Opinions must be based on facts of record

Vocational experts must satisfy requirements under the regulations (123.202)

Act 53 of 2003 more restrictive (123.202a)


It is on the party seeking to change the status quo (Determined by the relief requested, not by form of petition)


Self inflicted death or injury – Section 301(a)

Injury or death of the Employee caused by the Employee’s violation of law (Must be clear and convincing, not just preponderance)

Illegal drug use – Act 44 – Section 301(a)

Injury but for Employee’s intoxication

Personal Animosity

Violation of positive work order or instruction given by Employer removing EE from course of employment

Proof of availability of work

Removal of EE from the labor market by retirement or otherwise

Not irrebutable

Reasonable contest

UR – including preauthorization requests that are denied

Evidence of a carnal relationship when attempting to terminate benefits based upon an allegation of a meretricious relationship – Cohabitation alone is not sufficient to establish a carnal relationship

Increased disability due to refusal of reasonable medical services under 306(f.1)(8)


Claim Petition – inability to do PI Job throughout the period of disability

To establish a statutory Employer

If modification is filed by Employee


m. Supersedeas fund and Subsequent Injury Fund Claims (JOE)

n. Offsets, Credits and Subrogation (Joe)

GENERAL RULE: If you pay for it, (employer, employee) you get it subject to proof. “GET IT” for claimant means they get the benefits without the reduction.



2. .



o. Interest, Costs, Attorney fees and Penalties (JMW)

GENERAL RULE: Awarded by Judge with specificity

EXCEPTION: Can be eliminated for delay or failure to show for IME

1. Interest

2. Costs

3. Attorney fees

4. Penalties

p. Change of Status. (Chapter 18)

GENERAL RULE: Workers’ compensation indemnity benefits may be suspended or modified by:

1. Return to work (Suspension/modification based on actual wages)

2. The filing of Notice of suspension/modification

Actual RTW

Must be filed within 7 days of RTW

20 days for EE to challenge from RECEIPT

Hearing scheduled within 21 days

3. Filing of a petition to suspend/modify

ER must file a Notice of Ability

Change of medical condition

Job Availability regardless of release to RTW of PI job

Supplemental Agreement

Final Receipt

4. Refusal of Reasonable Medical treatment (Suspension Petition (Forfeiture) – 306(f.1)(8)

Once reason for suspension no long exists, benefits can be reinstated

Employer must establish that it authorized the continued medical treatment

Treatment would involve minimal risk to patient and offer a high probability for success and prospects for employment

Employer not required to establish job availability

5. Refusal to comply with order for Medical exam or vocational evaluation

5. Incarceration after conviction – Section 306(a)(2) – Suspension

Self executing

Even if on work release or in halfway house

House arrest – Employer entitled to suspension

6. Failure to complete and return verification petition (BWC Form)

7. Voluntary withdrawal from Labor Market, i.e. retirement (Suspension Petition)

If employee is partially disabled and indicated that they are retired and have no intention of RTW, suspension is proper. Employer not required to establish JA.

No suspension if retirement forced by WRI

To prove retirement, Employer must establish by the totality of the circumstances that the Employee has decided not to RTW

EE presumed retired if PD and collecting SS old age benefits and a pension.

EE can rebut by establishing that engaged in good faith job search or can establish WRI prevents him/her from performing any job

Merely searching the internet and newspaper ads for jobs is not a job search

8. Voluntary withdrawal/Suspension for other reasons

Move out of the country – ER not required to meet Kachinski requirements

Self inflicted gun wound

Employee is totally and permanent disabled due to a subsequent non work related injury

8. Total or permanent disability from non work related condition

9 Employer job offers

10. Earning power assessment

11. Termination-

a. Special Term- 21 days date of assignment to get expedited hearing. wcj has 7 days to rule after the hearing.

b. Need competent medical unequivocal medical testimony.


