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Injured School Bus Driver Awarded $150,000 From Negligent Truck Driver

January 26, 2017

When an employee is injured on the job, the first concern is the employee’s health, and the second is undoubtedly economic security. For over 100 years, Pennsylvania’s workers have been able to seek wage replacement and medical benefits when they are injured on the job, regardless of who is at fault, in exchange for not pursuing legal action against their employers. Injured workers are also able to seek compensation from third parties who may have contributed to or caused their injuries if those third parties are found to have negligently contributed to the work injury. A recently-decided case involving a Philadelphia school bus driver provides an excellent example of how the system works.The case stemmed from a collision between a flatbed truck and a school bus being driven by sixty-year old Yvonne Pinder. Ms. Pinder was driving her regular route when she entered an intersection and struck the truck. Testimony indicated that the truck driver and his passenger were unfamiliar with the route, and had been distracted by a GPS.As a result of the collision, Ms. Pinder suffered injuries that required treatment at a local emergency room. She also went to a workers’ compensation medical facility the next day, and was diagnosed with multiple injuries including a concussion, post-concussion syndrome, and a neck strain and sprain that required a few months of physical therapy. She was later diagnosed with radiculopathy (a fancy name for nerve damage) arising from trauma to the nerve roots in her neck.In addition to receiving benefits through her employer’s workers compensation insurance, Ms. Pinder pursued a negligence claim against the truck driver and his employer, Traffic Lines Inc. Her witnesses included an expert in accident reconstruction who testified about the collision, as well as an expert in internal medicine who concluded that she was permanently disabled and that she would require future nerve studies. She sought past and future lost wages based upon her previous income of $30,000 per year and the fact that she is no longer able to perform the duties that were included in her job, including lifting wheelchairs and carrying a fire extinguisher onto the bus. Ms. Pinder also sought damages for pain and suffering, which are not available in a workers’ compensation claim.The case ended with the jury awarding her damages in the amount of $150,000, though that amount was reduced to $127,500 based upon testimony that led to the jury holding Ms. Pinder to be 15% responsible for the accident.When a person suffers an injury on the job, workers’ compensation provides an important safety net for their medical expenses and lost wages, but an astute workers’ compensation attorney may be able to provide you with additional compensation when a third party’s negligence plays a role in your injury.

Workers’ Compensation ‘Reform’ Unnecessary After Rate Cut

June 4, 2015

In Christian’s latest article for The Legal Intelligencer, he tackles the topic of rate cuts in workers’ compensation insurance rendering workers’ compensation ‘reform’ unnecessary.In March, the Wolf administration announced a significant rate cut in workers’ compensation insurance.  This was welcome news after years of threats, driven largely by the Chamber of Commerce, aiming for wholesale changes to Pennsylvania’s workers’ compensation law.  According to the governor’s office, workers’ compensation insurance rates were set to drop almost 6 percent, effective April 1. This stands to save Pennsylvania businesses millions this year, and is the fourth workers’ compensation insurance rate cut in a row. These four consecutive cuts stand to save PA businesses $550 million during that four year time span.After several reform bills were proposed during the Corbett administration that had the potential to negatively affect the injured worker, this rate cut may be the best option to positively affect everyone involved.  It comes on the heels of a reform proposal to address issues with prescription drug abuse of opiates among workers’ compensation recipients that passed with a unanimous vote.  The proposed drug monitoring system will help insurers keep tabs on patients and monitor their prescriptions properly.Another factor that helped make the 6 percent rate cut a possibility was positive changes in workplace safety throughout the state.  With the establishment of state-certified workplace safety committees, the workplace has become a safer place, which means less workers’ compensation claims.  With less claims comes hundreds of millions of dollars in workers’ comp abatement, as businesses with these practices in place receive a 5 percent premium discount.Thanks to the four consecutive years of workers’ compensation rate cuts, those with a stake in the system should be able to breathe easier, and hopefully can avoid making radical changes to the system in the near future.  Stability would be a welcome change for all those affected by workers’ compensation in Pennsylvania.To read more about this topic, follow the link below to read Christian’s full article in The Legal Intelligencer:http://www.thelegalintelligencer.com/id=1202724848854/Workers-Compensation-Reform-Unnecessary-After-Rate-Cut?slreturn=20150411133219#ixzz3ZSbSiS6W

