Justices To Hold Round of Oral Arguments in Harrisburg

Also on Monday, the justices will consider the appropriate standard for calculating a workers’ compensation claimant’s average weekly wage when the claimant was on disability leave for another injury during a portion of the preceding year.



In Colpetzer v. Workers’ Compensation Appeal Board, PICS Case No. 02-1113 (Pa. Commw. July 17, 2002) Mirarchi, S.J. (12 pages), the Commonwealth Court ruled that, under Section 309(d) of the Workers’ Compensation Act, a workers’ compensation judge must calculate a claimant’s average weekly wage using his earnings from the three highest of the last four quarters in the 52 weeks immediately preceding the injury. However, the court said, in cases where a claimant was on disability leave for another injury during a portion of the preceding 52 weeks, a WCJ should use the claimant’s established average weekly wage during that period of disability in calculating his benefits for the present work injury.



While the WCJ in this case appropriately applied Section 309(d) to calculate claimant William Colpetzer’s average weekly wage, the judge nevertheless erred in calculating Colpetzer’s average weekly wage by employing the claimant’s rate of compensation, rather than his average weekly wage, for the two quarters he was on disability. Such a computation does not reflect the reality of the claimant’s actual earning potential, the court determined.



Standard Steel, Colpetzer’s employer, is appealing the ruling.



The case has been consolidated with another employer’s appeal of the Commonwealth Court’s ruling in Zerby v. Workers’ Compensation Appeal Board, PICS Case No. 03-0517 (Pa. Commw. en banc April 14, 2003) Cohn, J.; Friedman & McGinley, JJ., dissenting (21 pages). The court in that case applied the rationale of Colpetzer to reach a similar conclusion.



Arguments in the consolidated appeals are scheduled eighth on the docket.



Tucker Arensberg attorneys Richard B. Tucker, of the Pittsburgh office, and Dennis R. Sheaffer, of the Harrisburg office, represent Standard Steel in the Colpetzer appeal. Daniel King Bricmont of Caroselli Beachler McTiernan & Conboy in Pittsburgh is counsel of record for Colpetzer.



Katherine M. Lenahan of Lenahan & Dempsey in Scranton represents the Reading Anthracite Co. in the Zerby case. Serving as counsel for claimant David Zerby is Jeffrey Charles Majikas of Laputka Bayless Ecker & Cohn in Hazleton.

Cat Fund Deadline

On Wednesday, the justices will hear arguments in a case asking whether an insurer’s failure to meet a 180-day time limit for filing notice of a claim with the state Medical Professional Liability Catastrophe Loss Fund constitutes an absolute defense to the claim.



Under Section 605 of the Health Care Service Malpractice Act, the CAT Fund is required to pay a claim if it has received a written request for indemnity and defense within 180 days of the date on which notice of the claim is given to the health care provider or an insurer. But Section 702 of the same statute qualifies the meaning of that measure, requiring the CAT Fund to demonstrate that it was prejudiced by the insurer’s failure to abide by the time limit.



In Pennsylvania Medical Society Liability Insurance Co. v. Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund, PICS Case No. 02-1286 (Pa. Commw. Aug. 19, 2002) Pellegrini, J.; Friedman. J., dissenting (16 pages), the Commonwealth Court ruled that the CAT Fund did not meet this burden, rejecting preliminary objections to a two-count petition filed by the Pennsylvania Medical Society Liability Insurance Co.



The CAT Fund — which was replaced in October 2002 by the MCARE Fund — will take its appeal to the Supreme Court first on the docket Wednesday. The case has been consolidated with an appeal of the Commonwealth Court’s unpublished ruling in St. Mary Medical Center v. Medical Professional Liability Catastrophe Loss Fund, which was entered on April 28, 2003.



Representing the CAT Fund in both cases are Guy A. Donatelli of Windle & McErlane in West Chester, along with CAT Fund attorneys Kenneth J. Serafin and Zella Smith Anderson in Harrisburg. Larry L. Turner and Patricia Daffodil Tyminski of Morgan Lewis & Bockius in Philadelphia are counsel of record for the Pennsylvania Medical Society Liability Insurance Co. in the first appeal. Representing St. Mary Medical Center in the second appeal are Jan P. Levine and Patricia A. McCausland of Dechert’s Philadelphia office.

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