As a general rule, when an injured worker in PA loses a light duty job, through no fault of his or her own, temporary total disability benefits are to be reinstated. Like any general rule, of course, there are exceptions. One of the major exceptions involves the time period at issue.
We have previously discussed that reinstatement from partial to total disability benefits under the Pennsylvania Workers’ Compensation Act can usually be accomplished at any time during the 500-week maximum entitlement period for partial disability benefits. During those 500 weeks, the injured worker need only demonstrate that employment is no longer available within his or her physical capabilities (through no fault of the injured worker).
As the Commonwealth Court of Pennsylvania recently addressed in Sladisky v. Workers’ Compensation Appeal Board (Allegheny Ludlum Corp.), the situation is much different after the 500-week period expires. While a Petition for Reinstatement is not time-barred if filed within three years of the date of last payment of workers’ compensation benefits (after the 500-week period expires), the burden of proof is much different, and much more difficult for the injured worker.
In Sladisky, the injured worker fractured his right leg and left ankle. After a few periods of partial and total disability, the workers’ comp insurance carrier resorted to “funded employment,” to place the injured worker back onto partial disability benefits (restarting the clock on the 500 weeks). “Funded employment” is a tool used by workers’ compensation insurance companies, where they place the injured worker with an agency, perhaps a charitable institution, and the insurance carrier pays the injured worker to be an employee of the agency. While the concept of “funded employment” could be something noble, the use of it to simply manipulate the system is completely evident in this case.
Once his 500 weeks expired, Mr. Sladisky was laid off – the workers’ comp insurance carrier advised the actual “employer” that they would no longer pay the injured worker’s salary; this, of course, caused the “employer” to get rid of the injured worker. In turn, Mr. Sladisky filed a Petition for Reinstatement; after all, he lost his light duty job through no fault of his own (in truth, he lost it through the direct fault of the insurance carrier). In the litigation, Mr. Sladisky agreed he would still be working at that job if he was not laid off.
The Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement. Though the standard does change after the 500 weeks expire, and the injured worker would normally have to prove there was a change of condition, such that the Mr. Sladisky was no longer capable of the light duty position, the WCJ believed there should be an exception for “funded employment.”
This was reversed upon appeal by the Pennsylvania Workers’ Compensation Appeal Board (WCAB), which found there is no such exception as that envisioned by the WCJ and Mr. Sladisky failed to meet the required burden of proof.
Upon further appeal, the Commonwealth Court of PA agreed with the WCAB. The Court found no difference between an employer creating a light duty job, and an employer funding employment with some agency. Either way, went the Court’s reasoning, the light duty job is not a job generally available to the public, and the injured worker failed to meet the increased burden of proof. Perhaps that reasoning, however, should show the silliness of the change in standards either way. Here we have an employer directly causing a loss in wages due to a work injury; how can it be justice for a heightened standard of proof when the employer’s own actions created the unavailability of the job?