Maximum Medical Improvement (MMI) and the Findings of the IRE

April 3, 2015

In one of Christian Petrucci’s latest articles for the Legal Intelligencer he tackles several cases involving Maximum Medical Improvement (MMI) and the findings of the IRE.  MMI is reached when a disabled worker has healed as much as they can from their injuries and it is thought that they will not need any more surgeries or medical care to try to improve their physical state.  It is at this point that the courts can decide if the person is permanently disabled from their injury, or if they may return to work due to a lack of impairment.In this Legal Intelligencer article we take a look at three separate cases that dealt with the issue at hand differently in the state of Pennsylvania.  How can we determine when maximum medical improvement is reached?  You can read more of Christian’s latest article by following the link below:http://www.thelegalintelligencer.com/id=1202717030165/Determining-When-Maximum-Medical-Improvement-Is-Reached?slreturn=20150117100226  

What is a Workers’ Comp Claim?

April 2, 2015

If you have been injured or made ill on the job, then you may be eligible to file a workers’ compensation claim.  These claims allow you to receive a portion of your regular pay while you are out of work, as well as to be compensated for the medical bills or rehabilitation costs that you incur as a result of the injury. Filing a workers’ comp claim is a fairly straightforward process, and should be done as quickly as possible. In addition to filing the claim itself, it is essential that you let your employer know about your injury. Failure to do so in a timely way can jeopardize your eligibility for compensation.In the best cases, employers willingly cooperate with a workers’ compensation claim. Ethical employers understand that workers’ compensation is about helping employees to get better so that they can get back to work without being economically damaged by the injury that has occurred. Unfortunately, some employers are not cooperative, and may contest your claim. When this happens, the best way to protect your rights is to seek representation from a workers’ compensation attorney. The Law Offices of Christian Petrucci have the experience you need to help you get what you deserve.Employers are required to pay for workers’ compensation insurance specifically to provide coverage in case of a workers’ compensation claim, so when you let your employer know that you have a claim, they will generally provide you with claim forms that they will then submit to their insurance carrier.  After your claim is submitted, your employer or their insurer will either approve it or deny its validity. If your claim is approved you will receive notice of what process to follow to submit your medical receipts and information on how you will receive payment. If, however, your employer or their insurance adjuster elects to contest your claim then you will need to provide additional documentation. This may include medical records regarding your injury and treatment or even witness testimony by colleagues. At The Law Offices of Christian Petrucci, we have extensive knowledge of how to best present your circumstances in order to make sure that you get the compensation to which you’re entitled.In most cases, a workers’ compensation claim is designed to provide you with reimbursement for medical bills and any time that you miss from work and the process goes smoothly. However, there are a number of reasons why a workers’ comp claim may be denied. These may include a failure to report the injury or illness in a timely manner, a dispute on the part of the employer or their insurance carrier, or stated questions about the seriousness of your injury. Whatever the reason, it is important that if your workers’ comp claim is denied, you speak to an experienced workers’ comp attorney. They will be able to help you to decide whether to file an appeal and help you to with the process. Appealing a workers’ comp denial is far more complicated than filing the original claim, and may require extensive evidence collection. Having an attorney working on your behalf is the best way to help yourself through the process.Learn more about Workers' Comp here:petruccilaw.com/workers-comp/

Social Security Lawyer in Philadelphia

February 10, 2015

If you have been disabled and are about to file for Social Security disability, you may be considering whether you to call a Social Security lawyer in Philadelphia for guidance and representation. There are a number of very important benefits to having an attorney by your side through this process.

Though it is certainly possible to file for Social Security disability on your own, the chances of having your application approved are significantly increased for those who have legal counsel, and particularly for those whose lawyers concentrate their practice in in this type of law. A Social Security lawyer understands the importance of getting everything right on your application from the outset, from the “alleged onset date” of your disability to providing detailed evidence that your condition meets the agency’s requirements for compensation. They understand exactly what the Social Security office is looking for, and what will be most meaningful to them to get your application approved.

