No. Pursuant to the Commonwealth Court of Pennsylvania Decision in Southeastern Pennsylvania Transportation Authority (SEPTA), v. Workers’ Compensation Appeal Board (Cunningham), No. 2045 C.D. 2011. Claimant suffered a work-related injury to his right knee as a mechanic in June 1996- the Employer, after temporarily accepting his claim, then denied it. Claimant filed a Claim Petition. He returned to his pre-injury job shortly after the work accident. But in July 1996, Claimant was involved in a non-work-related car accident, injuring his left knee, low back, and left hand. He went out of work as a result. He had surgery for the work-related knee injury (right) in 1997 and returned to his pre-injury light duty position in April 1997. In December 1998, in a second non-work-related accident, Claimant was struck by a vehicle and hurt his left knee, low back, left hand, and left shoulder. He then stopped working and received sickness and accident benefits. He unsuccessfully tried returning to work in late December 1998 and has been out of work since.
The Workers’ Compensation Judge granted the Claim Petition and awarded total disability benefits for the periods in which Claimant was disabled from the June 1996 work injury and ongoing (to the extent he wasn’t already compensated). In August 2006, Employer filed a Petition to Modify and/or Suspend alleging that as of April 12, 2006, Claimant failed to respond in good faith to job offers referred to him within his physical and vocational abilities. During the litigation, Employer filed a second Petition to Modify/Suspend alleging Claimant was able to return to work as of November 9, 2005, but for his December 1998 non-work-related injuries. Employed deposed Dr. Joseph Bernstein, a board-certified orthopedic surgeon who opined that Claimant’s right knee had recovered sufficiently that Claimant was capable of performing sedentary work as of November 9, 2005 and that the only cause of Claimant’s continuing disability was the non-work-related December 1998 accident. Employer also presented the testimony of Michael Smychynsky, a vocational consultant, forensic economist, and certified rehabilitation counselor who interviewed Claimant and found jobs that he alleged were available to Claimant with wages of up to $400 per week. Claimant presented the testimony of Dr. Ronald Greene who concluded that Claimant was not capable of returning to work due to the condition of his right knee. The WCJ found that Dr. Bernstein’s testimony was more credible, granting Employer’s Modification Petition and reducing Claimant’s benefits for April 12, 2006 to January 26, 2007, and suspending his benefits as of January 26, 2007 as Claimant’s non-work-related injuries rendered him incapable of all possible work activity.
Claimant appealed and the Workers’ Compensation Appeal Board affirmed the WCJ’s Decision to modify Claimant’s benefits, concluding that Claimant waived the argument. But the Board agreed with the Claimant that the WCJ erred in suspending Claimant’s benefits because Employer failed to establish the availability of a job equal to or greater than Claimant’s pre-injury average weekly wage of $825.91 and thus reversed that portion of the WCJ’s Decision. On appeal, the Employer argued that the is not required to demonstrate job availability given that Claimant’s non-work-related injuries are totally disabling.
Unfortunately, the Commonwealth Court agreed with Employer’s argument. They first cited Section 413 of the Pennsylvania Workers’ Compensation Act and the Kachinski case in which our Supreme Court interpreted that section to mean that the employer who seeks to modify a claimant’s benefits must first produce evidence of a change in condition, then the employer must produce evidence of a referral to a then open job (or jobs) which fits in the occupational category for which the claimant has been given medical clearance, then the burden shifts to claimant to demonstrate that he has in good faith followed through on the job referral(s) and if the referral fails to result in a job then claimant’s benefits should continue.
The Commonwealth Court looked to the Pennsylvania Supreme Court case, Schneider, Inc. v. Workers’ Compensation Appeal Board (Bey), 560 Pa. 608, 747 A.2d 845 (2000), where the Court held that the employer was not required to show job availability where the claimant was totally disabled by non-work-related conditions. While the injuries in Schneider were more severe, the Employer was successful in showing that the facts were similar and that Schneider applies.
This holding contradicts the spirit of Kachinski. It is not a favorable ruling for injured workers in Pennsylvania. Employers should have to show job availability but Schneider and the instant case are making it easier for employers to modify or suspend claimants’ benefits by lowering the burden of proof required to suspend an injured worker’s benefits in similar circumstances.
Suspension of an Unauthorized Alien’s Benefits – Eleazar Ortiz v. WCAB
In Eleazar Ortiz v. WCAB, the Commonwealth Court of Pennsylvania held that Claimant’s status as an undocumented alien does not preclude the award of temporary total disability benefits under the Pennsylvania Workers’ Compensation Act. However, if an employer wants to suspend a claimant’s TTD, it does not have to show job availability under a case called Reinforced Earth. Once an undocumented worker, who is receiving TTD benefits, is released to any type of work, it is his or her immigration status which is causing the loss of earning power, not the work-related injury, and thus, a suspension of wage loss benefits is warranted.
[Note– suspension deals with wage loss benefits only, not medical. To end medical benefits, a termination must be granted by the Work Comp Judge.]
For injured workers who are working in Pennsylvania lawfully, the employers have a heightened burden when attempting to suspend a claimant’s wage loss benefits. They must prove that an actual job offer was made within the claimant’s restrictions and that the injured worker failed to follow up in good faith, (see Kachinski 4 pronged analysis) or they must show that work is generally available under the Labor Market Survey principles in the Act and commensurate case law. There are some instances where suspensions are automatic such as when a claimant fails to return the LIBC forms within 30 days or a return to work at earnings equaling or exceeding the pre- injury average weekly wage.
As an attorney for injured workers in Pennsylvania Work Comp cases, I disagree with this Decision. If you are going to allow unauthorized workers to receive TTD benefits as a public policy exception, you should not then change up the standard when it comes to proving a loss of earning power post-injury. That being said, the Decision could have been worse- at least TTD benefits have survived in these circumstances.
Contact Pennsylvania Workers’ Comp Attorney Michael W. Cardamone for a Free Consult 7 Days A Week. (267) 651-7945.
