Posts Tagged ‘Thomas P. Cummings’

In Maxim Crane Works v. W.C.A.B. (Solano),931 A.2d 816 (Pa.Cmwlth.2007), the Court addressed the applicability of a retroactive offset of the Claimant’s workers’ compensation wage loss benefits based upon his concurrent receipt of Social Security “old age” benefits. Section 204(a) of the Pennsylvania Workers’ Compensation Act (“the Act”), 77 P.S. § 71(a), provides that fifty percent of the benefits commonly characterized as “old age” benefits under the Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.) shall be credited against the amount of the workers’ compensation payments provided that the Social Security benefits were received after the compensable injury. The offset shall not apply if old age Social Security benefits were received prior to the compensable injury per the provisions of Section 204(a) of the Act.
The Claimant, Solano, was injured on October 10, 2000. On June 6, 2005, Claimant received Form LIBC-756 “Employee’s Report of Benefits for Offsets” from the employer. Claimant completed the form and confirmed his receipt of old age Social Security benefits. On August 3, 2005, Claimant received Form LIBC-761 “Notice of Workers’ Compensation Benefit Offset”, notifying him that the employer was taking a credit that would offset his weekly workers’ compensation benefits, and that a credit from 14 months of prior old age Social Security benefits would also be recouped, reducing his weekly workers’ compensation benefits to zero for a period of 25.75 weeks. On August 16, 2005, Claimant filed the Petition to Review alleging that the offset was calculated in error.
In deciding the case, the Commonwealth Court has held that while the Claimant owed a duty to report receipt of old age Social Security benefits, the regulations placed the initial duty upon the employer or insurer to notify claimant of the reporting requirements and to provide the Claimant with the proper forms. Therefore, the employer was only entitled to an offset for old age Social Security benefits as of the date that claimant received the form notifying him of his duty to report his Social Security benefits. The Court further noted that the equitable doctrine of laches applied so as to disallow a retrospective offset for workers’ compensation claimant’s receipt of old age Social Security benefits. The employer had an obligation to notify claimant of claimant’s reporting requirements under the Workers’ Compensation Act in order for employer to secure an offset. However, the employer did not notify claimant of the reporting requirements until nearly five years after Claimant’s work injury and over two years after Claimant had begun receiving workers’ compensation benefits. In essence, the Court held that the employer could not sit on their rights and expect to recoup a retroactive overpayment.

Thomas P. Cummings, Esq.
Dougherty, Leventhal & Price
75 Glenmaura National Blvd.
Moosic, PA 18507
(570) 347-1011
[email protected]

The Pennsylvania Supreme Court recently issued a decision indicating that a van modified to meets a quadriplegic claimant’s needs may fall within the definition of an “orthopedic appliance” that an employer is obligated to pay for under the provisions of the Pa. Workers’ Compensation Act (hereinafter “the Act”). In the case of Griffiths v WCAB (Seven Stars Farm, Inc.), the Court addressed an appeal by the claimant of a prior decision of the Pa. Commonwealth Court which held that the Act did not require the employer to pay for the purchase of the van.
The Supreme Court, in a decision issued on March 19, 2008, held that the van “is crucial to restore some small measure of the independence and quality of life that existed before the work injury.” The Court also noted that “the present restrictions on (claimant’s) life and mobility were caused by his service to his employer, and a modified van directly addresses and helps to remediate that very harm”. The Court thus concluded that a wheelchair accessible van qualifies under the broad definition of “orthopedic appliances” set forth within the Act.
The Court then took the analysis one step further noting that, while the Act is remedial in nature, “it does not authorize windfalls”. The Court remanded the case to the Workers’ Compensation Judge for findings of fact as to the claimant’s circumstances prior to his injury (whether he owned and regularly operated a vehicle, the age and type of the vehicle, its value, etc.).
If you have a question on your Workers’ Compensation claim, please feel free to call me (570-347-1011) or email me : [email protected]

Thomas P. Cummings, Esq.

