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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.

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Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.