Unfortunately, statistically speaking the majority of initial Social Security disability applications get rejected and are then sent to another level for reconsideration and appeal. Where the initial application is rather basic in its level of detail, at the hearing level your attorney will be able to provide more extensive information, including all relevant medical evidence and opinions from physicians. These hearings are held before Administrative Law Judges, and your attorney will provide you with extensive preparation so that you know exactly how best to answer all questions.

When you have a Social Security lawyer acting on your behalf at you appeal hearing, they will be able to ask you and other witnesses and experts who are present the questions whose answers will give you the opportunity to prove your need for benefits. If your initial appeal is rejected again, your attorney will represent you and argue on your behalf in front of the Appeals Council and federal court to show that your application was wrongly denied.

Hiring a Social Security Lawyer in Philadelphia is not an expensive proposition. The government has created regulations that limit the costs to 25% of the amount that is owed to you in back pay, though it is important to remember that if your case needs to be appealed to the Appeals Council or federal court, the costs will likely run higher. One way or another, fees generally do not exceed a maximum amount of $6,000, and fees can only be charged if the attorney successfully wins your case for you.

If you have become unable to work and are considering filing for Social Security disability, it is important that you consult with an attorney as early as possible. The Social Security disability application process is notoriously long, and you may find yourself waiting for months for your case to be resolved. The earlier you file, the less back pay the government will owe you and the less you will owe your attorney once they win your case. For information on how the Social Security disability attorneys at the Law Offices of Christian Petrucci can answer all of your questions and help you become eligible for benefits, please contact us today.

Court Takes a Step Back on Proving Abnormal Working Conditions

December 12, 2014

In Christian Petrucci’s latest blog he tackles the recent State Supreme Court Case of Payes v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania State Police), which dealt with the issue of “mental-mental” workers’ compensation claims. Mental-mental claims pertain to those who are dealing with psychiatric or mental disabilities caused by work injury. Before this case it had been very hard to prove disability due to psychological or mental injury, but the Supreme Court has now found that the lower tribunal had been a bit over reaching in the past.

The most important thing to take away from this case is the importance of medical evidence and support to help prove the validity of a mental-mental claim. This challenge has often posed difficult for many, but it is essential in winning a mental-mental case. Read more about Payes v. Workers’ Compensation Appeal Board in Christian’s latest article for The Legal Intelligencer. Follow the link below to the full article:

http://www.thelegalintelligencer.com/id=1202678627712/Court-Takes-a-Step-Back-on-Proving-Abnormal-Working-Conditions#ixzz3LbGykFBI

Commonwealth Court Rules on Competency of Dueling IRE Physicians

November 25, 2014

In Christian's latest article for the Legal Inteligencer, he tackles the Commonwealth Court case dealing with the the competency of doctors who were testifying on an impairment rating evaluation.  Can an injured worker challenge the validity of an IRE?  Read an excerpt from Mr. Petrucci's latest article below, and read the whole story at The Legal Inteligencer.

Last month, in the case of Pennsylvania Department of Public Welfare v. Workers' Compensation Appeal Board (Slessler), No. 2209 C.D. 2013, the Commonwealth Court took up a matter dealing with the competency of doctors testifying with respect to an impairment rating evaluation. While the procedural history and fact pattern of the case are fairly convoluted, the ultimate holding provides some guidance regarding an injured worker's ability to challenge the validity of an IRE.

The matter came before the court on petition by the employer, seeking to challenge the Workers' Compensation Appeal Board's decision affirming a workers' compensation judge's (WCJ) decision denying the employer's petition to modify compensation benefits based on an IRE. The modification petition sought to change the claimant's benefit status from temporary total disability (TTD) to temporary partial disability (TPD) based upon an IRE that resulted in a total body impairment of 8 percent, which is significantly lower than the needed 50 percent to maintain ongoing TTD benefits. While the board also reversed the WCJ's determination to include major depression, panic disorder and status post C5-6 fusion into the description of injury, that issue was not before the court.

