Of course, no injured worker is trying to lose his or her Pennsylvania workers’ compensation benefits. But, not being properly advised by an attorney who is certified as a specialist in PA workers’ compensation law can lead to that very result. Take the cautionary tale of Mr. Torijano, a plumber’s helper who suffered a lumbar strain while working.
As addressed by the Commonwealth Court of Pennsylvania in Torijano v. Workers’ Compensation Appeal Board (In A Flash Plumbing), Mr. Torijano (“Claimant”) was released to go back to light duty work following his injury. Initially, he did go back to work. But, he felt the work was too heavy for him. He also was unhappy that his employer reprimanded him (for failing to call in before each job, as the employer required). Rather than bring the physical problems to the attention of his employer, or his doctors, he simply stopped reporting for work.
After hearing testimony from four representatives of the employer, and reviewing a letter the employer sent Claimant, making clear light duty work was available, the Workers’ Compensation Judge (WCJ) granted the Petition for Suspension, stopping the wage loss replacement benefits. The testimony of Claimant’s own medical expert confirmed that he remained capable of light duty work. Also not helpful was the admission from Claimant that he told the adjuster the only reason he stopped going to the light duty job was the reprimand. The WCJ found that Claimant voluntarily quit the job, which was within his light duty capabilities. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).
Upon further appeal to the Commonwealth Court of Pennsylvania, Claimant still lost. The Court found that the employer did not have to show that a position was available within Claimant’s physical restrictions. Instead, the employer proved that the reason for the loss of earnings was something other than the work-related injury. The reason for the loss of earnings here, according to the Court, was the actions of Claimant, ie: his voluntary quitting of the job. As the Court noted, employer could prevail by showing either of these two things (then again, the Court added that Claimant was actually working at a light duty job when he quit). The Court found ample evidence to support the granting of the Suspension Petition.
Why is this case significant for every injured worker in Pennsylvania? Because this is a reminder to get an attorney who is certified as a specialist in PA workers’ compensation law. With appropriate legal advice, Mr. Torijano could have protected himself from further injury, without creating this risk to his workers’ compensation benefits. Also, by being represented, Mr. Torijano would not have had that conversation with the adjuster which both the WCJ, and the appellate courts, found significant. The time an injured worker goes back to work, whether to his or her regular job, or to a lighter, modified one, is a time fraught with risk to future workers’ compensation benefits. Please be smart at that stage of the case and call an attorney, whether us or another attorney experienced in PA workers’ compensation benefits.