1. Following bad faith of employee and then receipt of TTD, ER not required to establish job availability

q. Commutation/ C&R’s (TOM)


– Mediation


– Reinstatement after Commutation

– C&R

– Resolution Hearings

– Setting Aside C&R Agreements

– Informal Conference

I. Voluntary Mediation

a. General Rule: It is a way to bring the parties together using a Judge, not one that is hearing the case at least by rule.

II. Mandatory Mediation

a. Act 147 allowed mediation occurred no later than 30 day prior to the date set for

filing of briefs unless mediation would be futile.

b. Requires a Judge but not the presiding judge unless all the parties agree,

and requires the attendance of all parties who, by the way , are required to have authority to accept or reject

and settlement offers. Sanctions can be imposed under 131.59b(c) for

failure to comply.

(TAW)c. Not just for settlement but as stated under the Judges rules can be used to

narrow issues, adjustment of the claim, stipulation or other amicable


III. Compromise and Release

A. Allowed by Act 57 and reference the “Boards” authority but it is the Judge

that hears the case and appeal are not expected. THIS IS AN A



exists is due to the built in safeguards prior to approval including

– extensive questioning of the Claimant

– Judge’s evaluation of the the Claimant’s understanding

– Claimant’s stated understanding of the “full legal significance”

of the agreement.

B. C&R is to be submitted by the employer/insurer not the employer for

approval by the Judge with agreement in writing and properly

executed, ie. witnessed of notarized.

C. A “Bench Order” is not a Final Order and can be changed by the Judge

D. C&R’s can be used to get rid of current petitions.

E. A C&R executed along with a resignation = a voluntary resignation thereby

disqualifying a Claimant from Unemployment Benefits. (Lee v. UCBR)

– WCJ jurisdiction limited to powers setforth in the ACT. Settlement of

other matters including the above and

– grievances

– HRC complaints, etc. require

– separate agreements and consideration.

F. C&R needs to contain the following

1. date of injury or occupational disease

2. AWW

3. Nature of injury and listing of disability as total or partial

4. Comp Rate

5. amount paid or due and owing as of the date of stipulation and

amount due and owing in future

6. period of time compensation is to continue

7. subrogation

8. in the event of death,

– date of death

– name of surviving spouse

– names and ages of all children

and dependants as well as amounts due under section 307

9. listing of all benefits, (SSD, pension, retirement)

10. disclosure of issues in case and reasons for the stipulation

11. Notation that the Claimant was represented by an attorney of

their own choosing.

G. Judge’s approval must meet 3 criteria and be in writing

1. a finding that the Claimant understands the full legal significance of the


2. explicit language as to


– reasonable medical payments are ongoing or ceasing

3. vocational evaluation offer which can be waived.

H. Special C&R hearing is one that is requested in writing with a decision w/i 30 days

I. The parties can expressly provide that pending petitions can remain open for a decision on the merits while simultaneously settling FUTURE comp without affecting potential recovery under the Supersedeas Fund. DLIBWC v. WCAB (Ethn Allen )

K. If you agree to settle “all issues regarding medical expenses” no penalty will be allowed for failure to pay a medical bill for treatment prior to the C^R.

L. Even if executed, a C&R agreement is not final and binding if the employer withdraws the petition prior to the Judge approves the same. McKenna v. WCAB. PRACTICE TIP When compromising multiple injuries, it is advisable to file separate petitions for each date of injury.

M. Verbal agreements cannot be valid or enforceable if the Claimant dies. (Miller v. WCAB) Same goes for if the agreement is signed but a decision is issued especially where the agreement states that it is null and void if the CM dies before approval. (Crawford v. WCAB) Key is the specific language.

