PA Injured Worker Entitled to Partial Disability Benefits After Changing Modified-Duty Jobs
On this blog we often discuss the beginning and ending of a workers’ compensation case in Pennsylvania. This is a natural, and obvious, area of litigation. However, there is also potential for dispute, and thus, litigation, when an injured worker goes back to work. This is especially true where the injured worker remains under limitations, and there may or may not be partial disability benefits due. Recently, the Commonwealth Court of Pennsylvania issued a decision is this area.
In Holy Redeemer Health System v. Workers’ Compensation Appeal Board (Lux), a nurse (Claimant) suffered a back injury in the nature of lumbar sprain, facet arthropathy, and radiculitis while bending to care for a patient. She was disabled from her pre-injury position (as a telemetry nurse) by this injury. Since her employer had modified-duty work available within that department, the Claimant continued to work (with restrictions) and suffered no loss in wages. The workers’ compensation insurance carrier accepted the claim on a medical-only basis.
While the injured worker continued to perform the modified-duty work, at no loss in wages, her employer created a permanent, available position in a different department and offered it to Claimant. The employer did not force or require Claimant to leave her original modified-duty position. This new position actually led to Claimant earning less money than in her modified-duty job in the other department.
Since she was now suffering a loss in wages, Claimant filed a Claim Petition, seeking to recover the amount of money she was now losing in this new position. The workers’ compensation insurance carrier disputed her right to compensation, saying that she voluntarily accepted a position which paid less, so the loss in earnings was due to her voluntary change of jobs, not the effects of the work injury. There was, in fact, case law which held this principle (A 1994 decision by the Commonwealth Court of Pennsylvania, Shenango, Inc. v. Workmen’s Compensation Appeal Board (Weber)). Note that the workers’ compensation insurance carrier also filed a Petition for Termination, but this is not relevant to the appeal.
After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, and ordered the insurance company to pay the partial disability benefits based on the loss in earnings. The Petition for Termination was denied. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).
Upon further appeal, the Commonwealth Court of PA also affirmed. The Court was not persuaded by the argument that the injured worker voluntarily chose to take a lower paying job. In the previous Court decision, Shenango, the injured worker took the step of bidding on a new job, and then left the modified-duty position he had. The Court found this fact pattern different, in the sense that here, the employer created a job and offered it to the injured worker. The change was totally initiated by the employer, not the injured worker. As such, the Court felt that the employer could not benefit from the maneuver. In the words of the Court:
“We simply cannot permit employers to evade the payment of pre-injury wages or partial disability benefits by creating and offering permanent, lower-paying positions to claimants that are within the restrictions imposed by the claimants’ work-related injuries.”