The case began in September 2003, when the claimant, Dallas Slessler, was injured at work after a resident of the Loysville Youth Center and four other workers all fell on Slessler during an attempt to subdue the resident. The claim was picked up by notice of compensation payable (NCP), which listed the accepted injury as "neck and right Achilles tendon strain." In November 2006, the WCJ issued a decision, amending the NCP to include post-traumatic stress disorder and "chronic pain."

While multiple pleadings on both sides were filed, the petition at issue was the August 2009 modification petition, alleging that Slessler's benefits should be modified to TPD based on a Nov. 18, 2008, IRE of Slessler that found a total body impairment rating of 8 percent. The modification petition was necessary since the employer failed to obtain the automatic conversion due to an untimely IRE request.

During the litigation, the employer presented the testimony of the IRE physician, Michael Wolk, who is a licensed medical doctor who, among other qualifications, met the Department of Labor and Industry's certification for performing IREs. Slessler relied on the testimony of a psychologist, David Longo. The employer objected to his testimony based on the notion that he could not be qualified as an expert because he did not satisfy the Department of Labor and Industry's qualification requirements for the performance of IREs. Among other concerns, the employer asserted that Longo was not a medical doctor and was admittedly not trained in the sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

The WCJ overruled the employer's objection to the testimony of Longo. The WCJ indicated essentially that the regulations dealing with the performance of IREs only spoke to the competency of the doctor performing the IRE for the employer in the first instance, but that a claimant's rebuttal witness's failure to meet the regulations' standards went only to the weight of the opinion. The WCJ indicated that the regulations do not address the competency of a non-certified physician to testify in rebuttal to an IRE and that the AMA guides specifically state that both psychiatrists and psychologists are expected to use the guides in their practices.

In denying the employer's modification petition, the WCJ found that Wolk's testimony was actually incompetent and used Longo's opinion to support his findings. The board affirmed the WCJ's decision regarding the employer's modification petition, but reversed the WCJ on other matters. As the employer took an appeal to the Commonwealth Court, the only issue before it was whether the board erred in affirming the WCJ's decision on the impairment rating issue.

Since the employer had the burden on the modification petition, the court dealt with whether the WCJ erred in finding Wolk's testimony incompetent. The reason given by the WCJ for the finding was that Wolk's testimony "does not establish that he adequately considered all of the guidelines and tables set forth in the guides." However, this fact was not based on any piece of evidence, but on the WCJ's own understanding of the guides. Consequently, the court found that Wolk's testimony was, in fact, competent, and that the WCJ erred. Next, the court had to discern whether the WCJ erred in finding Longo's testimony competent to support the WCJ's findings. In going through the relevant regulations, the court acknowledged that the provisions do not specifically require a claimant seeking to rebut an established IRE to offer an expert who satisfies the requirements of the IRE regulations. The court notes that the regulations only speak to the first instance of an employer initiating the proceedings. However, the court found Longo not to be competent to render an opinion as the regulations specifically anticipate only medical doctors performing IREs. A claimant must present evidence of "similar character," performed by osteopathic or medical doctors—while not necessarily a physician certified by the state to perform IREs.

Based on the holding in this case, it is now reasonable to infer that evidence tending to discredit the original IRE will be very liberally accepted. Even if a claimant only offers testimony seeking to demonstrate the IRE was not properly performed in the first instance, and fails to get a full-blown impairment rating, it will still be helpful. One need not obtain an opinion from a physician of the same certification as the original IRE doctor. However, it is important to note that only medical doctors will be deemed competent to offer any kind of opinion as to the validity of the IRE. These guides offer a succinct strategy in challenging IREs.

Read more: http://www.thelegalintelligencer.com/id=1202676242090/Commonwealth-Court-Rules-on-Competency-of-Dueling-IRE-Physicians#ixzz3IydJQGa7

Christian Petrucci Has Been Rated as an AV Preeminent

October 15, 2014

Mr. Petrucci has recently had the honor of being rated "AV Preeminent" by Martindale-Hubbell. This is Marthindale-Hubbell's highest rating for ethical standards and legal ability. This highest honor comes from Martindale-Hubbell’s Peer Review Ratings™, which generates its results from the evaluations of other members of the bar association and the judiciary in the US and Canada. Congratulations to Mr. Petrucci on his achievement.