The Pennsylvania Commonwealth Court has ruled that a claimant was entitled to benefits, despite fact that he was injured while violating a positive work order prohibiting horseplay. In Sysco Food Services of Philadelphia v. W.C.A.B. (Sebastiano), the facts indicated that the claimant was employed as an order selector. On the date of injury he was retrieving some shrink wrap. when he was grabbed from behind by a co-worker who shouted “Let’s get him.” Anothe co-worker grabbed the claimant from the front, hugging his arms so he could not move, and attempted to trip him. This individual pulled claimant across the floor. Claimant asked him to stop. At that time, someone came by on a pallet jack, beeped the horn at them, and told them to get out of the way. Claimant asserted that he was let go and as he was turning around to walk away he felt someone collide into him. As he fell to the ground, he looked up and a co-worker was on top of him. He heard a loud crack as he was falling. Claimant was taken to the hospital. Claimant acknowledged that horseplay was prohibited by his employer and that it is a punishable offense. Claimant’s contentionwas that he was not a participant in the horseplay, but rather a victim of it.
The claimant, Sebastiano, filed a claim for workers’ compensation benefits. In reponse, the employer raised the affirmative defense that claimant’s actions violated a positive work order and, therefore, his injuries were sustained outside the course and scope of his employment. To properly sustain this defense, the employer must prove: (1) that the injury was in fact caused by the violation of the work rule, (2) that the employee actually knew of the order or rule, and (3) that the rule implicated an activity not connected with the employee’s work duties.
The Commonwealth Court ruled that the claimant was entitled to benefits and granted claimant’s petition. The Court reasoned that, despite fact that the claimant was injured while violating a positive work order prohibiting horseplay, claimant was the victim of horseplay and was not an active participant in it. As the claimant did not choose to engage in the horseplay, it could not be said that he violated the rules of his employer. Further, the Court noted other factors supporting a compensable claim including the fact that the claimant was in an area he was required to be at the time he sustained his injuries, the incident in question was mere horseplay, and that there was joking around with no intent to harm or injure.

If you have been injured at work and have questions about your claim, please call me for a free consultation.
Thomas P. Cummings, Esq.
75 Glenmaura National Blvd.
Moosic, PA 18507
[email protected]

The Pennsylvania Commonwealth Court has ruled that an employer is not entitled to recoupment of an overpayment of workers’ compensation benefits under Section 413(a) of the Workers’ Compensation Act absent the existence of an incorrect “agreement” to modify.

The decision in Dollar Tree Stores, Inc. v. WCAB affirms the ruling of the Workers’ Compensation Appeal Board that had reversed a Workers’ Compensation Judge’s decision that allowed the defendant to recoup $112 per week from the plaintiff. The facts of the case indicate that the excess payments were a result of the employer’s miscalculation of plaintiff’s weekly compensation rate. The Court noted that a stipulation of facts signed by the parties did not meet the definition of aan “agreement” under the provisions of the Act.

Thomas P. Cummings, Esq.
[email protected]
570-347-1011

On October 11, 2007, the Pennsylvania Commonwealth Court ruled that attorney fees must be granted in a case where an employer unreasonably contested workers’ compensation bills on the basis of a “false statement of law”. In Delarosa v. WCAB (Masonic Homes), the defendant employer refused to pay bills for the claimant’s psychotherapy treatment contending that such bills were ONLY compensable when the treatment in question was prescribed and/or supervised by a licensed psychiatrist or psychologist. In Delarosa, the psychotherapy was prescribed by the claimant’s treating orthopedic surgeon. The defendant employer took the position that an orthopedic surgeon was not legally capable of either prescribing or supervising the claimant’s psychotherapy treatment. The Commonwealth Court disagreed. The Court held that the orthopedic surgeon was a “licensed practitioner of the healing arts” and, as such, the orthopedic surgeon could prescribe and supervise the psychotherapy treatment.

Thomas P. Cummings, Esq.