N. Where EE receiving benefits from two employers on a pro rata basis, settling with one will not allow you to seek reinstatement from the non settling party. (Geroge v. WCAB)


1. Use Sciarotta language for indemnity for a Claimant

a. getting SSD

b. may be eligible

2. Medical Benefits. you have to consider Medicare’s interest or even get Medicare approval if you are settling both meds and indemnity. Guidelines include;

a. CM has a “reasonable expectation” of Medicare benefits within 30 months of the settlement date AND > > > > > >.

b. Total Settlement for both FUTURE MEDICAL AND INDEMNITY is in excess of $250,000 OR

c. Cm is CURRENTLY Medicare eligible and the total settlement

is LESS than $25,000.00

3. Conditional Payments- In order to protect Medicare,

a lien inquiry should be made to determine whether any

Medicare conditional payments have been made and need to be repaid. 3.


s. Briefs, Findings of Fact, Oral Arguments before WCJ

GENERAL RULE: Parties have a right to file briefs and WCJ may require the filing of FOF/COL, briefs, and or memoranda (collectively closing argument)

Must include a certification of the contents of the record, including hearing dates, list of witnesses and exhibits – Judge’s rule 131.101(f)

Judge Rule 131.101(b) – Closing argument are not to be filed more than 30 days after the close of records which can be extended if request made within 30 day time periiod

Judge Rule 131.101(g) – If closing argument not made timely, Judge can make decision without parties’ closing argument

Minimum requirement of brief –

Short statement of question involved

Statement of facts by moving party

Counterstatement of facts by responding party


Short conclusions setting forth the relief sought

Proof of service

Statutory interest can be forfeited under section 435 for failure of EE to file a brief as directed

t. Special Rules of Administrative Practice before WCJ(JW)

GENERAL RULE: Parties are to submit BWC documents for same date of injury except report of injury

Preparation and full disclosure are the key words

At First hearing, moving party is required to make a full exchanged of relevant documents

Non moving party – 45 days to provide written response

Trial Schedule





u. Appeals to WC Board

Makeup – At least 3 but not more than 15 appointed by governor – one designated Chair

2. Need to file Supersedeas.



v. Original Petitions to WCAB (JW)

Generally, the WCAB does not take evidence. This was changed under Act 57 which removed WCAB’s right to take evidence which was previously allowed

BUT – WCAB has original jurisdiction –

1. Petition under 306(c)(23) – specific loss benefits in the case of multiple specific losses enumerated in statute – Both arms; both hands; both legs, both feet or both eyes

2. A petition for further medical expenses (Prior to 5/1/1972) 15.102

3. Appointment of guardian under Section 307 – Use when benefits are directly to a minor or incompetent and NO COURT APPOINTED GUARDIAN (Not exclusive jurisdiction)

4. Meretricious Relationship under Section 307 – (Defined as two individuals living together in a carnal way without the benefit of marriage)

5. Physical exam before 8/31/1993

6 Commutation

7. Trusteed Payments Under Section 317 – For Employers or carriers to avoid expense of periodic distribution. Done through a bank or insurance company – Entire amount paid to Trustee for periodic distribution

Can only be done where the lump sum payment is certain; i.e death or specific loss

8. Rehearing under Section 425 – Have to establish the WCJ’s award was caused by fraud, coercion or other improper conduct by any party in interest

9. Rehearing under Section 426 – Can be requested whenever WCAB makes an order

Must be filed not more than 18 months after WCAB takes final action but before commonwealth court enters a final order

Can only be done after WCAB enters an order

Appropriately granted where newly discovered evidence can be produced or where a party has not been given an opportunity to present its case

Where WCAB recognizes that new case law on issue

10. Attorney Fees

x. Special Rules of Administrative Practice and Procedure before WCAB

1. APPEALS: Must contain

a. name and address of the parties

b. date of injury

c. petition type

d. Bureau Claim number

e. circulation date of underlying decision.

f. statement of grounds for appeal errors of law with specificity.

