Once an injured worker in Pennsylvania establishes that he or she is disabled from work, due to the work injury, typically the workers’ compensation benefits continue (at the “temporary total disability” rate) until either the injured worker goes back to work, fully recovers, settles the case, or, loses litigation which shows that the injured worker has a “wage earning capacity.”
This last situation is often the one leading to the most unfair results. Recently, in North Pittsburgh Drywall Co., Inc. v. Workers’ Compensation Appeal Board (Owen), the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ruled that benefits should be suspended (or at least modified, depending on the earnings), when the injured worker had no transportation to get to a modified job.
The injured worker in this case hurt his right wrist while doing his job in 2001. About a week after the work injury, his car was repossessed (there was no credited allegation that the repossession had anything to do with the injury or the delayed receipt of workers’ compensation benefits). The injury was accepted as work-related by the workers’ comp insurance carrier, who issued a Notice of Compensation Payable (NCP). In 2003, the employer offered the injured worker a modified duty job, the duties of which were approved by his treating physician. The job was located about 90 minutes from the injured worker’s home, about the same as the pre-injury position. Unfortunately, at that point, the injured worker still had no car.
Borrowing his father’s car, the injured worker went back to work at this modified job for two or three days, and had no difficulty performing the job. When his father needed his car back, however, the injured worker could no longer get to the job and therefore stopped working. The injured worker was never paid for the two or three days he worked, and the workers’ compensation insurance carrier stopped paying benefits.
A long and tortured litigation ensued, which involved multiple appeals. Ultimately, the WCJ had both a Suspension/Modification Petition (filed by the workers’ compensation insurance carrier to stop, or reduce, benefits) and a Petition for Penalties (filed by the injured worker since the workers’ compensation insurance carrier simply stopped paying workers’ comp benefits). The WCJ denied the Suspension/Modification Petition, finding that the injured worker lost the job through no fault of his own, and that, since he was never paid by the employer, there were no wages to support a suspension or modification. The Petition for Penalties was granted, since the benefits were stopped without a sufficient legal basis. This was affirmed by the WCAB upon appeal.
The Commonwealth Court of Pennsylvania approached this case somewhat differently. While the Court agreed that perhaps the injured worker lost the job “through no fault of his own,” typically the burden in a Petition for Reinstatement, the Court then added that, in a Petition for Suspension, the inquiry is whether the “disability, ie: loss of earnings, was related to non-work injury factors.” Because the injured worker lost the job here for reasons not related to the claimant’s work injuries, the Court reversed the decision of the WCJ and WCAB, which denied the Petition for Suspension. The matter was, yet again, sent back (“remanded”) to the WCJ to determine the wages of the job at issue (to decide whether the benefits should be reduced or stopped entirely). The Petition for Penalties was affirmed, as the fact the employer was ultimately successful did not justify the insurer unilaterally stopping the benefits.