A Tax On Legal Services Would Further Harm The Injured Worker

October 10, 2014

In Christian Petrucci's latest article for The Legal Intelligencer, he tackles the issue of taxing legal services and its effect on injured workers. Though no legislation has been passed to do so, Christian takes the time to dissect the potential effects on Workers' Compensation and the injured people who depend on it. Read an excerpt of the article below, and follow the link at the bottom to read the full article:

While it would appear that we have dodged a bullet yet again in the current legislative session, the move to tax legal services has intensified in the last few years. Most recently, the bill made it as far as it ever has when, last month, it passed in the Pennsylvania Senate Finance Committee in bipartisan fashion, by one vote. There seems to be little stomach for the full Senate to take up the measure given the impending governor's race, to say nothing of the House. However, should the bill ever become law, it will severely injure those dependent on the already-deficient workers' compensation system. This consequence, intended or otherwise, should be strongly considered before any legislator casts a vote.

The bill in question, SB 76, the Property Tax Independence Act, is designed to change the way school funding is raised in Pennsylvania by eliminating the school property tax and replacing it with an expansion of both the amount and nature of the sales tax and an increase in personal income tax. As it pertains to the legal profession, the act would expand the sales tax base to include the taxation of certain legal services. While the need for property tax reform is real, shifting the burden from homeowners to people who need legal representation is a terrible idea. Both the Pennsylvania and Philadelphia bar associations have formally opposed the legislation, and for good reason. A primary argument against Pennsylvania imposing a tax on legal services centers around the notion that it would hurt certain firms' ability to compete with other jurisdictions. Given that workers' compensation remains a practice particular to state law, this very valid argument is not a consideration for workers' compensation practitioners. However, opposition to the tax in the workers' compensation bar is equally strong for other reasons.

As with any sales tax, the proposed tax on legal services is extraordinarily regressive. Rich and poor alike both require legal services from time to time. Unlike many luxury or consumer items, the need for legal services is almost never a choice. As an example, being injured on the job is something no one would choose for himself or herself. Nonetheless, hiring an attorney is a necessity foisted upon most workers who sustain more than the most minor of injuries. Many of these individuals are forced to remain without an income for a year or more, making them indigent, if they were not already prior to being injured.

In his testimony to the Senate Finance Committee regarding a similar bill from the last legislative session, past president of the Pennsylvania Bar Association, Thomas G. Wilkinson, stated: "Access to justice is a basic constitutional right, and justice is not a commodity for sale like an automobile or furniture, but rather a key basis for a functioning civil society. Effective legal representation routinely requires legal counsel. A sales tax on legal services places an undue and unjust burden on the legal system, a burden particularly felt by those of lesser means, and therefore on the equal access to justice."

This statement is true as a general proposition. It is particularly relevant to those injured on the job who are generally the least able to shoulder the burden. Often the amount received in workers' compensation payments (assuming one can even get those payments in the first instance) is a fraction of a worker's normal pay. The benefits are first reduced by the compensation rate schedule and diminished further by the 20 percent attorney fee. The tax would force injured workers to pay from their compromised indemnity benefits an additional 7 percent tax on the services they had little choice in accepting. There is also almost no ability to "shop around," (as if one would select a lawyer based on the amount of the fee) as a 20 percent fee is standard across the industry. This additional tax could add up to an annual expense in the hundreds of dollars. Moreover, given that a disproportionate number of workers' compensation cases arise out of Philadelphia County, the tax would be all the more onerous to those injured in Philadelphia, where legal services would be taxed at a rate of 9 percent.

Tangentially relevant to the workers' compensation practitioners' opposition to SB 76 is the notion that the sales tax could result in lost business and fewer jobs. This would thwart any benefit in replacing the current school funding mechanism in the first instance. Receipts realized from sales and income tax are economy-based. Tax collections are obviously reduced when the economy is not doing well. Property taxes, on the other hand, generally remain constant, irrespective of economic factors. The resulting inability to formulate a budget following the imposition of a sales and income tax-based model would harm the school districts the bill is intended to help.