The Pennsylvania Commonwealth Court recently ruled in Boleratz v. W.C.A.B. (Airgas, Inc.) that treatment in the nature of massage therapy was not subject to payment by the employer under the Pa. Workers’ Compensation Act. In Boleratz, the treatment in question had been prescribed by Claimant’s treating physician. The parties also agreed that the treatment was causally related to the work injury. The Court held hold that the services of the massage therapist, who is not licensed or otherwise authorized by the Commonwealth to provide health care services, are not reimbursable under the Act, even if the services are prescribed by a health care provider as the services did not constitute “services rendered by a health care provider under the Workers’ Compensation Act”. 77 P.S. § 531(1)(i)(ii); 77 P.S. § 29.
Thomas P. Cummings, Esq.
[email protected]
(570) 347-1011

On August 14, 2007, the U.S. Consumer Product Safety Commission announced that toymaker Mattel is voluntarily recalling 9 million of its toys in the United States. The recalled items include popular characters such as Batman, Barbie, Polly Pockets and a toy from Pixar’s “Cars” movie because of hazards to children.
18.2 million magnetic toys are being recalled globally and the majority of the toys are no longer available in stores.
Some of the recalled toys have magnets that can become dislodged and swallowed. At least one toy has hazardous levels of lead in its paint.
The majority of the recall – 7 million toys – involves Polly Pocket dolls and accessories, which contain small magnets. These toys were produced between May 2003 to November 2006. None of the toys manufactured after November 1, 2006, are affected by the recall.
To access the Mattell recall page, type: http://www.mattel.com/safety/us/
To access the U.S. Product Safety Commission website, type : http://www.cpsc.gov/

Thomas P. Cummings, Esq.
DLP Law Offices
570-347-1011
[email protected]

The U.S. Department of Transportation and the Federal Motor Carrier Safety Administration have created a website that sets forth comprehensive information and statistics regarding truck crashes. Crash statistics are summarized for large trucks and buses involved in fatal and non-fatal crashes that occurred in the United States. These statistics are derived from two sources: the Fatality Analysis Reporting System (FARS) and the Motor Carrier Management Information System (MCMIS). The website contains profiles for individual states as well as national crash statistics.
The State Crash Reports offer users a selection of reports that are organized into seven focus areas: Summary, Vehicle, Driver, Environment, Crash, Carrier and Maps. The information is displayed in tabular and graphical format. Crash location data are also displayed on colorful maps. Crash statistics contain information that can be used to identify safety problems in specific geographical areas or to compare state statistics to the national crash figures.
National Profiles provide national summary statistics on large truck and bus crashes. National Profiles are divided into two areas: National Profile Reports and State Comparison Reports. The National Profile Reports highlight carriers with the most reported crashes in a calendar year and reflect the truck, driver and environment characteristics for large truck crashes. State Comparison Reports may be used to analyze the number of crashes reported over a period of time and to compare crash results among states.
Click or type the following link to access the site:

http://ai.volpe.dot.gov/CrashProfile/CrashProfileMainNew.asp

If you or a loved one has been injured in a truck accident, call the team DLP Pennsylvania Personal Injury Attorneys for a free consultation. Remember- INJURY, CALL DLP.

Thomas P. Cummings, Esq.
[email protected]
570-347-1011

On May 22, 2007, the Pennsylvania Superior Court of Pennsylvania affirmed a trial court’s granting of summary judgment to a forklift manufacturer in a products liability case. In Arnoldy v. Forklift L.P., the plaintiff was struck by a forklift while it was backing up. Plaintiff’s cause of action alleged defective design of the machine because it lacked any warning system when moving in reverse. The Court held that any state tort law requiring all forklifts to have certain safety devices would contradict language in the Occupational Safety and Health Act (OSHA)that states the user of the machine has the option to request the manufacturer to equip the machine with additional safety devices depending upon where the machine will be used.

Thomas P. Cummings, Esq.

The Court of Appeals for the Third Circuit has held that the Equal Employment Opportunity Commission has broad powers to create “exemptions” for practices that would otherwise violate federal age discrimination laws. The ruling is a rejection of a challenge to an EEOC regulation that approved the practice of allowing employers the ability to modify health care benefits for retirees as soon as they become eligible for Medicare.
Thomas P. Cummings, Esq.