Typically, under the Pennsylvania Workers’ Compensation Act, the benefits of an injured worker are reduced based on any earnings the injured worker has after his or her injury. Specifically, the injured worker receives two-thirds of the difference between the pre-injury earnings and the post-injury earnings (up to a statutory maximum).
In a somewhat troubling decision issued by the Commonwealth Court of PA, Alessandro v. Workers’ Compensation Appeal Board, an injured workers’ benefits were ordered to be suspended, despite the workers’ comp insurance carrier having no evidence that post-injury earnings equaled pre-injury earnings. The Court, noting that the Workers’ Compensation Judge found the injured worker not credible, believed the burden to show earnings (and subsequent wage loss) rests with the injured worker, not the workers’ comp insurance carrier.
As an attorney who represents injured workers in Pennsylvania, I find this decision problematic. Mr. Alessandro testified that he worked some, but had a large wage loss. Since it appears he was paid in cash (meaning there are no written wage records), and Mr. Alessandro was found not credible, as a practical matter, it seems almost impossible for Mr. Alessandro to prove he has a wage loss. How can one prove an absence of earnings?