Finally, the practicality of law firms collecting taxes is nonexistent. The legal industry has never been one to pay sales tax. Unlike retailers of hard goods who could immediately begin collecting sales tax on items not currently taxed, law firms would have to enter the realm of being agents of the government and pay for the resulting accounting services (and the new taxes that would go with that). The industry is not designed to collect taxes.

Pennsylvania's current budget allocates funding for legal services to the indigent. This is an implicit acknowledgment that the need for legal services is different from any other consumer good or service. Hopefully the legislators, most of whom are lawyers, will come to their senses and figure out another way to achieve property tax reform. In order to assist in that process, you may wish to utilize the Philadelphia Bar Association's website, which has a Legislative Action Center item specifically for the bill at http://goo.gl/tO85UZ.

Read more: http://www.thelegalintelligencer.com/id=1202672806272/A-Tax-on-Legal-Services-Would-Further-Harm-the-Injured-Worker#ixzz3Fkf8ejBc

Commonwealth Court: Pension Offset Inures to Parent Company

October 7, 2014

In Christian's latest article for The Legal Intelligencer, he explains the case of Stepp v. Worker's Compensation Appeal Board. This case deals with the offset of pension benefits. Here is an excerpt from the article. You can read the full article by following the link below.

Commonwealth Court: Pension Offset Inures to Parent Company

With the passage of Act 57 of 1996, the Pennsylvania Workers' Compensation Act was amended to provide for offsets against indemnity compensation for certain pension or severance payments as well as for "old age" Social Security payments and unemployment compensation benefits. The relevant section of the act dealing with the offsets of pension benefits is Section 204(a), which provides that "the benefits from a pension plan to the extent funded by the employer directly liable for the payment of compensation which are received by an employee shall also be credited against the amount of the" employee's disability benefits. On Sept. 10, in the matter of Stepp v. Workers' Compensation Appeal Board (FairPoint Communications), No. 2270 C.D. 2013, the Commonwealth Court dealt with the meaning of the phrase "the extent funded by the employer" as it pertains to a successor company in interest. Given that pension-offset situations arise in a small percentage of cases, reading Stepp will refresh the practitioner's awareness of the general principles and should provide a valuable practice tip.

In a 2006 case, quoted in Stepp, the Commonwealth Court explained the legislative intent of Section 204(a) as "reducing the cost of workers' compensation by allowing an employer to avoid paying duplicate benefits for the same loss of earnings." On the same token, the legislature did not want an employer to utilize an employee's own retirement funds to satisfy its workers' compensation obligations. While Section 204(a) of the act authorizes the unilateral offset itself, the receipt of pension benefits is usually discovered by the injured worker's completion of Form LIBC-756, which is the Employee's Report of Benefits for Offsets. This form allows the employer to inquire on a semi-annual basis whether the claimant is receiving any benefits that are subject to an offset against workers' compensation indemnity benefits, and enables the employer to take a unilateral offset simply by filing a notice of compensation benefit offset (NCBO). Should the claimant disagree with the unilateral action taken by the employer, a review petition can be filed, seeking to challenge either the amount or nature of the offset.

Since the benefits are customarily reported by the claimant on the LIBC-756 form, it is incumbent on the practitioner to see to it that the form is properly completed as the figures may be used in taking the offset. More important, any time an NCBO form is received, it is crucial to note whether the offset was based on the "net" or "gross" amount of the applicable benefits, as the court in Philadelphia Gas Works v. WCAB (Amodei), 964 A.2d 963 (Pa. Commw. 2009), endorsed the "net" method. The unusual thing about the Stepp case is that the controversy over the pension offset was created when the claimant unilaterally notified his employer in writing that he intended to retire and sought to collect his pension benefits. While the decision did not hinge on this fact, deferring the retirement and receipt of pension would have avoided the offset issue and prevented the claimant from being subject to allegations that he had taken himself out of the workforce.

By way of background, the claimant, Regis Stepp, began working for a company called Marianna Scenery Hill Telephone Co. in 1973. In 2000, FairPoint Communications acquired Marianna. The evidence of record suggested that Marianna became a "wholly owned second-tier subsidiary" of FairPoint following the acquisition. Stepp continued to be an employee of Marianna, but FairPoint continued to manage the human resources department for all employees of all the subsidiaries of FairPoint. While the record did not specifically indicate, it was assumed that all of the employees of the subsidiaries of FairPoint were covered under the same workers' compensation policy.

