An Employer may be entitled to a Suspension order, despite the presence of disabling non-work related conditions
The Pennsylvania Workers' Compensation Act provides wage loss benefits and payment of reasonable medical expenses to the employee suffering from disability as the result of a work injury.
An Employer may attempt to Suspend or Modify the payment of wage loss benefit via medical and vocational evidence of available work.
When the employee suffers from non-occupational disability, in addition to residual work disability, the right and responsibilities of the parties are altered.
In Southeastern Pennsylvania Transportation Authority (SEPTA) v. WCAB (Cunningham), No. 2045 C.D. 2011, the Commonwealth Court of Pennsylvania addressed these issues in an opinion authored by Judge McCullough dated July 12, 2013.
Factual and Procedural Background
Employee injured his right knee on June 11, 1996, while working as a mechanic in a permanent light-duty capacity, as a result of prior work injuries. A Claim and Penalty petition were litigated, after a Notice of Temporary Compensation Payable was revoked.
Employee returned to work shortly after the June 1996 right knee injury.
He was involved in a non-work related MVA in July 1996 with injuries to the left knee, low back and left hand. He went off work. He had surgery for the work-related right knee injury in January 1997 and returned to his light duty position in April 1997.
Employee suffered a 2nd non-work related accident in December 1998 when he was struck by a vehicle, injuring his left knee, left shoulder, left hand and low back. He has not worked in any capacity since an unsuccessful attempt to work in December 1998.
WCJ Decision, June 2000, granted the claim and penalty petitions.
Employer filed a petition for Modification in August 2006 based upon medical and vocational evidence as of April 12, 2006.
Employer filed a petition for Modification/Suspension in January 2007 averring employee was able to return-to-work, but for his non-occupational injuries.
Employer and Employee presented vocational and medical expert testimony.
WCJ Decision granted Employer Modification as of April 12, 2006, based upon competent and credible medical and vocational evidence.
WCJ Decision also granted a Suspension of benefits as of January 26, 2007, based upon the evidence that employee's non-work related injuries rendered him incapable of all possible work.
WCAB affirmed the Modification and reversed the Suspension order.
Commonwealth Court Decision reinstated the Suspension order.
Commonwealth Court Reasoning:
1). Section 413 of the Act, 77 P.S. 772 allows the WCJ to modify, suspend or terminate benefits upon prove the disability of the injured worker has decreased, or finally ceased.
2). The Pa. Supreme Court decision in Kachinski set forth the standard for modification based upon job availability: i. An employer must produce medical evidence of some recovery of ability to work; ii. Employer must produce evidence of open (available) jobs within the medical clearance; iii. employee must demonstrate a good faith follow through on job referral; iv. benefits continue if the referral does not result in a job.
3). A Suspension of benefits is appropriate where the employee has sufficiently recovered from the work-related injury to return to work.
4). However, where the employee is incapable of return to all possible work activity, as a result of his non-work related injuries, it "would be an exercise in futility" to require the employer to show that work is available to such an injured worker.
In the instant case, Employer medical evidence was found credible by the WCJ to establish employee was capable of returning to sedentary capacity work, as a result of his work-related injury.
Employer vocational evidence was found credible to establish a post-injury earning capacity as of April 12, 2006.
A Suspension of Benefit as of January 26, 2007 was appropriate, as employee was incapable of returning to any work, as a result of his non-work related injuries. The Court noted that employee did in fact return to his available position after his work injury and after the first non-occupational accident. It was only after the 2nd non-occupational injury that employee did not return to his position.
Commonwealth Court relied upon the logic and reasoning of the Pa. Supreme Court decision in Struthers Wells v. WCAB (Skinner) (Pa. 2010) for the proposition that Employer was not required to demonstrate that work was available within employee's work-related limitations, where in fact, employee was totally disabled by his non-work conditions.
PRACTICE POINTER:
It is essential to examine any work restrictions where an injured employee has non-occupational conditions which may limit the workers capacity to return to work.
Ask you medical expert to identify the degree of disability as a result of the work injury versus the degree of disability associated with any non-occupational conditions.
This distinction may alter your litigation plan and the remedies available to the Employer and Insurer.