2. Appealable orders

a. final Board Orders

b. Board Remand Orders

3. Time for appeals: 30 days after the entry of the Order not counting holidays, Saturdays or Sundays.

4. Standing for appeal: Must be an aggrieved party.

5. Petition for Review: Contents governed by statute PaRCP 1531 listing issue, questions presented

6. Unreported decision now allowed to be cited while vacated decisions cannot. Plurality opinions are not binding precedent.



y. Supersedeas before WCJ, WCAB and Commonwealth Court (LOU)

GENERAL RULE called a Petition for Review to Commonwealth Court and is filed at the level below the appealed decision. Not often granted by Commonwealth Court in Worker’s Comp case.


y. Appeals to Commonwealth Court and Supreme Court. (JOE)

z. Pennsylvania Rules of Appellate Procedure (JOE)



aa. Briefs, Oral Arguments before WCAB, Commonwealth and Supreme Courts. (LOU)

bb. PA Rules of Professional Conduct (Lou)



Act 72\ – Construction Worker Misclassification Act – (Requires Contract, et. al.)
Act 147 – Weyl rules – Scheduling order and mediation; uninsured guarantee fund created; case distribution rules for WCJs (No Judge can have over 75 percent of cases for county); WCAB – between 3 and 15 members;
Act 68 (2006) – Provides allocation of death benefits amongst worker children when residing with different guardians
Act 53 (2003) –
Eliminated BWC approval of VOC experts and instead required them to comply with rule of ethics for rehab counselors
Employee includes good samaritans and CL must suffer injury or death as result of rendering care at the location of emergency or crime and must be in the course of employment

Act 57 (1996) – significant change to PA WC Act
Offsets for pension, severance and old age social security
IRE added – (AMA Guidelines)
Modification without specific job referrals
Expanded treatment with Panel from 30 to 90 days
URO appeal process – took it from three levels to 2 levels
TNCP – 6 weeks to now 90 days
Affidavit of full recovery/special supersedeas
Penalties increased – 20 percent to 50 percent
LIBC form – notification
5 year sol for fraud
Act 1 – Hearing Loss
Test at 500, 1000, 2000, and 3000 hertz
Act 44-
medical cost containment
Unemployment compensation offset
Incarceration – suspension
1972 Amendments
From Accident to injury

Substantive vs. Procedural
Substantive – statute in effect on date of injury governs substantive rights of the parties –
Claims for disability
Funeral benefits
Weekly benefit rates
requires a change in amount of weekly benefits, medical and related expenses
Procedural –
Manner claim is brought
Interests, costs, penalties and counsel fees
Procedure for litigation
The Numbers of Workers Compensation (Present day)

Notice/Denial within 21 days
If ER not notified within 21 days, ER is only responsible for compensation after date of notice
120 days to provide notice from Discovery – (Knew or should have known)
3 years to file claim from Date of Injury or Discovery
OD claims – Must have exposure within 300 weeks
Employer who employed Claimant last is responsible for loss if employed for at least one year
If worked for less than one year, then Employer who employed most time during last 300 weeks is liable
If two employers within 300 weeks, last longest Employer is liable
Hearing loss – must have had long term exposure to hazardous occupational noise within three years – Last exposure is liable
Greater than 10 percent loss
Traumatic loss – same rules apply
Death Claim – Must file Claim for underlying injury within 3 years of date of injury
Must file death claim if death due to work injury within three years of death but death has to occur within 300 weeks of the date of injury.
TTD and then suspension – 500 weeks to file reinstatement
TTD followed by partial followed by suspension – Petition must be filed within 500 weeks less weeks partial paid and benefits suspended
In all cases, can reinstate within 3 years of last payment (Whichever date is later)
500 weeks partial paid – reinstatement must be filed with three years of last payment
Special Termination
File within 21 days of exam
Hearing date within 21 days of NOA
Supersedeas decision within 7 days of hearing
NOS/NOM – Section 413
Challenge within 20 days of receipt of NOS/NOM
Challenge hearing – within 21 days of filing challenge