Once an injured worker in Pennsylvania establishes an entitlement to workers’ compensation benefits (when out of work, the benefits are known as “temporary total disability benefits” or TTD), the workers’ comp insurance carrier cannot just stop paying the benefits at its discretion. This is one of the advantages of the workers’ compensation system in PA.
Unless the injured worker settles the case, or agrees that he or she has returned to gainful employment at (or above) the pre-injury earnings, there are very few situations an insurance company can stop the TTD benefits without an order of a Workers’ Compensation Judge (WCJ). Indeed, even an order of a WCJ can only be obtained in certain circumstances, such as when the insurance carrier proves the injured worker has fully recovered from the work injury, or that work is available to the injured worker within his or her physical capabilities.
Given the difficulties workers’ comp insurance carriers face in PA trying to stop the payment of TTD benefits, the companies are always searching for new ways to accomplish this goal. One of the relatively recent ways to attack the payment of benefits is by alleging an injured worker has voluntarily removed him or herself from the labor market. Proving such an allegation allows the stoppage of TTD payments without having to demonstrate any job availability.
Just today, the Commonwealth Court of Pennsylvania issued a decision in Philips Respironics v. Workers’ Compensation Appeal Board (Mika), where the Court examined this very issue. Given the result in the case, this stands as a lesson (and a warning) for both injured workers and their attorneys.
In this case, the injured worker hurt his left shoulder, resulting in an impingement syndrome. Both Claim and Termination Petitions were filed, and litigated, before a WCJ. Ultimately, the WCJ granted the Claim Petition, and denied the Termination Petition, but suspended TTD payments as of September 1, 2017, the date the injured worker testified about no longer looking for work. An appeal was filed to the Workers’ Compensation Appeal Board (WCAB). The Board reversed the WCJ on the issue of the suspension of benefits, but affirmed the remainder of the decision. It was felt by the Board that the mere admission he was no longer looking for work did not rise to the level of a voluntary withdrawal from the labor market.
Upon further appeal, the Commonwealth Court of PA reversed the WCAB in favor of the original decision of the WCJ. The injured worker (on September 1, 2017) testified that he was no longer looking for work, and was now a stay-at-home parent, taking care of the children. While this was partially due to the work injury, the injured worker testified that, since his background was in warehouse work, and he had no degree, limiting his job prospects to low paying work, it made financial sense for him to stay home and his wife to be the one working. He admitted that he was capable of working, but elected not to do so. The Court concluded that:
“Here, Claimant unequivocally testified that he had stopped looking for work, in part due to his shoulder condition and in part due to the economics of his personal situation. Because Claimant acknowledged that there was work he could do, but he chose not to pursue it due to personal financial considerations, Employer was not required to present evidence of available work within Claimant’s restrictions or expert testimony regarding Claimant’s earning power.”
It is not so much this decision that causes us concern specifically. Indeed, this decision is consistent with existing case law. The existing case law (and, of course, this resulting decision), however, is extremely unfair to injured workers throughout Pennsylvania. Why is it such a burden for the workers’ comp insurance carriers to demonstrate job availability, regardless of whether the injured worker is looking or not? In other words, if no jobs would be available to an injured worker, within his or her physical capabilities, why does it matter whether the injured worker is fruitlessly searching? It just doesn’t make sense to us on a humanitarian level.