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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN PENNSYLVANIA WORKERS’ COMPENSATION IN 2021

What’s Hot in Workers’ Compensation, Vol. 24, No. 12, December 2021

December 1, 2021

by Francis X. Wickersham

1.    The Commonwealth Court holds that if the 120th day for notice of a work injury falls on a weekend or holiday, notice is extended to the next business day, pursuant to the Statutory Construction Act. 
Holy Redeemer Health Systems v. WCAB (Figueroa), 245 A.3d 355 (Pa. Cmwlth. 2020)

The Statutory Construction Act provided that the 120-day notice period for a workers’ compensation claimant to report her work injury to her employer did not end on a Sunday. Thus, the claimant’s report came within the notice period of the Workers’ Compensation Act, in the employer’s appeal from adjudication of the Workers’ Compensation Appeal Board awarding benefits, even though the claimant’s report was made on the 121st day and would otherwise be one day late. Although the claimant’s employer was open for business on Sunday, the legislature did not include language in the Workers’ Compensation Act to make calculation of the notice period dependent on whether an employer operates over the weekend.

2.    The Pennsylvania Supreme Court holds that under § 306 (a.1) of the Pennsylvania Workers’ Compensation Act, an employer is not entitled to reimbursement of benefits paid to a claimant during a pre-conviction incarceration. 
Carl Sadler v. WCAB (Philadelphia Coca-Cola Company), 244 A.3d 1208 (Pa. 2021)

Because the claimant was not incarcerated during any period of time after his conviction, no basis existed for termination of his benefits as a result of his incarceration.  The clear language of §306(a.1) of the Act authorizes the suspension of benefit payments only during periods of incarceration served after a conviction and makes no provision for suspending benefits during periods of incarceration served prior to a conviction. 

3.    Commonwealth Court addresses the retroactivity of the Supreme Court’s decision in Whitmoyer, holding an employer is required to reimburse medical payments as of the date Whitmoyer was decided, not as of the date of a signed third party settlement agreement.
Beaver Valley Slag Inc. v. Jason Marchionda (WCAB) and Jamie Young, Guardian v. Beaver Valley Slag, Inc. (WCAB), 247 A.3d 1212 (Pa. Cmwlth. 2021)

According to the Court, the Supreme Court's Whitmoyer ruling, which held that § 319 of the Act precluded employers from subrogating future medical benefits after a Third Party Settlement Agreement (TPSA) was executed, did not apply retroactively to the date of the 2014 execution of the TPSA, but applied as of the date of the Whitmoyer decision.

4.    A judge’s determination that claimant sustained a disabling, work-related injury was not based on impermissible speculation as the judge believed the claimant and found sufficient corroborative evidence in the record to support her testimony. 
West Penn Allegheny Health System, Inc. and BrickStreet v. WCAB (Cochenour), 251 A.3d 467 (Pa. Cmwlth. 2021)

Injuries sustained by the claimant from a ride on the employer’s shuttle bus are found compensable, even though no injury was shown on video of shuttle bus, which was pulled by the employer based on the claimant’s description of driver. The employer was entitled to a credit for the gross pre-tax amount of the claimant’s short-term disability payments, rather than the judge’s award for the amount the claimant received.

5.    Commonwealth Court holds that Act 111 applies to injuries that occurred prior to its enactment and that the employer is credited for payment of pre-Act 111 temporary total disability benefits and partial disability benefits relative to their obligations under Act 111 for IREs.
Johnny Pierson, Jr. v. WCAB (Consol Pennsylvania Coal Company LLC), 250 A.3d 547 (Pa. Cmwlth. 2021)

Revision of the Workers’ Compensation Act to include a provision requiring the claimant to submit to an impairment rating evaluation (IRE) after receiving total disability compensation for a period of 104 weeks did not constitute unconstitutional delegation of legislative authority.

