The Month in Pennsylvania Workers' Compensation: November 2013 At-A-Glance
Mitchell I. Golding, Esq. on 12/18/2013
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Kennedy, Campbell, Lipski & Dochney
Although as a general rule, employers seek reimbursement of benefit overpayments from the supersedeas fund, there are circumstances where an employer can recoup an overpayment directly from the claimant, i.e., to prevent unjust enrichment or a double recovery.
The Employer was entitled to a credit against claimant's future compensation to prevent unjust enrichment where it proved that it paid the $509 per week undiminished by counsel fees under the mistaken belief that it was obliged to pay a 20% attorney fee over and above the claimant's compensation rate to discharge its duty under the WCJ's prior order.
A remand was in order to make a finding as to how much Claimant can afford to repay each week.
An employer's right to recoupment is permitted to prevent unjust enrichment. The right to recoupment is not solely limited to where there had been a mistaken belief or payments were made under a Section 413 (a) Agreement. Claimant's fault or lack thereof is not relevant where he was unjustly enriched by employer's excess payments of benefits.
A person who has paid another an excessive amount of money because of an erroneous belief induced by a mistake of fact that the sum paid was necessary for the discharge of a duty, for the performance of a condition, or for the acceptance of an offer, is entitled to restitution of the excess.
Under the Act, the claimant's counsel fees can be chargeable to the claimant or to the employer. Section 442 of the Act requires the WCJ to approve a contingent fee agreement whereby counsel fees are paid directly out of the amount of compensation awarded to the claimant. These counsel fees may not exceed 20% of the claimant's compensation.
However, Section 440(a) of the Act provides that if the employer does not have a reasonable basis to contest liability, the employer shall pay "a reasonable sum for costs incurred for attorney's fee" in addition to the award of compensation.
Where fees are awarded because the employer's contest is unreasonable, the WCJ must determine the amount of a reasonable fee before awarding a quantum meruit standard, which requires the claimant to show, by evidence, the value of the work done by the claimant's attorney.
An attorney's fee that simply adds 20% to the claimant's weekly compensation indefinitely does not relate to the work actually done. Accordingly, it is not authorized by the Act. Put in other words, an indefinite award of 20% of all future benefits cannot be shown to be a "reasonable sum," as required by Section 440(b). It is an improper punitive award.
DD Commonwealth of PA/ Dept. of Transportation V. WCAB (Noll), No. 819 C.D. 2013 (Decision by Judge Leavitt, November 6, 2013) 11/13
It is true that Section 306(b) (2) of the Act provides that prior to performing a Labor Market Survey that "if the employer has a specific job vacancy the employee is capable of performing, the employer shall offer such job to the employee."
However, an employer does not have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition. Rather, a claimant may present evidence that during the period in which the employer had a duty to offer a specific job the employer had a specific job vacancy that it intended to fill that the claimant was capable of performing.
To do this, the claimant may present facts that during the period in which the employer has or had a duty to offer a specific job, the employer is or was actively recruiting for a specific job vacancy that the employee is capable of performing or the employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing, which the employer intends to fill.
The burden then shifts to the employer to rebut the claimant's evidence.
In this matter the Claimant failed to proffer any evidence demonstrating that he was capable of performing any of the jobs available at Employer's retail stores that did not comport with the restrictions outlined in Employer's doctor's IME report.
A vocational expert is not prohibited from conducting a labor market survey, unless he/she first contacts the liable employer to determine whether it has any open and available positions for a claimant.
Reichert v. WCAB (Dollar Tree Stores/Dollar:Express and Specialty Risk:Services, Inc.), No. 42 C.D. 2013 ( Decision by Judge Brobson, November 8, 2013)11/13
NOTICE OF SUSPENSION (LIBC-760)
The Employer did not violate the Act by suspending the Claimant's compensation because the Claimant, upon returning by facsimile "Employee Verification of Employment, Self-Employment or Change in Physical Condition" (LIBC-760) failed to date the form, which was essential to the unsworn statement to the Department of Labor and Industry portion of the form.
This is because the purpose of Form LIBC-760 is to inform an employer of the claimant's work status and medical condition. Section 311.1(d) of the Act states that the "form shall request verification by the employe that the employe's status regarding the entitlement to receive compensation has not changed and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and change in physical condition."
Further, an employer may request a claimant to complete Form LIBC-760 "at intervals of no less than six months."
It is not improper to return "Employee Verification of Employment, Self-Employment or Change in Physical Condition" (LIBC-760) by facsimile; however, the date of the facsimile is not sufficient to date the form for the purposes of the Act.
McCafferty v. WCAB (Trial Technologies, Inc.), No. 208 C.D. 2013 (Decision by Judge Leavitt, November 21, 2013) 11/13
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