Partial Benefits Reduced Due to Resignation Prior to the Work Injury

When an injured worker in Pennsylvania goes back to work, but, due to the injury, suffers a continuing wage loss, the injured worker is entitled to partial disability benefits. Often, the question in these cases revolves around the reason for the wage loss. A recent decision rendered by the Commonwealth Court of Pennsylvania was no exception. Specifically, the Court answered the riddle of, “When is a job not a job.”

The case of Keller v. Workers’ Compensation Appeal Board (UPMC Presbyterian Shadyside) began when Ms. Keller slipped and fell on November 24, 2006, badly fracturing her right wrist while in the scope and course of her job as Primary Nurse Care Coordinator for UPMC Presbyterian Shadyside (UPMC). At the time of the injury, the injured worker was also working for the University of Pittsburgh (Pitt) as a part time clinical instructor, and for Mon Valley Hospital (Mon) as a staff nurse in the emergency room. The wages earned working for Pitt and Mon were added into the Average Weekly Wage, since they were considered “concurrent employment.”

Eventually, the injured worker was able to return to modified work at UPMC, but remained physically incapable of resuming either of her other positions. Subsequently, the injured worker quit her job at UPMC and started working for Carlow University (Carlow) at a lower wage. Litigation ensued as to the calculation of the partial disability benefit due to the injured worker.

The primary issue was that on November 4, 2006, prior to the work injury, the injured worker advised Pitt that she intended to resign as of December 31, 2006, to go back to school and earn her Masters in Nursing. The workers’ comp insurance carrier argued that this meant the injured worker should not receive compensation for any ongoing wage loss with regard to the job at Pitt.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Penalty Petition and denied the Suspension Petition, finding that the injured worker was due partial disability benefits for both of the two concurrent jobs she could no longer physically perform. The effect of her quitting the job at UPMC gave the insurance carrier no relief (though the insurance carrier was still permitted to use the higher UPMC wage, rather than the lower Carlow wage, to calculate the partial benefit due).

The Workers’ Compensation Appeal Board (WCAB) affirmed the decision, with an important modification – because the injured worker quit the job at Pitt effective December 31, 2006, no partial disability benefits should be payable relative to those wages. That loss in earnings, said the WCAB, was not related to the injury.

This was appealed by the injured worker to the Commonwealth Court of Pennsylvania, who affirmed the WCAB. Critical to the Court was that the injured worker had “intended” to resign prior to the work injury. This, said the Court, meant the loss of earnings was not related to the injury. Our issue is that a work injury, especially one with severe and lasting effects, can change what one “intends” to do. It seems unfair to hold the injured worker to her pre-injury plans, with no analysis, or thought, as to whether the injury would or did change those plans. The fact is, she was injured while working and remained physically unable to go back to that job. In our minds, that makes her eligible for continuing partial benefits relative to that job.

The Court also noted that the injured worker’s contract with Pitt would have expired in 2007, and there was no guarantee she would have continued there anyway. We find this argument also lacking. Since Pennsylvania is an “at will” employment state, very few workers are guaranteed continuing employment. For most, if the work injury continues to render the injured worker unable to perform his or her job, he or she is entitled to benefits. We are unsure why this would be different in this concept. Again, we are mindful that the Pennsylvania Workers’ Compensation Act was designed to be helpful to the injured worker – it does not feel like this attitude was reflected in the decision of the Court.

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