6.    Primarily because of the employer’s ownership and control of the availability and use of its trucks, the decedent driver of a tow truck was an employee at the time of his work-related fatality. 
Berkebile Towing and Recovery v. WCAB (Harr, State Workers’ Insurance Fund and Uninsured Employer’s Guaranty Fund), 254 A.3d 783 (Pa. Cmwlth. 2021)

An employer-employee relationship existed between the tow truck driver and the towing business, as required for an award of fatal claim benefits under Workers’ Compensation Act to the driver’s surviving minor children following his work-related death. While there was a written agreement between the business and the driver stating no employment relationship existed, the driver had the ability to decline jobs, was paid per job, was responsible for his own income taxes, and the business had the ability to exercise significant control over the driver’s work. The business owned the truck bearing its name and the information the driver needed to do his job, the driver was not allowed to use or lend the truck for work not with the business, the business set rates and collection of payment for jobs performed, the driver was on call on “24/7” basis, and the business could stop assigning the driver calls and reclaim its truck at any time.

7.    Commonwealth Court holds that a suicide was not intentional and, therefore, the fatal claim was compensable. 
South Eastern Transportation Authority (SEPTA) v. WCAB (Hansell), 255 A.3d 689 (Pa. Cmwlth. 2021) 

The employee’s lower back injury directly caused the employee to become dominated by a disturbance of the mind so severe it overrode normal rational judgment and culminated in the employee’s suicide.

8.    Injury sustained by claimant as a result of a fall from a shuttle after it arrived at a building where claimant was reporting for work was compensable.
Maurice Stewart v. WCAB (Bravo Group Services, Inc.), 258 A.3d 584 (Pa. Cmwlth. 2021)

The claimant was entitled to compensation benefits for an injury sustained upon his arrival at the front entrance of the employer’s building when he slipped and fell off of a shuttle. At time of his injury, the claimant had already arrived at the building where he worked. The shuttle took the claimant to the front entrance, where it stopped a few feet from the revolving doors of building. The claimant slipped and fell a few feet from the front entrance, a place where the employer’s business or affairs were being carried on. The claimant’s presence was required by the nature of his employment. The front entrance was a reasonable means to access the premises. The claimant’s injury occurred 28 minutes before start of his shift, and the ground where he landed was a condition of the premises that contributed to his injuries. 

9.    The Commonwealth Court upholds a judge’s decision to enforce a prior judicially approved C&R Agreement wherein claimant agreed to cooperate with the signing of Medicare Set Aside paperwork and later refused. 
Lehigh Specialty Melting, Inc. v. WCAB (Bosco), __ A.3d __, 2021 WL 4304915 

The claimant failed to demonstrate fraud, deception, duress, mutual mistake, or unilateral mistake caused by an opposing party’s fault to negate a compromise and release agreement settling claims with the employer, although a change in the law made medical marijuana available following execution of the agreement. An agreement upon the terms existed at the time the parties entered into the agreement and it was approved. Medical marijuana was not contemplated at the time the agreement was approved, and the claimant never appealed the approval of the agreement. The claimant accepted the monetary settlement to resolve the indemnity portion of his claim and agreed to cooperate with the employer’s effort to secure a Medicare set aside arrangement, which would not have funded medical marijuana.

10.    Commonwealth Court holds filing a Notice of Temporary Compensation Payable paying indemnity benefits and filing a Medical-Only Notice of Compensation Payable to stop payment does not obligate employer to also file a Notice Stopping Temporary Compensation Payable and a Notice of Compensation Denial. 
Raymour & Flanigan v. WCAB (Obeid), __ A.3d __, 2021 WL 3610114 

The employer, which had filed a Notice of Temporary Compensation Payable paying indemnity benefits to claimant, was not required to file a Notice of Compensation Denial in addition to the Medical-only Notice of Compensation Payable it sent the claimant in order to stop paying indemnity benefits. The Department of Labor & Industry, Bureau of Workers’ Compensation’s regulation required the employer, when it sought to cease paying indemnity benefits, to either file a Notice of Compensation Payable, of which a medical-only notice was one variety, or a notice advising a claimant that the payment of temporary compensation did not constitute an admission and that the claimant must file a claim to establish liability of the employer. 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

Thought Leadership

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.