Earning Power Determinations Under Pennsylvania Workers’ Comp Law

Injured workers can get disability benefits for either total disability or partial disability. Total disability benefits last as long as the worker continues to be totally disabled, and partial disability benefits can last up to 500 weeks (not necessarily consecutive). But how do they determine which classification a worker fits into and how much their earning power has been reduced?

A worker’s ability to work and earning power are intrinsically tied up with each other, and determinations can be made about both during a Workers’ Comp case. Typically, a doctor will examine the worker and determine whether they are able to go back to work or not. A full duty release or light duty release from your doctor will give more details about what work you can and cannot do. If you can work to some extent, you can be on partial disability; if you cannot work at all, you’d go on total disability. Revisions to the initial determination can be made later, potentially changing you from total disability to partial disability or vice versa.

For help with your injury case, call our Certified Pennsylvania Workers’ Compensation Lawyers at Cardamone Law at (267) 651-7945.

Determining Earning Power Under the Workers’ Comp Act in Pennsylvania

For injuries suffered on or after June 24, 1996, an insurer may demonstrate an employee’s earning power by providing expert opinion evidence relative to the employee’s capacity to work. Section 306(b)(s) of the Workers’ Comp Act gives the basic instructions for how this process works and how to determine earning power.

When we say “earning power,” we mean the overall work that the injured worker is capable of performing now after their injury. This means looking at more than just the worker’s ability but also how it fits into the current job market in the area where they live. This ultimately requires evidence from multiple types of experts.

Medical Evidence

A doctor’s records and opinions on what the worker’s current abilities are will be vital to determining their earning power. In some cases, the doctor will say the worker can go back to work at full capacity – giving them a full duty release. If that happens (and if you and your Allentown Workers’ Compensation lawyers agree with that assessment), then there is no reduction in earning power, and you can just go back to work. If you are able to work at a limited capacity – potentially with a light-duty release – then that will limit what tasks you can do, thus limiting your job options.

Actual Work Done

In no case can your earning power be determined to be less than what you are actually making while on partial disability if you are able to work despite your injury. If you are actually working, then your earning power is at least that much.

Job Market Evidence

The evidence shall also include job listings with agencies of the Department, private job placement agencies and advertisements in the usual employment area within Pennsylvania to determine what work is available to the injured worker. Partial disability applies if the employee is able to perform the previous work that they were just injured doing or if they can engage in any other kind of substantial gainful employment in the usual employment area in which the worker lives within Pennsylvania. This will mean considering the employee’s residual productive skill, education, age, and work experience, along with other traits.

Often, there will need to be opinions from a “vocational expert,” who will probably have to sit down with you and interview you about your previous work and your skills to see what jobs out there might be available to you while you are partially disabled.

Alternate Job Vacancies that Meet a Worker’s Restrictions

Sometimes you do not need to look far for a job, as your employer that you were just working for has a position open that you can fill while you are on partial disability. If a specific job vacancy exists with the pre-injury employer in Pennsylvania, which the employee is capable of performing, the employer has to offer that job to the employee prior to seeking a modification or suspension of benefits based on earning power. This is essentially the first resort for an injured worker (if the employer has a job opening).

The specific job vacancy element is extremely important because if the employer fails to confirm that no work is available for the employee within the listed restrictions before seeking to modify or suspend wage loss benefits based on a Labor Market Survey, then the petition will fail. This is a tool for claimant’s attorneys to attack a Labor Market Survey. I will sometimes hire my own vocational expert to research the issue as to whether any jobs existed at the time-of-injury employer within my client’s restrictions at the time the employer is performing its earning power assessment. Another area to attack is whether the job, if offered, is actually within the employee’s restrictions. There are usually differences of opinion between the medical experts.

Changing Between Partial and Total Disability While on Workers’ Compensation

If your disability starts out as total and eventually reduces to partial, you might be able to return to work and have your benefits reduced to partial disability benefits. The opposite might also be true: you might be on partial disability benefits, but after surgery or a worsened condition, you might end up totally disabled (at least for some time).

Generally, the event that triggers a change in status is going to be either a determination from your doctor that your physical abilities have changed or a determination from an Independent Medical Examination (IME). After you are on total disability benefits for 2 years, your employer can request that you undergo an IME to determine if you are still totally disabled. If they determine that your impairment is under 35%, then you might be switched to partial disability benefits.

From there, a doctor’s determination might switch you back the other way. If you face a sudden flare-up, your condition worsens, or you receive medical treatment that requires a recovery period, you might go back on total disability.

Any changes between partial and total disability usually need to be approved by a Workers’ Comp Judge based on a petition filed by either party. However, there are some changes that can be automatic, such as if you actually return to work with the same employer, they can recalculate your benefits as partial.

With total disability benefits, you usually receive 2/3 of your average wage from before the injury. If you are on partial benefits, you receive 2/3 of the difference between what you made before and after the injury.

Changes in Ability

If an employer later files a petition to modify or suspend benefits based on a change in the employee’s medical condition, the obligation commences when the insurer provides the Notice of Ability to Return to Work and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. If the petition is not based on a change in medical condition, the obligation to offer a specific job vacancy commences at least 30 days prior to the filing of the petition.

There are circumstances in which the employer’s duty may be satisfied. A few examples are when the employee was notified of a job vacancy and failed to respond or refused it, or when no job vacancy exists within the usual employment area.

Call Our Workers’ Compensation Lawyers in Pennsylvania Today

If you were hurt at work, call Cardamone Law’s Philadelphia Workers’ Compensation attorneys at (267) 651-7945.