In 2008, Stepp sustained a work injury to his back and was unable to work entirely for about five months. Stepp ultimately returned to a light-duty position for a day-and-a-half and concluded that he did not believe he could perform the light-duty position due to the pain. Consequently, Stepp has not returned to work since.

Two years after being injured, Stepp notified FairPoint in writing of his intention to retire. Shortly thereafter, FairPoint petitioned to suspend the claimant's benefits on unrelated grounds. Stepp began receiving his pension payments in October 2010.

On Jan. 4, 2011, FairPoint filed an NCBO, indicating that an offset of $454.58 per week would be charged against Stepp's indemnity benefits based on a 95.71 percent rate of Stepp's pension benefit that was alleged to be employer-funded. Stepp filed a review petition, seeking to challenge not the percentage of contribution, as is normally the case, but instead alleging that since Marianna had funded the pension plan and not FairPoint, per se, FairPoint was not entitled to any offset at all.

After fully litigating the matter, the workers' compensation judge denied Stepp's review petition. The WCJ found that, as a result of FairPoint's acquisition of Marianna, FairPoint and Marianna were the same entity for purposes of determining whether the employer could offset Stepp's indemnity benefits based on the pension.

Stepp appealed to the Workers' Compensation Appeal Board, which affirmed the WCJ's decision, holding that FairPoint acquired Marianna's right to a pension offset after FairPoint acquired Marianna, and was therefore entitled to a Section 204(a) offset against the pension benefits. On appeal to the Commonwealth Court, Stepp argues that the board erred in granting the offset to FairPoint, since Marianna had funded the pension plan.

The Commonwealth Court started its analysis by reiterating the fact that when a change to the status quo is attempted through a reduction of benefits based on a pension offset, the employer bears the burden of proving the extent to which it funded the pension plan in question, even though it is the claimant that brings the petition.

In an effort to determine the succession issue, the court turned to corporate law, citing the 2000 case, LTV Steel v. WCAB (Mozena), 754 A.2d 666, 677 (Pa. 2000), for the proposition that following a merger "the surviving corporation succeeds to both the rights and liabilities of the constituent corporation." The court also appealed to Section 1929 of the Business Corporation Law of 1988 for the proposition that all property rights of the acquired companies "shall be deemed to be vested in and shall belong to the surviving or new corporation."

Stepp's argument was essentially that the board erred because what FairPoint was calling a "merger" was not a true merger of the type described in Section 1929 of the Business Corporation Law. Instead, it was merely a stock purchase to which Section 1929 is not relevant.

In crediting the fact witness for the employer, the court noted that while Marianna was a wholly owned subsidiary of FairPoint, the operations of both companies were merged. This merger of operations includes FairPoint's control of all Marianna workers' compensation claims. The court stated, "When FairPoint assumed responsibility for claimant's work injury, it did so on behalf of Marianna, which remained claimant's employer."

While the court conceded that this was not a merger governed by Section 1929 of the Business Corporation Law of 1988, it still found that the principles of LTV Steel were applicable so as to not "effectively erase" Marianna's contributions to the claimant's pension, which would, in turn, result in a windfall for Stepp in violation of Section 204(a) of the act. While a novel argument, it was rejected at all three levels of review. Given that employers have the power to unilaterally alter the receipt of indemnity benefits through the issuance of a notice of workers' compensation benefit offset form (LIBC-761), the circumstances surrounding the issuance of the various forms and the subsequent cessation or reduction of benefits remain a large source of litigation. The Stepp case should sound a warning to practitioners to ensure the Employee Report of Benefits (LIBC-756) forms are completed properly. Just as important, decisions regarding when and how to apply for pension benefits should be addressed with clients approaching retirement age.

Read more: http://www.thelegalintelligencer.com/id=1202671751562/Commonwealth-Court-Pension-Offset-Inures-to-Parent-Company#ixzz3EvQejlAa