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The Month in Pennsylvania Workers' Compensation: October 2013 At-A-Glance Part II

Mitchell I. Golding, Esq. on 11/20/2013

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  • Since a Licensed Practical Nurse is a Health Care Provider under the Act, the message therapy provided by the Licensed Practical Nurse is compensable if it is reasonable and necessary.

    This holding is distinguished from the scenario where the message therapy is provided by a Message Therapist. The court has held that the services of a 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.

    In this matter the Licensed Practical Nurse stated that massage therapy was something she utilized in providing therapeutic care to patients and referenced the regulation regarding LPNs, 49 Pa. Code §21.145 (b) which states, in pertinent part:

    (b) The LPN administers medication and carries out the therapeutic treatment ordered for the patient...
  • Employers must pay for medical services and services rendered by physicians and health care providers, and pursuant to Section 109 of the Act. An individual must be licensed or authorized by the Commonwealth to provide health care services in order to qualify as a health care provider. This does not demonstrate an intent to require employers to be liable for treatment rendered by unlicensed individuals. Until the Commonwealth begins authorizing state licensure of massage therapists employers are not required to pay for such treatment

  • Where the employer questions the reasonableness or necessity of treatment, the employer bears the burden of proving that the challenged treatment is not reasonable or necessary. There is a rebuttable presumption that the treatment is reasonable and necessary. The court has determined that treatment may be reasonable and necessary even if it is designed to manage the claimant's symptoms rather than to cure or permanently improve the underlying condition.

Moran v. WCAB (McCarthy Flowers and Donegal Mutual Insurance), No. 830 C.D. 2013 (Decision by Judge McGinley, October 16, 2013) 10/13


  • The WCJ committed an error of law upon granting Employer's Petition for Suspension based upon the fact that Claimant had applied for and accepted a disability pension from Employer, and applied a presumption to conclude that Employer met its burden of establishing that Claimant had voluntarily withdrawn from the workforce.

    There is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension, much less a disability pension; rather, the worker's acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired. Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired - the inference must be considered in the context of the totality of the circumstances. The WCJ must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof.

    This is because receipt of a pension is not the factual or legal equivalent of retirement, or withdrawal from the workforce, in every case. It is true that in most instances an employee must withdraw from his employer's work force in order to be eligible for a pension. However in many instances, such as in this matter, that was not the case.

    Where, as here, the employee has been laid off, the employer has effectively removed the employee from its workforce, and the application for a pension merely formalizes the circumstances that already exist -- the employer has severed the employment relationship in both the factual and the legal sense. Under such circumstances, the receipt of a pension is not a separation from the employer's workforce and thus, there is no rational basis for shifting the burden of proof from the employer, affording the employer any presumption, or imposing any duty upon the claimant. Instead, in cases like this, the receipt of a pension is merely one fact for a WCJ to consider in deciding a suspension petition.

  • The employer who challenges the entitlement to continuing compensation on grounds that the claimant has removed himself or herself from the general workforce by retiring, has the burden of proving that the claimant has voluntarily left the workforce. If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.

    At most, a claimant's receipt of a pension could give rise to a permissive inference that a claimant is retired, which "was just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce.

    A "permissive inference" is no more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier of fact believes that the weight of the evidence and the experiential accuracy of the inference warrants so doing. The WCJ can reject the inference in whole or in part.

    There is no burden shifting with a permissive inference and that the burden of persuasion remained with the employer to persuade the trier of fact that the suggested conclusion should be inferred based on the predicate facts proved. Such an inference, on its own, is not sufficient to meet the employer's burden.

Turner v. WCAB (City of Pittsburgh), No. 347 C.D. 2013 (Decision by Judge McCullough, October 16, 2013) 10/13


  • Although it is true that the Hearing Loss Provision of the Act does not permit a deduction from a claimant's total binaural hearing impairment for that portion of the impairment caused by presbycusis (aging process), a medical expert may still be found credible by the WCJ who, though acknowledging claimant's hearing loss is in excess of 10%, nevertheless credibly opines that claimant's hearing loss was not caused by hazardous exposure to occupational noise.

McCool, Sr. v. WCAB (Sunoco, Inc.), (No. 783 C.D. 2013) (Decision by McGinley, August 23, 2013) 10/13

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